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June 25, 2003

Policy Break: Legal Mysteries


As you remember, I spent a fair amount of time and effort looking into affirmative action and wrote up two postings on the subject (which you can see here and here.) So when I read the headlines today about the Supreme Court’s affirmative action decisions, I thought, what the heck, I’d be interested to actually read the opinions. I’m kind of sorry I did. I’m left with the distinct impression that I spent a lot more time and energy thinking about the subject in order to write a couple of blog postings than Justice Sandra Day O’Connor did in writing the majority opinion in the University of Michigan Law School case.

To say that the opinion, which you can read here, is a little short on constitutional reasoning (or any kind of rigorous logic) hardly does its lack of intellectual muscle-tone justice. I did a quick read of the constitution to see what are the obvious parts that one would parse in making such a ruling; I’m no constitutional scholar but it certainly looks to me like the 14th Amendment and the 15th Amendments are relevant. Those are the parts about “equal protection of the laws” and “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Well, guess what? Justice O’Connor mentions, (but in no way parses, analyzes, or even discusses) the 14th Amendment, albeit only in the very last line of her opinion as she "affirms" the incredibly murky logic of Justice Powell in the Bakke case (i.e., racial quotas bad, racial plus-factors good). The 15th Amendment never even makes it onto the playing field.

Her opinion, on the other hand, is quite replete with discussions of such issues as the need of the military to use racial preferences in order to get an officer corps that looks like the enlisted ranks and the importance of deferring to the wisdom of universities in creating diverse student bodies. Oddly, I couldn’t find any reference to those matters in my perusal of the constitution, but perhaps I read it too quickly.

In short, the opinion looks to me like a memo that might be prepared by a congressional staffer discussing the pros and cons of a piece of legislation. It does not resemble what I always thought Supreme Court opinions were supposed to be: to wit, “theorems” deriving from constitutional “axioms.” If we take the opinion to be such a legislative memo, I’m willing to grant that Justice O’Connor may have produced a wise analysis of the merits of affirmative action as a piece of public policy. I mean, I don’t agree with it, but what do I know? Race-based affirmative action certainly seems to make university presidents and military generals happy.

But the nature of Justice Sandra Day O’Connor’s brief assumes that the real function of the Supreme Court is to function as an unelected super-legislature, unaccountable to the public and with lifetime tenure. Did we really fight a revolution against George III to saddle ourselves with not one but nine kings?

Since I seem to be the only person I know who even finds this slightly odd—even in the wake of the last presidential election—I guess I must be the goofy one. One of the true surprises of my adult life is the continued deference of most Americans to a legal system that is functionally inefficient, poorly designed, intellectually vacuous and in many ways transparently corrupted by money or politics or both. Why people seem so content to leave the law to the (monstrously self-interested) legal community is, well, a mystery.

Scratching my head,


posted by Friedrich at June 25, 2003


Well Friedrich, from one legal amateur to another, I fail to see the relevance of the 15th Amendment. What have voting rights to do with admission policies at the University of Michigan? The 14th Amendment is conceivably relevant, but there is no need to dig that deep: the Michigan cases really turn on interpretation of the 1964 Civil Rights Act. O'Connor is wrong about that too, of course, and it is true that her opinion, and Ginsburg's concurrence, are remarkably devoid of actual legal reasoning. I posted some comments on the matter here.

Posted by: Aaron Haspel on June 25, 2003 9:09 AM

I read the opinions too, and like you, found them disappointing. The Court is too busy declaiming on social policies or discussing their own prior precedents to parse the Constitution. Diversity is now a social good; therefore, some form of it must be constitutional. Further, that social policy can never be repealed, even though its original proponents thought such programs would be only temporary (like New York's WW-II era rent control laws, I suppose). All is all, whatever you think of the merits of the Michigan plans, a very poor showing from the nine in Washington.

Posted by: Gerald on June 25, 2003 9:25 AM

Friedrich -- If the Supreme Court is acting as "an unelected super-legislature" here, can you tell me which law, exactly, it is overturning? I'd expect a libertarian like yourself to fight for the law school's right to do whatever it likes, but no. Rather, you want the Supreme Court to find the law school's behaviour (as opposed to any particular law or statute) to be unconsitutional. Surely, if the law school's behaviour is to be outlawed, it should be the legislature which does that and not the supreme court. Your argument, I'm afraid, works more against you than it does for you.

It seems to me that what you -- and the present administration -- want is for the supreme court to venture where no elected legislator would ever tread -- in fact, you want the supreme court to act as an unlected legislature. Congress could -- but won't -- pass a law making affirmative action illegal, so you're now fishing for the next-best thing, which is SCOTUS doing their dirty work for them.

Posted by: Felix on June 25, 2003 9:58 AM

Aaron--my assumption about the 15th Amendment is that it at least suggests a concern in its drafters for a race-neutral treatment of one important constitutional right, which presumably offers analogies to other issues where race-neutrality or its opposite crop up. (I mean, I think arguing by analogy is essential in applying a finite document to an infinite world, but maybe I'm wrong about that.)

Gerald--I think we're pretty much in agreement.

Felix--I think you're missing my forest for my trees. I never thought for a moment that any other outcome in this case was even possible, and the point of my piece is not that I'm disappointed in the substance of what Justice O'Connor said in her opinion. I mean, what the heck, she's obviously been around the block a few times herself, and maybe she's just plain wiser than I am. Rather, my point is that the form of the opinion makes it clear that parsing the constitution--or even, as Aaron points out--the 1964 Civil Rights act, was the last activity on anybody's mind; SCOTUS is sitting on its mountain making (or choosing to validate existing) social policy. And I think it is pretty clear that when the Supreme Court does this, not only is it outside its constitutional role, its other attributes--lifetime tenure, unaswerability to voters, etc.--make it very much an Assembly of Nine Kings. And at least in my notions of American political philosophy, royalty (however neat and clean as a decision making tool) is not a desirable outcome. But then, so little about the Anglo-American "justice" system works worth a damn anyway, I don't know why this surprises me.

Posted by: Friedrich von Blowhard on June 25, 2003 10:58 AM

Friedrich: Are you disappointed O'Connor didn't spell out the constitutional basis of her reasoning more clearly in her written opinion, or are you disappointed that in your view there doesn't seem to be any constitutional basis? I can't quite tell. The former would seem to be complaints about form, while the latter would seem to justify the Nine Kings theory. But if you're just disappointed that she didn't bother to make clear her constitutional legal reasoning, as high-handed as that might be (perhaps she should have recognized she needed to work harder) , that doesn't mean Ms. O'Connor couldn't justify it if she tried a little harder. I read just a portion of Clarence Thomas' minority opinion and saying that "blacks can do just fine in this country without the meddling of school administrators" doesn't exactly seem to find it's roots in the Constitution either. Is he saying that Affirmative Action would still be appropriate if, in his opinion, blcacks couldn't do fine without meddling?

Posted by: caroline on June 25, 2003 11:59 AM

Actually O'Connor's "legal reasoning," such as it is, is quite clear. It runs as follows: race categories are subject to "strict scrutiny," meaning that for them to be upheld a "compelling state interest" must be at stake, and that they must be "narrowly tailored" to serve that interest. "Diversity" is a compelling state interest. The law school's program is "narrowly tailored"; the undergraduate one is not. QED.

Now I think to argue that what Thomas called in his dissent "classroom aesthetics" is a "compelling state interest" is ridiculous, but you can't say that's not a legal argument.

It is true that the 15th Amendment demands race-neutral treatment of voting, but if you were to argue that by extension it demands race-neutral treatment of everything else you would be on dangerous ground. The fact is, race discrimination is not always illegal, and there is settled case law to this effect.

Posted by: Aaron Haspel on June 25, 2003 1:12 PM

"No state ... shall deny any person within its jurisdiction the equal protection of the law."

That's from the Constitution of the United States. It shouldn't need elaborate interpretation. There's no mystery about what it means.

The University of Michigan law school isn't a state, but it's supported by a state, and represents a state's gateway for its citizens to a branch of higher eduction. So it comes under this (14th) amendment to the Consitution.

But in the era of social engineering, a fuzzy concept like "diversity" is, according to the Supreme Court, of such compelling interest as to override a perfectly straightforward right that is part of the backbone of liberty.

What has brought us to this point? A mandarin class of lawyers so privileged that they cannot be constrained by mere written law; the doctrine of judicial activism (if you disagree with a law, just declare it unconstitutional; if you like what someone is doing, ignore the law); the erosion of belief in the rights of the individual, and growth of the belief that rights apply first and foremost to groups; minority groups having learned how to game the system by claiming privileges in the name of "civil rights" and threatening to pin the scarlet R (for racist) on anyone who publicly opposes their agenda; and the whole environment of political correctness that is the reductio ad absurdum of '60s radical politics.

I am not hopeful. I wish I knew what to do, but I fear that 30 years of brainwashing by academia and the media have done their work all too well. The U.S. Supreme Court, like the society it reflects, has learned to love Big Brother.

Posted by: Rick Darby on June 25, 2003 2:16 PM


While Justice O'Connor spent a lot of time discussing how strict her scrutiny was, she didn't spend any time discussing the obvious--which is why she felt entitled to end run the plain meaning of the 14th Amendment and 15th Amendments in the first place. While I grant you that over the centuries Jews and Christians have both figured out how to get around the divine commandment not to lend money at interest, and all "lawyer-based" systems have a bit of this sloshing around in their innards, this same type of reasoning slides oh so easily into my Nine Kings scenario--no? The fact that there's established case law just shows how long this trend has existed, not that there hasn't been a good deal of fast-and-loosing with the Constitution. I understand people differ on their notions of how closely the Supreme Court should stick to "original intent," but logically it's quite clear that the further one goes away from "original intent" the more the extreme authority of the Supreme Court looks arbitrary and extremely anti-democratic.

Caroline: Justice Thomas' dissent merely reinforces my larger theory--the court is intent on making policy.

Posted by: Friedrich von Blowhard on June 25, 2003 2:36 PM

I have found the backflips required to justify much Govt. action over the year astounding.

Of course Clinton argued over the meaning of "is" so passionately: look at how twisted the meaning of "no" has become, as in "Congress shall make NO law" in several places in the Bill of Rights. I missed the "except where the govt. has a compelling interest" that seems to have snuck in there over the years.

Posted by: David Mercer on June 25, 2003 5:15 PM

All very illuminating, but I mean this as a genuine question: What then should be done about a problem which was perhaps inadequately contemplated by the framers of the Constitution (and there is in fact a compelling societal interest in the eyes of many people?). (And please don't say "amend the Constitution"---that is so cumbersome as to be impossible and therefore not a pragmatic answer). I mean---"equal protection under the law" sure wasn't the case when the Constitution was written (and the writers, being white and male and the beneficiaries of the many of the inequalities, hardly RUSHED out to change all the laws and, yes, "behaviors" which made it a ridiculous statement on its face) and it took anywhere from 60 to 120 years for the Bill of Rights to be amended regarding slaves being 2/3 of a person or women being outright denied suffrage. Was it therefore "constitutional" to count blacks as 2/3 of a person because the Constitution said so? Was it "Constitutional" that women couldn't vote, and, therefore, Okey dokey? I mean "Congress shall make NO law which denies...equal protection..." BUT---it was OK for the writers of the Constitution to do EXACTLY that themselves? Is it truly not the job of the justices to consider the fact that times, in fact, DO change, behaviors do NOT voluntarily do so, and laws are one way to perfect the civility of our society?

Posted by: caroline on June 25, 2003 9:26 PM

Not to be flippant, but aren't you a bit quick to dismiss Congress? I mean, legislating is pretty much what they're there for. And they have the safeguard of having to stand for re-election every so often, so they have to consider what their constituents think. As you say, times change, and I think it's pretty clear that the Framers thought it was the role of the Congress to change government along with them.

Actually, now you've got me curious; I'm not very familiar with what the Framers thought about the proper role of the Supreme Court. I guess I'll have to dig out the Federalist Papers and have a go at them.

Posted by: Friedrich von Blowhard on June 26, 2003 12:00 AM

But...if amy law passed by Congress can be overturned by the Supreme Court as "unconstitutional", then what good is saying Congress can make law, if you advocate a strict constructionist view of the Supreme Court?

Posted by: caroline on June 26, 2003 2:44 AM

Obviously, the Framers assumed that the amendment process was the solution to the problem you outline. Yes, it is terribly cumbersome (although not enough to have been amended many times. So, for efficiency you've decided to entrust the job of bringing the constitution up to date to the Nine Kings? Have you considered possible downsides to that process, or are you just assuming that they're the paragons of wisdom sold to you in civics class? In short, have you looked closely into what goes into getting to be a Supreme Court justice, and, if so, why are you romanticising these people?

Posted by: Friedrich von Blowhard on June 26, 2003 10:17 AM

I agree---what "goes into" becoming a SCJ may not make them totally qualified to make these decisions for all of us. However, I honestly think I may trust that more than what "goes into" becoming a legislator. Guess I'm more like Madison than Jefferson. Don't want to trust the whims of the masses too much. What appears to be a more reasonable solution is to make the process of amending the constitution less of a lifelong endeavor and more reasonable. I mean, in this country, we can choose to end someone's life through the death penalty faster than we can amend the constitution. But, in the meantime, I do not think a strict constructionist view of the constitution (as a 'dead' document rather than a living one) solves anything.

Posted by: caroline on June 26, 2003 11:50 AM

There is some confusion in this thread between "strict construction" and "original intent," which are very different. Friedrich has plumped for "original intent," which suffers from many problems, the fatal one being that legislative bodies cannot be said to have an "intent" in the ordinary sense. If one legislator thought that, say, the 14th Amendment meant one thing, and one thought it meant something else (and they did), what is the "intent" exactly? There are even serious difficulties with "intentionalist" readings of documents with one author, like poems, and I may have to blog about them someday.

Caroline wants a "living document," which is even more slippery. Perhaps she would tell us the difference between a living document, whose noxious clauses you can feel free to ignore, and no document at all.

Myself, I'm a "strict constructionist," a plain meaning man. The words mean what they say they mean, subject to a few common-sensical rules of interpretation, like every clause must have some legal force. I can't see any other coherent way to interpret the Constitution.

Posted by: Aaron Haspel on June 26, 2003 12:09 PM

I think a few "common-sensical rules of interpretation" is a very slippery slope. If you don't trust the Nine Kings, you sure don't trust their "common sense interpretation." On the other hand, I think what Ms. Day-O'Connor did in her recent ruling conforms exactly with your description. I sure think she showed common sense. And I guess that's what I mean by a living document. The difference between a living document and no document at all? The question seems to lack common sense to me. No document at all would therefore set forth none of our values---the concepts of "free speech" or "equal protection" wouldn't even be set forth as values that Americans hold dear.

Posted by: caroline on June 26, 2003 12:33 PM

When you say that O'Connor showed common sense you appear to mean only that you agreed with the outcome. Now maybe I was unclear, but I meant "common-sensical" in a much more limited way. My rule is pretty obvious, like the implicit rule that when you read fiction you remember that the characters don't actually exist. The Constitution as a whole is a document of legal force, therefore each part of it has legal force. What slope are we slipping down here?

Now it doesn't matter much if a document "sets forth" values if its interpreters are free to ignore them whenever they see fit. "Living document" theory maintains that a judge may, on occasion, ignore (or override) the words of the Constitution. So the question becomes, when may judges do this? If always, then why have a Constitution? If never, then what's "living" about the document? If sometimes, then when, and why in these cases and not others?

Posted by: Aaron Haspel on June 26, 2003 1:32 PM

Believe it or not, I do actually remember when I read fiction that the characters don't exist.

Aaron still has not directly answered (in true lawyerly fashion) my original question. "What then should be done about a problem which was perhaps inadequately contemplated by the framers of the Constitution (and there is in fact a compelling societal interest in the eyes of many people?). (And please don't say "amend the Constitution"---that is so cumbersome as to be impossible and therefore not a pragmatic answer)."

What is the better option to what Ms. Day O'Connor did?

Posted by: caroline on June 26, 2003 2:12 PM

Aaron and Caroline:

I am deeply appreciative that you've actually illustrated the real reason for my post, which is to use this decision to illustrate the basic, overwhelming, intellectual sloppiness of "the law." Of course issues like interpretation of legal texts should be subject to "rules." And those rules should be explicit, written out, and lawyers and judges should get trained in them. The fact that something as basic as this hasn't been developed by the legal profession is yet another reason why I find it utterly intellectually vacuous. All this may sound to Caroline as if I'm whistling Dixie, but seriously, if you ever end up in court some day and find yourself in a situation where two laws "overlap," guess what: the state of the law in the "intersection" will be determined for you at trial, on an ad hoc basis, by your judge. (Better not piss him off!) No book, no lawyer can advise you how this judge will rule. (It therefore is not possible to behave in a way that insures you any given outcome. If you don't like your trial judge's interpretation by the way, you can then pay a minimum of $20,000 to appeal it. And, by the way, if you win, you don't get your $20,000 back, despite the fact that you've just got a ruling that your original trial judge, a civil servant, screwed up. Need I point out that the enormous, unnecessary vagueness that surrounds all aspects of the law works entirely to the benefit, in terms of both power and money, of the legal profession? (And entirely to the detriment of the rest of society?) Seriously, some day the world is going to wake up and see that the legal profession (legislatures, judges, lawyers, you name it) has not exactly been living up to its social responsibilities--they're mostly too busy charging $300 an hour!

Posted by: Friedrich von Blowhard on June 26, 2003 6:49 PM

I have no doubt you are pragmatically correct about civil law and its frustrations and stupidity and expense. In fact, the OJ trial left me semi-permanently terrified of a criminal trial as well. However, I guess I have been responding to your dismay over the affirmative action decision of the court, and, barring an easier way to amend the constitution---which isn't the word of God, by the way, and can and should periodically be improved--I don't see the better option. And I don't see that anybody has given me one in this thread. Just my opinion.

Posted by: caroline on June 26, 2003 7:23 PM

Caroline: You're absolutely right. If you don't want to amend the Constitution and yet you want to see it changed, the only method is to get a judge to ignore/bend/water-it-down/creatively interpret it/whatever. A Supreme Court which feels entitled to do so will thus suit your purposes better than one which actually limits itself to "interpreting" the existing Constitution as written. (Assuming, of course, that the Court agrees with your changes.)

However, you've also managed to evade my questions, so I'll ask them one more time. (1) Do you really not see the potential for abuse in such a system, especially when staffed by people with lifetime appointments? (2) If you had actually invested an enormous amount of time getting the Constitution amended, would you eagerly watch a judge blithely ignore your amendment while inspired by his or her unique vision of a better tomorrow? (3) If Atty. General Ashcroft decides to throw you in the slammer for your comments on this blog and a judge decides that because of his nobler vision of a just American, your free speech rights under the First Amendment are no longer operative, would you think, "Well, he's a judge, and after all the Constitution is a living document, so I guess I'll just go off quietly to the slammer for the rest of my life"? (4) Does it strike you that judges rewriting the law at will might make it just a bit harder for an ordinary citizen to know exactly what the law is and so avoid violating it? (5) Do you favor a government of men or a government of laws? If the latter, how do you reconcile that position with your desire to see the Supreme Court rewrite the Constitution to your specifications?

Posted by: Friedrich von Blowhard on June 26, 2003 8:20 PM


(1) Yes, I see the potential for abuse. I also see the potential for abuse of an “original intent” approach (y’really want Scalia’s "interpretation" of “original intent”?) and the potential for abuse in the passing of laws by the legislature, and the potential for abuse of power by Attorneys General (see John Mitchell and Janet Reno), and the potential for abuse in military academies (shut up---don’t say you were ‘raped’—it wrecks our image), and the potential for abuse in jury awards, and the potential for abuse by the IRS. Potential for abuse always exists where people are concerned.
(2) No, I wouldn’t want to see it blithely ignored. I guess I don’t see that happening (in all honesty) too often at the Supreme Court level---although, in another recent ruling---clearly Justice Thomas felt there were no grounds at all for the Court to rule on the Texas sodomy law. I still so much of this as a matter of opinion---if you think the Constitution doesn’t support something, or that some part of the Constitution doesn’t apply—it doesn’t mean that in all good faith someone else might not see that a portion of the Constitution does apply. (Does the right to bear arms mean all citizens, or a citizen militia? What is "inflammatory speech" and is it protected? Are segregated schools evidence of unequal protection under the law? These aren't simply questions). Because someone else reaches a conclusion different from yours or mine does not mean the Constitution doesn't support it. This also goes more to your earlier point of imprecise drafting. I’m really not sure I see the Supremes as scheming to be social engineers as often as you. I guess I really do see their actions more often in the light of constitutional scholars who disagree, perhaps saying more about the Constitution. But in truth—-my point-—how can one document successfully contemplate every situation over changing times?
(3) No. I would hope the Supreme Court would OVERRULE him. And be glad such a forum exists.
(4) The U of M case which you originally cited had a different possible ruling outcome which you seem to believe the Constitution does support---which is all admissions actions which contain any form of race bias should be declared illegal by the Supremes as “Congress shall make NO law…” etc. Yet the U of M had long since put in place their admissions policy and no one had arrested them. The only forum which could stop any of it (and did stop a substantial part of it) was the Supremes. Therefore, “knowing” (as you believe they should have) that their admissions actions were unconstitutional didn’t stop anything. They knew the rules of the road. They didn’t follow them. I think State legislatures are far more lethal in drafting imprecise laws which ordinary citizens can’t follow or make sense of than the Supreme Court is. But yet, you prefer the legislature. I mean, if Texas hadn't drafted a stupid law applying only to same sex couples (an "uncommonly silly law" per Judge Thomas) then the Supreme Court wouldn't have been appealed to. I think often cases that get to the Supreme Court (remember the levels of the appellate process that must be navigated before they get to the Supremes) the parties involved sure know there is some question as to the legality of their actions.
(5) Careful---please don’t be guilty of the same imprecise language you accuse Ms. Day O’Connor of. I never said they should redraft the Constitution to “my specifications.” I said there was a compelling interest that a majority of our society believes in. I thought you were the one who said “the people” should be listened to? But you seem to only want people who lived decades ago and got their licks in on the Bill of Rights to be listened to.

However, one thing I have not been clear about in my comments is that I do agree that there should be “term limits” on Justices---and Senators and Presidents. I think the ability to lose touch, or stop working as hard, is definitely greater when it’s a lifetime term. I mean---Stevens is 81 years old, for God sake. He might have been brilliant once. He may just be senile now---who knows?

Now---will you answer my question?

Posted by: caroline on June 27, 2003 12:35 AM

Didn't I already say that you're right? What do you want from me? Okay, you've broken me down, I admit it; I'm part of a huge covert organization devoted to preventing black people from rising in the world. I only hire them at my business and entrust significant responsibilities to them in order to subtly undercut them. Your assumptions have been right all along; me and the rest of my evil co-conspirators are a bunch of terrible racists and we need to be mentored by our betters on the Supreme Court. Okay, can I go now?

Posted by: Friedrich von Blowhard on June 27, 2003 9:52 AM

That reply seems a bit unnecessary. You always could 'go'. I never said you were a racist. I said I disagreed that what Sandra Day O'Connor did was so bad. You seem to have forgotten your own blog, and that you started this. Sheeesh!!

Posted by: caroline on June 27, 2003 11:35 AM

Caroline: Why so touchy all of a sudden? Didn't it dawn on you that, in essence, that mass white racism is the only reasonable explanation for your position that racial preferences can't be amended into the Constitution and why you seem so willing to entrust the Supremes with the power to decide our racial future--i.e., because the average white person can't be trusted on such matters? In short, your assumption of my racism has been continuous throughout your comments--at least as a matter of "guilt by historical association." As I find this offensive, I responded in kind.

Posted by: Friedrich von Blowhard on June 27, 2003 1:01 PM

OK---we just disagree on some things. But I never said that "racial preferences can't be amended into the Constitution"---I just said that it is tremendously cumbersome and nearly impossible to pragmatically do that, and the question came up for decisioning now---not 30 years from now once we have another amendment. If the average white person could be trusted in such matters---then why be upset with Day O'Connor for upholding the strict scrutiny of the Michigan law school process---which you were quite upset about. I think white people can be trusted at least in some cases---and I think O'Connor made a very trustworthy decision. YOU were who criticized her decision as it wasn't rooted in the Constitution. I just said then what alternative is there? I mean---if white people could be so uniformly "trusted"--then why did anyone (a white person) challenge the U of M law school admission practices IN THE FIRST PLAVCE? Then the Supremes would have had nothing to decision! And your world is free from their interference. Blame the idiot who mounted the appeal.

Posted by: caroline on June 27, 2003 1:39 PM

Friedrich, the Court's decision to uphold (for practical purposes) preferences in college admissions -- as long as you claim it's for the sake of diversity rather than affirmative action -- has to be seen in the context of the whole constellation of racial-ethnic-gender consciousness enforcement that exists at colleges across the land.

I envy you your ability to laugh (even while you feel like crying)at the pathological indoctrination to which practically every college student is now subjected, as you expressed in a commentary last November about Dartmouth. It reminds me of the era of the Chinese Red Guards and Russian purge trials; now, instead of confessing publicly to harboring secret bourgeois individualist tendencies, you are required to stand up and acknowledge to the world your nondiversity sins -- even if that consists only in not having previously listened to a harangue about growing up in a black environment.

Most sick jokes (e.g., the schoolboy classic: "Daddy, why am I walking in circles?" "Shut up or I'll nail your other foot to the floor")are tolerable because we know, even as we wince a little, that the premise is absurd, a flight of imagination.

But the racial, ethnic and political catechism imposed by our Stalinist educational bureaucrats and enforced by teaching faculty and diversity commissars isn't imaginary. I can't laugh at jokes about a real plane crash or act of torture; by the same token, I can't laugh at an act of violence against free thought and free speech.

You can argue that laughter is the best antidote for the cult of political correctness and racial polarization. That would be true if it were an isolated phenomenon, a local infection. But it's gone way beyond that: the religion of diversity has -- to carry on a bit with the medical metaphor -- spread throughout the bloodstream of society. It's everywhere: grade schools, high schools, universities, network TV, the majority of newspapers, the courts ... just about every public realm.

That isn't to deny that many people -- mostly of older generations, alas -- dislike and oppose multi-culti brainwashing. The trouble is, they can't do anything about it, and they know it. They understand that the social engineering priesthood is in charge of education; that elected representatives are, at the least, too fearful of having the racist label pinned on them to publicly oppose the diversity inquisition; that the judiciary, right up to the Supreme Court, and even the business world have buckled under to the ideology of diversity.

I can't laugh because I'm scared. I don't want to end up in a forced-labor re-education camp.

Does that sound ridiculous, melodramatic? A few years ago I would have said so. I believed that the common sense of the American people, their historical aversion to ideology, would in the end blot up the spread of PC.

But it hasn't happened. Let's not kid ourselves. The diversity bullies have won. They're in charge. And we can't afford to place our hopes in the idea that today's students, so blatantly confronted at every turn with propaganda, held up to ridicule by their teachers and fellow students for any thought crimes against diversity totalitarianism, will get their fill of it and revolt. It's too much to expect that young people with no power and no opportunty to develop an independent point of view will become martyrs to free thought. Early imprinting counts: as the Jesuits used to say, give me the boy for the first fifteen years and he's mine for life.

No, no one is now proposing re-education camps for the rest of the population that doesn't throw incense on the altars of diversity. But when this degree of conformity is embraced by our institutions of higher learning and approved by what many still think is the country's most prestigious newspaper, does it really seem impossble that we will see such a thing come to pass 10 years down the road?

I'm starting to make contingency plans. I have a question for those who read this: if it becomes necessary to emigrate, where can I and my loved ones go? Is there anywhere in the developed world that is reasonably free from savage multiculturalism and, just as important, is likely to stay that way?

Over to you.

Posted by: Rick Darby on June 29, 2003 10:20 AM

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