The Wrong Way to Make Law

The left-wing activist and journalist Rebecca Solnit moaned in a recent article published by the Guardian, “The first thing to remember about the damage done by the US supreme court this June and the June before (in other words, Dobbs) is that each majority decision overturns a right that we had won.” She goes on to list those lost “rights” the right to debt relief, the right to abortion, the right to racial quotas along with various rights for the LGBTQ+ community. But she is wrong. None of those rights had been ”won.” Those rights had been granted by fiat.

Take, for example affirmative action. Affirmative action has been determined to be, at the very least, preferential treatment on the basis of race if not an actual quota system. But John F. Kennedy’s original executive order mandating affirmative action clearly stated that “applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.” That sounds a lot like the famous quote of Chief Justice John Roberts who said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” How such nondiscrimination could be twisted around to become racial preferences in violation of the 14th Amendment is due to politics or ambition and not to rights.

And the Roe v. Wade decision that permitted abortion in certain cases was not a law passed by a majority of the peoples’ elected representatives but rather a decision issued by a majority of nine justices of the Supreme Court that was enforced as equivalent to a law passed by Congress (but wasn’t). The Dobbs decision that overturned Roe v. Wade merely redresses the inappropriate action of an earlier court. If abortion activists want a law that allows abortion, then they need to elect representatives that will approve such a law. That is how rights are “won.”

The loss of these so-called rights bemoaned by leftist progressives, social justice warriors and race-baiting activists are not really rights at all. They are parts of the progressive “woke” agenda that they are trying to impose on America. The demand that a trans-woman (a biological male) has the right to use public women’s bathrooms instead of one aligned to biology (or even a unisex bathroom) is based on the notion that the shame of having to use a bathroom other than the one they wish to use would cause irreparable harm to the psyche of the trans-woman. Any psychological harm to the biological women desiring to use that bathroom without biological males present being attributed to transphobia or other form of hate.

Previous lawsuits seeking redress by the Court from racial preferences generated equivocal opinions such as Bakke that prohibited universities and other institutions from using racial quotas but permitted the practice if they called it by some other name (such as affirmative action – wink, wink). Those cases had been brought by white petitioners who apparently had sufficient white privilege to not require a redress of their grievances. But the case of Students for Fair Admissions v. Harvard was brought by minority students. Hard working students of Asian descent understood that racial preferences for black and brown students came at their expense. A wink and a nod to racial preferences under the sobriquet of affirmative action does not meet the Constitutional test.

Woke advocates firmly believe that the opinions issued by the justices appointed by Republican presidents are completely based on their conservative ideological beliefs, because that’s what they expect from the justices appointed by Democratic presidents. To social justice warriors, the Supreme Court is just another political animal that must follow the guidance of their political leadership. `

Progressives assert that the Roberts’ Court has usurped the power in order to dismantle all the “hard won” social justice policies labelled as rights by the social justice warriors. But what they mean is the Court is supposed to use its power to advance their causes. What the Court is actually doing is to reallocate power (and the responsibility to wield that power) back to where it belongs - in Congress. It is the job of the Court to make sure that the laws passed by the legislative branch of government are within the limits allowed by the Constitution. Progressives don’t like limits on the power of government to implement their social justice agenda and that is why they want to subordinate the Supreme Court to their demands.

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Immigrants wishing to become American citizens must pledge to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” Native born progressives, unfortunately, do not have to make such a pledge (maybe they are the domestic enemies the Oath of Allegiance refers to). The woke left is laser focused on getting the Supreme Court to implement their social justice agenda because they cannot generate enough support from elected officials or the general public to do so. They believe that laws or regulations can achieve their social justice goals, that they can achieve the outcomes they desire through the force of law. But creating laws to change outcomes without addressing the underlying causes of those outcomes will result in unintended consequences and many of those consequences are worse than the outcomes the laws were meant to fix.

There are reasons why black test scores are lower than those of whites and Asians. And since science has shown that any genetic difference between races is relatively minor, and further, since charter schools have shown that black and brown students can substantially close the education gap that has hampered minority students from public schools getting into the colleges and universities of their choice, then much of the answer must lay elsewhere. This is unwelcome news to the progressive left. And it is especially unwelcome news for politicians and race-based advocates who livelihoods depend on the continuance of the social justice struggle (and also the reason why they will make sure that the struggle never ends).

Blacks blame their problems on systemic racism. And it is true, there is a system. But the system is not racist even if some of the people within the system are racist. It is the Enlightenment system which is universal and colorblind even though The National Museum of African American History and Culture calls it white culture. But hard work, delayed gratification and the other attributes assigned to white culture are simply the attributes for success in almost any culture. And black people that adopt those attributes can be very successful. Black immigrants from the Caribbean have higher incomes and more stable families than native born black people. That’s why so many Africans from Africa are crossing the southern border seeking the American Dream, not a welfare state. Many people of Asian descent have adopted Enlightenment values (Nikki Haley and Vivek Ramaswamy are good examples) without abandoning the culture of their parents.

Black Lives Matters advises its followers to reject America’s Enlightenment based culture labelling it as simply white supremacy. Progressives also advise their followers to reject America’s culture labelling it as merely capitalistic greed gone awry. But these groups and their leaders do not want to liberate people, to give them the human capital necessary to control their own lives. They don’t believe that ordinary people can control their own lives. They want to keep people dependent on government policies created by left-wing elites. But the only successes of such policies has been the empowerment of those same progressive elites at great cost to the supposed beneficiaries, ordinary people.

The Constitution was created to limit the power of government so that the people would be in control of their own lives to the greatest extent possible. This exceptional concept has made America the most prosperous and powerful country in the world. And the justices on the Supreme Court should be applauded for preserving constitutional government over progressive government.