by Ken Emanuelson
What the hell is going on around here? Since when has Lino Graglia been
politically correct? Has everyone on this campus been living under a rock
for the last 20 years? All of a sudden, Lino Graglia is the favorite whipping
boy for Hopwood critics, as if he was some wild new species just discovered
in Barton Springs. Where have you people been? For any of you who still
don't get it, LINO GRAGLIA HASN'T LIKED AFFIRMATIVE ACTION FOR QUITE SOME
TIME AND HAS NEVER MINDED SAYING SO. ANY QUESTIONS? Good. Let's move on.
According to the federal courts, the race-obsessed quota-mongers over in
Townes Hall can no longer discriminate against white, yellow and red faces
(many of 'em poor) to favor black and brown ones (most of 'em wealthy.)
The Fifth Circuit has finally closed down the gimme-gimme racial free-for-all
(or rather, free-for-some) that was affirmative action at UT. Judge Smith
says we have to treat everyone the same. Many have recoiled in disbelief,
appalled at such a radical idea. "Equal protection? We can't have that!"
they lament. "That won't do at all. Equality isn't fair. It doesn't
guarantee an equal outcome. In order to treat people fairly, we must treat
them differently!" I see. In other words, all people are equal, but
some are more equal than others. In newspeak, Discrimination is Fairness,
and Preference is Equality.
Despite all the wailing and gnashing of teeth, the inescapable bottom line
is that the rule Judge Smith used to strike down racial preferences in the
UT admissions system was the exact same standard the courts have been using
for decades to strike down racial discrimination against minorities (and,
for the most part, rightly so.) This powerful myrmidon they have nurtured
from infancy has been following their commandments to the letter, and they
are apparently not completely pleased with their creation as of late.
In attacking Hopwood, certain factions of the traditional "civil rights"
crowd have shown their true colors. Apparently, they aren't interested in
constitutionalism. They seem to have little concern for "equality before
the law." They are apparently interested in equal protection when it
serves their interests, and judicial restraint when it doesn't.
It may be the case that racial discrimination, applied in the proper manner,
could serve our society better, in the long run, than purely race-neutral
policies. I doubt it, but I don't know. Under our Constitution, such a question
is simply irrelevant. Official, explicit racial discrimination simply can't
conform to the constitutional requirement of equal protection, and that's
the rule of the game as we as a society have decided to play it. You can't
have it both ways.
Even more ironic than that twist, making Lino Graglia the poster boy for
judicial activism under the umbrella of equal protection is like hiring
Pol Pot to run the ACLU. Graglia has spent his career in a full frontal
assault against judicial activism in all its forms; his most vociferous
and stinging criticism reserved for those arrogant jurists who would dare
flaunt the will of the majority by invoking the Equal Protection Clause.
In Graglia's ideal courtroom, judges are to carry out the will of the majority,
whatever it may be. If the legislature passes it, the courts should enforce
it, with some very limited exceptions.
Under Graglia's philosophy, the constitutionality of a racial preference
program enacted under the auspices of a democratically-elected legislature
is probably not an issue that the courts should concern themselves with.
Graglia, who has spent his career arguing against government by judicial
fiat, finds himself attacked as a result of what some would claim is that
very activity. Had Judge Smith spent more time reading Graglia's work, Ms.
Hopwood might have found herself thrown out of court rather than burned
in vitriolic effigy by the soothsayers of preference.
The Hopwood controversy gives rise to some very important questions, most
of which have little to do with racial preferences. Face it, folks - affirmative
action is dead. This latest noisome radicalism is nothing more than the
last hurrah of a crumbling philosophy. Like the Nazis did as the allies
closed on Berlin, affirmative action's last defenders have sent out their
youth in a pitiful, last-ditch effort to stop the advance of equality. Breath
spent arguing racial preferences is breath spent in vain. The battle is
over. It is time to move on.
The important questions raised by Hopwood, and those which will be with
us for the long haul, are much more fundamental. What, for instance, is
the proper role of a court? Graglia believes that majority will is supreme.
Is he right? Democracy, representative or otherwise, seems to have a hallowed
place in our culture, held up with a sanctity normally reserved for a society's
gods and sacred scriptures. Are mob action and groupthink really all that
wonderful? Tell that to the Jews at Auschwitz. Do you really think the majority
deserves carte blanche? Tell that to black Americans living in the post-reconstruction
South. Then again, if not, who's gonna tell 'em otherwise? The Supreme Court?
Tell that to Dred Scott.
Is it legitimate for 51 voters to make the decisions for 49 others? Does
it depend on the issue? If we were passing child labor laws, you might be
inclined to say that such a system is legitimate. If we were selecting a
national compulsory religion, you might be inclined to say it isn't. Is
there a right answer and a wrong answer? If so, what are we to use for a
moral guide? The Constitution? Do we have a common understanding as to what
the Constitution means? If not, whose interpretation are we to rely on?
The majority's? That would seem to be letting the fox guard the hen house.
Who else's, then? Five unelected lawyers in ominous-looking robes? That
would seem to be going in the wrong direction. Then we have a tiny minority
(5) making the law for everyone (260 million+.) And yet, this is the system
we seem to have stumbled upon.
Is our system of Constitutional governance legitimate? Democracy (rule by
the mob) has a great deal to answer for, but then so does judicial review
(i.e., rule by an elite minority.) The Founding Fathers were right to be
suspicious of unchecked majority will, a sure recipe for enforced uniformity
and brutal intolerance. Thurgood Marshall, Martin Luther King, Jr., and
other champions of civil rights were right to take unchecked majority will
to task for the severe and indefensible inequities resulting therefrom.
Rule by majority will is an imperfect, and often despicable system, the
inherent legitimacy of which is by no means clear. On the other hand, Lino
Graglia, one of the nation's most brilliant legal minds, has put together
a solid indictment of what he considers to be "government by judiciary."
He offers strong arguments, the strongest of which simply and powerfully
calls into question, on its face, the legitimacy of letting five citizens
make the rule for an entire nation.
Two centuries ago, our forefathers were engaged in a huge national debate
about the ideal form of government. The product of that debate discarded
'divine right' monarchy in the colonies and, building on the theory of popular
sovereignty, gave rise to what has become the greatest and most just society
the world has ever known. However, with the benefit of two centuries' experience,
and the Cold War behind us, the time has come to take a hard look at some
of the basic tenets of western democratic thought, and the basic assumptions
behind the idea of popular sovereignty. What is the purpose of government?
Are there really unalienable rights, as Jefferson claimed? If so, what are
they? If not, what justifies judicial review? Are we a nation built upon
a mass social contract? I don't remember signing it. What exactly are its
terms? The questions are innumerable, and answers are scarce, but we should
at least come to some agreement on what the important questions are.
Both Graglia and his opponents in the 'judicial activism' camp raise very
valid, serious criticisms of our current system of government, criticisms
that absolutely must be addressed if we are to believe that our government
and its laws deserve to be respected and followed. Are there even any other
options, or are we stuck with what we have? In the words of Winston Churchill,
"It has been said that democracy is the worst form of government except
all the others that have been tried." Is it possible for government
to be respectful of individuality while at the same time still able to address
the legitimate requirements of our society at large? These are some questions
I believe need to be addressed, not just by the academicians in the ivory
tower, but by those of us who are engaged in regular lives and the normal
business of self-government. Perhaps I am alone, but I doubt it. In the
coming issues of Contumacy, I hope to contribute something to the debate.
Ken Emanuelson is a second year law student and a member of the Student
Government.