Thursday, June 25, 2009

Ramesh's Op-Ed   [Andy McCarthy]

I have some differences with Ramesh's New York Times op-ed (and with his longer NR essay that Jonah pointed us to yesterday). They are more extensive (not in number but in substance) than I could do justice to in a post, so I'm going to use my next column to explain them. But in the meantime, I want to applaud him on two counts. 

First, he couldn't be more right than to caution conservatives against encouraging a judicial activism of the Right. I got a lot of heated email a few years back over agreeing (in a Corner post) with a Ninth Circuit decision that declined to graft onto the "right to privacy" a parental right to veto sex education in public schools. But we have no credibility condemning the (usual) judicial activism that imposes the Left's agenda if we invite activism to impose our own policy preferences. Democracy and self-determination are about winning the debate at the ballot box.

Second, the post-Civil War amendments are a very difficult area for originalists, especially the 14th Amendment as construed by Brown v. Bd. of Ed., a monument of judicial activism (in terms, at the very least, of its analysis) but one that conservatives are expected to genuflect before because its result — the invalidation of enforced segregation in the public schools — was the only morally justifiable policy outcome. I gingerly addressed this in reviewing Judge Bork's latest book, A Time To Speak, for The New Criterion a few months back:

If Bork falters, it is in seeming to walk back from his [originalist] philosophy in assessing Brown v. Board of Education, the Warren Court’s groundbreaking 1954 ruling which reversed Plessy, voiding state school segregation laws as a violation of the Fourteenth Amendment’s Equal Protection Clause. Given how deep-seated the case’s appeal is, especially to modern sensibilities, Brown has long been a bête noire for originalists. In The Tempting of America (as presaged by “Neutral Principles,” [an essay in A Time To Speak]), Bork concedes it was “a great and correct decision”—as in “result”—but regrets the thoroughly flawed reasoning on which it rests—the court’s opinion having vaulted into fashion today’s habit of judicial legislation.

As Bork makes plain, “The inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in any aspect of life.” How, then, to rationalize by original intent a result Bork enthusiastically applauds? By construing the Fourteenth Amendment as principally about equality; admitting that, whatever the amendment’s drafters may have thought about segregation, empirically it has proved inimical to equality; and, therefore, concluding that segregation had to be torpedoed to enforce the real, rather than the apparent, original meaning. It is as resourceful an explanation as one could provide, but it sits uneasily with the democratic imperative for social change in a free society, as well as the conceit that the judge’s function is to expound law not repeal evil.

This is very hard stuff, conservatives and originalists are not always coherent on it, and I think Ramesh deserves a lot of credit for urging some much-needed intellectual rigor.

06/25 05:16 PMShare