The U.S. Supreme Court has done it again, striking down a Texas law
prohibiting homosexual acts. I haven’t read the opinion yet,
but I think I get the idea. As usual, the Court is being “progressive.”
I’m still reeling from Sandra Day O’Connor’s majority
opinion in the affirmative action cases, issued earlier this week.
In the excerpts published in the papers, she managed to use the words
diverse and diversity nearly fifty times. Nobody would call her prose
O’Connor is a walking example of affirmative action. Ronald
Reagan wanted to be the first president to appoint a woman to the Court,
so he picked her, a woman judge with no particular distinction but
lots of Republican connections. Her nomination was hailed as “historic,” like — the
inevitable comparison — Jackie Robinson playing in the big leagues.
The difference is that Robinson was good at what he did. He wasn’t
picked to fill a quota, or to provide diversity. He was chosen because
he was a great athlete, and he could win ballgames. Which he proceeded
to do for many years with the Brooklyn Dodgers.
O’Connor has made her niche as a “swing vote” on
the Court. Her mind is perfectly banal, but you never know which faction
she will vote with. She is politically, not intellectually, interesting.
The Court’s first affirmative action justice was Thurgood Marshall,
who was equally devoid of original thought but predictably liberal.
He never deviated. He never surprised. He never sharpened one’s
understanding of constitutional law. Never even coined a fresh phrase.
America's vital idea
All Marshall cared about was results. He always knew the outcome
he wanted and voted accordingly. His reasoning was perfunctory, and
today nobody quotes him.
I love diversity, really I do, but you don’t achieve it by
gathering mediocre people with the sort of superficial differences
that interest liberals. You can get real diversity by assembling a
group of people with keen minds, even if they look identical. A half-dozen
lively minds will produce a richer conversation than a hundred dullards.
Seek intelligence first, and diversity will take care of itself.
In the affirmative action cases, O’Connor didn’t even
cite the Constitution. She merely echoed the Pledge of Allegiance — “one
nation, indivisible” — which has no legal value, but does
have dubious constitutional implications (which she is probably unaware
Maureen Dowd of the New York Times bitterly ridicules Clarence Thomas
for opposing affirmative action, since his race was obviously a chief
factor in his own selection for the Court. In effect she accuses him
of biting the hand that fed him.
But by her logic, a man who gets a seat on the Court through bribery
should thereafter vote in favor of bribery. Happily, however, Thomas
has shown a better understanding of the Constitution than most of his
colleagues. He realizes (most of the time) that the Tenth Amendment
is the cornerstone of American federalism.
The real genius of the American political system is the original
understanding, born more of experience and compromise than of theory,
that power should be limited, divided, and dispersed. Spreading power
thinly is one way — imperfect, but practical — of protecting
Unfortunately, most Americans have lost their grasp of this vital
idea, to which this country owes so much of its real greatness. Since
the Civil War the prevalent tendency has been to concentrate power,
enabling the Federal Government to dictate terms to the states. This
is contrary to the principle of the Tenth Amendment and to the very
structure of the Constitution. Supposedly “progressive,” centralization
repudiates and undermines America’s best heritage.
Instead of opposing this centralizing tendency, the Court itself
has become an instrument of centralization. It’s up to its old
tricks in striking down the Texas sodomy law.
Maybe it’s a bad law, but that isn’t the real question.
The issue is whether it’s up to the Federal Government, including
its judicial branch, to make and enforce that judgment. Nothing in
the Constitution says, or remotely implies, that it is.
In a truly federal system, states are united on a few specified points,
but free to differ in all other respects. How ironic, but how typical,
that the apostles of “diversity” want to make the states
uniform. Real diversity, the kind the United States used to have, is
the last thing they want. This is E pluribus
unum with a vengeance.
Copyright © 2011 by the Fitzgerald
Griffin Foundation. All rights reserved. This column was published originally
by Griffin Internet Syndicate on June 26, 2003.
Joe Sobran was an author and a syndicated columnist. See bio
and archives of some of his columns.
Watch Sobran's last TV appearance on YouTube.
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during the FGF Tribute to Joe Sobran in December 2009.
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