Dear Reader, I just read the Supreme Court’s Students For Fair Admissions opinion. Indeed, I have sacrificed sailing on the Chesapeake Bay and a good fireworks show such that I can inform you of my findings. I am selfless this way, kind of a male version of Mother Theresa.
The irony of the case is the “thinking” of the three affirmative action appointees on the Court. They are more delusional about the law than Dylan Mulvaney is about his wiener. Bizarre. They state that various stare decisis cases state things that they don’t even where the cases state the exact opposite of what they cite. Ayn Rand once claimed that Immanuel Kant was the most dangerous man that ever lived because he rejected objective reality. The same can be said of Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. One more reason why the award of a government job should be based on merit, and not one's gender or race.
While it's fun to pick on the Wayward Sisters, this article focuses on the big picture, the 14th Amendment, why colleges and universities are being micro-managed by the Supreme Court and what to do about it.
All law must be derived from a source of authority. Natural Law is the law of right and wrong manifested to us by the Almighty. i. e., those “inalienable rights endowed to us by our Creator.” These principles are embedded into the Constitution and the Bill of Rights.
The Constitution is the supreme law of the land. Its meaning, especially in light of its historical context is clear. The same can be said of the first 10 amendments to the Constitution, the Bill of Rights. But things get much fuzzier with the passage of the 14th Amendment, so I will give you some historical context. Lincoln destroyed federalism. Virtually all the original 13 states had the right to secede from the Union. During the Adams administration, the Alien and Sedition Act was passed. It restricted free speech and allowed the government to arrest its political enemies. Thomas Jefferson then wrote the Kentucky and Virginia Resolutions. The Virginia resolution stated that laws contrary to the Virginia Bill of Rights were null and void. All of New England plus Delaware nullified the 1807 federal embargo acts, refused to send militias to fight in the War of 1812 and all gave serious thought to seceding from the Union. The first Bank of the United States was notoriously corrupt. Ohio, relying on the Kentucky and Virginia resolutions nullified federal law allowing the bank to operate.in Ohio. It even tried to tax the bank out of existence. Kentucky, Connecticut, New York and New Hampshire likewise all cited “states’ rights” to nullify federal law to prevent the operations of the Bank of the United States. In the 1850s there was a vigorous secession movement among New York, New Jersey, Pennsylvania, Delaware and Maryland. It was almost universal amongst all the states that they were sovereign entities and only in the union voluntarily. Virginia, New York and Rhode Island conditioned their admittance to the Union on having the right secede.
Lincoln was a crony capitalist wholly in the pockets of Northern industrialists. The South paid over 80% of the revenue to the federal fisc and being free trade, if she seceded, all commerce would be shipped through southern ports. So Lincoln started the War Between the States, and in an effort to consolidate power destroyed civil liberties in the North by pulling rights away from the states and vesting them in the centralized government. In the process, the South was destroyed and became even more of a vassal state to the North than it was before the War.
In the ruins and burnt ashes of this horrible conflict, the 14th Amendment passed the Senate in 1866 and was ratified in 1868. The purpose of the Amendment was to give black men full citizenship rights. The wording is as follows:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The problem with the 14th Amendment, passed during the most corrupt part of our nation’s history (except maybe for now) is no one really knew what it meant or how it applied to states and individuals. Narrowly construed (as all laws should be), it merely gave black people certain rights. However, what many feared prior to passage and what it has turned into was a tool for massive expansion of the federal government. Originally the Bill of Rights only applied to federal rights. Virginia had and still has its own Bill of Rights that existed before it agreed to join the Union. All states had their own constitutions and charters. In the 1833 case of Barron v. Baltimore, the Supreme Court ruled that the U.S. Bill of Rights were federal rights and did not apply to the states. It wasn’t until several decades after the 14th Amendment that the Supreme Court decided its first case incorporating one of the provisions of the U.S. Bill of Rights to the states, by 1937 the 14th Amendment “incorporated” the entire U.S. Bill of Rights to the states. Dear Reader, you might say “so what, that’s a good thing.” Not really, it destroyed the concept of federalism and vested all power to interpret law and what is a right and what is not a right to 9 unelected federal bureaucrats. Dear Reader, the Supreme Court disenfranchised you to make sensible laws for yourself based on the needs and values of your community. Certainly, none of the aforementioned northern states who jealously guarded their sovereign rights prior to 1860 intended to be emasculated by the 14th Amendment and 10 of the 11 states that shed their blood to separate from the Union had no vote in passing the Amendment.
In the case at bar, the majority detailed the history of the interpretation of the 14th Amendment from 1868 to the present. I love the law. I am a bit like Atticus Finch and can stay up late into the evening reading the law and formulating my analysis of how it should be applied. When the law is not politicized, it is an absolutely beautiful science, but the 14th Amendment is a political tool and its application has been an insult to good jurisprudence. One decade it means unequal restrictions on black people are perfectly ok, then it demands separate but equal treatment under the law, then it demands equal treatment, then it demands blacks must have preferential treatment, then it pulls back and up and down it goes like a roller coaster. A law ought to mean what it clearly and undeniably says. History proves that those with a thirst for power and self-importance will twist words to suit their avaricious appetites. This is the history of the 14th Amendment.
Clearly that majority put together the most reasoned interpretation of the 155 years of case law interpreting this amendment that has meant completely different and contrary things over 15 decades. Using stare decisis, the door has slowly been closing on affirmative action for years and the court used good reasoning to shut the door on this practice. However, the illegitimate, indeed oxymoronic element of its decision is the Court by necessity argues against itself, by saying the Court was wrong so often in the past. Justice Thomas won the blue ribbon for me by going directly back to the legislative debates underlying the passage of the amendment and the original intent of its meaning. I disagreed with some of the nuances of history he mentioned (quotes from Lincoln) but Thomas’ originalist approach is the only methodology that truly integrates a proper melding of law with current facts. If the 14th Amendment meant anything at its adoption, it meant a colorblind society.
The dissent from Kagan, Sotomayor and Jackson was a bit of a screeching, hair pulling cat fight totally disconnected from reality, reason and facts. They don’t interpret the law, they choose the outcome before reading the case and then try and screech and shout, puttering here and there, often citing contradictory nonsense to bolster the outcome they desire. They epitomize the peril of a Court that has castrated all threats to its power. State legislative bodies having been neutered, the fate of the Country is left in the hands of hyperpolitical and not very smart partisans. Luckly, the Court is controlled by those who generally wish to devolve its power, but this is a rare circumstance in human history and likely not to last long.
I am adamantly opposed to affirmative action, but if an association of private citizens using their own money wants to discriminate based on race, religion or how many popsicles a prospective student can eat, it should be allowed to do so. The purpose of this article is to point you to the real problem regarding student admissions and who makes management decisions for universities. When one reads the 237-page opinion, it is ridiculous all the conceptual theories, rules, legal tenets, hypotheticals and amorphous dictates under which a school can or cannot discriminate against an applicant. The 14th Amendment is used to tell a school what kind of sports teams it should have. Litigation will go on for the next 100 years. If you have read my articles on the corrupt and woke whack jobs at the University of Richmond (at urwoke.net), you likely know that I despise much of academia and the Marxist ethos so anti-intellectually prevalent on university campuses. But do we want 100 more years of 9 unelected officials making all the rules for colleges and universities? Shouldn’t colleges and universities be able to make their own rules without being lorded over by 9 people in black robes who have never set foot on their campus. Should all colleges be exactly the same? All bland and uniform, no experimentation, etc.
So please tell me Mr. Rob Is Right, what are the answers? The Supreme Court has jurisdiction and de facto control over admissions policies (and everything else) because all these schools accept federal money. Do away with the money and there is no federal oversight. Where in the constitution does the federal government have the authority to throw billions of dollars at colleges and universities. That’s the problem and had the Supreme Court been truly vigilant in ensuring that the federal government only exercised the enumerated rights the states gave the federal government, this whole issue would not exist. The government fu#ks up everything it touches.
The first college in the United States was charted in 1619 (Henricus in Virginia) and for the next 300 plus years hundreds of colleges and universities as well as many other learning institutions sprang up with absolutely no federal or government dollars, and arguably, I will say almost assuredly students were much better educated then than now.
Smaller governments. Checks on judicial power. Devolve money and authority back to the states and localities. Let people be free and get the boot of government off of our necks. That’s the answer to almost all of our problems.
