Thursday, September 22, 2016

Is The Next Round of Judicial Tyranny Coming Sooner Than You Think? Who Will Be The Next Unelected Judicial Dictator to Stretch New Meanings Into The Ever Elastic 14th Amendment?

Gene Healy reminds us, the next round of judicial tyranny is just around the corner:
But in practice, the Fourteenth Amendment has often operated as a grant of legislative and executive power to judges. And that power has been used to violate the very rights it was meant to secure.

This is nowhere clearer than in the line of cases thought to represent the Fourteenth Amendment's finest hour: Brown v. Board of Education and its progeny. Brown has iconic status on the Left and much of the Right, because many commentators see it as ending de jure segregation and furthering the first Justice Harlan's noble ideal of a "color-blind" Constitution.

But this is only part of Brown's story. Equality before the law shifted effortlessly into forced equality of outcome in the space of a few short years. State resistance, massive or otherwise, was useless. In North Carolina Board of Education v. Swann, the Court struck down a state statute providing that no student would be compelled to attend any school for the purpose of improving racial balance in the schools. In Washington v. Seattle School District, the Court did the same with a statewide voter initiative preventing mandatory busing for purposes of integration. In U.S. v. Yonkers, a federal judge held the Yonkers city government in contempt, ordering it to integrate its schools by building scattersite public housing in predominantly white areas. This line of cases reached its coercive nadir in Missouri v. Jenkins, when the Supreme Court held that, to further integration, a federal judge could order a local government to increase property taxes, even though the increase was barred by the state constitution.

"Well, it serves you right for setting up government schools in the first place," say we libertarians. But wait. Faced with a desegregation order in the early '60s, Prince Edward County, Virginia, refused to assess school taxes and instead shut down its public education system. In 1964's Griffin v. County School Board, the Court ordered Prince Edward County to levy the taxes and reopen its schools. In 1996, when the Court ended male-only admissions at the Virginia Military Institute, one of the obstacles to VMI's privatization was a possible Griffin-based challenge from the Justice Department.

Thus, in the wake of Brown, federal courts enforcing the Fourteenth Amendment have seized vast coercive powers, state resistance to taxation and social engineering notwithstanding. To what benefit? None, actually. As the editors of a leading--and, it should go without saying, leftist--constitutional law text admit, there is "no proof . . . that [integration]has aided blacks in any demonstrable fashion." (Stone, Seidman, Sunstein, and Tushnet; Constitutional Law; 2d Ed. Little, Brown, and Co.; 1991 pps 530-31) It's true that in recent years, the federal courts have cooled somewhat to desegregation lawsuits. It's also true that, thanks to Missouri v. Jenkins, we're no longer protected from taxation by unelected, life- tenured federal judges. The precedent remains on the books, waiting for the next egalitarian jihad. In its 1868 Resolution deratifying the Fourteenth Amendment, New Jersey charged that the amendment would work a radical "enlarge[ment] of the judicial power." In fact, New Jersey suspected that the amendment itself was "made vague for the purpose of facilitating encroachment on the lives, liberties, and property of the people." Maybe the Garden State was on to something.
Just a reminder , the next time some federal judge takes away your rights.