The Colorblind Constitution

In “The Road Not Taken,” (Summer 2004), Michael Uhlmann has given us a brilliant resurrection of an unpublished manuscript of the late Justice Robert H. Jackson, which might have been either a concurring opinion in Brown v. Board of Education or (however improbably) the opinion of the Court. Rather than merely rail at Justice Warren (as most of us do) for the defective opinion actually issued in 1954 in the name of a unanimous court, he provides a sensible and moderate alternative. In doing so, however, he passes over, rather too lightly, the other alternative, represented by Justice Harlan’s dissent in Plessy.

Uhlmann speaks of the “rhetorical force” and “nobility of…sentiment” of the “colorblind” Constitution, but he does not recognize that the aforesaid “force” and “nobility” are not merely adventitious. They derive from the fact that the Constitution is colorblind because it incorporates the principles of the Declaration of Independence, at the center of which is the proposition “that all men are created equal.” No precedents inconsistent with this, however long established, can withstand scrutiny, strict or otherwise. The precedents cited by Uhlmann are, for the most part, relics of Jim Crow, and were the result of the attempt of the white South, after Reconstruction, to re-establish, as nearly as possible, the relationship of races that prevailed under slavery. The Civil War should have, but did not, finally settle that question. Whether segregated schools violate the equal protection clause would depend upon whether the segregation was invidious or was merely incidental to a legitimate educational purpose. For example, separating students by ability—”tracking” them—would not violate equal protection, any more than would a literacy test for voting, provided it was honestly administered (as it never was). In either case, the distinction among citizens would have to be colorblind. Harlan’s famous dissent, properly interpreted and applied, would have to prevail.

Harry V. Jaffa 
Claremont, CA

Michael M. Uhlmann replies:

I thank Harry Jaffa for his kind remarks about the general thrust of my article. The difference between us on the issue of Justice Harlan’s “colorblind” standard rests ultimately on how one reads the constitutional and statutory enactments of the late 1860s. Professor Jaffa rightly notes that the war “should have, but did not, finally settle” the question of equal rights for blacks. The same might be said, alas, of postwar legislative and constitutional remedies.

I can do no more here than to venture my opinion that these new laws fell far short of erecting a generic colorblind standard. That the 13th and 14th Amendments effected a new relationship between the federal government and the states on the one hand, and between the federal government and individual citizens on the other, there is no doubt. Nor is there doubt that they intended to create new federal guarantees for civil rights for freedmen.

What was, and is, open to doubt are the contours of these new arrangements—not least on the issue of which civil rights, precisely, could be defined and controlled by Congress. Some Republicans took a decidedly latitudinarian view both on the federal power question and on the definition of civil rights; but at most critical junctures, their views were overridden by moderate Republicans and Democrats. It would not be too much to say that the final wording of the 14th Amendment, like many another legislative compromise, was a product of purposeful ambiguity: it reflected but did not resolve opposing interpretations of its meaning. That is why the same Congress that approved the “majestic and sweeping generalities” of the 14th Amendment could also approve segregated schools in the District of Columbia.

Justice Harlan’s differences with his colleagues on the Supreme Court in the 1880s and 1890s mirror earlier differences within Congress about the nature and scope of federal authority under the 14th Amendment. His dissents in Plessy and theCivil Rights Cases eloquently state a latitudinarian position on legislative intent, but that view cannot be easily ascribed to a majority of the 39th Congress. It is not even easily ascribed to Harlan himself on the schools question. Two years after his dissent in Plessy, he wrote the unanimous opinion of the Court in Cumming v. Richmond County Board of Education, which upheld a Georgia school board’s right to create segregated schools.

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Democrats and Iraq

William Bennett’s essay on the Democratic response to the war against Iraq (“The Democratic Party and the Politics of War ,” Spring 2004) was thoughtful and interesting, but there were a few serious flaws.

First, Bennett says that the first Gulf War coalition included 34 nations and the second Gulf War coalition included 31 nations and, therefore, the only difference is three nations. Hardly true. If one compares the two lists, one finds nations such as France and Germany on the first list and Tonga and Palau on the second. Seems as if the second list (the Coalition of the Willing) is pretty meaningless compared to the first.

Second, Bennett has written books on morals and yet missed the moral difference between the two wars. In the first Gulf War, Iraq was the aggressor. In the second Gulf War, the United States was the aggressor. In other words, George H.W. Bush fought aggressors and George W. Bush is an aggressor. Hard to explain that away. Maybe we would get more respect in the world if we stuck to our own principles.

Third, Bennett seems to be saying that “the Democrats don’t believe in war when it is waged by the U.S….” I am reminded that we had Democratic presidents in World War I, World War II, the Korean War, and the Vietnam War. But then we didn’t consider ourselves the aggressor in any of those wars.

Dennis Veith 
Mansfield, OH

William J. Bennett replies:

I would like to thank Dennis Veith for his initial kind comments about my essay in these pages. But he identifies three “flaws” in my essay that I believe are errors in his reading of my essay rather than errors in my writing of it.

1) Mr. Veith challenges my pointing out that the number of allies in the liberation of Iraq was essentially identical to thenumber of allies in the Gulf War; 31 in the former, 34 in the latter. He concludes that “the second list (the Coalition of the Willing) is pretty meaningless compared to the first.” Meaninglessness may very well be in the eye of the beholder; my point about the number seems unchallenged by him.

I would, however, caution Mr. Veith—as I tried to caution the Democrats and Sen. John Kerry—that the continual denigration of the then 31 countries as “meaningless” in Mr. Veith’s words or the description of our actions as “unilateral” or “almost unilateral” or “practically alone” in Mr. Kerry’s is an excellent way to alienate other countries—something the Democrats like to charge President Bush with doing.

Mr. Veith might have mentioned countries in our current coalition such as the U.K. or Italy or Poland or the Czech Republic. He didn’t. Fine. This morning I read the following paragraph in my local paper: “In other violence yesterday, a Ukrainian patrol commander, Capt. Yuriy Ivanov, was killed in a land-mine explosion near Suwayrah, 25 miles south of Baghdad…. Also, a Dutch military policeman was killed and five others were seriously wounded during violence Saturday in the southern city of Rumaythah….” I believe that the friends and family of the Ukrainians and Dutch who lost their lives would take umbrage at the charge that their countries—as well as their efforts—were “meaningless.”

2) Mr. Veith claims the first Gulf War was morally justified because Iraq was the aggressor whereas the current effort was not justified because we were the aggressor. Over a dozen U.N. Security Council resolutions condemned Hussein; Hussein continually fired on airplanes in the no-fly zone; Hussein harbored terrorists from Abu al Zarqawi to Abu Nidal to Abu Abbas; Hussein slaughtered and tortured hundreds of thousands of Muslims; Hussein subsidized homicide bombers in Israel; and Hussein tried to assassinate a former U.S. president. Each and every one of the foregoing clauses fits my definition of “aggressor.”

3) When Mr. Veith writes, “Mr. Bennett seems to be saying that ‘the Democrats don’t believe in war when it is waged by the U.S.'” and that he is then “reminded that we had Democratic presidents in World War I, World War II, the Korean War, and the Vietnam War,” I know the “flaws” are in his reading and not my writing. Throughout my essay I lamented the “current Democratic Party” and “today’s Democratic Party” and its leaders—and noted its exceptions such as Sen. Joe Lieberman who are the legatees of the Democratic Party of my youth. I lamented the current party’s departure from their “once proud legacy” of Franklin D. Roosevelt, Harry Truman, John F. Kennedy, and Hubert Humphrey. The leaders of thatDemocratic Party believed in human and civil rights both at home and abroad, and they believed that sometimes military force was necessary to secure those rights as well as to safeguard our nation. Today’s Democratic Party has, as former New York City Mayor Ed Koch stated on my radio show, “folded its tent when it comes to the war on terrorism and foreign affairs.” I couldn’t put it better—which is why both Ed Koch and I, among many other current and former Democrats, support President George W. Bush’s re-election.

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Evolution and Ideology

Although Larry Arnhart is a respected and informed colleague, I must object to his effort to link evolutionary theory with modern American conservative political ideas in his review of recent books on evolution and human affairs, including my own book, Darwin’s Cathedral (“Darwinian Conservatism,” Spring 2004). Other authors who are equally well-informed have drawn the opposite conclusion, including Peter Singer in A Darwinian Left: Politics, Evolution, and Cooperation. What Arnhart should have said is that skepticism and ignorance about evolution exists across the political spectrum. Everyone needs to question his own skepticism and learn what the modern theory has to say about human affairs.

The first step is to be suitably humble about what we know and how we use it to inform social policy. The great problem of social life—for all species in addition to humans—is to realize the benefits of cooperation while avoiding the problems of free-riding and exploitation within groups. These themes are so universal that it cheapens them to hitch them to the wagon of a particular political position. In the past, evolution has been used to justify the sterilization and elimination of individuals (eugenics) and races (genocide) that were regarded as inferior; unrestrained competition within groups to insure the survival of the fittest (so-called Social Darwinism); the treatment of women as mentally inferior to men; and so on. In retrospect, it is obvious that an authoritative theory was being used inappropriately to advance the interests of some factions against the interests of others. Evolutionary and religious justifications were sometimes even placed side by side, as when women were expected to fulfill roles that “God and Nature” assigned to them.

I am not suggesting that modern American conservatives endorse these antiquated views, but the use of evolution to advance a particular political position is transparent in Arnhart’s statement (intended to represent Paul Rubin) that “the American regime is the best regime because it satisfies those evolved desires more fully than any other.” Isn’t Arnhart aware that the need to prevent exploitation within groups by powerful elites also resonates with the liberal end of the political spectrum?

David Sloan Wilson 
Binghamton University

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Seeking the Transcendent

I am very grateful for Christopher Flannery’s generous review of my book, Surprised by Beauty: A Listener’s Guide to the Recovery of Modern Music (“Divine Harmonies,” Spring 2004).). So I hope it does not seem carping to take issue with the lengthy “quibble” he raises at the end of the review.

Flannery objects to my contention that “the transcendent was a notion alien to the ancient world.” He counters that “the classical view is distinguished precisely by the erotic aspiration to this transcendent goal [i.e., in seeking the ultimate good or the final end].” I believe that the disagreement between Flannery and me arises because he is making a moral point and I was making a metaphysical one.

I do not dispute the nobility of the ancient soul. However, in the classical view of the cosmos, where did “the ultimate good or the final end” reside? It resided in the empyrean. As its uppermost region, the empyrean was within, not above, the cosmos. To have suggested to an ancient that something existed outside, and therefore above, the cosmos would not have made any sense because, for him, matter was eternal. If matter is eternal then the world exists necessarily. If the world exists necessarily, nothing can transcend it. This is the basic foundation of the pantheism that permeated the classical world and populated it with gods.

While there are powerful premonitions of the transcendent in Plato, it was only with the Christian teaching that matter is contingent, not eternal, that the idea of God as transcendent gained its metaphysical moorings. St. John revealed Christ as the “only-begotten.” As Fr. Stanley Jaki has so powerfully explained, St. John’s wording made it clear in terms the ancient world well understood that the exclusivity of Christ’s generation by God meant that the world was not “begotten” by Him. The world was no longer god in the sense that it was an emanation of His being. It was created ex nihilo.

Thus I stand by my point that, within the Christian understanding of the world, the aim of art is higher because it seeks to make the transcendent perceptible.

Robert R. Reilly 
Vienna, VA