Barbarians inside the Gates and Other Controversial Essays by Sowell Thomas;

Author:Sowell, Thomas;
Language: eng
Format: epub
Publisher: Hoover Institution Press
Published: 1999-08-15T00:00:00+00:00

QUOTAS ALIVE AND WELL

SOME OPPONENTS OF AFFIRMATIVE ACTION may have been cheered by a federal case in Texas where the court ruled that the University of Texas law school’s special minority admissions program violated the 14th Amendment’s requirement of equal protection of the law. However, quotas are still alive and well after this decision. Whether the 14th Amendment is still alive and well is another question.

Four white students who applied to the law school at the University of Texas, and were turned down, sued because minority students with lesser credentials were admitted. They won the case—and were awarded one dollar each in damages, as well as the right to apply again next year. If it were not for the honor of the thing, they might as well have lost. The rule of law lost even bigger.

For those still naive enough to expect judges to follow the plain words of the written law, federal district judge Sam Sparks disabused them of this notion early in his opinion. Although the 14th Amendment guarantees “equal protection of the laws,” Judge Sparks dismissed “a simplistic application” of these words. According to the judge, “giving minority applicants a ‘plus’ is lawful.” In other words, some are more equal than others.

How does he reconcile this with the Constitution’s requirement of equal protection? By referring to a “tension that exists when the individual rights of non-minorities come into conflict with programs designed to aid minorities.” Tension is a much loftier word than contradiction—and not as honest. Its practical effect is to allow judges to pick and choose when they will apply the written law and when they will not.

For the ordinary citizen, it means that there is no way to know in advance what is and is not legal. Contrary to the Constitution’s prohibition against ex post facto laws, judges tell you after the fact whether or not they liked what you did. But there is no principle involved—just “tension” that they can resolve any way they want to.

The very idea that there can be a principle is undermined when Judge Sparks’ opinion refers to “trying to reconcile the meaning of words written over a century ago with the realities of the latter twentieth century.” This is the now-familiar argument that changes in society have made necessary a change in the law.

Even if this argument is accepted, it is still a non sequitur to say that judges are the ones to make the change. There are, after all, elected officials who can decide whether a change is in order—and what kind of change. They can also reconsider their decision if experience convinces them (or the voters) that they have made a mistake.

Words like “realities” and “tension” are blank checks for judges to turn their prejudices into “the law of the land”—and to make their mistakes uncorrectable. The particular mistakes that they make are far less important than their undermining the very concept of the rule of law. Arbitrary edicts from judges are not the rule of law, they are the rule of lawlessness from the bench.

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