The Trumpist right is coming for Brown v. Board of Education
A Claremont Institute publication asserts that the right to be a racist is at the core of the American tradition -- one that must be restored to its rightful place in our order.
If you're not a straight-up politics junky, you might still know the Claremont Institute because of its role in providing Trumpism with some of its big ideas. "The Flight 93 Election,” the 2016 "intellectual" case for electing Donald Trump, appeared at the Claremont Review of Books. And John Eastman, the lawyer who provided Trump's legal architecture for overthrowing the 2020 election, is also closely associated with the outfit.
Claremont has a spinoff -- the Claremont Institute's Center for the American Way of Life -- that puts out long tracts advocating its vision of (natch) the American way of life.
And that way of life includes a lot more room for racial discrimination. CAWL's latest offering makes that plain: "How We Got Our Antiracist Constitution: Canonizing Brown v. Board of Education in Courts and Minds."
Here's the thesis from Jesse Merriam, the author:
Over the past decade, several American cities have been rocked by race riots. With each passing year, a new racial agenda—from police defunding to education reform to reparation—emerges, leading to more and more division and radicalization along racial lines. What started all of this? The roots of this pathology run much deeper than the recent symptoms suggest. The civil rights revolution unleashed an assault on the US Constitution, and the sacralization of that revolution, marked by the canonization of Brown v. Board of Education (1954), has transformed our constitutional order. A system once rooted in local self-governance and natural rights now operates along new moral axes, entirely foreign to the American way of life. The choice is increasingly obvious: Either the traditional American order or the new civil rights regime will prevail.
Warning: From here on out I'll be quoting at length. But you should really read the whole thing if you have time.
Now: Brown v. Board is pretty popular! And it's been a long time since opposition to the desegregation ruling was considered at all respectable -- as Merriam acknowledges.
In 1986, when Associate Justice Rehnquist was nominated to be chief justice, his confirmation hearings again focused on his position on Brown. But once again, he professed his fidelity to Brown. And this time he had the opportunity to explain that his 1952 memo was written to reflect Justice Jackson’s position rather than his own personal views.
One year later, however, Robert Bork was not so lucky. As a Yale law professor and DC circuit judge, Robert Bork had been an outspoken defender of orthodox originalism. Although he had never explicitly challenged Brown, he was a vociferous critic of the Warren Court’s expansive interpretation of the Fourteenth Amendment, which raised questions about the centerpiece of that legacy—Brown and related civil rights cases. In addition, Bork had written a 1963 New Republic essay opposing the civil rights bill.[35] Even though Bork did end up defending Brown in his 1987 confirmation hearing, many senators and legal scholars found his commitment to Brown and civil rights wanting, resulting in the Senate’s refusal to confirm him.
It's not just that Brown made it harder for racists to be racists. It's that potential Supreme Court justices had to abase themselves before it. It’s all so … womanly.
Now our leaders must take an oath not just to Brown as a legal decision but to antiracism (including the notions that diversity is a constitutional good and discrimination is a constitutional evil) as a political ideology and moral commitment.
This was recently on display in Amy Coney Barrett’s 2020 Supreme Court confirmation hearing, where she went out of her way to personalize her commitments not just to Brown but to racial equity as a public morality and political movement. She explained how, as a mother of two adopted black children, she found George Floyd’s death “very, very personal”—so personal that, on the day of Floyd’s death, she “wept” with her black daughter over the “kind of brutality” that “would be a risk to her [black] brother or [future] son.”
Before the canonization of Brown, such a personal diversion about weeping with one’s child would be seen as bizarre in a confirmation hearing focused on judicial temperament and legal acumen. If anything, it would demonstrate incompetence for the nominee to infer that the son or grandson of an eminent federal judge is at “risk” of suffering such “brutality” in a nation of 330 million that has roughly fifteen unarmed black men dying1 at the hands of police officers each year.
Of course the problem for Merriam is not just cultural and political. It's legal.
Although the opinion was open-ended in these ways, it was nonetheless clear in announcing two revolutionary principles. One principle was that feelings of racial inferiority have a constitutional status, thus raising the possibility that any governmental action creating such feelings, even indirectly through private actors, would be subject to close judicial scrutiny. The second principle was that racial integration is the remedy for these “feelings of inferiority.”
Put together, these two principles stood for what was then a revolutionary idea: private discrimination is a constitutional evil and racial diversity is a constitutional good.
And, it seems, the right to be a racist is at the core of the American tradition -- one that must be restored to its rightful place in our order.
H. L. Mencken once described Puritanism as driven by “the haunting fear that someone, somewhere, may be happy.” The canonization of Brown has brought a puritanical character to our constitutional system. Only we are driven not by the Puritans’ fear of pleasure but by the antiracists’ fear of discrimination. And we are motivated not by the glory of God but by the glory of diversity.
Decanonizing Brown means driving out this puritanical way of thinking about race. If this means there will be some discrimination and lack of diversity in some corners of American life, so be it. We cannot overhaul our entire order because of the haunting fear that someone, somewhere, may be a racist.
I'm still thinking about this piece, but a couple of quick thoughts:
* The timing of Merriam's piece is interesting, coming as it does in the same time period that the Supreme Court knocked down affirmative action -- and did so specifically on anti-discriminatory grounds. Conservatives tend to make the case that they're merely seeking colorblind application of the law and Constitution, and whether or not you agree with that outlook, that line of thinking is arguably better than arguing for straight-up racism. If you want to argue that "colorblind" arguments against affirmative action and other measures to help racial minorities is just a stalking horse for the return of white supremacy as governing principle ... well, this piece probably is going to be evidence in your favor.
* Whatever "our entire order" was before Brown, it's something different now. I suspect most (though certainly not all) Americans approve of the change. Merriam here is arguing for a return to an order that existed only before the vast majority of Americans were born. It's not quite as revanchist as "Lost Cause" nostalgia -- but only because the pre-Brown order is still a living memory for *some* among us.
* Merriam makes his intent clear near the end of the piece. He's not simply arguing that Americans must be free to racially discriminate -- but that sometimes it's a good thing. "Likewise," he writes, "we must be free to probe when diversity is not a source of strength but of weakness."
This is where the Trumpist right wants to take us.
Photo: Adam Jones from Kelowna, BC, Canada, CC BY-SA 2.0 <https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia Commons
The Claremonsters tend to lionize Lincoln. He had, er, problematic views on race (which were, to be fair, more progressive than many held at the time). Maybe Claremont thinks we should restore Lincolnian views of race.
Good God.