Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (34 page)

By the end of 1964, then, the Court hurriedly decided the cases of
Heart of Atlanta Motel, Inc. v. United States and Katzenbach v. McClung.
In the former case, the motel's owner invoked his private property rights.
He said that the Civil Rights Act of 1964 could not compel him to open
his motel to blacks, because that would be a violation of his Thirteenth
Amendment rights; if Congress could tell him how to run his motel, he
was being forced into a state of involuntary servitude. He also denied that
renting a hotel room was "interstate commerce," and thus subject to congressional regulation under the Commerce Clause.

The Court, however, held that the Civil Rights Act, which banned
racial discrimination in public accommodations, was a valid exercise of
Congress's Commerce Clause powers, even if regulating interstate commerce had not been the intent of the act. In his opinion for the Court, Justice Tom Clark said that Congress's powers under the Commerce Clause
were "plenary"-i.e., virtually unlimited. This was a momentous curtailment of traditional property rights.

In Katzenbach, the Court upheld the Civil Rights Act as applied to
restaurants, again using the Commerce Clause (specifically citing the
Wickard v. Filburn decision, which said that wheat grown for private use
could be regulated as "interstate commerce").

The Court's lesson for Congress was that it, like the Court, could do
whatever it wanted to do under the guise of regulating commerce. Far
from being the protector of the Constitution, the Supreme Court has been
a relentless agent of an ever more powerful and unrestrained federal government.

n 1968, the Court decided that "all deliberate speed" was not desegregating the public schools quite fast enough for its liking. In Green
v. County School Board of New Kent County (1968), the Court ruled
that public schools must achieve racial balance immediately. Many
school districts had offered parents a choice of two schools for their children, and most parents had preferred to send their children to schools
near their homes, with the result being that most black parents sent their
children to predominantly black schools and most white parents sent
their children to predominantly white schools. Not getting the results it
wanted, the Court ruled that voluntary desegregation plans that failed to
create substantially integrated schools were unacceptable.

So the Court set new standards. Where Brown v. Board of Education
had prohibited assigning students to schools on the basis of their race,
the Court now insisted on it. So in "implementing" Brown the Court actually inverted it, and demanded that school administrators and judges
racially divide students to integrate the schools. Since neighborhoods,
and thus neighborhood schools, tended to be racially identifiable, busing
students-even the youngest students-among neighborhoods became a
"constitutional" requirement.

Thus, a racialist assumption-that black students would never receive
an equal education so long as they went to school only with other black children-yielded racialist assignment. In
1973's Keyes v. School District No. 1, Denver,
Colorado, the same set of postulates was
applied by the Court to public schools in
Denver, Colorado-a jurisdiction that had
never had formal racial segregation. Soon,
Boston, Massachusetts, was rent by turmoil
over forced busing of students. Busing
became a national political issue in many
localities where schools had never been segregated, as parents were outraged that their
children were being bused across town in a judicially mandated social
experiment.

Guess what?

-40 In order to forcibly
integrate the
public schools, the
Supreme Court
effectively
overturned its
landmark antisegregation ruling
in Brown v Board
of Education.

-sW The Fourteenth
Amendment did
not ban sex
discrimination.

-40 The Bill of Rights,
according to the
Supreme Court,
contains
"emanations from
penumbras" that
guarantee a right
to contraception
and abortion.

In Boston, opposition to busing plans was led by a black mother.
Across the country, people of all races came to agree that they did not
want six-year-olds to ride buses for as much as three hours a day as part
of the Supreme Court's "constitutional" "remedy." Wealthy liberals (like
Senator Ted Kennedy of Massachusetts) became notorious for their
hypocrisy in supporting the Court in this line of cases while sending their
own children to private schools. One federal judge responsible for an
enormous busing plan explained his own apparent hypocrisy in sending
his children to private schools by saying, "When I'm on the bench, I'm a
judge, and when I'm at home, I'm a father."

Here we see why formulation of policy was left by the Founding
Fathers mainly to the state governments (and also why, within the federal government, Congress, not the Court, is supposed to be the legislative branch). Under no circumstances would this idiocy have been
spawned by the republican system of elections. Yet, as since John Marshall's day, life tenure (and wealth) insulated federal judges. They could
not be held to account by the electorate, nor did they necessarily feel the
full effects of their own actions.

Legal Latinisms

Writ of certiorari: A writ issued from a
superior to an inferior court, requesting a
certified record of a case. The Supreme
Court uses writs of certiorari to choose
its cases.

Many cities' court-enforced integration plans have been allowed to
lapse in recent years, but this line of precedents has not been overruledand many Americans still suffer under it. Perhaps its extreme manifestation came in St. Louis, where a federal judge ordered an enormous
statewide tax increase to finance construction of a palatial high school
intended to spur white enrollment in an essentially black school. King
George III's authority in America never rivaled that of a contemporary
federal judge.

Lyndon Johnson, who signed the Civil Rights Act of 1964, also instituted
the policy of "affirmative action"-a practice that has come to be called
"benign race discrimination." "Affirmative action" first meant finding
blacks who might not have applied to a school or for a job because of low
expectations rather than lack of ability. But when it did not appear that
segregation had created an enormous cohort of black street sweepers who
were really frustrated potential brain surgeons, the definition of affirmative action began to mutate.

At Least He's Honest

"At the constitutional level where we
work, 90 percent of any decision is emotional. The rational part of us supplies the
reasons for supporting our predilections."

Justice William 0. Douglas

The Supreme Court got into the affirmative action business in Griggs v.
Duke Power Co. (1971). The Court ruled that
the Duke Power Company, in requiring a
high school diploma and high aptitude test
scores for employment and promotion, was
being racially discriminatory, because proportionately fewer blacks did well on these
tests or had diplomas. The Court decided
that company employment standards nationwide had to be "reasonably related" to the
relevant jobs; companies could not rely on
broad educational qualifications in making hiring decisions. Having no intent to discriminate was no defense; it was
the balance of racial statistics that mattered. Soon enough, businesses
throughout the country responded by hiring and promoting staff on a
racial basis. The non-discrimination policy enacted by Congress in 1964
had become, in the hands of lawyers and federal judges, a virtual mandate
to discriminate.

Quotas also appealed to university administrators as convenient mechanisms for demonstrating that they too were on board the Supreme
Court's Civil Rights Express. A flash point in what would become the
extended controversy over quotas, goals, timetables, and other measures
of "benign" discrimination (discrimination against whites and, later,
against men) was the 1978 decision in University of California Board of
Regents v. Bakke.

Bakke by the Numbers