Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

1954, in which the Supreme Court held that segregation of public school students violates the Equal Protection Clause of the Fourteenth Amendment.58 Separate facilities for blacks and whites, according to the Court, are inherently unequal. Until 1954, the States, with the Supreme Court’s permission, were free to discriminate against African-Americans who attempted to be accepted as equals in American society. The Supreme Court, through its decisions in the latter part of the nineteenth century, gave strength to the idea that there existed a color barrier between blacks and whites, and defied Jefferson’s supposed self-evident truth that “all Men are created equal.”

Toward a “Post-Racial” Era

The United States of America, after a long, dark history of legal slavery and legal racial discrimination, is moving closer and closer to a “post-racial” era, a time when Americans move beyond racial differences. Nevertheless, as much as politicians would like to believe that we have transcended race, the race issue is still prevalent in American society. We are still judged on what makes us different from one another, and not as much on what unites us.

The affirmative action debate is important to explore because it is a current example of distinguishing people based on race and reflects a modern-day obstacle to Jefferson’s truism. “Affirmative action” is the term describing government policies that take race into account in order to foster racial equal opportunity, or to right past wrongs. Affirmative action policies are widespread in education, as well as in employment.

In the 1978 case of Regents of the University of California v. Bakke, the Supreme Court held that affirmative action policies in publicly owned college admissions are constitutional, but institutions cannot employ a “quota system” based on race.59 That is, colleges cannot set aside a certain amount of seats for students solely for minorities, but they can take race into account as one factor in determining whether an applicant should be admitted. The Supreme Court recently upheld this decision in 2003, in Grutter v. Bollinger, when asked to assess the University of Michigan Law School’s conceded racially discriminatory admissions procedures.60

Justice O’Connor, writing for the majority in Grutter, surmised that “25 years from now the use of racial preferences will no longer be necessary to further the interest [in achieving a diverse student body] approved today.”61 Justice O’Connor’s weird articulation of the Court’s position on affirmative action raises many questions. It is clear from her statement that racial inequality still exists in this country; that is not disputed. It is also evident that Justice O’Connor believes that affirmative action policies are not the ideal way to conquer these differences, yet according to her, some form of affirmative action is presently necessary. No matter how we look at affirmative action, it is a form of racial discrimination; it is government making decisions based on race. Affirmative action consists of the government, which is supposed to be color-blind, helping some (who could use the help) and harming others (who harmed no one themselves) based solely on race. It has survived because it is not the typically historical brand of racial discrimination. It seeks to correct past discrimination against African-Americans, and put them on a level playing field with whites.

However, Supreme Court Justice Clarence Thomas believes that affirmative action amounts to a “reverse-racism” tool. In Adarand Constructors, Inc. v. Pena, an affirmative action case decided in 1995, Justice Thomas, in his concurring opinion, stated that “[i]t is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.”62 Therefore, according to Justice Thomas, all affirmative action programs violate the Equal Protection Clause. Furthermore, in his dissent in Grutter, Justice Thomas responded directly to Justice O’Connor, and stated that if Michigan’s affirmative action system will be illegal in 25 years, it must be “illegal now,” for the Constitution “means the same thing today as it will in 300 months.”63

Justice Thomas is correct. The government has no power to make decisions based on race, just as it has outlawed innkeepers, schoolteachers, landlords, shopkeepers, and even Presidents from doing so. I am loath to endorse the federal regulation of private behavior for reasons I have articulated elsewhere;* essentially because the Constitution has never given Congress the power to do so. But it can certainly assure that the States as States, as sovereign governments, respect the Natural Law, which is color-blind. Isn’t it ironic that it took a black man on the highest court in the land to point this out?

What is it about “all Men are created equal” that we still struggle to implement that statement 235 years after it was written? Do we really understand today—after a Civil War, constitutional amendments that were popularly adopted in some states and compelled by force of arms in others, Reconstruction, Jim Crow, official segregation, and now a biracial President—any better just what Jefferson meant?

* See my previous books: Constitutional Chaos: What Happens When the Government Breaks Its Own Laws; The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land; A Nation of Sheep; Dred Scott’s Revenge: A Legal History of Race and Freedom in America.

Lie #2

“All Men . . . Are Endowed by

Their Creator with Certain

Inalienable Rights”

Wilhelmina Dery, an elderly woman who had lived in her house since her birth in 1918, was planning to stay there with her husband, Charles, until she died.1 That was her plan, at least, until the City of New London decided it would take her house, and the entire neighborhood, away from the homeowners so it could build a development on the land. By the time they lost the case, Kelo v. New London, in the Supreme Court, Wilhelmina and her husband, at age eighty-seven and eighty-six years old respectively, were about to be kicked to the curb by the State of Connecticut.2 Yet, after the Court’s unfavorable ruling, many of the plaintiffs,