Economy, parsimony, and simplicity… I guess today is nostalgia day. This is a "not so current events" day, and the events are the Civil Rights Act of 1964, United Steel Workers of America v. Brian F. Weber (1979), and Cheryl J. Hopwood, et al. vs. The State of Texas (1994). The motivation for this post is actually Thomas Sowell's The Vision of the Anointed: Self Congratulation as a Basis for Social Policy. "Judicial Activism" was the section I was reading, but more important, it was the subsection concerning definitions and distortions that caught my eye. I would heartily recommend Thomas Sowell on virtually any topic, but especially on subjects in the area of political philosophy, race and ethnicity/culture, and judicial activism. I know, he's an economist, and not so surprisingly, I purchased his Basic Economics: A Citizen's Guide to the Economy and am enjoying it immensely. My youngest daughter thinks I'm a dweeb, but since she was with me, I provided an incentive for her to read it… I buy her books and let her put the price of both our purchases on her Borders Rewards card instead of mine if she'll agree to read the book. I love incentives! She agreed as long as I read it first because she'll "read it slower and have questions" so I had better learn it first. I also love my daughter ;-) Now that everyone knows I love my daughters and Thomas Sowell, we'll get back to business. First, the Civil Rights Act is legislation that forbids racial discrimination in "apprenticeship training programs, such as that which excluded a white worker, Brian F. Weber, in order to include black workers with lower qualifications" (Sowell, The Anointed, 1995, p. 233). Where the Civil Rights Act forbids just such discrimination: Justice Brennan who claimed elsewhere that discerning the original intent of lawmakers was virtually impossible, in this case saw lawmakers' intent so clearly – Congress' "primary concern" for "the plight of the Negro in our economy" – that he disregarded the plain words of the Civil Rights Act (as cited in Sowell, 1995, p. 233). Instead of focusing on Sowell's primary point in this conversation, I'm going to highlight a secondary point that brings a murky distortion into sharp relief. It was once a goal in this country to make certain things as "color blind" as possible – such as admissions to colleges, apprenticeship training programs, etc. In order to bring this distortion into relief I need another quotation from yet another judge, in this case, a federal judge in Texas: The plaintiffs have contended that any preferential treatment to a group based on race violates the Fourteenth Amendment and, therefore, is unconstitutional. However, such a simplistic application of the Fourteenth Amendment would ignore the long history of pervasive racial discrimination in our society that the Fourteenth Amendment was adopted to remedy and the complexities of achieving the societal goal of overcoming the past effects of that discrimination (as cited in Sowell, 1995, p. 233-234). Emphasis added. Thomas Sowell provides a number of excellent responses to such errant nonsense. He pays only passing attention to the word "simplistic" because he already addressed the problem earlier in the book. It's a lesson worth learning. Verbal gymnastics are not the same as an argument or a proof, and judges should know that. It pays to watch for words that prove nothing about the premises of an argument, and more important, contribute nothing to the truth or falsehood of the conclusion. Although the significance of the word simplistic is easy to miss in this context, Sowell makes the point firmly: As in so many other contexts, the word "simplistic" was not part of an argument but a substitute for an argument. To interpret the Fourteenth Amendment as meaning what it says – equal treatment for all – does not ignore the history which led to the passage of that Amendment (Sowell, 1995, p. 234). Emphasis added. Personally, I like the rule of law. Moreover, I like the notion that I can count on the rules to remain the same until such time as a legislator changes it – because he represents me by virtue of having won an election. I find the notion that an unelected judge can pass law by fiat from the bench reprehensible. Clearly, the Constitution put the responsibility for law-making outside the bounds of the bench, and unfortunately we, as a free people, have allowed our system of law to become frenchified by blatherskites on the bench. Is there something we can do now? Something like Michigan? Ok, I'll admit the two linked-words frenchified and blatherskite were a little over the top, but I just learned 'em an' I had to use 'em! They SOUND like insults J
Happy Sunday!
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