Does Brown v. Board of Education constitute the Supreme Court’s one free pass? *UPDATED*

Don Quixote and I had a very interesting conversation yesterday about the libertarian way to change societal evils. I don’t recall how the conversation wandered over to that topic, but it seems to me it started with a chance reference to a very well known incident in California in the late 1970s.

Back then, a landlady made headlines when she refused to rent one of her apartments to an unmarried couple, since she believed to do so would condone a sin.  (And yes, it is hard to believe that such an antiquated notion was still prevalent in certain quarters as little as thirty-odd years ago.)  I cannot remember if the matter was resolved by judicial fiat or legislation, but resolved it was — and against the landlady’s religious preferences.

The libertarian way to deal with the situation, of course, would have been to let the market decide which way housing should go.  If there were enough unmarried couples seeking housing, the landlady would either have abandoned her principles in favor of profit, or ridden off into the sunset, proud and broke.  As it was, government threats, rather than the profit motive, bullied the landlady into the Hobson’s choice of eschewing her beliefs or abandoning her home.  There’s a crude, high speed bullying to the latter force, that is absent when the market shifts organically.

But what, I asked Don Quixote, can one do when society condones a something that is absolutely wrong?  Of course, nowadays wrong is a fuzzy concept.  In this day and age, short of abasing himself on the floor and giving away all his money, everything the average white male does is wrong.  Rather than get into that mess, I wanted to treat the discussion in a pure, abstract way.  Both DQ and I therefore scoured our brains for a big wrong in the modern era.  We simultaneously came up with the same thing:  the way in which the Jim Crow South denied blacks their rights.

In a perfect libertarian world, two forces would have converged on the Jim Crow South, forcing a change in those bad racist habits.  First, blacks would have left en masse and second, the disapproval of the rest of the United States would have weighed heavily on the South.

Both of those things did happen, of course.  There was a huge black exodus from south to north, spanning the first half of the 20th Century.  Detroit, Chicago and Philadelphia, among other cities, were flooded by Southern blacks.  But a whole bunch of blacks remained in the South — more than enough to suffer the indignities, fear and poverty of Jim Crow.  Likewise, there were many in the North who looked upon the South with great disapproval, but the South was sufficiently insular that Northern condescension seemed to make little difference.

It is true that, given time, Jim Crow would probably have died on the vine.  Lots of evils, if allowed to play out, will die.  One interesting one we’re watching right now is taking place in China and India:  In those countries, girls are second (nay, fifth) class citizens, a situation that is made especially manifest by the fact that those boy-oriented cultures abort an overwhelming number of girl babies.  Currently, the situation is awful for girls, whether born or unborn.  However, as there are fewer and fewer girls, their stock is going to have to rise.  It will be impossible for either culture both to maintain its rate of female genocide and survive.  Given enough time and enough female deaths, female infanticide will die out.

A problem arises, however, when moral people don’t want to sit around and wait for the inevitable.  They cannot tolerate the pain and suffering that will lead to the ideology’s demise.  They want to do something now.

In the case of the Jim Crow South, to those paying attention, some decisive action seemed absolutely necessary.  With the “malcontents” of the black population having emigrated, leaving a more massive and easily bullied black population, and with most of the world looking away, it seemed as if the South had achieved some form of stasis (no matter how foul) that would enable it to continue its un-American practices indefinitely.

There is a reason that, in the previous paragraph, I highlighted the phrase “to those paying attention.”  Libertarianism works, as much as anything, by having a critical societal shift.  People decide something is wrong, and they stop sending money that way; conversely, they decide something is right, and flood that market with their wealth.  The problem was that much if the nation (a) didn’t care; (b) sort of agreed with Jim Crow; or (c) wasn’t paying any attention at all to the situation.

What made people care, what made them sit up and pay attention, was the fallout from an activist Supreme Court opinion:  1954’s Brown v. Board of Education.  The opinion said, as we all know, that it is impossible for separate to be equal.  That is silly.  In terms of government providing equal education, it would have made more sense to say that school districts have to ensure that all students have precisely the same facilities, precisely the same quality of teachers, and precisely the same resources as white students, in order for their education to be considered equal.  That ruling would have made sense.

The sensible ruling would also have been a back door to desegregation, because no Southern school districts could have afforded having two perfectly equal school systems, one for blacks and one for whites.  The districts would have had to raise taxes or lower educational offerings to their white students . . . or bitten the bullet and let the blacks in.  It would have been up to the districts which they chose, but the results would almost certainly have been desegregation. As it was, though, the Brown opinion forced instant desegregation by creating a crackpot legal, education and social theory out of whole cloth.

Brown’s real important, though, didn’t lie in silly legal opinions that basically affected only a small number of blacks (the children).  Instead, it’s real importance was the fact that, at the start of the media age, its publication caused all American eyes to turn to the South.

As I noted before, before Brown, the rest of America wasn’t paying attention, or didn’t care, or even sort of agreed with the Southern system.  By turning up the heat on the South, though, and forcing a sea change without the gradualism of libertarianism, Americans suddenly had images of the Little Rock Nine being escorted by troops and excoriated by white citizens on television screens and in newspapers and magazines:

Thanks to the spotlight the Supreme Court turned on the South, Americans were riveted and disgusted by a spectacle they’d chosen earlier to ignore. The South, with American eyes upon it, opted for self-immolation. Rather than yielding gracefully to what it should have perceived as the inevitable, the South, led by the practically retarded Bull Connor, provided even more fodder for the media.

In the years subsequent to the Brown decision, Americans were treated to even more grotesque images from a backwater they’d previously ignored:

Societal pressure against Jim Crow became overwhelming.  The Federal Civil Rights Act wasn’t the leading edge, it was the last swipe at a system that had begun to die with great speed in the wake of the immediate changes wrought by Brown v. Board of Education.

Considering the evil that was the Jim Crow South, and considering that the system would have taken decades to die out on its own, here’s the big question:  Was it a good thing that the Supreme Court jump-started Jim Crow’s death by issuing an activist decision that was both Constitutionally incorrect and factually just a tiny dent in the system, but that worked to turn America’s eyes onto a great wrong being done in its own back yard?

My answer is that, righteous though the results were, the decision was still wrong.  Keep in mind that the societal benefits in Brown‘s wake were not the intended consequences of the decision.  Instead, the benefits flowed from an unintended consequence:  the novelty of media attention focusing on an issue most Americans had managed to disregard.  In other words, it wasn’t the Court decision that brought about the change; it was the dumb luck that flowed from that decision. While the decision is viewed as carte blanche for activism, because it was followed by a successful societal change, the change flowed, not from the decision itself, but simply from the attention it garnered.

Sadly, when courts get all activist about education, rather than having a great wrong righted, you’re much more likely to end up with the situation in the Kansas School District.  In that District, a federal judge micromanaged billions of dollars in expenditures, only to end up with exactly the same situation as before:  poorly performing minority students.  Funnily enough, in light of my comments about Brown, the Kansas court could reasonably have said what the Brown court should have said:  expenditures must be equal.  End of story.  Let the communities figure out how to make that happen. The Kansas judge, however, took his activism much further and ordered, in great detail, that the Kansas school district create perfect schools, schools that could only be dreamed in the fantasy world of an education school’s wet dreams.  Unsurprisingly, everyone suffered.

That’s my two cents.  What’s yours?

UPDATE:  I wrote the above post in response to a conversation about the libertarian versus the Leftist (liberal/Progressive) approach to dealing with societal evils.  It occurs to me, though, that it’s a worthwile post to consider in light of the upcoming hearings for a new Supreme Court justice.

Halting the schism

Conservatives have two stark choices right now:  they can self-destruct or they can create a workable paradigm for moving forward. The self-destruction possibility is playing out before our eyes.  Kathleen Parker fired the opening salvo with her screed about the evil oogedy-boogedy Christians that are tainting conservatism.  Charles Johnson is also taking potshots at Bobby Jindal’s fascination with creationism and exorcism.

I’d like to remind everyone once again that the President, thank goodness, is not God’s agent in the White House, at least so far as the Constitution is concerned.  Bobby Jindal, if he became President, could not mandate that creationism be taught in schools, and nobody is going to be conducting exorcisms on the White House lawn (although it would certainly be fascinating, wouldn’t it?).

Once again, people are forgetting that there is a difference between using political office to impose a state religion on Americans (barred by the Constitution) and being a religious person whose religion informs his ultimate values (typical of the Founders and completely acceptable under the Constitution).  As long as Jindal., or any other conservative Christian (or Orthodox Jew or whatever) in high public office keeps those lines straight in his head, and isn’t demanding that we all worship at the alters of creationism and exorcism, or whatever other doctrine characterizes his religion, I don’t care that he holds those views — just as more than half of Americans didn’t care that Obama, through his associations, made it plain that he believes that Communism is not really a bad thing.

Indeed, considering that I can easily prove that Communism killed more than 100 million people in the 20th Century alone, it strikes me that Obama’s belief system is a whole lot more suspect than Jindal’s, which is laboriously proved by theory and inference, not by objective fact.  And the real fact is that, whether one believes in Darwinism (as I do) or creationism (as others do), those conflicting beliefs haven’t been in the business of killing people lately.

All of which gets me back to my current fixation with true (that is, not Ron Paulian) libertarianism.  If we recognize the appropriate limits for government (strong national security, decent home security, a solid transportation and energy infrastructure, lots of local control, a free market in both the economy and education, etc.), we really don’t need to touch upon a candidate’s religious beliefs.  If the President truly believes in local control over schools and in vouchers (which give parents a great choice in choosing educational systems that will most benefit the kids), the President’s views on creationism become fairly irrelevant.  They’re a curiosity, just as Obama’s trust in Communists and terrorists is a curiosity.  They may be off-putting, but they shouldn’t disqualify someone who is otherwise perfectly capable of handling the reins of power.

By the way, I strongly recommend that, if you haven’t already done so, you read Randall Hoven’s argument that true libertarianism can coexist with, and even function extremely well in, a socially conservative world.  He is not arguing for a New Testament Theocracy.  Instead, he notes that, if the federal government would let go of things such as drug laws, abortion, gun control, etc., we’d find social conservatism anyway, without any Biblical foundation.

This social conservatism would arise because local people would control these issues and they would tend to hew conservative.  Indeed, even in my ultra liberal community, I’d be willing to bet that a whole bunch of the parents who would willingly approve of federal laws allowing unlimited abortion would then make an entirely different call if their own daughter’s health and life were at stake.  It’s easy to be liberal if you deal with remote abstracts; less so if all the issues strike closer to home.

A new direction for American conservatives

It’s time to end the post mortem and get moving, the only problem being that “getting moving” is proving to be as rancorous amongst conservatives as was the political cycle itself.  One of the schisms I’m seeing in my own blog is between pro-Life and pro- (or, at least, not anti-) abortion types.  That got me thinking about a potential way out of that, which was something that Danny Lemieux raised in an email:  libertarianism.

I have to say that, when I was growing up, the term libertarian had exactly the same meaning for me as “completely nuts in a creepy way.”  Ron Paul’s candidacy, which attracted an unseemly number of unpleasant people and ideas, didn’t help the whole concept of libertarianism.  In fact, though, libertarianism is probably about as good an answer as there is, whether your question is “How do we counter Obama’s statism?” or “How do we cause the disparate elements of conservatism to coalesce?”

If you want an excellent primer on core libertarian principles, you can’t do better than Charles Murray’s What It Means to Be a Libertarian.  In this short little book (almost a pamphlet, really), Murray spells out the fundamental libertarian concept, which is that maximum freedom means minimum government — and especially minimum federal government.

Contrary to big-government aficionados, who envision libertarianism as a sort of anarchic situation, akin to a perpetual Lord of the Flies world, Murray does not demand that government vanish.  Instead, as I’ve often said here (inspired, no doubt, by Murray’s book), he envisions government as an entity that doesn’t guarantee prosperity, but that clears the way for individuals to seek that prosperity.  When you think about this concept, you’ll quickly realize that it sounds familiar:  it echoes Jefferson’s formulation of a free society as one in which the government creates the circumstances under which citizens are guaranteed, not happiness, but the right to pursue happiness.

In this libertarian world, government continues to be responsible for national security; domestic safety (which includes police forces, fire fighters, and guidance and protection during epidemic and endemic diseases); transportation infrastructure; and the assurance that no single group is targeted for discrimination in any of the marketplaces that make up a functional country (business, housing, education, etc.).  As to that last, government would be charged with protecting citizens such as women and minorities from discrimination, but it would no longer use its brute force to give them a leg up in the marketplace.

Because the country is so large as to be unwieldy, we can also hand government a few more powers:  it can make and enforce clear, limited rules for the securities market, but it may not control the market;* it can provide a safety net for those temporarily down on their luck; and it can provide resources for people permanently incapable of taking care of themselves (such as the profoundly handicapped).

Once upon a time, I would have said that the government should also provide public school education, but I’m more inclined to say that the (state) government should use tax dollars to provide vouchers to parents who can then enter the marketplace in a search for the education of their choice.  In this marketplace, those vouchers may, in the first few years, be used for some pretty flaky and abhorrent schools.  However, the fact that most parents want their children to succeed in the world would mean that the flaky schools would quickly vanish from the marketplace as their graduates would likely not do well in market competition.  (And before you get upset about the poor guinea pig kids who are unlucky enough to have parents who make bad choices, think about the generations of children who have been condemned to the hell of poorly-performing public schools.)

There’s also an argument to be made for government to get out of the business of education altogether, but I can see that turning into a situation such as existed in the world before public education:  only affluent people got educated.  As a republic, I do believe we owe all of our children the right to a good education.  Since the government is proving increasingly inept at providing that education, however, I just think we should let the marketplace take over.

The libertarianism I envision would also bypass the gay marriage issue which is becoming every more ugly.  (And, really, do you think harassment and intimidation is really the way to win hearts and minds?)  I would get the government out of the “marriage” business entirely and make everything “civil unions.”

Owing to the fact that, up until the American experiment, religious and civil marriage were inextricably intertwined, we’ve ended up with a bastardized system that uses the word marriage, but that is really concerned with extending certain civil benefits to those formalized relationships of which the state approves.  These are relationships that, in gross (even if it is not true for every specific relationship) confer a benefit on the state.  The most obvious benefit, of course, is population stability through children.

In addition to these civil concerns, marriage continues to exist in a parallel world as a purely religious construct.  In Catholicism, for example, its part of core religious doctrine, and is, I understand, one of the seven sacraments.

If we continue to conflate religious marriage and civil unions, I can readily envision a situation in which a gay couple sues the Catholic church for refusing to conduct a marriage ceremony.  Someone I know said this will never happen, because the Catholic church isn’t sued for refusing to give communion to pro-abortion people.  This erroneous argument shows precisely the problem with conflating civil rights and religious doctrine.  While abortion is a right, the church isn’t in the business of giving abortions; and while the church is in the business of giving communion, communion isn’t a right.  However, the church is in the business of presiding over marriages and if you make civil “marriage” a right, even though you’re dealing with two entirely different concepts (a religious sacrament and a civil contract for tax and other benefits), you end up with a sued church.

In my libertarian world, the state would stop using the word marriage altogether and would allow people to register for civil unions.  These civil unions would confer on the participants all the benefits and burdens that the state feels would best encourage such unions.  And the state traditionally encourages these unions (1) because of children (every state needs citizens) and, due to those same children, (2) because of the stability those couples seek to create in order to protect those children both in the present and in the future.  Frankly, the civil unions would look pretty much like modern civil marriages, but we would have gotten the state disentangled from its hangover relationship with religious marriage.  We would also force the state to focus on societal goals in defining civil unions, which should allow us to bypass polygamy, polyamory and bestiality, all of which are tugging on the coat tails of “gay” marriage.

The approach I’ve outlined above also takes the federal government out of the abortion issue.  As a voter, you would not need to investigate a candidate’s stand on the abortion issue.  Instead, a solid conservative/libertarian citizen would simply vote for a candidate who would, in turn, appoint strict constructionist judges.  These judges, if they’re intellectually honest, would say, as should have been said in 1973, that abortion is not a Constitutional right and therefore not a federal matter.

Once abortion is returned to local jurisdictions, citizens will have much more control over the issue, with those who are pro-Choice gravitating to states that allow less fettered abortion and those who are pro-Life gathering in jurisdictions with more fettered abortion.  Time will tell which geographic areas are physically and emotionally healthier, more stable, more productive, more affluent, and generally more agreeable.

I realize that what I’m proposing is somewhat revolutionary, since it envisions dismantling large sectors of the federal government.  And indeed, after several years of unfettered Democratic rule, there will be even more sectors to dismantle.  Nevertheless, it’s a template that can bring the largest number of people into the conservative tent because it’s basic message is clear and attractive:  You need to give just enough money to the government so that it can provide a safe, stable, fair environment that takes care of its weakest members.  After that, all the choices are yours.


*As a lawyer who has had the misfortunate to do some securities work, I can tell you that the plethora of extraordinarily confusing and poorly written regulations (both state and federal) does little to protect the “widows and orphans,” but it does make lawyers rich, all the while keeping businesses from maximizing their profitability.

Cross-posted at Right Wing News