An Infamous Ruling
By Paul Craig Roberts
May 12, 2004

Twenty years and three months ago I wrote an article on the 50th anniversary of Brown v. Board of Education. This was the US Supreme Court decision that racially integrated public schools in America. Liberal elites saw the decision as a hallmark ruling for racial integration.

More importantly, it was the exercise of legislative authority by the Supreme Court and the substitution of coercion for good will and the will of the people. The court’s decision led to the Court pre-empting Congress’ power in other decisions, such as Roe v. Wade, which a later court, realizing the Court’s violation of the separation of powers overturned. The Brown decision also opened the door to the legalization of homosexual marriage.

Progressive liberals only see court decisions in terms of whether they are supportive of their progressive agendas, not in terms of whether the balance of powers is respected. Liberals have made it completely clear that if the Constitution stands in the way of their agendas, the Constitution has to go.

Consequently, liberals have worked to supplant the people’s will as protected in the Constitution with their will. Liberals attribute to their agendas more morality than to the preservation of government by the people.

Brown resulted in the 1964 Civil Rights Act being stood on its head by Alfred Blumrosen at the EEOC. The Act explicitly prohibited racial and gender quotas, but Blumrosen using regulatory power repealed the 14th Amendment and mandated racial quotas in university appointments, and in hiring, and promotion policies. These enforced quotas were prohibited by the 1964 Civil Rights Act, but the courts followed their practice of deferring to the regulatory agencies, a practice they had followed since F.D. Roosevelt’s 1930s.

Whereas the Constitution’s requirement of equality under the law, reinforced by the 14th Amendment, rejects any form of privilege before the law, racial quotas create precisely such privilege.

Sixty years of racial quotas have displaced white men, especially heterosexual men unprotected by the LBGT+ movement, from power positions and left them second class citizens. This is a revolutionary event. It was the intent of cultural marxists, Jewish immigrants from Nazi Germany, to achieve this result from their long “march through the institutions.� Today there are no heterosexual white men in the upper positions of the Biden regime.

All American institutions are now corrupted. Integrity, morality, justice, and truth have been uprooted and cast away. Ideological passions, regardless of fact and reason, rule the Western world.

Examples are everywhere. France, once a religious Catholic country, just opened the Olympics with an enactment of foreplay to an orgy of sexual perversion.

The US Congress gives a mass murderer who intends the genocide of Palestine 53 standing ovations.

Liberal pundits and Democrats who find Trump an obstacle to their agendas suggest his assassination.

The examples are endless.

It has been 70 years since the Brown decision. Did the decision integrate America or divide America? Superficially it integrated America. Racial quotas and preferences have replaced whites people with brown ones. But what also has happened is that American blacks, who are brown, not black, have realized that they are privileged in law and that these privileges are valuable. They don’t intend to let go of them. So Brown has divided us.

The division is seen in many ways. For example, the administration of Williams College, America’s premier liberal arts college, virtue signaled by racially integrating Williams. The first thing the brown students did was to demand separate dorms, separate dining facilities, separate everything. They occupied administration offices. The Williams College administration sent in food so the occupiers wouldn’t go hungry. In other words, Williams College accepted the authority that the browns were exercising over the college.

This is America today, a Sodom and Gomorrah Tower of Babel that has its roots in a 70 year old Supreme Court decision that destroyed the nation.

My column from a half century ago:

May 17 is the 50th anniversary of Brown v. Board of Education, the Supreme Court decision that used federal force to integrate public schools in the US.

The anniversary will be widely celebrated in print. Jumping the gun by several weeks, The Nation devoted its May 3 issue to celebrating Brown. The magazine celebrated early, because the editors fear that Brown’s anniversary might pass with insufficient notice by those who should most treasure the decision. Many on the liberal-left and in black civil rights circles have soured on Brown and regard the decision as contributing little to the “black freedom struggle� and even as a disservice to blacks.

The celebratory May 3 issue carries an advertisement for The Failures of Integration, a new book by Sheryll Cashin, a Georgetown Law School professor and former clerk for Thurgood Marshall. Derrick Bell, a former NAACP Legal Defense Fund attorney, has written that Brown was based on unwarranted faith in integrationist ideals and has harmed black education.

David Garrow, author of the Pulitzer Prize-winning biography of Martin Luther King, Bearing the Cross, believes that the standoffishness of the liberal-left from its handiwork is allowing conservatives to kidnap King’s birthday, permitting “right-wing politicians like President George W. Bush� to “use the anniversary for wreath-laying photo-ops designed to advertise their antiracist credentials.�

Brown still matters to the left, Garrow writes, because the power the Court seized in its Brown ruling can be used to mandate homosexual marriage. The Massachusetts court has taken the lead, and on May 17 homosexuals will be able to obtain state marriage licenses. This, Garrow writes, is a fitting tribute to Brown’s constitutional vision on its 50th anniversary.

Whether one looks with favor or disfavor on homosexual marriage, Garrow is correct. Brown gave the judiciary the power to impose its morality on society, regardless of legislation or societal values.

Brown has gained acceptance, because people have come to regard segregation as wrong. Brown got rid of a wrong and, thus, cannot be wrong itself.

ORDER IT NOW

This is fine as far as it goes. But Brown did something else. It ushered in kritarchy — government by judges — as Supreme Court Justice Stanley Reed recognized. Kritarchy is fundamentally at odds with the separation of powers and the character of the American political system. Now that judges rule, the fight over Court appointments has become a life and death matter for the two political parties.

Even worse, in place of good will and persuasion Brown substituted coercion as the basis for reform. May 17, 1954, is a day of infamy, because it is the day Marxism triumphed over liberalism in America.

Americans have forgotten that Brown was based in sociology, not in law. This was widely recognized at the time. “A sociological Decision: Court Founded Its Segregation Ruling On Hearts and Minds Rather Than Laws,� read a New York Times headline on May 18, 1954. James Reston commented that “the Court’s opinion reads more like an expert paper on sociology.� Columbia Law professor Herbert Wechsler, a consultant to the NAACP in the case, said that Brown would have to be “accepted on faith� as there was no constitutional principle that justifies the ruling.

That’s because the Brown decision was based on Swedish socialist Gunnar Myrdal’s argument that all Americans (even Northeast Liberals) are so racist that democracy would forever uphold segregation. To get rid of the great evil, an elite would have to seize power and rescue America from immorality.

With Brown, the Supreme Court elevated Myrdal’s doubts about American democracy above James Madison’s confidence in it. Ignoring Madison’s warning, the Court made itself a “will independent of the society.� In so doing, the Court upheld Karl Marx’s dictum that good will is not an effective force in human affairs.

A hundred years previously, Marx had ridiculed liberals’ reliance on good will to produce reforms. Morality, he declared, is merely a mask for class interests. Coercion alone decides class conflicts.

Myrdal applied Marx’s analysis to relations between races, just as feminists have applied it to relations between genders. Each scenario has an oppressor group and an oppressed group and requires an extralegal power to coerce a moral resolution.

This attitude is so widely spread today that it is taken for granted. It has fundamentally altered our vision of ourselves.
University of Virginia Law professor Michael Klarman has argued that good will was working, attitudes were changing, segregation was on the way out, and Brown was unnecessary. Although decided in the name of equality, Brown ushered in inequality before the law with the racial quotas and preferences that followed in its wake, in the end invading even freedom of conscience of the American people.

Brown’s true legacy is rule by judges, the destruction of equality before the law, the replacement of persuasion with coercion, the end of freedom of conscience, and the rise of insatiable racial grievances. Osama bin Laden, no doubt, is celebrating.

https://www.lewrockwell.com/2004/05/paul-craig-roberts/an-infamous-ruling/