Why CCRI is constitutional

...But in an amazing display of political incompetence, Dole and Kemp made tax reduction their centerpiece...

...Implicit is the understanding that the majority will respect the rights of the minority...

...The foregoing does no more than apply the principles of the Declaration of Independence: That to secure these rights [that is, those with which all men have been equally endowed by their Creator] governments are instituted among men, deriving their just powers from the consent of the governed . . . A republican government derives not any powers whatever, but only "just" powers from the consent of the governed...

...Voter cynicism aside, the tax-cut issue was of Lilliputian proportions in comparison with the question of whether our constitutional rights are derived from the natural and God-given rights of human persons or from their race, sex, religion, and ethnic origin...

...There are few today, we presume, who would deny that any state initiative restoring Jim Crow—no matter how large the majority that passed it—ought to be held null and void...

...According to Abraham Lincoln, the concessions to slavery in the original Constitution arose from the actual presence of slavery among the institutions inherited from the time when the states were colonies of Great Britain...

...Only by the latter alternative can the constitutionality of the California Civil Rights Initiative be defended...

...But the fight, expected to resume shortly before a larger panel of the Ninth Circuit, usefully clarifies a fundamental public issue...

...With Warren blazing the trail, the principles of the Constitution would henceforth be found not in a reactionary past but in an enlightened future...

...What is new here is the apparent willingness to block the direct expression of popular will in elections...

...We note not only that Harlan's opinion was ignored by the court in 1954, but that it has never been endorsed by any subsequent court...

...The Constitution could not have been ratified without these concessions...

...In the 39th Federalist, Madison says we may define a republic to be ...a government which derives all its powers, directly or indirectly, from the great body of the people...

...But there are those, even among the supporters of the initiative, who are blindly hostile to admitting the principles of the Declaration of Independence into constitutional jurisprudence...

...What Warren's opinion really meant was that it was how the justices felt about how the children felt—or about how they thought that the children felt (or ought to have felt...

...For many years now on college campuses, black students and black faculty in quest of "ethnic identity" have pursued policies of both intellectual and social segregation...

...The rights to be secured by constitutional government are antecedent to both majorities and minorities...

...The coincidence of the republican guarantee and the safeguards of slavery in the original Constitution is then only another feature of the anomaly arising from the necessity of ratification...

...But rights are objective, and feelings are subjective...

...The alleged "modern authority" was psychologist Kenneth Clark's experiments showing how children of different colors reacted to dolls of different colors...

...Harlan's dissenting opinion is a clear demonstration of how utterly superfluous it was to have recourse to the feelings of black schoolchildren to determine their rights...

...It was Justice John Marshall Harlan's 1896 dissenting opinion in Plessy...

...For it is yet another confirmation that, by the true original intent of the Constitution, the rights protected by the Constitution are the rights of human persons, without regard to their race or color or sex...

...The decision of the majority to confiscate the property of the minority cannot be justified by any vote...

...It is a pity that the repeated inclusion of the principles of the Declaration of Independence in acts of the Congress defining the republican guarantee has gone unnoticed...

...that determined what constitutional law would be...

...that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed," is essential to the preservation of our republican institutions...

...For Warren, the tests were a means of invoking a higher authority for the Constitution than the Constitution itself...

...ment of the Constitution could have accomplished what that government accomplished in the Civil War...

...In the last of his arguments, Lincoln pointed to Article IV, section 4, of the Constitution, which says that "the United States shall guarantee to every State in this Union, a republican form of government...

...With this precedent, the justices could decide what the Constitution meant by deciding what they wanted it to mean...

...The defenders of the California Civil Rights Initiative, standing upon the authority of Harlan's "color blind" Constitution, will have to realize that support for their position must come from outside of present-day jurisprudence, conservative no less than liberal.* Such support for "colorblindness" requires distinguishing the principles of the original Constitution from the compromises of that Constitution...

...Hence the founding fathers, had they taken what we might think a more principled stand against slavery, might actually have contributed to the ultimate success of slavery...

...Beginning with Nebraska in 1864, before the war had ended, and including Hawaii and Alaska, admitted in 1959, every enabling act provides that the constitution of the new state "shall be republican in form" and that there shall be in it "nothing repugnant to the Constitution of the United States and the principles of the Declaration of Independence...

...There is no caste here...

...Ending the harrowing contradiction in the antebellum Constitution between slavery and government by consent of the governed, this formulation represents the Union victory as much as the Civil War amendments...

...This raised the question of whether slavery was or was not in itself consistent with the republican form of government guaranteed by the Constitution...

...Our Constitution is color blind, and neither knows nor tolerates classes among citizens...

...It is a much greater error to think that the "popular will" is the ultimate arbiter of questions of this magnitude...

...And in his first inaugural address, he said: All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable...

...The flood of liberal judicial activism—including Roe v. Wade—followed directly from this precedent...

...that among these are life, liberty, and the pursuit of happiness...

...In respect of civil rights, all citizens are equal before the law....The law regards man as man, and takes no account of his surroundings when his civil rights, as guaranteed by the supreme law of the land, are involved...

...It did not rule out the possibility that whenever Negro schoolchildren had different feelings, segregation might be lawful...

...No possible alternative to the govern* For the record of conservative opposition to the recognition of any constitutional status of the Declaration of Independence, see my Original Intent and the Framers of the Constitution (Regnery...

...This is the point at which the distinction between judicial and legislative power broke down...

...District Court for the Northern District of California in defense of the constitutionality of the California Civil Rights Initiative notes that CCRI "essentially enshrines in California law Justice Harlan's dissenting opinion in Plessy...

...It is in fact an affirmation of the constitutional status of the declaration's principles as set forth in the Republican party platform of 1860: Resolved . . .That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution,—"That all men are created equal...

...The final word on the constitutional definition of a republican form of government may be found in the acts by which Congress has enabled new states to gain admission into the Union since the Civil War...

...The authority of the majority is derived from a moral consensus in which all share...

...Jack Kemp rarely makes a speech without invoking the name and party of Abraham Lincoln...

...And it tells us that equal protection of the laws must be understood to refer to the rights of human persons and not of any less inclusive group...

...But Judge Henderson operates in an Orwellian universe where the words of statutes and of the Constitution may be held to mean the opposite of what they mean according to common sense...

...The aforesaid unsophisticated citizen would naively assume that the words of the initiative and the words of the equal protection clause meant what they said...

...This joining of the guarantee of the republican form of government in the Constitution with the principles of the Declaration of Independence finally resolves the anomaly in the antebellum Constitution...

...Whatever they thought, he said, we today know that to segregate black schoolchildren generates a feeling of inferiority that may affect their hearts and minds in a way unlikely ever to be undone...

...As proved to be true, only the government brought into existence by the Constitution would be strong enough to control slavery and place it on a "course of ultimate extinction...

...Judicial usurpation of legislative authority is an old story," they say...

...It is a mistake, however, to think that a direct expression of popular will is more authoritative than the expression of that same will by an elected legislature...

...The former should not be decided by the latter...

...Warren's opinion opened the floodgates for a judicial activism that ever since has invented rights and remedies uncontrolled by any systematic juridical thought anchored in the historic meaning of the actual Constitution...

...In choosing which experts to believe, the justices were acting in perfect independence of both science and the Constitution...

...It must be conceded that this was the strongest of all proslavery arguments...

...Yet nothing in the concessions represented a compromise of principle...

...also, that so few prominent jurists today— the notable exception being Justice Clarence Thomas—subscribe to this understanding...

...Sober citizens would recognize not only that such an initiative violated the federal Constitution, but also that, like slavery, it violated rights with which we have been endowed by our Creator, rights the Constitution came into being to protect...

...That the Constitution contemplates "man as man," that it is "color blind," means neither more nor less than what the Declaration of Independence meant by "all men are created equal...

...Nor can a decision to wage aggressive war in order to plunder another nation...

...The doll tests, however, did not justify the conclusions Warren attributed to them, and it is doubtful that Warren even knew what was in the reports of Clark's research...

...But the story of the republican guarantee does not end here...

...that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression...

...This was the basic issue in the American Civil War, which pitted individual rights as proclaimed in the Declaration of Independence against collective rights, called states' rights...

...the question of whether individual rights or collective rights are the foundation of that "republican form of government" guaranteed by the Constitution to every state...

...But the reasoning of the court in arriving at this decision was anything but reasonable...

...It certainly outraged common sense to suppose that a law decreeing that there should be no preferences based upon race or sex discriminated against some because of their race or sex...

...Warren, in effect, turned his back on the intentions of those who framed and ratified the Fourteenth Amendment...

...The Confederates replied by insisting that republicanism meant self-government and that Lincoln, by threatening slavery, threatened their republican right to govern themselves...

...The argument from a "color blind Constitution" is the true ground, indeed the only rightful ground, upon which the fight to outlaw racial preferences can be won...

...Lincoln's message to a special session of Congress on July 4, 1861, features his refutation of the right of secession, the alleged right by which the states of the Confederacy defended the lawfulness of the withdrawal from the Union...

...Circuit Court of Appeals held last week when it lifted a lower court's injunction blocking CCRI...

...Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson (1896), this finding is amply supported by modern authority...

...In the years since Brown, it has often been found that in circumstances of sufficient cultural disparity, it is integration, not segregation, that causes feelings of inferiority in black children...

...This is the doctrine—the constitutional doctrine—of the California Civil Rights Initiative...

...To understand the present divorce of constitutional law from the Constitution—and from common sense—the most notable landmark is the opinion of Chief Justice Earl Warren, for a unanimous court, in Brown v. Board of Education in 1954...

...Yet Warren must have known, even in 1954, that psychology—and science generally—does not speak with a single voice...

...That Warren had deliberately turned his back on traditional constitutional interpretation is shown by the fact that another opinion, squarely within the framework of such interpretation, lay open before him...

...For if slavery and republicanism are compatible, then the principles of republicanism and the principles of the Declaration are not...

...This new jurisprudence would be that of a "living Constitution," emancipated from a dead past and keeping pace with the progress of science...

...Conservatives around the country have expressed indignation at the federal district court judge who blocked the implementation of the California Civil Rights Initiative...

...But when he had the opportunity, before a national audience, of making Lincoln's argument his own—of demonstrating once again why a house divided between collectivism and individualism cannot stand—he fell strangely silent...

...Then as now he could have found "experts" who, for a fee, would testify on almost any side of a question...

...Warren's opinion, based upon the hypothetical "feelings" of Negro children, did not reverse Plessy...

...Their effort may indeed have "no likelihood of success on the merits," as a unanimous three-judge panel of the Ninth U.S...

...State-enforced segregation of public facilities was inconsistent with the equal protection clause of the Fourteenth Amendment, Harlan had said, because, in view of the Constitution, in the eye of the law, there is in this country no superior dominant ruling class of citizens...

...For how we interpret the Fourteenth Amendment depends upon what it was in the antebellum Constitution that the Civil War amendments were supposed to correct...

...Paradoxical though it may seem, Lincoln said, it was even in the ultimate interest of the slaves themselves to make these concessions...

...The rights of blacks are indeed protected not because of blacks' color, but because of their humanity...

...that they are endowed by their Creator with certain unalienable rights...

...The rights of the Bill of Rights are protected by "the just powers of government," but they do not originate in those powers, nor are they dependent upon them for their existence as rights...

...But what is a republican form of government...

...We should have had a national debate in 1996 on Harry Jaffa is a distinguished fellow at the Claremont Institute...

...In the Notes on Virginia, Thomas Jefferson proclaimed, "It was not an elective despotism that we fought for...

...Clinton easily neutralized the Dole/Kemp proposals by offering targeted tax cuts instead of general ones...

...An amicus brief submitted recently to the U.S...

...In fact, Warren's opinion has probably done more harm than any since Taney's in Dred Scott...

...As Madison says elsewhere, the majority may do anything that might be done rightfully...

...Was the equal protection clause designed to secure the rights of Negroes because they were black or because they were human...

...To the intelligent citizen unsophisticated in the arcana of present-day constitutional law, what was truly remarkable about Judge Thelton Henderson's district-court ruling was the presumption that the California Civil Rights Initiative violated the equal protection clause of the Fourteenth Amendment...

...This, despite overwhelming evidence that the American people—after Bush in 1988 and Clinton in 1992—were not prepared to believe campaign promises to cut taxes...

...Everything turns upon the answer to that question...

...How, Lincoln asked, could the United States fulfill such a guarantee if a state could withdraw from the Union...

...The decision in that case quite reasonably held that segregated public schools violated the equal protection clause of the Fourteenth Amendment...

...Why CCRI Is Constitutional By Harry Jaffa It is good news that the Clinton administration, the ACLU, and the rest of the "civil rights" establishment are fighting to have the California Civil Rights Initiative ruled unconstitutional...

...And again, it is essential to such a government that it be derived from the great body of the society, not from . . . a favored class of it...