3,695 words

Jesse Merriam
How We Got Our Antiracist Constitution: Canonizing Brown v. Board of Education in Courts and Minds
Claremont Provocations Monograph Series, 2023

“Congress shall make no law respecting an establishment of religion . . .” — First Amendment of the United States Constitution, 1791

“Equal opportunity is the bedrock of American democracy, and our diversity is one of our country’s greatest strengths… It is therefore the policy of my Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government.” — President, Joe Biden, “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (January 21, 2021)

This is what an “executive order” from a feeble-minded executive looks like. Where to begin with this clotted mass of doublespeak? Let me suggest that “equal opportunity” wasn’t conjured up as the “bedrock of American democracy” until the passage of the Civil Rights Act of 1964, 173 years after Congress amended the Constitution to prohibit the creation of a state religion. This legislation, among other things, authorized the creation of the Equal Employment Opportunity Commission (July, 1965), the first of many agencies the government would use to enforce initially reluctant obedience to the dictates of a new moral order given that the old one was suddenly found wanting in “diversity.” “Equal opportunity” as a goal must give way to “equity,” as the country’s leading moral philosopher, Kamala Harris, explains. Making us more “diverse” and achieving “equity,” however, requires unrelenting coercion. The mid-1960s marked the ramping-up stage.

Which bring us to the “diversity is our strength” twenty-first-century America, with coercion in the full-throttle stage. The First Amendment has been abandoned. There is a state religion: the religion of civil rights. It has all of the requisite religious trappings: its theology of “equality” and “diversity”; its exalted Holy Man and Prophet, Martin Luther King, Jr.; its elder-deacons, Obama and Oprah; its saints, Rosa Parks, Thurgood Marshall, and John Lewis; its martyrs, Emmitt Till and George Floyd; and its sense of mission expressed in awe-inspiring, millennialist language: “The arc of the moral universe is long, but it bends toward justice.”

With a state religion now in place, political discourse comes at us loaded up with religious imagery and themes: moral failing (slavery, segregation, red-lining); calls for confession (apologies), the need for atonement in the form of reparations; a future where the “lion will lie down with the lamb” — “systemic racism” extinguished . . . someday. Our politicians sound like preachers sermonizing their flocks with the doctrine of “original sin” (“racism”) and urging the “mortification of the flesh”– “Mortify therefore your members which are upon the earth . . .” (Colossians 3:5) — mortification being white self-abnegation and the extinction of “whiteness.”

Consider the Remarks by President Biden at the “Signing of an Executive Order on Racial Equity”:

I ran for President because I believe we’re in a battle for the soul of this nation. And the simple truth is, our soul will be troubled as long as systemic racism is allowed to persist . . . It’s time to act because that’s what the faith and morality calls us to do.

Those eight minutes and 46 seconds that took George Floyd’s life opened the eyes of millions of Americans and millions of people around — all over the world. It was the knee on the neck of justice, and it wouldn’t be forgotten. It stirred the conscience of tens of millions of Americans, and, in my view, it marked a turning point in this country’s attitude toward racial justice.”

Religiously speaking, the “knee” on George Floyd’s “neck of justice” was accorded by the Reverend Joe Robinette a hallowed status not unlike that of the “Passion of Christ,” whose suffering on the cross — minutes and seconds endured, unlike St. George, yet to be determined — brought the possibilities of redemption to mankind.

For those of us who have yet to embrace the state religion of civil rights, worship at the altar of equality, and renounce our “white privilege,” I highly recommend How We Got Our Antiracist Constitution: Canonizing Brown v. Board of Education in Courts and Minds by Jesse Merriam. Merriam, J.D. and Ph.D., is an Associate Professor of Government at Patrick Henry College in Purcellville, Virginia. How We Got Our Antiracist Constitution (hereafter OAC) explains how the civil rights movement used the highest court in the land to subvert the Constitution, undo the rule of law, and give the state unlimited power to combat its designated evil of “racism” and impose “diversity.”

Professor Merriam begins by noting the misplaced conservative panic over a proposal by anti-racist Ibram X. Kendi — a constitutional amendment that would create a “Department of Anti-racism” (DOA). Speaking of coercion: the DOA, “comprised of formally trained experts on racism,” would police every nook and cranny of American society for evidence of “racism” and “racial inequality,” and “would be empowered with disciplinary tools to wield over and against policymakers and public officials who do not voluntarily change their racist policy and ideas.”

That ship, Merriam regretfully reports, has already sailed:

In fact, we already have something that is arguably more powerful than an antiracist constitutional provision. We have an antiracist constitutional order that makes racial discrimination our greatest evil and racial diversity our greatest good. (OAC, p. 3)

“Racial justice and equal opportunity,” as Joe Biden affirms above, “is the responsibility of the whole of our Government.”

Though brief — OAC is 50 pages in length, including endnotes – it delivers in succinct, superb scholarly prose what is promised by the title: an understanding of how anti-racism has become the foundation of the American legal system, and how Brown v. the Board of Education (1954) (hereafter Brown) has led to the evisceration of the protections embedded in the original Constitution.

How Brown has led to our anti-racist Constitution, Merriam explains, is through a process called “canonization” by which “a single Supreme Court decision comes to control constitutional theory, debate, and interpretation” (OAC, p. 3). Canonization of a Supreme Court decision elevates it to the status of Holy Scripture. Its reasoning and values become the standards to which all subsequent judicial decision must conform. Its principles are inviolate, forming foundational moral imperatives used to interpret the law and shape government policy.

Canonization confers a sacred quality on a Supreme Court decision, so that its underlying values take on a quasi-religious status. The result is that any value or principle derived from that decision must prevail over any competing norms, including those expressed in the text of the Constitution itself. (OAC, p. 4)

The canonization of a Supreme Court decision goes through three distinct phases. The first is what Merriam calls “the construction phase,” whereby “a Supreme Court decision initiates a groundbreaking shift in constitutional law” (OAC, p. 5). In the case of Brown, this involved preparation, decades in the making, to overcome political, cultural, and intellectual resistance with planning for a “ground-breaking” (revolutionary) decision. Brown’s construction phase goes back to the late 1920s when the National Association for the Advancement of Colored People (NAACP), guided by then-Harvard law professor and NAACP legal advisor Felix Frankfurter, used the proceeds of a $100,000 grant from The Garland Fund to develop a litigation strategy to challenge racial segregation — one that would culminate in the victorious Brown decision in 1954.

The effect of the Brown decision in the construction phase was to establish two “revolutionary” principles:

One principle was that feelings of racial inferiority have a constitutional status, thus raising the possibility that any governmental action creating such feelings, even indirectly through private actors, would be subject to close judicial scrutiny. The second principle was that racial integration is the remedy for these feelings of inferiority. (OAC, p. 7)

The evidence of “feelings of racial inferiority” presented to the Court were the results of “the doll test” conducted by psychologists Kenneth and Mamie Clark. The Clarks were the first blacks to obtain doctorates in psychology at Columbia University.

Drs. Clark used four dolls, identical except for color, to test children’s racial perceptions. Their subjects, children between the ages of three to seven, were asked to identify both the race of the dolls and which color doll they prefer. A majority of the children preferred the white doll and assigned positive characteristics to it. The Clarks concluded that “prejudice, discrimination, and segregation” created a feeling of inferiority among African-American children and damaged their self-esteem.

The Brown decision is particularly remarkable for being the first Supreme Court case in which evidence from psychological research and argumentation was a central determining factor in its decision.[1]

From Brown, 347 U.S. at 494:

To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone . . . Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

The long-term revolutionary impact of these two principles from the perspective of constitutional law was to outlaw private discrimination and to compel “diversity”: “Put together, these two principles stood for what was then a revolutionary idea: private discrimination is a constitutional evil and racial diversity is a constitutional good” (OAC, p. 7).

With these two principles in place, desegregation-ending litigation would move relentlessly forward into spheres of American life beyond public education. By the 1970s, Brown transitioned into what Merriam calls the “submission” phase of canonization: the forces of resistance are defeated and accept the new principles as a fundamental feature of the law of the land: “Whereas the construction phase has a broadening effect, enlarging the scope of the canonical case to encompass new principles, the submission phase has a deepening effect, so that those principles can seep into the bedrock of law” (OAC, p. 11).

Prior to submission, substantial resistance to the decision came from the segregated South, of course. President Eisenhower, as he contemplated the prospect of forced desegregation in the southern states, would confess to Chief Justice Earl Warren at the White House:

These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.[2]

But resistance also came from the North. Conservative intellectuals of the National Review such as Frank Meyer, James Burnham, Willmoore Kendall, Richard Weaver, and William F. Buckley himself rallied with polemics against the Brown decision:

L. Brent Bozell II (Buckley’s brother-in-law) published The Warren Revolution (1966), a nearly four-hundred-page polemic against what the Warren Court was doing to constitutional law. The first chapter of the book was devoted to how Brown represented a revolution against the American constitutional order, principally because it was inconsistent with the purpose and text of the Fourteenth Amendment. (OAC, p. 12)

There were liberal critics as well: New Dealer legal scholars Judge Learned Hand and Herbert Wechsler wrote essays critical of the decision. Wechsler, who favored racial integration, Merriam wrote that he “could not find a neutral basis for extending the freedom of association to parents who preferred to send their children to racially diverse schools while denying the freedom of association to parents who preferred to send their children to racially homogeneous schools” (OAC, p. 13).

Submission to Brown from the critics would follow, however. The liberal critics caved first, but as Merriam shows, the conservatives as well would follow suit — going along to get along, it seems — and submit to Brown’s new moral imperatives. Nixon advanced affirmative action with “the Philadelphia Plan,” and William Rehnquist, in order to be confirmed by the Senate as Chief Justice in 1986, had to pay homage to Brown:

But once again, he [Rehnquist] professed his fidelity to Brown. And this time he had the opportunity to explain that his 1952 memo [critical of Brown] was written to reflect Justice Jackson’s position rather than his own personal views. (OAC, p. 18)

By the mid-1970s, even the National Review was moving submissively in the “right” direction:

In 1973, National Review featured two non negative treatments of the Brown decision, with each article criticizing the decision but finding something good to say about it. Notably, these two articles were written, respectively, by William F. Buckley and James Kilpatrick — two men who, just a decade earlier, had been the publication’s fiercest critics of Brown. (OAC, p. 17)

After submission comes the third and final stage, what Merriam calls “the weaponization stage” and the achievement of full canonization. It could also be called “the tergiversation stage”: betrayal by the conservatives. With weaponization, the former critics “marshal the decision and its values for their own legal and political agenda” (OAC, p. 19).

At this point, the case takes on a “jurisgenerative or lawmaking role, producing legal principles far outside its original context and defeating any legal norms that stand in the way of these principles. The greater the law-making power of the canonical case, the closer to the core of the canon the case becomes. (OAC, pp. 19-20)

[R]everence for Brown was fully on display in 2004, when National Review celebrated Brown’s fiftieth anniversary, with several articles exploring how the decision represents the American ideal. (OAC, p. 20)

The original critics from National Review had moved obediently across the entire spectrum from resistance to submission to the kind of veneration that bespeaks of religious inspiration and conversion. Brown had now become the source of “eternal truths,” a “hallowed decision,” and “definitively established a magnificent new public morality that racism is wrong” (OAC, p. 20).

The religious allure of the civil rights movement and the rewards of church membership were just too tempting for conservatives to resist. While Merriam does not go down this road, I would suggest that they “weaponized Brown” by expropriating its “new” moral authority — its repudiation of “separate but equal” — and used it to recreate a “color-blind” image that would make them look culturally fashionable and appeal to the influential movers and shakers in the country’s power centers and the opinion-shaping industries that were moving steadily left.

Conservatives today continue trying to prove that they are believers. They brandish Martin Luther King’s “content of their character” from his “I Have a Dream” speech as proof of their devotion to equality, and accuse “liberal Democrats of being the real racists!” They have become upright deacons in the Church of Civil Rights, committed to “diversity” and quick to purge their own writers, such as John Derbyshire at National Review, who fell into the deviationism of “race realism.”

Merriam cites from the testimony of the “conservative” Amy Coney Barrett in her Supreme Court confirmation hearing in 2020, telling of her reaction to the death of George Floyd:

She explained how, as a mother of two adopted black children, she found George Floyd’s death “very, very personal” — so personal that, on the day of Floyd’s death, she “wept” with her black daughter over the “kind of brutality” that “would be a risk to her [black] brother or [future] son.” (OAC, pp. 22-23)[3]

Merriam adds that prior to Brown’s canonization, such a lachrymose confession would have been regarded as simply “bizarre” and inappropriate in a “confirmation hearing focused on judicial temperament and legal acumen” (OAC, p. 23).

With this conservative weaponization of Brown, the canonization process was now complete. The result is the political world we inhabit today, where every public official — whether Republican or Democrat, conservative or liberal, originalist or living constitutionalist — must adhere to the belief that Brown constitutes the moral core of our constitutional order. (OAC, p. 22)

With Brown’s canonization, as Merriam demonstrates, racial discrimination as our greatest constitutional evil and racial diversity as our greatest constitutional good are now the unquestionable legal-political “truths” that law and public policy must acknowledge and to which they must conform:

The canonical status of Brown has become such a fundamental part of our legal landscape that legal scholars have claimed there is a “Brown Test”: No constitutional theory or interpretation is permissible within our legal system if it is inconsistent with the Brown decision or any of the principles and values that follow from that decision. (OAC, p. 5)

The result, Merriam goes on to show, is that the “Brown Test” has given the federal government nearly unlimited power to implement and enforce an “antiracist-diversity” agenda. Federalism, with its prescribed federal-state division of authority,[4] — the “state action” doctrine, which gives private actors and associations a sphere of autonomy and limits federal judicial review of private interpersonal social relationships[5]— and freedom of association have all been severely curtailed or abrogated by Congressional civil rights legislation and upheld by the Supreme Court.[6]

[B]efore the civil rights revolution made private racial discrimination a constitutional evil, federal and state courts regularly upheld the freedom of association as a central feature of liberty. (OAC, p. 27)

But the real firepower [to police freedom of association] came from two statutes: the Civil Rights Act of 1964 (which limited the freedom of association as applied to public accommodations, private employers, and private institutions receiving federal funding) and the Fair Housing Act of 1968 (which extended this limitation to real estate transactions). (OAC, p. 28)

So, in coming to understand Brown’s canonization process and the emergence of our anti-racist Constitution, one must conclude that Americans today find themselves with greatly diminished legal, constitutional protection against a monolithic state operating zealously in the grip of ideologues who have elevated “racism” to the status of ontological evil to be overcome by “diversity,” its antithesis of ontological goodness.

Those Americans capable of logical thinking have to contend daily with the absurdity peddled by the state religionists, including the idea that to achieve the goodness of “diversity,” which will end “racism,” we must submit to and “celebrate” state-enforced racial discrimination: “In this system, racial discrimination can never be permitted unless it is used to promote diversity, in which case racial discrimination is not only permitted but required” (OAC, p. 35).

Yes, it is clearly a contradiction: Eliminating the evil of racism requires more racism. The problem with this is that the anti-racists don’t care, and to offer this contradiction as an argument against them — as conservatives have never learned — has never worked against the antiracist-racist conundrum of affirmative action which fights racism with racism. It never will. Ideologues aren’t bothered by contradictions, because they live in an alternative universe where contradictions don’t matter if they are troublesome.

With what Merriam offers, I heartily concur:

A successful attack on affirmative action will therefore require a broader challenge to the antiracist constitutional order. This will require depathologizing race as a constitutional matter . . . In a healthy constitutional system, there can be no Brown litmus test. (OAC, p. 36)

“Depathologizing race” means that we must reject “racism’s” evil ontological status and scrutinize it empirically, sociologically, i.e. “realistically” — not theologically. Doing so would shut down “racism’s” demonizing function and push the anti-racist demagogues such as Kendi out of the mainstream to the ignorable outer fringes — leaving the rest of us free from their hectoring and intimidation to cope practically with the actual realities of race. Depathologizing race would also take the “diversity”-arrow out of the anti-racist’s quiver, since the “evil” they keep applying it to as a “remedy” has no remedy. It would revert from being a hortatory speech act back to its original use as a value-free noun to indicate “variety.” Perhaps 200 years from now, cultural anthropologists will look at the current preoccupation with “systemic racism,” “diversity, equity, and inclusion,” “microaggressions,” and the “arc of the moral universe” as the pathological effects of a cult that spread widely to populations susceptible to mass hysteria.

Merriam proceeds along the path of “depathologizing race” circumspectly, limiting himself to the argument’s legal and constitutional dimensions:

This means that the two moral axioms arising from the canonization of Brown — that privately expressed racial discrimination is uniquely evil and racial diversity is uniquely good — must be subject to examination. We must be free to explore when private discrimination is protected as a constitutional right. (OAC, p. 36)

Yes, but given the current configurations of cultural-political power, how to roll Brown back and dispose of the ubiquitous ideological baggage that made it possible? Would it be a Sisyphean task? I am pessimistic. Might the Constitution be so mangled by the anti-racists as to make it unsalvageable?

In any case, Professor Merriam’s essay is splendidly written, insightful, and a must-read for anyone seeking an understanding of how the religion of civil rights has corrupted the Constitution and turned our legal system into a moralized weapon used to punish the majority of Americans for sins they never committed, and to coerce “diversity” — the negation of our freedom of association.

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Notes

[1] Ellen Herman, The Romance of American Psychology: Political Culture in the Age of Experts (Berkeley: University of California Press , 1995), p. 195.

[2] Frederick Schauer (1997), “Generality and Equality.” Law and Philosophy. 16 (3): 279–297.

[3] Judge Barrett’s account of her reaction to reports of George Floyd’s death was extremely distressing to read. I couldn’t but wonder that if she had been the presiding judge at the Derek Chauvin trial in Minneapolis whether the travesty that was its outcome would have been the same.

[4] “[T]he Tenth Amendment has essentially been read out of the Constitution, so that it now has no force under Supreme Court case law.” (OAC, p. 25

[5] “Homeowners, restaurants, landlords, private schools — these are paradigmatic private actors. Before the civil rights revolution, it would have been unfathomable to consider them state actors.” (OAC, p. 27)

[6] Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) was a landmark Supreme Court decision that gave the Congress the power to force private businesses to abide by Title II of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, religion, or national origin in public accommodations. Griggs v. Duke Power Co., 401 U.S. 424 (1971)  was a court case argued before the Supreme Court on December 14, 1970 concerning employment discrimination and the disparate impact theory, and was decided on March 8, 1971.