As written here before, the Fourteenth Amendment entirely changed America from a natural rights regime, which prohibited government from prohibiting certain things we could do in a state of nature, to government-created civil/human rights, which serve as a mandate for centralized control and big government.
With two recent decisions, the Supreme Court reversed this, going to back to the Fourteenth Amendment as it was described to those who voted for it in Congress, including the electoral history of the Civil Rights Act of 1866 upon which it was based.
Back then, the idea was to prevent the states from having two-tiered systems where Whites received one level of service from government and Blacks received another, mainly because the South was trying to keep its African population from having too much power.
As it turns out, the South was right about not just Africans but any diversity, as we see when non-Whites of any stripe take over such as in Detroit, New York, Los Angeles, Houston, San Francisco, Baltimore, and whoever is supporting the Mike Pence campaign.
The supposedly “extremist” conservative court relies on a doctrine known as originalism which says that we interpret the laws as designed instead of with single acts re-writing our Constitution as the Left likes to do. Opposing the Left is now seen as “radical” and “extremist” if not “fascist.”
Originalism however offers continuity: it keeps the whole of the system as designed intact, and therefore allows us to build on what works, a conservative principle, instead of re-inventing it for symbolic popularity as the Left wants to do.
More importantly, however, these decisions show equality coming into conflict with itself: if the goal is to make everyone equal, which inevitably involves taking from the strong to give to the weak, at some point the strong regain their rights because it is clear that their position is not created by law.
With the first decision, the Supreme Court rejected Affirmative Action by ironically using the 14A, since to take from the strong violates their civil rights as surely as penalizing the weak would, bringing equality into a clash with itself.
This rings of natural rights. Instead of government trying to enforce equality, it backs off and allows nature to sort things out, which means that merit instead of de facto racial quotas decide college admissions:
“The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” he writes. “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”
It doesn’t get clearer than that, in what is the most significant opinion of the Chief’s career. “Eliminating racial discrimination means eliminating all of it,” he writes.
The Court’s opinion is especially bracing because it clears up a half-century of muddled Supreme Court rulings. In 1978 in Bakke, it opened the door to racial preferences in a plurality opinion by Justice Lewis Powell. When the issue inevitably came up again in Grutter v. Bollinger in 2003, the Court again fudged by declaring the narrow use of race kosher while adding that it should not be necessary in 25 years.
Here equality comes into conflict with itself. Equality is only ever proven by equity, a state which can only exist when all of society is centrally controlled like in the Soviet state. To take from one to achieve equity for another violates the civil rights of the first party.
This means that the interpretations of American law relying on that thinking have been incoherent, but were tolerated as a means of bringing Blacks to a state of equality. After a Black president, two years of race riots, endless subsidies, and lots of legal activity, that has not happened.
What has happened however is that free markets, by rewarding those who can perform, have created a niche market for Black products made by Black people, and so now Black America has the basis of not only its own middle class, but eventually its own independence movement.
For this reason, the Court felt that affirmative action had run its course, but even more importantly, that now the rights of minorities were clashing with the rights of the majority, creating an infinite egalitarian doom loop where the weak take from the strong until all are weak.
Similarly, the justices asserted majority rights in terms of speech, re-reading the 14A as protecting individuals, instead of existing as a wealth and power transfer program from the strong to the weak:
When the Supreme Court held that the Constitution gives same-sex couples the right to marry, Justice Samuel Alito warned that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” Dissenting in Obergefell v. Hodges (2015), he wrote: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
Lorie Smith, another Denver-area client of Ms. Waggoner, owns 303 Creative, a website-design business. Like Mr. Phillips, she objects on religious grounds to same-sex weddings, and she says she won’t make a website celebrating one. The Justices ruled 6-3 that this is a constitutionally protected right to free speech. Colorado “seeks to force an individual to ‘utter what is not in [her] mind’ about a question of political and religious significance,” Justice Neil Gorsuch wrote for the court. That “is something the First Amendment does not tolerate.”
It is easy and well to say that we should protect minority groups, but when this translates into forcing the majority to endorse them, it becomes as tyrannical as the Soviet Union, and the court is now reverting from that to a natural rights view.
In a natural rights view, the government cannot stop citizens from exercising rights that they had in nature such as speech, thought, religion, association, and personal behaviors. However, unlike how the 14A has been interpreted, it does not mean that government forces people to tolerate each other.
Under natural rights, having an all-White town or city was permissible; under civil rights, it is not. Natural rights allows people to be homosexual, but also allows others to avoid hiring, interacting, or living near them. Natural rights also means natural sorting of humans, not forced equality.
In terms of compelled speech, which conformity to edicts from the ideological types falls under, it means that the state may not be able to ban homosexuality but it also cannot force you to interact with homosexuals if that is your choice.
Even better than the freedom of religion, this is the freedom of speech and choice, and by enshrining it as a re-interpretation of American law, the Court has opened the doors to flight from ideological conformity as dictated by political correctness in the name of pluralism.
We get a more realistic view of pluralism with this change: instead of banning Nazis, we expect Nazis, Africans, and Rabbis to walk together down the street and respect each others’ beliefs, behaviors, and attitudes.
Ripple effects from both of these decisions will be profound, since affirmative action is the archetype of most civil rights laws, and without their 14A backing, these are going to collapse, and business will follow:
The ripple effects of the Supreme Court’s decision on companies could be extensive and felt for years to come, executives, employment lawyers and corporate advisers say. Rules for federal contractors, which require submission of a workforce analysis based on race, gender and other characteristics, could get a closer look, they say.
As Alito noted, this is the long fallout from Obergefell v. Hodges that a few observers warned about. When government swings the pendulum too far in enforcing equality, it discriminates against the successful founding majority and what they do that is functional.
It creates a regime of ideological conformity as a result, which takes us down dangerous paths. While ultimately the 14A needs to be repealed, this originalist interpretation that preserves the consistency of the Constitution has stopped the bleeding for now.