Paul Craig Roberts

June 13, 2001

American law schools should terminate their constitutional law courses, as the subject no longer exists. Judicial law has replaced constitutional law. Formerly, judges scrutinized legislation to ensure its conformity with the Constitution. Today, judges are legislators themselves, and there is no branch of government to hold judicial legislation accountable to the Constitution.

Constitutional law died in 1977 when Harvard legal scholar Raoul Berger was excommunicated from American liberalism for publishing a legal masterpiece, "Government by Judiciary." Berger, a man of the left, has nothing in common with today's politicized faculty that crafts its arguments to serve a political and social agenda instead of the truth.

Although Berger might have favored the outcomes had they been achieved constitutionally through legislation, he realized that the Supreme Court's school desegregation and abortion rulings usurped legislative authority. Berger objected to the Supreme Court misrepresenting the personal policy choices of justices as constitutional interpretation.

This, Berger believed, would permit any political faction that gained control of the Court to lead the country in directions contrary to the will of the people, violating the intent of the Constitution.

Berger spoke truth grounded in impeccable scholarship. His message was badly received by politicized liberals determined to use the judiciary to remake the country according to their lights. Berger, perhaps the finest legal scholar of his age, was savaged by a professoriate that believes its ends justify the means.

From the standpoint of corrupt liberal elites, Berger's other great failing is his confidence in the American people. Berger believed that free people achieve reforms through debate and persuasion, not through judicial coercion. Once the ends justify the means, any impatient faction that gains five votes on the Supreme Court can inflict Nazi- and communist-style horrors.

An immigrant from Russia, Berger was aware that moral fervor to perfect society drove the communist exterminations of so-called "oppressor classes." Today, we hear our own intellectuals spit out "white hegemonic power structure" with the same fury that Bolsheviks spoke of the bourgeoisie and Nazis spoke of Jews.

In the class and race exterminations of the 20th century, victim groups were first stripped of equal standing in law. With this lesson to guide them, why have American liberals abandoned their once staunch defense of equality in law?

The post-WWII civil-rights movement, which set out to achieve the promise of equal opportunity, has instead used courts and regulatory agencies to create a regime of legal inequality in order to advance more rapidly the economic and social positions of nonwhites. Legal preferments exist for nonwhites in university admissions, employment, promotion, government contracts and discrimination lawsuits.

These unconstitutional preferments were supposed to be temporary expedients to jumpstart racial integration. However, despite a few state referendums and federal district court rulings, racial preferments have established durability for more than three decades.

The original U.S. Constitution that Berger well understood is now dead. Its essential feature -- equality in law -- has been replaced by differential group rights based on skin color, gender, disability and, sooner or later, sexual orientation. Differential group rights, of course, defined the feudal-aristocratic regimes that liberalism overthrew.

For American liberals, the socialist principle of equal outcomes has displaced the liberal principle of equal opportunity. Advocates of equal outcomes regard defenders of the original Constitution, such as Raoul Berger, as defenders of inequality. Berger's arguments are dismissed, along with the Founding Fathers and the Constitution itself, for defending the "immoral white male hegemonic order," a social construct designed to oppress women and blacks.

Most Americans are unaware of the revolution that has occurred in their constitutional order. Equality in law and equality of opportunity exist only as vestiges of the old order that is being overturned with assaults on merit-based university admissions and, in the recent words of a corporate CEO, on "the sea of white faces" that fill the management ranks.

How does Ford Motor Co.'s dismissal of white managers to make room for black ones differ from the dismissal of Jews from German universities and professions to make room for Aryans? How do our racial quotas differ from the law promulgated by Hitler in 1933 limiting the admission of Jews to universities to the percentage that Jews comprised of the German population?

These questions have gone unaddressed for more than three decades. When someone raises such questions, Democrats shout "racist" and Republicans bury their heads in the sands of schemes to recruit racial minorities into the GOP.

After three decades of unconstitutional racial quotas, are quotas now permanent? Do nonwhites have squatters' rights in preferments? Are the "temporary" legal privileges now an entitlement? Has the social pendulum swung back toward the status-based legal orders of a bygone era?

Paradoxically, it is the liberals who have turned back the clock.

©2001 Creators Syndicate, Inc.