At the beginning of this nation, the Founders had in mind that, of the three branches of government based on Montesquieu’s idea of the separation of powers that evolved into the American concept of “checks and balances”, the legislative branch, as representative of the sovereignty of the people, would be dominant and the judicial branch would be inferior. Of course, this balance was altered significantly with the decision in Marbury vs. Madison in 1803, which, in effect, made the Supreme Court the final arbiter of the constitutionality of laws. With this ultimate power over the years since, the Court has produced some shocking results, many of which (the Dred Scot decision and Plessy vs. Ferguson, for examples) were later corrected by the Court itself, by constitutional amendment, or by legislation. However, the recent Supreme Court term has made it abundantly clear to me that we have now reached the point where judicial overreach is a serious threat to representative democracy (see “The End Of Democracy Debate”, September 2000). Possibly not since the Dred Scot decision of 1857 confirming a property right in owning slaves has there been more ominous language written by a Supreme Court majority or language more at variance with the ordered liberty envisioned by the Founders than that in the University of Michigan affirmative action cases (more on this below) and the Lawrence vs. Texas sodomy case. Again, ideas have consequences, and, as Robert Bork warned in his book, Slouching Towards Gomorrah, the ideas of a general and undefined right of privacy and to “personal dignity and autonomy” have now morphed into the radical individualism embodied in the now famous “mystery passage” in the majority opinion in Planned Parenthood vs. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Really?

At issue here is much more than the particular facts of the cases. What is at stake is the sanctity of constitutional law and the sovereignty of representative government, particularly when they come into conflict with the current “political correctness” of the underlying issue. Columnist Jonah Goldberg has noted that the entire culture is now soaked with the moral relativism implicit in postmodernism, the central assumption of which is that independent moral judgments are impossible. Most people would prefer it otherwise, but the reality is that we are in a war over the future of our culture. There are values at stake here that will determine the fate of the American idea. The public square, i.e., the legislative and political process, is the proper arena in which to fight the battles of this war, and to relegate them to the judiciary is a complete failure of leadership on our part.

Regular readers know that Margaret Thatcher is one of my heroes, and her latest book, Statecraft, did not disappoint. In fact, it added to my appreciation of her depth and common sense approach to policy. The book’s subtitle, Strategies for a Changing World, is appropriate, for it is a sweeping tour of the world’s conflicts and policy challenges, with insights that are not available to the average observer. There are chapters on every region, outlining the critical issues and players, each followed by the definitive policy recommendations one would expect from this lady of so much depth of conviction. Of particular attraction are the chapters on the European Union and her battles over the years over the related issues of the delegation of British sovereignty; her recollections on the final victory in the Cold War for which she deserves so much credit; the Russian “enigma”; the Balkan Wars; and her postscript on the historical British legacy of freedom and the rule of law as originated with the Magna Carta. But she is at her best in expressing her admiration for “the American achievement” and the leadership role the United States has played and must continue to play in world affairs. No surprises here–the book is dedicated to Ronald Reagan.

In the immediate aftermath of the momentous and disappointingly muddled decisions by the Supreme Court in the two University of Michigan affirmative action cases, I had in mind an essay summarizing my thoughts, particularly on the resulting tragic enshrinement of race-based “diversity” as a compelling public interest overriding the 14th Amendment. However, here I have set aside my own thoughts, which I have previously expressed on several occasions (“The God Of Diversity”, March 2001, “Affirmative Action Update”, September 2001, “When Will They Get The Message?”, January 2002, “The SAT, Diversity, And Cultural Literacy”, April 2002, and “On Affirmative Action And Misplaced Priorities”, February 2003), in lieu of those of Diana J. Schaub from a recent issue of “Academic Questions”, on which I cannot improve:

“When affirmative action was adopted more than a generation ago, it was widely understood to be a violation of the fundamental principle of color blindness. It was justified as a temporary expedient to reverse the effects of discrimination and exclusion. In other words, it was thought to be a necessary evil—desirable in the circumstances, but not desirable in and of itself. However, privilege and preference, once established, are not readily relinquished. To make the policy permanent a new rationale was needed: hence the call for “diversity”, which makes race-consciousness a positive good. “Diversity” dismisses the old standard of color-blindness, declaring it not only impossible, but undesirable. This movement from affirmative action to diversity parallels the transformation in antebellum thought which began by grudgingly recognizing slavery as a necessary evil and ended by hailing it as a positive good (the better to maintain race-based privileges). I don’t mean to suggest that the injustice of quotas is on a par with the injustice of slavery but I do mean to say that the doctrine of the equality of rights-bearing individuals would condemn both. It makes no difference which group—white or black, majority or minority—is arguing for (or being benefited by) the permanence of race-based preferences. If it were understood that the genealogy of the “diversity” argument owes more to (John C.) Calhoun, who pioneered the shift from the constitutional protection of individual rights to group rights, than to the Declaration of Independence’s assertion of natural human equality, then the generous lip-service paid to the notion might become less fashionable.”

Unfortunately, we are now faced with the reality that “diversity”, along with “tolerance”, both improperly understood under currently politically correct definitions, have become our twin civil religions, firmly embedded in our civic, educational, business, and cultural institutions and, thanks to the imperial judiciary, in our jurisprudence.

A couple of months ago, Newt Gingrich was highly visible speaking and making the rounds of the various talk shows with his call for major reorganization of the U. S. Department of State, criticizing its institutionalized duplicity and incompetence in the process. The furor settled down, but my immediate thoughts were that it is about time a high profile commentator gave voice to this problem. For much too long, particularly in an administration that prides itself in the primacy of freedom, when given a choice, our State Department has almost always opted for “stability” over the advance of freedom. The apparent reason is that there has long been embedded in the career bureaucracy an aversion to policies designed to encourage and assist the “messy” roll back of statism/authoritarianism/totalitarianism, often resulting in an obvious disregard for Presidential leadership. The coming transformation of the Islamic world offers a great window of opportunity to transform the State Department at the same time. I was reminded of this opportunity by a recent article by Ronald Bailey, who makes several insightful points, the first of which is the observation that the spread of liberal, free market democracy in the 20th century was largely accomplished by force of arms—mainly American. A second point is that a world that remains only half-free is inherently dangerous to liberty at home and abroad (those who feel threatened by our growing domestic security apparatus, take note). But the most important point is that we should return to the very productive Reagan Doctrine of assigning a high priority to supporting, training, and financing insurgent movements aimed at overthrowing tyrannical regimes. This is probably anathema to many senior career diplomats and policy wonks at State, but it should be an integral part of our policy for the half of the world that remains in the “not free” category. And, incidentally, a good place to begin immediately to revive this doctrine is in Iran!