Ponnuru’s attempt to hamstring conservatives

A few months ago, David Frum wrote a cover article for the leftist magazine Newsweek smearing the most prominent conservative in America, Rush Limbaugh, as some kind of sinister McCarthyite hater who should “shut up.” The message was that conservatives should shut up and surrender to liberalism. Now Ramesh Ponnuru, a senior editor of National Review, has followed in Frum’s footsteps, writing an op-ed for the leftist New York Times in which he attacks conservatives as hypocrites for supporting the plaintiffs in the Ricci anti-white discrimination case. Here’s his reasoning:

Mr. Ricci probably deserved his promotion and had a right to his day in court. But contrary to what many conservatives insist, that does not mean he should win the case. The legal arguments for his position … are not absurd: they include reasonable readings of Supreme Court precedent. They just aren’t originalist arguments.

To conclude that New Haven acted unconstitutionally is to assume that the Constitution’s 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.

What Ponnuru is saying is that conservatives are relying on the anti-originalist, liberal perversion of the Fourteenth Amendment, under which federal courts bar any kind of racial discrimination at the state level. He’s saying that under the original Fourteenth Amendment, states could discriminate as they liked. Therefore conservatives, insofar as they are originalists, have no grounds for attacking New Haven’s anti-white discrimination practices.

But Ponnuru, in addition to his Benedict Arnold-like behavior of going to the Times to attack conservatives, is mangling the issue. Under the original Fourteenth Amendment, as enunciated in the 1896 Plessy v. Ferguson decision and followed in many other decisions for 60 years after Plessy, the Constitution allowed states to have “separate but equal” racial arrangements, such as separate train coaches or separate schools for whites and blacks, so long as the separate facilities were equal. However, as I have argued (“Does Grutter violate the Fourteenth Amendment?”, VFR, August 2003), the original Fourteenth Amendment would clearly prohibit “together but unequal” arrangements, such as admitting people of two different races to the same institution under grossly different standards for each race, which is what we have under minority racial preference systems. Such practices violate the Amendment’s mandate that states shall not deny to any person the equal protection of the laws.

Conservatives should therefore realize that they can fight anti-white racial preferences while remaining true to originalism. They do not have to rely on the liberal perversion of the Fourteenth Amendment, which bars all race-conscious policies by the states, in order to oppose racial preference practices that admit and hire vastly less qualified blacks over more qualified whites. They can challenge that system, while standing on the solid ground of the original Fourteenth Amendment. The argument is explained in more detail in my linked 2003 article.

Another point. Ponnuru is saying that the plaintiffs in Ricci should lose their suit because their case is not based on an originalist understanding of the Fourteenth Amendment. But does Ponnuru also say that the entire existing pro-minority civil rights structure of this country should be thrown out, because it is not based on an originalist understanding of the Fourteenth Amendment? No, he does not. He doesn’t challenge the unconstitutional, anti-white liberal system under which we live, while he would take away from conservatives the only means of fighting it.

Just like David Frum in his despicable Newsweek cover article, Ramesh Ponnuru is telling conservatives to shut up and submit.

Posted by Lawrence Auster at June 24, 2009 03:09 PM | Send