Tuesday, October 23, 2018

Harvard case to end affirmative action?

An inflection point may be at hand.  For decades the U.S. Supreme Court has permitted the compromise of Constitutional equal protection rights to permit what can be broadly described as affirmative action.   The ongoing lawsuit by people of Asian ancestry against Harvard University’s admissions policies may well be the case that ends any consideration of race in education or employment.  If so, a broad social and political upheaval may occur as any form of race conscious government action is banned.

Students for Fair Admission (SFA) is pursuing a lawsuit against Harvard University contending that the admissions process discriminates against Americans of Asian descent contrary to the requirements of Title VI of the Civil Rights Act of 1964.  Title VI bans discrimination based on race, color, sex, religion or national origin. Title VI, and the associated Title VII that bans discrimination in employment, flow from equal protection rights contained within the U.S. Constitution.

Thursday, October 4, 2018

The Supreme Court’s Politicization – can we fix it?

The Republic is in a bind.  The nation is divided almost evenly from left to right.   The division over a generation has grown worse and infected the Supreme Court of the United States.  After the present confirmation process is completed there must be an effort to find a way to end this politicization of the Supreme Court and ensure that it remains the legitimate arbiter of the Constitution.

Article III of the U.S. Constitution states the “judicial power of the United States, shall be vested in one Supreme Court.”  Article II of the Constitution gives the President the power, “with the Advice and Consent of the Senate, … [to] appoint … Judges of the supreme Court.  The power imbued to the Supreme Court as the ultimate interpreter of the Constitution is uniquely American.
Before the Constitution was adopted there was great debate.  Alexander Hamilton wrote Federalist Paper No. 78 about the judicial power under the pen name Publius.  An opposing view was written in Brutus No. 15 by an unknown author.  Brutus’ overarching concern was that the Supreme Court, as ultimate authority of what the Constitution meant was unchecked due to its position and lifetime tenure of its members.  He said, “In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

Hamilton saw this state as a positive aspect of the Constitution.  He answered Brutus arguing that the independence and lifelong appointment would “secure a steady, upright, and impartial administration of the laws.”  He contended that the judiciary “will always be the least dangerous to the political rights of the Constitution” because it held no power of the purse (Legislative) or the sword (Executive).