As we wait to find out who Joe Biden picks for his 2020 vice presidential running mate, we are experiencing increasing clarity with respect to the two parties’ visions for America.
Mr. Biden has announced that he will be picking a woman, and has strongly hinted that it will be a woman of color. The now leading targets of speculation are all Black women —Sen. Kamala Harris, D-Calif., former U.N. Ambassador and U.S. National Security Adviser Susan Rice, Rep. Val Demmings, D-Fla., and Rep. Karen Bass, D-Calif.
In an intriguing observation and exhortation, House Majority Whip James Clyburn — the man who engineered the salvation of Joe Biden’s campaign by Biden’s victory among Clyburn’s fellow Blacks in South Carolina and other Southern states —offered Mr. Biden some advice.
"The V.P. [pick] is good on style," said Mr. Clyburn, appearing on "PBS News Hour," but "on substance, give me an African American woman on the Supreme Court."
It's on the high court, according to Congressman Clyburn, "where we determine how our democracy will be preserved."
Unpacking the majority whip’s observations is instructive.
First of all, "We the People," did not establish a democracy in our Constitution, but, instead, a republic.
According to tradition, the outstanding feature of a Republic is that it is a form of government where representatives like Mr. Clyburn, and Justices on the Supreme Court alike, are presumed to adhere to the rule of law, and to apply it without fear or favor.
This is the reason that the representation of Lady Justice — the symbol for the Rule of Law — who appears with her balanced scales and her sword, to signify both equal application of the law and its enforcement power, wears a blindfold.
Mr. Clyburn’s statement echoes in sentiment the words of then-presidential candidate Barack Obama, when he declared that he wanted to appoint someone to the U.S. Supreme Court who had the experience of being a minority member, or a single mother, or someone else who could have "empathy" for the less fortunate in society.
One of Mr. Obama’s Supreme Court picks, Sonia Sotomayor, apparently carried out this campaign promise, since she had earlier observed that a "wise Latina" could probably do a better job being a judge than could an old white man.
The Republican Party’s ideal of justice is more in line with Lady Justice’s blindfold, as represented by Mr. Trump’s ideal Justices, Clarence Thomas and the late Antonin Scalia, who professed fidelity to objective interpretation according to the original meaning of laws and the Constitution.
Democrats like Mr. Clyburn, Mr. Obama, Justice Sotomayor, and Joe Biden, believe in a flexible and subjective approach to the Constitution, and many of them — Obama in particular — have been influenced by law professors who taught them that the objectivity of law was a myth, and that, in the end law is simply politics by another name.
The problem with that view of law is that it gives total discretion to the judge to make law, that it turns him or her into a legislator; it ignores the separation of powers, and, for Alexander Hamilton in the famous Federalist 78, it was the very definition of tyranny.
It's undeniable that there are inequities in society, and no one can maintain that some racial and ethnic groups have not ended up with disproportionately high or low allocations of resources, wealth and power.
But is the way to remedy this lop-sided allocation a subjective approach to law — to put a thumb on Lady Justice’s scale to favor particular groups — or is it to strengthen opportunity for all, and to favor equality of opportunity over equality of outcome?
Before the pandemic hit, President Trump and the Republicans had managed to create a situation where unemployment had fallen to its lowest levels among minorities in generations, and where the possibility of improving the condition of all Americans was in reach.
This is what the Republicans will offer in the 2020 contest, in opposition to the Democrats’ vision of identity politics and a subjective approach to law.
Put slightly differently, Republicans generally favor the approach to the Constitution limned in Justice John Marshall Harlan’s famous dissent in the notorious Plessy v. Ferguson 163 U.S. 537 (1896) decision (which upheld racial segregation on public transportation). This was wrong, wrote Harlan, because “Our constitution is colorblind, and neither knows nor tolerates classes among citizens.”
The ideal of a color-blind society has fallen from favor among some of our intellectuals, who believe that it perpetuates the already-existing inequalities in society.
This election, then, is a referendum on the meaning of our Constitution and the best way to achieve a just society for all Americans.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. Read Stephen B. Presser's Reports — More Here.
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