ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Friday, May 17, 1996 TAG: 9605170035
SECTION: EDITORIAL PAGE: A-9 EDITION: METRO
SOURCE: KEITH A. FOURNIER
RECENTLY, a federal judge decided that Dallas suburbs must accept their fair share of public-housing projects. The desegregation order found that the city had allowed its projects to be racially divided and disparate, and that the suburbs had avoided an influx of minorities by ruling the projects out.
On its face, the order seems justifiable, even noble. It is actually the opposite. It reveals a sort of back-door racism rampant among liberal change-agents, the assumption being that blacks and Hispanics are largely poor, live in housing projects and, therefore, need to be moved around in chunks. They are treated as blocks, rather than as individuals with complex circumstances that demand complex solutions. It's a "one-size-fits-all" approach to desegregation as well as to welfare reform.
The same covert racism is apparent in the debate over abortion and contraception. One "pro-choice" spokesperson wondered what would happen to "poor women" (usually equivalent to "black" women) if abortion were not available in cases of incest. The back-door racist assumption is that the poor (read "black") commit incest more than the middle-class. What leads to this assumption? Again, it is an elitist viewpoint that treats people as "groups," and assumes certain behaviors.
Chief Judge Jerry Buchmeyer, a liberal Carter appointee, expressed this form of racism by insisting that the Dallas suburbs accept the projects, and thereby the "groups" that live in them. What knowledge does the court have that if housing projects are erected in the suburbs, one single black or Hispanic person will move into them? Only the prejudice that minorities demand public housing. If only Asians or Italians move into the projects, will the suburbs be held in contempt? And will the court have to issue an additional order directing racial minorities to move to the suburbs?
The decision is an example of the unmitigated hubris of the imperial federal judiciary. It has become common for the courts to attempt to legislate their own social plans from the bench, overriding democratically elected legislatures.
In the 1965 Griswold decision, Justice Douglas wrote that the court does not sit as a super-legislature to determine the wisdom, need and propriety of laws that touch economic problems, business affairs or social condition.
In Akron vs. Akron Center for Reproductive Health, Justice O'Connor warned that decisions are being made by the judiciary based upon self-determined standards of desirable social policy.
Justice Scalia has noted the increasing tendency of courts to make decisions that do not solve problems but add to them. In his dissent in the infamous Roe vs. Wade decision, Chief Justice Rehnquist stated "the court's sweeping invalidation of any restrictions on abortion during the first trimester is ... far more appropriate to a legislative judgment than a judicial one."
Yet, Judge Stephen Reinhardt, another Carter appointee, wrote for the majority in the recent assisted-suicide case Compassion in Dying vs. Washington, that judges "must resist the natural judicial impulse to limit our vision to that which can plainly be observed on the face of the document before us." In other words, judges must use their unparalleled power to impose their personal world view upon the Constitution.
In the Dallas case, the court has ignored the option that has yet to be effectively tested: to support the cause of civil and natural rights for minority Americans by enhancing economic, educational and political development and involvement in a manner consistent with the ideal of a free society and the traditional constitutional values of liberty, property, limited government and equal justice under the law.
Such a lofty goal does not require federal judges to impose directives regarding where or how people should live. Instead, the courts should see to it that no stumbling blocks are put in the way of marginalized people, preventing them from participating in the free market and gaining the dignity of meaningful work.
They should also pave the way for communities to resolve the problems of poverty and housing according to their own circumstances and ethical and religious traditions.
Keith A. Fournier is executive director of the American Center for Law and Justice in Virginia Beach.
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