Five weeks ago Prof. William Stuntz of the Harvard Law School wrote an influential article (David Brooks of the NYT called it one of the ten most important articles of 2004), “Faculty Clubs and Church Pews,” that made a plausible, and appealing, case for an alliance between academic intellectuals and evangelical Christians (both of which Stuntz is). Now he has a sequel that is even more impressive. (Hat Tip to Instapundit)
Read the whole thing, since I’m going to discuss here only one of his intriguing observations:
When the culture is sharply divided on some kind of behavior, the side that wins the law’s endorsement tends to lose ground, culturally and politically.
Stuntz supports this striking point with a discussion of Roe v. Wade, and with supporting evidence from the anti-slavery movement (pro-slavery forces won the battles over the Fugitive Slave Act, the Kansas Nebraska Act, the Dred Scott decision but literally lost the war), and Prohibition.
It’s a very good point, and worth pondering. As part of that pondering, I’d like to extend Stuntz’s argument to an example that he does not address and that may be thought to qualify or even contradict him, the Brown decision. I would argue, however, that Brown is the exception that proves Stuntz’s rule.
It’s the exception because the Court was a bit ahead of popular opinion but the decision was nevertheless quickly and widely accepted (even in parts of the South, until the backlash set in). It proved the rule, however, when its central message — that discrimination based on race is wrong — was misinterpreted and misapplied to require race-based policies to ensure what would now be called “diversity,” i.e., busing, which produced a backlash that undid much of the good of Brown and from which we still haven’t recovered. Racial preferences in admissions and employment for the most part simply reprise the busing debate.
Although it is too soon to say for sure, there is some evidence already that the Supremes’ Grutter decision, allowing narrowly circumscribed (at least in theory) race prefereces in admissions, may also prove Stuntz’s point, as Michigan seems likely to pass an anti-preferences constitutional amendment modeled on similar ones in Calif. and Washington.