Note: Behind the green door is a post about the movie Amadeus, a post about Affirmative Action and the Sunday podcast. You can sign up for a green door account at SubscribeStar or Substack.

Note: American Renaissance is having its annual conference in August at the usual location in Tennessee. It is a great event and anyone who is interested in the sort of politics discussed here should make it there at least once. You can sign up for the event at the American Renaissance website.

When the typical person thinks about the law, he thinks about it as a list of behaviors that are prohibited. You cannot fish during certain months, for example. You are not allowed to drive over a certain velocity. The law is a list of limitations on what you can do as well as a list of things others cannot do to you. This is largely true as a practical matter, but the law is more than a list of prohibitions. It is a moral system that turns those limitations into a habit of mind for the citizenry.

Although the law often looks chaotic and self-contradictory, it is a system made of properties and methods. The properties are things like constitutional rights, precedents, and legislation. These are statements that are treated as facts. Your First Amendment right to assembly is assumed to be a fact of nature. The Court’s decision that the First Amendment does not permit you to yell fire in a crowded theater when there is no fire is now assumed to be a truth in the Constitution.

The methods are the rules that govern how the people inside the law interact with those properties as well as the other people inside the legal system. The courts have processes for adjudicating disputes between citizens, for example. The government has to meet certain conditions when they infringe on the rights of a citizen. All of us exist inside the legal framework, as it is the implementation of the moral framework of our society and the framework determines how we interact with one another.

This is the starting place for reading this new booklet titled How We Got Our Antiracist Constitution: Canonizing Brown v. Board of Education in Courts and Minds, which is part of the Claremont Provocations Monograph Series. The author is Jesse Merriam, who teaches government at Patrick Henry University. His focus is on the history of the famous Supreme Court case Brown v. Board of Education of Topeka, which has transformed not just the law by the Constitution itself.

The author starts with a short history of the famous case. This is one of those things that will be a revelation for most readers. Even though the case was decided in 1954, the process started a generation earlier when a young communist radical received a million-dollar inheritance from his father. He was going to reject it, but the founder of the ACLU convinced him to use the money to fund left-wing causes. This was in 1922, long before normal Americans thought about civil rights.

This money was used to start the Garland Fund, which gave the NAACP $100,000 to begin the litigation that eventually led to the Brown decision. The author does not spend a lot of time on it, but the point is clear. The civil rights movement was not something organic and spontaneous. It was a long-term project organized and financed by wealthy and important individuals. They set out to change the moral framework of the country and committed their lives to the cause.

That brings us to the heart of the topic. The author walks the reader through the process by which a legal decision becomes canonical and then how that status in the law warps everything that comes after it. In the law, “canonization” is “the process by which a single Supreme Court decision comes to control constitutional theory, debate, and interpretation.” A case can become so important that it changes the methods by which the Court views the Constitution itself.

This is a three-step process that starts with the construction phase. This is when the new moral principles are introduced to the moral framework or old moral principles are challenged as antithetical to the core principles. Brown was the end point of the construction phase where two new principles were added. One is that diversity is a constitutional good. This is why diversity is a strength. The other new principle was that discrimination, private or public, is always unconstitutional.

The next phase is what the author calls submission, which is the process “whereby critics of the initial decision capitulate to the new paradigm.” The author provides data on how conservatives changed over this phase. He counted negative stories in National Review before and after Rehnquist was nominated to the Court. He also looks at opinions on Brown during this period and notes that they went from uniformly hostile to neutral and then accepting.

The submission phase with regards to Brown is a great primer on what lies behind the internet meme “the conservative case for…” These new moral claims are first embraced by the people with control of the institutions. That power is then used to select against critics, which has the desired effect of selecting for those willing to bend their knee to the new moral paradigm. What has shaped conservatism over the last several generations is this process of submission to the Left.

The final phase of canonization is weaponization. This begins “when the former critics marshal the decision and its values for their own legal and political agenda.” As the former critics incorporate the moral principles in their own arguments, the case then becomes a controlling moral authority. Those former critics of the new morality transform themselves into its champions, often trying to stake out positions that are more extreme than those of the original advocates.

Again, the author dives into the writings of conservatism to provide examples of how they now embrace the moral claims of Brown. This is the origin of another well-worn internet meme, “democrats are the real racists.” For a generation after Brown, opposition to this decision was central to conservative arguments. Over the last thirty years Brown has taken center stage in conservative arguments in favor of diversity and opposition to discrimination.

The final result of this process is that the original Constitution has been hollowed out and in place of the rights-based moral order we now have the twin moral demands that have come from the logic of the Brown decision. Not only are your enumerated rights subject to the “Brown test”, but the federal system established by the Constitution has collapsed in order to comply with the new moral paradigm, leaving us with what the author calls the antiracist Constitution.

The author does not get into this, as it falls outside the scope of the essay, but the new legal framework created by Brown reflects the new moral framework that has come to dominate the thinking of the ruling elite. Diversity as the primary good and discrimination as the primary bad haunt every aspect of modern life. Not only must you avoid discriminating against members in the league of the oppressed, but you must also swear allegiance to diversity.

This is fundamental to the new religion which imagines the end point of social progress as the open society. If all people are inherently equal, then the differences we see must be due to social structures, which means that people are infinitely malleable. This is the universal truth of mankind. Thus, we have the holy trinity of the new religion, equality, the blank slate, and universalism. The logic of Brown reflects this spiritual sensibility as well as the ultimate goal of the open society.

This is a topic of critical importance for dissidents, so this booklet on the Brown decision and its canonization in the law is an important entry point. As the author notes, the road forward is not in fighting the tentacles that have grown out of Brown, but to understand how we got to this point. In order to remove the tentacles of Brown v. Board of Education from the neck of society, the moral claims that lie behind the decision must be understood and then defeated.

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