On Tuesday, Three Rivers Press will release the paperback version of NPR's Juan Williams book, Enough: The Phony Leaders, Dead-End Movements, and Culture of Failure That Are Undermining Black America--and What We Can Do About It.

When Bill Cosby addressed a 50th-anniversary celebration of Brown v. Board of Education, he created a major controversy with seemingly inoffensive counsel ("begin with getting a high school education, not having children until one is twenty-one and married, working hard at any job, and being good parents"). Building from Cosby's speech, NPR/Fox journalist Williams offers his ballast to Cosby's position. Williams starts with the question, "Why are so many black Americans, people born inside the gates of American opportunity, still living as if they were locked out from all America has to offer?" His answers include the debacle of big-city politics under self-serving black politicians; reparations as "a divisive dead-end idea"; the parlous state of city schools "under the alliance between the civil rights leaders and the teachers' unions"; and the transformation of rap from "its willingness to confront establishment and stereotypes" to "America's late-night masturbatory fantasy." A sense of the erosion of "the high moral standing of civil rights" underlies Cosby's anguish and Williams's anger. Politically interested readers of a mildly conservative bent will find this book sheer dynamite.

Williams has apparently taken more than a Cosby-like turn to rationality - although it should be pointed out that he is no conservative, except if you define anyone opposing the radical-left's agenda as such. On June 29, shortly after the Supreme Court ruled in the Kentucky and Seattle race-assignment cases, Williams wrote this fabulous piece in the New York Times, asking liberals "Don’t Mourn Brown v. Board of Education", and pointing out the real history, and real causes of educational failure over the last 50 years.

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In a lengthy article by Jonathan D. Glater and Alan Finder in today's New York Times entitled, "Schools Diversity Based on Income Segregates Some", we find some interesting statements. The story reads like a news analysis infiltrated with opinion, as is clear from its biased title.

First, in California, we have school attorneys that have forgotten where they live. Check this Bayview school general counsel.

David Campos, the general counsel to the school district, said the resegregation was so disappointing that the school board might try to test whether Justice Anthony M. Kennedy’s opinion in the recent Supreme Court case left open the possibility of using race if other methods of integration fail.

“We stopped using race at some point,” Mr. Campos said. “And then for a number of years we have tried to use a number of race-neutral factors to achieve racial diversity, which methods haven’t worked. Should the board decide to use race, and they may or may not, we are a very good test case.”

Not only did Mr. Campos forget Proposition 209 would prevent his "test case" from even getting to federal court since it wouldn't be legal under state law, he seems to have the idea that he is entitled to experiment with our taxpayer money, and the quality of schooling students in the district receive (for if the school spends big legal bucks on test cases, it is distracting from and taking resources away from education). Indeed, Campos' belief that he is the arbiter of "test cases" is institutional arrogance. Public officials should generally avoid skirting the law or pushing its boundaries - "test cases" should arise from situations where an error or incidental encroachment is made - not where a public official decides to create a test case. Indeed, this is equivalent to a frivolous filing of a lawsuit, just in a less tangible and noticeable way.

As to the rest of this Times article, look at the title. "Schools Diversity Based on Income Segregates Some". At best, the conclusion is that it "Doesn't Desegregate Enough", not that socio-economic measures actually segregate. Their is pre-existing societal segregation - socio-economic solutions produce much more economic diversity, and are estimated to replace the (alleged) need for roughly 75% of racial diversity programs because of the pre-existing socio-economic racial imbalances. The article sort of recognizes that these are different scales and types of diversity, yet it attacks socio-economic programs for not being perfect (although helping) along one of the dimensions. Maybe socio-economic programs aren't perfect, but they are the best, and most moral, of types of governmental response, if there is to even be a governmental response, to such imbalances.

If perfection were the measure of any program, no program would be acceptable. Indeed, any program that seeks "perfection" is philosophically suspect by itself. Here, the Times and racial-criteria proponents equate "perfection" with "proportional representation". For there is only standard against which to measure "racial diversity" - does it match the relative population levels for that group. The idea that society would configure itself such that every region and school would exactly match that obliviates free choice, and as such is a utopian perfection that is philosophically suspect (and in my world view anti-utopian). Indeed, this is the fundamental hidden flaw of preferentialist-reasoning. Without even touching on its vast internal contradictions (for example, that black self-segregation is good or to be encouraged), it presumes a utopian world-view that is anti-freedom.

I am reminded of another sought-after-perfection from science fiction. "Resistance is futile."

No question Leon Drolet has a knack for a quote. And this is a quote I feel compelled to document:

Leon Drolet, who chaired the Michigan Civil Rights Initiative that backed Proposal 2, praised the court decision, which struck down programs that treat students differently based on their race in order to achieve diversity, he said.

"Too many elites in America have decided that 'diversity' is a god," Drolet said. "And worshippers of this diversity god believe they are exempt from constitutional guarantees of equal protection. Diversity is a good thing, but only when under the rule of equality."

Of course, the comparison of diversity to a religion is not new, but Drolet's symbolism here is right on. The Detroit News story on June 29th which reported this quote also captured some interesting other tidbits. I found it odd that a teacher in an inner-city school would actually say something supportive of race-neutrality (maybe BAMN was wrong about all that fraud):

"The new ruling is disruptive in the pursuit of racial equality and equity," said Mildred Mason, superintendent of Pontiac Public Schools. "This is a clear sign of the nation going backward in resegregating American schools."

Yet others said the ruling was a positive step to eradicate outdated race-driven policies.

"I think race should not be considered whatsoever," said Renay Gamble, a teacher at O.W. Holmes Elementary in Detroit. "I don't think it matters what color skin you have or what culture you have as long as you are an individual that cares about learning."

Give a courage award to Ms. Gamble, who is the angel in this story. As to Superintendent Mason in Pontiac, the ruling hardly has any impact in Michigan, and the rhetoric of "re"-segregation based on this ruling ignores that 40 years of preferences coincided with 40 years of increasing residential and school segregation. While I wouldn't say that preferences caused this trend, its clear that it doesn't solve it.

Finally, two other tidbits.

"It seems as if using race as a determining factor in anything is under attack," said Greg Murray, a spokesman for the Macomb County Ministerial Alliance, a coalition of African-American pastors and community activists.

Murray, who is also board vice president for Mount Clemens Public Schools, called the court's decision a step backward.
...
But Dearborn Public Schools said the new ruling will have minimal, if any, impact there because Dearborn students are allowed to attend any district school as a part of its schools of choice program.

We've heard from Greg Murray before, and this is the most correct thing he's said. Yes, Greg. "Using race as a determining factor in anything is under attack." As it should be.

Interestingly, Dearborn Schools' quote demonstrates the best solution of all. Choice. If students and parents are making the choices, rather than government, its' awfully hard for government to discriminate.

Through my trusty "FOIA subscription" (FOIA confers a right to receive all regularly created future issuances of public records) to the Michigan Civil Rights Commission's press releases, I received this gem of arrogance from this afternoon. Before you start crying at contradictions, follow me through the next page teaser.

For Release: June 29, 2007

Contacts:
Trevor Coleman, Director of Communications Harold Core, Public Information Officer
Detroit: 313-456-3790 Lansing: 517-373-8787 Lansing: 517-241-3986

Michigan Department of Civil Rights Responds To Supreme Court Ruling

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The Democratic Presidential debate showed an ironic lack of "diversity" in their views on race. WLUC TV, the Upper Peninsula's NBC affiliate, unwittingly captures the irony:

There is total agreement among the Democratic presidential candidates in opposition to the Supreme Court ruling limiting the use of race in achieving racial diversity.

They expressed their views at a presidential debate in Washington.

Senator Hillary Rodham Clinton said the court's conservative majority "turned the clock back" on history.

Senator Barack Obama, the only black candidate in the eight-person field, said he owed his candidacy to previous Supreme Court precedents.

This is not surprising given the anti-democratic state of the leadership (as opposed to membership) of the Democratic Party, but "total agreement" reflects a complete lack "diversity."

Today's news is impressive, although not the final battle in the longer war. The Supreme Court in a 5-4 decision, and with Justice Kennedy only concurring in part and result, ruled against the use racial assignments in school districts and reined in some expansive interpretations of the 2003 Grutter v. Bollinger et al decisions. I waited until having an opportunity to read the case, and a key clip is to follow, but the upshot is that this is a victory in narrowing the impact of Grutter and a step forward for those against racial and gender preferences, but it is by far nowhere close to an end of the legal fight. As I had predicted, the Roberts wouldn't seek to "overturn" Grutter, he would only seek to work with its language and tighten it. It also turns out that Justice Kennedy wrote a concurrence and disagreed in part with Roberts, writing a decision that explicitly said to the extent one would interpret the Roberts decision to bar the use of race at all, that he was not concurring (hence, this case couldn't be used for that purpose since only 4 Justices wrote that part of the opinion). It may have been this concurrence/dissent that lead to the delay, with Kennedy either needing the time to write or the other sides trying to move him in their direction.

Here is the syllabus summation of Roberts's decision tightening O'Connors' Grutter opinion:

Moreover, these cases are not governed by Grutter v. Bollinger, 539 U. S. 306, 328, in which the Court held that, for strict scrutiny purposes, a government interest in student body diversity “in the context of higher education” is compelling. That interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity,” id., at 337, including, e.g., having “overcome personal adversity and family hardship,” id., at 338. Quoting Justice Powell’s articulation of diversity in Regents of the University of California v. Bakke, 438 U. S. 265, 314–315, the Grutter Court noted that “ ‘it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,’ that can justify the use of race,” 539 U. S.,at 324–325, but “ ‘a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element, ’ ” id., at 325. In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” id., at 330; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. See Gratz v. Bollinger, 539 U. S. 244, 275. Even as to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County. The Grutter Court expressly limited its holding—defining a specific type of broad-based diversity and noting the unique context of higher education — but these limitations were largely disregarded by the lower courts in extending Grutter to the sort of classifications at issue here. Pp. 11–17.

Nonetheless, the case represents a large step in the right direction.

Today's traditional Monday morning flurry of Supreme Court rulings is as notable for what remains as what was decided. The race preference in K-12 student assignments cases in Seattle and Kentucky remain in the hopper. Either it's being saved intentionally by the Court as a its final showpiece release, or the delay indicates a less obvious ruling than believed.

In three other key cases though we learn something about the new Court makeup. By saying no to the First Amendment rights of a student off-school property in the "Bong Hits 4 Jesus" case, the 5-4 majority has reaffirmed a line of decisions dating to the 80s which give extreme (and in ZR's opinion perhaps too much) deference to the decisions of public school administrators. The decision affirms the expected conservative alignment on student speech, although the Court will find itself facing the issue of off-school property speech again as blogs and internet criticism further embed themselves in our culture. The Court also affirmed a faith-based initiative as not-violated of the religion establishment clause of the First Amendment, and it overturned a part of McCain-Feingold on late-election "issue ads," allowing them. The decision there however shows an element of moderation in the two new Justices, with Roberts and Alito joining in a separate opinion for the Court, concurring in result with Thomas, Scalia, and Kennedy, who would have gone farther and completely overturned the 2003 permitting McCain-Feingold regulations generally. This interesting division both shows that the two new Justices aren't copies of Scalia and Thomas, aren't likely to overtly violate stare decisis, and that their position isn't as easily pigeonholed as many would believe. That will have implications for a lot of issues, including race preferences, although we could know any day exactly what many of those implications on that issue are.

The United States Supreme Court kicked off its traditional June session-closing with a burst of Monday morning decision releases, as noted by this Washington Post story by William Branigin.

Here's my favorite, the unanimous ruling in Brendlin v. California. It's a great ruling (common-sense actually) and nice to see a unanimous verdict out of the Court (the early years of the Court in the 1800s were mostly unanimous rulings). The State of California decided to overreach on not excluding an illegal search and seizure against a car passenger by suggesting that the passenger "could have walked away at any time" before he was searched. While I see nothing wrong with "tight" interpretation of the scope of the Fourth and Fifth Amendment when bad guys are found with, in this case, bad things like drugs and an outstanding warrant, the reasoning of the lower State courts would have made law enforcement's job more difficult. One thing the Court doesn't say (it could have been redundant since their reasoning was fine anyway) is that if the California reasoning was adopted - that passengers can bail out of the car and leave the scene of a police traffic pullover - would create and give incentive to chaos. If passengers are entitled to leave such scenes, then what happens if they do? Police could give no chase? Or would the exit itself be probable cause to give chase? While unanimous decisions are rare, this was an easy one.

A group of other cases came out today as well.

This AP story notes that the Seattle and Kentucky racial-assignments in public schools case is probably being written by Justice Roberts:

Court watchers believe that Chief Justice John Roberts is writing the majority opinion in the schools case, based on the court's practice of sharing the writing chores among the justices. Only Roberts has yet to write an opinion from the group of cases that included the voluntary school integration plans.

That's interesting. I won't say it is dispositive as to the outcome - O'Connor was the architect of the Grutter ruling in 2003 so it means that Roberts is seen as filling that role, but Kennedy could just as easily have been the one doing that on this issue as well.

Here's an AP blurb on the remaining cases, which we will probably see on Monday, June 25, 2007.

Among the Supreme Court cases still to be decided:

SCHOOLS-RACE: Whether public schools can take race into account in assigning students to schools (Argued Dec. 4).

ISSUE ADS: Whether a federal law impermissibly bars interest groups, corporations and labor unions from broadcasting “issue ads” that mention a candidate's name in the weeks before an election (Argued April 25).

DEATH PENALTY-MENTAL ILLNESS: Whether a death row inmate has to understand that his impending execution is the result of the crimes for which he was convicted (Argued April 18).

STUDENT SPEECH: If school administrators can censor student speech that they believe goes against their anti-drug message (Argued March 19).

FAITH-BASED: May taxpayers sue in federal court to challenge spending by the White House's faith-based initiative? (Argued Feb. 28).

SHAREHOLDER LAWSUITS: Whether a federal law intended to curb abusive litigation makes it harder for shareholders to sue companies for fraud. (Argued March 28).

ANTITRUST: Whether manufacturers and stores can set minimum retail prices for products (Argued March 26).

ENDANGERED SPECIES: What measures federal agencies must take to protect endangered species before giving states authority to issue water pollution permits (Argued April 17).

Dawson Bell again reports, in a weekly roundup, that Saul Anuzis asked Jennifer Gratz and Jane Abraham to run for US Senate. Here's the clip:

"I was taken off guard ... and flattered. But I haven't given any thought to running for anything," she said. Although still an official resident of Michigan, Gratz is spending a lot of time in California working on plans for affirmative action ballot proposals in as many as 10 states in 2008.

Abraham, spouse of former U.S. Sen. Spence and cochair of the state party who considered a Senate run in 2006, also made a point Tuesday of squelching speculation about her plans for 2008. She said she's focused on parenting (three kids at home), business and building the party but not on running.

No surprise there. Abraham likely considers her status in the party to be higher than running for a losing seat, and while Gratz might benefit (and literally might be the only non-Democrat in Michigan capable of beating Levin) from such a run at this stage in her career, if she wanted to enter Michigan politics she'd be doing herself a disservice by not running for a state House seat she'd be favored to win (and where she could do Republicans tremendous good in 2008), rather than what would still be a longshot US Senate seat bid.

The likely Republican candidate for US Senate at this point still appears to be Kalamazoo state representative Jack Hoogendyk, unless someone bigger wants to take on the sacrificial lamb role or he decides against it. I'd expect more of the field to crystallize by August.

Also in the roundup, Geoffrey Fieger won his appeal to the Michigan Supreme Court to a Court of Appeals ruling on the amount of his contingency fees in a case despite his request of the Court to recuse 4 of its 7 members.

The Michigan High School Atlethic Assocation (MHSAA) request for review of a Title IX case on the length and timing of its girls sports seasons has been denied, effectively ensuring that the the Court of Appeals ruling requiring changed seasons to match other states "traditional" times continue in effect.

The case was a highly technical one, and it would have been a surprise for the Supreme Court to grant cert here, but as both a Michigan matter and gender rights question with S.C. potential, ZR had been tracking this one. The outcome is probably the right one (there was something unfair and off-balance about the sports seasons), but the courts' expansive interpretations of Title IX to every gender situation could be dangerous.

This WILX/AP report suggests that the US Supreme Court will decide by Monday to take the Michigan High School Athletic Association appeal of a ruling that Title IX of the Civil Rights Act requires it to set its woman's sports schedule to the same time frames as other states. ZR has been following this story as it represents a major issue now for Michiganders and ties into alleged gender rights.

Here's a short review:

Grand Rapids-based Communities for Equity won its lawsuit in December 2001 against the MHSAA, the state's governing body for high school and middle school sports. U.S. District Judge Richard Enslen in Kalamazoo said the scheduling policies violated the equal-protection clause of the 14th Amendment, the federal Title IX statute and Michigan civil rights law.

Enslen directed the MHSAA to propose a realigned sports schedule that would meet with his approval. In August 2003, the judge rejected an MHSAA proposal because it did not include a swap of the girls basketball and girls volleyball seasons.

The Supreme Court's willingness to take this case may represent something itself. It was previously thought the case would not make it for review, and we report on Monday about whether it does grant cert.

United States Supreme Court Justice Clarence Thomas lambasted the media and "diversity industry" in this Los Angeles Times account of a Business Week interview. He denied that he was a "beneficiary" of "affirmative action," or specifically that the College of Holy Cross "recruited" in him in an outreach program.

Here's a clip:

"That was the creation of the politicians, the people with a lot of mouth and nothing to say, and your industry," Thomas told a writer for Business Week magazine. "Everything becomes affirmative action."

In 1968, shortly after the assassination of Dr. Martin Luther King Jr., the Rev. John Brooks began recruiting young black men to enroll at College of the Holy Cross, a Jesuit school in Worcester, Mass.

The initial class of 28 included Washington lawyer Theodore V. Wells Jr., who is representing former vice presidential aide I. Lewis "Scooter" Libby; Pulitzer Prize-winning novelist Edward P. Jones and investment banker and former New York City deputy mayor Stanley Grayson — as well as Thomas, the high court's only African American.

In an interview that accompanied the magazine's profile of Brooks, Thomas insisted he was not recruited to go to Holy Cross. After dropping out of a Missouri seminary in 1968, Thomas returned home to Savannah, Ga.

"A nun suggested Holy Cross. That's how I wound up there," he said. "Your industry [the news media] has suggested that we were all recruited. That's a lie. Really, it's a lie. I don't mean a mistake. It's a lie.

"That thing that has astounded me over the years is that there has been such an effort to roll that class into people's notion of affirmative action," he continued. "You hear this junk. It's just not consistent with what really happened."

Thomas expressed disdain for the news media several times during the interview.

"One of the reasons I don't do media interviews is, in the past, the media often has its own script," he said. "The media, unfortunately, have been universally untrustworthy because they have their own notions of what I should think or I should do."

I'm particularly fond of Thomas' clarity in the italicized portion. "I don't mean a mistake. It's a lie." I'm also not sure he just means [the news media] where the "Your industry". I suspect he understands that the diversity industry (which he refers to as politicians) and media are part of the same machine - although there are certainly exceptions.

David Eggert of the Associated Press writes here about the ongoing battle between Justice Elizabeth Weaver and the four other Republicans on the Michigan Supreme Court.

Weaver continues to maintain her old 2002 campaign website, and has some of the materials including her dissents attacking the other justices on the front page. Ironically, I found four of her "10 Principles", posted in the reverse-Letterman-top 10 style, to be most interesting:

6. Avoid Unnecessary Disputes and Confrontations. They cause friction, and friction wears things out.

5. Don't Let the Turkeys Get You Down.

4. You Catch More Bees With Honey Than Vinegar. Treat people as you would have them treat you.

1. Be a Goodfinder, a person who seeks out the good in himself or herself and others.

Weaver comes up for re-election in 2010, although she talking about resigning in 2005 (as probably part of this rift). Regardless, it's a dispute that needs to be resolved.

A story that ZR won't comment on yet because it represents a hornet's nest of issues (and is complex), but notes to its readers as a very important story to follow for many reasons which should be self-evident, is this one by M-Live on the internal battle between 4 of the Michigan Supreme Court "conservative" Justices and the 5th conservative, Elizabeth Weaver. The two "liberal" justices have naturally sided with Weaver. It's as high of a drama as you get inside a Supreme Court, involving that perpetual spark-plug known as Geoffrey Fieger, and ultimately raises the question of how Supreme Court Justices police themselves, if they are even police-able.

Proving the thesis of this blog, in a story by Forbes magazine yesterday, Justice Stephen Breyer stepped off the diving board and argued that the Constitution sometimes needs a little extra interpretation. He also accused the founders of writing a "vague" First Amendment, one which he apparently knows exactly how to (re)interpret. The story relays comments made by Breyer on Fox News Sunday.

Breyer explains recent decisions with this dangerous tack:

In his interview, Breyer argued that in some cases it wouldn't make sense to strictly follow the Constitution because phrases such as "freedom of speech" are vague. Judges must look at the real-world context - not focus solely on framers' intent, as Scalia has argued - because society is constantly evolving, he said.

"Those words, 'the freedom of speech,' 'Congress shall pass no law abridging the freedom of speech' - neither they, the founders, nor those words tell you how to apply it to the Internet," Breyer said.

No, the founders didn't directly tell us how to apply it to the "internet", which didn't exist two hundred years. They simply said Congress shall pass no law abridging freedom of speech. That includes the printing press, the word of mouth, and the occasionally meaningful electron. Stephen, which part of it don't you understand? "... no law ..." or "freedom of speech". I simply haven't heard anyone say free speech was vague. Should it be limitless? Not when it directly causes physical danger. But that's not at issue here.

Here, he admits to knowing the meaning of "freedom of speech," and seemingly ignores the "no law" in favor of some laws that "level the playing field."

Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-4 vote the McCain-Feingold law that banned unlimited donations to political parties.

Acknowledging that critics had a point in saying the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to the little guy who isn't tied to special interests.

"You don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money," he said.

ZR has said it before in analyzing Grutter. The First Amendment will shortly follow the sacrifice at the alter of diversitty we've already made of the Fourteenth Amendment. It appears that leveling that "playing field" in "terms of money" is sufficient grounds to think there should be "some laws" - rather than "no law" - abridging our most cherished amendment. Of course, there's nothing in violation of the principles of racial equality in leveling a monetary playing field, and while I support socio-economic alternatives to in the race preference domain, it is unjustifiable to support government intrusions that abridge speech. Breyer renders McCain-Feingold for what it was - the triumph of power over money. ZR will admit that it is a delicate balance of the three forces that keeps our system going, but we are guided by our reliance on key principles. The single most important driving principle of American democracy and economic success is free expression. If money were the only problem with our political system, we'd be in fine shape. It isn't.

Breyer sets himself up as a more extreme diviner of the meaning of the Constitution than anyone accused of being an "originalist". Rather than use the words and history of the Constitution itself in an academic effort to mine the meaning of the Constitution where it is truly vague (it isn't that often, so that effort should be relegated to the rare), Breyer simply assigns to the Constitution his view of what its purpose should have been. It's an interesting view:

"We're the boundary patrol," Breyer said, reiterating themes in his 2005 book that argue in favor of race preferences in university admissions because they would lead to diverse workplaces and leadership.

"It's a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful," said Breyer, who often votes with a four-member liberal bloc of justices.

Speak about vague. What is the "democratic system," compared to the precision of "pass no law that abridges freedom of speech" (which, I'd say is one specific, central part of the "democratic system", by the way)? What are "basic liberties" (again, one specific one is the First Amendment, along with others)? The "rule of (which and whose) law"? We can certainly agree that the Constitution does all those nebulous good things, but how (of course, one of the specific ways is that "division of powers" he cites to prevent anyone from getting "too powerful," but the separation of powers was a check on government, not a justification for government to check individuals and their speech)? Most telling is Breyer's phrase "a degree of equality." Hmm. Only a degree? The Declaration of Independence, certainly a greater moral authority, and I'd argue of some value legally, on the topic of divining the intent of the Constitution is again clear. "All men [and women] are created equal." Not degrees of equal. The Fourteenth Amendment though is equally clear, a divination of a truth our nation only realized as self-evident 87 years into its existence and during a bloody civil war. But Breyer places himself above that - he's the "boundary patrol". Unfortunately, Breyer is out-of-bounds.