The American Supreme Court: A different perspective


by Wakeley Paul, Esq.

The terms liberal and social democrat are extremely attractive to the underdog.  Consequently, almost all American Tamils, who have been obvious victims of discrimination in SRI LANKA, have an instinctive inclination to hope that the Democrats in the Senate will succeed in preventing President Bush from appointing a conservative judge to replace Justice Sandra Day O’Connor on the U.S. Supreme Court.

Is that in the best interests of the Tamils?  In answering that question, we must determine what our Tamil desires are.  The first concern the Tamils had even before Ceylon was granted Independence from Britain, was whether we would be treated as Equals by the Sinhalese majority.  It was this concern that prompted Mr G.G. Ponnambalam to demand 50/50 representation in a national Parliament, when presenting the Tamil dilemma before the Soulbury Commission.  This bid failed. 

The justices of the Supreme Court of the United States, 2003: Back row: Ruth Bader Ginsburg, David Souter, Clarence Thomas and Stephen Breyer. Front row: Antonin Scalia, John Paul Stevens, Chief Justice William Rehnquist, Sandra Day O'Connor and Anthony Kennedy

With the introduction of the Ceylon Citizenship Act, the 18th Act to be passed by the Sinhalese government after attaining independence from Britain, it became obvious that the concept of Equality for all was furthest from the minds of the Sinhalese leadership.  No nation in the world required that one had to have 3 generations of ancestors born in a country to qualify for citizenship.  This requirement was obviously designed to deny citizenship to plantation workers of Indian origin, who were mostly descendants of two generations born in the country.  By this Act, inequality and discrimination became the by-words of Sinhalese rule.

The Sinhala Only Act and the policy of denying minorities the right to gain admission to Universities on merit were two further examples of the Sinhalese determination, not only to deny equal rights to those who were not Sinhalese Buddhists, but also to adopt a policy of affirmative action in favor of the majority Sinhalese over all the other less-advantaged minority communities.

The Warren Supreme Court in the US had, in the meantime. spread its wings in the opposite direction.  They granted favorable treatment to minorities who were previously denied equal treatment under the law. 

Who, however were the greatest advocates of EQUALITY in its purest form?  It was, and remains, those extreme conservative judges of the U.S.Supreme Court who are categorized as Textual Originalists. These judges oppose affirmative action in any form on the ground that it violates the simple and straightforward provisions of the Equal Protection Clause of the U.S. Constitution, which provides for Equality with no exceptions.  In their view, Affirmative Action was an exception that resulted in Reverse Discrimination, and is, thereby, contrary to what the framers of the U.S. Constitution intended.  They were also of the view that the resort to Affirmative Action was an exercise of judicial legislation, as there was no mention of Affirmative Action anywhere in the Constitution which permitted the Court to create this exception.

Let me take this opportunity to quote the words Thaddeus Stevens used when proposing the introduction of the "Equal Protection Clause" into the Constitution: "Whatever law punishes a white man shall punish a black man in precisely the same way and to precisely the same degree.  Whatever law protects the white man, shall afford equal protection to the black man.  Whatever means of redress is afforded to one, shall be afforded to the other.  Whatever law allows the white man to testify in court, shall allow the black man to do the same."  The Sinhalese political leaders never exhibited such nobility of thought.

The Courts in America that have favored Affirmative Action in favor of minorities were certainly well intentioned from a social standpoint, but failed to apply the law in all its noble purity.  Equality is Equality for all, not unequal superiority for some.  Good motives distort the absolute dictates of the law.  As Professor Bork, who was "borked" by the Democrats from becoming a Judge of the Supreme Court, strikingly pointed out, the Supreme Court was "giving constitutional sanction to their political sympathies...... If you want something passionately enough, it was deemed by them to be guaranteed by the Constitution."

The purity of the concept of equal protection is inviolable and should not be violated, however good the motivations of those violating it are.  Let us not forget, that the Sinhalese denied Tamils equal access to the Universities under the fatuous pretense that the Tamils had a more favorable system of education than did their Sinhalese counterparts.  The fact that they may have actually believed this does not ennoble their discriminatory action.  Discrimination in any form, for whatever reason and however justified, is an evil to be avoided at any cost.  That is an evil prohibited by the simple and straight forward dictates of the Equal Protection Clause of the U.S. Constitution, which states that "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States......nor deny to any person within its jurisdiction the equal protection of the law."

The Textual Originalists presently on the Court, who support an interpretation of Equal Protection which allows for no exceptions and who are the most resented by the liberals, are Justices Scalia & Thomas.  Pragmatists like Sandra Day O’Connor supported Affirmative Action on the ground that it has been long accepted.  Traditional Conservatives who do not believe in upsetting precedent support Affirmative Action for that reason.  Deferential Conservatives, who honor the power of the legislature to reflect the will of the people and oppose the right of un-elected courts to interpret the Constitution as they wish, regard Affirmative Action as the usurpation of legislative powers by the courts.  They also view such usurpation as an unconstitutional violation of the separation of powers.  They therefore oppose Affirmative Action on these grounds.

In short, it is the conservatives on the court who support our Tamil stance in favor of equal protection with no exceptions. 

While it is true that we Tamils have lost all faith in expecting equality under Sinhalese rule, that loss of faith was founded on the inability of the Sinhalese leaders to honor the concept of Equal treatment for all.  The Sinhalese ruled on the basis that discrimination was necessary for the Sinhalese to survive in a competitive atmosphere.  They first claimed that the British favored the minorities, so they needed time to catch up with those priviledged minorities.  It is this minority complex of the majority community that has been the root of all evil in Ceylon from the day the island was freed from British rule.  It is this complex which has generated the demand for separation.  It caused the minorities to fear a united nation under Sinhalese dictatorial rule.  The Sinhalese leadership never realized that dictatorship inspires opposition; and that violent dictatorship inspires violent opposition. 

It was the Sinhalese leadership, and no one else, who are to blame for inspiring the Tamil regional majority to demand a separate state in 1977.  This was further influenced by their denial of equal rights under the law to the minorities, evidenced by their deliberate exclusion of the provisions of Section 29 of the Soulbury Constitution in their 1972 and 1978 Constitutions. 

The American Supreme Court by contrast honored the right of the minorities to challenge the validity of laws that violated the Equal Protection Law.  The right to sit as equals on buses and in restaurants was honored by the Court.  The Court, thereby, inspired a respect for the RULE OF LAW, which was non-existent in Sri Lanka.  The liberals and conservatives of the American Supreme Court both joined in that effort.  The end result is a nation that remains united under the RULE OF LAW.


Posted July 11, 2005