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How “equal protection of the laws” has been changed into equal group representation
In 1997, at the time of the court challenge to the California Civil Rights Initiative, Prop. 209, I wrote a letter to American Renaissance in which I made a dark prediction about the future course of race preference policies in America:
Sir—About six months ago, I predicted that if the California Civil Rights Initiative (CCRI) ending racial preferences passed, it would ultimately be declared unconstitutional on the grounds that it violated the 14th amendment guarantee of “equal protection of the laws.” The rationale for this, I said, would be that since America is a racist, discriminatory country, equal treatment under the law requires that different groups be treated unequally. The prediction was so far out that it had a science fiction or Orwellian ring to it, though I did believe it would come to pass. Yesterday, a federal judge put a restraining order on CCRI, pending a hearing next month. He said that based on the plaintiffs’ arguments, it is likely that CCRI will be found to violate the equal protection clause of the 14th Amendment.Of course, as I indicated might happen, the constitutionality of CCRI was upheld and California had to abandon race preference admissions policies. But in light of the Supreme Court’s recent decision in Grutter v. Bollinger, how does my prediction stand up? As is sometimes the case with prophecies and predictions, I think we could say that, while it has not come literally true, it has come essentially true. In formal terms, the basis of Grutter is not the 14th Amendment, but rather a principle that is advanced as an exception to the 14th Amendment, that schools may, under “strict scrutiny,” treat race as one factor among others in order to achieve a diversity in the student body which in turn will supposedly result in certain educational benefits. The Court has not, as in my prediction, literally redefined “equal protection of the laws” as diversity; instead, it is replacing equal protection by diversity, or, rather, it is (in President Bush’s phrase) balancing equal protection with diversity.
Nevertheless, in the supporting language of the decision, the Court does—in exactly the manner I had suggested in my 1997 letter to AR—reinterpret words pertaining to individual equality to mean group equality. Thus Justice O’Connor writes for the majority: ” [T]he diffusion of … opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity … ” Obviously Justice O’Connor is not using “opportunity” in the sense of the absence of overt racial discrimination against minorities, because not even the diversity advocates claim any more that such discrimination is practiced by institutions such as the University of Michigan Law School. No, when O’Connor speaks of “opportunity” and of the need for institutions to remain “accessible,” what she plainly means is that such institutions must maintain a proportional racial representation of otherwise “underrepresented” minorities. Thus the language of individual equality under the law has been transformed, Orwell-like, into the language of group equality of results and ensconced in the U.S. Constitution. Comments
Justice O’Connor did not conjure this sophistry all by herself. Before the 1960s were out, that prize of a Republican appointee, Justice Brennan, was saying, in defiance of their plain meaning, that the non-discrimination provisions of the Civil Rights Act of 1964 compelled discrimination in favor of blacks in order to achieve the act’s legislative purpose (nowhere stated in it, of course) of non-discriminatory results. I do not recall Hubert Humphrey, then or later, making good on his promise to eat a copy of the CRA if it were used to justify “reverse” discrimination! HRS Posted by: Howard Sutherland on July 15, 2003 10:44 AMMr. Sutherland is of course correct. This sophistry has existed from the start. But what is new here is that the sophistry is being implanted in the Constitution. Posted by: Lawrence Auster on July 15, 2003 10:48 AMIt’s true that for the first time this sophistry is being implanted in the Constitution. But the Constitution it’s being implanted in is no longer the Constitution that the Framers wrote and intended to guide future legislation. Liberals have taught us to regard it as a “living” document—which means a dead letter, of course—which says whatever judges want it to say. In the course of this basic unconstitutional change (unconstitutional because not made according to the procedures specified in Article V), they have prepared the conditions for their own eventual failure. If the Republic lasts long enough, there will come a time when this outrage will turn around and bite its sponsors. Judge-made law and loose-constructionism can be used by any group that gains the power to use them for its own ends. Then we, or our descendants, will see liberals objecting loudly to judge-made law and loose-constructionism—in the service of traditional values. But when traditionalists use them for such ends, they too will be acting unconstitutionally and unprincipledly. That’s why that scenario is not an expression of optimism. If the time should come when liberals must defend themselves against the results of their own handiwork, the phrase “constitutional construction” will have become a euphemism for might-makes-right-expressed-as-law. And that in turn will reflect the end of social order. Decisions about race and homosexuality were not what the theorists of loose-constructionism and the “living Constitution” had in mind when they began their foundation-sapping work a few generations ago. But once that work was done, any issue at all could serve to bring down the edifice. Posted by: frieda on July 15, 2003 11:48 AMFrieda writes: That’s the way the Hegelian Mambo works, though. Liberals are essentially nominalists: they think they personally control the implications of their own world view. Their expression of self-made will-to-power manifests itself in the unprincipled exception. Because they are unprincipled, though, unprincipled exceptions are always temporary. Contrary to how liberals view themselves (“you can’t tell me what I think” and all that), and not without irony, the implications of liberalism transcend what each particular individual liberal happens to think. It has been observed before that transcendence (and its corrollary, the unchosen) cannot be avoided; it can only be twisted into perverse and corrupting forms. Today’s liberalism is tomorrow’s conservatism precisely because the implications of liberalism transcend what any particular group of liberals assert as its unprincipled limits. This includes what has happened to constitutional interpretation, by the way. It could never be the strictly formal exercise that strict constructionists would like it to be. _Sola Constitution_ accepts liberal principles and is ultimately destroyed by the very principles it accepts. Cha cha cha! Posted by: Matt on July 15, 2003 2:05 PMMatt is saying (as he suggested in an earlier thread called “Metropolitan conservatives”) that liberalism, unlike conservatism, has an ontologically stable essence. But it turns out that this is most ironic, since liberals themselves do not believe in such essences, because such essences limit their freedom. So liberals, on a nominalist, pragmatic basis, adopt a “living Constitution” view, or whatever, thinking that that will get them what they want, as they perceive what they want in the moment. But, as Matt says, “the implications of liberalism transcend what each particular individual liberal happens to think.” This is the case because liberalism is a rebellion from truth, and, once one has denied truth, the ongoing destruction of truth in all its aspects will proceed apace, with the unprincipled exceptions (i.e., the vestigial remnants of truth) that one personally favors being relentlessly shoved aside one by one. So, once liberals have signed onto liberalism, it must lead them in directions they had not imagined. Functionally, then, liberals are just like conservatives. They both keep being drawn further and further to the left by their subscription to, or failure to repent from, the liberal rebellion against truth. Metropolitan conservatives I have only a minor clarification on my understanding of the unprincipled exception (a concept that Mr. Auster introduced to me but, as we see, has a transcendent nature beyond what either Mr. Auster or I will it to be!) Mr. Auster characterizes it thus: An unprincipled exception is what happens whenever a liberal asserts something that is supposed to authoritatively discriminate, despite the fact that liberalism prohibits authoritative discrimination. It may be a vestigial truth, particularly in the more classical forms of liberalism. Often it is not though: often it is something else that has completely replaced a traditional moral truth in the mind of the particular liberal. An example that comes to mind is the Nazi assertion of blood and will as a discriminating authority against the tyrannies it perceived as preventing the emergence of the free and equal superman. A more contemporary example might be the authoritative discrimination against property owners that forces them to rent to publicly-declared sodomite tenants. Because this is an authoritative discrimination it is an unprincipled exception to liberalism; but it is not based in traditional morality. Another example of a UE is affirmative action. Another example of a UE is the enforcement of property rights. Summary: an unprincipled exception is any liberal assertion of discriminating authority at all. It may or may not be based in a vestigial traditional moral truth. Posted by: Matt on July 15, 2003 6:33 PMI think Matt is correct. Sometime we ought to do a search for all the discussions we’ve had of the UPE and try to tie them all together. I’m not sure, but the concept may have been used in different senses at different times. This is not necessarily an objection but a reflection of the largeness of the idea. Here, for example, is a comment from me in a thread called “Common sense: the only permitted non-liberal concept”: ————- Thus the dominant liberalism maintains itself in existence by making unprincipled exceptions to itself, while conservatism survives within that same dominant liberalism by offering unprincipled resistance to it. I think this gives an idea of the unexpected richness of the idea. Thus, in the current thread, we’ve been discussing it as a form of resistance to liberalism, a holdout AGAINST liberalism, until liberalism finally wipes it out; but in my quoted comment it’s more like a self-correcting method employed BY liberalism, to help keep liberalism from running off the rails. Another polarity, as Matt has indicated, may be between holdouts against liberalism that are based in truth, and holdouts against liberalism that are themselves symptoms of liberalism. For example, society’s making a moralistic cult, enforced by police state measures, against smoking (even as society liberates sodomy) would be a form of authoritative discrimination that liberalism uses to maintain some simulacrum of moral order. But this similacrum of order is based neither in liberalism itself (it’s an unprincipled exception), nor in a traditional order of society. |