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June
25, 2003, 11:35 a.m. By Ramesh Ponnuru |
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obert
Bork has called it "the 'heart's desire' school of constitutional
jurisprudence." The key tenet of that school, according to Bork,
is, "If you want something passionately enough, it is guaranteed
by the Constitution." Conservatives are very familiar with liberals'
tendency to accord constitutional status to their policy preferences.
But conservatives, of course, have their own passions.
One of them is colorblind government. Most conservatives believe that America should discard all policies designed to discriminate in favor of blacks, Hispanics, and other minority groups, just as it discarded its discrimination against them. Minority set-asides in federal contracting, legal standards that pressure employers to hire by quota, racial double standards in university admissions: All should go. Moreover, conservatives generally believe that racial preferences are not just unwise and immoral, but unconstitutional.
The Supreme Court is considering the University of Michigan's racial preferences in two cases this term. Conservatives hope that the Court will strike down all such preferences as violations of our colorblind Constitution. They are upset that the Bush administration's briefs to the Court in the Michigan cases do not seek this outcome. So far, the only conservative of note who has dissented from this view is Charles Krauthammer. He argues that, while racial preferences are unconstitutional, it would be imprudent for the Supreme Court to abolish them, especially since they are already "dying a popular and legislative death."
But conservatives, Krauthammer included, are wrong. The Constitution does not impose a colorblind regime; racial preferences are unwise and immoral, but they're not unconstitutional. That's the conclusion that conservatives would reach, at any rate, if they applied their usual standards for judging constitutional issues to race.
The dominant view among conservatives is that the text of the Constitution should be read in light of its original understanding. The Bill of Rights, for example, means what the informed public of the early 1790s understood it to mean. It may be difficult to determine what the original understanding was, or how to apply it to the changed circumstances of the present. But those should be the goals. To depart from the original understanding is to amend the Constitution without having the country ratify the change.
Conservatives have made variants of this argument for two generations. They have been especially vigilant in resisting novel readings of the Fourteenth Amendment, seeing them quite rightly as the engines of — to quote the title of a book on the amendment by the late Raoul Berger, a prominent critic of the Warren Court — government by the judiciary. Yet when conservatives come to affirmative action, originalism goes out the window.
The Center for Equal Opportunity, the Independent Women's Forum, and the American Civil Rights Institute — three conservative organizations that have shown an admirable devotion to the principle of colorblindness — submitted a legal brief to the Supreme Court in the Michigan cases. The brief concludes that preferences are incompatible with the Fourteenth Amendment, which says that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The argument is based on the Court's precedents and doctrines. The authors do not attempt to determine the original meaning.
Perhaps this silence reflects a judgment that the justices of the Supreme Court, to whom the brief is addressed, are themselves less interested in the original understanding than in their own case law. If so, the judgment cannot be faulted. The Court's last decision regarding racial preferences was handed down in the Adarand case (1995). It was a major triumph for conservative advocates of colorblindness. None of the justices bothered to attempt to link colorblindness to original understanding. The majority opinion, written by Sandra Day O'Connor, worked within the Court's jurisprudence. In a concurring opinion, Clarence Thomas asserted that set-asides for minority contractors reflect a "paternalism that . . . is at war with the principle of inherent equality that underlies and infuses our Constitution." His only supporting evidence was a reference to the line in the Declaration of Independence proclaiming that "all men are created equal." This is something less than an airtight case.
In truth, the claim that the Fourteenth Amendment, as originally understood, bars racial preferences cannot really be maintained. In 1865 and 1866, radical Republicans proposed a constitutional amendment declaring, "No state shall make any distinction in civil rights and privileges . . . on account of race, color, or descent." The proposal failed. Colorblindness "died in the Joint Committee of the Thirty-Ninth Congress," as Andrew Kull remarks in The Color-Blind Constitution (1992). America would almost certainly have been better off had the no-distinction amendment prevailed. But the Fourteenth Amendment that actually passed was much more limited.
Just how limited is the subject of debate among historians, as it was among politicians of the late 1860s and early 1870s. On the narrowest reading, the equal-protection clause was meant to require states that protected the lives, limbs, and property of some people to extend those protections to all people. Introducing the amendment on the House floor, Thaddeus Stevens expanded on the point: "Whatever law punishes a white man shall punish the black man in precisely the same way and 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 all. Whatever law allows the white man to testify in court shall allow the man of color to do the same."
Some historical support is available for broader interpretations. The equal-protection, due-process, and privileges-and-immunities clauses of the Fourteenth Amendment may have been intended to apply some of the Bill of Rights to the states. (The evidence is summarized by Earl Maltz in Civil Rights, the Constitution, and Congress, 1863-1869.) The clauses may also have been understood to guarantee other civil rights. Michael McConnell, recently confirmed to a federal appeals court, has argued that Reconstruction-era Republicans considered segregation in education to be a violation of civil rights and that Brown v. Board of Education is thus defensible on originalist grounds.
But not even the broadest plausible originalist account of the Fourteenth Amendment holds it to forbid all governmental discrimination by race. Nor can the amendment be held to assert an individual right to race-blind treatment in state-university admissions (or federal contracting). A few justices of the Supreme Court have held the Constitution to command colorblindness, but no majority has ever done so.
The Supreme Court should uphold the University of Michigan's admissions preferences as constitutional. But then it should strike them down anyway, because they're illegal. The Constitution may not prohibit racial discrimination, but the Civil Rights Act of 1964 does. It is a long-accepted legal doctrine that if a court can settle a case on statutory rather than constitutional grounds, it should do so.
Racial preferences in university admissions have continued only because the Civil Rights Act has been ignored. The Supreme Court's 1978 Bakke decision, which gave a green light to universities to give a "plus factor" to minorities, conjured the statute away by sleight of hand: Justice Powell ruled that the Civil Rights Act was a congressional attempt to enforce the Fourteenth Amendment. The act, therefore, must have been meant to prohibit only those things that the amendment prohibits. What the amendment prohibits is (supposedly) something for the Supreme Court to decide. Powell found that the amendment does not prohibit the use of race as a plus factor, and therefore the act doesn't either. It was the jurisprudence of a Houdini seeking to escape the shackles of law.
If Michigan's racial preferences are illegal, the patient reader may wonder, why does it matter that they are constitutional? Its constitutionality has two noteworthy implications. The first is that the Supreme Court is not allowed to strike down racial preferences that are not prohibited by statute. This means that minority set-asides in federal contracting and the portion of the Voting Rights Act that aims to increase the number of congressional districts dominated by minority voters — both authorized by Congress — have to stand. The argument for the unconstitutionality of these measures was always a stretch: The Fourteenth Amendment commands states to provide equal protection, and thus can hardly be held to restrict congressional action.
The second implication is that, if Congress wants to let universities continue to use racial preferences, it can change the law. In my view, it should do so. That's not because racial preferences in college admissions are a good idea. They're not. They introduce a note of dishonesty; they're a thumb on the scale of a competition. They foster a race consciousness that is unhealthy for a campus or a nation. They are a diversion from the task of reforming K-12 education so that black and Hispanic students can compete on their merits. They are a disservice to those minority students whom they place on campuses where they cannot compete, and to those whom they stigmatize. But universities do a lot of foolish, and sometimes wicked, things that the federal government ought not to prevent. Yale should be able to set its admissions policies as it sees fit.
When it comes to affirmative action, conservatives could stand to get re-acquainted with free markets as well as with originalism.