A sad day for America

4 Comments

1. 

   Jeff Harrell

   June 28, 2007 at 5:15 pm

   Well, dude, it’s kind of a rock and a hard place. If you cannot discriminate based on race, then you cannot discriminate on race. Regardless of whether the current political climate says it would be a good thing in the long run or not.

   The alternatives are to say that it’s fine to discriminate based on race (which is a course fraught with peril), or to say that it’s okay to discriminate based on race sometimes. Expecting our legislature to craft an unambiguous, clearly interpreted Constitutional amendment to that effect is, I think, overly optimistic.
2. 

   Jacob Davies

   June 28, 2007 at 7:10 pm

   There is no need for a constitutional amendment making certain kinds of notice paid to race by the government constitutional, as they’re not unconstitional now (or haven’t been held to be by decades of precedent).

   I quote from Breyer’s dissent (well worth reading, especially for the history): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=05-908#dissent2

   Courts are not alone in accepting as constitutionally valid the legal principle that Swann enunciated–i.e., that the government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so. That principle has been accepted by every branch of government and is rooted in the history of the Equal Protection Clause itself. Thus, Congress has enacted numerous race-conscious statutes that illustrate that principle or rely upon its validity… In fact, without being exhaustive, I have counted 51 federal statutes that use racial classifications.

   Further:

   That view understands the basic objective of those who wrote the Equal Protection Clause as forbidding practices that lead to racial exclusion. The Amendment sought to bring into American society as full members those whom the Nation had previously held in slavery. See Slaughter-House Cases, 16 Wall. 36, 71 (1872) (“[N]o one can fail to be impressed with the one pervading purpose found in [all the Reconstruction amendments] . . . we mean the freedom of the slave race”); Strauder v. West Virginia, 100 U. S. 303, 306 (1879) (“[The Fourteenth Amendment] is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated . . . all the civil rights that the superior race enjoy”). There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race-conscious criteria to further that purpose, namely to bring the races together.

   The idea that the government must be “colorblind” is not one supported by precedent. Intent matters. Certainly the government is not required to be colorblind even when doing so would leave them unable to address the great inequality of school segregation. There’s no “gotcha!” clause that says you can’t pay attention to race in remedying racial inequality, and in fact that would be: stupid.

   Unfortunately just that kind of stupid is what the majority went for in this case; the kind that says that you can wish away racial inequality at the stroke of a pen.
3. 

   Rafe

   June 28, 2007 at 7:37 pm

   Thanks, Jacob. As Breyer points out, all people are guaranteed equal protection under the law by the Constitution. It never says that race cannot play a factor in government decisions.
4. 

   Howard Berkey

   June 29, 2007 at 1:25 am

   As Jacob has noted elsewhere, Stevens hits a home run with his dissent:

   There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. [He] states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”