The Color of California

...Which is where Congress comes in . . . A ffirmative action has suddenly climbed to the top of the political agenda...

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...Constitutional limitations limit political options, and groups seeking different policies find these limitations irksome—that, of course, is the whole point of a constitution: to constrain political activity...

...Early opinion polls have shown overwhelming public support for the ballot initiative...

...C3 American Spectator Investigative Reports Available David Brock's "Strange Lies" reveals the truth behind Jane & Jill's sham attack on Clarence Thomas—and it's now available to TAS readers as a special report...

...If the Court rules that a citizen initiative cannot overrule gay rights measures, it can hardly turn around and sanction a citizen initiative to take away affirmative action benefits in California...

...Even more tellingly, in each of these cases the courts insisted that these benefits had to be understood as special benefits for particular, favored constituencies...

...But it would be unfair, those challenging CCRI will say, to deny the beneficiaries of affirmative action the right to persuade state authorities to maintain or even expand such benefits...

...Perhaps even this point remains unclear, given the whimsicalities of constitutional doctrine...

...In these referendum cases, the courts have brushed aside such lofty notions...

...It would be ironic, to say the least, if the Republican Congress, now so preoccupied with term limits for its members, allowed the central political debate of the moment to be settled by life-appointees on the Supreme Court...

...But the Court looked behind the actual language and actual policy—no busing, not for whites, blacks, or anyone—to discern a sinister racist impulse motivating the voters...

...The question of the hour is not whether the Supreme Court will deliver the nation from the abuses of affirmative action, but simply whether it will stand aside and let the nation sort through these problems on its own...

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...Amidst the political speculating, little attention has been paid to the one Washington institution that must respond most directly to the CCRI—the Supreme Court...

...and who have all complained about judicial overreaching but can't endorse any clear jurisdictional line to prevent it...

...The trigger for the current debate on afinniative action was not the Contract With America but rather a citizen initiaJeremy A. Rabkin is an associate professor of government at Cornell University...

...The Supreme Court's decision in the Colorado case will be an early warning...

...Let Congress clarify the principle, and then let us see whether the Court will dare to say that "principle" requires giving some issues and constituencies a privileged protection from popular referenda...

...The Supreme Court found this an intolerably discriminatory act, because the amendment "disadvantage[d] those who would benefit from laws barring racial, religious or ancestral discrimination as against . . . those who would otherwise regulate the real estate market in their favor...

...It is quite all right to place The question of the hour is not whether the Supreme Court will deliver the nation from the abuses of affirmative action, but simply whether, it will stand aside and let the nation sort through these problems on its own...

...This understanding emerges not from some fanciful interpretation of the decisions but from the face of the opinions: What else did the Supreme Court mean when it protested, in Hunter v. Erickson, a city charter amendment that "disadvantages those who would benefit from laws barring racial, religious or ancestral discrimination . . . against those who would otherwise regulate the real estate market in their favor...

...The Court will surely be aware that to uphold the CCRI is to accept a flood of similar measures around the country, which will undoubtedly be met by shrieks of horror and outrage by minority spokesmen and feminists...

...T he constitutional amendments in these referendum cases did not involve direct infringements on anyone's personal freedom...

...The ACLU did not think so when it supported the Religious Freedom Restoration Act (signed into law in 1993 by President Clinton), which sought to overturn a restrictive 1990 ruling, authored by Justice Scalia, on the rights of religious minorities...

...In a burst of enthusiasm for federal voting-rights legislation, the Warren Court enunciated the doctrine that Congress has the power to legislate its own interpretations of the Fourteenth Amendment guarantee of "equal protection of the laws...

...tive—the California Civil Rights Initiative (CCRI), a proposal to prohibit the California government from imposing preferences on the basis of race, ethnicity, or sex in higher education admissions, government employment, and government contract awards...

...Not long ago, Justices Kennedy, Souter, and O'Connor explained that the Court could not overrule its past decisions if "social and political pressures" seemed to be the reason for doing so: "Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation" (Planned Parenthood v. Casey, 1992...

...n the past, the Court has gotten away with its contempt for voters because an entrenched liberal majority in Congress had learned to be equally indifferent to public opinion on fundamental issues such as affirmative action...

...The Court found this logic so compelling that it returned to it two years later in a referendum case that did not even involve a total ban on anti-discrimination measures...

...State constitutional provisions limiting aid to religious schools are supposed to curb the effectiveness of groups advocating such aid—and very much do so...

...In the 1982 ruling in Washington v. Seattle School District, the Court struck down a Washington state voter initiative that sought to prevent Seattle and other school districts from adopting mandatory busing for school integration (except to satisfy specific, court-ordered constitutional requirements...

...Of course, California need not have engaged in racial preference beyond what was required to eliminate actual discrimination...

...The odds are that the Court will flinch from such a confrontation with a determined Congress...

...The amendment would have repealed gay-rights ordinances in several Colorado towns and prevented them from being re-enacted...

...Justices Scalia and Thomas, as well as Chief Justice Rehnquist, will almost certainly scoff at such sophistry...

...To put it politely, they are inclined to temporize...

...Yet a dozen years later, when the Burger Court was already past the peak of its own activism, the same line of reasoning was followed...

...It is hardest to predict the response of Justices Kennedy, O'Connor, and Souter, who disclaimed the reasoning of Roe v. Wade but couldn't bring themselves to disappoint its supporters by overruling it...

...The national debate over affirmative action will be with us for a long time...

...These are not policies by and for the whole community, on whose behalf the majority may decide...

...Having championed forced busing for integration, the Supreme Court is hardly in a position to speak out with moral authority on behalf of color-blindness...

...Non-discrimination measures, according to the new reasoning, are special benefits for special constituencies, who therefore suffer special injury if such measures are thwarted...

...But Congress first needs to make clear that it is determined to correct the Court on this matter...

...In the glory days of the civil-rights movement, we were told that integration and non-discrimination were good for everyone...

...Congress can specify that no referendum measure should be judged unconstitutional, unless the same policy would be judged unconstitutional if it came into effect through action or inaction by the state legislature or local legislative authorities...

...This referendum, too, had repudiated a local gay-rights ordinance passed by the city council, and amended the city charter to prohibit any "protected status, quota preference or other preferential treatment" based on homosexuality...

...Before we can achieve color-blindness or neutrality in employment and higher education, we must ensure an end to special preferences in judicial doctrine...

...To achieve this, Congress need only accept its central responsibility in the constitutional scheme—voicing the will of the people...

...Is it undermining the Supreme Court's authority to try to overturn a constitutional doctrine by ordinary legislative action...

...The reasoning in both of these cases is absurd...

...How could the Court say that gays are now more specially protected than racial minorities...

...who at various times have all criticized the Court's hostile stance toward religion but couldn't bring themselves to override the key doctrines behind it...

...They are specially protected gains for specially protected groups, whom the majority cannot be trusted to treat fairly...

...How this reasoning applies to the California Civil Rights Initiative is easy enough to see...

...Congress was certainly not going to punish the Court for overruling yahoos in the states—people who could be rude enough to put constitutional obstacles in the path of constituencies that were also Congress's special favorites...

...The American Spectator May 1995 25 constitutional obstacles before advocates of spending or advocates of religious schooling or advocates of traditional sex roles—but not before favored constituencies...

...But for all the talk of fairness and principle, hardly anyone expects the Supreme Court to chart the path of reform...

...W ould the Court still hold to these precedents today...

...The Court has an established track-record in responding to citizen initiatives and referenda on racial matters, and that record has very disturbing implications for the fate of the California initiative...

...There are enough strong feelings and perplexing details that the country may need a number of years to work through all the issues and sort out all the affected policies...

...But many past cases have affirmed the special constitutional status of racial minorities while the U.S...

...Other judges have not regarded these referendum cases as relics of a discredited past...

...The Court provided no evidence for this interpretation, apparently believing it self-evident that opposition to state regulation of private markets in this area must be racist and, therefore, unconstitutional...

...If it is constitutional for the city council of Cincinnati not to adopt a gay rights measure, it should be constitutional for 26 The American Spectator May 1995 the voters of Cincinnati to direct the city council not to adopt such a measure...

...Critics argue that according preferences on the basis of race, sex, or ethnicity is contrary to American principles...

...As the four dissenters in Reitman pointed out, the Court was thus saying that a neutral measure—one neither endorsing nor prohibiting private actions—was mere "camouflage" for "an affirmative call tosaw this voter initiative as racially invidious: "[W]hen the political process or the decision-making mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment, the governmental action plainly rests on distinctions based on race...

...But while the debate and the policy reforms continue, Americans do not need courts to act as their ideological chaperones...

...Having confused the moral quandaries of abortion with the rights of women, the Court is not likely to display moral courage on sex-based preferences...

...Fortunately there exists a relatively easy way to handle this matter—if the Court will let it be easily handled...

...The Colorado case is now on direct appeal to the Supreme Court...

...Again, the Courttected status or claim of discrimination" (Evans v. Romer, 1994...

...W ill the present Supreme Court embrace this reasoning...

...The Court's decision in that case will determine the fate of the Cincinnati ruling as well...

...The same reasoning was applied last year by a federal district judge to overturn a citizen referendum in Cincinnati (Equality Foundation v. City of Cincinnati, 1994...

...Jeremy A. Rabkin The Color of California A popular citizens' initiative could restore the color-blindness promised by the Civil Rights Act of 1964—unless the courts intervene to rescue affirmative action...

...Of course, as the dissenting justices pointed out, the Washington state measure was phrased in entirely neutral terms...

...Justice Stevens (who readily endorsed it in 1982) and Clinton appointees Ginsburg and Breyer are likely to find it compelling...

...The Court acknowledged that California was not obliged by the Constitution to maintain laws against discrimination in housing sales or rentals...

...it merely specified that such measures be submitted to voter approval before taking effect...

...Polls find most Americans regard quotas and preference schemes as unfair...

...It did not bar anti-discrimination measures outright...

...Last year the Colorado Supreme Court overturned a state constitutional amendment—once again adopted by citizen initiative and referendum—that sought to prohibit the state and its localities from treating homosexuality as the basis for "quota preferences, proresidents of California to discriminate...

...But what has really caught the attention of the national media is the realization that this measure cannot go before the voters until next year—when presidential contenders will be campaigning in California, and will find themselves pressed to take a stand on the principles embodied in this referendum measure...

...It also allowed that, in principle, California was not forbidden to repeal measures it was not obliged to adopt in the first place—in other words, that the state legislature was free to rescind its own anti-discrimination laws...

...CCRI will certainly not present the first occasion when the Court has been asked to discipline unruly voters in California...

...The new Congress, before it rushes in with its own reform measures in this area, needs to give attention to keeping the Supreme Court out...

...In 1964 the state's voters passed a constitutional 24 The American Spectator May 1995 amendment that sought to overturn a variety of "fair housing" laws previously adopted by the state legislature, and to replace them with a general guarantee that owners of real estate could sell or rent (or decline to do so) on any terms they chose...

...In its 1967 ruling in Reitman v. Mulkey, the Supreme Court held that this repeal measure was in violation of the federal Constitution...

...Justice Black captured the gist of the decision in his dissent: "[C]onditioning the enactment of a law on a majority vote of the people condemns that law as unconstitutional in the eyes of the Court...

...Most people will have no difficulty recognizing this standard as an expansion of equal rights, compared to the current norm by which only some voter preferences can be adopted by referendum while others are screened out on behalf of pet constituencies...

...As in California, the Akron amendment had been adopted by voter initiative in response to public disagreement with "fair housing" ordinances adopted by the city council...

...Congress may do so, Justice Brennan explained, if it is "expanding" individual rights rather than contracting them (Katzenbach v. Morgan, 1966...

...U ntil now, the press has focused on how the Clinton administration will try to "spin" this issue and on how national Republican leaders will respond...

...What if the voters try to limit free speech or impose new forms of sex discrimination by citizen initiative...

...No one seriously argues that these constitutional limits therefore deny political equality to those who seek opposing policies...

...Supreme Court, itself, has not once recognized homosexuals as a specially protected group...

...The judges, citing Reitman, Hunter, and Seattle, concluded that voters were imposing a discriminatory burden on the state's gay residents...

...But the Court insisted this was no mere repeal measure: "The right to discriminate . . . was now embodied in the state's basic charter...

...Box 549, Arlington, VA 22216-0549 Yes, please send me: copies of James Ring Adams's "Beyond Whitewater" $ copies of James Ring Adams's "The Whitewater Obstructionists" copies of John Cony's "The MIA Cover-Up" copies of Michael Fumento's "This Magic Moment" copies of Daniel Wattenberg's "Lady Macbeth of Little Rock" copies of Daniel Wattenberg's "Love and Hate in Arkansas" copies of Terry Eastland's "Rush Limbaugh: Talking Back" copies of "The Incredible Shrinking AIDS Epidemic" copies of Lisa Schiffren's "The Unauthorized Clinton Financial Audit" copies of David Brock's "Living With the Clintons" copies of David Brock's "The Real Anita Hill" copies of David Brock's "The Travelgate Cover-Up" copies of David Brock's "Strange Lies" Sub-Total VA residents add 4.5% sales tax Total Enclosed $ Name: Address: LCiry: State: Zip Code: RP9505 The American Spectator May 1995 27...

...These decisions came in the activist heyday of the Warren Court...

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...they were general principles for the benefit of the whole society, reflecting ideals to which the whole country should be committed...

...All of the court rulings against citizen-initiated amendments make sense only with the understanding that some groups require special protection...

...A balanced-budget amendment is supposed to restrict the influence of spending advocates, and in states that have such provisions in their constitutions, it does...

...Racial minorities and gays, we learn from these rulings, are favored constituencies...

...To put it honestly, they are balancing the expectations of rival political constituencies...

...No one can answer this question with assurance...

...If it is constitutional for the California legislature not to adopt racial preference measures, it should be constitutional for the voters of California to direct the legislature not to adopt such measures...

...r The American Spectator, P.O...

...In Hunter v. Erickson, the Court overturned an amendment to the city charter of Akron, Ohio...

...All reasonable objections could be answered by a simple qualification...

...So Congress need now only enact a law giving citizens equal right to have their preferences adopted by citizen initiative, where state and local laws provide for such mechanisms...

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...Rather, the courts defined as unconstitutional "burdens" what were, in fact, simply obstacles to obtaining special government benefits—benefits that, in every case, the courts acknowledged that government was not obliged to provide...