Correspondence
Correspondence AFFIRMATIVE REACTION CHARLES KRAUTHAMMER would prefer that the issue of racial and ethnic preferences be resolved through the political process ("How N^t to Abolish Affirmative...
...ROGER CLEGG Center for Equal Opportunity Sterling, VA IN THE COURSE of his otherwise excellent, thought-provoking essay on "How Not to Abolish Affirmative Action," Charles Krauthammer makes one assertion that does not stand up to, ahem, strict scrutiny...
...And as to whether the political process should be left to end these practices rather than the courts, that already took place in 1868 when 28 state legislatures completed ratification of the Fourteenth Amendment...
...In Brown v. Board of Education, Warren embarked on a laudable quest to achieve a more just society...
...I believe that is only partially true...
...So the only way the Court can follow his prescription is by ignoring the law...
...Correspondence AFFIRMATIVE REACTION CHARLES KRAUTHAMMER would prefer that the issue of racial and ethnic preferences be resolved through the political process ("How N^t to Abolish Affirmative Action," Feb...
...Plessy v. Ferguson ("separate but equal") cried out to be overturned, but not through faulty legal logic...
...The immediate result—the elimination of officially sanctioned segregation of schools—was certainly correct...
...But justice could have been achieved without shoehorning into the Constitution meanings that just aren't there...
...because of the constitutional imperative to undo disenfranchisement...
...In doing so, it opened a Pandora's box of judicial activism that paid little or no heed to the explicit text of the Constitution...
...Brown and its immediate progeny enshrined in constitutional jurisprudence both an expansive misreading of "equal protection" requirements and an unwarranted expansion of "substantive due process" rights...
...Had the Court done so back in 1954, it might have stopped the discrimination against black Americans without giving rise to bizarre judicial theories which, at their most asinine, sanctioned extensions of a "penumbra, formed by emanations" of the rights Justice Earl Warren discovered in Brown...
...And we have a statute (Title VI of the Civil Rights Act of 1964) that says even more explicitly that institutions that get federal money cannot make race-based decisions...
...But we have a constitutional amendment (the Fourteenth) that deliberately—and, it ought to be added, with good reason— removes race-based decision-making from the political process...
...So the Court would not only be shirking its legal duty if it declines to strike down the use of racial and ethnic preferences...
...The "race matters" crowd—especially in our elite institutions of higher learning—constantly finds new and ingenious ways to inject skin color into our affairs...
...The victories at the ballot box and the courtroom have been helpful, but not conclusive...
...Leaving aside the niggling point that the franchise itself (the right to vote) was not at issue, the more important error (of the head, not the heart) is the unmodified assertion that the case was decided correctly...
...In fact, the preferences are almost always kept hidden, denied, and lied about until someone brings a lawsuit or files a freedom-of-information request...
...QUIN HILLYER Mobile, AL CONTRARY to the usually insightful Charles Krauthammer, the rumors of affirmative action's "popular and legislative death" are greatly exaggerated...
...EDWARD BLUM American Civil Rights Institute Washington, DC...
...There is one more problem with leaving this issue to the political process, namely that it assumes that the propriety of racial and ethnic preferences will be openly debated before such discrimination takes place...
...Fourteen years ago, I began (but, with a new job calling me to a different city, did not finish) an independent study for noted scholar Walter Berns to see whether the justices in Brown might have been able to reach the morally necessary, desegregationist result by putting the focus not so much on "equal protection" as on fundamental liberties...
...In short, Brown reached the right result, but used wrong reason...
...it would be abandoning the issue not to the people but to the professoriate...
...But the legal reasoning was deeply flawed...
...My theory was that the Court could have dusted off the constitutional clauses concerning "privileges" and "immunities," unreasonably treated as if they were virtually meaningless by the Slaughterhouse Cases of 1873, to rule that blacks were being denied essential privileges in an unconstitutional manner...
...As the recipient of dozens of requests every month for legal help in fighting public and private race preferences, take it from me that reverse discrimination is hardly receding at all...
...In a 1999 case, three of the Supreme Court's "conservative" members (including Antonin Scalia) joined the Court's liberal bloc to resurrect "privileges and immunities" as a meaningful constitutional clause...
...The courts got us in this mess, now they need to take us out of it...
...Referring to Brown v. Board ^^ Education, Krauthammer writes that "Brown was right...
Vol. 8 • February 2003 • No. 23
