Did The 13th Amendment Bar All Slavery?

Critics of race preferences believe that the 14th Amendment’s command of “equal protection” is neutral and colorblind, i.e., that it bars racial discrimination without regard to the race of the victims or beneficiaries.

Defenders of race preferences, by contrast, argue that discrimination that benefits some minorities at the expense of whites and other minorities either is, for some reason, not really discrimination or that, if it is discrimination, it is, for some reason, not barred by the 14th Amendment or various civil rights acts whose injunctions are written in neutral, colorblind language.

Query: If the 14th Amendment allows unequal protection so long as the discrimination is not against blacks, does that mean that the 13th Amendment would allow slavery for whites and non-preferred minorities?

Say What? (22)

  1. The Constructivist May 16, 2006 at 4:18 pm | | Reply

    I think it’s worth noting that the “color-blind” aspects of the 14th Amendment were vitiated within years by Supreme Court decisions that legitimized Jim Crow and were already qualified by racialized limitations written into citizenship and naturalization law (cf. Jacobson’s treatment of the 1870 Naturalization Act and decisions based on it in Whiteness of a Different Color 73-75, 226-240), so you don’t have to be an originalist to argue that the “neutral, colorblind language” of the Civil Rights Amendments is something to be celebrated as a major revolution in American constitutionalism yet was not immune to being both pre-and re-racialized by American politicians and judges between the 1870s and the 1950s.

    For more on the history of how the 13th and 14th amendments have been interpreted by the courts, your readers may be interested in the following pages from FindLaw:

    http://caselaw.lp.findlaw.com/data/constitution/amendment13/01.html#1

    http://caselaw.lp.findlaw.com/data/constitution/amendment14/20.html#1

    http://caselaw.lp.findlaw.com/data/constitution/amendment14/24.html#1

    http://caselaw.lp.findlaw.com/data/constitution/amendment14/30.html#1

    Sorry, too lazy to make these into links.

    The history of these amendments has lead the Court to look at any race-specific proposals with strict scrutiny, so the fact that affirmative action has survived so long through so many equal-protection-based challenges suggests the Court has not been so worried about a return to slavery as your question implies we ought to be.

    Please show me how whites and other minorities are harmed by affirmative action in education. These kind of complaints have always struck me as the kind of “I didn’t get into Harvard [or Williams or wherever]–my life is over” whining that assumes that there’s such a huge difference between your first and next five top colleges or professional programs you’ve applied to.

    Note, too, how your argument that affirmative action is discrimination relies on the kinds of consequentialist/effects-based argumentation (“benefits some…at the expense of other[s]”) that conservatives spent so many years getting kicked out of traditional equal protection judicial decision-making. You have to specify an intent to discriminate under the 14th Amendment to win a case these days.

    Correct me if I’m wrong. And check out Debating Diversity in US Higher Education if you are curious about debates over the current Constitutional justification for affirmative action–the value of diversity.

  2. Federal Dog May 16, 2006 at 5:13 pm | | Reply

    “Please show me how whites and other minorities are harmed by affirmative action in education.”

    Being deprived of admission or financial aid based solely on race is per se harm.

    “These kind of complaints have always struck me as the kind of “I didn’t get into Harvard [or Williams or wherever]–my life is over” whining that assumes that there’s such a huge difference between your first and next five top colleges or professional programs you’ve applied to.”

    This is the “Yale or Jail” argument, and only those in favor of race discrimination make it.

  3. Hull May 17, 2006 at 8:56 am | | Reply

    Legislature makes law and courts interpret them.

    The 14th Amendment has been interpreted to allow non-invidious discrimination when there are compelling state interests (Grutter). Similarly, while the 1st amendment bars the abridgment of free speech, there have been limits placed on this freedom. We can’t yell fire in a crowded theater and expect the 1st amendment to protect us. Nor can we speak “fighting words” and expect the 1st amendment to protect us (Chaplinsky v New Hampshire). Nor can we slander or libel and expect the 1st amendment to protect us.

    So to answer your query: the 13th amendment has not been interpreted by Courts to allow slavery . . . ever. The 14th amendment HAS been interpreted by courts to allow non-invidious discrimination when there are compelling state interests and the discrimination is narrowly tailored to meet these ends (strict scrutiny). Neither Scalia nor Thomas disagrees with this interpretation.

  4. Hull May 17, 2006 at 11:53 am | | Reply

    “Being deprived of admission or financial aid based solely on race is per se harm.”

    But how do you know that a non-minority student is being deprived SOLELY based on race? The non-minority student who does not gain admission to their desired school is not deprived SOLELY because of their race. As far as the diversity discussion is concerned they are excluded because the school already has ample representation of non-minorites with better credentials than the excluded candidate.

    In other words, if there were no Blacks and Latinos taking YOUR SPOT at Yale, you would probably still be rejected because Yale already has an over abundance of people that are just like you (accept their grades and SAT scores are higher). If Yale were interested in having a non-homogenous class, they would reject you in favor of the foreign student or disabled student or whatever student they could find that was “different”. Why? Because despite the myth of meritocracy, schools choose classes for their own reasons that reach beyond grades and test scores. Occasionally the athlete or musician or math genius or language specialist or activist is more interesting to an admissions committee than Jane Doe with a 4.0.

  5. John Rosenberg May 17, 2006 at 12:02 pm | | Reply

    Hull:

    Legislature makes law and courts interpret them.

    Yes and no. Here, no: the legislature did not make the law of the 13th and 14th Amendments, which are not statutes.

    You are of course right about how courts have interpreted the 14th Amendment. It is not my contention that the courts have not interpreted those amendments in the way you say, but that they have wrong in the manner and degree of discrimination they have allowed. There is nothing in the 14th Amendment, nor especially in the text of the Civil Rights Act of 1964, that allows — much less requires or even invites — a stamp of approval for any racial discrimination some court finds not to be “invidious.”

    To say that the ban on racial discrimination is not absolute is not to say that it is as flimsy and porous as the courts have made it. For example, as I think I’ve said here before, to allow a police department to discriminate against whites, Hispanics, and Asians and in favor of a black applicant to be placed undercover in a black gang is to say that it’s therefore legitimate for General Motors or Harvard to discriminate in favor of black applicants. My complaint, that is, is not so much with the “strict scrutiny” standard as it is with the fact that, as applied by Justice O’Connor in Grutter, it wasn’t strict at all.

    Constructivist – Nice comment. Don’t have time to respond in detail now. For starters, though, I have noted here more than once, and do so again now, the oddity of those who justify racial preferences relying on the majority opinion in Plessy. (Don’t have time to find all these posts now, but they include, among others, the following: here 12/10/02, here, and especially here, here, and here.)

    You ask:

    Please show me how whites and other minorities are harmed by affirmative action in education.

    In my opinion, however, that is the wrong question; it implies the wrong standard against which allegedly discriminatory action must be judged. The rights protected by the 14th Amendment and the Civil Rights Act belong to indivduals, not groups. It doesn’t matter whether or not “blacks” or “whites” are injured by discrimination; what matters is whether an individual black or white has been discriminated against because of race.

    You also write:

    Note, too, how your argument that affirmative action is discrimination relies on the kinds of consequentialist/effects-based argumentation (“benefits some…at the expense of other[s]”) that conservatives spent so many years getting kicked out of traditional equal protection judicial decision-making. You have to specify an intent to discriminate under the 14th Amendment to win a case these days.

    With respect, I believe you’ve got this just about exactly backwards. First, for good or ill, I’m probably the least “consequentialist/effects-based” analyst you’ll find anywhere. I’m pretty much a straight down the line formalist. I believe discrimination on the basis of race is wrong, even in a situaltion (if there is such a situation) where its “effects” are minimal. I do believe it is necessary to establish intent to establish that discrimination has occurred (although there are certainly instances where intent can reasonably and persuasively be inferred from effects, such as the notorious “grandfather clauses” and similar measures). but an “intent” requirement is the opposite of an “effects” (disparate impact) analysis. There’s nothing inconsistent here at all.

    With respect to “strict scrutiny,” see my reply to Hull above in this comment. I’m for it, so long as it’s VERY strict.

  6. John Rosenberg May 17, 2006 at 12:28 pm | | Reply

    I was going to add a P.S. to my comment above, but now I don’t have to; I’ll just here in response to Hull’s latest that his response to my query about the 13th Amendment is very revealing. His response, in effect, was that the courts have interpreted the 14th Amendment to allow what he likes, but they have not interpreted the 13th to allow what he presumably would not like.

    That, if you’ll allow me to say so, is not a principled answer. And, indeed, I suspect if one or two more conservatives are added to the Supreme Court the liberals who make that sort of argument in the future will be severely reduced. A court, after all, that can add a requirement that discrimination be “invidious” to constitutional or statutory text here can also add it there.

    Here’s a hypothetical: imagine a much more pronounced backlash agains illegal immigration than we’ve seen so far, resulting in a future Congress and executive that passes and signs a “temporary worker” bill that looks, to the naked eye, and in fact is indistinguishable from indentured servitude for a period of years as one path toward eventual citizenship.

    Liberals (and not a few conservatives) claim that, whatever it’s called, this is really a form of slavery outlawed by the 13th Amendment. Not so, says the Court; there’s nothing “invidious” about it, especially since people enter into it voluntarily. (In the old days, before courts became as untethered from text as they became, even voluntary slavery would have been barred.)

    And moving on, it is really irrelevant, or should be, whether any applicant is denied admission or a job or a promotion or fired “solely” because of race. It is enough (or should be) to trigger a valid claim of discrimination if someone has been put at a disadvantage because of race, especially where that discrimination is intentional.

  7. Federal Dog May 17, 2006 at 1:11 pm | | Reply

    “But how do you know that a non-minority student is being deprived SOLELY based on race?”

    When calculations make it hundreds of times more likely that a preferred minority will be admitted over a white or Asian candidate, what other factor suffices to offset the consideration of race?

  8. Hull May 17, 2006 at 2:55 pm | | Reply

    Congress proposed both Amendments and State legislatures ratified them.

    “It is not my contention that the courts have not interpreted those amendments in the way you say, but that they [were] wrong in the manner and degree of discrimination they have allowed.”

    Well, John, that’s your opinion and you are of course entitled to it, but whether you think the law is right or wrong is kind of beside the point. The laws of this country allow discrimination (through strict scrutiny). The ban on discrimiantion is NOT absolute and the Supreme Court (including your boys Scalia and Thomas) does not agree with you. Regardless of whether the 14th Amendment and the Civil Rights Act do not explicitly allow discrimination, they have been interpreted so. Again, taking the free speech example from the 1st Amendment: the Amendment bars limitations on free speech . . . PERIOD. If you just look at the 1st Amendment, you would be lead to believe that you can say whatever you want, whenever you want. Of course, we know this is not the case, because courts have interpreted the meaning of the Amendment to ban certain types of speech that I illustrated above. Similarly, the 14th Amendment bans discrimiantion . . . PERIOD. But courts have interpreted this as a ban on invidious discrimiantion, NOT discrimination in every instance. That’s the law. If you don’t like it, run for office.

    “His response, in effect, was that the courts have interpreted the 14th Amendment to allow what he likes, but they have not interpreted the 13th to allow what he presumably would not like.”

    Yes, the Courts have interpreted these Amendments in a way “that I like”. So what? The Court determined that these Amendments should be applied as they are because they think it makes sense for society. Frankly, the fact that a minority of lay people disagree with this interpretation speaks more to the lay people’s understanding of the law than to the inherent morality or validity of the law.

    Also John, you say:

    “With respect to “strict scrutiny,” . . . I’m for it, so long as it’s VERY strict.”

    If that’s the case then you need to stop saying that the 14th Amendment and Civil Rights Act absolutely ban discrimination. Strict scrutiny means that discrimination IS allowed. Either you’re against strict scrutiny or you accept that discrimination is allowed in certain instances. You can’t have both.

  9. Dom May 17, 2006 at 3:12 pm | | Reply

    “… Yale already has an over abundance of people that are just like you …” Meaning that Yale already has students of my race. Yale does not say, “we already have Catholics with your grades”, or ‘we already have people of your political stripe with your grades.”

    In other words, race is being used to deny me entrance into a university. How is that not discrimination based on race?

  10. John Rosenberg May 17, 2006 at 9:17 pm | | Reply

    Hull replies:

    Congress proposed both Amendments and State legislatures ratified them.

    Yes, but that’s not what you said initially and hence not what I was disagreeing with. You wrote at first that “Legislature makes law and courts interpret them,” but the legislature (Congress) did not “make” the law of the 13th and 14th Amendments.

    The laws of this country allow discrimination (through strict scrutiny).

    Why repeat that? I haven’t disagreed, though I think, to the extend that it’s true, the courts have been wrong.

    The ban on discrimiantion is NOT absolute and the Supreme Court (including your boys Scalia and Thomas) does not agree with you.

    Again, even aside from whatever Scalia and Thomas believe (and I suspect they in fact do agree with what I’ve been arguing here), I’ve never said that the ban was, or even should be, “absolute.” Even the Civil Rights Act, whose language is clearer and more absolute than the 14th Amendment, allows for BFOQs (bona fide occupational qualification) exception to its very strict ban on all racial discrimination.

    You continue to object, in effect, to people opposing a ban on shouting fire in a crowded theater when no one I can see is objecting to that. What we object to is the courts’ using the language of “strict scrutiny” to impose an actual standard of very little scrutiny.

    Also John, you say:

    “With respect to “strict scrutiny,” . . . I’m for it, so long as it’s VERY strict.”

    If that’s the case then you need to stop saying that the 14th Amendment and Civil Rights Act absolutely ban discrimination. Strict scrutiny means that discrimination IS allowed. Either you’re against strict scrutiny or you accept that discrimination is allowed in certain instances. You can’t have both.

    In fact, as traditionally applied, i.e., before O’Connor eviscerated it in Grutter, “strict scrutiny” in fact mean that discrimination was almost never allowed. Have you never heard the often-repeated (pre-Grutte quip that strict scrutiny is “strict in theory but fatal in fact”? (One of the exceptions, Korematsu, upholding the Japanese-American detention camps, is one of most-hated Supreme Court opinions in history.) Perhaps you could point to all the pre-Grutter cases where a court applied strict scrutiny and approved the discrimination being contested. (Hint: there are one or two but not many.) And when you tire of looking for them, perhaps you could also point to those places where you think I’ve said the ban on discrimination was “absolute.” What I’ve said is that I in fact accept the “strict scrutiny” standard but that the courts’ version of it is far too often far too lax.

    And when you tire of that search perhaps you could then point to polls or other data to support your (quite mistaken) view “that a minority of lay people disagree” with my opposition to racial preferences. All the polls I’ve seen (yes, all) and the actual votes in California and Washington state support the opposite conclusion.

    Finally, with regard to “strict scrutiny,” I suggest that you take a look at this fine article by Peter Schuck of the Yale Law School (author of Diversity in America [Harvard, 2003]), who argues that O’Connor’s version of strict scrutiny “will convince no one who is not already a true believer in preferences.” (Note that Schuck doesn’t argue that there are no good legal arguments for preferences, only that the Grutter majority doesn’t make them. He finds the moral and political arguments against racial preferences stronger than the available (but unused by the Grutter majority) legal arguments arguments against it)

    The majority’s application of strict scrutiny amounts to a dilution of that indispensable standard. It relies on an unexamined, shallow conception of diversity and of what is required to produce its benefits. In the name of that diversity, it relies on the very stereotypes it opposes, stereotypes that it ironically believes preferences will discredit and dispel. Its constitutional test compels a conclusion that is precisely the opposite of the one it reaches. It hopes that preferences will be temporary, yet its own logic would perpetuate them. In another of the case’s striking ironies, the decision will promote uniformity, not diversity, in the design of future affirmative action programs. Finally, its decision, far from bringing closure to the bitter, three-decade debate over preferences, will in fact inflame and enlarge it.

    ….

    Strict Scrutiny

    Strict scrutiny is supposed to be, well, strict. Its raison d’etre is to be rigorous, skeptical, and demanding enough to challenge the government’s premises, flush out its true motives, and ensure a very tight congruence of evidence, legal categories, and policy justifications. Strict scrutiny is employed, of course, when there are especially good reasons to think that, as with racial classifications, the government may be playing with fire around highly combustible materials.

    Many academic advocates of preferences, of course, argue that the strict scrutiny standard formulated by the Court in Croson and Adarand (per Justice O’Connor, no less) was too strict, even Procrustean, and that a “benign” preference adopted by self-abnegating majorities should be judged less rigorously. Whatever the merits of this argument – note that in fact no majority has, or is likely to, adopt preferences, so its benignity is decidedly in the eye of the beholder – the Grutter majority does not accept it. Nor does it even come close to applying the traditional standard. There may well be a middle ground of strictness, but the majority does not occupy it. Grutter’s remarkable latitudinarianism, as we shall see, pervades every aspect of its analysis. As the Chief Justice correctly notes, the majority’s review of Michigan’s preference system is “perfunctory” and “unprecedented in its deference.” It remains a mystery why universities sponsoring preferences are more entitled to such deference than, say, the private employers or municipal procurement agencies whose plans have been struck down in the past under strict scrutiny. In adopting and structuring such plans, universities, no less than employers and agencies, respond to a variety of political, ideological, competitive, social, legal, and institutional pressures. They all presumably act in good faith, whatever that may mean in this context. But the sponsors’ good faith, of course, is supposed to be irrelevant under any form of strict scrutiny.

    ….

    The truth, evident from the dissenters’ analysis and indeed from common sense, is that the majority can approve the law school’s affirmative action program under the majority’s own constitutional test for one reason and one reason only: the program is sufficiently opaque by design and allows enough scope for subjectivity and discretion in the arbitrary and undisclosed weighting of the “soft variables” in individual cases that a skeptic cannot prove unmistakably that race-ethnicity is not the predominant factor in the admission of preferred minorities. This fact, of course, renders the location of the burden of proof constitutionally decisive, which in turn makes the majority’s un-strict scrutiny, discussed earlier, all the more pivotal in generating the outcome in Grutter and future cases.

  11. hull May 18, 2006 at 9:37 am | | Reply

    John says: “perhaps you could also point to those places where you think I’ve said the ban on discrimination was “absolute.””

    O.k. Here are a few examples (I found more, but decided to limit for space) of places where you have either explicitly said the ban on discrimination is absolute or it can be inferred from your comment that the ban on discrimination is absolute:

    “Title VI of the Civil Rights Act of 1964 outlawed the very sorts of programs colleges are now defending with language that is as clear and unambiguous as it is possible for language can be. No “equal protection” fuzziness there. Its main command says:

    No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

    What part of this can the general counsels at our leading colleges and universities not understand?” Here you argue that Title VI completely outlaws, in clear and unambiguous language, discriminatory programs. Strict scrutiny says otherwise.

    “The idea that the only discrimination that should be proscribed is invidious discrimination, discrimination motivated by “animosity or resentment,” etc., is not unreasonable on its face. Both the 14th Amendment and the various civil rights acts of the 1960s could have done that, but they didn’t. They did not require individuals to be treated without regard to their race, creed, or color … except when the motive of those discriminating against them was, in the eyes of the discriminators, benign.” Here, you state that the 14th Amendment et al could have had exceptions, but their authors purposefully excluded any exceptions. This is not the case. Strict scrutiny allows discrimination in certain instances.

    “If words mean anything (a doubtful proposition in our era, when many think “civil rights” means racial preference), all government contractors who refuse to take affirmative action to eradicate all their policies that treat employees or applicants with regard to their race are in violation of Executive Order 11246.” Here you argue that government contractors are completely banned from using policies “with regard” to race per Executive Order 11246. Strict Scrutiny says otherwise.

    “Until recently “civil rights” referred to an individual’s right to be treated without regard to race, religion, or ethnicity.” Here you do not qualify the “without regard” statement allowing the inferrence that civil rights completely bars preference. Strict scrutiny again says otherwise.

    “Exactly what part of “ban affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity, or national origin” is “ambiguous”?” Here you argue that preferential programs are completely banned. You state that there should be no ambiguity in such a ban.

    “Similarly, preferentialists don’t really believe in the principle of colorblind non-discrimination. That is, they don’t believe that principle prevents the state from preferring some races over others whenever, in the preferentialists’ opinion, it has a good reason to do so. But they have a problem: all of our civil rights laws are proclaim that “no person” (not “no group,” not “until some later golden age”) should be discriminated against because of race. Even, as I’ve noted a number of times recently, affirmative action itself was instituted to reinforce the “without regard” principle, as the Kennedy and Johnson presidential executive orders explicitly stated. Courts have thus had to ignore or twist that language beyond recognition whenever they have acquiesced to racial preferences.” Here, again you argue that all of our civil rights laws absolutely ban race discrimination. Strict scrutiny again says otherwise.

    In the interest of not filibustering the conversation, I’ll leave the rest of your questions for another discussion.

  12. Hull May 18, 2006 at 10:22 am | | Reply

    One last point on strict scrutiny:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360

    Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts

    ADAM WINKLER

    University of California, Los Angeles – School of Law

    ————

    UCLA School of Law Research Paper No. 06-14

    Vanderbilt Law Review, 2006

    Abstract:

    A popular myth in American constitutional law is that the “strict scrutiny” standard of review applied to enforce rights such as free speech and equal protection is, in the famous words of Gerald Gunther, “‘strict’ in theory and fatal in fact.” In recent years, however, this traditional understanding of strict scrutiny’s inevitable deadliness has been challenged in high-profile cases such as Adarand Constructors v. Pena, where the Supreme Court expressed the “wish to dispel the notion that strict scrutiny is ‘strict’ in theory, but fatal in fact,” and Grutter v. Bollinger, where the Court turned wish into action and upheld an affirmative action policy under strict scrutiny. According to the Court in Grutter, when applying strict scrutiny, “[c]ontext matters.”

    This Article offers a systematic empirical study of strict scrutiny in the federal courts. Reporting the results of a census of every strict scrutiny decision published by the district, circuit, and Supreme courts between 1990 and 2003, this study shows that strict scrutiny is far from the inevitably deadly test imagined by the Gunther myth and more closely resembles the context-sensitive tool described by O’Connor. Overall, 30% of all applications of strict scrutiny – nearly one in three – result in the challenged law being upheld. Rather than “fatal in fact,” strict scrutiny is survivable in fact, and is so across constitutional doctrine: 27% of suspect classifications, 22% of free speech restrictions, 24% of fundamental rights infringements, 33% of freedom of association burdens, and 59% of religious liberty burdens adjudicated under strict scrutiny survive.

    Employing logistic regression, this Article shows that this high survival rate for a supposedly fatal standard of review is context-sensitive. Although political ideology and regional variation are found to have no significant impact on voting in strict scrutiny cases, courts are strongly influenced by the identity of the governmental actor. Most prominently, laws adopted by the federal government are far more likely to survive (50%) than those adopted by state (29%) or local (17%) governments. Surprisingly, however, strict scrutiny has become more fatal in the years since Adarand declared the standard to be survivable (from 40% in the early 1990s to 20% in the early 2000s).

  13. John Rosenberg May 18, 2006 at 11:05 am | | Reply

    Hull – Re alleged examples of my saying the ban on taking race into account is absolute, you cite the following:

    1. Title VI of the Civil Rights Act of 1964 outlawed the very sorts of programs colleges are now defending with language that is as clear and unambiguous as it is possible for language can be. No “equal protection” fuzziness there. Its main command says:

    No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

    What part of this can the general counsels at our leading colleges and universities not understand?”

    But nothing in the above says that the ban on taking race into account is “absolute.” It says language of the Civil Rights Act should have been, and should be, interepreted to outlaw “the very sorts of program that colleges are now defending.” That is true, but it does not imply an “absolute” ban. As I ‘ve said, the CRA allows for BFOQ exceptions, as would I. If a crime victim describes a Hispanic assailant, it would be quite reasonable for the police to limit their searches for Hispanics, etc., etc.

    2. The idea that the only discrimination that should be proscribed is invidious discrimination, discrimination motivated by “animosity or resentment,” etc., is not unreasonable on its face. Both the 14th Amendment and the various civil rights acts of the 1960s could have done that, but they didn’t. They did not require individuals to be treated without regard to their race, creed, or color … except when the motive of those discriminating against them was, in the eyes of the discriminators, benign.”

    Nor does this say anything “absolute.” It says that the discrimination meant to be barred was not limited to what some judge views as “invidious.” That’s all it says, and this too is true.

    Here, you state that the 14th Amendment et al could have had exceptions, but their authors purposefully excluded any exceptions.

    I say nothing of the kind, anywhere. In fact, I say exactly the opposite in a number of places, such as here:

    We colorblinders can wish that our side in this debate, the old radicals and abolitionists, had carried the day when the 14th Amendment was being debated, but they didn’t. They favored language that would have barred the states and the national government from making distinctions based on race, but they lost out to conservatives and “moderates” who wanted to preserve the right to make many of those distinctions. I wouldn’t think many of today’s preferentialists would be proud of their lineage, but there it is.

    3. If words mean anything (a doubtful proposition in our era, when many think “civil rights” means racial preference), all government contractors who refuse to take affirmative action to eradicate all their policies that treat employees or applicants with regard to their race are in violation of Executive Order 11246.

    Again, that’s true. But even this ban is not absolute. For example, it is perfectly appropriate for an employer who has been proven to have discriminated in hiring to take race into account in making restitution to its victims. But aside from this or other exceptions, to say that an employer is not allowed to take race into account in hiring, promoting, or firing is not at all the same thing as saying that race can never be taken into account by any organization for any reason at any time, a good working definition of an “absolute” ban.

    4. Until recently “civil rights” referred to an individual’s right to be treated without regard to race, religion, or ethnicity

    Another true statement that says nothing about possible exceptions are qualifications.

    5. “Exactly what part of “ban affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity, or national origin” is “ambiguous”?” Here you argue that preferential programs are completely banned. You state that there should be no ambiguity in such a ban.

    I don’t think there should be any exceptions to racial discrimination in hiring; I think that was the intention of the CRA (with the exceptions noted above); and that’s how I think it should be interepreted. Again, nothing across the board absolute here. For example, if you have reasonable grounds to suspect that an Arab plan to put a bomb on a plane, I think it makes perfect sense to take Arabness into account in airport searches

    6. Similarly, preferentialists don’t really believe in the principle of colorblind non-discrimination. That is, they don’t believe that principle prevents the state from preferring some races over others whenever, in the preferentialists’ opinion, it has a good reason to do so. But they have a problem: all of our civil rights laws are proclaim that “no person” (not “no group,” not “until some later golden age”) should be discriminated against because of race. Even, as I’ve noted a number of times recently, affirmative action itself was instituted to reinforce the “without regard” principle, as the Kennedy and Johnson presidential executive orders explicitly stated. Courts have thus had to ignore or twist that language beyond recognition whenever they have acquiesced to racial preferences.” Here, again you argue that all of our civil rights laws absolutely ban race discrimination. Strict scrutiny again says otherwise.

    As is clear by now, all you’re really accusing me of with your charge of “absolute” etc. is that I favor interpreting the civil rights laws strictly, taking the words to mean what they say. What they say is not “absolute” but is pretty close to it. I am quite happy with the “strict scrutiny” standard to determine when exceptions to racial classifications be made, but you’re not. Or rather, you wouldn’t be if the scrutiny really were strict. I find it hard to determine how you would go about distinguishing “strict” from “intermediate” to “low” levels of scrutiny, since you seem to approve just about any preference given to some minorities at any time for any reason.

    With regard to the law review article on strict scrutiny you cite, good find! I hadn’t realized that so many racial classifications survived strict scrutiny. Still, it is only a shade over a quarter of them (“27% of suspect classifications”), and, as the author acknowledges, virtually all of these are relatively recent cases (those are the only ones he examined). I both suspect and hope that once Roberts and Alito are heard on this issue the tide will turn and some additional strictness will be introduced to strict scrutiny. I hope in the not too distant future Grutter will come to be seen, as Prof. Schuck so powerfully shows it should be, as the laxness nadir of “strict scrutiny.” I myself regard it as much closer to Korematsu than to Brown.

  14. John Rosenberg May 19, 2006 at 8:21 am | | Reply

    Hull – On the chance that we’re disagreeing (about what I myself have said, and believe!) more over labels than substance, here’s one more stab.

    You argue, by analogy and in effect, that since the 1st Amendment allows the suppression and punishment of shouting fire in a crowded theater the 14th allows and should allow racial discrimination in a good cause, at least when it passes some judge’s “strict scrutiny.” I reply, with Schuck, that the majority’s scrutiny in Grutter was lax, not strict, and we’ve been going round and round on the issue of whether or not my opposition to racial discrimination is “absolute.”

    So, let’s return to your analogy to the 1st Amendment. In my opinion, you and your preference-defending friends leap from the “fire in the theater” exception to the general ban on the government’s punishment of speech to justify just about every gov’t suppression of speech that comes down the pike; you take the legitimate suppression of “fighting words” to justify the suppression of mildly unpleasant words that offend someone. Communists? They’re engaged in a criminal conspiracy; fire them, round them up, send them back to Russia. Political ads cost too much? Ban purely political speech before elections (“campaign finance reform”). Etc., Etc.

    Does my opposition to these measures make me a “1st Amendment absolutist”? Only if you define absolutist as someone who objects to these measures. I, of course, say I’m not an absolutist because I have no objection to libel laws or hauling off the fire-shouter (at least if there was in fact no fire), but if you believe my position on these issues makes me an “absolutist” that’s your privilege. Every man his own lexicographer, etc.

    Returning for a moment to the 14th, I would put more stock in your defense of “strict scrutiny” if you assembled all the recent cases where it barred racial classification (about 75% of all cases in the last decade or so, according to the author you cited) and affirmed that you agreed with all those decisions.

    Here’s my version of a 1st Amendment analogy: to me, racial discrimination by government entities can be legitimate about as often as prior censorship, which is to say almost never. But not absolutely never.The gov’t could legitimately prevent a newspaper, for example, from printing troop ship movements or impending battle plans during war.

    Here’s another: I believe the government is barred absolutely from prosecuting someone for seditious libel. Does that make me a 1st Amendment absolutist? Hardly, since I don’t reject all libel laws, punishing the fire-shouter, etc.

    If the government regarded the 1st Amendment’s limits on its authority to suppress speech as cavalierly as your friends regard the 14th Amendment’s and the Civil Rights Act’s limits on its authority to engage in racial discrimination, speech police would be as ubiquitous as “diversity” officers and the suppression of speech would be as rampant and widespread as “affirmative action” is today.

  15. Hull May 19, 2006 at 10:19 am | | Reply

    John,

    One of your main arguments against racial preference has been that the words of the civil rights laws and 14th Amendment do not allow such preference. You have made this argument repeatedly and to those unfamiliar with the law it appears that this is a glaring contradiction in so-called “racial preferencialists'” reasoning. Now whether you actually believe that this contradiction exists is beside the point. People that are unfamiliar with this subject read your words and believe that affirmative action is wrong per se because civil rights law bars such preference. My point is that this seemingly obvious contradiction is no more a contradiction than many other applications of law (such is within the 1st Amendment).

    1st and 14th Amendments: You argue that supporters of racial preference are, by analogy, similar to those who would push the exceptions to the 1st Amendment beyond mere exceptions on free speech and into illegal bans (suppression of mildly offensive words for example). Your example would only hold true when racial preference ACTUALLY violates the law. Suppression of mildly offensive words ACTUALLY violates the law. Suppression of fighting words DOES NOT violate the law. How do you tell the difference? Courts. So, is a case like Grutter similar to a suppression of mildly offensive language? What do the Courts say? The Courts say that Grutter-like preference is permissible in some cases. Along the same lines: if a court determined that the “mildly offensive words” were indeed “fighting words” then that speech could be surpressed. The important thing is that both issues (1st and 14th) are not black and white and it oftentimes takes a Court to determine what is permissible and what is unaccepteble.

    You liken me (racial preference advocates) to those who would stamp out free speech wherever it exists, but we have a mechanism to prevent this type of surpression from occurring: that mechanism is the Court.

    When “free speech advocates”/”preference opponents” such as yourself feel that they have been infringed upon, they may use courts to address this. When opponents of racial preference feel that they have been infringed upon they too can seek redress through the Courts and they have indeed done this (Gratz).

    Here is the point of the analogy as it pertains to “Discriminations”: You are the free speech advocate who argues that all speech is allowed (whether you actually believe that or not). I disagree. All speech is not protected. Similarly, on “Discriminations” you have argued that all discrimination is banned (whether you actually believe that or not). I disagree. All discrimination is not barred.

    Whether you are an absolutist or not can only be determined by your words and (as I’ve shown) your words support the notion that all discrimination is illegal.

  16. Hull May 19, 2006 at 10:59 am | | Reply

    One last point on your comment:

    “Returning for a moment to the 14th, I would put more stock in your defense of “strict scrutiny” if you assembled all the recent cases where it barred racial classification (about 75% of all cases in the last decade or so, according to the author you cited) and affirmed that you agreed with all those decisions.”

    I don’t need to defend strict scrutiny anymore than I need to defend the speed limit or an ordinance against littering. It’s the law. It’s not an inherently “wrong” law (like slavery). It is firmly established in jurisprudence and it means that discrimination is allowed in certain instances.

  17. John Rosenberg May 19, 2006 at 11:38 am | | Reply

    Your example would only hold true when racial preference ACTUALLY violates the law. Suppression of mildly offensive words ACTUALLY violates the law. ..

    It’s the law…

    Hull – You keep referring to “the law,” but that keeps missing my point. You write:

    One of your main arguments against racial preference has been that the words of the civil rights laws and 14th Amendment do not allow such preference. You have made this argument repeatedly and to those unfamiliar with the law it appears that this is a glaring contradiction in so-called “racial preferencialists'” reasoning. Now whether you actually believe that this contradiction exists is beside the point. People that are unfamiliar with this subject read your words and believe that affirmative action is wrong per se because civil rights law bars such preference.

    Yes, I DO believe that the 14th Amendment, properly interpreted, and the words of the civil rights laws in fact do not allow racial preferences, except where strict scrutiny would allow them. That would happen, in my view, about as often as courts allow prior censorship.

    Your continuing to rely on “the law” misses the point, because my argument is precisely that the opinions you can point to justifying your view of “the law” were wrongly decided. Moreover, although I do not think that “the law” should be determined by polls, I do think it relevant that the public has agreed with my view of racial preferences in every poll that has accurately described them (instead of masking them in the feel-good “affirmative action” description) and every time they have had an opportunity to vote on the issue.

  18. Hull May 19, 2006 at 12:14 pm | | Reply

    “my argument is precisely that the opinions you can point to justifying your view of “the law” were wrongly decided”

    These opinions are not “my view” of the law; these opinions are the Supreme Court’s view of the law. You seem to be suggesting that your opinion of how these cases should be decided is more valid/accurate/well thought out than the majority on the Supreme Court. If that’s the case you should find some test cases and take your arguments to One First Street, NE DC, across from the U. S. Capitol and the Library of

    Congress.

    You have your opinion about how these cases should have been decided. I have the Supreme Court decisions.

    As far as your opinion polls: I’m sure if you took a poll at the time, a majority of people would have supported slavery and jim crow too. That speaks more to the prevalent attitudes of the majority of citizens in this country than to the validity of affirmative action. The Tim Wise article you linked to previously also showed that white people during the Civil Rights Era thought things were just peachy between the races and that whole racism/Jim Crow thing was no big deal.

    The bottom line is this: people with more experience in these matters than you or I have come to the conclusion that discrimination is acceptable in certain contexts. You think they have allowed this to happen too often. I think they are in a better position (more informed; more experienced) to make these determinations than you.

  19. John Rosenberg May 19, 2006 at 12:32 pm | | Reply

    These opinions are not “my view” of the law; these opinions are the Supreme Court’s view of the law.

    There you go on again….

    You seem to be suggesting that your opinion of how these cases should be decided is more valid/accurate/well thought out than the majority on the Supreme Court.

    By George, you may finally have gotten it. Yes, that is precisely what I’m saying (not suggesting)!

    If that’s the case you should find some test cases and take your arguments to One First Street, NE DC, across from the U. S. Capitol and the Library of Congress.

    There are groups far better situated than I to do this, and I support them all. (Thanks for the tip, but we all know where the Court is.)

    You have your opinion about how these cases should have been decided. I have the Supreme Court decisions.

    Now you’re just being silly. You have your Supreme Court justices (and an army of law professors who support them), and I have my Supreme Court justices (and an army of [even smarter] law professors who support them).

    The bottom line is this: people with more experience in these matters than you or I have come to the conclusion that discrimination is acceptable in certain contexts.

    No, some people “with more experience” etc. have come to the conclusion you favor, and other people with equal experience and qualifications have come to the conclusion you don’t like. You simply can’t respond to an argument that some decisions are wrong by repeating “Yes, but those are decisions of the Supreme Court.”

    But don’t worry. I’ll keep your argument that the Supreme Court can never be wrong (never mind Dred Scott, Plessy, et. al.) in mind for future reference.

  20. hull May 19, 2006 at 12:38 pm | | Reply

    Fair enough.

    Let me know when you’re ready to talk about group rights versus individual rights.

  21. The Constructivist May 20, 2006 at 1:06 am | | Reply

    John, ignoring the rich back-and-forth between you and Hull in the interests of sleep, let me just thank you for the clarifications and apologize for the misreading my own formalist/intentionalist reading of your original post led me to.

    I have no problem with your clarified principle, “what matters is whether an individual black or white has been discriminated against because of race.” Where I disagree is over the application of that principle. How does one tell when an individual has been discrimated against on the basis of race? Since conservatives have raised the bar on this question over the past two generations, I’m happy to support any claims that meet that raised bar. I don’t think most do. I think that’s true even of the 25% of American colleges and universities that actually have tough admissions standards.

    I’m interested in exploring how “strict” the “strict scrutiny” requirement ought to be. I would prefer to radicalize it in the sense of hunting down discriminatory intent couched in race-neutral language. This is what I read Neil Gotanda, Kimberle Crenshaw, Patricia Williams, and thers arguing for. Do you have a problem with that?

    More to say, but not now.

  22. John Rosenberg May 20, 2006 at 7:56 am | | Reply

    I’m interested in exploring how “strict” the “strict scrutiny” requirement ought to be. I would prefer to radicalize it in the sense of hunting down discriminatory intent couched in race-neutral language. This is what I read Neil Gotanda, Kimberle Crenshaw, Patricia Williams, and thers arguing for. Do you have a problem with that?

    Simon – As I’ve argued in these comments, I think strict scrutiny ought to bar the government from engaging in or sanctioning racial discrimination to the same extent that the 1st Amendment prevents it from imposing prior censorship. There are some occasions where both would be allowed, but not very many. In good old common law fashion, examples are problem more enlightening here that mere statements of the principle, and the two examples that come readily to mind are the ones I’ve already mentioned: for prior censorship, barring the publication of troop ship schedules during war; for racial discrimination (known in the affirmative action trade as “taking race into account”), allowing the police to take race into account when assigning officers to work undercover in racial or ethnic gangs. The 1964 CRA made allowance for just this sort of exception in its provision of BFOQs (bona fide occupational qualifications).

    I believe the threshold question is not how to apply the principle of non-discrimination but how discrimination should be defined. As I’ve argued, I believe intent is necessary but that there are occasions where it can be inferred from effects. The problem I have with “hunting down discriminatory intent couched in race-neutral language” and with the people you cite (I haven’t read everything by all of them) is that they don’t really accept the intent standard at all, except perhaps by giving it lip service. In their heart of hearts (head of heads?) they’ve never abandoned their affinity for “disparate impact” theory, even though the courts have pretty thoroughly rejected it. Thus they invariably regard any and every policy, program, standard, or test as discriminatory if it has a disparate impact on minorities. There is occasionally (but not always) a slight, begrudging nod toward intent in their argument that any organization that employs a policy, program, standard, or test, knowing of its disparate impact, does so with the intent to discriminate. As a result, everything from Duke Power Company’s requiring all employees to be high school graduates (the case legitimizing, for a while, the disparate impact standard) to the SAT they regard as racial discrimination.

    In my view, that simply won’t do. Disproportionate effects alone are not sufficient to establish the existence of discrimination. (Ironically, one could turn the tables here on the race preferentialists. Where they defend “taking race into account” by saying race is “only one of many factors” being considered, defenders of the SAT et. al. could reply that the racially disparate impact is “only one of its many effects,” and, unlike the use of race in admissions, is no part whatsoever of the intent behind using the test or the use to which the test is put. By contrast, “taking race into account” in admissions is with the intent and for the purpose of admitting a certain number of people defined by their race.) In short, in my racial preferences are per se discriminatory.

    Returning to strict scrutiny, one of its key elements is whether or not there are reliable alternatives to the challenged racial classification or policy that would achieve similar results (assuming for the sake of argument that the desired results themselves are legitimate). If a university wants to be academically selective, I’m not sure there are reliable alternatives to using admissions tests as “one of many factors’ in admissions. If a university wants a student body that is more “diverse” than its admissions standards produces, however, it could easily (as Scalia pointed out in Grutter) change its admissions standards. In fact, trying to be both academically very selective and also “diverse” inevitably, given the current state of our educational system, leads to de facto race norming (taking the brightest students from each desired racial group), which the courts have invalidated when institutions were honest about what they were doing.

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