Pluribus E Unum

Goodwin Liu, the Berkeley law professor whose OpEd I criticized in the post immediately below, argued in that OpEd that “the idea that Brown prohibits ‘classification’ by race is profoundly revisionist.”

Professor Liu may not be aware that “revisionist” is frequently a badge of honor worn by historians, who take great pride in correcting earlier misconceptions and erroneous interpretations. In that revisionist spirit, then, I have decided to offer a Christmas gift to the opponents of colorblindness.

Since they have to engage in such contortions and distortions to “construe” so many of the foundational documents in the history of race in American in a manner that rids them of the principle that every American should be treated without regard to race, I decided to make it easier for them and “revise” these documents so that they no longer have to read so much into them or out of them.

Here are excerpts from some of those documents, written the way the apostles of racial preference wish they had been written (and “construe” them as though this is how they were in fact written).

Declaration of Independence

We hold these truths to be self-evident, that all men are created different, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Enjoyment of Diversity.

[Compare to the original]

Gettysburg Address

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all races are created different.

[Compare to the original]

14th Amendment

…nor shall any State deprive any person of life, liberty, or the experience of diversity, without due process of law; nor deny to any racial or ethnic group within its jurisdiction benefits in proportion to its proportion of the population.

[Compare to original]

15th Amendment

Section 1. The right of members of all racial and ethnic groups to vote, and to elect representatives of their own race or ethnicity, shall not be denied or abridged by the United States or by any state.

[Compare to original]

Plessy v Ferguson

A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races.…

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the preferential treatment afforded one or more races stamps the unpreferred races with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the unpreferred races choose to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the unpreferred races should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the currently preferred races to an inferior position. We imagine that the currently preferred race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured unless we ignore race. We cannot accept this proposition.

[Compare to original]

Executive Order 10925 (“Affirmative Action”), President Kennedy, March 6, 1961

The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin unless doing so is necessary to promote diversity. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, with full consciousness of their race, creed, color, or national origin in order to promote diversity through an equitable racial and ethnic balance.

[Compare to original]

Title VI, Civil Rights Act of 1964

SEC. 601. No racial or ethnic group in the United States shall be excluded from proportional participation in, be denied the proportional benefits of, or be subjected to colorblind treatment under any program or activity receiving Federal financial assistance.

Title VII, Civil Rights Act of 1964

SEC. 703. (a) It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to be conscious of an an applicant’s or employee’s race, color, religion, sex, or national origin and to fail or refuse to maintain an equitable racial and ethnic balance among all employees; or

(2) to fail or refuse to classify his employees in any way that would promote the employment opportunities of members of various racial and ethnic groups in proportion to their proportion of the relevant labor pool or to take any action that would tend to deprive any racial or ethnic group of proportional representation among his employees.

[Compare to the original]

Now, readers with an intimate knowledge of these documents will recognize that there is one ringer above. Yes, it is the first paragraph of the Plessy revision. That paragraph was not changed at all. That’s because, as I’ve pointed out a number of times, today’s preferentialists actually agree with the analysis of the majority opinion in Plessy.

As I argued here,

the legal theory underlying the Plessy decision is that the Fourteenth Amendment does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. Thus it is the preferentialists today, not the critics of preferences, who unwittingly echo the Plessy argument.

And here, first quoting that renowned constitutional scholar, Jesse Jackson, and then commenting:

More than 100 years ago, the Supreme Court disgraced itself by ruling that legal apartheid — the lie of separate but equal — was constitutional. Almost 50 years ago, it brought that disgraceful era to an end in Brown vs. Board of Education, ruling school segregation illegal. A generation ago, in 1978, it reaffirmed affirmative action in education in the Bakke decision, even while outlawing quotas. Now the question is whether the court will uphold the commitment to diversity or turn back the clock.

I’m always amused by “turn back the clock” references, whoever makes them, implying as they do that history is linear, that there are never any wrong turns that have to be corrected [by revisionists!], etc. It is an especially ironic phrase here since the legal theory underlying the Plessy decision is that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. The preferentialist argument today is an unwitting echo of Plessy.

I could go on and on and on but will limit myself going on only once — the famous Southern Manifesto of 1956, which I “revised” at length here. That Manifesto, signed by 19 Senators and 81 Representatives from the South, with only minor revisions, eerily anticipates and previews the arguments of today’s preferentialists. Here’s one example, with my minor revisions in italics:

In the case of Plessy v. Ferguson in 1896 the Supreme Court expressly declared that under the 14th Amendment no person was denied any of his rights if the States took race into account. This decision has been followed in many other cases. It is notable that the Supreme Court, speaking through Chief Justice Taft, a former President of the United States, unanimously declared in 1927 in Lum v. Rice that the diversity principle is “within the discretion of the State in regulating its public schools and does not conflict with the 14th Amendment.”

This interpretation, restated time and again, became a part of the life of the people of many of the States and confirmed their habits, traditions, and way of life….

Though there has been no constitutional amendment or act of Congress changing this established legal principle almost a century old, the Supreme Court of the United States, with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.

It’s too bad, from a preferentialist point of view, that “diversity” and “integration” were not the core values reflected in our foundational documents, that instead for generation upon generation Americans have unfortunately believed that they were at their best when they honored the principle that everyone should be treated without regard to race, religion, or national origin.

Preferentialists, however, should not feel altogether left out of the American tradition, for they too have their own forebears and historical standard-bearers who have argued, with great success, that race preferences are as American as apple pie and are perfectly consistent with the 14th Amendment and the civil rights laws, properly “construed” — from the “moderates” who kept colorblind language out of the 14th Amendment to Justice Brown and his majority opinion in Plessy to the Southerners who defended the right of states to prefer one race over another to today’s “civil rights organizations” who demand preferences based on race.

Say What? (1)

  1. Dom December 26, 2006 at 4:45 pm | | Reply

    “…as I’ve pointed out a number of times, today’s preferentialists actually agree with the analysis of the majority opinion in Plessy.”

    A very damning statement. What’s worse, you’re absolutely correct!

Say What?