Scott Johnson had a powerful, if pessimistic, post on PowerLine yesterday, AFFIRMATIVE ACTION FOREVER. One of the reasons I’m so impressed by this post is the shrewd, perceptive good judgment it reveals, demonstrated in no small part by the views he shares with one of my favorite analysts who, as it happens, appears frequently on DISCRIMINATIONS.
• Johnson mentions James Taranto’s recent “excellent Wall Street Journal column.”
In something I’ve just written and will either link or post presently I have just mentioned “James Taranto’s excellent column in the Wall Street Journal.”
• Johnson mentions that “one of my favorite books on a legal subject is Andrew Kull’s The Color-Blind Constitution. (I learned of the book at the time of its publication through Judge Alex Kosinski’s 1993 New Republic review/essay.) It is a book that is by turns inspiring and maddening. I recommend it without reservation to readers interested in the subject.”
Back in 2005 I posted The Best Thing I’ve Read Lately (Or Not So Lately), whose first two (of three) paragraphs are:
I’ve had occasion to quote, or refer to, Andrew Kull’s masterful book, THE COLORBLIND CONSTITUTION (Harvard, 1992) on more than one occasion. It is by far the best book on that subject, and so I suppose it makes sense for one of the best articles I’ve seen to be a review of Kull, which I just found sort of by accident.
It’s by Alex Kozinski, a judge on the Ninth Circuit, in The New Republic in 1993, and it will repay close, careful, and even frequent reading.
• Quoting Kull, Johnson writes: “The majority opinion in Plessy makes a comfortable target, and it is routinely vilified. But in its broad holding, as opposed to its particular application, Plessy has never been overruled, even by implication. On the contrary, it announced what has remained ever since the stated view of a majority of the Supreme Court as to the constitutionality of laws that classify by race.”
I am particularly impressed by this point, and have made it or a similar one too many times to list. But here are a few:
- December 2002: 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.
- January 2003: Another familar feature of this particular screed is the Plessy v. Ferguson mongering, i.e., the absurd claim that critics of preferences intend to undermine Brown v. Board of Education…. These Plessy references are especially misplaced. As I have pointed out … , 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.
- January 2003: It is one of the many ironies in the strange career of racial equality that in order to defend racial preferences liberals … today rely on purposefully ambiguous language resulting from the desire of the framers of the 14th Amendment to preserve segregation and states rights, while the critics of racial preferences, who are usually viewed as conservatives, echo the radicals who wanted to proscribe all racial distinctions. Today … these “conservatives” are much more likely than liberals to honor Justice John Marshall Harlan’s eloquent assertion in his Plessy v. Ferguson dissent that “our Constitution is colorblind.”
- March 2003: … anyone who defends racial preferences must reject Justice John Marshall Harlan’s stirring comment in Plessy that “our Constitution is colorblind” and agree with the majority’s holding in that case the 14th Amendment does not require colorblindness.
- May 2003: In the fight over the form the 14th Amendment would take, the Radical Republicans such as Wendell Philips who wanted a clear requirement of colorblindness were defeated by the “moderates” who wanted to protect the ability to engage in discrimination, such as segregating schools, that they thought reasonable. How ironic that the heirs of those dead moderates are today’s preferentialists, who must defend Plessy in order to justify preferences.
- July 2003: It has often been said that in America conservatives stand on the shoulders of dead revolutionaries, but it is no less true that today’s liberals depend on the success of dead racists. In that regard, I have often pointed to the irony of contemporary liberals celebrating the failure of Reconstruction radicals to write colorblindess into the 14th Amendment and hence their (the liberals’) rejection of Justice John Marshall Harlan’s dissenting view, in Plessy, that “our Constitutution is colorblind.”
- January 2004: It is, or should be, one of the great embarrassments of modern liberalism that in order to justify racial preferences it has identified itself with the doctrinal holding of Plessy, which in turn was based on the failure of the Reconstruction Radicals to have the 14th Amendment bar all racial discrimination. Not to mention the additional irony of this being an interpretation that relies on original intent, an interpretive stance liberals usually reject.
- March 2008: On a number of occasions I’ve asked, Do Preferentialists Prefer Plessy? And my answer is always the same: yes.
- May 2009: I have argued here on a number of occasions that one of the oddest, saddest things about contemporary liberalism is the degree to which it stands on the shoulders, and repeats the arguments, of dead racists. And the best example….
- August 2012: As I have pointed out on my blog a number of times, one of the oddest, saddest things about contemporary liberalism is the degree to which it stands on the shoulders, and repeats the arguments, of dead racists. Anyone, for example, who defends racial preferences must reject Justice John Marshall Harlan’s stirring comment in Plessy that “our Constitution is colorblind” and agree with the majority’s holding that the 14th Amendment does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional.
Some might think I repeat myself, but at least it will be abundantly clear why I think Scott Johnson is such a perceptive observer.
