The academicians and business executives and military leaders
who want the U.S. Supreme Court to uphold race-conscious admissions policies
at the University of Michigan, and are saying so in legal briefs, have what
you might call a point.
That point is pragmatic: We need "diversity" -- the involvement
of all races in the enterprise called America. "Diversity creates stronger
companies," a spokesman for the pharmaceutical company Merck told The New
York Times. " ... Understanding people is essential to our success."
Sixty-four Fortune 500 companies are filing briefs to this effect, as are
three former chairmen of the Joint Chiefs of Staff.
There is just one problem with the point the briefs assert: Any
fair reading of the U.S. Constitution renders the point, well,
To put it another way, doing what these varied establishment
types want done would require the justices' saying, in essence, A isn't A,
it's B. A tree is a utility pole, a cloud a pillow. It is an odd pretense,
yet one that many are eager to keep up.
It is also an exercise familiar at the Supreme Court of the
United States. We witness it with some frequency -- the court saying the
opposite of what the Constitution seems to say and trying to make it stick.
Not quite 50 years ago, the Supreme Court, in Brown vs. Board of
Education, struck the decisive constitutional blow at racial discrimination.
Legislating the separation of black and white children in public schools, a
unanimous court declared, violated the 14th Amendment to the Constitution.
This would not do. Racial preferences had to go.
Wherever they went, it was a short trip. Back they came a decade
later. It appeared, even though we hadn't previously noticed, that there
were two kinds of racial preferences -- the good kind and the bad kind. The
bad kind was what the South formerly enforced. The good kind was that which
learned justices and social thinkers saw as necessary to undo the
consequences of discrimination.
Exactly where the Constitution made this distinction was another
matter. Perhaps you had to read between the subordinate clauses. Good
discrimination was good. It didn't matter who thought otherwise. Liberal
activists were ready (as in the Michigan case) to posit social justice or
necessity as the reason for favoring in particular cases blacks over whites,
women over men.
Thus the Michigan case -- which goes before the high court,
appropriately enough, on April Fools' Day.
I flee the Supreme Court's hallowed chambers to catch a breath
of air and wonder why we don't just settle this controversy the easy way.
Why don't we amend the Constitution to eliminate temptations to hypocrisy?
If racial preferences are a civic and social good, why not an amendment
putting it that way? Spell it out: "The Supreme Court shall have power to
specify which kinds of racial discrimination are virtuous and which kinds
Ah, I see. That doesn't sound half so creative as allowing a
majority of justices to declare that a tree is a utility pole. Besides
which, it would show ordinary people what goes on here. Ordinary folk might
not like it. They might ask who gave these creative types the power to turn
language, and principle, inside out.
Better to play by the old rules: to pretend, for judicial
purposes, that A is B (if not Y) and language doesn't mean what it says;
that "equality" has limits which pragmatism and the undying quest for
"social justice" are privileged to breach.
Plain old Joe Doakes Americans need not understand the games
that elite activists play as they seek constitutional results that the
Constitution, properly understood, doesn't countenance. No wonder the
activists fear and oppose the George W. Bush roster of judicial
appointees -- e.g., Miguel Estrada -- who might call their hand, saying,
more or less, "Hey, what are you trying to pull on us anyway?"
Our legs, for starters.