In 25 years, we hope that Jim Crow won't be necessary. In 25 years, we suspect that denying habeas corpus will no longer be required. In 25 years, we expect that the First Amendment will apply to everyone. Next month, we feel that anti-trust laws can be fully enforced. On Wednesdays, the Constitution does not bar cruel and unusual punishment. Every third Friday during the summer months, it will be OK to yell fire in a crowded movie theater.
These statements are no less absurd than Sandra Day O'Connor's declaration that "we expect that 25 years from now, the use of racial preferences will no longer be necessary." From what I can tell, the upshot of O'Connor's ruling is that special treatment for blacks, Hispanics and Native Americans is constitutional but giving special treatment to Italian-Americans, Jews or Asians (to randomly pick three non-preferred groups) will remain legally unconstitutional and socially racist. But, in 25 years, presumably, the Constitution will revert to something more reminiscent of the actual text.
Let me put it another way. In 25 years, my daughter will be just about the right age to go to law school. If she applies 24 years from now, according to the Supreme Court, it will be OK for the University of Michigan to hold my daughter to higher academic standards than it applies to upper-class Hispanics, blacks and Native Americans (assuming that list doesn't grow), but in 26 years O'Connor "expects" that somehow the Constitution will be clear: no more racial discrimination.
Doesn't anybody see what a pernicious and horrendous argument that is? At least when the Supreme Court normally permits the government to suspend conventional constitutional protections, it requires exigent circumstances -war, fire in a theater, a ticking bomb, etc. With race relations and African-American economic and social advancement at record highs, it's hard to see where the ticking bomb is.
To be honest, as much as the idea that our Constitution take "time outs" from full enforcement based upon the whimsy of a few justices offends me, I would live with it if I believed the sand of racial preferences would run out of the timer in 25 years.
But there's absolutely no reason to believe that will happen. First of all, unlike affirmative action, the logic of diversity is permanent. Affirmative action was conceived of as a temporary remedy for the debilitating effects of past discrimination against one group: the descendents of African slaves.
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