Affirmative action and major league leg-pullings

Posted: Feb 26, 2003 12:00 AM
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, unconstitutional. 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 are evil." 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.