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Supreme Court rightly upholds affirmative action ban

By Brian McCarty
On April 28, 2014

Last Tuesday, the Supreme Court released its opinion in a case concerning affirmative action, Schuette v. BAMN. The respondents challenged Michigan's constitutional amendment that forbid the state or its public universities to "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." This amendment effectively put an end to the state's affirmative action policies and was subsequently challenged as a denial of equal protection under the laws, which is prohibited by the 14th Amendment. The 6-2 decision of the court found no Constitutional violation and upheld the state's action.
In this case, the court was asked to determine whether a guarantee that the state will treat every citizen equally is itself an equal protection violation. The fact that this is an issue is deeply troubling. It demonstrates the dire extent that absurd legal doctrines and political considerations have infected the lower courts. Even two Supreme Court Justices agreed with the farcical reasoning displayed by the respondents. The legal doctrine used by respondents in this case is known as the political process doctrine. This doctrine argues that whenever a state removes the decision-making authority on a "racial issue" to an institution outside the existing political process, it makes more difficult for minority groups to achieve legislation in their interest, thus constituting an equal protection violation.
The first problem with this doctrine is that it puts the judiciary in the position of determining what "racial issues" are. Asking a court to determine what the interests of various racial groups is likely to lead to more racist government actions, not less. No one can possibly maintain that all members of a racial group have the same desires and interests with regard to every issue. There are no such things as "racial interests," only individual interests. Any minority citizens who disagree with affirmative action policies are entirely disregarded in this analysis, perhaps because they are viewed as acting against their "interest." Herein lies the problem. This doctrine implies that political preferences can be determined by a person's race and certain "racial issues" can be distinguished. It would be shameful to ask our courts to implement racial stereotypes into legal decisions.
After determining something is a "racial issue," proponents of the political process doctrine must determine whether the decision-making authority on this issue has been moved to a new institution outside the existing political process. In her dissent, Justice Sotomayor contends that the states decision to remove this discretion from school boards to the voters at large constitutes a move outside the political process. However, states have always had the right to delegate any issue to the people at large because they are the sovereign power in any state. Any just power exercised by government can be delegated with their consent and may be recalled by if they so choose. Every citizen is guaranteed the equal protection of the laws. This does not mean that certain citizens, or groups of citizens, have the right to wrest sovereignty from the people of the state when certain issues that concern them are implicated. No citizen has the right to have an issue decided at a certain level of government because he believes decision-making authority at that level will result in the most favorable outcome for him.
It has become a bedrock principle of American democracy that our government should treat all citizens equally. If a state takes a discriminatory action and applies laws differently to different racial groups, an equal protection violation occurs. These invidious assaults on the equality of all citizens are rightly castigated. Yet, when the people of a state decides to prohibit a race-based policy and guarantee that the state will apply its laws equally to all citizens without regard to race, they are most certainly free, if not constitutionally mandated, to provide such guarantees. Those who would treat certain political groups as the voice of an entire race and give them the power to achieve their desired policy outcomes at the expense of a validly enacted expression of the sovereign people's will, are the ones who violate the equal protection of the laws. 


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