“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.” — Amendment XIV, U.S. Constitution
The 14th is one of the longer amendments to the Constitution; excluding the procedural 12th and 25th, it is the longest. Perhaps its wordiness is what confuses people, allowing them to believe they are permitted to do things it clearly forbids.
Last week, we saw an example of that confusion in the Supreme Court’s decision to uphold an amendment to the Michigan State Constitution saying, in part, that Michigan’s state universities “… shall not discriminate against, nor grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” The amendment was added to the constitution by a substantial majority in 2006, and the squealing hasn’t stopped since.
No, the confusion wasn’t on part of the six-justice majority which voted to uphold the amendment, thereby affirming the right of a state’s citizens to change its laws. It lies instead with the two-justice minority, particularly on part of Justice Sotomayor, the self-described “wise Hispanic woman” whose dissent calls at least half of that description into question.
Her dissent is a pastiche of familiar Progressive slogans that wobbles among the need to give minorities special treatment in the name of “fairness,” to the desirability of “diversity’ on campus to the goal of making minorities feel better about themselves. Here’s a dollop of the last: “Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grows up.” She may be right, but when even the president admits to “tensing up,” it might behoove the object of the tensing to ask why it happens — and to realize that admission to college is not the answer. A profound social change among those causing the tensing might work — but that’s hard. It’s easier to blame those who tense, particularly when there’s no end of politicians eager to help.
“Diversity,” that darling offspring of the multiculturalist craze, is a similarly nice-sounding but misguided goal. To understand why, ask the Ukrainians. If they’re too busy, try the Bosniaks or the Lebanese, whose constitution mandated multiculturalism for 30 years. France, Holland and England might be able to add a thought or two. For advise closer to home, there’s always Theodore Roosevelt, that quintessential Progressive: “The one absolutely certain way of bringing this nation to ruin, of preventing all possibility of its continuing to be a nation at all, would be to permit it to become a tangle of squabbling nationalities.” Ouch.
Which brings us to “fairness,” and the heart of Justice Sotomayor’s tortured logic. Although she steadfastly avoids mentioning the word “racism.” It is everywhere in her argument — past treatment of minorities, untrustworthiness of the electoral process, need to continue to address past wrongs, and thereby, the intrinsic evil of the Michigan amendment, which would halt such amelioration. Which is where her argument goes off the tracks.
“Brown vs. Topeka Board of Education,” the landmark Supreme Court case which ended 60 years of “separate but equal” education in this country is itself 60 years old this May 17. The Great Society’s Civil Rights and Voting Rights legislation are 50. No person who has grown to middle age or younger in this country has experienced legal inequality. And yet …
In arguing that minorities are “substantially disadvantaged” by the court’s decision, Justice Sotomayor argues that nothing has changed since the 1960s, and that minorities still need the extra boost that “race-sensitive admissions policies” — her preferred term — provide. In so arguing, she not only inverts the plain language of the 14th Amendment, she betrays something far uglier.
To understand what, we must consult Webster’s New Unabridged Dictionary, which defines “racism” as “a doctrine or feeling of racial differences or antagonisms, especially with reference to supposed racial superiority, inferiority or purity …” In arguing that minorities would be unable to access Michigan’s university system without admissions policies based on race, Justice Sotomayor, knowingly or not, makes a classically racist argument: minorities are inferior.
The conservative vision is better and requires no constitutional contortions: after 60 years of legal equality and 50 years of support, it’s time to let everyone compete equally; those who are best, will do best. Those who aren’t, won’t. Let us finally judge everyone “by the content of his character, not by the color of his skin,” to quote another person familiar with the subject. True, this would end trading favors for votes.
But wouldn’t it be “fair?
Morgan Liddick lives in Summit County.