06/02/2003
Sometime this month, perhaps before this column is published, the Supreme Court will rule on the University of Michigan’s racial quotas. Both in law school and undergraduate admissions, the university intentionally discriminates against white applicants in favor of "preferred minorities."
It is obvious that the university’s policy violates equality before the law and the Constitution’s equal protection clause.
For three decades the constitutional issue has been finessed. Initially, Americans were reassured that racial quotas were to be temporary and would be phased out before they could endanger equal rights for whites. However, temporary expedients have a way of becoming permanent. Today racial quotas are required in order to avoid federal civil rights lawsuits in behalf of "preferred minorities."
As practically every university in the country uses one scheme or another to discriminate in favor of "preferred minorities," the Michigan case will determine whether "preferred minorities" are admitted on the basis of merit or on the privilege of skin color.
Pray I am wrong, but the best that those who believe in equal protection can hope for is that the Court will speak out of both sides of its mouth, as it did in the 1978 Bakke case. Alan Bakke was denied admission to medical school at the University of California in order to create room for a less qualified "preferred minority." The Court ruled against quotas but for "diversity."
Diversity is a way of having quotas without the Supreme Court’s sanctioning the death of the equal protection clause. Whites would be denied equal protection in practice with regard to university admission, but they would still have equal protection in theory. This would provide whites some protection from becoming full-fledged second class citizens in law. If whites lose equal protection, they will be subject to new classes of laws, such as "hate crimes," that would apply onlyto the behavior of whites.
A worse outcome is possible. The Court could rule that after three decades "preferred minorities" now have squatters' rights in racial privilege. When the controversial Roe v. Wade abortion ruling came back before the Court in 1992, a plurality ruled that despite the absence of a legal or constitutional basis for the pro-abortion decision, the passage of time had given women squatters' rights to abortions that the Court would not take away.
An even worse ruling might be in the making. In the May 30 issue of Business Week, Stan Crock, a correspondent in the magazine’s Washington bureau, argues that white Americans might not be protected by the 14th Amendment to the Constitution. This amendment, he says, was adopted in 1868 and "was intended to make sure that newly freed slaves were not denied the equal protection of the law." The intended beneficiaries of the amendment were clear, he says, "and they didn’t have white skin."
[Business Week, The Real Affirmative-Action Problem By Stan Crock ]
On the basis of a New Deal ruling by Justice Harlan Fiske Stone, Mr. Crock goes on to argue that "strict scrutiny" applies only to laws that might involve "prejudice against discrete and insular minorities." Mr. Crock concludes that "minorities — not whites — should be the beneficiaries of both the 14th Amendment and the notion of ’strict scrutiny' of racially tinged laws."
Do you think a Business Week correspondent [Send Stan Crock email.] came to these convoluted legal arguments on his own? To a former old Washington hand who spent a quarter century "inside the beltway" in government, journalism and think tanks, Mr. Crock’s argument smells like one planted by a clerk to a Supreme Court justice, whose agenda is to strip white Americans of equal protection in order to dump our merit-based system into the trash bin of history and to replace it with equal outcomes dictated by the judiciary.
You have to wonder how far along this road we are when Business Week magazine publishes an article that says white Americans have less constitutional protection than "preferred minorities." Isn’t this the triumph of the Harvard philosopher, John Rawls, who argued that the only policies that can be justified are those that favor the least well-off?
The outcome of the civil rights revolution is the creation of differential rights. In place of the old feudal privileges based on class, the new feudalism is based on skin color.
There is nothing to prevent a legally privileged group from dispossessing second class citizens — especially when immigration is turning the "preferred minority" into a "preferred majority." If Mr. Crock’s article is based on a Supreme Court leak, white Americans have no future.
Paul Craig Roberts is the author with Lawrence M. Stratton of The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice. Click here for Peter Brimelow’s Forbes Magazine interview with Roberts about the recent epidemic of prosecutorial misconduct.
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