Court's Decision on Affirmative Action at Michigan Law

Silver lining or just grasping at straws? Although O'Connor came in with yet another of her famous split-the-baby decisions that solves nothing, perhaps that is OK. There is a theory that I remember from law school (perhaps those of you more familiar with this stuff can confirm it) that the wording of the 14th Amendment is a historical compromise and that the intent of the amendment was to protect black people from discrimination at the hands of states. Clearly after the Civil War this was necessary. The fact that the 14th Amendment broadly prohibits discrimination based on race in general was necessary because they could not have passed an amendment that explicitly said what it was meant to do. Thus, white people or any other group were not meant to have the benefits of the 14th Amendment. Therefore, current efforts to make a constitutional issue out of affirmative action are routed in wording that was a political compromise at the time. Of course, many laws are political compromises and I firmly believe in taking the law as written.

But I also believe that we try to make the constitution do far too much work. Affirmative action, at the end of the day, is a public policy debate. California outlawed it and the court's decision does nothing to change that. Any state can take such action. So O'Connor's decision puts this decision in the political sphere and I don't have a real problem with that result at least. What I am saying here is that this is not a "Roe" decision that takes a hotly contested issue out of the political debate and makes the court the epicenter of the debate for decades to come. Maybe that is a bright side?


- posted by Anonymous @ 9:20 AM