Race and the Constitution
Two important Supreme Court cases present opportunities

Reuters

Students calling for diversity protest outside the U.S. Supreme Court in Washington October 10, 2012. The Supreme Court will hear perhaps the biggest case on the docket so far, Fisher v. University of Texas at Austin, and weigh whether using race in undergraduate admissions to increase diversity is still acceptable under the U.S. Constitution.

Article Highlights

  • November’s electoral setbacks prompted conservatives to reconsider their beliefs & rhetoric on a variety of issues.

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  • Conservatives have found their policies at cross-purposes with their constitutional agenda on the topic of race.

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  • The 2 Supreme Court cases coming up this term provide an opportunity to take a new direction in this constitutional debate.

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November’s electoral setbacks have prompted conservatives to reconsider their beliefs and rhetoric on a variety of issues. While they debate new ideas on immigration, taxes, and entitlements, they should not leave unexamined their principles of constitutional government. A pair of important cases on race, to be heard by the Supreme Court this term, can begin the work of updating these principles for a new century by directly refuting the rationalizations used to justify racial preferences.

Conservatives have found their policies at cross-purposes with their constitutional agenda on the topic of race. They rightly recoil at affirmative action, with its emphasis on equality of result instead of equality of opportunity and its elevation of the color of individuals’ skin over the content of their character. To end racial preferences, however, conservative judges must reject the people’s democratic wishes by relying on the 14th Amendment’s vague Equal Protection Clause, which was adopted in the immediate aftermath of the Civil War to protect newly freed slaves. This can be a slender reed on which to rest such a weighty departure from the principle of restraint.

The clause’s text, which declares that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws,” does not obviously ban the government’s use of race in all circumstances. While some argue that affirmative action is illegal because it violates the Civil Rights Act of 1964, it is also at bottom unconstitutional. Yet the understanding of the 14th Amendment’s framers remains notoriously unclear: Segregation continued in the North as well as the South after its adoption, and the Reconstruction Congress enforced race-conscious policies specifically designed to help blacks make the transition to freedom. Liberals have relished the opportunity to accuse conservatives of hypocrisy: When race enters the picture, they say, conservatives conveniently forget about judicial restraint. The two Supreme Court cases coming up this term — Fisher v. University of Texas and Shelby County v. Holder — provide an opportunity to take a new direction in this constitutional debate.

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