Justices ignore historical context in aff. action cases

The U.S. Supreme Court has agreed to hear Schuette v. Michigan Coalition to Defend Affirmative Action, after hearing Fisher v. University of Texas earlier this term. “Another affirmative action case?” you might ask.

While prima facie it may seem necessary to take up two cases on the same issue, both of these cases cannot be painted with the same brush. Fisher v. Texas is about the constitutionality of affirmative action—the plaintiff, a white female, having been rejected, sued the University of Texas, alleging that her spot was taken by less qualified candidates on the basis of race.

Schuette v. Michigan tackles a more subtle issue. In 2006, Michigan voters passed Proposal 2, which banned the consideration of race in the selection of government employees. This referendum, of course, included affirmative action. The Coalition to Defend Affirmative Action responded, taking the original case to the Michigan Supreme Court, where Proposal 2 was overturned in an 8-7 split. The Attorney General of Michigan, Bill Schuette, is appealing the decision to the U.S. Supreme Court. The question focuses on the constitutionality of putting civil rights up for a vote.

Putting aside affirmative action itself for a moment, it is clear that in conception and execution, Proposal 2 was a poor idea. According to the census, in 2005, Michigan was 80 percent white, 14 percent black, 3.8 percent Latino and 2.3 percent Asian. To put the question of a policy that benefits the minority to a majority vote is obviously flawed. The minority, in this case, is clear numerically. Nonetheless, it is also important to note that regardless of the demographic distribution of people of color, we will continue to be evaluated as a minority for as long as we face the uphill struggles against underrepresentation in media, positions of power, and in academic institutions. The majority will never bear the concerns of the minority as its own. Breaking the structure of privilege cannot be left to the privileged, and that means the search for equality is not always going to be democratic.

Of course, the constitutional understanding of affirmative action as a civil rights protection is highly relevant in Schuette v. Michigan.  The basis for Proposal 2 frames affirmative action as a violation of the 14th Amendment, which guarantees equal protection under the law regardless of race. (Equal protection on the basis of sex would come later.)

There is a long-held view, mostly by opponents of affirmative action, that the U.S. does not have a history of race-conscious law, and that now is no time to start. These constitutional originalists view the application of the Constitution in the context of its writing—they say, “How can we build policy off of this amendment? The American leaders of 19th century could not have possibly anticipated that our public university system would contend with this issue.”

But to say that the intention of the writers is unclear unless instructions are expressly delineated in the text is the easy way to worm out of the obligations of the 14th Amendment, placing the burden of proof on the groups the Constitution is meant to protect.  If we observe the history surrounding the 14th Amendment, it is evident that the spirit of the amendment was to level the playing field for those who had been historically and repeatedly disenfranchised on the basis of race.

After the states ratified the 13th Amendment that abolished slavery in 1865, the 39th Congress sent the 14th Amendment to be ratified by the then-37 states in 1866, having decided that a constitutional amendment was the only way to reverse the Dred Scott decision of 1857, which stated that African Americans were not citizens and had no standing in court, and the federal government had no authority to regulate slavery in new territories. Congress passed the Civil Rights Act of 1866, despite it being vetoed twice by President Andrew Johnson, and the Freedman Bureau Act. Congress also legalized the use of the metric system in the U.S., which is how you know members were total liberals.

Schuette v. Michigan is not just about affirmative action. It’s also about the interpretation of the Constitution, especially when it comes to vulnerable groups who don’t always have the institutional means to achieve equality. It is about respecting the rich history and legal tradition from which we as Americans draw our understanding of justice. To use an interpretation of convenience to avoid the unforgiving idea that this country has not yet paid back its debt for discrimination is cowardice.

So sue me, I’m a constitutional liberal. To me, the 14th Amendment establishes solid precedent for equal protection under the law—which means my rights are not up for a vote.