Affirmative Action is Racist and Unconstitutional

Today’s excerpt is from Judge Andrew P. Napolitano’s controversial, no-holds-barred book Lies the Government Told You:

In the 1978 case of Regents of the University of California v. Bakke, the Supreme Court held that affirmative action policies in publicly owned college admissions are constitutional, but institutions cannot employ a “quota system” based on race. That is, colleges cannot set aside a certain amount of seats for students solely for minorities, but they can take race into account as one factor in determining whether an applicant should be admitted. The Supreme Court recently upheld this decision in 2003, in Grutter v. Bollinger, when asked to assess the University of Michigan Law School’s conceded racially discriminatory admissions procedures.

Supreme Court Justice Sandra Day O'Connor (retired)

Supreme Court Justice Sandra Day O'Connor (retired)

Justice O’Connor, writing for the majority in Grutter, surmised that “25 years from now the use of racial preferences will no longer be necessary to further the interest [in achieving a diverse student body] approved today.” Justice O’Connor’s weird articulation of the Court’s position on affirmative action raises many questions. It is clear from her statement that racial inequality still exists in this country; that is not disputed. It is also evident that Justice O’Connor believes that affirmative action policies are not the ideal way to conquer these differences, yet according to her, some form of affirmative action is presently necessary. No matter how we look at affirmative action, it is a form of racial discrimination; it is government making decisions based on race. Affirmative action consists of the government, which is supposed to be color-blind, helping some (who could use the help) and harming others (who harmed no one themselves) based solely on race. It has survived because it is not the typically historical brand of racial discrimination. It seeks to correct past discrimination against African-Americans, and put them on a level playing field with whites.

However, Supreme Court Justice Clarence Thomas believes that affirmative action amounts to a “reverse-racism” tool. In Adarand Constructors, Inc. v. Pena, an affirmative action case decided in 1995, Justice Thomas, in his concurring opinion, stated that “[i]t is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.” Therefore, according to Justice Thomas, all affirmative action programs violate the Equal Protection Clause. Furthermore, in his dissent in Grutter, Justice Thomas responded directly to Justice O’Connor, and stated that if Michigan’s affirmative action system will be illegal in 25 years, it must be “illegal now,” for the Constitution “means the same thing today as it will in 300 months.”

Supreme Court Justice Clarence Thomas

Supreme Court Justice Clarence Thomas

Justice Thomas is correct. The government has no power to make decisions based on race, just as it has outlawed innkeepers, schoolteachers, landlords, shopkeepers, and even Presidents from doing so. I am loath to endorse the federal regulation of private behavior for reasons I have articulated elsewhere; essentially because the Constitution has never given Congress the power to do so. But it can certainly assure that the States as States, as sovereign governments, respect the Natural Law, which is color-blind. Isn’t it ironic that it took a black man on the highest court in the land to point this out?

Is Justice O’Connor right that there should be some form of affirmative action, at least for a few more years, in order to ensure a “level playing field” for minorities (particularly African-Americans)? Or, do such policies result in a “hidden” reverse-racism and are, therefore, unacceptable, immoral, and un-Constitutional? Myself, I think Justice Thomas and Judge Napolitano make excellent points.

What about it folks? Care to weigh in?


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