Ending Affirmative Action: The Case for Colorblind Justice [Paperback]

It focuses on the twisted history of affirmative action and how the original purpose of the civil rights movement was respect for individual liberty without the "group rights" philisophy intrinsic in affirmative action.

Bureaucrats looking for short cuts and easy solutions pushed affirmative action - without democratic legislative approval. Minority groups behaved as anyone receiving a state-sponsored benefit does - they adopted the "philosophy" and began to protect their newly discovered "rights". The fact that these "rights" had no legal basis and questionable pedigree in the cast and race-obsessed systems of India, Malaysia and Yugoslavia seemed of little consequence at the time. The term "Balkanisation" (a sad relic of Old World ethnic hatred) now has a disturbing echo in the affirmative action policies of the New World.

Other reviewers may argue that affirmative action policies cannot be "unjust" because, although discriminatory, they are not designed to humiliate or alienate whites - only to benefit that amorphous group called "underrepresented minorities". The argument turns to dust when it is realised the biggest losers in the affirmative action contest are Asians. But no one wants that little secret revealed.

Astonishingly, Mr. Eastland's book refers to Justice John Marshall Harlan as Justice John Paul Harlan.

Mr. Eastland argues that Justice Harlan, in his dissent in Plessy, wrote "that government should not have the authority to engage in racial regulation of any kind." Mr. Eastland uses Justice Harlan's now famous statement "Our constitution (sic) is color-blind, and neither knows nor tolerates classes among citizens" to build a case that affirmative action violates our Constitution. Mr. Eastland, along with other opponents of affirmative action is mistaken. Contrary to the assertions of Mr. Eastland affirmative action respects Justice Harlan's "color-blind" Constitution. Like other opponents of affirmative action, such as Stephen and Abigail Thernstrom who in their book, America in Black and White, have the same flaw in their argument, Mr. Eastland misunderstands Justice Harlan's dissent in Plessy.

Plessy v. Ferguson was the Supreme Court case decided in 1896 which upheld the 'separate but equal' doctrine. It was this doctrine that formed the Constitutional justification for the set of racial laws known as Jim Crow. The case arose as a result of a Louisiana law which required equal but separate accommodations aboard passenger trains for the black and white races. Justice Harlan was the only Supreme Court Justice to dissent in the Plessy case.

Justice Harlan made it very clear in his dissent that he opposed Louisiana's law because it was "conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race." Justice Harlan acknowledged that the white race was the dominant race in wealth and in power. This dominance, Justice Harlan noted, did not give the white race a superior position with regard to the rights protected by the Constitution. The Constitution, according to Justice Harlan, recognizes "no superior, dominant, ruling class of citizens. There is no cast here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

Justice Harlan did not object to the Louisiana law because it recognized the social, political, and cultural reality of race. Justice Harlan found the Louisiana law contrary to our Constitution because the action of the Louisiana legislature proceeded, according to Justice Harlan, "on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?" Justice Harlan's "color-blind" Constitution is "color-blind" precisely because it recognizes "every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race." Thus, Justice Harlan argued, laws that would allow individuals of one race to degrade and put into an inferior position individuals of another race notwithstanding any inequalities in the actual social, political, and economic positions of these individuals, would be unconstitutional.

Regarding affirmative action the issue is whether these programs conform to or violate Justice Harlan's "color-blind" Constitution. To find out, I have formulated the following questions that are based on the reasons Justice Harlan used in finding that the Louisiana law violated the principles of the "color-blind" Constitution. The words in quotation marks are the words used by Justice Harlan in his Plessy dissent.

Are affirmative action programs "conceived in hostility to" the white race?

Are affirmative action programs "enacted for the purpose of humiliating" the white race?

Are the effects of an affirmative action program such that it "practically, puts the brand of servitude and degradation upon" whites?

Do affirmative action programs proceed on the belief that white "citizens are so inferior and degraded that they cannot be allowed" in our schools of medicine and law?

Do affirmative action programs violate any "right that inheres in civil freedom" and deny "the equality before the law of all citizens of the United States without regard to race?"

The answers to these questions are no.

Affirmative action, therefore, conforms to the principle of the "color-blind" Constitution and does not violate the rights of whites. Mr. Eastland and the other opponents of affirmative action are seriously mistaken when they insist otherwise. I agree with the other reviewers, such as Linda Chavez, who note that "Terry Eastland puts forth the best argument to date" for opposing affirmative action. But I have shown that this argument, though it is the best that the opponents of affirmative action can make, is fatally flawed.