The Constitution is Color-Blind

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October 9, 2022

This week, President Biden suggested that the federal government has engaged in racial discrimination with respect to sentencing people for marijuana possession. “Sending people to jail for possessing marijuana has upended too many lives….  That’s before you address the clear disparities around prosecution and conviction.” 

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Ann Althouse thinks he was spouting blarney for political purposes. But if he thought this was the case, he shouldn’t have selected Kamala Harris as his running mate. She made her mark as a California attorney general in securing almost 2,000 convictions for marijuana use and possession:

…there is no escaping the fact that Senator Kamala Harris built her political career on her record as a prosecutor. In that position she oversaw the arrest and prosecution of thousands of people, mostly young people of color, for marijuana and other drug offenses.

That record has her selection as Biden’s running mate being roundly criticized, and not only by progressives who see her history as a “law-and-order” prosecutor and record of fighting to uphold wrongful convictions while in office. Conservatives, particularly libertarian leaning Republicans who have long been supportive of criminal justice reform have been harshly critical of her support for prosecuting so-called “quality of life” crimes that generally involve low level non-violent offenses like marijuana charges.

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Earlier, she claimed that hurricane relief would be prioritized to communities of color, something White House housekeepers quickly tried to sweep away.

More race discussions can be expected next month when the Supreme Court takes up two cases involving affirmative action in higher education: Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College. Initially both cases were to be heard together but when Ketanji Brown Jackson, who had been a member of Harvard’s board of overseers, was confirmed, it was decided to hear them separately. Justice Jackson will not sit on the panel deciding the Harvard suit.

Nevertheless, she has sounded off most peculiarly on the issue of race, arguing in effect that the 14th Amendment which protects citizens against unequal protection, permits unequal treatment. The Wall Street Journal editorial board:

“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Justice Jackson said. “The framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment, in a race-conscious way.” She added: “I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the 14th Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves.”

This argument doesn’t go as far as she seems to believe. The lawmakers who passed the 14th Amendment in the year after the Civil War were clearly “conscious,” to use her term, of the need to protect the emancipated former slaves. But they did it in the 14th Amendment by guaranteeing “the equal protection of the laws,” regardless of race. It’s a stain on American history that black citizens living under Jim Crow in the South continued to be denied that promised protection for another century. [snip]

But it doesn’t take a Harvard Juris Doctor to understand the phrase “equal protection of the laws,” and to know that treating citizens differently based on race is the opposite.

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Obviously, many institutions are prepared to lose on this point and have set in motion a system to hide the weighted admissions scale. They are dropping SAT and ACT scores in applications, which will make it harder to prove they are discriminating on the basis of race than it presently is.

I’m with Roger Kimball — all race discrimination should be abolished. It’s bad for those discriminated against, bad for those who get preferences and really bad for the country as a whole, dividing us and destroying the whole idea of hard work and talent as a means of advancement.

And here’s another idea, inspired by Kamala Harris’s suggestion that government aid (i.e,, as I said above, taxpayer dollars) should be directed first of all to “communities of color.” To counter that racist idea, I suggest that we prohibit any entity or initiative that receives federal funds from collecting any data on race, sex, gender, ethnic origin, and the like. 

Implementing such a proscription will be easy-peasy for our government. It’s the sort of thing they specialize in. After all, that’s what legislation like Title IX is all about, using federal money as a weapon to further various left-wing policies. 

Sure, the original, brief statute simply held that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” But think of what absurdities it has licensed! Forcing colleges to accommodate males pretending to be females in athletic contests, mandating the construction of transexual bathrooms (well, the bathrooms themselves are not transsexual, but you know what I mean), etc., etc. It’s always this way when you put government funding together with the coercive power of the state. 

So I propose we cut it all off by reversing the stipulations of many of the original programs. Title IX, like so many other pieces of the civil rights legislation, is facially anti-discrimination. In operation, on the ground, however, it actively deploys discrimination while pretending to combat it. Forbidding the mandated process — counting how many blacks, Indians, Asians, you happen to have at your institution, for example — would be a big step in ridding ourselves of such mischievous governmental overreach. 

Of course, that won’t end it even if we could legislate such a mandate, because big states and corporations have joined the bandwagon, demanding those who contract with them carry out their racial bean counting demands. If I’m right though, and hiring and promotion become merit- instead of race-based, it will be clear to see which institutions are better run.

Still, Justice John Marshall Harlan was right in Plessy. v. Ferguson when he argued that separate but equal accommodations were unconstitutional — and was ultimately vindicated in his belief that, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” and eventually he’ll be further vindicated when this odious practice finally stops.

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