August 10, 2001
By Edwin Meese III and John C. Eastman
President Bush's Justice Department is today expected to file a
highly anticipated brief in Adarand Constructors, Inc. vs.
Mineta, a case challenging racial preferences in government
contracting programs that is on its third trip to the United States
Supreme Court. In 1995 the Supreme Court sent Adarand back
to the Court of Appeals, holding that government-sponsored racial
classifications - or "affirmative action" programs - are subject to
strict scrutiny. As a result, the government must demonstrate a
"compelling interest" if it chooses to judge citizens according to
the color of their skin when granting government contracts. Thus
far the only interest that the Supreme Court has recognized as
sufficiently compelling to warrant racial discrimination is the
remedying of past racial discrimination by the government
The Supreme Court's strict scrutiny test is a test that is
almost never met. And rightfully so. Racial discrimination rarely,
if ever, has any legitimate purpose, and instead undermines the
very principle of human equality upon which this nation was based.
As Justice Clarence Thomas noted in his concurring opinion in the
first Adarand decision, the paternalism that appears to lie
at the heart of the government's racial preference program is at
war with the principle of inherent equality that underlies and
infuses our Constitution. Even so-called benevolent racial
classifications can mask the worst kind of racial stereotyping. As
Frederick Douglass noted long ago, "There is always more that is
benevolent, I perceive, than just, manifested toward us. What I ask
for the Negro is not benevolence, not pity, not sympathy, but
In this particular case, Adarand Constructors was unjustly
denied a subcontract on a U.S. Department of Transportation highway
project - even though it submitted the lowest bid - solely because
the owner of the company, Randy Pech, was the wrong color. The
Department of Transportation, like many other federal agencies (but
unbeknownst to most Americans), provides a financial incentive for
general contractors to award subcontracts not on the basis of
merit, but on the skin color of the subcontractor. And it does so
not because the government has been shown to have discriminated in
the past, but because statistically the percentage of
subcontractors who fall into each of the government's racial
categories does not mirror the racial mix of the population as a
President Lincoln once called the proposition that "all men are
created equal" the father of all moral principles in us. Yet, as if
to mock Lincoln, the government has previously defended - in the
name of equality - its policies discriminating against people
solely on the basis of their race. As we argued in a friend of the
court brief submitted earlier this year on behalf of the Claremont
Institute, such is a very strange notion of equality, and one that
is fundamentally incompatible with the principle of equality
articulated in our founding documents such as the Declaration of
From the principle of human equality we derive two important
truths about government. The first is consent. If every human being
possesses the same rights by nature, as our nation's founders
believed, then no human being may legitimately rule another without
that other's consent. The very idea of government by consent rests
upon the principle of human equality. Categorizing citizens by
their race not only violates this first principle of justice, it
rejects the only solid foundation for self-government.
The second is the equal protection of the law. If all human
beings possess rights by nature, then the primary purpose of
government and law is to protect those rights. Further, it must
offer equal protection to each individual citizen - not to groups
defined by something as irrelevant to our common humanity as skin
color - because each citizen possesses equal rights in his
individual capacity as a human being.
In practical terms this means that government must protect what
we today call equality of opportunity, not equality of results. As
James Madison famously explained in Federalist 10, the equal
"protection of different and unequal faculties" is the "first
object of government." When the right of all citizens to compete
for a contract is protected, for example, those who can perform the
best quality of work at the lowest cost ought to be awarded the
contract. The principle of equal rights, then, is the foundation
for the equal protection of law.
These are the clear implications of the Declaration's
proposition that "all men are created equal." They are part of our
heritage, and they are true. Race based preferences and "quotas"
represent nothing less than a rejection of that equality.
In a 1998 speech, then-Sen. John Ashcroft argued against any
kind of race classifications in federal law: "My own view is that
the best way is to usher in a future of racial reconciliation by
ending race-conscious government programs, starting today. You
don't end racial discrimination by promoting racial
discrimination." Such sentiments reach up to the peaks of the
American political tradition, because they remind us what is noble
and good about that tradition. They cause us to remember Justice
John Marshall Harlan's famous dissent in Plessy vs.
Ferguson arguing that "our Constitution is colorblind, and
neither knows nor tolerates classes among its citizens" - and to
reflect on the promise of the Civil Rights Act of 1964 and Martin
Luther King Jr.'s dream that one day his children would be judged
by the content of their character, not the color of their skin.
President Bush and Attorney General Ashcroft now have the
historic opportunity to return us to the original, color-blind
purposes of the Civil Rights Act and the Declaration of
Independence, and to place government-sanctioned racial
discrimination back where it belongs - in the course of ultimate
Meese III, a former U.S. attorney general, is Chairman of
the Center for Legal and Judicial Studies at The Heritage
Foundation. John C. Eastman is a professor of constitutional
law at Chapman University School of Law and Director of the
Claremont Institute Center for Constitutional Jurisprudence.
Originally published in The Washington Times
The Death Throes of Preference
Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
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