The Death Throes of Preference


The Death Throes of Preference

Aug 10, 2001 4 min read

Senior Research Fellow


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 itself.

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 simply justice."

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 whole.

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 Independence.

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 extinction.

Edwin 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

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