The Bush administration has filed an amicus brief arguing for the unconstitutionality of the University of Michigan's policy of racial preferences in admissions, and Yale law professor Jack Balkin has responded with a long, involved sequence of arguments to the effect that the constitution in fact never mandated governmental colorblindness. He finishes by asking provocatively whether the first President Bush's nomination of Clarence Thomas to the Supreme Court--a decision almost certainly influenced by race--was unconstitutional, and if not, why "affirmative action" in university admissions should be considered any less constitutional than "affirmative action" in Supreme Court nominations.

Now, my opinion of "affirmative action" is quite settled: I consider it morally indistinguishable from the myriad forms of racial and ethnic discrimination that preceded it. As I mentioned in a previous posting, I have yet to hear an argument in its defense that wasn't also used in the past to justify more "traditional" forms of discrimination. In fact, supporters of racial preferences themselves often implicitly acknowledge its flagrant injustice, by directly equating it with practices, such as "legacy" preferences (that is, favoring children of alumni when determining college admissions), that they more or less admit are transparently unfair.

Whether racial preferences are constitutional, however, is another question entirely. These days, of course, such questions are matters of religious exegesis that only the initiated can properly delve into, and I will therefore leave the task of theological interpretation to the true believers. A more interesting question, to me, is whether they should be constitutional. That is, should consideration of racial or ethnic criteria in government decisions be an option that a democratically elected government is free to embrace or reject?

Three observations lead me to lean towards the answer, "yes". First of all, "discrimination" is a continuum that includes everything from racial discrimination, at one extreme, to the consideration of perfectly valid criteria (such as competence at certain relevant tasks), at the other. And even in the case of racial discrimination, cases come up (the casting of actors, for instance) where discrimination is arguably legitimate. For forms of discrimination that are more justifiable, the line between "just" and "unjust" becomes murkier and murkier, less and less fundamental, and less and less amenable to purely judicial analysis. For example, the decision as to whether, say, single-sex junior high schools deserve public support is a matter for the societal consensus of the moment--not a single 200-year-old document (and certainly not a panel of nine lawyers who got promoted)--to decide.

Second, as a matter of history, the courts have been spectacularly unsuccessful at preventing discrimination. Plessy v. Ferguson, the decision that endorsed "separate but equal" treatment (i.e., legally enforced racial segregation), was a classic case of the courts pandering to the prejudices of their time; Brown v. Board, in contrast, was a classic case of the courts being ahead of their time--and thus utterly ineffectual: school desegregation in the south had to await federal legislative action before it was enforced, more than a decade later. The more recent Bakke decision, as well, though it ostensibly declared strict racial quotas unconstitutional, hardly prevented racial quotas from being implemented widely, both implicitly and explicitly, at all levels of goverment.

Third, constitutional rulings, even when both justified and enforced, can only take the fight against discrimination so far. It was the Civil Rights Act of 1964, for instance, that outlawed racial discrimination in public accommodations--and even so shamelessly despotic an institution as the Supreme Court would never dare find in the text of the Constitution an excuse for imposing such a rule upon private commercial concerns. Since the people must thus be relied on for most of the task of combatting discrimination, perhaps it is just as well that they be relied on for all of it.

Hence, while I fervently hope that racial preferences disappear soon, I find that I cannot in good conscience root for the US Supreme Court to declare them unconstitutional. The fault, to paraphrase Shakespeare's Cassius, lies not with the courts, but with the American people themselves; if they embrace discrimination, then the court is ultimately unlikely to interfere effectively, and if they shun it, then the court's intervention is simply unnecessary.

(As an aside, although I'm not a high-level constitituional cleric like Balkin, I believe his rhetorical question is actually a matter of private, voluntary, individual actions vs. public, mandatory, collective ones, and has nothing to do with racial preferences in particular. For example, suppose that the first President Bush happened to have begun his deliberations on his Supreme Court nomination choice with a fervent prayer to God to grant him the wisdom to make the best selection. Would that make his nomination of Clarence Thomas unconstitutional? And if not, would it then be constitutional for the University of Michigan to require its admissions committee to begin their first meeting each year by joining in a similar collective prayer?)