YAY! First post! Let's start with a bang!
... discussing the constitutionality of an issue that's already been ruled in court...
OK, so maybe not a hot topic with a week away from elections. But at the same time, how we deem this issue matters a lot, and it'll continue to matter after November 8th.
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This post isn’t supposed to talk about my opinion on Affirmative Action (believe me when I say I’ve switched positions more times than a bandwagon changes jerseys) or about its merits or vices. I want to focus on whether or not Affirmative Action is constitutional and whether it should remain legal under that premise. Section 1 of the 14th amendment, known as the equal protection, can be paraphrased to say “No State shall … deny to any person within its jurisdiction the equal protection of the laws,” so is it the case that the equal protection prohibits racial preferences in areas like state universities or a government job?
I think that to look at this as a constitutional discussion rather than a policy one is to recognize the fact that the 14th amendment was written in purposefully restrictive language for the legislation to pass with no preference for a particular race. That said, however, I don’t believe that the law does not exist in a vacuum, and we must accept the social conditions of the Congress at the time, and its desire to ratify this amendment for the betterment of a racially discriminated society. With this in mind, the debate should not focus on the black-and-white of the rudimentary language provided in the constitution because a deep level of analysis would not be possible if we took the word as literal verbatim. Instead, let’s replicate the conditions of the Congress that wrote the amendment and talk about whether it is ok for racial discrimination to occur under favorable reason, or whether the naysayers have proven that there is a compelling reason for this discrimination.
So, is there an issue with racial disparity economically or socially for minority groups such as African-Americans or Latinos? And if so, does the current disparity merit racial preferences? On the one side, you have problems like Proposition 209 in California, which, when passed a few decades ago, saw double-digit drops in AA and Latino admissions at universities such as UCLA or UC Berkeley. On the other side, this kind of argument could also support negative action, which caps another certain minority for public schools: Asians. Some may see this as a good or bad thing, but constitutionally, it hinders populations from Burmese or Thai descent over people that come from or has ancestry from Japan, China, or South Korea. This has to do with the issue that while the latter group tends to do better in academic testing, the former ends up getting lumped into the same box.
I think that constitutionally, the equal protection clause allows for affirmative action in state funded or sanctioned organizations such as selected universities and businesses. The Supreme Court has had this issue with California before and Texas just recently. The racial preferences must help the community equitably, not equally until the government has proven that systematic barriers for minorities have been removed.
I know this doesn’t answer questions like “When will we be able to say that we live in a community that doesn’t need to use Affirmative Action?” or even “Is Affirmative Action good or bad?” I do hope, however, that I have shown that these systems of racial preferences have some legal legitimacy.
