Privilege Before the Law
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[Originally published in The American Conservative 2-24-03]

Equality before the law is an achievement of a thousand-year struggle, but Americans have carelessly thrown it away. We have spent the past 37 years resurrecting feudalism, a system of differential legal rights based on status. The new legal aristocrats are "preferred minorities"—an official designation—whether they are native-born descendants of slaves or walked across our border today.

In the University of Michigan racial quota case before the Supreme Court, we have an opportunity to drive a stake through the heart of the new feudalism before it is too late and to reaffirm equality before the law. But if the Bush administration's legal brief against the University of Michigan's quota scheme and the Supreme Court's Bakke ruling a quarter century ago are guides to the outcome, our future lies with feudalism.

The Bush administration's brief against Michigan's racial quotas is a political one. It is against racial quotas but for diversity. This was the Bakke (1978) decision, one that the brief urges the Supreme Court to follow: quotas are unconstitutional, but for preferred minorities race can be a factor in granting admission to university or medical and law schools. To help prepare the ground, the Bush administration's two high-profile blacks, Secretary of State Colin Powell and National Security Adviser Condoleezza Rice, have made the rounds of the TV talk shows expressing their support for the view that "race should be a factor."

When we say that race should be a factor, we mean that skin color is a factor that mitigates or trumps the requirements for admission in order to make certain that some percentage of those with privileged pigmentation are admitted on terms not open to white applicants. Regardless of how we disguise quotas with euphemisms or elaborate admission schemes, we are speaking of racial privilege.

Privilege has a way of not going away. Indeed, the Supreme Court has precedent for ruling that preferred minorities have squatters' rights in racial quotas. When the controversial Roe v. Wade abortion ruling came back before the Court in 1992, a plurality ruled that despite the absence of a legal or constitutional basis for the pro-abortion Roe v. Wade ruling, the passage of time had given women squatters' rights to abortions: "An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society and to make reproductive decisions."

Five years previously in 1987 Justice John Paul Stevens voted to extend quotas in the Johnson case even though he acknowledged that Congress forbade quotas in the 1964 Civil Rights Act. Justice Stevens said that the "petitioner would unquestionably prevail" if Congress' original "'color-blind' rhetoric" controlled the Court's decision, but that the intent of statutory law was no longer controlling, because "Bakke and Weber have been decided and are now an important part of the fabric of our law."

How did we end up with racial quotas when the 1964 Civil Rights Act expressly forbids them? It was primarily the work of one man, an Equal Employment Opportunity Commission (EEOC) bureaucrat named Alfred Blumrosen, now a Rutgers University law professor. Blumrosen's thoroughgoing and illegal rewrite of the Civil Rights Act was accepted by the Supreme Court in Griggs v. Duke Power (1971). A brief history of the Civil Rights Act's transmogrification will help the reader understand the impotence of statutory law and the Constitution when assaulted by unaccountable federal bureaucrats and crusading justices.

Although Republicans received little credit for the passage of the 1964 Civil Rights Act, it passed because of the support of Senate Minority Leader Everett Dirksen (R-Ill). Hubert Humphrey and the bill's sponsors were insistent that racial quotas were absolutely forbidden by the act. Nevertheless, passage of the bill required amendments.

Dirksen tightly bottled up quotas with statutory language and added an amendment that defined discrimination as an intentional act that could not be inferred from statistical disparities. Senator John Tower (R-Tx) added an amendment that protected employment tests from Title VII of the bill. House Judiciary Committee Chairman Emanuel Celler (D-NY) amended the bill to prevent the EEOC from making any substantive regulatory interpretations of the act. Neither the clear statutory language of the act and the amendments nor the act's unambiguous legislative history could prevent Blumrosen and the Burger Court from standing the Civil Rights Act on its head.

Blumrosen ignored the act and its statutory prohibition against regulatory interpretation. He bet that he could get away with rewriting the act because of the courts' deference to the regulatory agency. Blumrosen redefined discrimination to be statistical disparity or under-utilization of blacks. If an employer's work force contained a smaller percentage of blacks than blacks comprised of the local population, the company was discriminating. Anything that had disparate impact, such as employment tests, Blumrosen declared to be discriminatory. Having eliminated intent, he was able to shift the act's focus from specific discrimination against individuals and initiate agency proceedings against employers even in the absence of complaints of discrimination.

Griggs (1971) was the first test of the Blumrosen Civil Rights Act. Chief Justice Warren Burger declared that the illegal "administrative interpretation of the act by the enforcing agency is entitled to great deference." The Court ruled that Duke Power was discriminating against blacks, because the company's requirements for promotion—either a high school diploma or a passing grade on Wonderlic and Bennett intelligence and mechanical comprehension tests—were "built-in headwinds for minority groups." The Court ruled with Blumrosen that discrimination did not require intent, only consequence.

Blumrosen's rewrite of the Civil Rights Act required employers to adopt racial quotas in order to avoid federal lawsuits. Private employment and promotion quotas are held to be legal because of the fiction that they are "voluntarily adopted" and not required by federal statute. They are required, of course, to avoid federal lawsuits.

Blumrosen's redefinition of discrimination created "reverse discrimination." Whites lose opportunities for racial reasons alone. When Brian Weber's reverse discrimination case came before the Supreme Court in 1979, the Court ruled that Kaiser Aluminum's discrimination against whites in the company's training program was "benign discrimination" consistent with the "spirit" of the Civil Rights Act.

Public universities, being public, are restricted by the Constitution's equal protection clause from voluntarily adopting racial quotas like private companies. Other rationales have had to be created, such as "a compelling government interest," "remedying past discrimination," and "diversity." No court has yet explained the power granted these concepts to trump the Constitution. But a number of judges, justices, and law professors have assumed that these exemptions to the Constitution's equal protection clause exist.

The Bush administration's complaint against the University of Michigan's racial quotas is artificial. Michigan has been evading merit based admission by granting preferred minorities 20 points for skin color, whereas a perfect SAT score only receives 12 points. The Bush administration will be happy if Michigan adopts the Texas or Florida stratagem of guaranteed admission to some top percentage of high school graduating classes. This quota system favors blacks in segregated schools over those in integrated schools. But it still trumps a competitive merit system with guaranteed admission on the basis of race.

The question that has not been answered these 37 years is: why are political, legal, and academic elites determined to replace equality before the law with racial privilege? One possible answer is that elites are too caught up in "the righteous cause of the Negro" to comprehend that they are destroying the legal foundation of modernity and re-creating a feudal legal order. Another explanation is that elites believe blacks cannot compete with whites on equal terms and can only be rescued by privilege from being a permanent underclass. A third explanation is that elites accept Gunnar Myrdal's view that all whites are "aversive racists;" therefore, democracy cannot deliver justice to blacks and must be supplemented or superseded with legal coercion.

The common denominator of these answers is that justice for blacks requires whites to become second class citizens in law. Second class citizenship for whites is a definite result of Blumrosen's rewrite of the Civil Rights Act. Every administration since Nixon's and every Supreme Court since the Burger Court has diminished the rights of white people. The resurrection of a feudal legal system is occurring without debate. Moreover, it is white elites who are destroying the rights of white people. The vast majority of whites either accept the diminution of their rights or they are unaware of it.

The famed jurist Benjamin Cardozo said that in law there is a tendency for a principle to unfold to the limits of its logic. We have watched the principle of special rights for preferred minorities unfold in the myriad ways racial quotas have been institutionalized in public and private life. We are now observing this principle unfold in the creation of crimes that can only be committed by whites against preferred minorities. Whites have been indicted and jailed for "hate crimes" when they are overheard using racial epithets in private conversation with family members (Janice Barton case in Michigan) and for using "racist language" when they come to the defense of wives and family members who are physically assaulted by preferred minorities (Lonny Rae case in Idaho). The recent demise of Senate Majority Leader Trent Lott (R-Miss) confirms the power of preferred minorities to censure the speech of white persons. Even ancient words such as "niggardly" can no longer be used due to the misinterpretation of the word by uneducated preferred minorities.

Such speech control is very much a one-way street; the explicit demonization of whites is growing more commonplace. Vanderbilt University mathematics professor Jonathan Farley recently wrote that "the race problems that wrack America to this day are due largely to the fact that the Confederacy was not thoroughly destroyed, its leaders and soldiers executed, and their lands given to the landless freed slaves." Noel Ignatiev, an academic associated with Harvard University's Institute for African-American Research, thinks that all whites, not only southern ones, are the problem. He says that "the key to solving the social problems of our age is to abolish the white race." Ignatiev edits a journal, Race Traitor, which has as its motto: "treason to whiteness is loyalty to humanity."

White professors, no matter how distinguished, who spoke similarly about preferred minorities would be instantly sacked and most likely arrested for committing hate crimes. However, neither Ignatiev nor Farley even had to issue an apology. What does this say about the position of whites in their society?

The only possible way diverse races can live peacefully together is in equality before the law. If the Supreme Court wimps out like the Bush administration and cannot marshall the courage and wisdom to strike down racial criteria, period, the Blumrosen Civil Rights Act and continued massive immigration from the Third World could mean the collapse of a peaceful social order.

Paul Craig Roberts is coauthor with Lawrence Stratton of The New Color Line, a history of U.S. racial quotas, their origin and consequences.

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