Racism and Race-Conscious Remedies

In my essay in the 1982 Supreme Court review, to which Professor Tollett refers, I did not say that the original purpose of the Reconstruction Amendments is probably no longer worth taking seriously. Instead, I said that the notion that the amendments are limited to race, and do not also apply elsewhere, is probably no longer worth taking seriously. The difference is not technical; these are entirely different propositions.

To say that the equal protection clause covers not simply race discrimination but also (for example) sex discrimination is to say something that fits with its broad text. It is not at all to deny that the fundamental purpose of the clause is to counteract the subordination of blacks. On this point, Professor Tollett and I are in basic agreement.

In my hypothetical Supreme Court agenda, laid out in "Constitutional Politics and the Conservative Court" (TAP, Spring 1990), I try to outline a set of areas that a different court might have addressed, and on which this court has done nothing. Race discrimination, however, is an area where a lot of law already exists and the current court is actively involved. It does not, therefore, belong in the "hypothetical" agenda. My omission of race in that particular passage does not at all reflect any "deemphasis upon race." (Besides, a constitutional attack on homelessness and poverty, which I do discuss, would overlap with new directions in opposition to the legacy of racism.)

Moreover, the problems to which Professor Tollett points, such as poverty among black children, are not readily susceptible to judicial remedy. Omitting issues from a hypothetical court agenda that the courts cannot resolve does not imply that spotted owls are the largest issue of the day.

My discussion in no way suggests a greater concern with sex discrimination, abortion, and other issues than with race discrimination. Issues of race subordination play a principal, perhaps the principal, role throughout the essay. The civil rights discussion begins with Hardwick and Webster (both involving privacy) because these cases have received the most popular attention. But immediately thereafter, I deal with the race decisions. I stress their importance, and refer to them time and again throughout the article.

To say that discrimination on the basis of sex, disability, and sexual orientation ought also to be a target of the law is not to deny that the elimination of racial subordination is the overriding goal of the Fourteenth Amendment and remains its core target. But "ranking" these various forms of discrimination is, I think, a divisive, counterproductive, usually unnecessary, and potentially even ugly enterprise, which we would all do well to avoid.

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