Saturday, August 04, 2007

Ad Hominem

My post yesterday on colorblindness inspired a collection of very interesting comments, and sparked a debate about (among other things) whether I was giving conservatives too much credit in treating their commitment to government colorblindness as more than a convenient tool to oppose affirmative action and other race-based ameliorative policies. This is not an idle suggestion. Many of the very people who supported massive resistance to Brown moved effortlessly to the argument that the law shouldn't forbid private race discrimination when the 1964 Civil Rights Act was on offer, and a decade and a half later embraced Brown and the Act as inviolate, but now claimed that these landmarks stood for formal equality, thus barring race-based affirmative action. That argument has now been made, successfully, to forbid voluntary race-based measures to foster integration.

Nonetheless, I'm willing to give conservatives the benefit of the doubt. For one thing, the term "conservatives" is sufficiently encompassing to include people with a wide variety of policy preferences, even on matters of race. For another, it's possible for people actually to change their attitudes. Much of the evolution we see in social attitudes (about all sorts of issues) comes from generational change: Old attitudes die off with the people who hold them and are replaced by new attitudes among the young. This dynamic explains much of the evolution we're currently witnessing in attitudes towards gay rights and probably explains some of the change we have seen in attitudes with respect to race over the last half century. But some people actually change their minds, and so when movement conservatives who opposed the Civil Rights Act in 1964 later talk about the importance of color-blindness, I'm willing to take them at their word.

One reason to take people at their word is that regardless of their motives, their arguments could be right. There is at least SOMETHING to the conservative argument that the right lesson to draw from our history of racial subordination of African Americans is that any race-conscious decisions are suspect, not just those that disfavor African Americans or other subordinated groups. That, after all, is why even Thurgood Marshall wanted to apply intermediate scrutiny, rather than rational basis scrutiny, to race-based affirmative action programs. And that's why, at the end of the day, the differences between the arguments of current liberals and conservatives on affirmative action are large but ultimately a matter of what to emphasize in interpreting the same commitment to equality---regardless of what the motives (on all sides) for those arguments may be.


egarber said...

One sidebar question I have:

Is it possible to be an originalist / strict constructionist in constitutional interpretation while favoring a reading of the 14th that touts absolute colorblindness? I'm all for folks changing their minds, but they should be called out when they contradict themselves in real time.

Paul said...

Of course it is. The problem would not be a claim of being an originalist. There is no such thing as a single descriptor encompassing any one individual's complete judicial philosophy, especially when that philosophy is necessarily tested (repeatedly) by the facts of an individual case.

A claim to being an originalist or a constructionist or a pragmatist, etc., merely indicates preference. Suggesting otherwise would be to criticize someone who professes normative preferences for making constructionist arguments.

The criticism should lie if someone were to profess an originalist position in support of a conclusion that could not be reasonably drawn from originalist arguments.

egarber said...

A claim to being an originalist or a constructionist or a pragmatist, etc., merely indicates preference.

Yep. I understand. But just like with the Bible, doesn't this lead to potential cherrypicking based on personal views -- vs. something gounded in a firm rule that's applied consistently? With the latter, you take the "good" with the "bad."

But if your philosophy allows you to always arrive at the "good", it seems to me you should just be honest and simply admit you have personal opinions.

I'm tiring the point, I know -- and I get what you're saying.


The Casual said...

I have a question that relates to my previous post (made far too late last night so I apologize for the typos and other erros). I am hoping that someone with expertise will address it. Why is "integration" the end to be sought by liberals in this case? It seems that integration is only justifiable in this context, by the many of the liberals' own arguments, as a means to the end of equal educational opportunity. The notion that diversity/integration is a justifiable end in and of itself was accepted in Grutter at university level and rejected in the post-secondary context. My question is, so what? How does integration - in and of itself - actually assist any past (or present) disadvantaged group in the context of MANDATORY, PUBLIC-FUNDED education as opposed to OPTIONAL, PUBLIC/PRIVATE FUNDED advanced education?

The focus of the conversation seems to always be the notion of equal education opportunities. To me, this was the primary justification offered for the decision in Brown v. Board. When faced with the state-imposed segregation of that time, this is plausible. When faced with privately "imposed" modern-day segregation, it is less so. Have we lost focus on the true goal of Brown or am I missing something? Whereas it might have been reasonable to assume that caucasion-dominated schools would always have the best facilities and resources in the 50's, I believe we can prove that is not the case - particularly in rural v. suburban and urban areas - today.

For the sake of discussion, I'll expand my previous point regarding disparate education opportunities. I grew up in a town with a very limited curriculum and poor facilities. Down the road 20 miles was a town of similar size with far superior facilities, faculty and opportunities. How did this happen? Our neighboring town played host to a large utility company. The major minorities in my area were Native Americans. Assuming that my town had a much higher population of Native Americans than our neighbor, would integration/balancing achieve a legitimate end under 14th Amendment? Does it provide some form of equal protection for students or racial/ethnic GROUPS...shifting the "burden" of an inferior education opportunity equally to minorites and randomly-selected members of the majority? If the latter, is that really our goal here?

If the type of program approved in Grutter is to truly become unnecessary 25 or 50 years from now, we must focus on equal public education opportunities regardless of socio-economic status. In our ever-diversifying modern society, that cannot be tied solely to race in my humble opinion...for what it's worth.

-- The Casual Observer

rturner said...

Professor Dorf speaks of "the same commitment to equality." The problem is that there is no agreement on what "equality" means and requires as a matter of constitutional law and, more broadly, political and social policy. Is the desired goal and end equality of opportunity, or equality of result, or some other formulation?

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