Affirmative Racism

Easy: If I may put my two cents in on the topic of your excellent posts.

The political program known as Affirmative Action is actually two very different things, and this fact confuses the public debate in many ways. Originally, Affirmative Action proper was first articulated decisively by a previously obscure Federal District Court Judge in the case of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). In a decision I opposed at the time, this personally mild, gentlemanly man of the South affirmed a sweeping Constitutional right of the Federal Courts to mandate racial discrimination in order to remedy past racial discrimination. Judge James B. McMillan thereby entered into legal history, as his opinion was affirmed by the Supreme Court and taken up as the law of the land. But more importantly, he touched off a political movement which styled itself "Affirmative Action."

As I said, I disagreed with Judge McMillan's ruling at the time on many different grounds, but I always granted him the fact that he articulated the one ground upon which explicit governmental racial discrimination might very well be Constitutional: where it is clear that past racial discrimination, violative of the 14th Amendment and the Civil Rights Act of 1964, could only be remedied by favoring the injured parties. A simple example: If a black man is thrown out of his home by a Sheriff because of a government policy excluding blacks from owning homes in certain neighborhoods, then clearly the Federal Courts have the perfect right to reverse this situation and give the black man back his property. No one in their right mind would call such affirmative action by the Federal Courts anything but Constitutional, even though in some daft sense it could be described as reverse racism.

Where it gets a bit more tenuous is where the argument moves away from actual individuals and seeks to apply itself to an entire class of people, i.e. that blacks in general have been deprived of Constitutionally protected rights and the Federal Courts have the right to step in and grant a remedy to put them in the position they would have been in if the initial discrimination had never occurred. This is properly speaking what Judge McMillan ruled.

Now, I say "tenuous," but it is important to note that Judge McMillan's was a solid Constitutional argument, even if you disagree with it. It is a fact that blacks suffered as a race from deprivations of their life, liberty and property in untold and manifold ways since the conclusion of the Civil War, and that the remnants of this unconstitutional behavior in the South did not disappear with Brown v. Board of Education, nor with the passage of the Civil Rights Act of 1964. There are plenty of good faith arguments that Judge McMillan was wrong in his ruling, not least those rooted in the consequence of his decision, which was the degeneration of the Mecklenburg County school system for both blacks and whites (that continues to this day). But it is undeniable that his version of Affirmative Action was rooted not only in the Constitution, but also in the wider and more important ethics and morality of the American culture. Blacks as a race had been discriminated against for many generations; some remedy based on the fact of their race was necessary to make them whole.

That's affirmative action as envisioned by Judge McMillan, the version of Affirmative Action in American culture that I submit is the most persuasive to those people who don't devote their lives to following either legal or political hair-splitting. But as in most things over the past century or so, the political Left co-opted the concept and bent it to their own particular agenda. For willful partisans such as these, Affirmative Action has become Affirmative Racism, with a new politically privileged class entitled to special benefits.

The arguments in favor of Affirmative Racism mouth the formula of Affirmative Action, but are devoid of interest in the question whether any actual discrimination has occurred. They just take it as given, and that's that.

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In the Ricci case, it was clear that the local government was favoring the local blacks in rejecting the results of the firefighters promotion test, but there was no corresponding evidence anywhere that any of the blacks involved had ever suffered actual discrimination, whether at the hands of the City, the State, the Federal Government, the local City Council, the Police, the educational system, the Governor, the PTA, the Elks Lodge, the Realtors Association, the Master Gardeners, the Boy Scouts, the YMCA, the YWCA, or .... anybody. Compare this situation to Charlotte-Mecklenburg at the time of Judge McMillan's ruling, when 100 years of the Jim Crow South was coming to an abrupt end.

To sum up, Affirmative Action that is based on the reality of actual discrimination that has taken the life, liberty or property of a whole class of people is solidly grounded in Constitutional law, ethics and morality, and the only argument between people of good will concerns the often problematic details of implementation. Affirmative Action that is based on some version of statistical representation of a particular race simply because it is a politically favored minority without regard to any real evidence of actual discrimination is in fact Affirmative Racism, just as much as Jim Crow was in the Old South.

Affirmative Racism is a pox on our society, and a growing threat to our way of life. To this day, the Affirmative Racists in our society practice their devilish trade in the halls of government and in many of the most prestigious educational institutions, oftentimes in violation of actual court orders!

So, Easy, I agree with you that the Sotomayor hearings are a perfect time to make the point "again and again, that this kind of racist thinking has no place on the Supreme Court or in any other branch of government entrusted with the responsibility of upholding the Constitution." The fact that Ms. Sotomayor will be confirmed anyway is irrelevant. This type of thinking will not be stopped unless it is first dragged out of the sewers and exposed. These Senate Hearings are an ideal time and place to cast the harsh glare of the public eye on this grotesque philosophy.