Sunday, October 13, 2013

A Page of History for Michigan's Voters

An interesting symposium hosted by SCOTUSblog helps us to see the tangle of doctrines presented for the Supreme Court's attention in the Michigan Affirmative Action Case to be argued tomorrow (Tuesday) afternoon. Hidden in the weeds, but uncovered nicely by Girardeau Spann's and Richard A. Epstein's contributions, is the conflict of doctrine with reality. Spann correctly points out that the provision of the Michigan constitution in question is artfully worded,but plainly was designed to reverse a Supreme Court decision upholding a race-conscious admissions policy at the state's prestigious law school. This seemingly neutral provision, the lower courts ruled, burdened racial minorities seeking relief from the burden of discrimination. Epstein replies with a doctrine:
I do not think that we have reached the point where colorblind legislation should be regarded as unconstitutional because of its supposed effect on the political process.
This is where we need Holmes's lesson on the importance of history. "The life of the law has bot been logic, it has been history." This sentence is in the opening passage of his monumental The Common Law,published when he was forty. When he was ninety, he returned to this core principle of his jurisprudence, a respect for historical fact: "A page of history is worth a volume of logic." We all know that the Fourteenth Amendment was adopted precisely to allow what we now call affirmative action on behalf of people of "color," the polite phrase for African-Americans and their descendants, to restore to everyone burdened with this label the rights of "white" citizens. In the infamous case of Plessy v. Fergusson, attorneys for Homer Plessy argued in very modern terms that the polarity of white and colored was created by bigotry and enforced by state law; the Fourteenth Amendment charged federal courts with the burden seeing to the undoing of that polarity which had allowed the arbitrary construction of a subordinated caste. Ignoring the plain facts of the case, the Court ignored (indeed hardly seemed to understand) Plessy's argument, and announced instead the doctrine of "separate but equal," founded on the disingenuous notion that supposedly equal treatment of the supposed races provided them equal protection of the laws. The Court has never managed to extricate itself from this pernicious doctrine, which is now put forth with unconscious irony as the doctrine of a "colorblind" constitution. Perhaps they will go behind these misleading slogans now at last. Justice Kennedy, are you listening?