The Pro-Discrimination Left

Not everyone thinks white people have constitutional rights.

Shanta Driver at the Supreme Court.

The Declaration of Independence declared that “all men are created equal,” but the U.S. Constitution as originally ratified did not live up to that principle. By political necessity it permitted the continued enslavement of blacks and the attendant oppressive system of racial discrimination. Only after the Civil War, with the ratification of the 13th, 14th and 15th amendments, was this defect remedied, and the last two of those amendments were not meaningfully enforced until the culmination of the civil rights movement nearly a century thereafter.

That, at least, is the common understanding. A different view was expressed at the Supreme Court yesterday by Shanta Driver, lawyer for the unwieldily named Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, or BAMN. In Schuette v. BAMN, the organization is challenging a provision of Amendment 2, a Michigan ballot initiative, that bans racial discrimination at the University of Michigan and other public institutions of higher education. (The high court has said such discrimination is constitutionally permissible for the purpose of realizing “the educational benefits” of a “diverse student body.”)

At the beginning of her oral argument, Driver had this exchange with Justice Antonin Scalia:

Driver: We ask this Court to uphold the Sixth Circuit decision to reaffirm the doctrine that’s expressed in Hunter-Seattle, and to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case.

Scalia: My goodness, I thought we’ve–we’ve held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only–only the blacks. But I thought we rejected that. You–you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

Driver: I think it is–it’s a measure that’s an antidiscrimination measure.

Scalia: Right.

Driver: And it’s a measure in which the question of discrimination is determined not just by–by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.


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