The U.N. View Of Discrimination

Reader and blogger Cobb (Michael Bowen, who contributes mightily to our discussion by offering a point of view in his comments that are not frequently aired here, has sent me an interesting email for comment. The strikethroughs that appear in it are my initial comment, followed by some actual words below his missive. The link Cobb generously provided for his U.N. is here.

I’d like to direct your attention outside of the United States for a while, and I would like you to comment on what you believe to be the state of American law on race as compared to that of other nations.

As you may know, Judge Higgenbotham was invited to South Africa by Mandela and company to assist in drafting the new South African constitution.

The International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969. The United States didn’t sign onto this until about 1996 during the Clinton administration.

Balkin suggests that our Civil Rights laws are special rights, or special protections and he has raised questions about our 14th Amendment that I could scarcely imagine just a few weeks ago. If it is indeed reasonable not to chase after the reputations of Founders with our ‘modern sensibilities’ of racism, then it is equally reasonable to presume that our founding documents were fundamentally flawed and that subsequent founding documents should be found to possess more comprehensively intelligent verbiage on race. If this is the case, who has done better?

The UN should.

Secondly, as we go to the specifics of the UN Treaty, I see this use of the term ‘racial discrimination’ way above the head of the Affirmative Action debates which have landed in the Supreme Court. Do you see this as applying to individuals?

Article I

1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

In my view, the first part of No. 1 gives a good definition of racial discrimination. I would stop there, embed that defintion into constitution and law, and go home. The remainder (except for generously not doing away with national sovereignty) undoes that good half sentence by qualifying it out of existence. In the U.N. view, racial discrimination in a good cause — presumably but not necessarily in behalf of formerly oppressed groups — is not racial discrimination at all. But at least it attempts to provide an end date for double standards: when perfect equality shall have been achieved on earth.

I think Cobb is right to bring this view to our attention, for I believe the principle underlying racial preferences is indeed the U.N. principle on display here. If adopted it would force us to abandon the 14th Amendment’s command that “no person” be deprived of equal treatment under the law, and all the non-discrimination legislation that has been based on that principle.

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  1. Cobb February 2, 2003 at 9:51 pm | | Reply

    Interesting take. One of the reasons that I go to founding documents is that in our Declaration of Independence is a litany of complaint against the offenses of the King. One can say that one thing this country has never been under any circumstance is Monarchist. It was founded on anti-monarchist complaints and institutions were founded such that no pretentions to monarchy could ever be empowered in this nation.

    Racism, and sexism weren’t of concern to the Founders. They weren’t in the original complaints and over several generations, they made a dog’s breakfast of the patches and fixes to their system, such that at this point, hundreds of years later, we still wrangle.

    So it stands to reason that at some point some new comprehensive plan will have to do it.

    Also the US ratified the treaty with this proviso (among others):

    (2) That the Constitution and laws of the United States establish extensive protections against discrimination, reaching significant areas of non-governmental activity. Individual privacy and freedom from governmental interference in private conduct, however, are also recognized as among the fundamental values which shape our free and democratic society. The United States understands that the identification of the rights protected under the Convention by reference in article 1 to fields of `public life’ reflects a similar distinction between spheres of public conduct that are customarily the subject of governmental regulation, and spheres of private conduct that are not. To the extent, however, that the Convention calls for a broader regulation of private conduct, the United States does not accept any obligation under this Convention to enact legislation or take other measures under paragraph (1) of article 2, subparagraphs (1) (c) and (d) of article 2, article 3 and article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States.

  2. John Rosenberg February 2, 2003 at 11:46 pm | | Reply

    Cobb – Interesting stuff. I wish I knew more about it. And I agree with you that the “founders” — both those of 1789 and 1868 — don’t have the last word on what equality means. I’m skeptical of most arguments from “a living Constitution,” etc., but a Constitution is not as specific as a statute (or as statutes are supposed to be) and that means that at least to a degree broad principles like equality are not completely frozen in time. On the other hand, I believe new meanings do have to be at least broadly consistent with text and original intent. Thus, if it should be decided that “symmetrical” (Balkin’s term) equal protection is outmoded, that we need a defintion of discrimination like the U.N.’s that allows discrimination in a good cause, then we need to amend the Constitution again. Getting judges to do that by interpretive slights of hand just breeds distrust and contempt.

  3. Cobb February 3, 2003 at 6:08 pm | | Reply

    i simply don’t believe that the racial discriminations of affirmative action rise to a constitutional level, so whether or not balkin’s symmetry holds a constitutional amendment is out of the question.

    i’m trying, to a certain extent, to remove the political passion out of the debate and determine with some finality, based on the *net effect* of affirmative actions discriminations, to what extent racial preferences are permissible in public and private life.

    elsewhere we are grappling with what i would suppose would be the statutory definitions of ‘impairment’ in the UN language, and it doesn’t seem as though that is possible outside of comparing groups.

    let’s take it as a given that the net effect of x affirmative action program in a particular year is that it discriminates against *one* white person because of her race. does that merit a constitutional hearing because it discriminates? if so, what is the justification for exempting small businesses from eeo guidelines? the reason is not because of disparate impact, but because of the scope of disparate impact. in other words, the effect on the groups in the aggregate, not on the individuals.

    so again, why not have ‘reverse discrimination’ class actions? i believe it’s because the goal of the activist plaintiffs is to force all institutions to be colorblind in such a way that *one* white student being denied is too many. this strikes me as obscene because anyone, on any day can prove such things occur with regularity.

    so again i think it’s important to have the sort of qualifying language in supreme court decisions which direct towards full colorblindness until such time as statutory enforcement along equal protection lines is readily acknowledged and real, but it seems to me that we have huge reforms in prison systems and police protection to deal with before we start talking about applicants to graduate school.

  4. John Rosenberg February 3, 2003 at 7:52 pm | | Reply

    Cobb – Since I believe (as you know all too well by now!) that every person has a right to be free from racial discrimination (not only that the 14th Amend., civil rights laws, et. al. say so, but that they are right to say so), I have never believed in “reverse discrimination” or in something like “the racial discriminations of affirmative action.” There is simply racial discrimination, period. So, yes: if one person has been discriminated against because of race, that person has a complaint I would support. Similarly, and for the same reason, I I believe discrimination can exist without some significant “net effect.” If Grutter and Gratz can persuade that they were victims of racial discrimination, then they should win whether or not other whites and Asians were also injured. Of course, if I did believe in a “net effect” standard, then I would say that racial preferences in higher education are discriminatory because in pracitce they injure whites and Asians and, especially, because that is what they are designed to do. (As was pointed out in a comment to another post here, at Michigan the preferences even injure all Hispanics except Mexican-Americans and Puerto Ricans born here.) A society that insists on playing racial favorites will always have, and deserve, racial conflict.

  5. Cobb February 3, 2003 at 8:07 pm | | Reply

    so what do i do about the fact that i’ve been detained by police officers 27 times in my life and only given 5 citations?

    what does america do about the fact that this is much more common than the tweaking of graduate admissions?

    i guess, in the words of my parents, i have to make a federal case of it.

    i sympathize with colorblindness in principle so long as its persuit doesn’t undermine the standing of plaintiffs in those matters i call ‘class two’ racial discriminations.

    as an analogy, i agree with the commandment which says ‘thou shall not bear false witness against thy neighbor’, but this is clearly not just an enjoinder against lying, but perjury. just as all lying isn’t equally wrong all racial discrimination isn’t equally wrong.

    let’s not confuse justice with crime.

  6. kspence February 3, 2003 at 9:59 pm | | Reply

    an interesting constitutional line to pursue would be grappling with the impplications of the 13th v. the 14th amendment. whereas the 14th presumably argues against individual level discrimination on the basis of race and other characteristics, the 13th amendment arguably creates a constitutional imperative to end white supremacy as specifically etched on the bodies of enslaved africans and their descendants. what should take precendence? the group level protections of the 13th or the individual level protections of the 14th? i’d argue that the individual level protections are important but are superceded by the group-level protections which are not against discrimination as much as they are against SUBJUGATION.

  7. John Rosenberg February 3, 2003 at 10:59 pm | | Reply

    Cobb – Sounds like you may well have been the victim of racial profiling. Racial profiling is wrong … whether done by police or admissions officers.

    You’re of course right that all lying isn’t perjury, just as all killing isn’t murder. In my opinion, however, it doesn’t follow that discriminating on the basis of race (or religion?) is ok so long as its against only certain races (or religions). I repeat: when the state plays racial favorites, it ensures continued racial conflict. If we sacrifice the principle that races should be treated the same, we’d be giving up much more than we’d gain. I’m reminded here of one of my favorite observations: George Orwell’s response to the Stalinists who were fond of saying “you can’t make an omlette without breaking eggs.” Orwell replied: “Yes, but where is the omlette?”

  8. John Rosenberg February 3, 2003 at 10:59 pm | | Reply

    kspence – Very interesting point. The text of the 13th Amendment, in its entirety, is as follows:

    Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    Section 2. Congress shall have power to enforce this article by appropriate legislation.

    It has been determined that Congress has the power under this Amendment to legislate to remove all “badges and incidents of slavery.” Whether this gives it the authority to enact racial preferences is arguable. At least one case, McDonald v. Santa Fe Trail Transp. Co, 427 U.S. 273, 285-96 (1976) did hold that under this authority Congress could bar racial discrimination in private employment, but it also said that whites as well as non-whites were so protected. If, however, it were held that the 13th Amendment did allow group preferences, it’s hard for me to see how removing badges and incidents of slavery would apply to Hispanics or any group other than blacks.

    If anyone wants to pursue this matter, there is an interesting Annotation on the 13th Amendment on Findlaw.

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