In a recent generous and polite email, reader Ray Crites gently takes me to task for not emphasizing, or even mentioning, the 14th Amendment in my recent Invidious Ubiquitous Non-Sequitur (IUNS) post discussing why discrimination based on race is not the same as discrimination based on legacy status or athletic or musical ability.
In the hope (based perhaps more on vanity than good analysis of my readers’ interests) that others may be interested in my response to Ray, I include it here:
I completely agree with what you’re saying, which means that I should have included the constitututional argument, and prominently. The only reason I didn’t in the post to which you responded is that I’ve mentioned it so many times in earlier “IUNS” posts that I made the mistake of taking it for granted. If I had thought about it, I of course would not have assumed that all current readers had read, much less remembered, all my earlier posts. Thus I will post something shortly acknowledging your point…. [NOTE: This is it.]
Now, some additional points:
I recently added an “Update” pointing to a Jeff Jacoby column in the Boston Globe making the same argument that you would find of interest. He does mention the 14th Amend. argument.
I hope that all my comments on this issue, especially if read in conjunction with what I’ve said in other posts about “race and sects” (that there should be a wall of separation between race and state for the same reasons there is between religion and state, etc.), make the point that even more fundamental (I believe) than the Constitutional bar against race discrimination is the underlying reason why that bar is in the Constitution. Don’t misunderstand (or rather, let me be clear, since I wasn’t before): I believe law and the Constitution are of crucial importance. I believe in text, and following the law. If something is illegal or unconstitutional it shouldn’t be done even if it is not evil, wrong, etc. However, I also believe in something like a distinction between a capital “C” Constitution and a lower case constitution, and that the latter underlies the former. That is, religion and race are fundamental components of the very structure of our society; they are at the core of its (lower case) constitution. That is fundamentally why the state must not play favorites in those areas; otherwise we would have constant civil war. And that, I believe, is why the bar against discrimination finds itself in the upper case Constitution. Thus in my view the strongest argument against preferences is not simply that they are barred by the text, but also why they are barred by the text. It’s the “why” that elevates the principle that everyone should be judged without regard to race, creed, national origin to a core value of our society.
Finally, fyi, here is a reasonably complete list of my posts that have discussed the “IUNS” matter; I havent’ reread them all, but I think most probably mention the Constitution:
http://www.discriminations.us/archives/000007.html
http://www.discriminations.us/archives/000013.html
www.discriminations.us/archives/000308.html
http://www.discriminations.us/archives/000319.html
http://www.discriminations.us/archives/000465.html
http://www.discriminations.us/archives/000468.html
http://www.discriminations.us/archives/000499.html
http://www.discriminations.us/storage/001908.html
And here are a couple of the “race and sects” arguments that complement the above:
http://www.discriminations.us/archives/000131.html
http://www.discriminations.us/archives/000129.html
Best wishes,
John Rosenberg
