Section 1981

I’ve argued a number of times that if proponents of racial preferences believed their own argument — that it is not only allowed but almost mandatory to discriminate on the basis of race in order to promote any number of worthwhile goals (“diversity,” compensation, “inclusion,” representation, etc.) — they would demand the repeal of the various civil rights laws, especially the Civil Rights Act of 1964, that bar discrimination by insisting that, as Title 42 U.S.C. 2000d puts it,

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

No person, not “no black person” or “no minority person.”

Amending or simply repealing these laws would remove from the courts the necessity to ignore, mangle, otherwise “construe” them into irrelevance, all or some of which is necessary in order to maintain the legal fiction that racial preference is perfectly compatible with their strictures against racial discrimination.

It occurs to me, however, that I may have overstated the case. It may not be necessary to scrap all our civil rights laws in order to preserve race preferences. Indeed, it would arguably require only some minor modification in “construing” the Civil Rights Act of 1866, arguably the mother of all subsequent civil rights legislation (including the Fourteenth Amendment, which was felt necessary in order to write the main provisions of that act into the Constitution), in order to preserve racial preference policies within the framework of that important statute.

Look at the operative wording from the first section of that 1866 statute, now codified as 42 U.S.C. §1981:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Note carefully: “All persons … shall have the same right[s] … as is enjoyed by white citizens….” This formulation says nothing about what those rights are, but, thanks to the various “construals” by various courts of the civil rights statutes and the 14th Amendment, it has been decided that “white citizens” (and Asian citizens and many others varieties of citizens) do not have a right to be free from burdens placed on them because of their race. And if there is no statutory bar here to burdening whites because of their race, there would similarly be no bar to benefiting blacks because of theirs.

Neat, no? Of course, there is still a small remaining problem: if whites have no right to be free from burdens imposed on them because of their race, and blacks have whatever rights whites have, then blacks remain at risk of having their race used against them as well.

This problem was seen clearly, and expressed well, in the brief the Anti-Defamation League of B’nai B’rith filed in support of Allen Bakke (long excerpts can be here on Curtis Crawford’s useful site, Debating Racial Preference):

Does equal protection by the State, commanded by the Fourteenth Amendment, mean one thing as applied to whites and another when applied to nonwhites? Since whites and nonwhites, by definition, exhaust the universe, to what are the rights of nonwhites to be equal, if not the rights of whites? To what are the rights of whites to be equal if not to those of nonwhites? Equality denotes a relationship between or among those who are to be treated equally by the government. And the Equal Protection Clause means that the constitutional rights of a person cannot depend on his race, or it means nothing.

And again:

Finally, it is argued that the Equal Protection Clause originally was written primarily for the protection of the newly emancipated blacks. Of this there can be no doubt. The inference sought to be drawn, that it does not afford equal protection to others, however, is without merit. As this Court said in Brown v. Board of Education, 347 U.S. 483, 489 (1954) (“Brown 1’’): ‘‘The most avid proponents of the post-Civil War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States….”

Even if one takes some Radical Republican minority’s expressions as the voice of the Equal Protection Clause, however, there is no evidence that the Equal Protection Clause can still be interpreted to protect only blacks. For such a construction has the Orwellian flavor of requiring that blacks be treated as equal to members of all other races, but no person of another race would be constitutionally entitled to equality with the blacks. Surely it is too late in the day for such an interpretation of the Equal Protection Clause. “[W] e cannot turn the clock back to 1868 when the Amendment was adopted. . . .’’ Brown 1, 347 U.S. at 492. For as this Court said in Buchanan v. Warley, 245 U.S. 60, 76 (1917): ‘‘While a principal purpose of the [Fourteenth] Amendment was to protect persons of color, the broad language used was deemed sufficient to protect all persons, white or black, against discriminatory legislation by the States.’’

I believe the ADL was right in its Bakke brief: “the Equal Protection Clause means that the constitutional rights of a person cannot depend on his race, or it means nothing.”

Either we recognize and honor the principle that the state cannot distribute benefits and burdens, large or small, based on race, or we don’t. If today we set the principle aside because we want to do some favors for the goose, tomorrow equally entitled legislators, employers, and admissions officers will decide to impose some burdens on the goose in order to help the poor struggling gander.