By a 2-1 vote, a panel of the Sixth Circuit has decided that Proposal 2, the Michigan Civil Rights Initiative, an initiative approved by 58% of Michigan voters that amended the state constitution to prohibit state agencies from discriminating against or granting preferential treatment to anyone based on race, violates the 14th Amendment’s requirement of equal protection.
Really. The two-judge majority (both appointed by a Democratic president, with the dissent by a Republican appointee) actually held that depriving a racial minority of the ability to receive preferential treatment based on race discriminates against that minority based on race.
You can read the majority opinion and dissent here if you want to (in truth, the dissent is almost as depressing as the majority opinion simply because of necessity it was forced to take the majority opinion seriously), but you really don’t need to.
If you want to understand the essence of the majority opinion all you really need to read is Lewis Carroll’s Through The Looking Glass:
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’
Even the Ninth Circuit, which itself has not been above emulating Humpty Dumpty on a number of occasions, virtually laughed the identical argument out of court in rejecting a challenge to California’s Prop. 209, on which Michigan’s Prop. 2 was based, noting pointedly:
The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits…. It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.
Michigan has already announced that it will seek an en banc review of the panel’s decision, and it’s hard to believe that decision will stand. But it will long stand as a discomfiting and even unnerving reminder of the Orwellian (or Carrollian) manner the ACLU and the NAACP (plaintiffs in both the 9th and 6th Circuits, joined by BAMN in the latter), Democrats, and their judges now regard racial equality.