Contemporary Perspectives on Constitutional Interpretation by Susan J. Brison

Author:Susan J. Brison [Brison, Susan J.]
Language: eng
Format: epub
Tags: Political Science, General
ISBN: 9780429969911
Google: TwHFDwAAQBAJ
Goodreads: 39203156
Publisher: Routledge
Published: 1993-10-07T00:00:00+00:00

Deciding Bakke

I will not pursue the history of Brown's progeny.... We turn instead to a different problem, a child of the success rather than the failures of the revolution Brown began. The conscience of American business and education, and its prudence as well was stirred by the racial wars of the 1960s, and programs collectively called affirmative action or reverse discrimination were part of their response. We can settle for a very rough description of these programs: They aimed to improve the place and number of black and other minorities in labor, commerce, and the professions by giving them some form of preference in hiring, promotion, and admission to college and professional schools. The preference was sometimes indistinct, a matter of counting a person's race or ethnic background as an advantage that could secure him a place, "all else being equal," which it never was. But sometimes the preference was both explicit and mechanical.

The medical school of the University of California at Davis, for example, used a bifurcated system for judging applicants: A quota was set apart for minority applicants who competed only among themselves for a designated number of places, with the consequence that some blacks were accepted whose test scores and other conventional qualifications were far below those of whites who were rejected. Alan Bakke was one of the latter, and it was conceded, in the litigation he provoked, that he would have been accepted had he been black. He said that this quota system was unlawful because it did not treat him as an equal in the contest for places, and the Supreme Court, justifying its decision in a divided and somewhat confused set of opinions, agreed.9

How would Justice Hercules have voted? The case forces him to confront the issue he found unnecessary to decide for Brown. Is the banned categories theory a more successful interpretation of the pertinent constitutional practice, all things considered, than the banned sources theory? A practical constitutional standard enforcing the banned sources theory would designate certain racial classifications as suspect. But it would not be necessary to include in the list of suspect classifications a distinction obviously designed to aid historical victims of prejudice. Perhaps institutions that used racial quotas should have the burden, under that theory, of showing that these did not reflect covert prejudice against some other group. But Davis could have met that burden, so under the banned sources theory it would not have violated Bakke's constitutional right. It would have violated his rights according to the banned categories theory, however. The academic as well as practical elaboration of that theory is just a list of properties that must not be used to distinguish groups one of which thereby gains an advantage over the other. Race must be prominent in any such list, and Davis used racial classifications that disadvantaged whites like Bakke.

So Hercules must choose between the two theories, and he will prefer the banned sources to the banned categories theory. Though banned categories fits the decisions about

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