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Why should San Francisco construction companies have to help shoulder America’s responsibility for its history of slavery and racial discrimination? The answer lies with the United States Supreme Court and, interestingly enough, the postwar writings of a German political philosopher on the notion of collective responsibility. Last week the First District Court of Appeal in San Francisco addressed this question in Coral Construction, Inc. v. City and County of San Francisco, 07 C.D.O.S. 4185, a lawsuit by two construction companies challenging a San Francisco ordinance that provides race- and gender-conscious remedies for past discrimination in public contracting. The superior court judge had held that the ordinance violates Proposition 209, the 1996 California ballot initiative that prohibits preferential treatment in public employment, education and contracting. The appellate court sent the case back to the superior court because the judge had neglected to decide whether the city had demonstrated a history of past and continuing intentional discrimination in its public contracting � of which the city’s Board of Supervisors had made extensive findings based on substantial evidence. That point is pivotal because, despite Proposition 209, U.S. Supreme Court authority states that the constitutional guarantee of equal protection imposes a governmental duty to take affirmative steps to remedy past unconstitutional discrimination. Justice Lewis Powell explained in the 1986 case of Wygant v. Jackson Board of Education, 476 U.S. 267, that “in order to remedy the effects of prior discrimination, it may be necessary to take race into account. As part of this Nation’s dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy.” The idea of “innocent persons” bearing the burden of remedying past wrongs is at the core of the hot-button issue of affirmative action. Its political and philosophical roots, however, go deeper than America’s civil rights struggles, to the ashes of Germany in the aftermath of World War II. Writing in 1946 in a work titled “The Question of German Guilt,” German political philosopher Karl Jaspers explored the parameters of national responsibility for Nazi war crimes. Jaspers identified four forms of guilt: criminal, moral, metaphysical and political. The first three implicate the individual. Criminal guilt requires punishment for those who commit crimes. Moral guilt attaches to complicity in the crimes of others. Metaphysical guilt is felt by those who are not morally responsible but were unable to prevent a crime. Jaspers conceived the fourth form of guilt � political � as “the joint liability of all citizens for acts committed by their state.” It attaches not to the individual but to an entire society. It is borne collectively, even by citizens who did not personally participate in wrongdoing � or, as Justice Powell put it, by the “innocent” who “may be called upon to bear some of the burden of the remedy.” Jaspers explained: “To hold liable does not mean to hold morally guilty.”
How can we rectify the evils of slavery a century and a half after emancipation? What should we do about institutional discrimination now that it is no longer in vogue?

Why should those of us who are not morally responsible for a societal wrong be held collectively liable? Because, according to Jaspers, we each live by the order of society, in “a sum total of political conditions whose nature is moral. … The individual cannot wholly detach himself from these conditions, for � consciously or unconsciously � he lives as a link in their chain.” We cannot fairly take society’s benefits without also bearing its obligations. “A people answers for its polity.” The notion of political guilt explains why postwar Germany, and to a lesser extent Japan, have accepted responsibility for their war crimes. Today’s Germans and Japanese obviously are not criminally, morally or metaphysically guilty, but more than 60 years later they remain collectively responsible. And so it is with slavery in America, and its legacy of institutional discrimination. No one alive today had anything to do with slavery, and few openly embrace racism. Most of us feel free of criminal, moral and metaphysical guilt. But what about Jaspers’ notion of political guilt? Even if we are personally blameless, we are still links in a chain of political and social conditions that are built on slavery and discrimination. How can we rectify the evils of slavery a century and a half after emancipation? What should we do about institutional discrimination now that it is no longer in vogue? Justice Sandra Day O’Connor answered these questions in a concurring opinion in Wygant: Government has a “constitutional duty to take affirmative steps to eliminate the continuing effects of past unconstitutional discrimination.” Justice Anthony Kennedy said something similar in a concurring opinion in the 1989 case of City of Richmond v J.A. Croson Co., 488 U.S. 469: “[T]he State has the power to eradicate racial discrimination and its effects in both the public and private sectors, and the absolute duty to do so where those wrongs were caused intentionally by the State itself.” Both these quotes � which sound very much like Jaspers � appear in the court of appeal’s Coral Construction opinion. So there it is � the notion of affirmative action as a remedy for the lingering effects of past state-sanctioned discrimination. Jaspers would call it collective liability for political guilt. It is the same political philosophy that underlies Germany’s postwar willingness to bear the responsibility for Nazi war crimes. The main argument against affirmative action is that it is unfair to the unpreferred, putting them a disadvantage because of wrongdoing for which they are personally blameless. For many Americans, there is something fundamentally offensive about this. But there is a competing notion of fairness: With collective liability for society’s wrongdoing comes responsibility to take remedial action, even when there is no moral or legal accountability. And, said Justice Powell, collective responsibility means “innocent persons may be called upon to bear some of the burden.” That may not be palatable to the plaintiffs in Coral Construction � understandably so � but it is a necessary, if unfortunate, price we must pay for the sins of preceding generations. Just as Jaspers urged postwar Germans to “take on ourselves the guilt of our fathers,” so, too, should we, as a society, be willing to take political responsibility for our own national wrongdoing � and do something about it. Jon B. Eisenberg is an appellate attorney in Oakland with the law firm of Eisenberg & Hancock.

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