The U.S. Supreme Court will ­likely decide soon whether Michigan ­voters violated the equal protection clause of the 14th Amendment when they passed a ballot initiative banning the use of racial preferences by public employers and universities. Many of us are worried that the court will uphold the ban because Chief Justice John Roberts has stated that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
These words have a certain ring to them, but he is wrong. The Supreme Court should strike down the Michigan ban.
Admittedly, the plain words of the equal protection clause present a problem for striking down the Michigan ban. They are phrased in universal terms applicable to all races: No state shall “deny to any person within its jurisdiction the equal protection of the laws.” It is also true that many of the people involved in the ratification of the 14th Amendment probably thought that universally applicable laws were the most fair and just laws possible.
They had reason to believe so. We have reason to believe so. Laws written in universal terms have been the primary force for racial equality in the United States and the world. In contrast, laws based on race have served to support slavery, conquest and genocide.
However, we have more information today than those who drafted, passed and ratified the equal protection clause. Research and experience spanning 150 years have shown that hierarchies based on race seem to be a permanent feature of every society.
A racial hierarchy exists in the United States today. African-Americans are on the bottom of it. Professors Jim Sidanius and Felicia Pratto have shown in their book “Social Dominance: An Intergroup Theory of Social Hierarchy and Oppression” that universally applicable laws are not enough to dismantle a racial hierarchy like ours.
Traditional methods of interpreting the equal protection clause used by all justices make it difficult for them to use this knowledge because they focus on the intent of those who drafted, passed and ratified the clause.
Roberts will likely focus on the intent of the clause as expressed in its words. He will probably vote to uphold the Michigan ban. Other justices will focus on the problem that the clause was intended to solve and will likely strike down the ban. The latter approach can make better use of new information, but it is still tied to the intent of those who ratified the clause.
Relying on intent is troublesome because it does not directly consider the hopes of the freed African-American slaves for the equal protection clause. Their hopes are at least as important as the intent of the people who ratified the clause, who were not African-American and had never been slaves.
Relying on intent is also troublesome because there is no single intent to be discovered. Words are only symbols and only imperfectly convey an idea. Words have many meanings to many different people. They change over time for almost every person.
When, as here, the number of people involved in ratification was enormous, and the amendment took several years to be ratified, the justices must pick and choose among available evidence in determining intent.
Furthermore, the people involved probably did not seriously ­consider whether the clause should ­prohibit the use of explicit racial preferences to help African-Americans. If they did, they probably did not discuss it publicly. Basing the decision on whether to uphold the Michigan ban on this largely fictitious intent quickly becomes an after-the-fact justification for a decision made for other reasons that are never fully discussed.
AN UNPRODUCTIVE SEARCH
It is time to directly face the issue based on our values and knowledge today rather than to engage in an unproductive search into the intent of people who probably never considered the issue. It will produce better decisions. It may even produce greater agreement despite the institutional and political risks for the Supreme Court in directly considering the issue.
I believe that the American people do not want to maintain a racial hierarchy based in slavery and Jim Crow today. This view very likely is consistent with the hopes the newly freed African-American slaves had for the clause. This is also likely consistent with the general purpose of many of those who ratified the clause.
It is not easy, however, to decide whether to uphold the Michigan ban. Striking down the ban may delegitimize the idea that people should be treated exactly the same regardless of race. If it does, then the existing racial hierarchy might be prolonged. There may be other ideas that help dismantle the racial hierarchy in the United States that do not use explicit racial preferences and that will not polarize non-African-Americans as much.
Nonetheless, the permanence of the racial hierarchy in the United States shows the danger of an unthinking adherence to universally applicable laws. I believe that the people of the United States are still open to considering the use of racial preferences if the reason for doing so is explained directly and is not distorted by traditional methods of interpreting the Constitution.
The Supreme Court should strike down the Michigan ban because the use of carefully crafted racial preferences remains our best hope of dismantling the racial hierarchy that still burdens the descendents of African-American slaves.
You may say I’m a dreamer, but, I hope, I am not the only one.
Todd Adams is a retired lawyer and is a former assistant attorney general of Michigan.