Race, Racism and the Law 
Speaking Truth to Power!!

It is clear that the elimination of affirmative action probably would not produce a colorblind meritocracy. Nothing in this country's history remotely suggests that such a result is attainable in the absence of strong medicine, if at all. Moreover, the facts that very few minorities hold high elective offices or positions of power in corporate America strongly suggest that there is a very real glass ceiling for minorities (as well as women). It is at least arguable that until all persons, irrespective of race, are treated as serious candidates for such positions, we have a significant racial discrimination problem. And although there are anti-discrimination statutes which provide some measure of protection, it appears that they are at least sometimes ineffective and often extremely expensive to invoke. 

It is difficult to accept Justice Scalia's insistence that the Constitution is absolutely colorblind, that the Constitution simply does not permit government to draw distinctions on the basis of race, irrespective of purpose, because constitutionally there is no such thing as "race." For an originalist such as Justice Scalia to make such an assertion is especially surprising. It is impossible to deny that the Constitution as originally ratified tolerated slavery (some of the Framers owned slaves) and protected slave owners in at least four ways. It further is indisputable that it took a civil war and three constitutional amendments to banish slavery effectively from this country. 

All that history does not mean that African Americans, in particular, now are somehow a "creditor" race, to which nonminorities owe some special obligation, and in that respect Justice Scalia may have a point. Nonetheless, American history certainly suggests that any reasonable judicial consideration of the constitutionality of affirmative action-as well as political consideration of the propriety of such measures-must recognize and honestly grapple with our past. Ignoring that history or pretending that it does not exist-not to mention the continuing reality that minorities sometimes face obstacles that nonminorities do not-is nothing more than an attempt to short circuit the affirmative action debate altogether, and avoid the truly difficult issues. The real question probably is not whether we must engage in race-conscious or race- sensitive measures to equalize opportunities, but rather how to define, implement, and ultimately terminate such efforts.