'Constitutional Justice' or 'Constitutional Peace'?: The Supreme Court and Affirmative Action

The problem of constitutional evil is the topic of a recent and provocative book by historian and law professor Mark Graber. The problem arises because the formation and the maintenance of constitutions such as ours require concessions by one group of citizens to another group who, in the eyes of the former, are committed to radically unjust practices. In the case of the formation of our own Constitution, the most fundamental of such concessions was the compromise under which slavery was guaranteed constitutional protection, at least where it already existed. Despite their deep misgivings over slavery, opponents of that institution considered it to be necessary to create constitutional accommodations for it in order to secure the benefits of a federal Union. Graber argues that as our history unfolded during the period before the Civil War, the Nation's leadership sought to maintain a constitutional peace that preserved the Union, despite deepening sectional disagreements over the justice of slavery and over the extent to which the Constitution required its protection. In the effort to secure constitutional peace, the ante-bellum Supreme Court, particularly in the Dred Scott decision, played a pivotal role. Abraham Lincoln's election in 1860 signaled the victory of those who rejected the Court's attempt to broker a constitutional peace, and who instead sought to limit and confine what they saw as a grave constitutional injustice. Graber's categories can be used to illuminate contemporary constitutional debates over racial preferences: the choice between constitutional justice and constitutional peace structures the debate over affirmative action no less than the debate over slavery. Now as then, two fundamentally different conceptions of justice have come into conflict. One conception of justice would prohibit the government from using race-sensitive measures except in those narrow circumstances in which individual offenders and individual victims of racial wrongs could be identified; the other conception would require a reparative program in which the government, as the political representative of American society, would be liable for the persisting effects of historic harms inflicted on collective groups - and especially on African Americans. Sensing the potential for widespread racial polarization that could ensue from the adoption of one or the other of these vying conceptions, the Supreme Court has sought instead to devise a formula that would produce a generally acceptable constitutional peace. Particularly through the work of two influential conservative centrists - Justices Powell and O'Connor - the Supreme Court has come to limit the "remedial," backward-looking use of racial categories to narrow circumstances, but to permit a non-remedial, forward-looking use of race that involves no attribution of liability for past or persisting racial injustices. In effect, the Court has sought to change the national conversation over racial justice into a conversation over the methods of forming political, legal and business elites. While the Court's affirmative action formula has thus far appeared to bring a substantial measure of constitutional peace over racial questions, the issue of constitutional justice has not gone away.