Writing off Race

GIRARDEAU A. SPANN [*] I INTRODUCION The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. [1] The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, [2] and the drafters of the Fourteenth Amendment envisioned a racially stratified society. [3] But the Fourteenth Amendment was itself an affirmative action measure, [4] and few of us think that the racial prejudices of the Framers should continue to govern contemporary race relations. There are a host of fancier, non-interpretivist constitutional theories, including structural theories, moral theories, civic-republican theories, representation-reinforcement theories, public-choice theories, and postmode rn critical-race theories, [5] but none has sufficiently broad support to claim status as the one "authentic" approach to constitutional interpretation. Rather, they are parochial overlays imposed on a Constitution that is best understood as defining the terms of engagement for political bargaining. Given the increasingly transparent dominance of political policy considerations in Supreme Court constitutional adjudication, it is not surprising that recent strands of constitutional scholarship have chosen to advocate judicial minimalism, [6] and even the curtailment of judicial review. [7] Because the Constitution says absolutely nothing about affirmative action, the Supreme Court should have absolutely nothing to say about it either. Rather, the political branches should set the nation's affirmative action policy, and they should do so with political leadership provided by the President. President Clinton has both advocated and actively practiced affirmative action to the extent that he could do so without offending the racial policy preferences of the Supreme Court. But he has failed to perform a presidential function that has even greater constitutional significance. He has failed to contest the Supreme Court's usurpation of racial policymaking power from the political branches of government. II CLINTON'S SUPPORT OF AFFIRMATWE ACTION Proponents of affirmative action believe that the nature of racial discrimination in the United States is such that only the race-conscious reallocation of resources can promote racial equality. They think that raceneutral, colorblind approaches to civil rights will simply perpetuate the existing inequalities that have been imposed on racial minorities throughout the history of the nation. However, opponents of affirmative action believe that colorblind remedies for past discrimination can eventually provide equal opportunities for oppressed minorities. They think that race-conscious remedies will simply replicate in reverse the racial discrimination of the past. Although the political debate about affirmative action seems largely intractable, President Clinton has chosen to side with the proponents of affirmative action. After a formal review of the nation's affirmative action programs, the President formally adopted a "mend it/don't end it" policy, in the belief that a continued commitment to affirmative a ction remained central to the pursuit of racial justice in the United States. [8] He also attempted to make civil rights a priority on the national agenda by creating a blue ribbon Advisory Panel on Race, headed by historian John Hope Franklin, that gave the President specific policy recommendations on ways to promote racial reconciliation and to enhance equal opportunities for racial minorities. [9] Consistent with those actions, President Clinton has made executive and judicial appointments that have provided an unprecedented level of race and gender diversity in the federal government. …