'Csi' after Grutter V. Bollinger: Searching for Evidence to Construct the Accumulation of Wealth and Economic Diversity as Compelling State Interests

Race jurisprudence has focused primarily on rectifying the denial of individual civil and political rights. As a result, the paramount importance of vindicating the political and social exclusion of African Americans from the mainstream has submerged the economic disenfrachisement intended by the exclusion. A growing body of social science and economics research supports an alternative constitutional claim that the intentional and state-supported denial of entrepreneurial freedoms, which provide access to avenues of wealth accumulation, has resulted in unconstitutional racial inequality. Modern constitutional law should address the obvious injuries to the entrepreneurial freedom of Black Americans. The laws, public policies and private business practices that sustained slavery and suppressed post-slavery wealth accumulation among Black citizens have caused these injuries. Here I use the definition of "entrepreneurial freedoms" to include the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess and convey property. The Constitution has empowered Congress to prohibit discrimination against Black citizens to pursue these entrepreneurial freedoms. These are the primary means of obtaining wealth. The public and legislative reparations debate, along with a growing body of legal scholarship, has also provided evidence of the devastating impact of slavery and post-slavery government policies of economic exclusion on the current state of Black America. Cases challenging education and employment discrimination provide ample evidence as well of the kinds of obstacles to fair competition in government and in private, domestic, and international economic systems faced by Black citizens. Therefore, a foundation exists to re-envision affirmative action and other government attempts to ameliorate the adverse economic effects of race discrimination as economic regulation intended to promote wealth accumulation. This re-characterization would justify evaluating government intervention in the market under less than strict scrutiny. Two paradigmatic shifts are necessary to adequately and fairly address the impact of race discrimination on wealth accumulation and racial diversity in economic markets. First, I reformulate the state's interests as correcting the injuries to entrepreneurial freedoms that have resulted from the race-conscious exclusion of Black citizens from full participation in the accumulation of wealth. Second, I argue that both diversity-based and remedial affirmative action are more like economic regulation. Therefore, legislation intended by Congress to address race-based inequities in the distribution of production, income and wealth should be subject to a deferential standard of review. Applying these more deferential standards allows for the corrective, regulatory intent of affirmative action initiatives to be distinguished from the racial preference policies of the Jim Crow era. In the alternative, a deferential application of strict scrutiny, as in Grutter, enables courts to recognize the expertise of Congress to determine when market intervention is necessary to correct race-based discrimination. Thus, if a convincing case is made for why these interests are compelling, the lower standards are easily met.