Shikha Dalmia in the USA Today on Banning Racial Preferences

The Supreme Court will hold hearings tomorrow to rule on the constitiutionality of Prop 2, Michigan's vote-approved

constititutional amendment banning racial preferences in public universities and government hiring. Prop 2 — aka Michigan Civil Rights Inititative — opponents argue that this ban on discrimination is itself discriminatory.

But Reason Foundation Senior Analyst Shikha Dalmia examines this argument in the USA Today and finds it more creative than persuasive. Also, she notes, if the Supremos listen to the opponents, they'll basically be "telling state voters that they have no right to craft their own affirmative action policies, a remarkable usurpation of local control."

Go here for the whole thing.

Comments

[Hillary's Clitdong]

I cannot figure out how prohibiting racial preferences by the government is a form of racial discrimination. I just can't.

[robc]

This.

The argument is fundamentally flawed.

A is not A.

[Live Free or Diet]

Correct. Whether it's water fountain and bus seats, or college entry and government jobs, State-enforced racial preferences are pure racism.

[CampingInYourPark]

I cannot figure out how prohibiting racial preferences by the government is a form of racial discrimination. I just can't.

If only the debt ceiling crisis would allow you to concentrate!

[Swiss Servator, Kneel to Zug!]

Racial preferences Today! Racial Preferences Tomorrow! Racial Preferences Forever!

[Michael Ejercito]

Were not Jim Crow laws a system of racial preferences?

[prolefeed]

I cannot figure out how prohibiting racial preferences by the government is a form of racial discrimination.

The (false) prog argument is that this is akin to laws prohibiting rich and poor alike from stealing bread or sleeping under bridges.

Instead, they're really arguing that some people deserve special treatment -- unless they're white, in which case of course that would be wrong.

[Neoliberal Kochtopus]

Right. MNG used to argue all the time that "we*" had deprived "blacks*" of liberty and property for ages and now that "we*" stopped doing that, it wasn't fair to say, "no givsies backsies" or whatever immature bullshit he was peddling instead of arguing for equality.

* - of course, there is no "we"
* - of course, all of the slaves are dead

[Hillary's Clitdong]

If it's discriminatory to have a law which prohibits behavior which some people are more likely to engage in than others, then ALL laws are discriminatory. Rape laws are not a problem for Casanova and Smoove B, they are primarily going to impact the people who are so inattractive/charmless that they have to rape to get laid.

[sloopyinca]

Except, of course, that rape is a crime against another person's right to their own person.

[Hillary's Clitdong]

And theft is a crime against someone else's property.

[sloopyinca]

But your "all laws are discriminatory" argument is just wrong since laws that criminalize property crime, physical crime (or any crime where there is an actual victim) cannot be discriminatory by nature because they merely codify the rights of personhood and ownership.

[Hillary's Clitdong]

But the stereotypical proggie argument, which I was mocking, is "laws which criminalize stealing bread are discriminatory because only the poor feel a need to steal bread". Of COURSE my argument is wrong; that's the entire point of making an argumentum ad absurdum.

[sloopyinca]

Well, I didn't recognize what you were doing then.

Give me a break today, people. I'm running a 102 degree temp and might go a bit off the rails as the fever breaks.

[BakedPenguin]

Smoove B

Damn it's a shame the Onion stopped doing the personal columns I miss Herbert Kornfeld and Jim Anchower.

[Lady Bertrum]

I cannot figure out how prohibiting racial preferences by the government is a form of racial discrimination. I just can't.

Because racism and shit. Now STFU.

[Live Free or Diet]

Southern Tenant Farmers Union?

[Hillary's Clitdong]

Schutzstaffel Tots Flapping Underwear?

[WTF]

I cannot figure out how prohibiting racial preferences by the government is a form of racial discrimination. I just can't.

You clearly have not mastered the art of Doublethink, comrade.

Freedom is slavery, war is peace, etc. etc.

[Lady Bertrum]

+1. Non-discrimination is discrimination.

[Doctor Whom]

In the progressiverse, Queen Carlotta has proclaimed every day as backwards day.

[Rich]

"Check your privilege."

[Lady Bertrum]

'Check your privilege' is just another version of STFU.

[Rich]

Pretty much.

It's a form of ad hominem.

[Neoliberal Kochtopus]

Never thought of it as an ad hominem before, but you're completely correct - that's what it is.

[Jordan]

Logic is a tool of oppression!

[Cascadian Ephor Xenocles]

Indeed, anyone who says it really means "Your ideas are not worth discussing simply because of who you are."

[wareagle]

Also, she notes, if the Supremeos listen to the opponents, they'll basically be "telling state voters that they have no right to craft their own affirmative action policies, a remarkable usurpation of local control."

so discrimination is okay if the locals do it?

[Hillary's Clitdong]

Under current SCOTUS logic, yes.

[Lady Bertrum]

so discrimination is okay if the locals do it?

No. Only if it's the right kind of discrimination.

So, state's rights as long as the states do what 'right thinking' people want them to. If states choose wrongly - well, they need to be corrected by the God-State. Got that?

[Lady Bertrum]

And, choosing wrongly in this case means choosing not to racially discriminate.

[wareagle]

so my early release from the re-education camp is going to be revoked, it seems.

[Michael Ejercito]

By their logic, it would be wrong for Alabama to forbid racial segregation of buses in Montgomery.

(It should be noted that "separate but equal" was only struck down in the context of public education.)

[sloopyinca]

Also, she notes, if the Supremos listen to the opponents, they'll basically be "telling state voters that they have no right to craft their own affirmative action policies, a remarkable usurpation of local control."

Yeah, just like they've "usurped" local control by saying slavery is outlawed in the entire country. Or they've "usurped" states and localities ability to set their own standards IRT habeas corpus, thus violating their right to imprison without charge the undesirables who speak ill of the governor or mayor.

Has she ever heard of the concept of "equal protection under the law"? Does she know what universal rights mean?

[robc]

Dude, are you Tulpa?

That is his level of strawman.

Federalism still exists even if the Feds outlaw slavery (and, btw, that was done via amendment anyway).

[sloopyinca]

Equal protection is universal. And I'm sorry, but in any sane world that means states cannot creates special preferences when it comes to doling out benefits.

[Neoliberal Kochtopus]

sloopy, Dalmia is arguing in favor of a Michigan law that bans racial preferences. You're arguing against your own team.

[sloopyinca]

I don't think so, unless she's in favor of "usurping", as she put it, that local control.

And if she is, then I apologize for misreading that statement, but it's still not how I'm reading it.

[Neoliberal Kochtopus]

Also, she notes, if the Supremos listen to the opponents, they'll basically be "telling state voters that they have no right to craft their own affirmative action policies, a remarkable usurpation of local control."

An affirmative action policy can include, "No Affirmative Action", which is what Michigan's policy is!

[sloopyinca]

States should not have a right to craft their own AA policy in a nation that is supposed o enjoy equal protection for ALL individuals.

The right to equal protection has already been recognized at the federal level, thus superseding any state-level laws that may or may not be deemed to diminish that equal protection.

[Lady Bertrum]

States should not have a right to craft their own AA policy in a nation that is supposed o enjoy equal protection for ALL individuals.

See, here you're making an argument from first principle which is admirable, but doesn't consider the hot mess that is settled law on AA.

[sloopyinca]

"Settled law" gets changed all the time. Plessy was settled law or quit some time until first principles finally were recognized. And i don't think there's a reason to allow Michigan's law just because it's good, because its mere existence allows for 49 other shitty laws to degrade the principle of equal protection.

[Hillary's Clitdong]

because its mere existence allows for 49 other shitty laws to degrade the principle of equal protection.

How? Grutter and Gratz allow states to discriminate. A state adopting a stricter standard about ethnic preferences does not reinforce the SCOTUS argle-bargle standard.

[sloopyinca]

I will refer you to my Plessy argument above. Settled law can be overturned. I wold hope those discriminatory laws will ultimately be overturned, as Plessy was.

[Neoliberal Kochtopus]

sloopy would like to see the ruling go another way and ban states from discriminating. But we have to get to the point first where states are allowed to *not discriminate* first.

[Michael Ejercito]

Plessy was only abrogated to the extent it applied to public education.

A state could enact a constitutional amendment authorizing laws that segregate rail cars, and all lower courts must uphold such a law against a 14th Amendment challenge due to Plessy (unless the rail cars were for the exclusive use of transporting students to and from public schools, which would place it under Brown.)

[Live Free or Diet]

btw, that was done via amendment anyway).

Funny how Yankees try to tell me it was done by Lincoln killing a bunch of people.

[Neoliberal Kochtopus]

She's on your side, yo.

[Lady Bertrum]

You confuzzel me.

So, the right to discriminate by state officials (paid for and employed by the state) in favor of a favored class of citizens is a universal right?

[sloopyinca]

Re-read my (and her) comment.

In a society that proposes to enjoy equal protection under the law for every individual, it should be forbidden for the government at any level to institutionalize discrimination based on race, sex or any other group of people.

[Lady Bertrum]

Right. And this is what the MI law does - bans preferences (at least racial preferences).

[Neoliberal Kochtopus]

Would you please step off of this obviously wrong ledge you're on? Listen very carefully: Michigan *banned* racial discrimination. The 6th Circuit said they couldn't. Shikha is saying Michigan should be allowed to keep the ban. /fin

[sloopyinca]

Here is her entire quote:
Upholding the 6th Circuit would upset all these bans. Basically, the Supreme Court would be telling state voters that they have no right to craft their own affirmative action policies, a usurpation of local control.

It is unlikely it would do so. And Michigan voters, both minorities and others, would be better off if it didn't.

OK, I gues I mis-read her conclusion, but that doesn't change the larger issue: states should not be able to craft their own Affirmative Action policies in any nation where all individuals are expected to enjoy equal protection under the law, which we in America supposedly do.

[Neoliberal Kochtopus]

Ah, well, I am sure that Dalmia is arguing this out of convenience. I would submit that it's OK to be "hypocritical" about states' specific powers, given that it's unclear from the Constitution.

[Jordan]

Last November, however, the 6th Circuit Court ruled that this ban on discrimination was itself discriminatory. Why? Essentially, because it would require minorities who want preferential treatment to amend the Constitution

Ah, yes. One of the most blatant examples of judges flailing around for a fig leaf to cover their personal preferences. Ranks right up there with Wickard.

[Neoliberal Kochtopus]

The Sixth Circuit, in this casual observer's opinion, is on pace to out-circus the Ninth.

[Eduard van Haalen]

There are, sadly, precedents for what the 6th Circuit did.

In the Sixties, California voters overturned the "open housing" laws via constitutional amendment, allowing homeowners and businesses to sell to whomever they wanted, even on racist grounds. The Supreme Court overturned that because the voters were being discriminatory blah blah, so the restrictions on home sales were reinstated.

I think there was a similar case re an anti-busing initiative.

Then there is the *Romer* case, by which Colorado couldn't amendment its constitution to block protected status for gays - that was discriminatory (irrationally so!) because it denied gays the right to use the legislative process to promote their interests.

So you can see the appeal of this kind of thinking - once a state passes laws favoring a group you like, the state can't get rid of these laws because discrimination. A one-way ratchet to keep such policies on the books even after the public has stopped supporting them.

[Michael Ejercito]

Then there is the *Romer* case, by which Colorado couldn't amendment its constitution to block protected status for gays - that was discriminatory (irrationally so!) because it denied gays the right to use the legislative process to promote their interests.

Romer is different, because the law at issue did not block protected status for straights.

Had the law been amended to block protected status for both gays and straights, it would have survived the equal protection challenge.

[Gilbert Martin]

How in hell can a State Supreme Court overturn a Constitutional Amemdment - regardless of what it's about?

A state Constitution is, by definition the Supreme leve of State Law. The court has no authority to use any pre-existing law (or it's "creative" interpretation thereof) to nullify a Constitutional change.

The only legitimate challenge to any Constitional amendment would be some procedural claim that the rules for passing it were somehow not met.

[Elspeth Flashman]

OT: Anyone have an opinion of the Brennan Center for Justice? Are they what they say they are, in other words. http://www.brennancenter.org/about