Professor Roosevelt: I develop my argument in my book TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTION INTEPRETATION (NYU Press).
Professor Levinson: I mention in that same book that I don't know what Lincoln meant by "well settled." If people want to keep making the same argument that the Court has rejected, they are free to do so. I suppose my real point was that the discussion seemed to be overlooking that the Court had rejected the argument in question (the one about past, societal discrimination). My guess is the Court won't change it's mind about that argument in the Michigan cases, but that your previous post (of several weeks ago) about Justice O'Connor's opinion is correct (that she won't shut the door completely on affirmative action). Whether she should is a different question. Scott Kermit Roosevelt wrote: >Quoting Scott Gerber <[EMAIL PROTECTED]>: > > >> Discrimination is both illegal and immoral, and it needs to stop. >> > >It's very hard for me to make sense of this position. Obviously, not >all discrimination is illegal and immoral. Discrimination based on >test scores, or geography, or socioeconomic status, or alumni >parentage, is apparently okay. So what is it about racial >discrimination that's so bad? It's not, I think, just that it's based >on a characteristic people don't choose and can't change--that applies >to where your parents went to school, too. So I think we have to look >at history to understand why racial classifications are special. In >teaching equal protection to my first year con law students, I asked >them to imagine an America in which instead of slavery we'd had >hereditary caste system based on when your ancestors first arrived in >North America, and enforced by laws prohibiting intermarriage between >people whose first ancestors didn't arrive in the same quarter century, >which was eventually overthrown by a war, following which the equal >protection clause was ratified. In such a case, I suggested, alumni >preferences would look like a paradigm equal protection violation and >racial classifications wouldn't seem as suspicious. > >So what's the lesson of history? It's possible to say that we fought a >civil war over racial discrimination, but I think it's more accurate to >say that, to the extent that's what the war was about, it was about >oppression implemented via race discrimination. The legacy of >oppression taints its tools in our minds, but I would think we should >be more concerned with oppression than with its forms. Which is to >say, again, it's possible to say that the best reading of the Equal >Protection Clause is as mandating colorblindness, but it's certainly >not obvious, and it's not convincing to me. I don't think the claim >that all discrimination is immoral and illegal resolves this question. > -------------------------------------- Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
