Are African-Americans still protected by equal protection?

[DAVID E. BERNSTEIN]

Good questions (though I think yes, by definition it is rent-seeking,
though arguably justified rent-seeking), but remember, it is not simply
the previously-advantaged majority asking the others to give up an
advantage.  The current political majority/former political minority may
itself decide that in the long run it would be better off with a
strongly-enforced "neutral" rule banning racial rent-seeking than with
trusting the vagaries of the political process.  That is particularly
true when the current political majority is advocating a position, like
racial preferences, that benefits a numerical minority. This situtation,
one would think, creates a very unstable political coalition, and a
political situation that could easily turn against the political
minority.

I know I am myself in a small minority in thinking that the issue is
"affirmative action" benefiting blacks and other groups vs. "reverse
discrimination" hurting whites and sometimes Asians, but an issue of
whether banning racial rent-seeking in beneficial to everyone, and,
concimitantly, whether such a rule can (a) be just and (b) be stable.
If the extreme legal realists are correct, one should always rely on
politics when one can because no rules are ever enforced if the judges
don't like the results.  I think that view, and even less extreme
versions, is wrong, but at least its proponents are asking the right
questions.

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>

>>> Brian Landsberg <blandsberg at UOP.EDU> 09/08/00 02:34PM >>>
David Bernstein asks,  "do
we go back to a potential political war of all against all, and may the
political majority win, or do ask everyone to precommit to refrain from
rent-seeking (while recognizing the price of leaving some historical
injustices uncorrected)>?"
My question is what does it mean to recognize the price of leaving some
historical injustices uncorrected?  How high a price may the previously
favored group legitimately ask the previously disfavored group to pay?
If my current state had been disadvantageously determined by past
injustice, would I really be "rent-seeking" if I asked the state to
correct the past injustices?

Brian K. Landsberg
Professor of Law
McGeorge School of Law
3200 Fifth Ave.
Sacramento, CA 95817
(916) 739-7103