Romer and Michigan

[Samuel Bagenstos]

I don't know that it's possible to have this discussion (the theoretical
one about what constitutes a racial classification, not the historical
one Earl introduces) without engaging with David Strauss's great article
"The Myth of Colorblindness" from the Supreme Court Review 20 years ago.

Samuel R. Bagenstos
Professor of Law
Washington University Law School
One Brookings Drive, Box 1120
St. Louis, MO  63130
(314) 935-9097 (voice)
(314) 935-5356 (fax)
 
Personal web page:  http://law.wustl.edu/Faculty/index.asp?id=198
Disability law blog:  http://disabilitylaw.blogspot.com/
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
Sent: Friday, November 10, 2006 2:50 PM
To: Michael Zimmer; Rick Duncan
Cc: CONLAWPROF at lists.ucla.edu; conlawprof-bounces at lists.ucla.edu
Subject: Re: Re: Romer and Michigan

Equal protection jurisprudence has strayed so far from the original 
understanding that asking what the Civil War Amendments were "about"
seems 
almost beside the point. However, for what its worth, the most direct 
evidence on this issue comes from the debates over the Fifteenth
Amendment 
and the changes in the Naturalization law in the early 
1870's.  Unfortunately, the evidence is somewhat conflicting.  With
respect 
to the former, the drafters explicitly rejected language referring 
specifically to blacks in favor of a more general race-blind 
formulation.  In the naturalization debate, by contrast, they chose to 
single out immigrants from Africa specifically rather than removing the 
racial limitation on naturalization more generally.  In both cases, the 
specific discussion focused not on affirmative action, but rather on 
Chinese immigrants.

At 03:26 PM 11/10/2006 -0500, Michael Zimmer wrote:

>Rick gives the equal treatment answer for why race is different: "the
big 
>difference between racial preferences and all these others is the 
>normative view that racial discrimination is always highly suspect."
The 
>reason racial classifications are suspect is that they have been used 
>mostly to the disadvantage of racial minorities, not that they will
very 
>often disadvantage the majority. I suppose it all goes back to first 
>Justice Harlan's dissent in Plessy. Rick picks out the phrase about 
>"color-blind" out of a paragraph in which subordination of the minority

>race is the thrust. Whatever else the Civil War Amendments were about, 
>they were not about the risk of harm to the white majority. What was
true 
>then, is true today.
>
>Michael J. Zimmer
>Professor of Law
>Seton Hall Law School
>One Newark Center
>Newark, NJ 07102
>973.642.8833
>973.642.8194 fax
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