Romer and Michigan
matthewhpolsci at aol.com
matthewhpolsci at aol.com
Fri Nov 10 22:37:55 PST 2006
The question may be asked as to whether Professor Zimmer's answer below is not correct. Professor Maltz seems to say that the answer is either mixed or irrelevant in 2006.
Whichever view may be taken, there is a two part 2006 policy question.
Part 1. Is it now to be assumed that the demonstrable gap, in virtually all facets of the economy, between blacks en bloc and whites en bloc is (a) simply a permanent fact of life or is (b) treatable by policy?
Part 2. How the empirical political theory (let us name it 'judicio-political theory') argued in briefs and law reviews, and pronounced in judges' holdings deal with the problem of "making and maintaining commonwealths"?
From: emaltz at camden.rutgers.edu
To: zimmermi at shu.edu; nebraskalawprof at yahoo.com
Cc: CONLAWPROF at lists.ucla.edu; conlawprof-bounces at lists.ucla.edu
Sent: Fri, 10 Nov 2006 2:49 PM
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
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