Wednesday, January 15, 2003

This is in response to Nathan Newman's question concerning the relation of racist belief to specific principles of law. I wrote it last night but consulted with a few people before posting it:

One can believe in a principle that may on occasion have unpleasant side effects, the Miranda ruling for example: Our legal system is based on the assumption that the guilty should go free before the innocent are convicted of crimes. One can honestly think that the state should only rarely be involved in active coercion, even to the extent of allowing white males to maintain the social advantages they were born with, at whatever cost to blacks or women, simply because the state itself did not create those advantages. One can argue, strictly on principle, that the state should not 'legislate' social activity. I wouldn't do it. I would not make such an argument. But I wouldn't necessarily, call it a 'racist idea'. But at the same time I would not call such social manipulation ’natural’ to our democracy, any more than I would use that word to describe a rosebush in an arbor. I might think the plant healthier for the pruning, but it still raises important questions.

There was a debate at some point over affirmative action even within the civil rights community. The problem was that there was no way to force financial equity on a nationwide basis in elementary education. The unconstitutionality of funding discrepancies among the various states still seems obvious - but the issue was politically stillborn. The fallback position which was, like it or not, a quota system, seems a problematic response, but it was made necessary by the impossibility of inaugurating the obvious constitutionally suited and moral policy of national funding of all education.

Pickering, regardless of Ralph Neas' nice guy language, is accused of something else. And considering his position, we should not have to prove beyond a reasonable doubt that he is a racist to see him disallowed from a higher bench. He should be toast

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