RUTHFULLY YOURS

Not everyone thinks white people have constitutional rights.

The Declaration of Independence declared that “all men are created equal,” but the U.S. Constitution as originally ratified did not live up to that principle. By political necessity it permitted the continued enslavement of blacks and the attendant oppressive system of racial discrimination. Only after the Civil War, with the ratification of the 13th, 14th and 15th amendments, was this defect remedied, and the last two of those amendments were not meaningfully enforced until the culmination of the civil rights movement nearly a century thereafter.

That, at least, is the common understanding. A different view was expressed at the Supreme Court yesterday by Shanta Driver, lawyer for the unwieldily named Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, or BAMN. In Schuette v. BAMN, the organization is challenging a provision of Amendment 2, a Michigan ballot initiative, that bans racial discrimination at the University of Michigan and other public institutions of higher education. (The high court has said such discrimination is constitutionally permissible for the purpose of realizing “the educational benefits” of a “diverse student body.”)

At the beginning of her oral argument, Driver had this exchange with Justice Antonin Scalia:

Driver: We ask this Court to uphold the Sixth Circuit decision to reaffirm the doctrine that’s expressed in Hunter-Seattle, and to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case.

Scalia: My goodness, I thought we’ve–we’ve held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only–only the blacks. But I thought we rejected that. You–you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

Driver: I think it is–it’s a measure that’s an antidiscrimination measure.

Scalia: Right.

Driver: And it’s a measure in which the question of discrimination is determined not just by–by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.

Scalia: And unless that exists, the 14th Amendment is not violated; is that right? So if you have a banding together of various minority groups who discriminate against–against whites, that’s okay?

Driver: I think that–

Scalia: Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?

Driver: No case of yours.

As this exchange makes clear, Driver’s view of the 14th Amendment is a highly eccentric one–one that, as she acknowledges at the end, is without support in the court’s precedents. Even if the justices were to rule in BAMN’s favor–an outcome we think unlikely, for reasons we explained in a July 2011 column–they would not need to adopt Driver’s view that “equal protection of the laws” applies only to members of certain favored races.

Yet while Driver’s position is far outside the legal mainstream, it is well accepted within academia. It is the basis for the diversity industry, which seeks to counter so-called white privilege. And it is an increasingly common theme of liberal Democratic politics, which seek to unify a coalition of multiple minorities by demonizing whites.

One oddity of the Driver-Scalia exchange is that while he is often identified as a constitutional “originalist”–one who believes constitutional provisions should be understood as they were at the time they were ratified–it is she who purports to be arguing for an originalist interpretation of the Equal Protection Clause.

That circle is easily enough squared: Scalia is also a “textualist,” meaning he looks to the plain language of the Constitution rather than hunting for “emanations” and “penumbras.” The Driver interpretation of “equal protection” as mandating unequal treatment is so at war with the plain meaning of the text as to be Orwellian.

And Driver’s interpretation isn’t really an originalist one, either. Michigan’s “affirmative action” policies did not discriminate only against whites and in favor of blacks. They also disfavored Asians and favored Hispanics and American Indians. Indians have a history of oppression in America, although quite different in character from blacks’ history. But so do Chinese- and Japanese-Americans. As for “Hispanics,” that category dates back only to the 1970s. The 14th Amendment was ratified in 1868. Further, a truly originalist interpretation of the Equal Protection Clause would permit government to discriminate not only against whites but against anyone on the basis of such nonracial categories as sex and sexual orientation.

Driver’s position seems instead to be based on the contemporary leftist theory that groups certified as “oppressed” deserve special treatment at the expense of the “privileged.” Such a view, however, collapses in its own illogic. A system that gives special treatment to members of an “oppressed” group is simply a new variety of privilege.

It was certainly true at one time that whites were a privileged majority who had the power to oppress blacks. That was the case not only before the Civil War but for close to a century afterward. During that period, however, the 14th Amendment’s promise of equal protection was an empty one. An increase in blacks’ power was a necessary condition for equal treatment–and that power came in large part from an appeal to the very race-neutral moral principles Driver rejects.