THE FOURTH OF JULY

Today we celebrate the 4th of July.

Two hundred forty-seven years ago, a handful of white guys meeting in Philadelphia signed the Declaration of Independence.  

The document ignored slavery and women, proclaimed that "all men are created equal", and issued a bill of particulars against Great Britain.  The bill in essence was an attack on Great Britain's assertion that its King and Parliament's laws were supreme and that neither were required to brook dissent from their wayward colonists.  Both believed they had spent substantial sums in the previous decade and a half running the French out of North America to the benefit of the British colonists and that it was fair and just to assess those colonists for a portion of the costs incurred to secure that victory.  

The colonists, however, had other ideas.

And thus began America's . . .

First revolt against taxation.

The point of the revolt was that, in the previous century and a half, Britain had not imposed direct taxes on any of the American colonies, each of which had created their own legislature to govern their own affairs and assess their own taxes.  When Britain got into the tax business, the colonists, who were not represented in Parliament, called foul.  The British, who by then were going broke on account in part of the sums borrowed to win control of the American continent, said too bad.

And the rest, as they say, is history.

The point of all this is that the Declaration's self-evident truth was not all that central to its actual aim.  

And in truth, preambles and philosophy aside, in 1776 . . . 

Not all men were created equal.

Slaves and women were not.

The Civil War was our first great stride  in the direction of equality and Abraham Lincoln was its founder. In the decade before the war, he made America reclaim Jefferson's self-evident truth as its founding principle and with the War, the Constitutional Amendments abolishing slavery and ensuring equal protection of the laws, and the Reconstruction Congresses concrete acts to benefit former slaves and create at least partial remedies for the enormous damage slavery had caused,  we began to do so.

It was, however, only a beginning . . .

And the victory was only partial.

In fact, as history unfolded, it wasn't even much of a victory.

In the last quarter of the nineteenth century and first half of the twentieth, America recreated slavery.  It did so  in the form of sharecropper poverty,  disenfranchisement, the Klan and the legal myth of "separate but equal".  The sons and daughters of former slaves could not vote in our elections, attend our schools, or enjoy most of the benefits of the New Deal.

For most of my life, the central project of America has been the elimination of that recreated slavery.

And we have made substantial progress.

In the 1960s, we passed the Voting Rights Act and the Civil Rights Act. We eliminated many of the laws and practices that barred Blacks from voting, ended overt discrimination, and attempted to at least right some of the egregious wrongs of our past.  

And many of these efforts worked.  

The pre-clearance provisions of the Voting Rights Act, for example, allowed the Justice Department to monitor jurisdictions with historic voting rights abuses and led to enormous increases in the registration of minority voters.  Similarly, affirmative action led to enormous increases in minority membership in labor unions, as well as enormous increases in the numbers of minority students in our colleges and universities.

Last week, however, the Supreme Court declared affirmative action unconstitutional.

In cases assaying the legality of affirmative action programs at Harvard and the University of North Carolina,  the Court concluded that neither program was legal and that the 14th Amendment made the Constitution (i) color blind and (ii) race neutral.   In its 6-3 decision, Chief Justice Roberts wrote the decision for the Court and Justices Thomas, Gorsuch and Kavanaugh wrote concurring opinions.  Justices Sotomayor, Jackson and Kagan dissented, with Sotomayor and Jackson writing dissents.

Everyone should read all the opinions.

This is especially true for those who decide to comment on them.

But it would also be good for the American public as a whole.

We tend these days to get our news from Facebook and share our opinions on Twitter.  Neither puts a premium on deep analysis or extended conversation and both have had an unwelcome effect on public discourse.  It tends these days to be brief . . .

And rude.

I have read the opinions.

And this is my opinion on them.

First, the Supreme Court is an appellate court.  It does not find facts.  That is done by the trial courts. In both the Harvard case and the UNC case, the trial courts found that the two affirmative action plans, which were pretty much identical,  did not violate existing law.  In particular, they found that the programs were narrowly tailored and increased diversity among the student body, the latter of which has been deemed a compelling interest justifying affirmative action since at least the Bakke decision in 1978. And as Justice Jackson pointed out in her dissent, the potential for a "plus" factor owing to race in the UNC plan was available to all races, not just minorities.  

Second, the claim that the Constitution is color blind is not accurate. Or, put differently, the claim is at least not accurate in the strong form advanced by Justice Thomas.  As pointed out in both dissents, at and around the time the 14th Amendment was ratified, there were numerous examples of affirmative action in the form of benefits to former slaves and their progeny.  And the objection that those measures violated the 14th Amendment because they were not color-blind was rejected at that time.

Third, the notion that America has solved its race problem or that any remedies are time-barred on that account is nonsense.  The country has made progress, enormous progress.  But, as a consequence of past discrimination, minorities are poorer and sicker than white Americans and racism is not a thing of the past.  There is still work to do.

And Harvard and UNC were doing it. 

Fourth, on a personal note, it is not at all clear to me who the victims are here. To hear Justice Thomas tell it, anyone who lost a spot at an elite university on account of affirmative action is one.  That, however, would probably make me one.  I am a white guy who had higher grades and test scores than some minority candidates who were accepted at colleges that rejected me.  

I, however, went on to Dartmouth College and Yale Law School . . . 

Which is hardly the picture of victimization.

Two hundred forty-seven years ago, a group of white guys signed a document saying "all men are created equal".

They were right to do so.

Last week, the Supreme Court issued an opinion at war with that declaration.

And they were wrong to do so.