Soundings

Richard E. Morgan
L’Etat c’est qui?
Winter 1997

There is nothing at all original about the language of Proposition 209, the California Civil Rights Initiative approved by that state's voters on November 5. Its key provision declares, "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." In fact, these words come straight from the Civil Rights Act of 1964, with the exception of the ban on preferences, which draws its inspiration from Hubert Humphrey's declared intent in guiding the landmark civil rights legislation through the Senate. CCRI does little more than restate in the California Constitution what has been the law of the land for over 30 years now, borrowing language that affirms one of our deepest national principles: non-discrimination by  the state.

It might seem remarkable, then, that the opponents of the initiative have challenged it in court and sought an injunction against its enforcement—on the grounds that it violates the Constitution of the United States. A frivolous argument, right? Not for our imperial judiciary. Chief Judge Thelton E. Henderson of the federal district court in San Francisco issued a temporary restraining order on November 27, citing a "strong probability that [CCRI] might be unconstitutional." He will soon hear arguments from both sides, but whatever his decision, the case is sure to wend its way to the Supreme Court.

What explains this outrage? As usual, the culprit is the Supreme Court itself, which in the 1979 case of United Steel Workers v. Weber stood Senator Humphrey's Civil Rights Act on its head, declaring that the law permitted precisely the sort of preferences that its architects forbade. The decision has shielded a whole generation of affirmative-action programs from legal attack. By supporting CCRI and explicitly prohibiting such preferences, the people of California repudiated this perverse judicial interpretation; they looked instead to the ideals that the nation endorsed in 1964. And now, once again, the courts stand ready to overrule the considered opinion of the citizenry, which one ACLU lawyer, commenting on CCRI, dared to call "the whim of the majority."

Such judicial fiats can't be squared with American democratic principles, the most fundamental of which gives the people the right to decide what sort of state or national constitution they want to live under. With judges so indifferent to the will of the sovereign majority, one must unhappily report that the suit against CCRI appears to be far from frivolous. The problem may call for nothing less than a national version of CCRI, spelling out once and for all in a constitutional amendment that group preferences are un-American.

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