Copyright Ó 2003, by Alec Rawls

In the Affirmative Action case now before the Supreme Court (Grutter v. Bollinger), the State of Michigan is arguing that the student body of its law school must be racially diverse for education to be effective. That is, preferential admission standards for black students are not for the benefit of black students. They are for the benefit of white students, who would otherwise not have their educations augmented by sufficient educational inputs from black students. (The preferentially treated black students would otherwise not even be at the school and hence would not be affected by the resulting poor quality of the school's education.)

Obviously, this is a dodge. The idea that affirmative action is to meet the needs of whites, Jews and Asians, not Blacks, Hispanics and Native Americans, is preposterous. There are better arguments for affirmative action, based on redress for past discrimination, but the Court has already struck down racial preferences as not narrowly tailored for that purpose. Michigan's "help the whites" rationalization is a last gasp.

On the other side is the Fourteenth Amendment's equal protection guarantee, the purpose of which was to create a race neutral legal system in the wake of the Civil War. The University of Michigan, being a state entity, is directly constrained by this guarantee.

As with any other constitutional provision, equal protection can legitimately give way when it comes in conflict with other constitutional provisions. Note, however, that the test the Supreme Court has established for allowing equal protection to be compromised does not require conflict with any other constitutional provision, but something much weaker and vaguer. The Court only requires that compromise of equal protection must be "necessary" to a "compelling state interest." Thus the question now before the Court is whether a rationale that is not even honest can constitute a "compelling state interest" in violating the Fourteenth Amendment.

Where does this "compelling state interest" test come from? When and how did the Supreme Court decide that constitutional protections could be set aside even when they are not in conflict with other provisions of the Constitution? And how did the category of things allowed to outweigh the Constitution become so broad? Any government rationale that a judge can deem "compelling" is grounds to set aside the Constitution? Wow.

Does the setting of this dangerous course at least have an interesting backstory? Indeed it does. The "compelling state interest" test originated in United States v Korematsu, where the Court upheld the World War II evacuation of Japanese-Americans from the Pacific coast region to inland relocation centers.(1) The competing necessity in that case was of greatest possible moment, so the stage was all set for a rock solid precedent, but the Court could not abide the implications of how the Constitution is actually written, so it tried to create a new and better Constitution, and failed utterly, establishing the test that now threatens to destroy everything.

Imagine if, in the wake of the Islamist sneak attack on the World Trade Towers, 5,000 Arab-Americans had expressed their loyalty to Al-Queda by renouncing their American citizenship. This is what 5,000 Japanese-Americans did in the wake of the Japanese sneak attack on Pearl Harbor.(2) Faced with large scale declarations of disloyalty by Japanese-Americans, President Roosevelt decided that, even if the majority of Japanese-Americans were loyal to America, there was no way to separate the loyal from the disloyal, making it prudent to evacuate all Japanese from the militarily sensitive pacific coast region.

Roosevelt's judgment seemed to be confirmed when a substantial percentage of Japanese-Americans refused to swear loyalty to the United States, or forswear loyalty to foreign potentates (as every naturalized citizen must do). In hindsight, however, it seems it was possible to distinguish the loyal from the disloyal. The lack of sabotage by Japanese-Americans suggests that those who were disloyal had all declared their disloyalty. But who could have expected such a strange partial honor, when the nation they were loyal to had just committed a most dishonorable atrocity and had for years been using mass murder to turn the entire Pacific rim into a giant slave gulag?

Without the benefit of hindsight, Roosevelt's judgment was perfectly reasonable. Certainly the "no-no boys" had to be locked up (14,000 at Tule Lake), and who could have said that there was not an even worse element: a silent disloyalty, abiding its opportunities to stab at America's heart from the inside? (3) In the case of Islamic extremism, we expect nothing else. We know there are Arab-American Islamists, abiding their opportunity to stick daggers in America's heart from the inside, but they are not declaring themselves.

Click here for Rebel-Yell cartoon on reparations for Japanese-Americans sent to relocation camps during WWII.

In Korematsu, the Court was faced with an extraordinarily grave conflict between two separate constitutional provisions. Equal protection for the civil rights of Japanese-Americans was judged by the constitutionally empowered war-fighting branches of government (Congress and the Executive) to be incompatible with their constitutional duty to successfully defend the nation.

While one can question whether the war-fighting branches were correct in this assessment, the Court's basic ruling was hardly contestable. With constitutional provisions in conflict, some balancing between them was necessary. As for who was to do the balancing, the Constitution gives it to Congress, and especially to the executive, to determine what is a matter of military necessity.

As ineluctable as this basic ruling is, Korematsu is also haunted. For both brave and cowardly reasons, the Court in Korematsu established much broader precedents than were necessary to resolve the case. One of these precedents greatly expanded liberty. One threatens to greatly contract it.

On the expansive side, note that the Fourteenth Amendment is specifically stated as a restriction on state governments. It literally does not apply to the federal government. To follow the letter of the Constitution, the Court in Korematsu would have had to uphold internment on the grounds that equal rights are not protected from infringement by the federal government! Neither are "civil liberties" much protected outside of equal protection. There is, for instance, no constitutional right to vote in state elections. There is only, under equal protection, the same right to vote that everyone else has. "No equal rights" really would mean, in many cases, "no civil rights." The idea that this is actually the case at the federal level is startling indeed.

The Court in Korematsu apparently couldn't stomach such a result and, without mentioning the Fourteenth Amendment, simply assumed that rights should be equal. It took race as a suspect category of differential treatment under the law, just as the Fourteenth Amendment would call for, and by this method pulled off a tremendous coup, establishing the application of the Fourteenth Amendment to the federal government as well as to the states. Anyone who favors judicial activism in the service of liberty should sacrifice goats at the alter of Korematsu.

What was needed was a constitutional amendment requiring the federal government to afford equal protection, but there was no time for that. Given the circumstances, it is hard to fault the Court's lack of stomach, but it should have proceeded honestly. When, to its horror, it came across an untenable deficiency in the Constitution that it simply had to rectify, it should have said so. It could have proceeded on the grounds it thought it had to while calling on the people and the other branches of government either ratify or renounce its judgement.

The consequences of Court's failure to trust in truth and announce that it was ruling extra-constitutionally have been grave.

If it was morally tenable for the Court in Korematsu to apply equal protection to federal law, it certainly did it the wrong way, issuing a broad ruling instead of a narrow one. A narrow ruling would have been limited to the circumstances of the case at hand: a conflict between equal protection and another constitutional provision (the war-fighting power). Instead, the Court created a wide open test: that equal protection could give way to any "pressing public necessity" (the progenitor of the current "necessary to a compelling state interest" standard).(5)

In practice this so called "strict scrutiny" test has held up pretty well, but only because the Court has exercised restraint in locating "compelling state interests." The language itself suggests that constitutional rights can be overbalanced, not just by competing constitutional concerns, but by any substantial state interests, including interests of the state governments.

Because the Court in Korematsu had addressed a conflict between provisions of the federal Constitution, there was no reason for its ruling to encompass interests of the states, which should have been left for future cases to decide. Not only is there a fundamental distinction between state and federal interests, but this distinction is the very essence of the Fourteenth Amendment. To conflate the two is a stunning laxity.

According to the Constitution, the federal government is prohibited from doing whatever is not expressly empowered while the state governments are allowed to do whatever is not expressly prohibited.(5a)  In conflating the two, the Court in Korematsu placed express constitutional purposes on a par with what is merely allowed to the states. In effect, it denied the supremacy of constitutional law!

This is especially striking as an interpretation of the Fourteenth Amendment, which asserts constitutional provisions that the states are required to abide by. By placing state interests on a par with the Fourteenth Amendment, the Court's interpretation of the Fourteenth Amendment vitiates the Fourteenth Amendment!

If the Court thought that equal protection was so important that it was willing to extra-constitutionally apply it to the federal government, why would it turn around and weaken its application to the states? Could it have been constitutional to intern Japanese-Americans, not for the defense of the nation, but for some local California interest? That is a horrifying thought. Why in the world did the Court leave that barn door open?

The likely reason is that narrower language would have exposed the Court's coup in applying the Fourteenth Amendment to the federal government. If the court had ruled narrowly, only allowing race neutrality to be compromised when it was in conflict with constitutionally recognized federal interests, it would have come face to face with the fact that the Fourteenth Amendment specifically does not apply to the federal government. To hide its coup, the Court had to use broad language, which brings us to our present peril.

In Grutter v. Bollinger the Court is being asked to overthrow equal protection, not in deference to any other constitutionally protected interest, but for a trivial and even patently dishonest proclaimed state interest: that affirmative action for blacks is necessary to improve educational opportunities for white law school students at the University of Michigan. How far we have come from Korematsu, and how strange that the very people who believe that the Court's failure to uphold equal protection in Korematsu was a travesty (Democrats, by and large) are the same people who now want equal protection to give way on infinitely lesser grounds.

The only federal interest at stake in Bollinger is the Fourteenth Amendment interest that is being violated. On the other side is the state of Michigan interest which, if it is taken seriously, must quickly break down. If diversity of race or other group affiliation is what matters, not individual merit, then what is next? Affirmative action for homosexuals, the disabled, the mentally disabled? Why not crack whores? If white law students are presumed to benefit so importantly from exposure to people who are superficially different, wouldn't exposure to people who are profoundly different make for an even better education?

The only diversity that should count is diversity of merit, but this is the one diversity that our politically correct law schools, like the rest of academia, do their utmost to eradicate. Different opinions are not welcome. A left wing professoriate got in and slammed the door behind them, using their positions of power to exclude all who believe in such heresies as that government power actually is limited by our constitutional system of limited enumerated powers.

It ought to be illegal to turn a government school into a state funded indoctrination arm for a political faction. Whether any state school can be legitimate is a hard question, but these wholly owned subsidiaries of the Democrat party are a blatant violation of the fundamental principle of republicanism: that the people are sovereign. It is the people who tell government what its proper role is, not vice versa.

If a dishonest representation of a local interest is allowed to count as a compelling state interest in the manner of Korematsu, then there is no more equal protection. The barn door is flat on the ground, offering no resistance to any proposed justification. What could possibly be flimsier than overt dishonesty?

Such is the price of the Court's failure to trust in truth in Korematsu and admit that it felt compelled to rectify a deficiency in the Constitution, provisional upon ratification or rejection by the rest of government and the people. To hide its coup it wrote too vague a test, and that test now threatens to undo the Fourteenth Amendment.

Other barn doors have already been kicked flat through this same process. The New Deal Court held that, since everything affects interstate commerce in some way, the federal government is empowered under the interstate commerce clause to do anything, in direct contradiction to the Constitution's explicit structure of limited enumerated powers. They too had their hearts in the right place, believing, along with other elites of the day, that the great depression signaled the collapse of capitalism, as predicted by the communists.

Our Constitution was wrong, they thought. Liberty doesn't work. Socialism must be empowered, immediately, for the nation to survive. Also, like the Korematsu court, they failed to trust in truth. They could have acknowledged that they were sanctioning extra-constitutional behavior, provisional upon what the people and the other branches of government would decide in their own time. But they didn't put out such an appeal for help. They just rewrote the Constitution, much for the worse.

American constitutionalism has been the vehicle for three great advances in republican institutions. The Revolutionary War secured the system of limited enumerated government powers and protection for individual liberty. The Civil War secured equal protection of the laws. Limited government is already gone, and if the left prevails in Grutter v. Bollinger, equal protection will disappear this year.

Alec Rawls is a columnist for The Stanford Review. Contact him at alec@rawls.org. This article was originally published in the Review, 3/11/2003.

For a follow-up on how the power to declare pretty much any state interest "compelling" enough to override the Constitution is corrupting the Court, see my 2005 Error Theory post, "The Frodo Test."

Addendum: State level interests; race vs. behavior; racial profiling

It is hard to say just how much the Korematsu Court's failure to distinguish between state level interests and constitutionally stated purposes has weakened equal protection. Extreme enough state level interests might well call for compromising equal protection, just as severe enough federal interests did. Thus the Court might have just used the same test for both in any case, but there are alternatives. The Court could have limited countervailing state level interests to those actually mentioned in the federal Constitution: namely, the life, liberty and property interests of the citizens of the states, as listed in the Fourteenth Amendment. When these are at stake in the extreme, the issue becomes a state's right to defend its citizens, along the lines of the national self-defense at issue in Korematsu.

In any case, the distortion created by the Court's coup in Korematsu is mostly confined to equal protection as it applies to the creation of a race neutral legal system (though the "fundamental interests" strand of equal protection jurisprudence is also affected). What limits the damage is the fact that, as we move away from the subject of race neutrality in the law and move toward discrimination based on behavior, unequal treatment can properly be justified by much lesser interests, both of the state and federal governments. The purpose of all laws, after all, is to discriminate between good and bad behavior, thus there cannot be a general prohibition on discrimination amongst behaviors.

When discrimination is by behavior rather than race, the usual test is the "rational relation to a legitimate state interest" test. It does not matter for these cases whether the Korematsu ruling was over-broad in allowing the law to discriminate on the basis of race, since the proper standard for behavioral discrimination is far more lenient still.(6)  On the other hand, it is small comfort that the distortion created by Korematsu is limited mostly to the area of racial discrimination in the law. Not only is this the most important area, but it now hangs in the balance in the Bollinger case. The main purpose of the Fourteenth Amendment was to create a race neutral legal system, an achievement which Bollinger threatens to destroy.

The legal issues in Bollinger are very simple. A dishonest rationale obviously cannot constitute a compelling state interest in compromising the Fourteenth Amendment. The difficult equal protection cases are those where it is hard to tell whether the proper test to apply is the "strict scrutiny" test or the "rational relation" test. Is homosexuality in the same category as race—something that a person has no control over—or is it behavior? Another hard case is racial profiling.

The first thing to note about racial profiling is that it is not discrimination by the law. The laws against violent crime do not mention race. When police pull over carloads of young black men as a method of interdicting gang crime, they are not following any racially discriminatory law. Rather, they are making use of race based expectations to aid ENFORCEMENT of the law.

This distinction is subtle, but it matters. Law enforcement is clearly a part of the "protection of the laws," hence it is required to be equal, especially in terms of race, yet law enforcement also has its own imperatives, implying that the concept of equality should be interpreted in terms of the unbiased application of effective law enforcement procedures. Surely law enforcement must be allowed to focus on those who are breaking the laws. That is the essence of law enforcement, and one way to focus on the lawbreakers is to use profiles that employ any number of characteristics that are only probabalistically related to the targeted crime problem, including race. So long as the profile is efficient in uncovering criminal behavior, it arguably should be seen as pursuant to behavior, not race, even if race is used as a factor.

The problem with profiling in general (whether based on race or on other characteristics that bear only a statistical correlation to criminality) is that it imposes costs on those who are innocent of wrongdoing. In particular, harm is done when people who are profiled for involvement in actual wrongdoing are caught committing illegal activities that are not wrong in themselves.

Society criminalizes many things that it has no business criminalizing. Not all laws are just and profiling increases prosecution under unjust laws. When profiling includes race, prosecution under unjust laws becomes racially disparate, which could well be considered an equal protection problem.

At present, our legal system only recognizes the concept of unjust laws implicitly. The Fifth Amendment, for instance, originated as a protection for those who were guilty as charged of violating unjust laws (the English blasphemy laws of the 1600's). Hence its inclusion in the Bill of Rights implicitly embraces the concept of unjust laws. Similarly with the Ninth Amendment, which declares the existence of unenumerated rights. But there is no mechanism for identifying and striking unjust laws. Thus the costs of profiling, and the racially disparate injustice of racial profiling, are facts of our current system.

Given these facts, it would seem that the proper jurisprudence would be for the Court to balance the legitimate purposes of profiling against the harms. Any disparate racial prosecution for violation of unjust laws would be a psuedo-Fourteenth Amendment interest. It wouldn't constitute a clear compromise of equal protection because unjust laws are not explicitly recognized, but they should be given some weight because they are implicitly recognized. A stringent First Amendment type restriction on compromise would not be appropriate, but a best effort at weighing the competing interests (a substantially higher standard than the "rational relation" test) would be called for.

The ultimate solution to the harms of racial profiling is to allow evidence collected from profiling to be used only in the prosecution of clear wrongdoing. The decision as to what constitutes clear wrongdoing cannot be left up to individual judges. That is too much discretion. But the question could be decided systematically by the legislative branch and the people. If our society can figure out how to articulate the full ideal of protected liberty then we can place it in the Constitution, where it can power the elimination of unjust laws. Such direct protection for liberty would allow us to shift away from our current practice of protecting liberty indirectly, by placing restrictions on law enforcement. Many current restrictions could be eliminated, including restrictions on racial profiling. So long as profiling only catches those who are committing genuine wrongs, then effectiveness is purely an asset.

Alec Rawls is a columnist for The Stanford Review. A version of this article appeared in Review, winter '03.

To see how a system of direct protection for liberty could work, see my Direct Protection essay on this website.

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Endnotes

1.  323 U.S. 214, 1944. Return

2.  The precise number was 5,620. See Joseph Fallon's essay "The Censored History of Internment," compiled from information obtained from Freedom of Information Act requests, available at www.foitimes.com/internment/fallon2.htm.  Return

3.  On the number of Japanese at Tule Lake who had refused loyalty to America, see The San Jose Mercury News, "Former internee saving his past," 2/19/03, p. A1. Online, visit the National Park Service site: http://www.cr.nps.gov/history/online_books/anthropology74/ce13a.htm, which describes Tule Lake as housing over 18,000 evacuees, 4,000 of whom were "loyals."

Apologists for the "disloyals" note that foreign born Japanese were not allowed to become citizens, hence forswearing the Emperor would have left them country-less, but the were not country-less. They were in America, and an unwillingness to give up Japanese citizenship was just an unwillingness to choose sides. They wanted to hedge their bets in case Japan won. As an excuse, it doesn't hold water. The name fits. To America, they were disloyal.     Return

4.   See "The Ayoob Files," by Massad Ayoob, American Handgunner Magazine, January/February 2002. There is some debate about whether the Japanese-American traitor (a Nisei, or American born son of Japanese born parents) committed suicide or was killed. On the incident, Ayoob cites Stanley Weintraub's book "Long Day's Journey into War," Lyons Press, NYC, 1991, 2001, p. 272.  Return

5.   Korematsu (supra) introduces the "pressing public necessity" language at 216. For the "compelling state interest" standard, see for instance, Palmore v Sidoti, 466 U.S. 421, 432, 1984.  Return

5a.  As Madison noted in Federalist 45, PP 9: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."  Return

6.  While the test for discrimination based on behavior should be weak, the "rational relation" test is too weak. It does not even require that the relation between a law and the legitimate state interest it supposedly serves actually be rational, only that there rationally be some relation. It is appropriate that the courts largely defer to legislatures when judging whether the legislatures chosen means are rational. Deciding what ends to pursue and how is the legislative role, not the judicial one. But the courts must not defer entirely, as they largely have. The rational relation test must have some teeth, otherwise there is no general protection of liberty in our system of law—no substantive hurdle that all laws must pass in order on order to justify curtailing whatever liberties they curtail.

Institute for Justice has been working hard to bring litigation that puts teeth into rationality review, using it to overturn laws that create chartered monopolies for special interests. Such laws discriminate in a way that blatantly harms rather than serves the public interest and hence should fail rationality review. Visit ij.org to see what progress they have made in opening local transportation markets to competition from shuttle and limousine services, opening up casket markets to competition, opening up hairdressing markets to competition, etcetera.

For background on rationality review and a discussion of how it might be strengthened, see Gerald Gunther's article "Newer Equal Protection," (86 Harvard Law Review, 1, 1972).  Return