The upcoming midterm elections are sucking most of the oxygen out of the newsroom and what is left is consumed by the usual drama, but the big story looming on the horizon is the Supreme Court race cases. The court has been hearing oral arguments on two related cases. One involves Harvard’s anti-Asian admission policy and the other involves North Carolina’s antiwhite admission policies. Both schools are fighting to maintain their race based admissions system.
The makeup of the court and prior statements by current justices on the matter strongly suggest these polices are in trouble. In fact, it has been clear that the court has been skeptical of affirmative action for a long time, but the thinking was that legislatures would eventually solve the problem on their own. There is no way to square these policies with equality before the law, if the law says you cannot discriminate based on race, even in private matters.
People who follow the court have thought for a long time that the Supreme Court has been waiting for the right case to junk the whole regime. Now it has two cases and oral arguments suggest the court is looking to do something dramatic. Even the regime toadies on the bench expressed skepticism. The lawyers defending these policies are struggling to justify them. In this corrupt age, one can never be sure of anything, but it does look like affirmative action is doomed.
Most people assume that the court in this area has been struggling to balance equality before the law with the moral claims about race. These policies were based in good intensions to right past wrongs, but they slammed into the basic principle of equality before the law. Punishing someone alive today for things someone long dead may or may not have done is patently immoral. It is a blood libel. It is the central contradiction of what the progressives call restorative justice.
There is some truth to this but the real issue the court will eventually face with regards to this issue is the private versus the public. Where is the line between what a citizen can do as a private citizen and the duties of every citizen. In other words, where does private action end and public duty begin? Put another way, where does one’s public duty give way to private preference? This is an age old question that every human society must solve in some way.
In the case of racial discrimination, no one thinks you should be required to date outside of your race or have friends from other races. On the other hand, it is considered immoral for a restaurant to deny service on the basis of race. If you put up a sign that reads, “No Asians”, you will go to jail. Why is the first example entirely acceptable but the last is not acceptable? Why must you invite people you do not like into your business, but you can bar them from your home?
The answer, in part, has always been that the business is a public accommodation, but that was simply a way to avoid the issue. This bit of civic theology is not applied to most other areas of business. The tech companies and banks actively discriminate against white people and promote antiwhite bigots. The two universities defending their race based admissions proudly discriminate against whites and Asians in the most public of public accommodations in America.
Clearly, the public accommodation principal is a farce. This is why the court decision next spring to junk affirmative action is just the beginning. The court will probably say that the state cannot discriminate based on race. Harvard is a private college, but they get government grants and their students get government loans, so current law makes them a government entity. At least it makes them subject to the same limitations that the law places on government institutions.
Harvard could simply stop taking government money. Religious schools have taken this road to avoid anti-Christian discrimination. Hillsdale College famously foregoes government money. Harvard could do the same and then fight this fight in the courts all over again, but this time as a private entity. The question at that point would be the question at the core of all of this. Where is the line between private rights and public duties with regards to these moral questions?
If the court were to say that a private college is free to select students by whatever criteria they choose, then they would have overturned the entirety of antidiscrimination laws, including things like hate speech and hate crimes. On the other hand, if they extended the prohibition against discrimination to the private sphere, then that would mean no one can express their preferences in private. Your dinner party would be subject to claims of discrimination.
This gets back to the public accommodation issue. Is a private college really a public accommodation when it is designed for a narrow purpose like religion? How about private clubs, which have been banned due to discrimination? Would a male-only club be allowed if it is private? At some point, a clear line has to be drawn between what is private and what is public. The real issue in these race cases is where does that line exist and how best to codify it in the law.
This raises a much larger issue, in that liberal democracy relies on morality as the spring to motivate the citizens. Aristocratic systems rely upon the desire to attain greater rank and privilege, bestowed from above. Authoritarian systems rely on fear of the people in charge of the state. A republic relies on the willingness to put the interests of the institutions ahead of private interests. Liberal democracy relies on the submission to a common morality.
If there is a line between the private and the public, it rules out a commonly held moral code to which all must submit. After all, simply going along with the latest thing to avoid trouble is different from embracing the new morality. We see this all the time with the various social fads. Being indifferent to antisemitism, for example, is unacceptable because it suggests you may not be enthusiastically opposed to it. You have to show your opposition in a public way.
If all of a sudden, we have a clear line between the public and private, it means you can oppose public morality in private, but play along when out in public. This makes public morality a polite fiction. The fact is morality only works if people either believe it or fear falling outside of it. One does not do the right thing when no one is looking if one does not think it is the right thing or fear it may be the right thing. Simply put, acknowledging the private sphere undermines democracy.
That, of course, leads to another problem. If all of a sudden, colleges have to use objective criteria to select students, everyone knows what will happen. What happens when fire departments and police departments are forced to follow suit? Even if they fashion a way around it, the implication is clear. It means that all men may be equal in the eyes of God, but they are not equal. Some are smarter, stronger, bigger, faster and this tends to track with sex and race.
The entirety of the affirmative action regime rests on the assertion that people are amorphous blobs that can be shaped into anything. Overturning affirmative action exposes this nonsense to public view. All of a sudden, the quest for diversity is nothing more than a private preference masquerading as a public good. It has no basis in reality and often contradicts reality. Another piece of the liberal democratic moral superstructure is yanked away.
No one should be deceived into thinking the court will swing a wrecking ball through the liberal democratic order. Even if they overturn the concept of affirmative action, which seems likely based on the current court, all they will have done is tip over the first domino in the process. Even so, it does suggest we may be nearing an end point to the last surviving ideology of the 20th century. Like the others, its internal contradictions will eventually succumb to the realty of the human condition.
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