The Attorney General's Lawyer: Inside the Meese Justice Department

By Douglas W. Kmiec | Go to book overview

was being given a license by Justice Brennan to discriminate at will so long as it thought its discrimination was "benign." As Justice O'Connor wrote for the dissent:

[h]istory should teach greater humility. Untethered to narrowly confined remedial notions, "benign" carries with it no independent meaning, but reflects only acceptance of the current generation's conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable. The Court provides no basis for determining when a racial classification fails to be "benevolent." 91

Unthinkingly, the judicial activism of Justice Brennan and the Court's contortions to allow some racial preferences some times, have led us away from the color-blind path embodied in the fourteenth amendment, and articulated by Justice Harlan in his Plessy dissent rejecting the doctrine of "separate but equal." It is good to remember that "separate but equal" at its core was built on the very same specious notion that some racial preferences are benign. The Plessy majority, like the Brennan Court in Metro Broadcasting, rejected the assumption that racial division--separateness--yields inferiority or discrimination. "If this be so," insisted the Plessy Court, "it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." 92 As Justice Kennedy wrote in his separate dissent in Metro Broadcasting,

It]he history of governmental reliance on race demonstrates that racial policies defended as benign often are not seen that way by the individuals affected by them. [Racial preferences]... impose "stigma on its supposed beneficiaries," and "foster intolerance and antagonism against the entire membership of the favored classes." 93

The Court has still not found its way in matters of civil rights. It is not for lack of sound guidance from William Bradford Reynolds. Against tremendous odds and at great personal cost, Brad Reynolds, like Harlan before him, championed the principle that "[o]ur Constitution is color- blind, and neither knows nor tolerates classes among citizens."


NOTES
1.
125 Cong. Rec. 18444 ( 1979).
2.
The plight of Bob Jones was argued together with the Goldsboro Christian schools. The Goldsboro policies were even more racially exclusionary insofar as the schools maintained a racially discriminatory admissions policy based upon biblical interpretation.
3.
461 U.S. 574 ( 1983).
4.
163 U.S. 537 ( 1896).

-175-

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The Attorney General's Lawyer: Inside the Meese Justice Department
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Foreword xi
  • Introduction 1
  • Note 3
  • Part I - Beginnings 5
  • 1 - Surmounting the Independent Counsel 7
  • Notes 16
  • 2 - In Search of Original Intent 17
  • 3 - The Unitary Executive 47
  • Notes 65
  • Part II - The Essence 69
  • 4 - Family: Abortion, Aids, Pornography, and School Choice 71
  • Notes 106
  • 5 - Work: Securing Economic Liberty 111
  • Notes 129
  • 6 - Neighborhood: The Revival of Federalism 132
  • 7 - Peace: The Color-Blind Society 152
  • Notes 175
  • 8 - Freedom: Iran-Contra and the Criminalization of the Separation of Powers 179
  • Notes 188
  • Part III - The Finale 191
  • 9 - Ethics, Give Us More Ethics 193
  • Notes 214
  • Epilogue 219
  • Notes 220
  • Selected Bibliography 221
  • Index 225
  • About the Author 235
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