Harris effectively articulates the
differences in two conceptions of affirmative action and its purpose within
society. She dissects the corrective justice framework first, condemning how
even talking about affirmative action as “the current generation of whites
being required to compensate for harms caused by prior generations […]
implicitly has accepted the notion that affirmative action burdens—that is,
extracts compensation from—innocent whites” (1782). The notion that affirmative
action corrects wrongdoings of our white predecessors actually enshrines white
property within the education system, even if its aim is to strip this property
from whites today. In contrast, Harris discusses the benefits out the distribute justice framework, a more basic
focus on “entitlement and fairness” (1783). This primal understanding of equal
protection “Requires that individuals receive that share of the benefits they
would have secured in the absence of racism” (1783). She holds that this view
attempts to recreate “what would have been the proper allocation” of property
to each race, instead of attempting to rectify wrongdoings and upholding their
validity while doing so.
She clearly articulates the dangers
within protecting white property through challenges to affirmative action when
she critiques the Croson decision.
She underlines the fact that when Croson appealed to equal protection clause
within the 14th amendment and accused the affirmative action program
of violating his equal protection under the constitution, he extended
protection of the law “in the form of strict scrutiny review to whites as
whites” (1775). Harris holds that strict scrutiny should not be applied to
instances of white racial discrimination since it “does not signify the same meaning as
differential treatment of Blacks” (1775). In fact, “treating whiteness as the
basis for a valid claim to special constitutional protection [applying strict
scrutiny] is a further legitimation for whiteness as identity status, and
property” (1775). Although she does not
deny whites equal protection, she holds that applying strict scrutiny to whites’
right to racial superiority further legitimates white property.
My question is: did the
Constitution fail to provide an avenue to true, distributive justice for
African Americans today? Was the Fourteenth Amendment simply not specific
enough? Do we need a Constitutional amendment to underline that strict scrutiny
should only be applied to equal protection for the purpose of the advancement
of Blacks to their natural, equally apportioned rights before racism
subordinated the people as a whole? Wouldn’t that actually further illuminate
what the amendment was truly meant to do after the Civil War? Harris briefly
touches on the ways in which South Africa has constitutionally committed to
affirmative action. Is this what the United States needs? I will argue in class
in favor of this idea.
I would like to begin my comment by saying I think a purposeful re-examination of our Constitution is certainly in order within Harris' account, so I really like the direction you're going with this. What I find especially interesting about your post is where you ask you ask "Wouldn't [a more specific Amendment] actually further illuminate what the amendment was...meant to do after the Civil War?" A question like this examines the ends towards which the 14th Amendment is striving, which is certainly one that should be asked. However I would stress that this evaluation is not homogeneous, and that it could have meant different things for different people at different times.
ReplyDeleteLincoln, for one, might have agreed with your understanding of what the 14th was "meant to do." Indeed, he might have said something like this: In order to make good on our Nation's promise of equality for all, we must advance (as you put it) "Blacks to their natural, equally apportioned rights before racism subordinated the people as a whole." Yet I would argue that such an approach is rooted in his own understanding of what type of justice/repose is merited; a remedy which thoughtfully addresses slavery's more constitutive, lasting harms may not have been as widespread or universally agreed upon.
In other words, there may have been a significant portion of the Reconstruction Congress which did not seek retroactive justice, but instead hoped to enshrine a principle of "from now on, we'll uphold the provisions of this amendment." If this is the case, a statement about what the 14th Amendment was "truly meant to do" might be passing over the matter of this Congress' intent with too broad a brush stroke. If two thirds of the Reconstruction Congress did not share your (and what I've claimed would be Lincoln's) preferred remedy, is it fair to say that this is what the Amendment was meant to do? This may be an issue of semantics, I'm not sure. However I do think the question of remedy is extraordinarily open-ended within the 14th, and can very often involve a subjective judgment. Nevertheless, I am excited to hear what such a "constitutional commitment" would look like within your understanding, and your reasons for believing that this is "what the United States needs." I wonder if the impetus for such an Amendment stems from a moral responsibility to right our ancestors' wrongs, or if it's simply a re-evaluation of our current system, which doesn't work well enough for all our citizens. Either way, I've pretty much decided to go in with no opinion tomorrow and play devil's advocate as I come to my own understanding.
It appears Mo has decided to steal my role as devil's advocate to refute your argument Becca, but I wish to pick up and discuss another point within Harris' argument that you touch upon: then notion of distributive justice. Such an understanding of affirmative action is hard to argue against as an ideal as it, like you noted, “Requires that individuals receive that share of the benefits they would have secured in the absence of racism.”But it reality, I struggle to understand how one could possibly decide exactly what benefits one would have received in the absence of racism. Some of those benefits are easy; among them the most basic rights to life, liberty, and the pursuit of happiness endowed to all men in the Declaration of independence. The logical extension in civic life would include the right to citizenship, the ballot, etc. But beyond these and similar rights, it is hard to imagine how exactly the benefits would have been distributed in the absence of racism because we simply cannot know. It is easy to give all "Blacks" the share of the vote they are entitled too, but far more difficult to decide what share of property or college admits they are justly entitled too. If one wished to enshrine such a distributive justice approach to affirmative action in the constitution, you will have to develop some means of overcoming this challenge, and I foresee that being a difficult hurdle to get over.
ReplyDelete