Prop. 209: A graceful exit for the courts

February 14, 1997 − by CIR − in News − Comments Off on Prop. 209: A graceful exit for the courts

California: The referendum process accomplishes what pork barrel politics won’t.

By Michael S. Greve

The Los Angeles Times, February 14, 1997

Civil rights groups are rejoicing over a federal district court’s injunction against the enforcement of the “California civil rights initiative.” Chances are, though, that the higher courts will set aside the injunction and find that the CCRI–now Article 1, Section 31 of the California Constitution–is plainly constitutional.

To do this, the courts need not impose uncompromising constitutional colorblindness, a dramatic step they may be reluctant to take. They need only recognize that popular referendums such as CCRI are the most viable way of extricating the country from a rancorous debate.

The ACLU and its fellow plaintiffs in the CCRI litigation attack CCRI precisely because it is a referendum. While conceding that government bodies are “of course” free to repeal race preferences they enacted, the ACLU argues that the voters may not move the issue to a “new and remote” level of government. Enshrining colorblindness in the state Constitution is “discriminatory” because it makes it harder for racial minorities (but not other groups) to obtain benefits–that is, race-based preferences.

How can a constitutional provision that flat-out prohibits discrimination for or against anybody to violate the equal protection clause and “discriminate” against minorities? The ACLU hangs its argument on a 1982 Supreme Court case, Washington vs. Seattle School District, in which a 5-4 majority struck down a state constitutional amendment that would have prohibited local school boards from using busing to promote racial integration. The court’s reasoning in that case is best explained by the political context: The white majority had moved the busing issue from local school boards, where blacks wielded at least some influence, to the state level, where they were overwhelmed. The Washington court, however, expressly authorized statewide bans on local preferences. And in any event, the CCRI opponents’ attempt to paint CCRI as a conspiracy against minorities is absurd.

California of 1997 isn’t Mississippi of 1962; it’s the most multiracial, laid-back state in the country. A state where white males form a numerical minority is an extremely unlikely site for a supremacist conspiracy. It is, on the other hand, a very likely site for a populist backlash against an uncontrollable multiracial spoils system. To paraphrase CCRI sponsor Ward Connerly, California grants “Juan” a preference over “Chang” in 1997 because “James’s” grandfather discriminated against “Willie’s” grandmother in 1937. California discriminates against Asians in college admissions and makes up for it by granting them preferences in contracting.

While popular referendums can be abused by majorities to trample on minorities, they more often are a useful corrective to the failures of the ordinary political process. Legislatures are dominated by powerful, deeply entrenched special interests, and pork barrel politics can spawn policies that nobody really wants and everybody is powerless to end–short of going directly to the voters.

Completely divorced from the original affirmative action goal of remedying past discrimination, preferences had mushroomed into a racial spoils system. Most programs were not simply questionable policy but unconstitutional even before CCRI. (Under binding Supreme Court precedents, race-based programs must be “narrowly tailored” to remedy past discrimination.) Piecemeal reforms proved impossible. Massive institutional resistance, the power of an entrenched grievance industry and the prohibitive costs of bringing suits over every existing program protected the preference edifice.

Even when legislative reforms could have taken the steam out of the underfunded campaign for CCRI, the California legislature defeated attempts to do so. The basic lesson of CCRI’s enactment is that an absurd system of preferences can’t be reformed piece by piece and within the institutions that spawned it. It is best to end the preference game all at once, and a popular referendum provided the only way of doing so.

Perhaps the chief attraction of the referendum process is to compress an awkward and divisive brawl into a few months of open debate. The unpalatable alternative–and the explicit logic of the ACLU’s position–is to extend the debate into endless battles before school boards and city councils in state after state.

For the courts, upholding CCRI against an implausible legal attack has the advantage that they need not be the ones to end this spectacle. They merely have to allow the voters to end it. In passing CCRI, the voters of California have offered the courts their last best chance to exit gracefully from a nasty debate. They won’t miss the opportunity.

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