The Mises Review
By David Gordon

More Equal Than Others
Winter 1998

IS AFFIRMATIVE ACTION DOOMED?
Ronald Dworkin
The New York Review of Books
Vol. XLV, No. 17, November 5, 1998, pp. 56-61

Conservatives, at least since the "Impeach Earl Warren" days, have viewed the Supreme Court with less than full enthusiasm. Are we too critical? Surely the Court cannot have butchered the Constitution to the extent its most vehement critics allege.

Professor Ronald Dworkin's article helps us to answer the question just posed. In fact, the critics of the Court have been engaged in restrained understatement. Mr. Dworkin proves this by his careful exposition and defense of current constitutional "reasoning." By his tortured justification of our highest court, he succeeds, against his intention, in showing that the Court is bankrupt.

Professor Dworkin is no ordinary leftist law professor; he stands foremost among today's legal philosophers. His Law's Empire is the bible of those scholars who wish to substitute their own judgment for popular sovereignty. If he cannot justify the Court's way of doing business, no one can.

Mr. Dworkin considers the "equal protection" clause of the fourteenth amendment. Of course Mr. Dworkin does not consider the question, pressed by the outstanding American historian Forrest McDonald, whether the amendment was legally ratified. That much of a challenge to the federal government cannot exist for a moment in Professor Dworkin's "empire."

But let us give Mr. Dworkin his beloved clause. The government cannot deny to anyone "the equal protection of the laws." Does this not mean that the government cannot make groups specially privileged or disadvantaged by the laws it enacts? You might think so, if you reasoned in a commonsense way.

It transpires that common sense is the last thing the Court wants. In current jurisprudence, which Dworkin entirely supports, equal protection ap-plies only to minorities that the Court favors. "The equal protection clause is violated...when [some group's] loss results from its special vulnerability to prejudice, hostility or stereotype, and its consequent diminished standing--its second-class citizenship in the political community" (p. 561).

How can this be? You may inquire: "does not the plain sense of the cause guarantee equal protection for everyone," not just minorities that arouse the Court's empathy? In response, Dworkin manifests his ingenuity as a major philosopher of law. "Equal" protection does not mean equal protection; this would be too simple. Quite the contrary, each person receives only a guarantee of being treated with "equal concern and respect" (p. 56). And this may require very unequal treatment indeed. Thus does equal protection become transformed into its opposite. Let us examine the formula once more: equal protection = equal concern and respect = unequal treatment. Simple is it not?

Suspicious readers may think I exaggerate; surely Dworkin cannot mean this by equal protection. Those who suspect me, of course without grounds, of bias against Mr. Dworkin may rest assured. Our author explains his view and that of the Court, with crystal clarity. "If a decision imposes serious disadvantages on what the Supreme Court has called a suspect class...then the decision is to be subject to 'strict scrutiny'.... But if those whom a law disadvantages do not form such a 'suspect class'--if they are only the members of a particular area--then that law is subject only to a 'relaxed scrutiny'; it is constitutional unless it can be demonstrated to serve no purpose or point at all" (p. 57).

"Strict scrutiny," the good professor tells us, is a legal term of art. If the Court subjects a law to strict scrutiny, it in practice never emerges intact. "Relaxed scrutiny," by contrast, lets anything through.

The matter is really quite straight-forward. If a law has a bad effect on a favored minority, the Court will strike it down; if it disadvantages anyone else, all is well and good.

We have not yet exited Mr. Dworkin's constitutional maze. Some of the lower federal courts have not been fully enlightened. They think that strict scrutiny applies to any law having to do with race. If so, out goes affirmative action; remember, strict scrutiny is fatal.

As good Dworkinian liberals, we cannot have that, can we? The purpose of equal protection is to help, at whatever cost to anyone else, the groups Dworkin and the Court support. I do not propose to explain in detail the manner in which our author arrives at his foregone conclusion; affirmative action is constitutional and is not subject to strict scrutiny. Given his starting point, could anything be more certain?

Instead, let us note a crucial admission that Dworkin drops in passing. Supporters of affirmative action often defend it on grounds of justice. Blacks have in the past been grievously mistreated and are owed redress. Dworkin rejects this line of argument entirely: "Commentators' justifications suppose that affirmative action is necessary, as [Justice Antonin] Scalia put it, to 'make up' damage done to their race or class in the past, and he was right to point out that mistake in supposing that one race owes another compensation."

In other words, the "justification" for affirmative action is forward-looking. Dworkin and his friends want more blacks and other groups they like in top schools. Whites owe blacks nothing but they may be disadvantaged nevertheless. To treat whites this way shows "equal concern and respect." Therefore, affirmative action is constitutional. Voila!