On August 3, the Supreme Court of the state of California handed down a decision that was widely welcomed by conservatives. In Coral Construction v San Francisco the court found that California's anti-affirmative-action Proposition 209 was constitutional. Passed at the time of the general election in 1996, ballot initiative 209 amended the state constitution to include a ban on race or sex preferences in "public employment, public education, or public contracting."
The ruling sailed through with a comfortable 6-1 majority, but the lone dissent—by Hispanic justice Carlos Moreno—was unsettling. He wrote that Prop 209 was unconstitutional because it established "a steep hurdle" for non-whites seeking race preferences.
This sounded like special pleading of the most outrageous kind. Why shouldn't non-whites face "a steep hurdle" if they want to discriminate against whites?
In fact, however, Justice Moreno's dissent [PDF, P. 35] is a carefully reasoned argument that may actually be right—given the peculiar anti-white premises that are increasingly pervasive in American racial jurisprudence.
Moreno acknowledged that race preferences are controversial. But he pointed out that it was not the court's job to decide if they were good or bad—only to decide whether the proposition that banned them was constitutional. In deciding that it was not constitutional, he relied on an obscure set of US Supreme Court precedents that have come to be known as the "political structure doctrine." Like the concept of "disparate impact" , it was conjured up out of the Constitution as part of the tortured jurisprudence on race that goes back at least to the Brown decision of 1954.
First, though, what were the facts in Coral Construction v San Francisco? San Francisco has built race and sex preferences into city contracting for at least the last 26 years. A business owned by a white man can get a contract with the city only if it underbids proposals from favored groups by at least 5 to 10 percent (the percentage varies according to how many favored contractors are bidding). White men also have to pass very strict muster on how many women- and minority-owned subcontractors they will hire, whereas favored groups can subcontract with whomever they like.
San Francisco has been bizarrely thorough about including just about every conceivable non-white in the favored group: not just the usual blacks, American Indians, and Hispanics (in this case everyone from south of the Rio Grande, including Brazilians, but not Spaniards from Spain), but also Arabs, Iranians, and every possible Asian, including Japanese, Koreans, and Chinese. In 2005, whites were still a majority of the city at 53 percent, with Asians coming in second at 33 percent. But the city had no intention of scrapping discrimination against whites just because they become a minority.
Ever since the 1989 US Supreme Court decision of Richmond v Croson, this kind of official discrimination is legal only if a city can prove it is compensating for its own past acts of discrimination. Accordingly, every so often, the city searches itself for discrimination—which it invariably finds. It holds hearings in which non-whites claim that San Francisco froze them out and gave all the business to the white "old boys" network. Despite the preferences that began in 1984, we learn that what may be the most "diversity"-crazed city in the country has been discriminating indiscriminately against Iranians, Egyptians, Uruguayans, Koreans etc. The city is delighted, because such wickedness means it can keep freezing out white men. The most recent such public spectacle—no fewer than 134 people testified—was in 2003.
Coral Construction Company has been fighting this nonsense since 2001, and after nine years of twists and turns, finally got to the California Supreme Court. The city of San Francisco badly wants to keep discriminating against white men, so it made a number of creative arguments against the racial preferences ban, but its most creative was based on the aforementioned "political structure doctrine." In brief, the doctrine holds that any measure that makes it more difficult for racial minorities to get laws passed in their favor violates the 14th Amendment's equal protection clause and unfairly upsets the "political structure."
The doctrine is based mainly on two US Supreme Court cases. The first, Hunter v. Erickson was about "fair housing" in Akron, Ohio. In 1964, the city passed an ordinance forbidding discrimination in apartment rentals and house sales. In the 1960s, whites still sometimes acted in their own interests, so the voters of Akron repealed the ordinance and amended the city charter to require a referendum on any new "fair housing" ordinance. It was a classic case of elected representatives acting against the interests of their constituents, but in this case the constituents struck back.
In 1969, the Supreme Court not only reinstated the non-discrimination ordinance but found that the voters of Akron had upset the "political structure" in a way that hurt minorities. It noted that it was only housing ordinances that banned racial and ethnic discrimination that required approval by referendum. Renters with children or dogs, for example, or people who wanted rent control could get ordinances passed by the city in the usual way, without having to clear the additional hurdle of a referendum. Thus, people with dogs could more easily get laws passed in their favor than people who were black. And that, said the court, was unconstitutional.
The other important "political structure" case was Washington v. Seattle School District, which the Supreme Court decided in 1982. In yet another case of government spurning the electorate, the city of Seattle started mandatory school busing to even out the racial balance. Whites didn't like this, and in 1978 they passed a state initiative that banned busing for racial reasons but permitted it for other reasons, such as alleviating overcrowding or getting special Ed students to special Ed classes.
The US Supreme Court reasoned just as it had in Hunter. The state initiative made things tougher for non-whites than for anyone else who wanted to persuade the district to send them a bus. Blacks who wanted a free ride across town to the white school had to change a state-wide law, not just lobby the school board the way the special Ed kids could. Again, the "political structure" had been changed to their disadvantage.
That, of course, is exactly where Justice Moreno was going in his dissent in the San Francisco case. As he pointed out, Prop 209's ban on racial preferences amended the state constitution in a way that was explicitly racial. Non-whites (and women) would have to change the constitution to get their preferences back, while other groups could help themselves to public handouts with less effort. Veterans, cripples, poor people, and slow learners can persuade government at all levels to discriminate in their favor without going to the enormous bother of a ballot initiative.
Ergo, Prop 209 put a unique political hurdle in the way of non-whites (and women) who want laws and ordinances passed in their favor, and is therefore unconstitutional under the "political structure doctrine".
Justice Moreno is not saying that preferences must last forever—only that they should be removed through normal political procedures that do not disadvantage non-whites. If it wanted, the city of San Francisco could abolish its preferential contracting, and might do so if the political balance ever tilts towards a ban. But non-whites should not have to change the constitution in order to keep their preferences or get new ones.
Justice Moreno conceded that there have been some recent US Supreme Court decisions that suggest the court is moving away from the "political structure doctrine". But he pointed out, correctly, that as long as the Supreme Court has not yet disavowed the doctrine, it is not a state court's job to try to read its mind. The doctrine is still law. It must be enforced, whatever one thinks of racial preferences.
And in fact the five justices in the majority in the San Francisco case did not ignore the "political structure doctrine". They just said it did not apply. They argued that in the Hunter and Seattle cases, discrimination against non-whites had been enshrined in ways that upset the "political structure", and that the doctrine did not cover cases in which a ban on discrimination was so enshrined. (Needless to say, further complexities mean that San Francisco's anti-white discrimination is still in place and must be litigated further).
Justice Moreno may well have been right to argue that that the California Supreme Court had no business drawing that distinction. So long as preferences are legal—and the US Supreme Court has said they are legal if they compensate for past discrimination or achieve "diversity"—then all that matters is whether the measure brings an advantage to non-whites—and that can be either a ban on discrimination against them or promotion of discrimination in their favor. It is unconstitutional to tilt the political process in ways that make it harder for the poor dears to get either form of advantage.
In my opinion, from a legal point of view, Justice Moreno is right. Ever since the Civil Rights Act of 1964, American law has been full of pompous jabber about banning racial discrimination, but this has not stopped courts and governments at all levels from discriminating against whites in the name of non-discrimination against everyone else. To judges, non-discrimination does not mean what it means to the rest of us.
Furthermore, the "political structure doctrine" favors only racial, ethnic, and religious groups. For example, if the voters of California amended the state constitution to ban skeet shootings within 100 miles of an elementary school, it would change the political structure for skeet shooters by making it impossible for them to seek relief through city ordinance or state law. But the "political structure doctrine" would be no protection for them because skeet shooters are not a race or a religion. The doctrine itself, with its benefits and protections only for favored groups, is one of those special-treatment hoaxes that are always being perpetrated in the name of equal treatment.
We come now to a delicate question: Did Justice Moreno read the law the way he did only because he is Hispanic and likes preferences for his people?
Maybe—but maybe not. As even this oversimplified account shows, the law is a complex thing, and what can appear to be a minor hallucination, such as the "political structure doctrine", can be trotted out to justify what would otherwise be clearly seen as blatant discrimination.
When it comes to race, constitutional law is a briar patch of ad hoc doctrines. A Moreno or a Sotomayor or a Kagan can go dowsing for anti-white arguments any time he or she wants. Just because "political structure" was not cited in the San Francisco case, does not mean it will not be decreed to be determinative in the future.
The great legal irony of the 20th century is that American whites institutionalized racial discrimination against themselves at a time when they were the overwhelming majority both on the bench and in Congress.
In doing so, they established a legal tradition that will make it child's play for any future non-white majority to expand that discrimination into any part of our lives they choose.
What, then, is to be done?
Fortunately, the swine who pass our laws, and appoint and confirm our judges care about only one thing. It is not justice, it is not truth, and it certainly isn't the country. It is reelection. That means that every so often they have to get our permission to keep making a mess of things.
We could begin by making sure that our rulers no longer think the Constitution is an inexhaustible fund of justifications for discrimination against whites.
Jared Taylor (email him) is editor of American Renaissance and the author of Paved With Good Intentions: The Failure of Race Relations in Contemporary America. (For Peter Brimelow's review, click here.)