A Government Not of Men, But of Laws - Jonathan Voos

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A Government Not of Men, But of Laws

On affirmative action, legacy admissions, and constitutional process.

On affirmative action, legacy admissions, and constitutional process.

June 30, 2023

Dear reader,

Affirmative action is dead. American universities can no longer explicitly factor race into their admissions decisions. In coming days, much ink will be spilled regarding the Supreme Court’s supposed hatred for minorities. However, affirmative action actually died because the Justices did their job and applied the law as written.

In short, the Fourteenth Amendment’s Equal Protection Clause’s disallowance of “any distinction based on race or color” applies to public universities like UNC automatically and to private universities like Harvard because they receive federal funding. Both Harvard and UNC used affirmative action to explicitly discriminate against students based on their race. Harvard even artificially worsened Asian students’ applications by giving them an automatic zero for their personality score. So, Harvard, UNC, and other universities that employed similar policies explicitly violated the Fourteenth Amendment.

The logic is simple. Discriminating against a racial group because they outperform other racial groups is still unconstitutional racial discrimination—even if it’s well-intentioned. If liberals want to properly reinstate affirmative action, they first must amend our Constitution to allow for race-based discrimination.

However, none will seek to do this because banning racial discrimination is good public policy. Instead, many will also accuse the Court of bigotry and backsliding—an ironic proposition given that the Supreme Court said racial discrimination was wrong. Furthermore, even though it clearly violates the Constitution, affirmative action supporters will push for future courts to arbitrarily reinstate the policy.

This approach is shortsighted and cuts against the very fabric of the American project. Professor John McGinnis writes, “[Our] republic depends on the core notion of being a ‘government not of men, but of laws.’ A government of men controls by arbitrariness; a government of laws controls through transparent rules that allow citizens to make choices over time. It’s essential that law be protected from political caprice.”

Key figures from the American Founding concur. The federalist writer, Publius, anti-federalist writer, Brutus, and the great Chief Justice John Marshall all agreed that the Constitution was the supreme, fundamental, and paramount black-letter law of the land. Furthermore, they believed judges were to discover the law by analyzing the original intent of the framers rather than by interpreting the Constitution according to its “spirit.” Fears that activist judges would govern based on their whims permeated both sides of the debate and greatly influenced the development of our political system.

Unfortunately, however, many Americans no longer consider this constitutionally-ordained political process important or necessary. Immediate change without regard for long-term consequences is preferred to the consensus and compromise-based incremental change our system is designed to produce.

Instead of persuading voters to elect like-minded legislators, ideologues want unelected officials to force their policy agendas on their fellow Americans. Their justifications for such impositions often consist entirely of moralistic non-arguments rooted in narcissism. Left-wingers weaponizing disparate impact claims to defend a hypothetical judicial imposition of affirmative action would immediately implode if the Supreme Court banned abortions federally because of the procedure’s disparate impact on babies. Likewise, right-wingers who wish to weaponize cultural degeneracy concerns would denounce a hypothetical decision banning “hate speech” because it is culturally degenerative. Rationales for rule by judicial fiat fall flat when reversed.

Ultimately, instead of hoping judges will make up new rules in their favor, conservatives and liberals alike should legislate the old-fashioned way. Even small, well-intentioned strays away from proper political processes set precedents for future bad actors to arbitrarily impose their will. While criticisms of our Amendment process and Congress are certainly valid, persuasion, compromise, and consensus go much further than arbitrary political caprice in ensuring that our system is as fair as possible for everyone.

Legacy Admissions

As a postscript, a common complaint I’ve seen about the Harvard decision is that legacy admissions still exist. I agree that legacy admissions are unfair and I would also like them to end. However, the Court can only address questions raised by cases it hears. The Court did not address legacy admissions here because legacy admissions were not raised as an issue. Since it’s unlikely that legacy admissions violate any part of the Constitution, the Court likely never will get to address this practice.

Nevertheless, Congress and state legislatures can address this practice immediately by preventing schools who use legacy admissions from receiving state or federal funding. Furthermore, Harvard could end legacy admissions right now if it chose to do so. The main reason it hasn’t is because legacy admissions are useful for soliciting donation money. Ultimately, anger at legacy admissions should be directed at the universities and legislatures, not the courts.