To the Editor:

In “Racial Preference in Court (Again)” [January] Terry Eastland gives a good description of the ominous trend toward a nationwide system of racial discrimination that is now being fostered by the Supreme Court under the name of “affirmative action.” If anything, the situation may be worse than he says. In the 1987 Johnson v. Transportation Agency case, Justice Brennan wrote that it is perfectly acceptable to “trammel the rights” of individuals—for the sake of a more “equal” society—as long as those rights are not trammeled “unnecessarily.” The Court, of course, and no one else, gets to decide the extent of the “trammeling” and how long it is “necessary” to keep it up. . . .

Until the Johnson case, the Court had not dared openly to repudiate the protection of individual rights (except in wartime emergency) since the 1858 Dred Scott decision. In that infamous case, Justice Taney declared that the black man has no rights that the white man is bound to respect. . . .

Both the American Revolution and the Civil War were fought in order to replace the old institutions of caste and class with a system under which individuals would be treated as equals, in accordance with “the content of their character,” not “the color of their skin.” Unfortunately, we are now losing the ideal of a colorblind law and government because our leading intellectuals, conservative as well as liberal, no longer adhere to the natural-rights principles of the Declaration of Independence and of Abraham Lincoln. All that is finest in the American tradition of race relations stems from our fidelity to equal rights. Without the equality principle we will continue our current slide into officially sanctioned racism.

Thomas G. West
Heritage Foundation
Washington, D.C.

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To the Editor:

. . . The real reason the courts have come to play so influential a role in civil-rights issues is that the last thing professional Congressmen-for-life want to do is to vote on controversial matters. They have consistently dodged the civil-rights issue just as they dodged taking a stand on Vietnam despite the Constitution’s clear mandate that it is Congress that shall declare war. As long as elected representatives shirk their responsibility, the civil-rights issue will be fought out in the courts, just as it has been during both Democratic and Republican administrations.

More to the point . . . is the fact that nothing the courts or Congress can do would help minorities as much as they could help themselves in the good old-fashioned way: by doing their job more efficiently than the competition. Government quotas will only exacerbate the racial problem by artificially supporting the wrong minority businesses at the expense of other, better-run minority businesses and the public at large.

Jerry Spector
Clayton, Missouri

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Terry Eastland writes:

Regarding the points raised by Thomas G. West, I focused on the Supreme Court’s constitutional cases starting with Bakke. That is why I did not treat Johnson, which addressed the legality of racial quotas under federal civil-rights law. But I quite agree that the trend in the statutory area is bad, and that Johnson in particular was a terrible decision. The rights of individuals are indeed at stake, and Mr. West is right to insist (as I have done on many occasions) that we as a nation must adhere to the principle of equal rights for all embodied in the Declaration of Independence.

I of course agree with Jerry Spector that government quotas “exacerbate the racial problem,” as he puts it, and I think it condescending to suggest, as quotas do, that those “benefited” by them—members of racial and ethnic minorities—cannot otherwise compete.

Since my article was published, a decision was handed down in the Croson case. While the Court did not go as far as I argued it should in outlawing racial preferences, at least five members of the Court did agree that the standard of strict scrutiny should be used in considering the constitutionality of racial preferences. This is a step in the right direction toward colorblind law.

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