As multiple opinions in Adarand Contructors v. Pena (US S. Ct., 1995) show, there are many ways to interpret the Equal Protection Clause of the 14th/5th Amendment in relation to racial affirmative action.  The majority recognizes that remedial measures taken to right past discrimination are a compelling governmental interest but must be narrowly tailored to correct specific wrongs and to benefit specific people affected by those wrongs.  The problem with this interpretation is the difficulty in developing affirmative action remedies which can pass strict scrutiny.  While the majority wishes to dispel the notion that strict scrutiny is “strict in theory, but fatal in fact,” it does little to explain how a remedy can be narrowly tailored to address the enormous impacts of racial discrimination, a problem that is spread as wide as the country.

It is well recognized that minorities, and particularly African Americans, experienced great discrimination in our past.  The Supreme Court in the past has upheld discrimination by citing the Constitution, including cases as recently as Plessy v. Ferguson.  Although the court has abandoned such readings of the Constitution, it seems unjust that they again cite the Constitution to limit the remedies of their past mistakes.  While the majority in Adarand recognized the “compelling interest” of remedial action, the concurrences are enlightening on the court’s reasoning for limiting the breadth of remedial affirmative action.

Scalia and Thomas adopt the notion that “the Constitution is color blind” and therefore any remedial action determined by race is per se invalid.  Scalia refers to affirmative action as an impermissible creation of creditor and debtor races.  Yet, how can it be ignored that mass fortunes and regional economies were built on the backs of black slaves for the benefit of white society.  Whites continue to benefit from their past and present social privileges, even if they don’t wish to.  Can it truly be Unconstitutional to recognize that the white majority has gained considerable social and economic advantages while placing minorities in great social and economic debt?

Thomas’s concurring opinion is particularly fascinating.  Being the only justice to represent a minority race, his opinion carries considerable weight.  Yet, it is safe to say that his opinion does not represent the opinion of the majority of this country’s African American population.  He sees the creation of affirmative action programs as a system of racial paternalism.  That is, in allowing affirmative action, the majority becomes a parent looking after the best interests of the minority child.  In his view racial paternalism is a form of racial prejudice, in that it suggests that one race must work to protect an inferior race.

I can’t help but to view Thomas’s opinion as terribly flawed.  Except for Native Americans, racial groups are not sovereign political bodies.  Neither white’s nor blacks have the ability to act alone in determining the laws of the land and what remedial actions for past wrongs should be in place.  Affirmative remedies for past discrimination are not developed solely by the majority race, but instead by the equal political cooperation of all races.  Whites did not create affirmative action as a parent protecting a child.  Affirmative action remedies are typically developed by multi-cultural legislative bodies.  Affirmative remedial action is not a product of white guilt.  It is a multi-racial recognition of current discriminatory impact on minorities.  Minorities have made considerable gains in their long battle for political power.  Now that their concerns are being addressed, it is fascinating that an African American justice would undermine their political achievements by implying that their gains are merely a product of majority racial discrimination.  Views such as these divide the races into separate political bodies that perpetuate social racial divisions.  Affirmative action can not be dismissed as the political creation of the majority, but must be recognized as a multi-racially developed remedy addressing the concerns and needs of the majority and minorities alike.