Ramesh Ponnuru in NY TIMES is Wrong about Ricci

A few months ago, David Frum wrote a cover article for the leftist magazine Newsweek smearing the most prominent conservative in America, Rush Limbaugh, as some kind of sinister McCarthyite hater who should "shut up." The message was that conservatives should shut up and surrender to liberalism. Now Ramesh Ponnuru, a senior editor of National Review, has followed in Frum's footsteps, writing an op-ed for the leftist New York Times in which he attacks conservatives as hypocrites for supporting the plaintiffs in the Ricci anti-white discrimination case. Here's his reasoning:

Mr. Ricci probably deserved his promotion and had a right to his day in court. But contrary to what many conservatives insist, that does not mean he should win the case. The legal arguments for his position ... are not absurd: they include reasonable readings of Supreme Court precedent. They just aren't originalist arguments. To conclude that New Haven acted unconstitutionally is to assume that the Constitution's 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.

What Ponnuru is saying is that conservatives are relying on the anti-originalist, liberal perversion of the Fourteenth Amendment, under which federal courts bar any kind of racial discrimination at the state level. He's saying that under the original Fourteenth Amendment, states could discriminate as they liked. Therefore conservatives, insofar as they are originalists, have no grounds for attacking New Haven's anti-white discrimination practices. But Ponnuru, in addition to his Benedict Arnold-like behavior of going to the Times to attack conservatives, is mangling the issue. Under the original Fourteenth Amendment, as enunciated in the 1896 Plessy v. Ferguson decision and followed in many other decisions for 60 years after Plessy, the Constitution allowed states to have "separate but equal" racial arrangements, such as separate train coaches or separate schools for whites and blacks, so long as the separate facilities were equal. However, as I have argued ("Does Grutter violate the Fourteenth Amendment?", VFR, August 2003), the original Fourteenth Amendment would clearly prohibit "together but unequal" arrangements, such as admitting people of two different races to the same institution under grossly different standards for each race, which is what we have under minority racial preference systems. Such practices violate the Amendment's mandate that states shall not deny to any person the equal protection of the laws.

Conservatives should therefore realize that they can fight anti-white racial preferences while remaining true to originalism. They do not have to rely on the liberal perversion of the Fourteenth Amendment, which bars all race-conscious policies by the states, in order to oppose racial preference practices that admit and hire vastly less qualified blacks over more qualified whites. They can challenge that system, while standing on the solid ground of the original Fourteenth Amendment. The argument is explained in more detail in my linked 2003 article.

Another point. Ponnuru is saying that the plaintiffs in Ricci should lose their suit because their case is not based on an originalist understanding of the Fourteenth Amendment. But does Ponnuru also say that the entire existing pro-minority civil rights structure of this country should be thrown out, because it is not based on an originalist understanding of the Fourteenth Amendment? No, he does not. He doesn't challenge the unconstitutional, anti-white liberal system under which we live, while he would take away from conservatives the only means of fighting it.

Just like David Frum in his despicable Newsweek cover article, Ramesh Ponnuru is telling conservatives to shut up and submit.

“The point is about whether an “originalist” constitutional position in consistent with the Ricci decision.”

And that’s the point of my initial post: “original Fourteenth Amendment would clearly prohibit “together but unequal” arrangements, such as admitting people of two different races to the same institution under grossly different standards for each race, which is what we have under minority racial preference systems. Such practices violate the Amendment’s mandate that states shall not deny to any person the equal protection of the laws.”

What’s your take on this comment on the Grutter decision?

“Ever since the Grutter decision was issued, there has been a worm of doubt in the back of my mind as to whether my criticisms of it were on completely solid ground. Over and over I have described Grutter as a revolutionary attack on America’s belief in non-discrimination and equality under the law, a principle embodied in the Fourteenth Amendment’s command that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” At the same time, I have been troubled by the thought that the notion of equality under the law that I am defending is itself largely a product of modern Supreme Court decisions such as Brown v. Board of Education that I disapprove of because they expanded the Fourteenth Amendment beyond its proper scope. As is well known, the framers of the Fourteenth Amendment did not define “equal protection of the laws” as outlawing racially segregated schools. It was only the modern civil rights movement, with its outrageous judicial re-writing of the Fourteenth Amendment and its improper expansion of federal power over the states, that mandated systematic non-discrimination throughout American life, and particularly in the schools, making such non-discrimination the sacred heart of the American creed. I have asked myself, therefore, is there something contradictory, even hypocritical, in my protests against Grutter for violating a liberal system that I myself don’t approve? To put the question differently, if we were living under a constitutional system that I could support, a system in which the Fourteenth Amendment had not been turned into an instrument of tyranny over the states, wouldn’t a state have the perfect right to practice anti-white racial preferences in school admissions?
It occurs to me now that the answer to these questions is no, and that Grutter does indeed violate the original Fourteenth Amendment, not just the later, illegitimate expansions of the Fourteenth Amendment. The following thoughts are tentative, however, and I welcome any critical response.

Under the Fourteenth Amendment as narrowly interpreted by the Supreme Court in Plessy v. Ferguson, racial segregation in railway passenger cars was permitted on the basis of the principle of “separate but equal.” This implied that the treatment given Negroes had to be—at least in theory—equal to the treatment given whites in order to be Constitutionally acceptable. The Court wrote in Plessy:

The [plaintiff’s] argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.

Plessy held that the Fourteenth Amendment did not outlaw social separation. As the Court put it, the races were socially distinct; whites had strong feelings to keep it that way; and the Constitution had no power to interfere in that. As long as Negroes had accessibility to railway cars, or to other basic facilities such as public schools, and thus were not being deprived of a basic right, racial segregation with regard to those facilities was permissible.
However, by Plessy’s own reasoning, I think that a school that admitted both races, while using radically different admissions criteria for each race, would have been seen as violating equal protection of the laws. The “social separation” argument would now be moot because both races are being admitted to the same school. Now it becomes purely a matter of giving more points to one group because of its race.

To illustrate this, imagine that blacks’ average test scores were far higher than those of whites, and that an integrated state school, in order to keep down the number of blacks and increase the number of whites, systematically admitted whites with lower scores while automatically rejecting all blacks with those same lower scores. Here there could be no claim of separate but equal; it would be together and unequal. And I can’t see the Plessy court okaying such a system.

The upshot is that grossly unequal admissions criteria applied to students of different races by the same state school is a denial of the equal protection of the laws. Therefore Grutter is not just a violation of the modern liberal regime and its illegitimate enlargement of the Fourteenth Amendment. It is a violation of the Fourteenth Amendment itself.”

I do not mean to belabor the point, but it appears you misread my comment.
“In fact, you have completely abandoned the crux of the matter...”

Yes, I raised the question of the process. This should not be foreign to you, who appears to be more versed in law than I am. We do discuss the process of discussion (and procedural law), and not only its substance (resp., substantive law).

“for an ad hominem argument.”

On the contrary I addressed what you said (hence argued ad rem) rather you yourself (hence this was not an ad hominem).

“Calling me a snob”

I never did that. I said that your posturing was snobbish. Were I indeed attacking YOU, you could legitimately feel offended. I only questioned your words, not you as a person.

Thank you for replying to my post, though, and for giving it a thought.

I look forward to reading your comments on this thread (this promises to be instructive) and elsewhere.

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