The Constitutional Logic of Affirmative Action - Softcover

Fiscus, Ronald J.

Softcover

ISBN 10: 0822317702 ISBN 13: 9780822317708

Verlag: Duke University Press, 1996

Inhaltsangabe

Few issues are as mired in rhetoric and controversy as affirmative action. This is certainly no less true now as when Ronald J. Fiscus’s The Constitutional Logic of Affirmative Action was first published in 1992. The controversy has, perhaps, become more charged over the past few years. With this compelling and rigorously reasoned argument for a constitutional rationale of affirmative action, Fiscus clarifies the moral and legal ramifications of this complex subject and presents an important view in the context of the ongoing debate.
Beginning with a distinction drawn between principles of compensatory and distributive justice, Fiscus argues that the former, although often the basis for judgments made in individual discrimination cases, cannot sufficiently justify broad programs of affirmative action. Only a theory of distributive justice, one that assumes minorities have a right to what they would have gained proportionally in a nonracist society, can persuasively provide that justification. On this basis, the author argues in favor of proportional racial quotas—and challenges the charge of “reverse discrimination” raised in protest in the name of the “innocent victims” of affirmative action—as an action necessary to approach the goals of fairness and equality.
The Constitutional Logic of Affirmative Action focuses on Supreme Court affirmative action rulings from Bakke (1976) to Croson

(1989) and includes an epilogue by editor Stephen L. Wasby that considers developments through 1995. General readers concerned with racial justice, affirmative action, and public policy, as well as legal specialists and constitutional scholars will find Fiscus’s argument passionate, balanced, and persuasive.

Über diesen Titel

Über die Autorin bzw. den Autor

Ronald J. Fiscus was Assistant Professor of Political Science at Skidmore College until his death in 1990. Stephen L. Wasby is Professor of Political Science at the State University of New York, Albany.

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"from the foreword:
""At a time when the mere mention of quotas sends politicians of all stripes running for cover, it is remarkable to see someone looking at the crowd calmly, and making distinctions which show that, like anything else, quotas can be well used or used in ways that are unjust."--Stanley Fish, Duke University

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The Constitutional Logic of Affirmative Action

By Ronald J. Fiscus, Stephen L. Wasby

Duke University Press

Copyright © 1992 Duke University Press
All rights reserved.

ISBN: 978-0-8223-1770-8

Contents

Foreword, 
Editor's Preface, 
The Author's Argument, 
Author's Preface, 
Introduction, 
Compensatory Versus Distributive Justice, 
Chapter I: The Central Argument, 
Chapter II: The Innocent Persons Argument Examined, 
Chapter III: Proportionate and Disproportionate Quotas: The Key Distinction, 
Chapter IV: Applying the Principles: The Supreme Court and Affirmative Action, 
Epilogue, 
Notes, 
Table of Cases, 

CHAPTER 1

The Central Argument

The Meaning of Racial Correlations Given Nonracist Assumptions and Original Positions

Our central argument combines a claim of distributive justice with a stipulated assumption about equality at birth and with deductive reasoning about subsequent departures from that equality. The argument, in bare form, is strikingly simple, and the stipulated assumption appears to be uncontroversial.

Let us imagine a group of newborn infants—in demographic terms, a cohort. For purposes of simplification, let us suppose that this cohort is roughly representative of the population of the United States, but not precisely so. Let us say that 50 percent of the infants in the cohort are male and so percent are female, and that 80 percent of the infants are white and 20 percent are black.

Now let us ask ourselves, "At the moment of birth, are there any significant differences, aside from the obvious ones, between the male and the female infants, or between the white and the black infants?" To be more specific, if we could measure it accurately, would we find statistically significant differences in the intelligence or in the potential, as-yet-undeveloped intelligence of these subgroups? Would either the average or the range of their potential IQ's be different—that is, would the bell-shaped curve indicating the spread of IQ's within each group be narrower or broader for one group, or would it center on a different point? And, let us further ask, at this point would there be differences in their character or in their potential character—in their ability to develop motivation, commitment, self-discipline, desire to "get ahead," etc., etc.? Would there, in short, be differences in their inchoate and undeveloped desires to share in all of life's promise or in their potential abilities to attain that promise?

Probably without exception, everyone asked these questions would emphatically agree that only a hard-core racist posits racial differences at birth. Most, but not all, would agree that there would be no differences between the male and the female infants at least in terms of their potential intelligence or character, but some might insist that biological differences would in and of themselves later lead to slightly different desires and motivations; and, of course, physical differences would produce different physical abilities between males and females as groups.

One has to admit that the case for absolute equality at birth is stronger with regard to race than with gender. Despite the revival several years ago by Shockley et al. of genetic theories of racial inferiority, not a single reputable study exists that would support a claim of general racial inferiority/superiority—in either intelligence or potential character—at birth. With gender, things are somewhat more complicated. No one has seriously suggested—or rather, no one worth taking seriously has suggested—that intellectual ability generally or character traits generally differ between men and women as groups as a result of heredity. But interestingly, with the progress of feminism has come a renewed interest in, and acceptance of, biologically based differences.

This should not be surprising. When assertions of general superiority/ inferiority still had a degree of respectability, and when gross "anatomy-is-destiny" generalizations still lingered, any recognition of biological differences as a source of behavioral or mental differences was both suspect and dangerous. If there is now a greater acceptance of studies attempting to link biology to gender-correlated differences in behavior and attitudes, it is doubtless because the studies have been more careful to limit their claims in terms of explanatory power and implications, and (perhaps) because it is now more possible to appreciate differences without assigning judgments of superiority or inferiority to them. To be perfectly fair, then, let us assume that reputable studies have suggested plausible biological explanations for some of the behavioral differences between men and women that show up at various stages of life.

While not conceding that a reputable study has ever furnished support (or likely would ever furnish support) for affirmative answers to any of the questions asked at the beginning of the chapter, let us illustrate our point using race and leave for another time the question of gender. Considering then, the two groups of infants, 80 percent white and 20 percent black, let us add a hypothetical condition. Let us imagine our cohort living in a perfectly nonracist society for, say, twenty-one years. Neither overt nor subtle discrimination has existed in this society. If there ever had been racism in the past, its effects had been completely eradicated by the time of the cohort's birth. Individuals harbor neither conscious nor unconscious racism; the color of one's skin is universally considered to be of no greater significance than, say, the color of one's hair or eyes. Role models exist for all of society's roles with equal frequencies, and in general white and black individuals are equally encouraged and discouraged by the society in whatever they undertake.

Before continuing, we should take note that a number of studies have strongly suggested that most of us treat people differently according to their physical attractiveness, even when we are not aware of it. Most of us at least initially impute greater intelligence and authority to individuals who are moderately attractive, and less to individuals who are either unattractive or conspicuously attractive. Perhaps the most disturbing studies are those that suggest that physically attractive defendants receive greater leniency than less attractive defendants. Other studies have suggested that a person's height affects how others respond to him or her. If the studies are correct, these initial judgments are usually not so strong that they withstand subsequent exposure to the individuals in question, but apparently the initial presumptions, when multiplied by the countless interactions in an individual life, have measurable cumulative effects. In the case of both attractiveness and height the studies show statistically significant correlations between these traits and success in the society.

Some would argue that such behavior is an ineradicable facet of human nature and is easily forgivable, but I would argue that it is essentially a matter of sensitivity, which can and should be taught. The important point is that such behavior does systematically reward and penalize individuals on a basis other than merit—usually on an irrelevant and immutable basis. We would therefore be justified in giving it a label corresponding to racism and sexism. Although "attractivism" and "heightism" are ungainly and off-putting neologisms unlikely to gain acceptance into our vocabulary, they would be...

Details zur Ausgabe

• Verlag: Duke University Press
• Erscheinungsdatum: 1996
• Sprache: Englisch
• ISBN 10: 0822317702
• ISBN 13: 9780822317708
• Einband: Taschenbuch
• Anzahl der Seiten: 176
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: preigu; mail@preigu.de; ; Lengericher Landstr. 19; Osnabrück; 49078; Deutschland