Wednesday, April 23, 2014

Does Democracy Have a Constitutional Limit?

     In a plurality opinion released by the Supreme Court yesterday in Schuette v Coalition to Defend Affirmative Action (that was pulled in four different directions) the Court upheld a ban in Michigan against affirmative action, albeit for various legal reasons.  The Michigan voters, through a ballot initiative, passed §26, a constitutional amendment, which effectively required equal protection under the law for all opportunities in Michigan - not just race-preference in college admission.  The amendment states that:
The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district [and] the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
       Throughout the various opinions, the Court was adamantly reassured the case was not, "about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences."

     The justices on the bench ruled that the voters of Michigan were allowed to pass such an amendment to their constitution and directly affect what is called the "political process."  As Justice Kennedy stated, "By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power...There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters."

     Affirmative action has been upheld previously by the courts and when providing legal rationale for effective "legal" discrimination and race-preference, courts have determined states do have a compelling interest for maintaining a diverse student body for the purposes of providing a greater learning environment.  With that being said, banning affirmative action is not unconstitutional either.  There is no stipulation in the Constitution that provides for or requires this type of preference and as Justice Scalia remarked in a separate opinion yesterday, "Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say...the question answers itself. 'The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.'"  Contrary to Justice Scalia's opinion, Justice Sotomayor stated in her dissent that given the long and storied history of racial discrimination in the United States, "Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government."

     Justice Sotomayor believes that the judicial system does play a role in protecting the rights of marginalized groups and has many times in the past (i.e. Brown v. Board of Education).  Sotomayor also believes that, "Under our Constitution, majority rule is not without limit. Our system of government is predicated on an equilibrium between the notion that a majority of citizens may determine governmental policy through legislation enacted by their elected representatives...The political process doctrine, grounded in the Fourteenth Amendment, is a central check on majority rule."

     While the plurality is correct in their ruling, they provide flawed reasons for their legal argument, which may lead to a slippery slope for future challenges.  Sotomayor's view of constitutionally protected discrimination is also flawed in that the Constitution does not provide the right to discriminate based on race and in fact, the voters of Michigan strengthened equal protection under the law.  However, Sotomayor might see the big picture and the dangers of this plurality ruling.

     The dangers to which I am referring are to the pending challenges to gay marriage bans across the country.  Several states have constitutional bans on gay marriage and several gay marriage bans have been ruled unconstitutional by federal judges.  In Utah, for instance, (which is the first such ban struck down post-Windsor to be heard by the circuit courts), the pivotal issue is state sovereignty.  Marriage is regulated by the states and the voters of Utah, in true democratic fashion, voted to ban homosexuals from marrying.  This would appear to be in direct violation of the Fourteenth Amendment but what about Tenth Amendment rights for the states?  

     Relevant jurisprudence provides that the federal government can circumvent the Tenth Amendment in certain instances.  The Fourteenth Amendment was passed to protect certain disadvantaged individuals from the tyranny of the majority.  When applying the plurality's rationale in Schutte to similar bans on gay marriage ("Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power") it is unclear if such bans would be struck down.  Many Supreme Court experts believe that the Court's ruling in Windsor does not green-light outright bans on all such practices and bans on gay marriage, but simply compels states to recognize legal gay marriages in other states for federal marriage benefits.  

     Affirmative action is important but it is not constitutionally protected (though it is also not unconstitutional).  Both the plurality and dissent in Schutte are correct.  However, each pose dangerous legal arguments that could upend over 200 years of the constitutional-democratic system that America has established.     

No comments:

Post a Comment