David Leonhardt has a column in todays New York Times titled "The Senate: Affirmative Action for White People," in which he explains how the votes of racial minorities are today undervalued in the Senate, which originated as a form of affirmative action for small states. Here is the gist:
The biggest racial preferences in this country have nothing to do with college admissions or job offers. They have to do with political power. And they benefit white Americans, at the expense of black, Asian and Hispanic Americans.
These racial preferences are the ones that dictate the makeup of the United States Senate. Thanks to a combination of historical accident and racism, the Senate gives considerably more representation to white citizens than to dark-skinned ones. It allows a minority of Americans — white Americans — to wield the power of a majority.
You can read the entire column here.
As it happens, I made more or less the same point in a 1995 column for the Chicago Tribune titled "Affirmative Action Is as American as the Constitution." You can read it after the jump:
Chicago Tribune
October 26, 1995
AFFIRMATIVE ACTION IS AS `AMERICAN AS THE CONSTITUTION'
Steven Lubet is a law professor at Northwestern University and is director of the school's Program on Advocacy and Professionalism
Opponents of affirmative action say the idea is contrary to basic American principles because it unfairly disadvantages blameless individuals, needlessly emphasizes group rights and enshrines an ethic of victimization. Affirmative action, they say, is a failed experiment from the despised '60s.
The real truth, however, is that affirmative action originated in the '80s. Not the 1980s, but the 1780s–1789, to be exact. Here is what the United States Constitution (Article I, Section 3) says about affirmative action: "The Senate of the United States shall be composed of two senators from each state." That's affirmative action–in fact, a quota system–for small states. There is no denying that the framers designed the Senate to protect group rights, notwithstanding any disadvantage to blameless individuals, and all on a theory of possible victimization. While any specific instance of affirmative action may be unnecessary or ill-advised, the concept has been with us from the beginning.
The size of a state's delegation in the House of Representatives is determined on the basis of population, in keeping with the democratic principles articulated in the Declaration of Independence. In the Senate, however, small states are given special treatment. They are afforded representation far out of proportion to population, to ensure that they will not be victimized, oppressed or subjected to discrimination by the majority.
There is no clearer example in our history of institutionalized group rights. Based upon accidents of birth and geography, the citizens of small states, such as Delaware and Maine, enjoyed the benefits of a quota system that made their political influence comparable to that of New York and Virginia, the giants of the time. In the 1990s, the same quota operates to the advantage of Alaska (one senator per 300,000 citizens) and to the detriment of California (one senator per 15,000,000 citizens). Is it unfair to count the vote of an Alaskan at 50 times the vote of an Californian? Sure it is, but we have become so inured to the Senate that it just seems natural. That's our system. That's the way it works. And so it is; but it is also group-based affirmative action.
We are all familiar with the original arguments in favor of the Senate. One concern was that the interests of small states would not be respected in a Congress constituted strictly on the basis of population. Another consideration was the need to protect minorities (primarily meaning political minorities) from the temporary passions of transient majorities. And after more than 200 years, there is far-reaching agreement that the Senate has well served its intended functions. State-based affirmative action has worked according to plan.
So let's compare the establishment of the Senate to current programs of race-based affirmative action. To be sure, the parallel is inexact, but certain principles do overlap. In 1789, the small states feared the possibility of future discrimination under the newly-proposed Constitution. They were not willing to accept promises of benevolence or paternalism, but insisted on structural protection even at the cost of proportional democracy.
Today, racial minorities and women fear not only the hypothetical possibility of discrimination, but the persistence of a proven historical fact. They, too, decline to trust benign intentions and demand a structural remedy. A requirement of special treatment or attention to women and minorities similarly assures that they will be protected from the "passions" of today's majority, which, in the case of upper-level decision-makers, still consists overwhelmingly of white males.
It is true that the non-proportional Senate came about as the result of a political compromise. The small states extracted it as the price of their acceptance of the new national government. They had the right to withhold ratification of any constitution that did not satisfy their perceived needs.
Today's minorities, African-Americans in particular, do not have that power. Their ancestors were brought here involuntarily, without the ability to agree or disagree with the political or economic system. Certainly, though, there must be something about democracy that prevents us from saying that affirmative action was a one-time-only phenomenon, imposed only at the insistence of certain framers and never to be repeated for the benefit of future minorities. To accept that argument would transform constitutionalism from an enduring philosophy into little more than an 18th Century version of "Let's Make a Deal."
I do not want to make too much of this analogy. Many recent efforts at affirmative action have been ineffective or counter-productive. The wisdom or appropriateness of any particular program ought to be subject to continuous review. But when Sens. Orrin Hatch (R-Utah) or Alan Simpson (R-Wyo.) inveigh against affirmative action, they ought to do so with some sense of humility, if not irony. After all, they owe their Senate seats to affirmative action's first appearance in our national life.
It is simply wrong to say that affirmative action–as a tool for achieving political equity–is out of place in the American system. To the contrary, is it as American as the Constitution.
seems irrationally anti-white–for shame!!
So ironic that Lubet posted this today, just as a Senator has claimed that a miniscule percentage of "ancestry" derived from a particular group has justified the uses to which she has put her claim to "belong" to that group (which, btw, she mainly, but unconvincingly denies). See, the WSJ today: "Did Elizabeth Warren Just Kill Identity Politics?" and the The Boston Globe’s reporting on Ms. Warren’s various racial claims.
From what I've read, the actual percentage of "ancestry" she claims is ubiquitous among "white people" – perhaps even average — which would justify AA for nearly all such people.
She claimed she had a Native American ancestor, and DNA proves she does. Now that’s not good enough? Lol.
Keep moving the goalposts, buddy.
As usual, the angry, low information retorts just demonstrate ignorance. The issue isn't "DNA proves she does" unless you accept her level of claims based on a condition that is nearly "average." Because one can easily see you won't do anything to inform yourself, here's a brief excerpt:
According to the WSJ, “'Warren provided a sample of her DNA to a private lab in Georgia in August, according to one of the senator’s aides,' says a report today by Annie Linskey in the Boston Globe. But the senator sought a judgment on the results from Carlos Bustamante, a professor of biomedical data science at Stanford." the WSJ reports.
"[The DNA evidence] … suggests that the senator is somewhere between 1/64th and 1/1024th Native American."
The New York Times, in 2014, reported that "last week a team of scientists published the biggest genetic profile of the United States to date, based on a study of 160,000 people,” reported Dr Carl Zimmer. "The researchers found that European-Americans had genomes that were on average 98.6 percent European, .19 percent African, and .18 Native American."
Back to the WSJ: "At least according to the report from Professor Bustamante, it’s possible that Sen. Warren has far less than one percent Native American ancestry, and that her genetic makeup is perhaps similar to that of the average white person in the U.S."
YOu can spew all you want, Anon. But, read The Boston Globe’s reporting on Ms. Warren’s various racial claims (you can find a summary of those claims in the WSJ piece). Your hostility and gross outbursts don't prove much, buddy. But, read those claims and tell us, in good faith, that you believe they were justified.
Interesting analysis Professor Lubet. Let's put this in simple stark terms. Court Ordered George W. Bush and Donald John Trump were elevated to the presidency by affirmative action aka electoral college. Two North Dakota oil workers and a rancher from Idaho overturned and stomped on the will of 63 million Americans voters who don't share their values.
Anon and anon,
I had a DNA test too. It came back Hottie-American. They let me into law school and allow me to post here cause I am good looking. There now.
As for the merits of the article above, I think it is too far fetched to be basically sound.
Let's compare Senate representation to affirmative action in law school admissions.
The decision to afford each state two votes in the Senate was not even remotely similar to a decision to admit, in the interest of diversity, "racial minorities" to law school. In an admittedly over-simplified description, AA in the latter instance might have taken the form of displacing "white (males)" (who might have had better LSAT and GPA scores, and thus have qualified for admission under the old "auto admit" policies employed by many law schools) in favor of persons with lower LSAT/GPA scores, based on race, or some other category into which that person might be placed.
Senate representation was not based on race, not adopted in the interest of diversity, and did not advantage some states which would not otherwise have qualified for representation under established objective criteria to admission into the United States that were based on population.
The states which adopted the Constitution were equals. They surrendered some of that sovereignty to form a union. In this union, these states might have claimed one state one vote. Period.
But, these states compromised.
What principle do you cite to support the view that it was unethical, ill advised or even unusual for each state to claim some right to an equal say in one house, which would have 1/3 of the power the new union?
If your answer is that population size is the only determinant of political power, then your answer would be ahistorical, wrong on principle and, in fact, in defiance of common sense.
The structure of representation in Congress had nothing to do with affirmative action. Yours is therefore, IMHO, a poor analogy.