Double Losers: The Rule of Law and Equal Protection in the Sixth Circuit

As Mitt Romney continued his hapless class warfare rhetoric, the federal judiciary followed suit. In the most extreme post-Brown federal court opinion on equal protection ever issued, the Sixth Circuit held, in an en banc opinion, that certain unspecified minorities have privileged status in the American constitutional order. This promotion of classes over individual rights of course overthrows the American founding’s basic principle of equality of individual rights and the separation of powers that follows from it.

At issue was Proposal 2, whose victory in 2006 via popular vote of 58-42% amended the Michigan Constitution to reject race, ethnic, and sex preferences in public institutions, including universities.  Judge R. Guy Cole maintained that erecting a constitutional hurdle to such preferences would violate

a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them…. Ensuring the fairness of the political process is particularly important because an electoral minority is disadvantaged by definition in its attempts to pass legislation; this is especially true of “discrete and insular minorities,” who face unique additional hurdles.

Judge Cole had allowed that “Of course, the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible.” Yet, for practical purposes this decision means that no civil rights law may be altered decisively—e.g., a law declared unconstitutional. Of course the “loser” here was the rule of law, whose scope is ever-shrinking.

The Sixth Circuit court bases its reasoning on a radical reinterpretation of two decades-old civil rights cases, Washington v. Seattle Sch.Dist. No. 1, 458 U.S. 457, 467 (1982) and Hunter v. Erickson, 393 U.S. 385, 393 (1969): ”The ‘simple but central principle’ of Hunter and Seattle is that the Equal Protection Clause prohibits requiring racial minorities to surmount more formidable obstacles than those faced by other groups to achieve their political objectives.”

As Judge John M. Rogers dissented, “Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law.” One might expand that with the re-election of Barack Obama, the green light is signaled for the triumph of the non-elective branches of government to wield arbitrary power over individual Americans. This is the real “class warfare” that might have been a subject of discussion in the mercifully ended campaigns. (See Cass Sunstein.)

Ken Masugi

Ken Masugi is a Senior Fellow of the Claremont Institute. He teaches in graduate programs in political science for Johns Hopkins University and for the Ashbrook Center of Ashland University. He has edited Interpreting Tocqueville’s Democracy in America, co-edited The Progressive Revolution in Politics and Political Science, and co-authored and co-edited several other books on American politics and political thought. In addition, he has worked ten years in the federal government as a speechwriter and on policy issues, at the Equal Employment Opportunity Commission, where he was a special assistant to Chairman Clarence Thomas, and the Departments of Justice and Labor.

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  1. Danielle Parkinson says

    Fantastic article, but until we end legacy admissions or the effects of it, we haven’t yet passed a fully no-race preference regulation.

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