style="font-size:15px;"> Affirmative Action: A “Boondoggle”
Precursor:
Many of the framers of the Constitution and the Bill of Rights were descendants of persons who had endured persecution and caste discrimination in their native countries. With this in mind they endeavored to create a country in which all persons would be considered created as equal, regardless of race, religion, creed, or ethnicity. Unfortunately the early settlers did not consider all human beings persons, consequently the Negro was looked upon as a beast of burden with no legal rights; an injustice that was eventually righted. The infinite wisdom of the framers, knowing that there may be errors or omissions in the Constitution, did in fact allow for the amendment process; a process that ultimately rectified the injustices that the Negro had been forced to endure.
The Dred Scott decision (1857) did in fact uphold the Constitution as it had been written, contending descendants of slaves are not citizens; therefore, are not afforded any recourse in a court of law. Section I Sub Title IX of the Supreme Court summary, pertaining to the Scott decision contained the following in part: “change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construed and administered according to its true meaning and intention when it was formed and adopted.’’ The decision led to much debate and divided the nation regarding slavery; the controversy eventually became one of the issues of the Civil War. September 22, 1862, Lincoln, President of the United States, issued a preliminary proclamation, and on January 1, 1863, he issued the official Emancipation Proclamation; the proclamation did not provide a blanket abolishment of slavery as it excluded certain counties in Louisiana and Virginia from the mandated slavery abolishment. Post Civil War agendas found the nation still grappling with the slavery issue; however, in December 1865 the Thirteenth Amendment to the Constitution was ratified, thus outlawing and abolishing slavery forever. The Civil Rights Act of 1866 succeeded the 13th Amendment and passed over the veto of then President Andrew Johnson; the CRA of 1866 accorded all persons the same civil rights, in other words ‘‘full and equal benefit of all the laws’’. To further guarantee civil rights Congress incorporated its protections into the Fourteenth Amendment ratified in 1868, an amendment that explicitly guarantees “equal protection of the laws.” During this time a former abolitionist, William Phillips, tried to introduce an amendment that would prevent government from distinguishing on the basis of race; his amendment would have prohibited any state the authority to distinguish among it’s citizens on the basis of race and color; plainly this would have denied state governments the power to engage in racial regulation, and would have truly created a “color-blind government”.
The 1880’s erupted with many laws that distinguished on the basis of color, and discrimination against the Negro spread throughout the South like a malignant cancer; this was further compounded in 1896 when “Jim Crow” segregation (segregation that was enacted by the Louisiana Legislature in 1890 and provided for equal but separate accommodations for white and colored races) was sanctioned by the Supreme Court. The Supreme Court concluded that the 14th Amendment had not been violated as long as the separate facilities, or accommodations, were in fact equal; a pretty devastating setback for those desiring a color-blind government. The only bright side of the court decision was the dissenting opinion of Justice John Paul Harlan in which he wrote: ‘‘our Constitution is color-blind, and neither knows nor tolerates classes among citizens’’; this opinion became the cornerstone in the fight to end segregation.
The abolitionists and civil rights advocates continued their arduous fight to establish a true color-blind society, wherein all citizens would enjoy equal treatment under the law. The battle was slow and tedious; however, little by little their goals were being attained. Another historic event that furthered the desired eradication of preference, because of race or color, was World War II. Franklin D. Roosevelt, President of the U.S. at the time, issued an executive order that included:
‘‘—the policy of the United States is there shall be no discrimination in the employment of workers in defense industries or government because of race, color, creed, or national origin—’’. The order further stipulated that all government departments and agencies with vocational and training programs for defense production must be administered ‘‘without discrimination because of race, color, creed, or national origin’’. The conditions of this executive order extended to any contractor in the private sector who was doing defense work for the government; also created was the Committee on Fair Employment Practice that had the power to investigate complaints of discrimination and recommend remedies. By invoking executive order, F.D.R. opened the door for presidential involvement in civil rights agendas. F.D.R.’s successor, Harry Truman, continued presidential involvement when he requested Congress to enact legislation that prohibited discrimination in employment based on race, color, religion, or national origin; Congress failed to act on the Truman request; however, the process was started that would ultimately culminate in the passage of the Civil Rights Act of 1964.
The late 1940’s and into the early 1960’s was an era that continued the pursuit of ‘‘color-blind justice;’’ and although the Supreme Court failed to rule in favor of all plaintiffs (ie. Hirabayashi and Korematsu re: Japanese internment during World War II) the majority expressed themselves declaring that distinctions between citizens solely because of ancestry are odious to a free people, whose principles are based on the doctrine of equality. Justice Frank Murphy wrote the dissent and declared that, ‘‘racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life’’. The NAACP lawyers, having gained new life and energy due to the sentiment expressed by the court, actively pursued discrimination cases and the rulings were favorable toward their clients. The majority of the discrimination cases, presented to the Court, were based on race and color; notables such as Thurgood Marshall, NAACP Legal Defense at the time, argued that classification and distinction based on race or color have no moral or legal validity in our society, and in a subsequent case he argued further that racial classification by government is unconstitutional.
There were a gamut of cases presented to the Court and what was common to all was the argument that our Constitution mandates color-blind justice, and upholds the premise of equal regardless of race or color. Through the 1950’s we saw continued strides toward a color-blind society as exemplified by the unforgettable speech by Martin Luther King, Jr., “I Have a Dream,” envisioning a society that would judge a person by his character and merit, not by his skin color; and Senator Hubert Humphrey declared, at the NAACP 1952 convention, ‘‘—our democratic principles is one of judging men on their merit, not by their race—.’’ The common denominator of all the arguments was the premise that our Constitution did not allow for discrimination based on color, race, creed, religion, or national origin.
The Birth of Affirmative Action:
Early 1961 President J.F. Kennedy issued an executive order that prohibited discrimination based on race, color, creed, or national origin in federal employment, and also included any private employer doing business with the government; and two years later J.F.K. was campaigning for the CRA of 1964 and cited Justice Harlan regarding a color-blind society that neither knows nor tolerates classes among citizens; and he also cited the founding principle ‘‘all men are created equal’’ embellishing his oration with: ‘‘the rights of everyone are diminished when the rights of one man are threatened.’’, and stated further that, ‘‘race has no place in American life or law’’
After the assassination of J.F.K., the Office of President was occupied by Lyndon B. Johnson, the push for a color-blind society continued with the passage of the CRA of 1964, which was ex-tremely comprehensive legislation with all sections contained in the act specifically prohibiting discrimination of a person on the basis of race, color, gender, etc.; other than the inclusion of gender, the act did no more than fortify existing CRA’s and was in total compliance with the Constitution conforming to the principle of a color-blind society; however, L.B.J. established procedures insisting that a concerted
