November 4, 2014

Democracy, distrust, and the Schuette dissent

By Wen Fa Attorney

Today is Election Day. As Justice Sotomayor noted in her dissent in Schuette v. BAMN, “we are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do.” That’s absolutely right, but it makes the rest of the dissent so much more puzzling.

Race matters, the dissent goes on to say, and so the government should be able to make race-based decisions without so much supervision from the judicial branch. But that statement is wholly inconsistent with Supreme Court precedent subjecting all racial classifications to strict scrutiny, the most stringent form of judicial review. In short, the Supreme Court has said that “race matters” means it should be harder, not easier, for the government to pass laws distributing burdens and benefits on the basis of race.

It could hardly be otherwise. People are groupish. That’s why most political debates are discussed, not in terms of “me versus you,” but “us versus them.” Government programs distributing burdens and benefits on the basis of race usually make the “us” and “them” two different racial groups. This is divisive for those who want us to live as one people rather than separate groups, suffocating for those who want to define themselves solely by the content of their character, and wrong for a country guided by the principle that all should receive equal protection of the laws.

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