Affirmative Action

Many years ago, while reading a book about contract law I stumbled across a passage that I have never forgotten. In 1861, a British historian of laws named Henry Maine wrote that:

“…the movement of the progressive societies has hitherto been a movement from Status to Contract.”

His idea was that the whole evolution from medieval societies based on inherited personal status (aristocrat, cleric, guild-member or serf) to more modern societies based on individual freedoms could be traced in the movement of the law away from treating people as members of designated classes and toward seeing them as individuals who could make their own decisions – and enter into binding contracts among themselves – irrespective of their backgrounds. These shifts allowed the merchant classes to treat with the aristocracy, and eventually to surpass them in wealth. They also allowed people whose forbears had been serfs to find other opportunities to better their lots. Most of my forbears, I am confident, had been serfs.

In the 19th century, a liberal (from liber, the Latin word for free), was one who believed that people should be free. Freedom for individuals meant no slavery, freedom to choose a life for oneself, freedom to enter into binding contracts, freedom of speech, freedom of religion, etc. Now, it seems, a liberal is one who thinks stuff should be free and people should be told what to do.

In many ways, since President Nixon first instituted Affirmative Action in federal hiring, our society has been moving backward – away from Contract and toward Status – looking at people first as members of racial groups. These policies are sharply at variance with both our historic focus on individual rights and the most famous statement by Martin Luther King, Jr.:

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

Implicit in Dr. King’s statement were two vital points: this first is that his dream wasn’t yet real because at the time (1963) he knew that bigotry meant that his children would be seen by most white Americans as inferior. The second is that he wanted their skin color to be irrelevant in how they were judged; this second half is solidly in the 19th century liberal tradition of seeing people as individuals rather than as members of protected – or abused – classes.

There is a sense in which affirmative action (with the lower-case “a”s designating individual judgments rather than government-imposed policies) is only just. If one individual has traveled a much longer and harder road to reach a given point than another, the one who has traveled farther and arrived at the same time has shown more speed. So if an African-American child from an impoverished background does as well as my children on his SATs, he has plainly accomplished more than my children have, and should be chosen before them for advancement.

But at the same time, it is wrong to advantage the African-American child of a doctor or lawyer over, say, the “poor white trash” child from Appalachia.  If the scores of those two children are comparable, the latter has shown more grit and wit.

Moreover, if it is commonly understood that people of lesser intellectual quality are routinely advantaged by virtue of their membership in a particular group, all members of the advantaged group will be seen as being of suspect quality relative to their non-advantaged peers. So if lesser-qualified African-Americans routinely are admitted to law school or medical school, and are given professional positions based in significant part on the color of their skin, those African-Americans who would have earned their positions without those advantages will have it assumed of them that they only got their positions because of their skin color. So ironically, while Affirmative Action may economically advantage certain members of the African-American professional class, it probably furthers the old, bigoted stereotypes, and thus disadvantages the poor African-Americans who don’t enjoy its benefits.

Affirmative Action is the beginning of the creation of a racial spoils system that is more akin to the Indian caste system or the medieval class system than the traditional liberal – and American – vision of progress based on individual freedoms. In our society, we should treat all people as individuals, equally beloved of God and with equal rights before the law, not as members of one caste or another.


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