November 15, 2012

"Michigan’s ban on affirmative action in college admissions was declared unconstitutional Thursday..."

"... by a deeply divided federal appeals court, six years after state voters said race could not be an issue in choosing students."
In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action....

79 comments:

EMD said...

presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action....

And the opponents of the opponents had no burden in the first place?

BarryD said...

WTF?

So according to this court, constitutional amendments are a priori unconstitutional?

KLDAVIS said...

Inconceivable. There was no burden on opponents save showing up at their polling place when the original measure was proposed. How was the burden any different for those who proposed, championed and benefit from the existing law? Isn't that what you'd need to show in order to sustain an Equal Protection argument? I'm finding it hard to imagine a circumstance under which SCOTUS doesn't reverse...

Bob Ellison said...

KLDAVIS: Scalia, Kennedy, or Thomas retires, and Obama appoints a dim liberal like Ginsberg. Problem solved!

Lem said...

In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say affirmative action now, affirmative action tomorrow, affirmative action forever.

Maguro said...

It's all very simple, really. Agrees with the liberal conventional wisdom = Constitutional. Disagrees with the liberal conventional wisdom = Unconsitutional.

Why not drop the legalistic pretense and have all these issues decided by the NYT editorial board? It would save everyone a lot of trouble.

kcom said...

"own long, expensive campaign through the ballot box to protect affirmative action"

So, is there an implicit assumption here that "protecting" affirmative action is an inherent good? Did they get that from divine revelation?

Bob Ellison said...

If the timing is right, maybe he just appoints himself. That tees up Biden for 2016, gives Obama a fun new career, and still leaves plenty of time for golf.

edutcher said...

The soft bigotry of low expectations.

Marshal said...

Reasoning so stupid only an intellectual could support it.

Lem said...

Expect Obamacare to create these kinds of conflicts x infinity +1.

Levi Starks said...

I fail to see how it's in the court's purview to predict how the losers will react/respond. Perhaps they would accept the decision. What the court is really saying is "don't waste your time and money on us with a right leaning cause"

Eustace Chilke said...

Wasn't presenting an extraordinary burden sort of the point?

Sounds like saying that you can't outlaw something because that would be outlawing it.

Revenant said...

The ban on institutional racism is unconstitutional because it makes it really difficult for people to have the government practice institutional racism.

It must be nice to be a lawyer. Such nice wages without the burden of having to deal with reality in any apparent way.

chuck said...

Ha, ha. This is why people don't take the courts seriously any more. The law is what some judge wants it to be, no more, no less, there is no greater foundation on which it rests. It is no more than whim and eccentricity.

David said...

Summary: It's unconstitutional for a state's constitution to ban racial preferences.

Lem said...

I have a shorter one...

Its a goof thing Obama won... because Romney would have been unconstitutional.

Pogo said...

The law is bullshit at the state and federal levels.

All of our institutions are now meaningless, the courts, the legislature, elections, all of it.

Ad hoc postmodern caprice in judicial drag.

DADvocate said...

A complete lack of logic there. Guess where they learned that at.

Lem said...

Oops, I goofed... I meant to say Its a good thing Obama won... which of course it wasn't a good thing.

Knowwhatimean?

Lem said...

Ad hoc postmodern caprice in judicial drag.

Lenin linen

AJ Lynch said...

Dadvocate:

Heh. Libruls don't do logic or math or balance the govt checkbooks.

Paul said...

So it's constitutional to discriminate!

And Obama won't nominate just any dim liberal.. he'll nominate Biden! Dimist bulb of them all!

virgil xenophon said...

We now have a Government of Men, not Laws. AVANTI!

CWJ said...

What Chuck said at 8:30.

I hate to agree with this, but I think this conclusion is inescapable and has been for quite some time.

n.n said...
This comment has been removed by the author.
Dante said...

Ann, please help us retards to understand how AA can be constitutional. Here it is:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It's pretty clear, isn't it? You can't adopt laws that aren't uniformly applied. The federal government can't do it, and the states can't do it.

Steve Koch said...

No justice, no peace. Dem judges need to be taught to obey the law, they cannot be permitted to get away with this tyranny because it is ruining our democracy.

The three most important issues for any American are the rescue of our democracy and economy and preserving our ability to defend ourselves as a country. Everything else, like gay marriage and abortion, for example, is waaay less important.

n.n said...

Are they referring to the American constitution? The one which guarantees equal protection of law to every American citizen?

They never did qualify "progress". Apparently, it is unambiguously negative.

I have a theory about this retrogressive behavior. I surmise that the people and their descendents who conducted slavery and discrimination, having lost the white majority vote following the human and civil rights movements, are now pursuing a vindictive agenda to punish the descendents of their mortal enemies.

Redistributive and retributive change... revenge!

America has really suffered under progressive corruption.

Pogo said...

This makes me conclude that Lincoln was a fool.

mrkwong said...

If that is a reasonable summary of the ruling, then we need to invalidate Obama's reelection because it represented an unreasonable burden to try to get him out.

Of course, then we'd have to invalidate the election of whoever replaced him on the same grounds.

And pretty much every other electoral contest above the level of dog catcher.

In our little California suburb we have a city councilman whose (successful) campaign cost him $25 a vote.

Mark O said...

Have I mentioned that I’m part Cherokee? The horse told me so. I demand reparations. Pay up Whitety.

BarryD said...

"In our little California suburb we have a city councilman whose (successful) campaign cost him $25 a vote."

What did you do with your check?

n.n said...

Steve Koch:

Not really. The union of homosexual couplets are certainly less important. Even if sanctioning their relationship does serve to normalize a dysfunctional behavior, it only becomes a critical concern when adopted by a critical mass of the population. However, the elective termination of innocent human life for reasons of welfare or livelihood is murder. It is developing human life, biologically from conception, and consciously from around the first month. The normalization of premeditated murder serves to devalue human life. It is even a greater violation of evolutionary fitness than the normalization of other dysfunctional behaviors.

The most important issue for our republic is to mitigate the progression of corruption. This is principally due to policies which promote a dissociation of risk to individuals and cooperatives. From the richest to poorest, this is the cause of the periodic crises we suffer. The feedback mechanism which keeps honest people honest and others from running amuck has been subverted.

EDH said...

"We are through the looking glass, people."

Rob said...

Good Lord, what hogwash. I am ashamed of my profession.

Tim said...

In Barack Obama's America, the courts make no fucking sense.

The capricious and political rule over all, but most especially rule over reason.

America's best days?

In the rear view mirror.

Gabriel Hanna said...

Constitutions are magic parchments that dispense justice. Anything unjust or unfair is automatically unconstitutional, no matter what the parchment actually says. So there's no point in rewriting it. Anything unfair or unjust is legally invalid, thanks to the magic in the parchment.

Gay marriage, full civil rights, and women's suffrage were in there the whole time, and the people who wrote the laws, executed them, and lived under them had no idea. It was never necessary to make amendments. Our generation sees with clear sight the answers to moral questions that never even asked until recently.

Freeman Hunt said...

"I hate lawyers."
"That's unfair."
"Oh, no it isn't."
"Why do you hate them then?"

And the first guy will point to this, among other things.

Gabriel Hanna said...

This is not the first time that a court has held a constitutional amendment to be unconstitutional. We all know about Proposition 8 in California. Earlier than that, I think it was Nevada, an amendment required a supermajority to pass budgets. The supreme court of that state noted that the preamble to the state constitution directed the sate to fund public education. The court ruled that since the budget didn't pass, that education was not at the moment being funded, and so they ordered that the budget be legally in effect.

But of course if an amendment conflicts with something written earlier--which was obviously not the case here--then it supersedes it. If all courts followed this logic, the 13th Amendment would be invalid because the earlier Constitution explicitly allowed slavery.

This type of ruling is logically invalid, as well as a danger to the rule of law. It means no check whatever on judges, since any amendment they don't like they will declare invalid.

Gabriel Hanna said...

In my opinion the scariest bug in the Constitution is this:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

MikeinAppalachia said...

Just read the bio of Judge Cole, writing for the majority, and it will become clear.

mikee said...

I just came back from reading the decision by the court. I am numb with amazement at the contortions required to achieve the decision of the majority.

Equal protection under the law no, and apparently forever more, requires racial discrimination by the state.

mikee said...

I just came back from reading the decision by the court. I am numb with amazement at the contortions required to achieve the decision of the majority.

Equal protection under the law no, and apparently forever more, requires racial discrimination by the state.

Gabriel Hanna said...

@Dante:You can't adopt laws that aren't uniformly applied.

Then why did we need a constitutional amendment to give women the vote?

Why can't you be President if you are under 35, or drink if you are under 21, or vote if you are under 18 or a felon?

"Equal protection of the laws" simply does not mean what you want it to mean. The laws extend privileges to some, and deny them to others, all the time, and always have.

Chip S. said...

Did Ashton Kutcher jump out from behind a curtain after this was read?

When do they release the real decision?

Leit Bart said...
This comment has been removed by the author.
Lawyer Mom said...

Fairness, like beauty, is in the eyes of the beholder. So who shall be the beholders? Who shall be the beholden?

Eric said...

This makes me conclude that Lincoln was a fool.

But not Jackson.

Eric said...

Fairness, like beauty, is in the eyes of the beholder. So who shall be the beholders? Who shall be the beholden?

That's why courts are supposed to interpret the constitution as written and not impose their own version of fairness on the rest of us.

fivewheels said...

soft bigotry of low expectations

I really never liked the word "soft" being in there. Better without.

Carl said...

War Is Peace
Freedom is Slavery
Prohibitions on Discrimination are Discriminatory

Yep, fits right in.

You wonder sometimes: did Roger Taney, dying in miserable poverty, contemptuously ignored by both North and South, his reputation shattered, ever think towards the end...gee, maybe I shouldn't have been quite so clever? Maybe there's something to be said for not outraging the common sense of the people...?

Steve Koch said...

n.n:

I agree about the importance of fighting corruption.

Abortion is not as important as preserving democracy as defined by our constitution. In fact, abortion rights were undemocratically imposed in the USA by the Supreme Court. Had a democratic process been followed (i.e. by voting for/against abortion rights at the state level), there would surely be less abortion rights than is now the case.

The most important issue to me is restoring government as defined by the constitution. This would mean a much smaller, cheaper, weaker federal government (with the vast majority of laws being made at the state level)and much weaker prez. It would mean a non activist judiciary that just performed the simple technical function of making sure that laws conform to the constitution.

Lefties don't understand that political power is a zero sum game, as the federal gov gets more powerful, individual citizens lose power and freedom. They don't understand how close we are to losing our democracy.

Lefties are proud that they can win elections by bribery (affirmative action for blacks, hispanics, and women and welfare) and cheating. To them winning is all that matters. That is nothing to be proud of. All democracies die sooner or later. Our democracy is not healthy. The left has marched through our institutions and corrupted them. Institutions like the news media, entertainment media, academia, k through 12 teachers, our judicial system, our government employees, etc. that should be helping our democracy stay on track are now corrupt dem propaganda organs.

A common way to kill a democracy is to create a political party comprised of rent seekers who extract wealth or concessions from the fed gov. Sounds like the democrat party, right?

Once the corrupt political party has enough members to win almost all elections, the country is no longer democratic. There is no such thing as a one party democracy. A one party "democracy" is a dictatorship.

Affirmative action is just a mechanism that the dems use to buy votes. Affirmative action is inherently corrupt and is destroying our democracy.

DEEBEE said...

So let's see a later constiutional amendment has to be filtered through the touchstone of previous amendments.
Sort of a strange argument for people who believe that the constituion is a living document.

Hassell Anderson said...

The Ministry of Truth has chosen.

Hassell Anderson said...

kcom said...

So, is there an implicit assumption here that "protecting" affirmative action is an inherent good?

What is good? What does this word mean?

Affirmative is neither good nor bad. Affirmative action is Truth.

Hassell Anderson said...

This case will go to the Supreme Court. Justice Winston - ooops, I mean Roberts - will write the majority opinion upholding the appeals court decision on the basis that affirmative action is a tax. It is a tax to be paid by white people in perpetuity as penalty for the sins of commission of their ancestors, and their own original sin of whiteness.

Whiteness is the 8th Deadly Sin. Affirmative action is the sin tax. The Ministry of Truth has chosen.

Few people can recall the first Seven Deadly Sins since Oceania achieved glorious victory in the War on Seven Deadly Sins back in the sixties.

Taxes from affirmative action will be used by government to subsidize the Seven Harmless Virtues recognized under Oceania's Bill of Rights.

Hassell Anderson said...

EMD said...

And the opponents of the opponents had no burden in the first place?

The opponents of the ban are under-privileged. The mission of government is to remedy under-privilegeness.

Supporters of the ban, as persons of non-color, are by definition privileged and racist. Except for Ward Connerly who is an Uncle Tom.

damikesc said...

So, if the people tried to end affirmative action the way this court says to do it...the court would rule it unconstitutional as well. Nice racket.

Rick67 said...

8-7? So MI's highest court has *15* justices? Sheesh.

Hassell Anderson said...

To all you people asking logical questions, you need to cast off your obsolete way of thinking written ages ago by long forgotten dead males of non-color. Your "logic" doesn't lead to Truth any more.

You need to learn the New Enlightenment written by Hero of the State Derrick Bell.

Marshal said...

More proof the law means whatever the lawyers say it means, and that lawyers believe their role is simply to decide how we should live.

I'd say this should be embarassing to those on the left, but who can honestly believe that? They don't care if 40% of the country realizes they've perverted the rule of law. As long as they maintain control of academia they'll be able to ensure those deciding how we live march further and further left.

Tank said...

I thought I took my multivitamin this morning, but, I guess someone switched in some LSD. Or maybe I did not wake up yet? Or this is from The Onion.

No wonder farce is dead.

Yechh. Another day to be ashamed to be a lawyer. And ashamed to be an American citizen, once a great country, but now....

DOOMED.

DEAD COUNTRY WALKING.

Who does not think this country is dead, but doesn't know it yet? Certainly, the America most of us loved is dead.

Well, la la la, gotta go see if my Obamaphone came today, use up some of my food stamps at the track, what else ???

X said...

what you have here is the court tacitly agreeing with the human bio diversity argument. who am I to disagree with these wise solons?

Bryan C said...

There's no need to grace the decision with logic. It's a clear demonstration of incompetence and corruption on the part of the court, and everything else follows. In cases like this the only solution is to simply ignore the ruling. Hey, if the President can do it, so can the rest of us.

SomeoneHasToSayIt said...

How embarrassing it must be to be a member of a Race that needs special help to qualify to get into higher education institutions.

X said...

why are the public universities still playing gatekeeper as though bricks and mortar limit how many can learn?

the real way to avoid this is for the public universities to fulfill their mission to the state's taxpayers and provide education for all who seek it.

if they refuse to do that, then the states need to look at spending the taxpayers money on a public university that will.

Steven said...

I dunno, looks like a relatively short hop from Romer v. Evans to me. If laws to do X are constitutional under the US Constitution, and laws to do X are desired by a minority group, it is unconstitutional to have the state constitution ban laws to do X, because it shows animus to the minority group.

McGehee said...

Was this 8-7 ruling what passes for an en banc hearing on this circuit, or is that still an option before SCOTUS?

Peter said...

That burden “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change”

Well, at least the Court didn't claim that the Equal Protection Clause requires government to treat citizens unequally (in college admissions or elsewhere) because of race.

Apparently it only requires that citizens be treated unequally because of their political views.

Dante said...

Why can't you be President if you are under 35, or drink if you are under 21, or vote if you are under 18 or a felon?

Because it applies equally to all persons. No one under 35 can be president. No one who became a felon can vote. All you have to be is a person.

Obviously, at that time, they did not think of women as persons. Maybe beautiful vessels of warmth, caring, and giving. Who knows.

Sam L. said...

As those who opposed it had to do. Fair's fair.

Strelnikov said...

Seems fair. Why should local governments be allowed to ban preferential treatment to members of certain groups based solely on that membership? That's not the American Way. Equal protection for all, especially the ones we like.

Amartel said...

Wait, it's unconstitutional to inconvenience grievance-mongers now? I mean, I know that was the unspoken rule before but now it's express?

Strelnikov said...

"Was this 8-7 ruling what passes for an en banc hearing on this circuit, or is that still an option before SCOTUS?"

This was the en banc hearing. Cases are heard and decided first by a three judge panel.

gutless said...

Is it any wonder that public institutions and especially the courts are held in such general contempt? Our masters are playing with fire. They think that civic stability is automatic and permanent. Look at history and then tell this is so.

gutless said...

Is it any wonder that public institutions and especially the courts are held in such general contempt? Our masters are playing with fire. They think that civic stability is automatic and permanent. Look at history and then tell this is so.

Rabel said...

Silly commenters. Resistance is futile. The people have spoken.

Within a few years, we will have a Supreme Court which fully understands the wise wisdom in this decision. And hopefully it will expand this reasoning to the twenty-second amendment which clearly places an undue burden on the right of a person of color to win the presidency.

Smilin' Jack said...

In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action....

But the good news is that the court also decided that the 14th Amendment to the U.S. constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect slavery.