Document Type

Article

Publication Title

Michigan Law Review

Abstract

I propose to outline in some detail the approach that I would take to these questions on the assumption that the only tools in the toolbox were the bare Constitutional text and a general appreciation of the Constitution as a classical liberal document, that is, that emphasizes limited government, strong protection of property rights and contractual freedoms, coupled with prohibitions against force and fraud on the one hand, and monopoly power on the other. Many people would assume, wrongly, that this systematic view of the Constitution leads to an invalidation of all affirmative action programs. But I believe that the sounder implications run in the opposite direction. Within this framework, I believe that both district courts and the Sixth Circuit went off the rails when in common they held that the right question only asks how to apply the strict scrutiny test to the Michigan affirmative action program. I believe that this is the wrong standard of judicial review, one which should be abandoned in favor of a more flexible standard that measures the constitutionality of the Michigan program by comparing it with the practices done by private, competitive institutions on a voluntary basis. Using that standard, my ultimate conclusion is that the University of Michigan, acting on its own initiative (a qualification that matters), is within its rights under the Constitution to establish an affirmative action program, however wise or foolish its decision. To many individuals that position seems out of character with my reputation for being "conservative" on various issues of social policy. But the label "conservative" often elides differences between social conservatives on the one hand and individuals like myself that work within the classical liberal tradition. Within that tradition, I shall outline. the set of beliefs that leads me to this conclusion. The path will, however, both zig and zag. My first order of business is to indicate why the claims for affirmative action fail under the current law so long as it requires the state to produce some form of compelling state interest test to justify affirmative action programs. My second order of business is to explain how I think that the law should be restructured so as to permit the use of affirmative action programs in public universities.

First Page

2036

DOI

https://doi.org/10.2307/1290433

Volume

100

Publication Date

2002

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