Affirmative Action and its Constitutionality

  Near the end of Whiteness as Property, Harris brings up different cases on Affirmative Action to show the inconsistencies behind supreme court justices arguments against Affirmative Action. The courts concluded “race-conscious remedial measures are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment” (Harris 1767). Harris believes this conclusion stems from the court rationalizing these arguments with the beliefs that white people have expectations and benefits that shouldn’t be “taken” away through these policies. 

She provides supreme court case examples which undergo different reviews. One of these is extending the strict scrutiny review for whites, which Harris states “is a further legitimation of whiteness as identity, status, and property” (Harris 1775). She further states that extending the strict scrutiny review for whites is wrong since it's in place to protect disadvantaged groups who have been subordinated by white supremacy. Harris uses this example to show the way the legal system views whiteness, and continues upholding this injustice.

    If the 14th amendment was put in place to grant African Americans citizenship and equal protection, then how are these modern court ruling representative of this amendment? It seems these rulings in these court cases don’t embody the idea that we should be providing everyone with equal protection. By doing so we should be remediating past laws that have put blacks at a severe disadvantage. Now, rather than fixing these laws, people have chosen stances like neutrality or colorblindness. However, these stances will not fix these disadvantages. Affirmative action can help alleviate these disadvantages by “evening out the playing field.” Harris believes we have this social responsibility to dismantle white supremacy, and thus through legal action can change the way we see whiteness as property. Affirmative action will “de-legitimate the property interest in whiteness… by equalizing treatment among the groups that have been illegitimately privileged or unfairly subordinated by racial stratification” (Harris 1780). 

    Now, we must understand if Affirmative Action is constitutional. Affirmative action is based on principles of anti subordination, so the removal of white privilege would be with the ideology of subordination (Harris 1785). There would be more subordination involved with this policy. So, the ideology and aim of this policy is not to violate the 14th amendment. By implementing these policies, Harris believes we can “create a property interest in true equal opportunity” (Harris 1786). By doing so, no one will be deprived of their property, or be in an unequal circumstance. Thus affirmative action would not be unconstitutional, however, the question on the quality of these types of policies will require further examination.

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