Policy, principle, and incrementalism: Dworkin's jurisprudence of race

Journal of Ethics

Volumn 5, Issue 3, 2001, Pages 241-262

  Altman, Andrew ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

Affirmative action; Civil rights; Equal protection clause; Incrementalism; Liberalism; Racism; Social science

Indexed keywords

EID: 33847000300     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1023/A:1012759302085     Document Type: Article

References (49)

1. Although affirmative action policies typically involve gender as well as race, the main concern of this article and of Dworkin's work on affirmative action is with race. The idea of race has been subjected to devastating criticism going as far back as the early twentieth century. But many people still think in terms of the discredited biological concept of race and distinguish it from the cultural concept of ethnicity. Accordingly, my use of "race" and its cognates should be understood to refer to this pervasive mindset but not to endorse its conceptual basis. Moreover, my use of the term "minority" should be understood to refer to a group that has been historically disadvantaged by unjust social practices and institutions.
2. Alexander Bickel, The Morality of Consent (New Haven: Yale University Press, 1975), pp. 132-133.
3. Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), pp. 223-224. The Court did not issue a ruling in DeFunis, on the ground that the case had become moot.
4. Former U.S. President Richard Nixon used the affirmative action issue to split the liberal coalition. By the 1980's support for affirmative action became a definitive part of the agenda of a shrunken liberal coalition, even though there have always been those on the left skeptical of the policy. For the story of former President Nixon and affirmative action, see John David Skrentny, The Ironies of Affirmative Action (Chicago: University of Chicago Press, 1996).
5. The distinction between arguments of principle and those of policy has long been central to Dworkin's thought. The former are arguments based on individual rights, while the latter are based on claims about consequences for the general good. The idea of the general good here is to be construed broadly to include not only consequences for happiness or pleasure (i.e., utility) but also those that concern some moral or political ideal.
6. The study is William G. Bowen and Derek Bok, The Shape of the River (Princeton: Princeton University Press, 1998). I agree with Dworkin that the rights-based argument for colorblindness fails and will not go over that ground in detail in this paper.
7. The clause reads: "... nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws."
8. Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), p. 395.
9. " Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985), p. 298.
10. Dworkin, A Matter of Principle, p. 302.
11. Dworkin, A Matter of Principle, p. 301.
12. Dworkin agrees that in some instances affirmative action may be rightly suspected of an undue preference for the interests of racial minorities. See Ronald Dworkin, "Is Affirmative Action Doomed?" New York Review of Books (Nov. 5, 1998), pp. 59-60.
13. See Dworkin, Law's Empire, p. 386.
14. Dworkin, A Matter of Principle, p. 294.
15. Dworkin, "Is Affirmative Action Doomed?," p. 60. The curse is the exclusion of minorities from leading positions and the attendant sense of racial frustration and injustice.
16. Bowen and Bok, The Shape of the River, p. 298.
17. Bowen and Bok, The Shape of the River, p. xxiv. Bowen is former president of Princeton University and Bok of Harvard University.
18. Bowen and Bok, The Shape of the River, p. xxvi.
19. Bowen and Bok, The Shape of the River, p. 290.
20. Ronald Dworkin, "Affirming Affirmative Action," New York Review of Books (October 22, 1998), p. 102.
21. Dworkin, "Affirming Affirmative Action," p. 95.
22. Bowen and Bok, The Shape of the River, pp. 37-38. The evidence on test scores comes from an analysis of law school admissions made by Linda Wightman.
23. Dworkin is on shaky ground in citing the Bowen-Bok study to undercut claims that affirmative action has bred considerable resentment and anger among whites. The white students who apply to selective colleges are hardly a representative sample of the white population and even those who have been rejected by their "first choice" may well be much more inclined to support affirmative action as a matter of personal political belief than the white population as a whole.
24. Bowen and Bok, The Shape of the River, pp. 270-271. The study also points out the pitfalls of "colorblind" admissions policies like the one adopted by the state of Texas in which any student graduating in the top 10% of her high school class is automatically admitted to any of the schools that are part of the state system (see pp. 271-274). Such policies are, of course, only facially colorblind: the disproportionate benefit they give to minorities (due to de facto segregation of many public schools) is well known and the major reason for their adoption.
25. Bowen and Bok, The Shape of the River, p. 282.
26. Dworkin, "Affirming Affirmative Action," p. 102.
27. Roberto Unger, What Should Legal Analysis Become? (London: Verso, 1996), p. 52. But see footnotes 28 and 32 below.
28. One can consistently endorse incrementalism with respect to certain policy matters, while arguing that other policy questions call for a more broad-scale approach. Indeed, the other policy questions may be systematically connected to the policies with which one recommends incrementalism. For example, one can consistently argue that affirmative action should be approached incrementally and also call for broad changes in the rules of our economic and political institutions. Those broad changes need not involve any kind of race-conscious policies; they could, for example, be changes in the U.S. election system to something more akin to a European style party-list system of proportional representation. Such a change could well have important effects on the political power of racial minorities and even be undertaken in part for those reasons [see Lani Guinier, The Tyranny of the Majority (New York: Free Press, 1994)].
29. A classic defense of incrementalist policymaking is Charles E. Lindblom, "The Science of Muddling Through," in A. Faludi (ed.), A Reader in Planning Theory (New York: Pergamon Press, 1973), pp. 151-169.
30. Cf. Cass Sunstein and Edna Ullmann-Magalit, "Second-Order Decisions," Ethics 110 (1999), p. 8.
31. Some advocates of colorblindness argue that it is needed to form a viable, liberal political coalition that could then effectively attack issues of poverty and economic inequality. Such an attack, they claim, would do more to help minorities than affirmative action. See, e.g., Paul M. Sniderman and Edward G. Carmines, Reaching Beyond Race (Cambridge: Harvard University Press, 1997). But Sniderman and Carmines do not take account of the strong opposition to the dismantling of affirmative action among black and Hispanic political leaders and activist organizations. That opposition would almost certainly kill their colorblind, liberal coalition. Moreover, even by their own studies, affirmative action can gain 42% support among whites if it is justified on the basis of universal principles (see p. 128). Dworkin's argument fits their definition of such a justification, since it appeals to the general good of society.
32. Similar objections apply to Roberto Unger's radical critique of affirmative action, though he is quite unclear as to whether he would abandon race-conscious policies forthwith, as part of his program for tinkering with society's institutional structure. See Unger, What Should Legal Analysis Become?, pp. 93-98.
33. The idea of structural discrimination goes back at least to Stokely Carmichael and Charles V. Hamilton, Black Power (New York: Vintage, 1967). They called it "institutional discrimination."
34. Ronald Dworkin, Freedom's Law (Cambridge: Harvard University Press, 1996), p. 155.
35. Dworkin, "Affirming Affirmative Action," p. 101.
36. Dworkin, Freedom's Law, p. 155.
37. It is important to note that a right that government act against structural discrimination can still be an individual right even though it is shared by a certain class of individuals in virtue of some common characteristic, viz., that they are being denied equal citizenship on account of their race.
38. See, e.g., Colin Diver, "The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions," Virginia Law Review 65 (1979), p. 43.
39. For a defense of institutional reform litigation, see Abram Chayes, "Public Law Litigation and the Burger Court," Harvard Law Review 96 (1982), pp. 4-60.
40. Cf. Lawrence Sager, "Fair Measure: The Legal Status of Underenforced Constitutional Norms," Harvard Law Review 91 (1978), p. 1239.
41. Dworkin does reject the legal realist view that the existence of legal rights and obligations is simply a function of whether courts enforce them. But my suggestion is that there are (implications of) valid legal norms that should not be judicially enforced, and it's not clear that he would go along with that.
42. Dworkin, "Is Affirmative Action Doomed?," p. 60.
43. Cf. George Sher, "Diversity," Philosophy and Public Affairs 28 (1999), pp. 85-104.
44. See J.B. Schneewind, The Invention of Autonomy (Cambridge: Cambridge University Press, 1998), pp. 79 and 132-133.
45. Also see Sager's discussion of judicially underenforced constitutional norms in "Fair Measure," pp. 1212-1264.
46. Such precedents include City of Richmond v. J.A. Croson Company 488 U.S. 469 (1989) and Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Also, potentially troublesome is the Court's reading of the Fourteenth Amendement in City of Boerne v. Flores, 521 U.S. 507 (1997).
47. The right is qualified in that the Court permits official race conscious policies when they are narrowly tailored to promote some compelling interest. The current debate is over the scope of this qualification, and Dworkin has argued that the scope is broader than it may initially seem. See "Is Affirmative Action Doomed?"
48. Dworkin, "Is Affirmative Action Doomed?"
49. Dworkin, A Matter of Principle, p. 71.