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The Constitutional Logic of Affirmative Action
- Author(s): Ronald J. Fiscus
- Editor(s): Stephen L. Wasby
- Contributor(s): Stanley Fish
- Pages: 176
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- Contents
Foreword by Stanley Fish
Editor’s Preface
Author’s PrefaceIntroduction
1. The Central Argument
The Meaning of Racial Correlations Given Nonracist Assumptions and Original Positions
Of Molecules and Mobility
Required Assumptions and the Court
Race and Cultural Ethnicity Distinguished
2. The Innocent Persons Argument ExaminedThe Innocent Persons Show to Be Guilty When Claiming Proportional Set-Aside Positions
The Innocent Persons Argument and the Court
The Misplaced Emphasis on Innocence and Blame
3. Proportionate and Disproportionate Quotas: The Key DistinctionFormalism
Entitlement
The Supreme Court and the Proportionality Principle
Related Constitutional Arguments
Scholarly Comment and the Proportionality Principle: Ronald Dworkin and the Rights of Whites
4. Applying the Principles: The Supreme Court and Affirmative ActionIn General
Local versus National Standards
Applicant versus Labor Pool
The Complications of Seniority and Repeat Applications in Hiring and Promotions
Seniority, Repeat Applications, and Layoffs: The Stotts Case Revisited
Epilogue
Notes
Table of Cases
Index
- Contents
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- Stanley Fish
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from the foreword:
“At a time when the mere mention of quotas sends politicians of all stripes running for cover, it is remarkable to see someone looking at the crowd calmly, and making distinctions which show that, like anything else, quotas can be well used or used in ways that are unjust.”—Stanley Fish, Duke University
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Description
Few issues are as mired in rhetoric and controversy as affirmative action. This is certainly no less true now as when Ronald J. Fiscus’s The Constitutional Logic of Affirmative Action was first published in 1992. The controversy has, perhaps, become more charged over the past few years. With this compelling and rigorously reasoned argument for a constitutional rationale of affirmative action, Fiscus clarifies the moral and legal ramifications of this complex subject and presents an important view in the context of the ongoing debate.
Beginning with a distinction drawn between principles of compensatory and distributive justice, Fiscus argues that the former, although often the basis for judgments made in individual discrimination cases, cannot sufficiently justify broad programs of affirmative action. Only a theory of distributive justice, one that assumes minorities have a right to what they would have gained proportionally in a nonracist society, can persuasively provide that justification. On this basis, the author argues in favor of proportional racial quotas—and challenges the charge of “reverse discrimination” raised in protest in the name of the “innocent victims” of affirmative action—as an action necessary to approach the goals of fairness and equality.
The Constitutional Logic of Affirmative Action focuses on Supreme Court affirmative action rulings from Bakke (1976) to Croson (1989) and includes an epilogue by editor Stephen L. Wasby that considers developments through 1995. General readers concerned with racial justice, affirmative action, and public policy, as well as legal specialists and constitutional scholars will find Fiscus’s argument passionate, balanced, and persuasive.About The Author(s)
Ronald J. Fiscus was Assistant Professor of Political Science at Skidmore College until his death in 1990. Stephen L. Wasby is Professor of Political Science at the State University of New York, Albany.
Ronald J. Fiscus was Assistant Professor of Political Science at Skidmore College until his death in 1990. Stephen L. Wasby is Professor of Political Science at the State University of New York, Albany.