https://tomklingenstein.com/the-rise-of-the-civil-rights-constitution/
Editor’s Note: We cannot forget that the group quota regime is just that: not merely an ideology but a proper regime, a civilizational and constitutional rival to the American regime. It has its own legal and organizing principles, which directly challenge those of our own Constitution. These operating principles of the group quota regime have long been taking hold in our society and in our governing institutions.
Jesse Merriam, a legal and political philosopher, recently joined Tom Klingenstein to discuss that quiet revolution: its roots, its current state, and the possibility for reform. This transcript has been edited for length and clarity.
TK: Welcome Jesse Merriam. Jesse is an associate professor of government at Patrick Henry College and a research fellow at the Claremont Institute’s Center for the American Way of Life. Jesse holds a J.D. from George Washington University Law School and a Ph.D. in judicial politics and legal philosophy from Johns Hopkins University.
JM: It’s good to be with you.
TK: Jesse, you are a man of controversy. Among your controversial opinions are:
The legal conservative movement has been much less successful than most conservatives believe.
Diversity and anti-discrimination are the twin pillars of today’s Constitution which makes it fair to say that today America operates under the Civil Rights Constitution.
We should revive, to a degree, freedom of association, which you believe to be a right necessary for self-governance.
The Federalist Society, despite notable successes, has not provided what the legal conservative movement needs to be successful.
Originalism has not, as intended, advanced a distinctly conservative agenda.
The recent Supreme Court affirmative action decisions are not likely to reduce affirmative action by very much.
Harvard and Affirmative Action
TK: Let’s take the last claim first. My impression is that most analysts think that the recent UNC and Harvard affirmative action decisions will have a much greater impact than you do. Why are you so skeptical?
JM: My skepticism boils down to three reasons. One reason has to do with the unique status of affirmative action. We can understand this uniqueness in terms of both law and policy. Affirmative action law is unique in the sense that, since the civil rights revolution, affirmative action is the only type of governmental discrimination based on race that the Supreme Court has permitted. Affirmative action is also unique in American policy in that it is the only public program in all of American history—to my knowledge at least—that has expanded in breadth and strengthened in force in the face of growing resistance from the American people, state legislatures, and federal courts.