By Paul Weiser
In "Sellout: The Politics of Racial Betrayal" Randall Kennedy conducts a grudging, rambling semi-exoneration of Supreme Court justice Clarence Thomas... but along the way raises one notable argument. That it ultimately proves utterly false and futile makes it no less important to understand.
In order to attack Justice Thomas' premise that the Constitution (specifically its Amendment XIV) forbids all unequal treatment on the basis of race, Kennedy asserts that while unfavorable treatment of individuals on account of race is indeed forbidden, favorable treatment is not. He bases this attempted rehabilitation of "affirmative action" and "diversity" quotas on two lines of argument.
The first is semantic, contending that favoring one among otherwise equally treated groups is not inherently unequal treatment. Though rhetorically titillating, it's an obvious logical nullity: better is not equal just as worse is not equal.
More interesting, though equally futile, is Kennedy's appeal to "original intent." He correctly points out that the Reconstruction Congress proved willing to favor former (black) slaves over former (white) rebels and built a structure of Freedman's Bureaus to effect this prejudice - complete with occupying armies and legal disabilities denying ex-Confederates the vote. He even finds a Supreme Court decision from the late nineteenth century which seems to say (out of context) that only disfavoring treatment is unconstitutional. But he is then forced to concede, in a footnote, that the same opinion explicitly holds favorable treatment equally in violation of the Amendment's requirement for equality.
Kennedy's purpose is, naturally, to provide cover for racial bias in the form of college "diversity" quotas and the like (as well as damning Clarence Thomas as wrong while regretfully denying that he's a "sellout" to his race). He fails every object except the very last - but alerts us to another liberal fallacy and its antidote.
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