George F. Will: A 'Wonderland' moment for the court

Published: October 13, 2013
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“'When I use a word,' Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.'”

— Lewis Carroll, “Through the Looking Glass”

The marble friezes above the Supreme Court chamber depict 18 great lawgivers, including Moses, Solomon, King John and William Blackstone. Come Tuesday, as the bemused — or so one hopes — justices listen to oral arguments in a case from Michigan, they might wonder why Lewis Carroll is not included. He would have relished the Alice-in-Wonderland argument the justices will hear, which is as follows.

Although the U.S. Constitution's 14th Amendment says “No state shall … deny to any person within its jurisdiction the equal protection of the laws,” the following provision of Michigan's constitution violates the Equal Protection guarantee: No public university, college or school district may “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Yes, in Tuesday's Through-the-Looking-Glass moment, the court will be urged to declare that Michigan's ban on unequal treatment violates the U.S. Constitution's Equal Protection clause. The U.S. Court of Appeals for the Sixth Circuit — divided 8-7, with five dissents — has said just that, citing what is called the “political-restructuring doctrine.”

The argument is that when, in 2006, Michigan voters put in the state's constitution the ban against racial preferences in higher education, this complicated the task of those Michiganders who want to institute racial preferences. Instead of just lobbying the admissions officials of the state's educational institutions, they must first mount a statewide campaign to amend Michigan's constitution. The Supreme Court, however, has hitherto applied the political-restructuring doctrine only against laws that change a political process in ways that diminish protection against unequal treatment, not to prevent laws granting preferential treatment.

Could there be a “political-restructuring” objection to the First Amendment? Because it proscribes “establishment of religion,” people who favor an established church cannot simply lobby Congress to create this, they first must undertake the burdensome task of amending the Constitution. So, is the First Amendment a constitutionally dubious restructuring of the nation's political process?

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