ACLU’s Challenge to Proposition 209

* Ramona Ripston’s comments (Commentary, Nov. 24) decrying majority tyranny are almost identical to the language the ACLU used to defend Prop. 1, the antibusing initiative a decade and a half ago, and very similar to its rationale concerning the Bakke case a few years later. In both situations the ACLU took its lumps before the Supreme Court.

Fifty years ago, Winston Churchill framed the dynamics of such controversies in front of the House of Commons: “At the bottom of all tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper. No amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.” Although suffrage has since widened the voting population, and computer chips have replaced pencils, it’s still true that he/she who holds the most pencils wins.

For all its professed allegiance to the Bill of Rights, the ACLU still doesn’t understand the difference between a mob and a democratic majority.




* In an attempt to rationalize judicial usurpation of the democratic process by the overturning of Prop. 209, Ripston states that in the American system of government “the power of even a democratic majority must be limited to ensure individual rights.” True enough, but she shrewdly and purposely forgets the second half of what is termed the “Madisonian Dilemma” in constitutional theory: How do we protect the rights of the majority against the rights of a vocal and vociferous minority?




* Jesse Jackson far exceeds his liberal cohorts in the ability to compress his confusions and contradictions into a limited space. In his piece “Civil Rights Unravel on Clinton’s Watch” (Commentary, Nov. 24), Jackson laments the recent passage of Prop. 209 because it was “premised on the assumption that we already have achieved a color- and gender-blind society.” How strange! If conservatives really believed that we have achieved a color- and gender-blind society, surely then there are more pressing issues than preserving the “status quo.”

No one in support of Prop. 209, to the best of my knowledge, ever made the claim that racial discrimination is extinct. They did, however, argue that race discrimination is unconstitutional because it violates the principle of equality under the law. As such, racial discrimination should be eliminated from the operations of government.

Jackson tells us to “act now to root out discriminatory practices.” But how better to root out discriminatory practices, at least in the public sector, than by passing a law that reads “The state shall not discriminate. . . ?