AFFIRMATIVE ACTION AS DOMESTIC, FOREIGN AND FOUNDATIONAL POLICY

Ted Everett

(SUNY Geneseo Philosophy Colloquium, April 1997)

Introduction

The issue of affirmative action has spawned a complex, often nasty debate over the past three decades. I will try to clarify this issue. I will certainly not resolve it. I will not even go so far as to take sides on the issue. My purpose, that is, is not to argue either for or against affirmative action itself, but rather against some current assumptions about the issue, and in favor of an alternative, clarified conception of the issue. If there is time, I may try to give both a clarified argument for affirmative action and a clarified argument against it. But my point is not to make a case for policy one way or the other. I will claim affirmative action is fundamentally like a proposed contract, between the United States and its institutions on the one hand, and a series of social entities that I will call semi-nations on the other. I am referring, of course, to American blacks, American women, etc. as these semi-nations - but not when they are viewed as internal social groups, the way they usually are viewed. Instead, I claim that it is their internal status, their status as parts of the United States or American society, that is precisely what is up for grabs in the debate over Affirmative action. That's why I call them semi-nations - to suggest the true metaphysical situation that I think underlies this issue (and several related ones as well). Affirmative action will turn out, on my view, not to be a matter of domestic policy, properly speaking, precisely because the domesticity, the internality, the inclusion of blacks and certain other groups in our society cannot be taken for granted with respect to this debate. The issue is not one of foreign policy either, I claim, for the similar reason that the separateness or non-inclusion of these social entities cannot be taken for granted either, (although this view - the foreign policy view - is actually closer to the mark, I think). What I will be saying instead is that the issue of Affirmative action is a matter of foundational policy, i.e. a matter where the underlying metaphysical relationships (I mean relations of identity, distinctness and overlap) between social entities are themselves what is to be decided.

I do not know how original this idea is - just that I myself have not thought of it before, or seen anything about it (and I watch quite a lot of television). What I want to do is make a few suggestions toward a naive theory of foundational policy, by means of expanding very delicately on ordinary, liberal social contract theory, of the sort given by Locke in the Second Treatise of Government. This is not because I'm in love with Locke, or with social contract theory as a rule, exactly. (I do not really know what to think about it.) But it's a familiar way of talking, at least, and convenient for my purposes here.

The analysis of Affirmative action that I will end up with (in terms of foundational policy) is not a compromise between the two major existing views of the issue. It's a third thing. But my view is an intermediate, or moderate, one, in this way: According to me, Affirmative action turns out to be neither morally necessary (not something owed by whites to blacks, for example), nor morally impossible (e.g. on the grounds that it's intrinsically unfair). It's just a possible contract, or the moral equivalent of a contract. It may or may not be a good idea to have Affirmative action - but that's a matter of the contingent interests of the parties involved, not a matter of justice according to some deeper principle. This may seem odd. The whole nature of justice in foundational policy is actually a little odd, as I will try to show. If my basic picture here is right, it turns out that not only Affirmative action, but many other instances of what appears to be unfair social privilege, can in fact be justified perfectly well.

Three Arguments

Let me begin with a quick, roughshod analysis of the current debate as I see it: I'll discuss the major positive or motivational argument for each side, and the standard responses given by proponents of each to proponents of the other. The point of this is not to grind any axes of my own opinion; rather, just to show why the issue of Affirmative action as currently discussed is a muddle (or at least seems like a muddle to me). Then, you see, I get to rescue the situation by producing this third, allegedly new and non-muddled, way of looking at the issue. So then I'll do that, by giving an account of what I'm calling foundational policy, and then applying this account to Affirmative action. If there's time, again, I'll give a new argument for Affirmative action as foundational policy and also a new argument against it. And then, if there's still more time, I'd like to talk about some basic difficulties with this kind of analysis. But the main point, again - my main purpose here - is simply to present this suggestion for a new way of looking at the issue of Affirmative action. It's this picture of the issue that I really want to get across.

Consider these three arguments about Affirmative Action:

Historic Grievance Argument (HGA)

1. Blacks, etc. are suffering from (effects of) oppression.

2. US is (whites, etc. are) responsible for this suffering.

3. US is morally required to relieve this suffering by the most effective practicable means.

4. AA is the most effective practicable means of relieving this suffering.

5. AA is morally required.

Reverse Discrimination Argument (RDA)

1. AA entails racial, etc. preference.

2. Preference is discrimination.

3. AA entails discrimination.

4. USC + CRA prohibits discrimination.

5. USC + CRA prohibits AA.

6. Whatever is prohibited by USC + CRA is morally impermissible.

7. AA is morally impermissible.

Social Contract Argument (SCA)

1. Any (large) group in US may secede from US.

2. Any group outside US may negotiate for admission to US.

3. Any (large) group in US may (re)negotiate for admission to US.

4. Negotiations for admission to US are not bound by USC + CRA.

5. AA is not morally impermissible.

6. US must negotiate in interests of US.

7. AA is not morally required.

HGA above is what I take to be the main motivational argument in favor of AA. This is followed RDA, which is my version of the main argument against AA. The third is my own new social contract argument, which I am calling SCA. HGA purports to show that Affirmative action is necessary as a matter of justice. RDA purports to show that it is impossible. SCA is intended to show that Affirmative action is morally contingent - that it might be okay, and it might not. It is truly a matter of policy, that is, not moral principle. The three are not intended to be watertight, formally valid arguments as stated: please be charitable. The first two are intended mainly as reminders of, or pointers to, what I take to be the central force of positive argument on either side. There are as many technically different versions of one or the other as there are clever people writing on the topic - and also lots of other arguments on either side, I'm sure - and there is also, I should add, a good deal of raw, utilitarian policy discussion of AA that assumes something like the third argument, or is at least consistent with it.

Qualifications aside, here's the main point for AA. American blacks and other groups are disadvantaged, because of historic oppression. Another, larger group (United States, or maybe white America) is responsible for that oppression, hence for its consequences. Therefore we ought to do something about it; we are morally required to do something about it. What we ought to do exactly is debatable, but it looks like Affirmative action as it is widely practiced is an effective and affordable method of evening things out - at least when it is done conscientiously, as a kind of broad tax on the historic advantages of white males. That is, nobody's talking about kicking whites out of personal positions that they already hold in order to make room for minorities - instead the idea is simply to make special efforts for minorities, whenever it comes time to admit, recruit, or promote people to positions that are open. Not too much to ask in their behalf, given what they've been through at our hands in the past. It's a matter of social justice.

Now the basic argument against Affirmative action. Affirmative action means preferring one group over another. That is discrimination. Discrimination is wrong. It's wrong in moral principle and it is wrong in law. At the very least, the equal protection clause of the Fourteenth Amendment to the United States Constitution, together with the Civil Rights Act of 1964, clearly prohibit any kind of preference in hiring, admissions and so on, for one racial group, for example, over another. It's right there in plain English. Nothing about people's motives, goals, or grievances. We just cannot discriminate on this basis.

Now, these are both very likable, positive arguments. I feel quite drawn to both of them, myself. And a number of writers admit that there's a real quandary, here, that there's obviously something to each basic position.

Meanwhile, the standard negative arguments - I mean the counterarguments that each side makes against the other's main position - are not so hot in my view. Some are almost desperately implausible - the kind of thing that you come up with as a dialectical weapon, because you think you have to, not because it's part of an organic view of things that makes intrinsic sense. Let us take a quick tour. I am sure this will be unfair to the subtleties of everybody's favorite counterarguments - again, I am just trying to motivate the project of looking for a third, synthetic point of view.

To attack the HGA, then, there are several familiar possibilities. One is metaphysical - simply to deny the existence of social groups as such: "Hey, show me blacks in general. I see this black person and this other black person. Which ones are victims? Meanwhile, where are whites in general? I see this white person and this other white person. Find the ones that oppressed other people, and the ones that are their victims, and I'll give you some justice. Otherwise, leave me alone." That kind of talk. That is, just insisting on an atomistic analysis of the situation from the outset. There is no such thing as social justice on this account. So obviously, there is nothing one can do for the sake of social justice. The whole idea is a mistake.

A softer version of this approach is to admit that social groups exist, metaphysically, but to deny that they have any standing in morality. That is, to accept premise 1 of the HGA, but not premise 2. There are groups, but not group rights, group victimhood or group responsibility. Again, familiarly, "Hey, I might be white, but I never owned any slaves, and I never denied anybody a job, etc., so I cannot be held responsible, just because I belong to some group, other members of which did something wrong." I have a certain sympathy for this response (I can remember saying stuff like this), but it clearly drives proponents of Affirmative action batty to hear it. There's some big point that's being missed, if they can just get their finger on it.

Another response to HGA is to deny conclusion 3 - i.e. to admit both that these groups exist, and that one group in fact owes something to the other as a matter of social justice, but to insist that nothing can be done along the lines of Affirmative action - because that's more discrimination, a la RDA - and two wrongs do not make a right. "Sorry, folks. We know you've had it tough. We take full responsibility for slavery, and all that other stuff. And we'd love to help you out. But, I'm sorry - we've got this damned Constitution, and it says right on it, no citizen shall be denied the equal protection of the laws. And we really should not change it, I guess, because it really is just basic fairness, after all. We do not want to hurt some innocent white kid just because you got hurt." Again, this response is not entirely absurd, but it strikes proponents of Affirmative action as at best obtuse. "If you're giving us the metaphysics of groups, and admitting our basic claims about the social injustice that these groups have suffered, qua group, then you'd damn well better fix it qua group, and not suddenly start obsessing about the individuals in your own group who might get slightly hurt."

One can also deny claim 4. You can say that Affirmative action simply (or complexly) does not work. Dinesh D'Souza, Shelby Steele and others have all kinds of consequentialist gripes about the actual effects - problems with so-called Balkanization, demoralization, sending the wrong message, turning people into parasites and so on. Still, a lot of people who favor affirmative action do not think this is a judgement that whites (or white males or their allies) ought to be making. There is an aggrieved party here, which has a right (of some sort) to have its own opinion respected (i.e. given special weight) in the matter of what counts as adequate redress for their grievance. It's the felt paternalism of this kind of response, I think, that really angers proponents of Affirmative action.

Now, what about the RDA? What terrific counterarguments are made against it, by affirmative action's proponents? Again, we can just run down the list of statements. Premise 1 is frequently denied. "Affirmative action has nothing to do with racial and gender preferences. Affirmative action is outreach. Affirmative action is a way of leveling the playing field, not slanting it in favor of minorities. Affirmative action is just a means finding the actual most qualified person for each open position, etc., etc." That's the rhetoric. When faced with clear-cut evidence of systematic preferences (e.g. extra points on civil service tests, etc), people who talk this way have a couple of options. Sometimes they will say okay, that's going too far (mend it, do not end it); otherwise they'll continue to deny that this stuff counts as preference. But there is a lot of what appears to be obfuscation involved. Some people pretend that there are only two levels of merit that matter: qualified and unqualified, simpliciter. And as long as unqualified minorities are not preferred to qualified non-minorities, there is no preference involved. It's hard for opponents of Affirmative action to see this as anything more than a ruse.

As against premise 2, some people will admit that Affirmative action preferences exist, but deny that these amount to discrimination - for example, on the grounds that the word "discrimination" necessarily refers to something bad. Similarly for the fuss made over the distinction between quotas and goals, validated by Justice Powell in the famous Bakke case, as if this made any real difference to whether there was discrimination going on. Just imagine if a place like Alabama decided to have "goals" (though not quotas) in favor of whites. If it's not acceptable there, then it's not acceptable here - that's the real whole point of the RDA. So these rejoinders appear to be merely rhetorical, semantic obstacles, which have the primary effect of clouding the issue further, and making the anti-affirmative action argument take a lot longer, at the cost of increasing the contempt that anti-affirmative action people already feel for their opponents.

A third option for response to the RDA is to admit that Affirmative action constitutes discrimination, but to deny that all discrimination is unconstitutional. Instead, only bad discrimination is held to be unconstitutional. Affirmative action is good discrimination, therefore it is okay. As against the plain English meaning of the relevant legal provisions, this view requires some kind of radical interpretive theory. The United States constitution is a "living document", some people claim, which has a new meaning for each generation, or at least every time that moral progress in society advances our actual knowledge (or a judge's knowledge) of the true referents of legal terms. Cruel and unusual punishment, for example, will be understood anew, perhaps eventually to rule out capital punishment altogether, whenever society discovers or decides that what used to be considered proper punishment is actually barbarous, and so on. Again, tremendous ingenuity has gone into supporting versions of this new kind of constitutional doctrine - see the works of Ronald Dworkin, for example. But it drives opponents of affirmative action (and conservatives generally) straight up the wall. Take a look at Robert Bork (look what it did to his hair). According to conservatives like Bork: unless you are absolutely forced to it by the desire for illicit policies like affirmative action and abortion rights, why on earth would you assert that the American Constitution, the whole purpose of which is precisely to be fixed in meaning, has no fixed meaning? What's it supposed to be, if not firmly meaningful - a doily, perhaps?

Another possible shot against the RDA is to admit that affirmative action is discriminatory, hence unconstitutional (or at least illegal), and to conclude: well, so much the worse for the constitution. If the constitution says no affirmative action, and social justice says yes, we've got to go with social justice. At this point, conservatives start talking about joining militias (even the National Review has been debating gingerly the issue of whether the United States is owed any loyalty in its present, constitutionally debauched state - or whether some kind of call to arms will be required to set things right). But also, at this point, most liberals will back off. Very few would actually, deliberately forego their loyalty to the United States and its constitution just for the sake of affirmative action, or abortion rights, or any other particular issue, no matter how big a deal they think it is.

Finally, a lot of the actual current discussion of Affirmative action is taken up with good old ad hominems. I actually think that such arguments are entirely appropriate when they are correctly understood. That is, I think that it is generally reasonable to demand of somebody who is asserting p an account of why he does so, while lots of other people believe q instead. Does the p person think that he is smarter than the q people, or what? This much is reasonable, I think. It's the quality of the actual diagnostic accounts that people give that strikes me as really awful. In the present case, the way anti-Affirmative action people often account for pro-Affirmative action belief is to say that minorities are just greedy for the spoils of political victory. We gave them the inch of civil rights back in the Sixties; now, sure enough, they want the mile of Affirmative action. So here's a question: why do so many white males also favor affirmative action? "Well, they're just guilty liberals." Now, maybe this kind of account it true. It is conceivable. But it's at least pretty odd, I think, that one is forced to give completely different psychological accounts of the motivations of minority and non-minority supporters of Affirmative action (if you are inclined to give psychological accounts of "faulty" belief in the first place) , when there's actually no other evidence for this difference. That is, you get exactly the same set of arguments from supporters of affirmative action, whether they're the possible beneficiaries or the possible victims of it. So you certainly cannot conclude from that, that one group favors it because they're greedy, and the other because they are the opposite of greedy.

The same situation obtains with the current standard ad hominem analysis of anti-Affirmative action belief. Why do such people refuse to be swayed by the HGA, and hide behind the RDA instead? It's because, in the case of white males, etc., they are a bunch of racists, sexists, etc. So what about all the blacks and women who also oppose affirmative action, and give out exactly the arguments (Ward Connerly, Thomas Sowell, Christina Hoff Summers, etc.)? Well, they're a bunch of traitors. They're a bunch of Uncle Toms. So in the one case, again, it's a form of greed, of selfish immorality that accounts for the allegedly false belief; in the other, it's the opposite again - some kind of neurotic desire for defeat. The debate has been vicious between blacks, for and against affirmative action. Ward Connerly, the black champion of California's Proposition 209, which bans racial and gender preference throughout state government and the state university system, has been referred to as a "house slave" by no less a light that Jesse Jackson. In return, the conservative black congressman J.C. Watts has called pro-Affirmative action people just like Jackson "race hustling poverty pimps".

I think that in general, this kind of psychodiagnosis is a really terrible way of accounting for disagreement. The good way, the proper way, is to admit that people on the other side straightforwardly believe that they are right. That is, in the present case, that people who favor affirmative action generally do so just because they think that it is right. They think it's just. And that people on the other side oppose it because they believe that it is unjust. What's uncomfortable about this, of course, is that it implies that both positions are probably fairly equally believable, all things considered. The reason that we feel forced to psych out our opponents instead, is that we want to believe that our position is not just right, but obviously right, or at least clear enough to the unclouded mind (unclouded by guilt or greed; unclouded by racism; unclouded by Uncle Tom-ism, whatever the hell that is supposed to be).

Here is my analysis. Proponents of the RDA are viewing Affirmative action as a matter of domestic policy. They claim that affirmative action is unconstitutional - it violates, that is, the domestic social contract that defines us as a single country. And they are probably right. As things stand, Affirmative action (i.e. racial preferences in hiring, etc.) appear to me to be straightforwardly against the law. Big point for the conservatives. At the same time, all of these conservative complaints about group rights have to go. There is nothing wrong with the idea of groups having rights in principle. Proponents of affirmative action are in fact being entirely reasonable in speaking of moral relations between groups. Of course some social groups have rights, responsibilities, and so on. For example, whole countries have responsibilities and rights. They have the right to negotiate with each other, they have the responsibility not to invade by other countries, etc. We all acknowledge this, even most conservatives. From each individual country's point of view, it's called foreign policy. It seems to me that proponents of the HGA are seeing the issue of affirmative action fundamentally in this way. Now, conservatives can still respond: "yeah, fine for other countries. We accept the idea of international law. But social groups inside the United States still do not have any rights per se (therefore, no affirmative action)". And I say, fine. But whether American blacks, etc. are properly viewed as being groups inside or groups outside of the United States is exactly what is fundamentally at issue. If we must see them as a simple aggregate of American citizens, then the conservative position ultimately wins (no matter how much people try to obscure the real, systematic discrimination involved in affirmative action, or bend the meaning of the constitution, or accuse conservatives of racism). But if we imagine American blacks (e.g.) as another (albeit overlapping) polity, the way the United States is a polity, then maybe we are in a situation where plain considerations of domestic justice ought to be overridden, and affirmative action be evaluated by the standards of justice that we usually apply to foreign policy, instead. This is my understanding of what is fundamentally plausible about the HGA.

So the position that I want to sketch out now, is one according to which domestic and foreign policy principles are both going to be relevant to the issue of affirmative action, though neither is alone decisive. It is neither solely a matter for domestic policy, nor solely one of foreign policy. It is really something else - a matter of what I am calling foundational policy. So let me say a bit more about what that is.

Foundational Policy

Foundational policy regards a certain area of overlap between the traditional spheres of domestic and foreign policy. It regards relations among those intermediate social entities that I want to call semi-nations, and also between such things and regular, full countries. It includes initial constitutional policy. The framing of a constitution at a constitutional convention is an obviously foundational act. Official dissolution of a constitution would of course be another. But there is much more. Any issues regarding the merging and splitting of societies (i.e. questions of union and secession) are a matter of foundational policy. Also immigration and emigration policy. Also much of policy regarding civil war and revolution (e.g. reconstruction policies, or extraordinary policies designed to fend off revolutions). In general, any issue regarding the foundation or refoundation of a whole society, in light of internal or external changes (e.g. winning or losing a war) should be regarded as falling into this area. Of special interest here are those issues that concern any special privileges accorded to internal groups as a result of foundational or refoundational events.

Here is a bunch of examples:

(1) The initial framings of the British, American, and many French constitutions after revolutions, Glorious and otherwise. The slavery question in the United States - an initial and a recurrent issue of foundational policy, where different states were granted different privileges under the constitution, and in respect to the admission of new states. The admission of the states themselves under different provisions.

(2) The status of DC, PR, American Samoa, Guam, etc. -different legal statuses accorded to these people on the basis of negotiated deals.

(3) The rampant merging and splitting going on now in the old USSR. The immediate question of reunion between Russia and the new state Belarus. Under what arrangement between what are now two different countries, will there soon be one country? What's in it for Minsk?

(4) South African Policy re: Namibia, Lesotho, the so-called homelands.

(5) Canada - the status of Quebec vis a vis the other provinces.

(6) United States and Canadian policies regarding Indians, the reservations, fishing rights, casinos, etc.

(7) And of course, I want to count all kinds of foundational or refoundational minority issues like affirmative action, bilingualism, etc.

Now. What are the basic principles of justice in foundational policy? I think the social contract model is a natural place to start. I was skimming through Locke's Second Treatise for reason recently (cannot think of why that was) and came across a lot of stuff about the initial creation of a just society, and how it gets dissolved in a certain way by war. That is, Locke talks about the king declaring war on the people, by means of breaking his part of the social contract. But Locke does not talk explicitly about issues like merging and splitting in general (at least, I did not notice). Obviously, his mind is focused on particular questions of the day. But this is too bad, since Locke is so prescient in discussing merging and splitting with respect to personal identity in the Essay - I wish he had turned the same attention to these issues with respect to political identity. In any case, I want to suggest that Locke's view can be easily expanded, to cover matters of foundational policy in general. Locke sees society as a strictly voluntary union. Nobody has to join. The social contract is not binding on posterity. Each individual who comes of age makes his own choice to join up or go somewhere else. So it's hard to imagine Locke claiming that coherent groups (the Scots or Welsh, for example) cannot split off if they want to. Maybe he thinks it will not happen, because a just society is always going to be roughly the same anyway, because the basic form of legitimate government is dictated by our identical rights and fundamentally similar interests as individuals. And it does not really matter here what Locke's actual personal opinion was of Scotland, etc., if anybody in the room here knows. The point, obviously, is what kind of Lockean theory makes the most sense. So let me posit (recklessly) the notion that a voluntary union is completely voluntary. If Frank is free to leave, then Frank and Bill are free to contract with each other to leave together, and Scotland is free to secede. (There's an obvious problem about land, here. I guess I cannot withdraw from the United States and expect to take my 1/4 acre of property with me. Too bad, because I could make a lot of money selling postage stamps from the Republic of Ted.) This problem clearly does not apply to large, coherent chunks of property, like Scotland or Quebec. So the reasonable foundational principle for splitting is, I think, secession on demand.

What about merging? When can two countries, Scotland and England, say, legitimately join together? Externally, it looks like they can do so whenever they want to. It's a free contract between two sovereign entities. What provisions of union are possible? Whatever terms they happen to agree to. Now, there are two other, internal questions, here, that also matter. One, is the proposed union just from an internal Scottish point of view? That's a matter of the interests of the Scots, plus what kind of deal can be arranged with the English. And similarly for the question of justice from the internal English point of view. But the main point is, that these two entities can merge on any terms they like, as long as it's agreeable to everyone involved. So maybe the eventual deal will be like this: the English get to have a majority in parliament, but the Scottish get special religious protections, plus the king of the new union has to be the old king of Scotland. Whatever they work out is okay.

But this is interesting. Now we have a society, as the result of this voluntary merger, in which there are two unequal classes of citizens. The English have to wear hats, say, and the Scottish do not. Is this fair? In a way, no, obviously - but it looks like justice has been done regardless. Whatever the deal says is just, after all, provided it was arrived at justly, through a voluntary contract, in the interests of both contracting parties. This is the nature of legitimate privilege.

So if tiny Rhode Island joins the United States with the provision that it gets the same representation in the senate as Pennsylvania or Virginia, and everybody agrees, then that's okay. If the Republic of Texas joins the United States under a plan that allows it split at any future time into five different states with a total of 10 United States senators, and both sides agree, then that is okay. If the southern states demand as a condition of union that they get to count their slaves for purposes of representation in congress and the electoral college, and the northern states say take a hike, and they end up compromising on a formula that adds 3/5 of the slave population to the otherwise small number of white citizens - who's to say they cannot do that, as sovereign contractors? (not that this says anything either way about slavery. Put it this way: is it okay for the free north to form a union with the slave-holding south, provided that such a union is in the interests of both parties involved? I cannot see why not.) So again, if the Chippewa nation agrees to give up all of southern Wisconsin in exchange for resettlement on a series of large tracts in northern Wisconsin, plus certain protections for their way of life, including unlimited spear-fishing rights in perpetuity - then that's the deal. That's foundational justice (I am ignoring the question of duress in actual Indian treaties). The point is, that these guys are still up there in the river fishing all they want from their canoes outside of fishing season, while gangs of whites stand on the dock throwing beer cans at them and complaining to the cameras that it's unfair. Which it would be, if it were not for this foundational contract, which overrides (legitimately, I say) considerations of domestic fairness.

Now. If it's okay to split off, and if it's okay to merge an any terms that are mutually agreeable, then it ought to be okay for two parties to renegotiate terms without one of them having to formally split off first. Look at Quebecers in Canada (a proper semi-nation if ever there was one). Suppose Quebec secedes. And then the rest of Canada feels very sad and wants to join together again. But Quebec says, we will not join again unless French becomes the sole official language of all Canada. Now, maybe the rest of Canada would tell them to go to hell at this point; maybe not. If they want it bad enough, to make some deal like that after Quebec secedes, then they might as well make a deal like that now, in advance, in order to prevent Quebec from seceding in the first place. In fact Quebecers have negotiated a series of privileges (mainly cultural ones, I gather) as a part of this overall, ongoing uproar over whether they are staying or leaving. The last deal was some kind of flop, apparently, but there is no reason in principle that some final deal will not be worked out, which grants Quebecers special preferences of various sorts, as a condition for their remaining in the union and agreeing to cooperate politically and economically with everybody else.

Affirmative Action Reconsidered.

It should be obvious how this all gets applied back to Affirmative action. Consider the position of American blacks. Their position vis a vis the United States, I claim, is fundamentally like that of Quebecers vis a vis Canada. An obvious difference is that they do not have a single, big chunk of land to break away with although there is this tendency or movement called, I think, the Republic of New Africa. The idea is for blacks to move in large numbers back to the deep south, get majorities in 3 or 4 states, then secede. This is an impracticable, but not a stupid idea, and it illustrates my point. They can contract with each other to form a nation if they want to; they can secede if they want to. They can also threaten to secede if they want to. They can also threaten other things. They have considerable solidarity to use in legitimate ways, short of revolution or crime. They can secede in spirit. They can secede economically, or culturally. They can refuse to say hello to whites. More generally, they can refuse the kind of cheerful cooperation that we usually expect from everybody as a condition of our ordinary social happiness. Now. Why is not this stuff negotiable? In my interpretation, blacks say (or can say), "treat United States as a separate nation for a moment. We would like to renegotiate the social contract that we have with the United States. By the way, we never signed the first one, so we are actually talking about a first deal between the United States and United States as free and roughly equal (within an order of magnitude) parties. Here's what we want. Resettle us, as you resettled the Chippewa. And we want, like the Chippewa, and the Quebecers, favorable terms. Instead of special fishing rights, or the right to speak French all the time, what we want is a set of economic guarantees. We'll join your middle class society, and eventually stop calling you racists all the time, but first you'll have to shuffle us into the good jobs and the good schools, and so on, until we agree that our overall social position is approximately the same as whites. That's what we want, if you want us to be nice and friendly and cooperative and forgive you for oppressing us."

The history of oppression, by the way, is not essential to the situation. The historical situation with women is rather different, for example, as it is for Hispanic and Asian, who were oppressed, if at all, much less so than American blacks. But they are all roughly equal claimants to affirmative action. The history of oppression matters primarily because it makes some people feel like combining into semi-nations and demanding refoundational deals (which for example, German Americans do not, and Irish Americans only do symbolically); secondly, because it makes a lot of other people sympathetic. That's as far as ordinary notions of social justice really penetrate this theory. For the most part, it's just a system of contacts. I say a system, because we have all kinds of deals like this going on all the time. Special deals for businesses. Milk price supports. Regulatory privileges. Tax deals. Home mortgage deductions. Privileges for organized labor, for example the right of something called the UUP to take a full percent of salary from people who do not belong to it, without their consent, and spend that money on political activities that they oppose.

Are any of these special deals okay? Well, to the extent that they're foundational matters, the question is, are the deals made properly by agents of the United States, in the overall interests of the United States. If we make some tax deal with American loggers in order to keep them working in the United States instead of moving up to Canada, and the deal is really in our interest as a country, it seems crazy to say that we should not have done it just because it creates a special privilege.

Now, lots of this stuff is probably unconstitutional, on a straightforward, honest (or at least, conservative) reading of the document. affirmative action clearly contradicts the constitution and the Civil Rights Act. This is the part of the conservative position that I'm agreeing with. But as a foundational issue, Affirmative action takes priority over constitutional interpretation. Though clearly, the fact that affirmative action is (probably) unconstitutional gives the us a reason not to do it - not to agree to the deal. But this is not necessarily a conclusive reason. It depends on what everybody's long-term interests actually are. These are open questions: Maybe it is in the interests of American blacks and other semi-nations to demand unconstitutional privileges, and maybe it is not. I do not know, but I know that some black and women thinkers have been changing their minds about this issue. Meanwhile, though, given that the semi-nations are demanding special, unconstitutional privileges, there is an open question whether we ought to agree or not. As I've said, this is a matter of our contingent national interest. Obviously, our decision ought to be informed with a respect for our existing (mainly individualistic) social fabric, with a respect for our tarnished but still very noble tradition of equality before the law, with respect for English meaning and the traditional responsibilities of judges, and so on. But again, this stuff is not necessarily decisive against affirmative action, particularly regarding the historically unique position of black Americans. Perhaps the best thing for the United States to do, under the circumstances, is what it has been doing. That is, to allow affirmative action despite its plain unconstitutionality, and tactically ignore or obscure the constitutional question, or positively deny that it is unconstitutional. Just do it, and just lie about it. Perhaps that is a feature of the best deal that we can actually make.