Free Slouching Towards Gomorrah by Robert H. Bork Page B

true of United States senators. The theory was that different geographic areas often have different interests so that it was appropriate to give some of those interests a voice larger than their population alone would suggest. That was a structural arrangement designed…like federalism, the separation of powers, and the Bill of Rights…to moderate pure majoritarianism. The other house of a state legislature was typically based on population so that representatives’ constituencies were approximately equal. Seizing upon the equal protection clause, the Court adopted a formula of one person, one vote, which meant that both houses of state legislatures had to be based on population. There is a good deal wrong with this as political theory; everything was wrong with it as constitutional law. There is no reason in political theory why regional minorities may not be protected, as they are in the federal Constitution by giving two senators to each state. State after state had gained admission to the union with senates based on the federal model, and nobody had suggested that the arrangement violated the Constitution. The representation formula the Court required in order to produce equality had not been the American practice from colonial days to the day of the
Reynolds
decision. The Court ordered that state legislatures be transformed on the basis of an abstract, and simplistic, theory of equality.
    It was in the areas of race and sex, however, that radical egalitarianism proved most potent. So strong was the impulse that, in a masterpiece of statutory deconstruction, the Court overrode the explicit text and legislative history of the 1964 Civil Rights Act (that it is unlawful for an employer “to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin”) in order to allow preferences in hiring and promotion for blacks 29 and women. 30 The Court usually argued that the preferences were remedies for past discrimination. This makes no sense, since the person now being preferred is not the person discriminated against in the past. Even the requirement of past discrimination was dropped when, in
Metro Broadcasting, Inc.
v. FCC, 31 the Court allowed racial preference in the grant of stationlicenses by the Federal Communications Commission despite the lack of any evidence that such grants had ever been tainted by discrimination. These cases all approved what is today known as “affirmative action.”
    The list of egalitarian decisions not warranted by law could be extended almost indefinitely as the Court, entranced with equality, extended the reach of the equal protection clause of the Fourteenth Amendment far beyond any conceivable intention of those who made the amendment law and far beyond anything previous Courts had been willing to do.
    Almost as instructive about the nature of modern liberalism is the Court’s recent, partial, and very tentative retreat from its approval of governmental attempts to require equality of condition according to race, ethnicity, and sex. One such program required federal agency contracts to give a prime contractor monetary rewards for hiring subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals. These included minorities or any individuals the Small Business Administration found to be disadvantaged. 22 † A prime contractor on a highway project awarded a subcontract to a firm owned by an Hispanic despite the fact that a white-owned firm had submitted a bid at a lower price. (Though many Hispanics are white, the law in its impartiality treats them as though they were not.)
    The Supreme Court, in a five-to-four decision, found that the preference constituted discrimination and violated the equal protection component of the due process clause of the Constitution. 32 The result was correct, and a welcome relief from the discrimination against white males practiced, egregiously, in