[Congressional Record Volume 141, Number 173 (Friday, November 3, 1995)]
[Senate]
[Pages S16681-S16682]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       AFFIRMATIVE ACTION IS AS ``AMERICAN AS THE CONSTITUTION''

 Mr. SIMON. Mr. President, as my colleagues know, I believe 
that affirmative action is a very good thing for our country; even 
though, like any good thing, it can be abused.
  Prof. Steven Lubet of Northwestern University had an interesting 
article that points out that affirmative action is part of the U.S. 
Constitution.
  My colleagues, who may be startled at that bit of information, will 
find the Steven Lubet article of interest.
  I ask unanimous consent that the article be printed in the Record.
  The article follows:

       Affirmative Action Is as ``American as the Constitution''

                           (By Steven Lubet)

       Opponents of affirmative action say the idea is contrary to 
     basic American principles because it unfairly disadvantages 
     blameless individuals, needlessly emphasizes group rights and 
     enshrines an ethic of victimization. Affirmative action, they 
     say, is a failed experiment from the despised '60s.
       The real truth, however, is that affirmative action 
     originated in the '80s. Not the 1980s, but the 1780s--1789, 
     to be exact. Here is what the United States Constitution 
     (Article I, Section 3) says about affirmative action: ``The 
     Senate of the United States shall be composed of two senators 
     from each state.'' That's affirmative action--in fact, a 
     quota system--for small states. There is no denying that the 
     framers designed the Senate to protect group rights, 
     notwithstanding any disadvantage to blameless individuals, 
     and all on a theory of possible victimization. While any 
     specific instance of affirmative action may be unnecessary or 
     ill-advised, the concept has been with us from the beginning.
       The size of a state's delegation in the House of 
     Representatives is determined on the basis of population, in 
     keeping with the democratic principles articulated in the 
     Declaration of Independence. In the Senate, however, small 
     states are given special treatment. They are afforded 
     representation far out of proportion to population, to ensure 
     that they will not be victimized, oppressed or subjected to 
     discrimination by the majority.
       There is no clearer example in our history of 
     institutionalized group rights. Based upon accidents of birth 
     and geography, the citizens of small states, such as Delaware 
     and Maine, enjoyed the benefits of a quota system that made 
     their political influence comparable to that of New York and 
     Virginia, the giants of the time. In the 1990s, the same 
     quota operates to the advantage of Alaska (one senator per 
     300,000 citizens) and to the detriment of California (one 
     senator per 15,000,000 citizens). Is it unfair to count the 
     vote of an Alaskan at 50 times the vote of an Californian? 
     Sure it is, but we have become so inured to the Senate that 
     it just seems natural.
       That's our system. That's the way it works. And so it is; 
     but it is also group-based affirmative action.
       We are all familiar with the original arguments in favor of 
     the Senate. One concern was that the interests of small 
     states would not be respected in a Congress constituted 
     strictly on the basis of population. Another consideration 
     was the need to protect minorities (primarily meaning 
     political minorities) from the temporary passions of 
     transient majorities. And after more than 200 years, there is 
     far-reaching agreement that the Senate has well served its 
     intended functions. State-based affirmative action has worked 
     according to plan.
       So let's compare the establishment of the Senate to current 
     programs of race-based affirmative action. To be sure, the 
     parallel is inexact, but certain principles do overlap. In 
     1789, the small states feared the possibility of future 
     discrimination under the newly-proposed Constitution. They 
     were not willing to accept promises of benevolence or 
     paternalism, but insisted on structural protection even at 
     the cost of proportional democracy.
       Today, racial minorities and women fear not only the 
     hypothetical possibility of discrimination, but the 
     persistence of a proven historical fact. They, too, decline 
     to trust benign intentions and demand a structural 

[[Page S 16682]]
     remedy. A requirement of special treatment or attention to women and 
     minorities similarly assures that they will be protected from 
     the ``passions'' of today's majority, which, in the case of 
     upper-level decision-makers, still consists overwhelmingly of 
     white males.
       It is true that the non-proportional Senate came about as 
     the result of a political compromise. The small states 
     extracted it as the price of their acceptance of the new 
     national government. They had the right to withhold 
     ratification of any constitution that did not satisfy their 
     perceived needs.
       Today's minorities, African-Americans in particular, do not 
     have that power. Their ancestors were brought here 
     involuntarily, without the ability to agree or disagree with 
     the political or economic system. Certainly, though, there 
     must be something about democracy that prevents us from 
     saying that affirmative action was a one-time-only 
     phenomenon, imposed only at the insistence of certain framers 
     and never to be repeated for the benefit of future 
     minorities. To accept that argument would transform 
     constitutionalism from an enduring philosophy into little 
     more than an 18th Century version of ``Let's Make a Deal.''
       I do not want to make too much of this analogy. Many recent 
     efforts at affirmative action have been ineffective or 
     counter-productive. The wisdom or appropriateness of any 
     particular program ought to be subject to continuous review. 
     But when Sens. Orrin Hatch (R-Utah) or Alan Simpson (R-Wyo.) 
     inveigh against affirmative action, they ought to do so with 
     some sense of humility, if not irony. After all, they owe 
     their Senate seats to affirmative action's first appearance 
     in our national life.
       It is simply wrong to say that affirmative action--as a 
     tool for achieving political equity--is out of place in the 
     American system. To the contrary, it is as American as the 
     Constitution.

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