- The Washington Times - Thursday, April 26, 2001

James Madison would have been pleased to know that slavery would not long survive him. Speaking at the Constitutional Convention in 1787, he told listeners, "We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man." One suspects he would have been dismayed, however, about the institutionalization of the "mere distinction of colour" into this nations laws.
Last week the nations highest court held that considerations of race in political redistricting were constitutional so long as they were not the main factor in the exercise 49 percent of it, perhaps, but not 51 percent. Wrote Justice Stephen Breyer for the five-member majority, "The evidence taken together, however, does not show that racial considerations predominated in the drawing of District 12s boundaries."
The ruling resulted from a case that had been bouncing up and down through the courts for several years. North Carolina redrew its congressional districts after the 1990 census, and pointedly created a majority-black district that snaked or "salamandered" through the center of the state with the barest of geographic connections. At one point only a section of I-85 held the 12th together. Thats what it took to create a district that was 54.7 percent black. Anything less, the state argued, might mean the election of a white, rather than black, candidate.
A group of white North Carolina residents subsequently sued on grounds that the state impermissibly relied on race to create it. In 1993, the U.S. Supreme Court tossed out the district in agreement with the plaintiffs and warned that such racial gerrymandering threatened to balkanize the country. Justice Sandra Day OConnor wrote for the majority in that case.
Back went North Carolina to the redistricting board, and this time it came up with a district that was just 47 percent black. Once again critics sued on grounds that the district was unconstitutionally race-based. First a district court and then a federal appeals court sided with the plaintiffs. There was no shortage of evidence to support them. For one thing the state legislature, which had argued that it had drawn district lines for political rather than racial reasons, packed into it precincts with heavily black populations that had lower Democratic Party registration than nearby white ones. Said the district court, the legislature included "several precincts with racial compositions of 40 to 100 percent African-American," while excluding certain adjacent precincts "with less than 35 percent African-American population" but which contain between 54 percent and 76 percent registered Democrats.
Further the district court took note of the language that the primary drafter of the new district used in the process. "I have moved Greensboro Black community into the 12th , and now need to take … 60,000 out of the 12th ," he said. Certainly, wrote Justice Clarence Thomas for the high courts dissenters, "the district court was entitled to believe that the drafter was targeting voters and shifting district boundaries purely on the basis of race."
Call it a finding of fact. But whereas in the Microsoft case, the media focused on the immutability of Judge Thomas Penfield Jacksons harsh findings of fact against the company, in this case the majority simply dismissed the lower courts findings and made up its own. That is: North Carolinas rationale for black-packed districts was political rather than racial. So far no outcry from the press about the unchanging nature of findings of fact.
Justice Breyers argument that some color-consciousness is constitutional as long as it isnt the predominant factor amounts to racial profiling by another name. Minorities dont like it when law-enforcement officers treat them as potential criminals because their race, their out-of-state plates, their use of certain interstates at certain times of the day fit the profile of, say, drug couriers. They dont like it when cab drivers profile them as fares unlikely to be worth the risks of driving into risky, high-crime areas.
But some do like it indeed the NAACP Legal Defense and Educational Fund Inc. intervened on North Carolinas side in this case when courts profile them as never-ending victims of racism who cant enjoy real congressional representation unless its by a fellow minority, in this case Rep. Melvin Watt. Moreover, according to this brand of profiling, minorities cant win elections without protecting them from white competition, hence the need for black-packed districts. (That might come as news to former Virginia Gov. L. Douglas Wilder.) Fortunately, its nothing that a little racism, according to Justice Breyer, cant fix. Interestingly, Justice OConnor was part of the five-member majority this time.
Another politically correct type of racial profiling means giving extra credit for skin color to minority college applicants. Its a view that treats minorities once again as victims who cant meet the same academic standards as non-minorities and who therefore cant compete directly against them for admission. A little racism in the form of giving them points for skin color can help level the playing field.
Its an ugly profile, but because of the high courts willingness to institutionalize what Madison called "the mere distinction of colour," its not likely to go away anytime soon.
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