Patterico's Pontifications

4/24/2009

Jerry Brown: Proposition 209, Which Outlaws Affirmative Action, Is Unconstitutional

Filed under: Constitutional Law,General,Race — Patterico @ 10:01 pm

I often read conservatives claiming that Jerry Brown is a surprisingly solid choice as California’s Attorney General. I’m not so sure. He may be OK on some issues, but he has increasingly used his office to advance ridiculous legal postures that carry the whiff of expedience and political correctness. First there was his daft move to have Prop. 8 declared unconstitutional. Now Gov. Moonbeam is claiming that Proposition 209 — the proposition that outlaws affirmative action — is unconstitutional:

Brown’s brief, written by Solicitor General Manuel Medeiros, noted that the U.S. Supreme Court has set strict constitutional standards for judging race-conscious programs: They must be based on a history of discrimination against a group and must be designed to promote a legitimate goal, such as diversity in school enrollment, that cannot be met in other ways.

But Prop. 209 goes further and prohibits programs that the U.S. Constitution allows, without justification, Medeiros said.

So now these programs are constitutionally mandated??

“It closes a door to race- and gender-conscious programs that the 14th Amendment leaves open,” Medeiros said. The amendment requires states to provide equal protection under the law to all citizens.

“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, (Prop. 209) seems to accomplish the very evil it purported to eliminate … racial and gender discrimination,” Medeiros said.

So by refusing to use government to advantage particular racial or gender groups, Proposition 209 disadvantages those groups?

Brown’s office did not expressly ask the court to overturn Prop. 209. But if the justices followed the attorney general’s opinion, they would strike the measure down or narrow it to reflect federal standards, which would eliminate its independent effect.

Same difference.

Clearly, this is all done with Brown’s run for the Governor’s office in mind. Meaning he is twisting the law in liberal directions for political gain.

Now what could be wrong with that?

18 Responses to “Jerry Brown: Proposition 209, Which Outlaws Affirmative Action, Is Unconstitutional”

  1. Well, some affirmative action programs have been constitutionally mandated due to historical conditions, such as past denial to equal access to education, housing and voting.

    And federal law under the 14th has developed to set the baseline where in some cases “affirmative action” is required to ensure equality.

    “Brown’s office did not expressly ask the court to overturn Prop. 209. But if the justices followed the attorney general’s opinion, they would strike the measure down or narrow it to reflect federal standards, which would eliminate its independent effect.”

    If what the Cal AG is doing here is just making sure that the Cal law is not in any conflict with the federal constitutional law under the 14th (thus rendering it unconstitutional), what is your complaint? Seems like they are trying to save the law by getting it interpreted to be wholly consistent with federal constitutional law, even if that means paring back on any parts that render it unconstitutional, instead of having it chucked out altogether.

    Aplomb (b6fba6)

  2. I am not so sure. When I read the AG’s brief in the Prop. 8 case , my reaction is that Brown could not have possibly done more damage to the anti-Prop 8 forces. By skewering the strongest argument the anti-Prop 8 forces had in a cogent and intelligent fashion, then advancing an argument so backwards that it would have made emancipation of slaves impossible, he left very little cover for the California Supreme Court to strike the initiative down.

    Frankly, this sounds like another situation where Brown’s arguments ostensibly help the liberal position while in fact undermining it.

    Cyrus Sanai (ada6da)

  3. “…Jerry Brown is a surprisingly solid choice as California’s Attorney General.”

    For some reason that sequence of words makes my brain hurt.

    Dave Surls (587595)

  4. “If what the Cal AG is doing here is just making sure that the Cal law is not in any conflict with the federal constitutional law under the 14th (thus rendering it unconstitutional), what is your complaint?”

    Well, given that the never-constitutionally-ratified 14th Amendment is the fountainhead–the very source–of all our political woes today, I’d say we could start looking for the germ of any complaints there. In addition to the part the 14th has played in the destruction of the proper relation between the states and the federal government, it substituted radical egalitarianism for the right of self-government as the first principle of American law. In this way the Radical Republicans during Reconstruction slammed the door on the Constitution of the Founding Fathers and opened it to every Marxist and totalitarian who has cared to bring a lawsuit since. It took awhile for the new order to become firmly established, of course, but it finally did so, as Brown’s attempt to render Prop 209 unconstitutional indicates. Brown is likely correct on the law as it currently stands, because the law has itself become corrupt and evil. So that would be my first petty, inconsequential complaint.

    danebramage (700c93)

  5. Oh for the days of Governor Moonbeam and Linda Ronstadt in a clinch.

    DCSCA (9d1bb3)

  6. Shades of the University of Michigan defying the will of it’s own citizens, with a big assist from that state’s Supremes.

    Dmac (1ddf7e)

  7. Too much hysteria here. The California Supreme Court asked my office to evaluate the impact of the Hunter/Seattle cases on Proposition 209. These case clearly conflict with 209 and I said so. Whether or not the U.S. Supreme Court will upheld their earlier opinions in Hunter/Seattle is an open question.

    jerry brown (95e6d6)

  8. I am Governor Jerry Brown
    My aura smiles and never frowns
    Soon I will be President

    Obama power will soon go away
    I will be fuhrer one day
    I will command all of you
    Your kids will meditate in school
    Your kids will meditate in school

    California Uber Alles
    California Uber Alles
    Uber Alles California
    Uber Alles California

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  9. I have been present during informal discussions with Jerry Brown when he was governor. He sounded very reasonable and he seems to know what is appropriate in certain circumstances. Then he goes out in public and sounds like he is silly. It may be politics but the comment above signed jerry brown could well be from him and be a serious response. His actions during the 1975 medical malpractice crisis in California gave us a solution that has held up for 34 years. I think his terms as mayor of Oakland were pretty successful (for Oakland, which is another matter). He seems to reinvent himself then, when he gets near the top, something happens.

    Mike K (2cf494)

  10. Silly question, but with respect to #7–Real or astroturf?

    Dave N (eca71e)

  11. Jerry has just never recovered from being dumped by Linda.

    AD (2ef8a1)

  12. This will play to the Democrat base, but Prop 209 was very popular and what with an African-American President (not to mention a 4-term black mayor of LA and a 2-term Hispanic mayor) the case for affirmative action is very weak.

    Sandra Day O’Connor’s 25-year time-frame for eliminating affirmative action (Grutter v Bollinger (2003)) seems only the outside envelope today. And any reading of that decision that asserts that affirmative action is required by the 14th Amendment is silly on its face.

    Kevin Murphy (0b2493)

  13. Umm .. so this move by Brown may help him in the primaries, but it seems likely to be a problem in the general election, especially if he’s running against someone like Meg Whitman.

    Being a woman running against a white male, she could have serious fun with Brown’s case for affirmative action (e.g. “How many votes will you spot me?”).

    Kevin Murphy (0b2493)

  14. I wonder what the lib legal community’s reaction will be 20 or 30 years from now, when native born white kids will have to pay for the huge fiscal excesses of today’s liberal politicians. The fact that they are likely to vote as a block appears to be lost on current lib legal and political opinion. Will tomorrows activist lawyers and judges sympathetically view the 14th amendment rights of the new block?

    Of course not.

    trentk269 (ce2dd2)

  15. California’s death spiral proceeds apace.

    Peg C. (48175e)

  16. Brown was a catastrophe as Governor 1975-83. He would be again. Without 90% of the Black votes, the Democrats lose nationally ( although in California that is not necessarily true). So race baiting, unconstitutional preferences and affirmative action will be used to buy votes, especially if other minorities can be included. It’s all politics. Democrats don’t care about Blacks but they sure care about those votes.

    Brown will pander to minorities, like every Democrat in public office.

    Ken Hahn (afe343)

  17. The Constitution, which clearly states that the Government can’t discriminate on the basis of race, obviously mandates that the Government must discriminate on the basis of race.

    It is indeed a living document.

    Amphipolis (e6b868)

  18. I often read conservatives claiming that Jerry Brown is a surprisingly solid choice as California’s Attorney General.

    Who are these conservatives, and why are they still called conservatives? I interviewed Gov. Moonbeam. Affable fellow … who should never be near the levers of power, anywhere.

    Jim Lakely (3f31e9)


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