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GUINIER AND THE TYRANNY OF THE MAJORITY
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GUINIER AND THE TYRANNY OF THE MAJORITYNow, some might say there is nothing more democratic than majority rule. Total majority rule. And nice as that sounds, it doesn’t work that way. There are a couple of reasons why, the first of which is just logical: if the majority votes to legalize cannibalism – or to legalize discrimination against homosexuals (as my hometown of Canby, Oregon did in the 1990s) or to do other unconstitutional, stupid things, there needs to be some check on that abuse. That’s why we have three branches of government – to stop excesses and abuses of power by those who reach past their intended authority. The second reason is that those are the principles the Republic was founded on. Guinier borrows the title of her book from James Madison, whose theory of representative democracy appealed to "the principle of reciprocity.” This topic is covered in great detail in the Madison essay, but let’s review some of the high points here. People are self-interested. That includes people living in a democracy. They will vote to advance their own interests. So, why don’t poor people just vote to take all the money from rich people through taxation? Well, there’s the well-established propaganda system, for one thing, but there’s another reason, too: voters and politicians have to think about the long term. Just because you’re in the majority now doesn’t guarantee that you will ALWAYS be. This is one major reason both parties talk about bipartisanship: they want to appeal to voters of the other political party. Reagan was re-elected primarily with the votes of traditional Democrats, for example. When you’re in power, you don’t want to totally ignore the minority (whether racial, economic, or political) – because they may be the MAJORITY in four years, and you’ll be in big trouble. This is especially true in close races or districts where there is an even split in political opinion. Since every vote counts, every interest group is up for schmoozing – even traditional enemies. Hence, you see things like former Washington Senator Slade Gorton cozying up to Indian tribes, even though he spent 30 years trying to screw them sideways – in a close election, every vote counts. Similarly, the tribes don’t want to blast Gorton with both barrels when he’s in office, because he controls appropriations money for their environmental restoration projects, health care projects, etc. This doesn’t always happen that way, though. More often, people like Gorton just ignore their traditional enemies altogether – or worse yet, try to actively undermine their interests. There is a reason, after all, that Indian tribes hate him so much. (He tried to take away their fishing rights, crush their economic infrastructure, and abrogate their constitutionally guaranteed treaty rights). Guinier recognizes this. That’s why she’s so concerned with voting rights reform: if minorities can be represented in fact, rather than just in name, their interests will be better served by legislators. GUINIER AND AFFIRMATIVE ACTION As noted above, Guinier's political views in no way support her designation as a "quota queen." Guinier's books and law review articles support only one conclusion -- she believes a quota of minorities taken as representatives of the minority races as a whole will not truly give minorities a fair chance. The best strategy lies in other means. That means includes continually updating affirmative into new policies that Guinier calls “Confirmative Action.” This includes modifying preference policies to consider class – so minorities that are truly disadvantaged get the most preferences, and so poor whites are also considered in programs like jobs and university admissions. What does confirmative action entail? It entails a merit-based approach that is continually evolving. Guinier asks, for example, college administrators, to revamp their admissions policies based on various factors: Practicing confirmative action, each institution would, with its specific mission in mind, regularly review and seek feedback on its admissions program. And it would ask several important questions to guide such efforts: Are admissions processes consistent with the institution's purposes? Do they award opportunity broadly? Do they admit people who demonstrate competence and potential under a range of relevant measures? Are the relevant stakeholders involved in helping formulate, give feedback on, and carry out the criteria that are adopted? Do their decisions support the institution as a public place? Are graduates contributing back to the institution and the society it serves? This continual review process would involve, presumably, seeing what is working and what is not. This is a flaw Guinier finds in traditional affirmative action. Her rationale for these reforms is simple. If admissions policies and employment opportunities are truly to be merit-based, we need to admit that those merit-based criteria exclude certain people – you’re not going to get as good grades as other kids, usually, if you need a 40-hour a week job and/or don’t get enough to eat. Hence, Guinier writes: By framing diversity as simply about preferences for persons of color, the current controversy over affirmative action fails to examine how the conventional "merit-based" criteria that we assume to be fair systematically exclude poor and working-class people of every racial group, including whites. Such criteria also fail to predict the most important elements of merit in a multiracial democracy: who will contribute to the society as a whole after graduation. So a policy of “confirmative action” would include economics as a decision calculus, and would include an assessment of what contributions society as a whole can expect from the student or worker after the preference policy assists them. The lesson of history is that the only mechanism that has ever worked to counteract occupational segregation is affirmative action, and that even good-faith efforts were ineffectual until they were backed up with specific goals and timetables. Too much is at stake to retreat to a second line of defense, especially one so fraught with difficulty. The crusade against affirmative action may well be on the verge of achieving its nefarious objective. But this is all the more reason to remain steadfast in defense of a policy that has not only advanced the cause of justice for women and minorities, but in doing so, has enhanced American democracy. Instead of venturing into the realm of personnel relations and testing, it would have been far better had Sturm and Guinier used their talents as legal scholars to plead the case for affirmative action. As we know it. CONCLUSION Whether you agree or disagree with Lani Guinier’s ideas -- and whether you disagree with her from the left or the right – you have to admit her ideas are provocative. People that are interested in building a more racially just, economically viable future should check out her work. 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