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Affirmative Action Ruling Explained by “Smokers' Rights”
New Rights Found by Judges in Constitution Vulnerable to Voters
Known as the “political restructuring doctrine,” it has been used to strike down governmental actions which made it more difficult for some minority groups to seek benefits through the political process.
Yesterday's straight forward analysis - which might seem self evidence to most non-lawyers - apparently escaped many judges ruling on the rights of blacks, gays, and others, who said that once judges discovered that such special rights existed, not even a constitutional amendment could end them. Strangely, the fact that permitting racial preferences seriously harms Asian students wasn’t mentioned by any justice.
The absurdity of the proposition can best be illustrated by the concept of "smokers' rights," suggests public interest law professor John Banzhaf, who has successfully fought many attempts to have judges hold that smokers as a group have any special privileges or protections under the constitution.
Imagine, says Banzhaf, that the highest court in some state held that smokers were members of a protected class because they lacked political power, were looked down upon, and suffered discrimination.
If, based upon that finding, the court further held that employers could no longer refuse to hire smokers, that workplaces could not ban smoking entirely, and that state universities should give preference to smokers to provide more diversity, it's quite likely that the overwhelming majority of voters would rebel against such a ruling, and quickly amend the constitution to ban any special protections for smokers.
Under the theory advanced by the respondents, and adopted by the 6th Circuit, "a difficult question of public policy must be taken from the reach of the voters . . . voters are not capable of deciding an issue of this sensitivity on decent and rational grounds,” in the words of Justice Kennedy.
But arguing that smokers would then enjoy special protections forever, regardless even of changes in the constitution adopted overwhelmingly by voters, is absurd on its face, says Banzhaf, who, for example, helped persuade Congress to incorporate into Obamacare a 50% surcharge on smokers.
The same irrational argument could also be applied to other groups like lawyers who are likewise looked down upon and are frequently discriminated against when landlords and condo boards refuse to have them as tenants - because they are too quick to sue when they don’t get their way.
Would that even more absurd result - that once a state's highest court awarded attorneys special protections, the voters were powerless to correct this clear miscarriage of justice by amending the constitution - be tolerated under any rational system of law, and especially our checks-and-balances form of government under which our governments derive their just powers from the consent of the governed.
If all governmental powers derive from the governed, the governed aught to be able to make important changes by amending the constitution, suggests Banzhaf.
Sometimes it just takes a few simple examples to help people see the absurdity of a high-sounding legal argument: “smokers’ rights” and “lawyers’ rights” are absurd enough to do the trick, he says.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
GWU Law School
202 994-7229 / 703 527-8418