Affirmative defense

“ Today, the restrictions on government power foremost in many Americans' minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. ”

“ If a judge, for example, in the selection of jurors to serve in his court should knowingly and intentionally allow a particular race to be excluded from such service on account of race or color, the effect would be the same as if the State, through its Legislature, had passed a law for that purpose. The colored men in the States complained of, have been disfranchised in violation of the spirit if not the letter of the Constitution, either by affirmative State action, or through and by the State's agents and representatives. ”

“ Every State Constitution limits the right to a part only of the people, which is denial of right to the other portion of the people, and not regulation or the right by way of adjective qualifications, as illustrated above. Can sex either qualify or disqualify a chooser, one of the people to cast a ballot for President? All the States, in unchecked nullification, pronounce in the affirmative and write it in their constitutions—the masculine qualifies, the feminine disqualifies—and this has just now been echoed by the Supreme Court of the United States! ”

“ In addition to relying on stereotypes, UT’s argument that it needs racial preferences to admit privileged minori­ties turns the concept of affirmative action on its head. When affirmative action programs were first adopted, it was for the purpose of helping the disadvantaged. ”

“ The strong basis in evidence required of a public entity defending an affirmative action program in court is provided by evidence sufficient to support a prima facie case of discrimination against the favored minority. ”

“ It is noteworthy, however, that among the stark cold negations of the Confederation act, there were two 310warm affirmative provisions, one securing to persons of every color equal rights in all the States, the other making each man’s conscience the teacher and judge of his religious belief. ”

“ To promote the achievement of equality, legislative and other measures may be taken by way of affirmative action to protect or advance people or classes of people who have been disadvantaged by unfair discrimination. ”

“ Oh, I'm a firm believer in affirmative action. The question that was asked was, do I think that my daughters are disadvantaged. And I said no, because their father is a United States senator and both their parents are working professionals. But what I also said is that there is a strong and ongoing intersection between race and class in this country — that racism is still an issue that has to battled. Affirmative action is an important tool, although a limited tool, for us to deal with these issues. ”

“ It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, or national origin, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. ”

“ And that, in a distinct sense, is what "affirmative action," in the face of proper facts, is all about. If this conflicts with idealistic equality, that tension is original Fourteenth Amendment tension, constitutionally conceived and constitutionally imposed, and it is part of the Amendment's very nature until complete equality is achieved in the area. ”

“ If, then, exemption from discrimination in respect of civil rights is a new constitutional right, secured by the grant of state citizenship to colored citizens of the United States, why may not the nation, by means of its own legislation of a primary direct character, guard, protect, and enforce that right? ”

“ Establish this precedent, admit the State's right to deny suffrage, and there is no limit to the confusion, discord and disruption that may await us. There is and can be but one safe principle of government—equal rights to all. Discrimination against any class on account of color, race, nativity, sex, property, culture, can but embitter and disaffect that class, and thereby endanger the safety of the whole people. Clearly, then, the national government not only must define the rights of citizens, but must stretch out its powerful hand and protect them in every State in this Union. ”

“ So I still believe in affirmative action as a means of overcoming both historic and potentially current discrimination, but I think that it can't be a quota system and it can't be something that is simply applied without looking at the whole person, whether that person is black or white or Hispanic, male or female.
What we want to do is make sure that people who have been locked out of opportunity are going to be able to walk through those doors of opportunity in the future. ”

“ It is true that standards in this area have not been definitely formulated, and that acts of discrimination have been included within the compass of the Equal Protection Clause not merely when they were compelled by a state statute or other governmental pressures, but also when they were said to be 'induced' or 'authorized' by the State. Most of these cases, however, can be approached in terms of the impact and extent of affirmative state governmental activities, e.g., the action of a sheriff, Lombard v. Louisiana, supra; the official supervision over a park, Evans v. Newton, supra ”

“ I recommend that you take additional steps to insure equal justice to all of our people by effectively enforcing nondiscrimination in Federal and State jury selection, by making it a serious Federal crime to obstruct public and private efforts to secure civil rights, and by outlawing discrimination in the sale and rental of housing. ”

“ The affirmative enforcement of the rights and privileges themselves, unless something more is expressed, does not devolve upon it, but belongs to the state government as a part of its residuary sovereignty.' 1 Woods, 308, 314-316. ”

“ In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot — we dare not — let the Equal Protection Clause perpetuate racial supremacy. ”

“ Are the characteristics of the class such as to provide a rational justification for the difference in treatment?
Such a rational basis is completely lacking where, as here, the discrimination stems directly from racial hatred and nitolerance. The Constitution of the United States, as I read it, embodies the highest political ideals of which man is capable. It insists that our government, whether state or federal, shall respect and observe the dignity of each individual, whatever may be the name of his race, the color of his skin or the nature of his beliefs. ”

“ Exercising his unique genius for profound thought in plain language, Lincoln said that "The great principle or idea" assuring our permanence as a nation is its promise "that all should have an equal chance."
The struggle to see that promise fulfilled has continued in our own era and, through the civil rights movement, has inspired new Federal laws that seek to guarantee that "equal chance" by prohibiting discrimination against any citizen on the basis of race, gender, ethnicity, age, or handicap. We can be proud of the progress we have made in securing the civil rights of all Americans. ”

“ As Justice O'Connor characterized the analogous employment situation, "public employers are trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy apparent employment discrimination and liability to nonminorities if affirmative action is taken." ”

“ I stress the qualification that there must be no prejudice to basic rights. Majoritarian opinion can often be harsh to minorities that exist outside the mainstream. [95] It is precisely the function of the Constitution and the law to step in and counteract rather than reinforce unfair discrimination against a minority. The test, whether majoritarian or minoritarian positions are involved, must always be whether the measure under scrutiny promotes or retards the achievement of human dignity, equality and freedom. ”

“ It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? ”

“ But there are some today who, in the name of equality, would have us practice discrimination. They have turned our civil rights laws on their head, claiming they mean exactly the opposite of what they say. These people tell us that the Government should enforce discrimination in favor of some groups through hiring quotas, under which people get or lose particular jobs or promotions solely because of their race or sex. Some bluntly assert that our civil rights laws only apply to special groups and were never intended to protect every American. ”

“ For two centuries, my own country has struggled to overcome the self-imposed handicap of prejudice and discrimination based on nationality, on social class or race — discrimination profoundly repugnant to the theory and to the command of our Constitution. ”

“ As stated in the first part of the same Report, p. 18:
'Today, more than 100 years after their formal emancipation, Negroes, who make up over 10 percent of our population, are by virtue of one or another type of discrimination not accorded the rights, privileges, and opportunities which are considered to be, and must be, the birthright of all citizens.' When one citizen because of his race, creed, or color is denied the privilege of being treated as any other citizen in places of public accommodation, we have classes of citizenship, one being more degrading than the other. ”

“ Article III.—This society shall aim to elevate the character and condition of the people of color, by encouraging their intellectual, moral, and religious improvement, and by removing public prejudice, that thus they may, according to their intellectual and moral worth, share an equality with the whites of civil and religious privileges; but this society will never, in any way, countenance the oppressed in vindicating their rights by resorting to physical force. ”

“ The answer seems to be that as regards political rights, Race and blood should not be made the ground of discrimination. Where the bulk of the colored Race are obviously unfit for political power, a qualification based on property and education might be established which should permit the upper section of that Race to enjoy the suffrage. Such a qualification would doubtless exclude some of the poorest and most ignorant whites, and might on that ground be resisted. ”

“ Certainly the insistence by individuals on their private prejudices as to race, color or creed, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a State to extend the area of non-discrimination beyond that which the Constitution itself exacts. ”

“ In the 60 years from Plessy to Brown, ours was a Nation where, by law, individuals could be given "special" treatment based on race. For us now to say that the principle of color-blindness prevents the University from giving "special" consideration to race when this Court, in 1896 licensed the states to continue to consider race, is to make a mockery of the principle of "equal justice under law." ”

“ It has agreed that American citizenship shall be the only credential necessary to justify the claim of equality before the law, and that no condition in life shall give rise to discrimination in the treatment of the people by their Government. ”

“ The great difference between a negative and an affirmative power is, that one can only prohibit, whilst the other can create; and this difference has settled the judgment of the soundest political writers in estimating the inconveniences resulting from a negative power, able only to prevent laws from being enacted or having effect; or from an affirmative power able to enact and enforce laws, contrary to the theory established for the preservation of liberty, without being subjected to any negative check. ”

“ What I affirm is that no state, nor the officers of any state, nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in their civil rights, because of their race, or because they once labored under disabilities imposed upon them as a race. ”