Thomas' mindset may be out of sync with the last 70 years of the Supreme Court, but it's highly consistent with what the court was like before Roosevelt. Attempts to paint Thomas (and Scalia) as radicals contain an unsupported claim that 70 years of movement toward more federal power was itself not a radical change.

Why, for example, do we have 19th amemdment (granting women's right to vote)? In today's climate, the Supreme Court would simply rule that women had the right to vote. In 1920 however, the Supreme Court felt bound by what the constitution actually says, rather than what they felt it should say or could be interpreted to say if one wasn't much constrained by the dictionary.

So the way to grant women's suffrage was to amend the consitution.

That's not radical.

As to "how America would be different should Thomas' vision ever become law". Thomas's critics suggest that upholding principle is to advocate one side or the other of a question. That Thomas "envisions an America" where those he voted against are permanently suppressed. That's simply bogus.

Not all legal means are appropriate to achieve a desired goal. Principle is important, bacause it solidifies the progress. Decisions made capriciously can be unmade capriciously. When Thomas seeks to restrict wild interpretations of what it means to regulate commerce, he's not envisioning an America where the losers of his decisions are left without recourse. He, in effect, is telling them to "do it the right way".

Consider the current medical marijuana tension. The constitution, as written, clearly grants the various states the right to legalize or criminalize medical marijuana. And yet, the federal government, based on the same kind of interpretation which Thomas opposes, claims the right to enforce national criminalization.

dwshelf is apparently unaware of the Great Depression, which occured as a direct result of wealth disparities which were facilitated by Thomas' prefered method of interpreting the Constitution.

Given the choose between adhering to some outdated strict constructionism, and avoiding economic collapse, I think I'll stick with the later.

Thomas' rulings are consistent with the pre-Roosevelt SC. But what was that America like? Is it a coincidence that the SC of that period tended to side with corporations over workers, with white supremacy over human rights, with men over women? I don't think it was. Strict Constructionism GIVEN THE AMERICAN CONTEXT supports outcomes that subjugate women of all incomes, whites workers of all incomes, and nonwhites in general.

Is it a coincidence that the SC of that period tended to side with corporations over workers, with white supremacy over human rights, with men over women? I don't think it was.

The supreme court sided with the constitution.

Observe that slavery ended, and universal suffrage appeared during this era. Both were, in contemporary world context, historical giants of American leadership of advancement of civilization. The SC simply took no position regarding "progress". They didn't block it, nor require it.

Real progress occurs when the people develop a consensus, not when some court demands submission to what it judges as progress. Those who seek the quick fix of a court decision must fear easy-come-easy-go, as the political tide ebbs and flows.

Unsupported statements which suggest that a strict constructionist court now would return us to 1920's social equations, or cause economic depression, simply lack plausibility. For one, a strict constructionist court would be a court passing real power back to the people.

For one, a strict constructionist court would be a court passing real power back to the people.

How does that work?

The alternative to an activist court is the amendment process.

The amendment process requires a supermajority which cannot be achived without broad popular support, and over a period of time. That is power by and for people.

An activist court can't actually be hostile to a broad public consensus, because it would prompt the kind of outrage which would constrict such power. So what we have today is an activist court which picks and chooses among moderately popular progressive opinions. This avoids a requirement for broad consensus.

So we end up with "moderately popular + 9 people" vs "broad, long lived consensus of all people".

Americans have shown broad, long lived support for fairness. It's a good bet that if a strict constructionist court made it clear that the way to address what appears to be unfair was via the amendment process rather than via petitioning the Supreme Court, such amendments would come into being. Once in place, they would not be subject to "progressive" interpretations which only seem progressive to half of the people.

What has this activist court done that there is not a broad consensus on?

Thaere are many (capital punishment, affirmative action), but a bigger point involves those for which such a consensus might have existed at the time, or for which a conensus arose later.

Roe v Wade, to name the biggest one.

There may well be a broad consensus today, broad enough to support an amendment in favor of abortion rights. But there was not such a consensus in 1973. And there might not exist such a consensus in 2013.

Less flashy, but far more important are decisons that interpret the "commerce clause" as permitting the federal government to regulate racial and handicapped discrimination, and to effect such things as the minimum wage law. What seems to be a Rock of Gibralter today actually has extraordinarily weak legal underpinning. The same Stare decisis which supports anti-discrimination today could be used to support back-of-the-bus in the future. All it would take is a political wind shift. A big one, no doubt. But we're lacking the rudder of a real reading of the constitution.

The problem is that the constitution doesn't say anything which gives the federal government the right to control such things. To the extent that the feds should be controlling discrimination, the constitution should spell out the responsibilities and limititations of such, and what it means.

To begin with, you've named issues over which a really vocal minority raise contention. But, for instances, the Supreme Court has ruled in favor of the existance of capital punishment. And a majority of Americans still favor programs designed to help folks overcome discrimination.

Furthermore, the same amendment process you support is available for your use right now. I see no grounds for complaint.

The same Stare decisis which supports anti-discrimination today could be used to support back-of-the-bus in the future.

Nonsense. Stare decisis doesn't leapfrog over as many precedents as a judge feels appropriate.

All it would take is a political wind shift. A big one, no doubt.

Wrong metaphor: you're not talking wind, you're talking tectonic plates. Trust me, that massive a shift takes place you're in a new game with new rules and you have a lot bigger problems than you can even imagine right now.

But, for instances, the Supreme Court has ruled in favor of the existance of capital punishment.

Yes, but for ten years, 1967-77, they ruled it unconstitutional. They continue to maintain strong control over individual cases.

And a majority of Americans still favor programs designed to help folks overcome discrimination.

Yes, we do. But we disagree strongly regarding what that means. There is not, and never was a consensus that a member of one race should, by law, be passed over in favor of a member of another race when doing business with the government (well, not since George Wallace switched sides). And yet at one time, the Supreme Court required this governmental behavior. They've backed down in the face of a broad conensus against racial unfairness.

Stare decisis doesn't leapfrog over as many precedents as a judge feels appropriate.
The stare decisis under discussion is a body of SC decisions granting the federal government broad authority to intrude into the daily lives of people under the cover of regulating interstate commerce.

As written, the amended constitution largely protects individials, and then the states from the federal government. The activist court has turned this on its ear. The feds have been granted the right to control a huge array of activity which has no obvious connection to interstate commerce at all. This body of rulings would support the federal government in pretty much whatever they wanted to do. Does that seem scary to you p6?

Or have you abandoned principle in favor of an uncontrollable force which seems to be favorable, somewhat, for the moment, while the principled path seems scary?

Furthermore, the same amendment process you support is available for your use right now. I see no grounds for complaint.

When the US Supreme court can rule that the constitution says whatever they say it says, the amendment process is severly compromised.

But, for instances, the Supreme Court has ruled in favor of the existance of capital punishment.

Yes, but for ten years, 1967-77, they ruled it unconstitutional. They continue to maintain strong control over individual cases.

You're confusing statutory law (the principle) and procedural law (the implementation). The Supreme Court declared the procedural law unconstitutional.

And a majority of Americans still favor programs designed to help folks overcome discrimination.

Yes, we do. But we disagree strongly regarding what that means. There is not, and never was a consensus that a member of one race should, by law, be passed over in favor of a member of another race when doing business with the government (well, not since George Wallace switched sides). And yet at one time, the Supreme Court required this governmental behavior.

The Supreme Court never required any such behavior. The Supreme Court ruled various Executive Orders, legislation and voluntary programs were not unconstitutional. Lower courts have ruled against defendants who were objectively found to have discriminated and the Supreme Court upheld them.

You can't name a court-ordered affirmative action program. I think you're confusing affirmative action programs and busing.

They've backed down in the face of a broad conensus against racial unfairness.

I'd describe it differently.

Stare decisis doesn't leapfrog over as many precedents as a judge feels appropriate.

The stare decisis under discussion is a body of SC decisions granting the federal government broad authority to intrude into the daily lives of people under the cover of regulating interstate commerce.

You realize I'm going to ask for specifics every time you make such a broad, unsupported statement, right?

This body of rulings would support the federal government in pretty much whatever they wanted to do. Does that seem scary to you p6?

No.

Or have you abandoned principle in favor of an uncontrollable force which seems to be favorable, somewhat, for the moment, while the principled path seems scary?

No.

When the US Supreme court can rule that the constitution says whatever they say it says, the amendment process is severly compromised.

That's why you must accept stare decisis, which isn't even a principle but just an observation of what is necessary for jurisprudence to have any meaning at all.

And yet at one time, the Supreme Court required this governmental behavior (racial preference).

You can't name a court-ordered affirmative action program. I think you're confusing affirmative action programs and busing.

United States vs Paradise. A federal court flat out ordered a racial quota, an order upheld by the supreme court.

I do take your point p6 as having general validity. Indeed, in general, the courts upheld affirmative action programs effected by legislatures or executive order, as compared to compelling them themselves. They did, however, by Paradise in particular, but also by other lower court decisions which were not accepted for review, establish an overriding threat to take action if they felt the process was not proceeding according to their stardards.

You realize I'm going to ask for specifics every time you make such a broad, unsupported statement, right?
How many examples of the "commerce clause" being interpreted far beyond its textual meaning do you need? This isn't controversial, p6. We disagree on many things, but the effect of the commerce clause phenomenom is not likely really one of them. It grants the federal government broad powers over our daily lives. We can differ regarding whether this is or is not a good thing, but it's a simple fact that it has occurred.

That's why you must accept stare decisis, which isn't even a principle but just an observation of what is necessary for jurisprudence to have any meaning at all.

There's no doubt that stare decisis is a conservative force, in the sense of conservative as being non-radical. The thought, and it's a rational thought, is to keep things from changing too fast and too frequently. So far so good.

Where it fails is in minimizing the opportunity for long term drift into radicalism.

In United States vs Paradise, Alabama was being obstructionist and simply not in compliance wiuth Federal Law. Just as when you drive too fast the police must exceed the speed limit to catch and punish you, conscious exclusion based on race can only be undone it by conscious inclusion race.

This wasn't an affirmative action program. This was punishment. Where's the problem?

Argued November 12, 1986
Decided February 25, 1987

In 1972, upon finding that, for almost four decades, the Alabama Department of Public Safety (Department) had systematically excluded blacks from employment as state troopers in violation of the Fourteenth Amendment, the District Court issued an order imposing a hiring quota and requiring the Department to refrain from engaging in discrimination in its employment practices, including promotions. By 1979, no blacks had attained the upper ranks of the Department. The court therefore approved a partial consent decree in which the Department agreed to develop within one year a procedure for promotion to corporal that would have no adverse impact on blacks and would comply with the Uniform Guidelines on Employee Selection Procedures (Guidelines), and thereafter to develop similar procedures for the other upper ranks (1979 Decree). As of 1981, however, more than a year after the 1979 Decree's deadline, no black troopers had been promoted. The court approved a second consent decree in which the parties agreed that the Department's proposed corporal promotion test would be administered to applicants, that the results would be reviewed to determine any adverse impact on blacks under the Guidelines, that the determination of a procedure would be submitted to the court if the parties were unable to agree thereon, and that no promotions would occur until the parties agreed or the court ruled upon the promotion method to be used (1981 Decree). Of the 60 blacks to whom the test was administered, only 5 (8.3%) were listed in the top half of the promotional register, and the highest ranked black was number 80. The Department then declared that it had an immediate need for between 8 and 10 new corporals and stated its intention to elevate between 16 and 20 individuals before constructing a new list. The United States objected to any use of the list in making promotions. In 1983, the District Court held that the test had an adverse impact on blacks, and ordered the Department to submit a plan to promote at least 15 qualified candidates to corporal in a manner that would not have an adverse racial impact. The Department proposed to promote 4 blacks among the 15 new corporals, but the court rejected that proposal and ordered that "for a period of time," at least 50% of those promoted to corporal must be black, if qualified black candidates were available, and imposed a 50% promotional requirement in the other upper ranks, but only [480 U.S. 149, 150] if there were qualified black candidates, if a particular rank were less than 25% black, and if the Department had not developed and implemented a promotion plan without adverse impact for the relevant rank. The Department was also ordered to submit a realistic schedule for the development of promotional procedures for all ranks above the entry level. Subsequently, the Department promoted eight blacks and eight whites under the court's order, and submitted its proposed corporal and sergeant promotional procedures, at which times the court suspended the 50% requirement for those ranks. The United States appealed the court's order on the ground that it violated the Fourteenth Amendment's equal protection guarantee. The Court of Appeals affirmed the order.

Held:

The judgment is affirmed.

767 F.2d 1514, affirmed.

JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE POWELL, concluded that, even under a strict scrutiny analysis, the one-black-for-one-white promotion requirement is permissible under the Equal Protection Clause of the Fourteenth Amendment. Pp. 166-186.

1. The race-conscious relief ordered by the District Court is justified by a compelling governmental interest in eradicating the Department's pervasive, systematic, and obstinate discriminatory exclusion of blacks. The contention that promotion relief is unjustified because the Department has been found to have committed only hiring discrimination is without merit, since promotion, like hiring, has been a central concern of the District Court since the action's commencement. The Department's intentional hiring discrimination had a profound effect on the force's upper ranks by precluding blacks from competing for promotions. Moreover, the record amply demonstrates that the Department's promotional procedure is itself discriminatory, resulting in an upper rank structure that totally excludes blacks. Pp. 166-170.

2. The District Court's enforcement order is also supported by the societal interest in compliance with federal-court judgments. The Department has had a consistent history of resistance to the District Court's orders, and relief was imposed only after the Department failed to live up to its court-approved commitments. Pp. 170-171.

3. The one-for-one promotional requirement is narrowly tailored to serve its purposes, both as applied to the initial corporal promotions and as a continuing contingent order with respect to the upper ranks. Pp. 171-186.

(a) The one-for-one requirement is necessary to eliminate the effects of the Department's long-term, open, and pervasive discrimination, including the absolute exclusion of blacks in the upper ranks; to ensure [480 U.S. 149, 151] expeditious compliance with the 1979 and 1981 Decrees by inducing the implementation of a promotional procedure that would not have an adverse racial impact; and to eradicate the ill effects of the Department's delay in producing such a procedure. The option proffered by the Department - to promote 4 blacks and 11 whites as a stopgap measure, and to allow additional time for the development and submission of a nondiscriminatory procedure - would not have satisfied any of the above purposes. Furthermore, the heavy fines and fees suggested by the Government as an alternative were never actually proposed to the District Court; were likely to be ineffective since the imposition of attorney's fees and costs in the past had not prevented delays; would not have compensated the plaintiffs for the delays; and would not have satisfied the Department's need to make 15 promotions immediately. Pp. 171-177.

(b) The one-for-one requirement is flexible in application at all ranks, in that it applies only when the Department needs to make promotions and does not require gratuitous promotions. Furthermore, the requirement may be waived by the court if there are no qualified black troopers, and, in fact, this has already happened with respect to lieutenant and captain positions. Moreover, the requirement is temporary, its term being contingent upon the Department's successful implementation of valid promotional procedures. It was, in fact, suspended upon the timely submission of procedures for promotion to corporal and sergeant. Pp. 177-178.

(c) The numerical relief ordered bears a proper relation to the percentage of nonwhites in the relevant work force, since the District Court ordered 50% black promotions until each rank is 25% black, whereas blacks constitute 25% of the relevant labor market. The one-for-one requirement is not arbitrary when compared to the 25% minority labor pool, since the 50% figure is not itself the goal but merely represents the speed at which the 25% goal will be achieved, some promptness being justified by the Department's history of discrimination and delays. Although the 50% figure necessarily involves a degree of imprecision, it represents the District Court's informed attempt to balance the rights and interests of the plaintiffs, the Department, and white troopers. Pp. 179-182.

(d) The one-for-one requirement does not impose an unacceptable burden on innocent white promotion applicants. The requirement is temporary and limited in nature, has only been used once, and may never be used again. It does not bar, but simply postpones, advancement by some whites, and does not require the layoff or discharge of whites or the promotion of unqualified blacks over qualified whites. Pp. 182-183.

(e) District judges, having firsthand experience with the parties and the particular situation, are given broad discretion to fashion [480 U.S. 149, 152] appropriate remedies to cure Fourteenth Amendment violations, and the exercise of that discretion is entitled to substantial respect. Pp. 183-185.

JUSTICE STEVENS concluded that Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1 , sets forth the appropriate governing standards for district court remedial orders in cases such as the present that involve racially discriminatory state actions violative of the Fourteenth Amendment. Because the record here discloses an egregious violation of the Equal Protection Clause, the District Court had broad and flexible authority to fashion race-conscious relief under the Swann standards. There has been no showing that the District Judge abused his discretion in doing so. Pp. 189-195.

conscious exclusion based on race can only be undone it by conscious inclusion race.

That's what I call "affirmative action". When the court ordered it, I called it "court ordered affirmative action". But maybe we can agree on a different word for such an action. I make no claim to be the authority regarding how to define words or terms or idioms.

All the court ordered was obediance to the law. You got a problem with that?

So we're agreeing that the court ordered affirmative action?

Yes, I have a problem with that.

The law says the Alabama (state police) cannot discriminate. That law should be vigorously enforced.

If the law is being ignored, people should be fired. Maybe imprisoned. Maybe lots of people. The law should be vigorously enforced.

So we're agreeing that the court ordered affirmative action?

No. The court was vigorously enforcing the law.

What could the court do but what it did? The whole state government of Alabama defied the law openly. Fines were applied, plans were creatd by Alabama and promises to follow them were broken. And jailing people would not accomplish the purpose of the law.

If the law is being ignored, people should be fired.

Who's going to fire them? It's the guys who do the firing that were the racists.

It never gets to this point unless someone responsible for enforcing equal access is willfully discrimating in plainly visible fashion.

Now, you were all in favor of "bad Black parents" being dominated for their own good. Why are you objecting when force is applied to white folks to compel adherance to law and social standards?

Why are you objecting when force is applied to white folks to compel adherance to law and social standards?

I'm not objecting to force being applied, I was willing to put them in prison.

Racial discrimination in government hiring and promotion should be a very serious matter, a form of defrauding the government and the people. Like putting one's mistress in a position of authority rather than someone who deserved the job.

If someone does that, at the very least they should be fired. We should expect them to repay the fraud. If they've done it in a serial fashion, maybe they should go to prison.

If they've been in a position of authority over someone who did do it, and knew of it but took no action, they're equally guilty.

That's what I meant by maybe lots of people need to be punished.

The wrong answer is to punish someone who had utterly nothing to do with the crime. And then we leave the guilty people in charge, unpunished? That just seems illogical. And yet, a court ordered, and the supreme court upheld the order to punish the innocent under their interpretation of what it means to regulate interstate commmerce.

Punish the guilty.

I'm not objecting to force being applied, I was willing to put them in prison.

But you're not willing to force correct behavior as you are with Black folks. Domination is in keeping with democracy, remember?

Racial discrimination in government hiring and promotion should be a very serious matter, a form of defrauding the government and the people. Like putting one's mistress in a position of authority rather than someone who deserved the job.

If someone does that, at the very least they should be fired. We should expect them to repay the fraud. If they've done it in a serial fashion, maybe they should go to prison.

And if it's an institution? A branch of government? And if the discrimination has widespread approval from the governed?

You keep talking like it's only a matter of the behavior of individuals. It's the behavior of institutions that the Supreme Court is dealing with, and if all were right with the world those individuals you say are punished with no fault would take their ire out on their leaders, who by breaking the law brought the institution to that pass. But they don't either because they approve or because the peer pressure from those who approve is too much for them.

But you're not willing to force correct behavior as you are with Black folks.

I'm willing to put serial violaters in prison. That's considerably more force than I would apply to defective, albeit non-abusive parents.

And if it's an institution? A branch of government?

Discrimination is perpetrated by people. A person, or maybe a group of people makes the discriminating decision. These people, if they do such as part of government business, should be criminally prosecuted.

And if the discrimination has widespread approval from the governed?

"They told me to do it" isn't much of a defense against criminal charges.

if all were right with the world those individuals you say are punished with no fault would take their ire out on their leaders,

We're not a vigilante society. We live by the rule of law.

But they don't either because they approve

You can't be serious p6. You're willing to argue that a person should be punished, not for committing a crime, but because someone else committed a crime, and because our subject might have approved of the crime being committed? And we're identifying these subjects by one characteristic: race?

Discrimination is perpetrated by people. A person, or maybe a group of people makes the discriminating decision. These people, if they do such as part of government business, should be criminally prosecuted.

And when it's the whole government, as in this case?

When the rules are set up so that an individual CAN NOT do the right thing without suffering?

When every level of the state government is involved?

Do you understand the enormity (which word I, inlike CNN's anchors, use correctly) of the problem? You say PEOPLE discriminate but when it's 70-80% of the people and the balance are silent it is fair to say they are all complicit. And there IS no local recourse. Who would do the arresting? Remember we are not talking individuals we are talking a systemic program, understood adhered to and in keeping with local mores and standards. Do you really not understand that?

You're willing to argue that a person should be punished, not for committing a crime, but because someone else committed a crime, and because our subject might have approved of the crime being committed?

They aided, abetted and benefitted from the crime by receiving preferential treatment. If you want to call counterbalancing that extra priviledge "punishment," it wouldn't surprise me. It's the same reasoning that lets one call cancelling a wealth transfer that hasn't happened yet a "tax increase."

This was 1984. Twenty years after the legal end of Jim Crow. The people who fought tooth and nail against that end were the defendants in the case. And their kids run things now.

Stop conflating past and present. History makes more sense when you look at it in sequence.

And we're identifying these subjects by one characteristic: race?

We are identifying them by their racist actions.

I can tell the difference between the two.

Do you understand the enormity (which word I, inlike CNN's anchors, use correctly) of the problem?

I understand that a discriminatory culture, like a corrupt culture, runs deep.

You say PEOPLE discriminate but when it's 70-80% of the people and the balance are silent it is fair to say they are all complicit.

We're talking about promotions in the Alabama state police here. Surely the number of people deciding who would be promoted is limited to an identifiable group.

And there IS no local recourse. Who would do the arresting? Remember we are not talking individuals we are talking a systemic program, understood adhered to and in keeping with local mores and standards. Do you really not understand that?

As in the case of a corrupt culture, I have no problem with the feds moving in to clean up. If 150 people needed to be fired, so be it. If the governor was part of the action, then charge him too.

They aided, abetted and benefitted from the crime by receiving preferential treatment.

The people the court chose to punish did not. Numerically, most of the promotion decisions controlled by the court involved being promoted to corporal, the first promotion. They hadn't aided, abetted, or benefitted from any crime.

This was 1984. Twenty years after the legal end of Jim Crow. The people who fought tooth and nail against that end were the defendants in the case.

If they were abusing the authority of the office, they should have been fired. The remedy you support leaves them in charge, with no penalty whatsoever.

You say PEOPLE discriminate but when it's 70-80% of the people and the balance are silent it is fair to say they are all complicit.

We're talking about promotions in the Alabama state police here. Surely the number of people deciding who would be promoted is limited to an identifiable group.

And the number of people with the same damn attitude lined up to replace them, hired by people with the same damn attitude, was is innumerable. Going after one human at a time is not a solution. Therefore you counterbalance the racism and make their efforts fruitless.

They aided, abetted and benefitted from the crime by receiving preferential treatment.

The people the court chose to punish did not.

The people you're talking about weren't punished by the Supremem Court. They merely cannot receive the unjust privileges created for them by blatant racism.

You want to call that punishment, help yourself. But I don't.

They voted in the miscreants, knowing their positions...basically at the time folks ran on suppressing the nigras (plus ca change…)

Evil, racist regime over an evil racist culture. And they brok ethe law, willingly, knowingly and with the support of those YOU say are being punished. No. Fucking . Sympathy. Make of that what you will.

Okay, dw, here's the crux of the matter.

You say the Supreme Court punished people who were uninvolved in Alabama's racist regime in the 60s through the late 80s.

What was the punishment?

Being on the losing side of an order that a "qualified" black candidate would be promoted in preference to a "better qualified" non-black candidate.

If the order was simply to insist that better qualified candidates be promoted over lesser qualified or go to jail, you've got what I suggest. Even if that resulted in 100% black promotions for a while (because of a backlog of highly qualified candidates who had been discriminated against). If the order was to, among equally qualified candidates, to promote the black candiate, that would have been wrong, but not, well, egregiously unfair. In this case, the order was to consider, for this moment only, the entire range of "qualified at all" as "qualified", and to prmote 50% black candidates from among that pool. This was a direct punishment to a better qualified candidate who was denied a promotion because of race.

Being on the losing side of an order that a "qualified" black candidate would be promoted in preference to a "better qualified" non-black candidate.

Dump the bullshit quotation marks.

The system was, no Blacks hired. Should they go back to find out what white person was hired due to past exclusion and fire that guy?

The order was not retroactive, it simply said now you have to make up for your misdeeds going forward. And the guy who would have been promoted if the order wasn't in place cannot be considered to be punished or deprived by the lack of a job he never had because he still has a chance…which Black candidates would not.

Dump the bullshit quotation marks.

The words took on peculiar meaning in context. But I'll reduce the use of quotation marks.

The system was, no Blacks hired.

The order did not apply to hiring, it applied to promotion.

But even if you'd like to discuss a caricature of this case,
an artificially bleak case involving hiring, we're going
to come pretty much to the same place.

Let's agree on the facts of a fictitious case. Alababma state police refuse to hire a single Black, despite the application of some candidates far more qualified than some whites who were hired. The hiring decisions are made contrary to state and federal law. They're counter to abuse of authority criminal law. And now, ten years later, you and I are the court system and the FBI, and we're going to sort this mess out.

First off, we make it clear that a single instance of this behavior will result in felony criminal charges.

Then, we see if any of those hired were unqualified, and if so, we do in fact get them fired.

Then, we (with me at the forefront) detect that this discrimination occured as the result of people's deliberate action. We see to it that all such people get fired. That their pensions are revoked. We punish them, because they have it coming.

But we're still left with a racially unbalanced police force.

Even after we refill the upper ranks by promoting as many of the lower people as we can, we're left with no Blacks. Our new non-discriminatory hiring has in fact selected a reasonable number of Blacks, but they're still in the academy.

So what is left to do?

We have some victims. Some people who were denied hiring because of their race. What do we owe these victims?

The first thing we owe them is to aggressively prosecute the perps. Check. We did that.

The second thing, we owe them is some form of compensation. Now we're to the institution part. An employee does in fact act on behalf of his employer, and when he commits crimes in that role, the institution may be financially liable. Maybe we can identify them, maybe they're indentify themselves. But if it becomes clear that compensation is available, it won't be too hard to find receivers for such compensation.

Ok? Now we've fired the bad guys, compensated the victims, and got the program on track. I claim we're done, except for aome long term monitoring to make sure that everything stays on track.

The result of the long term monitoring is the court decision you don't like.

It seems we've successfully explored the space, p6.

Yet again, I thank you for a richer perspective.

It seems we've successfully explored the space, p6.

Not quite. We should explore reality.

Let's agree on the facts of the real case. Alabama refused top promote Black people irrespective of any qualifications. This was against federal law but totally in keeping with state law, the social mores and personal beliefs of a majority of the citizens of the state.

The Federal Government worked with the state for years in an attempt to get the state to comply with Federal law. The state pretended to comply, made up compliance programs and didn't follow them. Again, all this is supported by the population of the state.

The Federal Government punished the state mechanism by suborning its power to do ill because the population would not. And it is the state mechanism that is being punished, just as 'we are at war with Iraq, not the Iraqi people.'

We agree on the facts of the case. We agree on the seriousness of the offense.

We disagree on the remedy.

It'a a disagreement we've met before. It involves groupings of people as opposed to individuals.

I'm coming to understand such groupings better. I remain concerned that such groupings exist differently for each observer. I remain particularly concerned that "all white people" and "all black people" have both been used in government/court processes without a requirement to show that such a grouping is appropriate for the occasion. That we've asserted a political goal that we all share, participation of Black America in the great American dream, as being more deterministic than the profoundly logical reasoning which usually defines American law.

I remain particularly concerned that "all white people" and "all black people" have both been used in government/court processes without a requirement to show that such a grouping is appropriate for the occasion.

As it turns out that's not the case. The government/court processes must be focused on a compelling interest.

The court says "you who stand before me must do X for reasons A, B and C." The proper consequent conclusion isn't "all white people" but "all similarly situated white people." Honestly, if your situation and behavior is similar to that of the state of Alabama's you are correct to feel threatened by the decision, as I would be correct to call you a racist bastard that I give not half a fuck about.

You also think the non-delivery of a promise is a punishment. I REALLY don't understand that.

Honestly, if your situation and behavior is similar to that of the state of Alabama's you are correct to feel threatened by the decision, as I would be correct to call you a racist bastard that I give not half a fuck about.

I'm assuming some kind of abstract, collective "you" here, p6. I'm not personally threatened beyond the loss of principle in the legal system, and the unknown threats that brings. We might agree that this kind of reasoning, this same lack of principle, the absurd notion that the government has a compelling interest in racial discrimination, underlied Jim Crow laws.

You also think the non-delivery of a promise is a punishment. I REALLY don't understand that.

I think that not being promoted over a less qualified candidate is an injustice. If it's done to assuage past misdeeds, it's a punishment. If the misdeeds were by someone else, it's nonsense.

I'm assuming some kind of abstract, collective "you" here, p6.

The "you" is as abstract as the "if".

I think that not being promoted over a less qualified candidate is an injustice. If it's done to assuage past misdeeds, it's a punishment. If the misdeeds were by someone else, it's nonsense.

I think that not being promoted over a less qualified candidate is some shit that happens every day. There's a bigger problem with white folks getting promoted over more qualified white folks than the issue you're worried about. Correct that and you have all the righteous upward mobility you want. Correct that and you've fixed more injustice than correcting all the imaginary hoardes of unqualified Black people pushing aside all the imaginary hoarde of white people who have been on the receiving end of racial discrimination.

Besides which, the "more qualified" shibboleth coincidentally was created by people fighting tooth and nail against allowing any Black people anywhere near them. For instance, as long as civil service tests have existed, they create a pool of qualified candidates from which employees are drawn based on other qualifications (like nepotism).

These decisions are collective affairs and they must land on SOME individuals somewhere but where it lands is a matter of probabilities, not determinism. It's an adjustment to the environment, and in any such adjustment some will fare better than others. That's not a matter of being personally targeted and therefore not a matter of being punished, it's a matter of your ability to adjust…and you shouldn't call it punishment because when you make up your own definitions for words you cannot communicate the truth.

Collective "you."

These decisions are collective affairs and they must land on SOME individuals somewhere

I understand p6 that you see the group of people labeled "black people" as having been victimized by the group of people labeled "white people". I understand that.

You understand that I see a group of people labeled "actual victims", those who were denied a deserved promotion. And I see a group of people labeled "actual criminals", those who abused the authority of their office.

All of our differences flow from the differences at this level.

And what we have are two different analyses to choose from. We're not going to prove one right and the other wrong. I have zero expectation that you're going to say "ah, I agree with you, dw". It's not a game played for for the thrill of a win, the pleasure is in the journey itself.

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(I'm really trying to reduce the quotes, p6. I agree that I'm overly inclined to use them.)

I understand p6 that you see the group of people labeled "black people" as having been victimized by the group of people labeled "white people". I understand that.

You understand that I see a group of people labeled "actual victims", those who were denied a deserved promotion. And I see a group of people labeled "actual criminals", those who abused the authority of their office.

All of our differences flow from the differences at this level.

Our differences exist because you deny the validity of my view. I don't do that with yours.

I also acknowledge the best of intentions can be inpeded by circumstance…and that those circumstances can sometimes be changed. And that they should.

Sincerely, it seemed symmetrical to me. But I've gained wisdom here before, by gaining an understanding of your perspective, so I'm usually ready for another go.

What does it mean to "deny the validity" of a view? It sounds like something to avoid, at least in this kind of context.

I don't think you actually need that explained.