Court indeed had said since there was no single majority opinion. In an intriguing concurring opinion, Justices Marshall and Brennan expounded upon the notion of racial distinctions and racial categories which were "stigmatizing" and those which were "non-stigmatizing," in the sense of being directed at white individuals, could be judged by a far more lenient standard than those which were directed at traditionally discriminated-against groups.

Again, there was an unusually harsh dissent. Justice Stevens, while alluding to the German Reichstag Laws which had defined Jews as individuals undeserving of various legal protections during pre-war Germany, stated unequivocally that Congress' law created "monopoly privileges for a class of investors defined solely by racial characteristics." Justices Stewart and Rehnquist were even more blunt. They observed:

The equal protection standard of the Constitution has one clear and central meaning-it absolutely prohibits invidious discrimination by government... racial discrimination is by definition invidious discrimination. The rule cannot be any different when the persons injured by a racially biased law are not members of a racial minority. The guarantee of equal protection is universal in its application.

Such was the reverent silence that greeted the Fullilove decision, particularly it seems in Washington, that I hesitated before arguing on the floor of the Senate last year that it represented a shattering blow for "tyranny, discrimination and arbitrary government." At the same time, I introduced a proposed constitutional Amendment that would have restated the traditional purpose of the Fourteenth Amendment's equal protection clause by prohibiting Congress or the states from enacting or enforcing laws which make distinction on account of race, color, or national origin. In a comprehensive statement before the Congress, I outlined on September 3, 1980 the case against Affirmative Action and the case for such an Amendment.

CONCLUSION

Why has the spread of Affirmative Action been received in such deafening silence by America's opinion-makers? Why has a policy at such odds with fundamental American political ideals become so deeply entrenched with so relatively little controversy? There are a number of reasons. Partly, because Affirmative Action only marginally affects the press and politicians, Congress having thoughtfully exempted itself from all civil rights laws.

Partly also, because Affirmative Action is typical of modern politics in that its partisans are articulate, organized, and militant, while its opponents-I should more properly say its victims are leaderless, intimidated, and ill-informed.

And partly, and perhaps most importantly, because there are many in this country who have still not realized that Affirmative Action has nothing to do with the transcendant cause of civil rights. Affirmative Action is not the logical and inevitable result of the civil rights efforts of the past three decades. It is exactly and precisely the contrary. It is a radical departure from the spirit and genius of the American Constitution (and I would be the first to admit that we have not always been faithful to that spirit and genius) because it denies that all are entitled to equal protection of the laws. Instead, it says that what you get depends upon who you are, what your skin color or ethnic background is. It is a retreat to the medieval notion of government by status.

Affirmative Action is immoral (and is unconstitutional) for exactly the same reasons that discrimination is immoral (and is unconstitutional). It means that we are not treating people as individuals. It cannot be justified or regarded as some form of "reparation" for the wrongs of the past. The people who benefit from Affirmative Action are not the ones wronged and the people who must pay-blue collar workers like Brian Weber - are not the ones who committed the wrong. What is "moral" about that?

The concept of Affirmative Action as a "temporary" remedy to past discrimination concerns me in another sense. Because Affirmative Action relies so heavily upon the use of statistical evidence of racial imbalance or disparity, I am perplexed as to the criteria that society is to use in order to determine when the extraordinary and "temporary remedy" of Affirmative Action is no longer needed. In other words, if evidence of statistical imbalance suffices to justify Affirmative Action, in the first instance, what evidence, short of statistical equivalence, will suffice to suggest that Affirmative Action is no longer needed? What alternative criteria are there? So long as the benefits of society, in each and every respect, are not apportioned to each racial and ethnic group in minutely precise proportions, I am concerned that there will be continued calls for Affirmative Action. So long as we accept the premises of Affirmative Action, I can see no logical stopping place for it short of some unrealistic and never-to-be-attained state of absolute equality of result.

The longer that the "temporary" expedient of Affirmative Action is in place, the more that the supposed beneficiaries of Af

firmative Action will view it as an "entitlement," and the more difficult it will be to eliminate this "entitlement." (I share Professor Thomas Sowell's belief that there has been no real, longterm gain for minorities from most Affirmative Action programs.) There is little question in my own mind that Affirmative Action contains the potential for social division and disharmony of an unprecedented degree. The longer that our society organizes itself among the lines of its principles, the greater the likelihood that this potential will be realized.

While the Supreme Court has not been alone in its contribution to the growth of Affirmative Action in the United States, it shares the major responsibility. Not only has it been derelict in rejecting numerous opportunities to forthrightly reaffirm the principled thrust of its decisions on race over the past three decades, but through a blend of mal-interpretation (Griggs; Weber), uncommon exercise of judicial restraint (Defunis; Fullilove), and simple constitutional sophistry (Bakke; Fullilove), it has contributed substantially toward the development of a more race-conscious society. Given the leadership that the Court has exerted in the area of race relations since the Brown decision, this failure is compounded all the more. As Duke University Law Professor, William Van Alstyne, has put it, the Court has gone through one of its periodic "rites of passage" in dealing with the Affirmative Action controversy. It has failed in this, in my opinion; because of this we must now look to the legislative and executive branches of the national government for unaccustomed leadership on the racial issue. Debate over Affirmative Action may ebb and flow; it will not, I am quite confident, go away, however.

REFERENCES

1. Fullilove v. Klutznik, 100 S. Ct. 2758 (1980).

2. United Steelworkers of America, AFL-CIO-CLC v. Weber et al., 443 U.S. 193 (1979).

3. Alan Bakke v. Board of Regents of the University of California at Davis, 438 U.S. 265 (1978).

4. Plessy v. Ferguson, 163 U.S. 537 (1896).

5. Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954).

6. Loving v. Virginia, 388 U.S. 1 (1967).

7. Anderson v. Martin, 375 U.S. 399 (1964).

8. Evans v. Abney, 396 U.S. 435 (1970).

9. Griggs v. Duke Power Company, 401 U.S. 424 (1971).

10. Defunis v. Odegard, 414 U.S. 1038, 416 U.S, 312 (1974).

11. Roe v. Wade, 410 U.S. 113 (1973).

12. Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon and Schuster, 1979).

13. Bakke, n. 3 supra.

14. Weber, n. 2 supra.

15. Fullilove, n. 1 supra.

Benign Victimization

MIDGE DECTER

Despite the fact that the policy known euphemistically as "affirmative action" is held in disfavor by an overriding majority of the American people, it seems safe to say that racial and sexual quotas are solidly established in our midst and will remain so for the foreseeable future. Indeed, nothing less than a serious social upheaval or major constitutional crisis - certainly no mere change of administrations or shift in the balance of congressional power is apt to dislodge them. For public disapproval of the kind that can be expressed at the ballot box has not only proven to be no hindrance to the policy, it has in some sense provided reinforcement to the very process of its institutionalization. Affirmative action after all has a double agenda. First, there is the open agenda, the securing of places in society - preeminently in schools and jobs - for the members of particular groups claiming to have been intentionally and unjustly excluded in the past. And second, there is the somewhat more hidden one, which is to remove a certain order of social decision from the political arena and give it over to such agencies as the courts and bureaucracies where it can be kept securely out of public reach. Thus the widespread opposition to affirmative action has been held in the first instance to be itself prime evidence for both the justice and the necessity of the policy; and in the second instance has provided a spur to the policymakers to take matters ever more firmly into their own hands. Such a vicious circle will not easily be broken.

We can expect, therefore, to be living with quotas for some time - even though their most dedicated proponents hasten on every possible occasion to assure us that they are only a temporary expedient, a means of giving the provably disadvantaged that first indispensable leg up, after which reparation will have been made and justice achieved. By the time that golden age will have descended upon us, it is unlikely that any policy in a policy-ridden age will have done more than affirmative action to unsettle the series of delicate balances - between democracy and republic, individuals and pluralities, private rights and public necessities - it was once the unique political talent of

this society to have struck.

Policy Review

Much has already been observed (as, for example, only recently in these pages) about the harmful impact of quotas on such instruments for maintaining the balances I have referred to as the schools and universities, the political parties, the agencies of government, and the economy. Moreover, that quotas are themselves indisputably unjust - not a means for doing away with the arbitrary exclusions of the past but merely a new form of arbitrary exclusion enforced against a new and different set of victims has been frequently and forcefully pointed out (albeit as far as the courts are concerned, to no avail). It is on this point, as we have seen, that public opinion has drawn the firmest line: "unfair" is the characterization of quotas for which pollsters have found the highest level of assent. One issue, however (and it may be the most important issue of all) has so far not been paid the attention it deserves. That is the question of the impact of quotas on those who are their intended beneficiaries. How does preferential treatment affect those who are, in actuality or even only potentially, its recipients? Beyond this, how does it affect the feelings of others toward them? And finally, how does it affect the attitude of everyone toward the society he is living in?

There is, to be sure, good reason why this issue has been scanted. It resides in a realm difficult to get at directly, and in which the most important hypotheses are impossible to "prove." Attitudes are not opinions. Whereas opinions are held, and can be offered with varying degrees of forthrightness by the holder, attitudes are more often than not betrayed - sometimes in very roundabout fashion and usually over a considerable passage of time. In addition, they do not, or let us say should not, openly enter into the construction of legal briefs, which has been the major forum of public argument about affirmative action. Yet the attitudinal, or psychic, or spiritual effect of this policy, both on individuals and on the nation as a whole, will undoubtedly prove to be the most lasting and by far the most destructive.

The Beneficiary Groups

The two main groups at whose behest quotas have been instituted and on whose behalf they have been administered are, of course, blacks and women. True, their ranks have been