Between 1940 and 1965 the Democratic Party slowly shifted from relying on anti-black racism to a forthright advocacy of “equality as a fact and as a result.”[1] Since the end of the Civil War, opportunities for African-Americans within the modest federal government had bounced around, with the appalling Woodrow Wilson doing much to roll-back advances made under his Republican predecessors. However, after 1932 the dramatic expansion of the size of the federal government and the turn to employing private contractors to execute its will created new conditions. In 1965, President Lyndon Johnson signed an executive order that required government contractors to identify and eliminate obstacles to the employment of minorities (by which Johnson meant African-Americans). This basic commitment to justice swiftly became the consensus in American politics. In 1969, President Richard Nixon issued his own executive order that required contractors to hire so as to reflect the racial composition of their area. Many states followed the lead given by the federal government. Ten years of expanding affirmative action initiatives followed.

For every action, there is an equal and opposite reaction.[2] For one thing, there were people who saw “affirmative action” as “reverse discrimination.” If one kind of discrimination is wrong, then all kinds are wrong. So, there was a principled opposition to affirmative action. For another thing, affirmative action disrupted and devalued a well-established system of apportioning opportunity.[3] At all levels of American society, some people get things because of patronage or connections. That’s true of “legacy” admissions to Ivy League universities; it’s true of family firms; and it’s true of union hiring halls. Increasing minority representation gored somebody’s ox in many of these cases. For yet another thing, some people are racists. They assumed that African-Americans were innately less capable than were whites. For liberals of this stripe, inferiority meant that African-Americans needed to be protected and guided by an expanded state, rather than left to their own devices. For conservatives of this stripe, inferiority meant that nothing achieved by any African-American came by way of merit, but only by manipulation.

In 1975 Allan Bakke, denied admission to medical school at the University of California at Davis, sued. In 1978 the US Supreme Court found for Bakke, rejecting the use of quotas to apportion opportunity. The case touched a nerve among conservatives in particular. In 1980, former California governor Ronald Reagan won the presidential election. He issued his own executive order ending the affirmative action requirement for federal contractors.

The American system of federalism means that the policy of the federal government is not necessarily the policy of the individual states. Hence, a sustained effort has been made to persuade the Supreme Court that affirmative action is un-constitutional. In 2003, without much enthusiasm, the Supreme Court upheld the basic constitutionality of affirmative action. It’s easy to find people who feel wronged by affirmative action. So, it’s still on the docket.

[1] “The origins of affirmative action,” The Week, 28 June 2013, p. 9. Between 1865 and 1965 much of the Democratic voter base consisted of Southern whites, who upheld the system of “Jim Crow.” Indeed, it seems likely that at various points in its history, every single member of the Ku Klux Klan was a Democrat. Dis-franchised Southern blacks were nevertheless counted for the purposes of apportioning representatives just as if they had the right to vote. This inflated Democratic numbers in the House of Representatives and in the Electoral College.

[2] Isaac Newton, Third Law of Motion. But maybe not, at least not in politics, society, and the economy. Otherwise we’d be stuck in the same place for millennia. This shows the perils of applying the lessons of physics to the less reliable world of human activity. So does the Reign of Terror in the French Revolution. But I digress.

[3] Indeed, that was the idea.