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The Constitutional Logic of Affirmative Action
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by Ronald J. Fiscus,
Edited by Stephen L. Wasby,
by Stanley Fish
Duke University Press
Due/Published
January 1996, 176 pages,
paper
ISBN
0822317702
Few issues are as mired in rhetoric and controversy as is affirmative action. This book cuts to the heart of the issue with precision and eloquence. A compelling and rigorously reasoned argument for a constitutional rationale of affirmative action, it will enhance future debate by clarifying the moral and legal ramifications of this complex, politically charged subject. Ronald J. Fiscus begins by drawing a distinction between compensatory and distributive justice. He argues that compensatory justice, although it is the principle underlying efforts to provide remedies in specific, individual cases of discrimination, does not provide an appropriate basis for justifying broader programs of affirmative action. Fiscus proposes instead that affirmative action programs can be justified by a theory of distributive justice, which, he argues, avoids the pitfalls that trouble current approaches to affirmative action. His argument begins with the stipulated assumption of equality at birth. Under that assumption, there would be a distribution of opportunity proportionate to society's racial and gender composition. In a society free of all discrimination, for instance, if 20 percent of the population were black, then 20 percent of all jobs, promotions, college acceptances, etc., would go to blacks. Any deviation from this distribution could only be attributed to discrimination. Emphasizing race rather than gender (to which his argument also applies), Fiscus focuses on the argument accepted by the Supreme Court in reverse discrimination cases, that whites, particularly white males, are "innocent victims" of affirmative action plans. He argues that proportional quotas do not produce "innocent victims" because those holding positions in excess of what proportionality would provide are not entitled to them. Fiscus argues for quotas--but only quotas that are proportionate to the racial composition of society. Disproportional quotas are not acceptable in his theory of distributive |
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