Electoral Economics: Proposition 209 and the Public Concensus
Abstract: The question posed is whether proposition 209 unconstitutionally bars a remedy to discrimination against a specified group "women and minorities", and thereby denies equal protection of the laws to a targeted group. The partial template for this problem is provided by the Supreme Court’s disposition of Romer v. Evans. The conclusion of my analysis here is that it does not. My analysis relies on two theories, one formal and one political. The formal proposition is this: a remedy is only meaningful as a response to an injury. In equal protection and discrimination jurisprudence, the Federal courts have imposed, and the Supreme Court has upheld, quotas, busing, and other affirmative measures against discrimination where there has been a judicial finding of past discrimination. There has been no such finding against the University of California or any of the contracting agencies of the state of California. Further, each time such a remedy to a demonstrated injury has been imposed, the Court has demanded that the remedy conform to a tight fit to the demonstrated injury. No injury has been demonstrated here, therefore no remedy exists, and to quote Chief Justice Marshall in McCulloch vs. Maryland "what does not exist can not be taken away."
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