Affirmative Action: A Handout or A Hand Up? the Legislation of Morality

Affirmative Action:

The Legislation of Morality

“In order to get beyond racism, we must first take account of race. There is no other way,” was written in Justice Blackmun’s solo opinion in Bakke. Affirmative Action has been described by opponents as an impossible attempt to legislate morality. If this premise was true, one would have to deny that law is a reflection of a society’s code of morality. This denial would be difficult given that some of American society’s most fundamental and historic laws are the codification of the collective morals of most Americans during the time they were written. Examples of this include but are not limited to, criminal prohibitions against rape and murder, the first slave codes, the post Reconstruction Black codes, the 13th and 14th Amendments, Jim Crow legislation, and the Civil Rights Acts.

For better or for worse, law has always reflected the morality of American society. While the morals of America may change from generation to generation, the law as a reflection of those morals has not. Thus, it is not only possible to legislate morality, but it is the norm. Affirmative Action can be viewed as a microcosm of the morality of what racial equality means to Americans in the distribution of privileges.

A Legal History of Affirmative Action

The concept of Affirmative Action has been an ever changing, often misunderstood, always polarizing, representation of a nation’s attempt to deal with a legacy of discrimination. On March 6, 1961 President John F. Kennedy issued Executive Order 10925 which created the Committee on Equal Employment Opportunity and mandated that federally funded projects take affirmative action to ensure that hiring and employment practices were free of racial bias. This executive order gave birth to the earliest form of what we know of today as Affirmative