Introduction

Affirmative Action

In this course, Dr Matthew Williams (University of Oxford) explores the concept of ‘affirmative action’ in the United States through the question ‘Why have critics asserted that affirmative action should be declared unconstitutional?’ In the first module, we introduce the question itself, before looking in more detail at the history of race relations in the United States and the idea of “unconstitutionality”. After that, in the second module, we think about why the judiciary is the only branch of government in the United States with the power to declare something “unconstitutional”, and how the Supreme Court obtained these powers. In the following four modules, we outline four potential arguments that critics of affirmative action have used to question its constitutionality – first, on the grounds of basic principles of political philosophy such as liberty and natural justice; second, on the grounds that the Supreme Court does not have the jurisdiction to enforce affirmative action; third, on the grounds that federally-enforced affirmative action is no longer needed; and fourth, on the grounds that the ends of affirmative actions are unacceptably vague. Finally, in the seventh module, we provide a brief recap of the question that we were considering and the different arguments that we considered in trying to answer it, before moving on to suggest some avenues for further reading.

Introduction

In this module, we provide an introduction to the question we will be considering in this set of lectures, before looking in more detail at the history of race relations in the United States and the idea of “unconstitutionality”. In particular, we think about: (i) the question that we are trying to answer – “Why have critics asserted that affirmative action should be declared unconstitutional?” – and what exactly it is asking us; (ii) the meaning of ‘affirmative action’ (also known as ‘positive discrimination’ in the UK); (iii) the history of race relations in the American colonies and the United States, from slavery to the present day; (iv) the attempts by each branch of government to address structural inequalities, including the 14th Amendment (1866), the Civil Rights Act (1964), Executive Order 8802 (1941) and Executive Order 10925 (1961); (v) the particular importance of the judiciary in relation to our question as the branch of government that can make declarations of unconstitutionality; and (vi) the different ways that an action, policy or decision can be “unconstitutional”, and the extent to which the idea of “unconstitutionality” is up subject to interpretation.