By M. Carcieri
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Additional info for Applying Rawls in the Twenty-First Century: Race, Gender, the Drug War, and the Right to Die
As Loury writes, [L]et us reserve the phrase “race-blind” to describe the practice of not using race when carrying out a policy. ”141 Affirmative Action and Reparations l 31 While Loury concedes that “worthy racial goals can sometimes be effectively pursued with race blind means,”142 he rejects race indifference. He is on strong ground, yet my thesis satisfies both strands of his nuanced position. For reasons we have considered, Rawlsian legislators would enact race blindness into the law of separate and free transactions between individuals and associations.
54 Nonetheless, I submit that strict scrutiny of all racial classifications under the Equal Protection Clause is consistent with Rawls. To begin, we know that even the liberties secured by Rawls’s first principle are not absolute. ” This formulation reflects the inevitable limits of political liberty. 55 Lines must thus necessarily be drawn. But where, and why? In this connection, we saw, Rawls distinguished ideal from nonideal theory. The former provides the principles and rules that govern domains of activity at the core of civil society, like public accommodations and public education.
The potential for abuse must be acknowledged. ”35 This argument seems persuasive. If admissions or hiring decisions at public universities, for example, were “subject to review” by an independent body (to ensure that ties are “neither manufactured nor ignored”), our legislators might reasonably conclude that a nonminority passed over due to a racial tiebreaker nonetheless had received FEO. 36 History tells them that those with security of employment will use preferences against others to which they would never consent if they were, once again, unemployed or underemployed and on the job market.
Applying Rawls in the Twenty-First Century: Race, Gender, the Drug War, and the Right to Die by M. Carcieri