The “Political Structure Doctrine”—Another Excuse for Anti-White Discrimination.

On August 3, the Supreme Court of the state of
California handed down a decision that was widely
welcomed by conservatives. In

Coral Construction v San Francisco

the court found that California`s anti-affirmative-action Proposition 209 was constitutional. Passed at the time
of the general election in 1996,

ballot initiative 209

amended the state constitution to

include a ban

on race or sex preferences in


, or


The ruling sailed through with a comfortable 6-1
majority, but the lone dissent—
by Hispanic justice Carlos Moreno—was
unsettling. He wrote that Prop 209 was unconstitutional
because it established
"a steep hurdle" for non-whites seeking race preferences.

This sounded like special pleading of the most
outrageous kind. Why shouldn`t non-whites face
"a steep hurdle"
if they want to

discriminate against whites?

In fact, however, Justice Moreno`s dissent [
P. 35] is a carefully reasoned argument that
may actually be
given the

peculiar anti-white premises

that are increasingly pervasive in American racial

Moreno acknowledged that race preferences are
controversial. But he pointed out that it was not the
court`s job to decide if they were good or bad—only to
decide whether the proposition that banned them was
constitutional. In deciding that it was not
constitutional, he relied on an obscure set of US
Supreme Court precedents that have come to be known as
the "political structure doctrine." Like the concept of

"disparate impact"

, it was conjured up out of the Constitution as part of
the tortured jurisprudence on race that goes back at
least to the

decision of


First, though, what were the facts in
Coral Construction
v San Francisco
? San Francisco has built race and
sex preferences into city

contracting for at least the last 26 years
. A business owned by a white man can get a contract with the city only if
it underbids proposals from favored groups by at least 5
to 10 percent (the percentage varies according to how
many favored contractors are bidding). White men also
have to pass very strict muster on how many women- and
minority-owned subcontractors they will hire, whereas
favored groups can subcontract with whomever they like.

San Francisco has been bizarrely thorough about
including just about every conceivable non-white in the
favored group: not just the usual blacks,

American Indians
, and

(in this case

everyone from south of the Rio Grande,


but not

Spaniards from Spain
but also


and every possible Asian, including Japanese, Koreans,
and Chinese. In 2005, whites were still a majority of
the city at 53 percent, with Asians coming in second at
33 percent. But the city had no intention of scrapping
discrimination against whites just because they become a

Ever since the 1989 US Supreme Court decision of

Richmond v Croson,
this kind of official discrimination is legal only if
a city can prove it is compensating for its own past
acts of discrimination. Accordingly, every so often, the
city searches itself for discrimination—which it
invariably finds. It holds hearings in which non-whites
claim that San Francisco froze them out and gave all the
business to the white
"old boys"
network. Despite the preferences that began in 1984, we
learn that what may be the most
city in the country has been discriminating
indiscriminately against

Egyptians, Uruguayans, Koreans etc. The city is
delighted, because such wickedness means it can keep
freezing out white men. The most recent such public
spectacle—no fewer than 134 people testified—was in

Coral Construction Company has been fighting this
nonsense since 2001, and after nine years of twists and
turns, finally got to the California Supreme Court. The
city of San Francisco

badly wants to keep discriminating against white men
so it made a number of creative arguments against the
racial preferences ban, but its most creative was based
on the aforementioned
structure doctrine."
In brief, the doctrine holds
that any measure that makes it more difficult for racial
minorities to get laws passed in their favor violates

14th Amendment`s equal protection clause

and unfairly upsets the

The doctrine is based mainly on two US Supreme Court
cases. The first,

Hunter v.

was about "fair
in Akron, Ohio. In 1964, the city passed an

forbidding discrimination

in apartment rentals and

house sales
In the 1960s, whites still sometimes acted in their own
interests, so the voters of Akron repealed the ordinance
and amended the city charter to require a referendum on
any new "fair
ordinance. It was a classic case of elected

acting against the interests of their constituents,
but in this case the constituents struck back.

In 1969, the Supreme Court not only reinstated the
non-discrimination ordinance but found that the voters

had upset the
"political structure"
in a way that hurt minorities.
It noted that it was only housing ordinances that banned
racial and ethnic discrimination that required approval
by referendum. Renters with children or dogs, for
example, or people who wanted rent control could get
ordinances passed by the city in the usual way, without
having to clear the additional hurdle of a referendum.
Thus, people with dogs could more easily get laws passed
in their favor than people who were black. And that,
said the court, was unconstitutional.

The other important
case was

Washington v.
Seattle School District,
which the Supreme Court decided in 1982. In yet another case

government spurning the electorate
the city of Seattle started mandatory school busing to
even out the racial balance. Whites didn`t like this,
and in 1978 they passed a state initiative that

banned busing for racial reasons

but permitted it for other reasons, such as alleviating
overcrowding or getting

special Ed students
to special Ed classes.

The US Supreme Court reasoned just as it had in
Hunter. The
state initiative made things tougher for non-whites than
for anyone else who wanted to persuade the district to
send them a bus. Blacks who wanted a free ride across
town to the white school had to change a state-wide law,
not just lobby the school board the way the special Ed
kids could. Again, the
had been changed to their disadvantage.

That, of course, is exactly where Justice Moreno was
going in his dissent in the San Francisco case. As he
pointed out, Prop 209`s ban on racial preferences
amended the state constitution in a way that was
explicitly racial. Non-whites (and women) would have to
change the constitution to get their
preferences back, while other groups could help
themselves to public handouts with less effort.
Veterans, cripples, poor people, and slow learners can
persuade government at all levels to discriminate in
their favor without going to the enormous bother of a
ballot initiative.

Ergo, Prop 209 put a unique political hurdle in the way
of non-whites (and women) who want laws and ordinances
passed in their favor, and is therefore unconstitutional
under the
“political structure doctrine”

Justice Moreno is not saying that preferences must last
forever—only that they should be removed through normal
political procedures that do not disadvantage
non-whites. If it wanted, the city of San Francisco
could abolish its

preferential contracting,

and might do so if the political balance ever tilts
towards a ban. But non-whites should not have to change
the constitution in order to keep their preferences or
get new ones.

Justice Moreno conceded that there have been some recent
US Supreme Court decisions that suggest the court is
moving away from the
“political structure doctrine”. But he pointed out, correctly, that
as long as the Supreme Court has not yet disavowed the
doctrine, it is not a state court`s job to try to read
its mind. The doctrine is still law. It must be
enforced, whatever one thinks of racial preferences.

And in fact the five justices in the majority in the
San Francisco case did not ignore the
“political structure doctrine”. They

just said it did not apply.

They argued that in the
Hunter and
Seattle cases, discrimination against non-whites had been enshrined
in ways that upset the
, and that the doctrine did not cover
cases in which a
on discrimination was so enshrined. 
(Needless to say, further complexities mean that
San Francisco`s anti-white discrimination is still in
place and must be litigated further).

Justice Moreno may well have been right to argue that
that the California Supreme Court had no business
drawing that distinction. So long as preferences are
legal—and the US Supreme Court has


 they are legal if they

compensate for past discrimination

achieve "diversity"
then all that matters is whether the measure brings an
advantage to non-whites—and that can be either a ban on
discrimination against them or promotion of
discrimination in their favor. It is unconstitutional to
tilt the political process in ways that make it harder
for the poor dears to get
either form of

In my opinion, from a legal point of view, Justice
Moreno is right. Ever since the

Civil Rights Act of 1964,

American law has been full of pompous jabber about
banning racial discrimination, but this has not stopped
courts and governments at all levels from discriminating
against whites in the name of non-discrimination against
everyone else. To judges, non-discrimination does not
mean what it means to the rest of us.

Furthermore, the
“political structure doctrine”
only racial,
ethnic, and religious groups. For example, if the voters
of California amended the state constitution to

ban skeet shooting
within 100 miles of an elementary school, it would
change the political structure for skeet shooters by
making it impossible for them to seek relief through
city ordinance or state law. But the
structure doctrine”
would be no protection for them
because skeet shooters are not a race or a religion. The
doctrine itself, with its benefits and protections only
for favored groups, is one of those special-treatment
hoaxes that are always being perpetrated in the name of
equal treatment.

We come now to a delicate question: Did Justice Moreno
read the law the way he did

only because he is Hispanic

and likes preferences for his people?

Maybe—but maybe not. As even this oversimplified account
shows, the law is a complex thing, and what can appear
to be a minor hallucination, such as the
structure doctrine”
, can be trotted out to justify
what would otherwise be clearly seen as blatant

When it comes to race, constitutional law is a briar
patch of ad hoc doctrines. A Moreno or a

Sotomayor or a Kagan

can go dowsing for anti-white arguments any time he or
she wants. Just because “political structure” was not
cited in the San
case, does not mean it will not be decreed
to be determinative in the future.

The great legal irony of the 20th century is that
American whites institutionalized racial discrimination
against themselves at a time when they were the
overwhelming majority both on the bench and in Congress.

In doing so, they established a legal tradition that
will make it child`s play for any future

non-white majority

to expand that discrimination into any part of our lives
they choose.

What, then, is to be done?

Fortunately, the swine who

pass our laws



confirm our judges
care about only one thing. It is not justice, it is
not truth, and it certainly isn`t the country. It is
reelection. That means that every so often they have to
get our permission to keep making a mess of things.

When enough people stop watching television, and

start reading VDARE.COM


American Renaissance

the political landscape will change and we can start
fixing things.

We could begin by making sure that our rulers no longer
think the


is an inexhaustible fund of justifications for
discrimination against whites.

Taylor (
him) is editor of

American Renaissance
and the author of Paved
With Good Intentions: The Failure of Race Relations in
Contemporary America

Peter Brimelow`s review, click