American political and legal thought is currently in turmoil regarding the propriety of various legal theories and governmental actions designed to provide express benefits and advantages to members of groups which historically have been the victims of culturally sanctioned discriminations—the body of thought and law that are grouped under the label of affirmative action. This article examines the characteristics of the current analytical framework by first examining some harmful effects resulting from the prioritization of fairness: excessive generalization, formalism and superficiality, and materialism. The article then examines in detail the Supreme Court's resolution of modem affirmative action issues. The Court has generated confusion and discord by applying simplistic concepts to complex problems and by adhering to the primacy of fairness in a context in which all interested parties claim that fairness favors their result. Finally, this article critiques the Court's inability to provide a consistent doctrinal basis for discussing affirmative action issues and will propose a framework for the resolution of affirmative action issues based on a societal dedication to implement communal values. Although a vibrant community must frequently redefine and reassess its values, the moral and philosophical traditions of American society provide a foundation for the shared understanding of these values. Such commonality is essential for any group that considers itself a community. Such a communal value system will also restore trust—trust in others and trust in government. The primacy of fairness is, in many ways, the product of a society that has lost faith in trust.
Phillip J. Closius,
Social Justice and the Myth of Fairness: A Communal Defense of Affirmative Action,
74 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol74/iss3/6