Why Principles Cannot Justify: A Pragmatist Commentary on the Affirmative Action

Debate

By

Michael Harmon Department of Public Administration The George Washington University

mharmon@gwu.edu

Introduction

In a recent issue of The Atlantic Monthly Randall Kennedy (April, 2002)

remarks that partisans in the debates over racial profiling and affirmative

action often—and, by implication, disingenuously—invoke the principles

claimed by their opponents when those principles suit their own political

convenience. He correctly notes that supporters of racial profiling typically

oppose affirmative action, while supporters of affirmative action usually

oppose racial profiling. The consistent application of either of the competing

principles on which these issues are currently argued, however, would logically

compel either support for both kinds of practices or support for neither of

them, but not support for one and opposition to the other. Kennedy explains

why in the following passage:

Vocal supporters of racial profiling who trumpet the urgency of communal needs when discussing law enforcement all of a sudden become fanatical individualists when condemning affirmative action in college admissions and the labor market. Supporters of profiling, who are willing to impose what amounts to a racial tax on profiled groups, denounce as betrayals of “color blindness” programs that require racial diversity. A similar turnabout can be seen on the part of many of those who support affirmative action. Impatient with talk of communal needs in assessing racial profiling, they very often have no difficulty with subordinating the interests of individual white candidates to the

purported good of the whole. Opposed to race consciousness in policing, they demand race consciousness in deciding whom to admit to college or select for a job. (p. 24) 

Had Kennedy written more contentiously, he might well have characterized

such principled inconsistency in stronger terms, namely, as evidence of

hypocrisy by both sides. Content with the implication of mere irony, however,

he mildly concludes that “it would be…better if participants in the debates

acknowledged the simple truth that their adversaries have something useful

to say” (ibid).

The argument of this paper, chiefly informed by a Pragmatist viewpoint,

holds that the contradictory principles that supposedly frame the debates

over racial profiling and affirmative action actually reveal neither irony nor

hypocrisy, and that, insofar as partisans try to justify their positions by means

of principled argument, they can have nothing “useful to say” to one another.

More directly, I hope to show that principled argument, at least as its rules of

engagement are typically construed, can offer no support or guidance

whatsoever with respect to substantive policy positions, and therefore that

moral admonitions that policy makers, administrators, and citizens ought to

employ principles to decide or justify particular positions presuppose a logical

impossibility. By extension, the sin of hypocrisy stems, at least mainly, not

from the inconsistent application of principles, but from the misguided belief

that they can be “applied” at all in formulating sensible positions.

In another sense, however, principles may be correctly regarded as

inevitable features of any moral or policy decision, thus rendering superfluous

any moral approval of or congratulation to those who act upon them.

Following Stanley Fish’s (1999) alternative conception of principles as nothing

more nor less than moral intuitions to which we are resolved to be faithful,

with rare exceptions we cannot help but act on principles thus defined.

Briefly contrasting these two views on moral principles provides the backdrop

against which I shall critique some of the prominent “principled” arguments

for and against affirmative action. That analysis suggests that affirmative

action ought to be regarded as more an “administrative” than a “policy”

issue, subject to continuing practical, rather than principled, reassessment on

the basis of local experience. Finally, and perhaps more importantly, I hope

to make evident why any assertion of a principled stance on the issue of

affirmative action is both morally and politically irresponsible.

 

Two Ways of Viewing Principles

I shall refer to the first kind of principles (those comprising the object of

critique here) as justifying principles and the second as expressive principles.

Justifying principles are the kinds of principles asserted by those whom I shall

call principled moralists, while expressive principles are associated with those

who embrace an essentially pragmatist outlook. A summary description of

each type is provided immediately below, followed by brief comparisons of

them with respect to five issues on which supporters of one type are likely to

find themselves disagreeing with supporters of the other.

 

Justifying Principles (Principled Morality) Expressive Principles

(Pragmatism)

Principles consist of decision-making Principles are moral intuitions to

criteria derived from universal truths which we are resolved to be faithful;

about the “good” and the “right”; principles cannot be neutral with

principles are by definition substan- regard to substance because

tively neutral in that they precede and principles derive from prior local therefore determine and justify and historical moral commitments

particular substantive positions on regarding particular situations and

moral issues. People must “act on issues; principles, therefore, cannot

principle” in order to be moral. justify moral positions. Except for

sociopaths, people cannot help but act on principle.

 1. 1.     Principles are mainly “thought” based Principles are mainly

“feeling” based

2. 2.     Personal motives are irrelevant to the Personal motives generate principles in

validity of principles (“Avoid ad the first place (“Consider the source”)

hominem argument”)

3. 3.     Principles, and rules more generally, Principles and rules typically rationalizeguide behavior and shape experience behavior and

experience after the fact 4. 4.     Substance is “relative” to principle Principle is “relative” to

substance

5. 5.     Claim the moral high ground! Create common ground!

   Principles and the Affirmative Action Debate 

Principled moralists regard as a cardinal sin the rhetorical deployment of

principles as ammunition to defend substantive commitments that have

already been decided upon. Since principles precede substance, they are

therefore (and implicitly by definition) neutral with respect to particular

substantive commitments. Cases in which this priority is reversed, or where

the distinction between principle and substance is blurred, may be taken as

evidence of either intellectual confusion or, worse, moral hypocrisy. From the

principled moralists' priority of principle over substance, it follows that

whatever personal motives or local considerations might underlie arguments

supporting or opposing a particular substantive commitment are irrelevant to

the arguments' merit. What counts is the analytical rigor with which the

particular (substance) is deduced from the general (principle). In

extrapolating substance from principle, therefore, we are morally obliged to let

the personal and the local chips fall where they may, irrespective of how we or

others might feel afterward about their distribution.

My project in this section is to critique this aspect of the principled

moralist position on the following grounds:

1. that the goodness or badness of principles can be judged only

through reference to the specific local and/or historical contexts that

provide them operational meaning;

2. that, independent of those contexts, principles are and must be either

vacuous or disguises for substantive preferences; and

3. that, in purely abstract form, principles can therefore provide no a

priori moral guidance for deciding how to act in particular cases.

To illustrate the argument, I shall begin by summarizing two articles

(appearing on the op-ed page of the Washington Post in November, 1996)

taking opposing sides on the California legislature's passage of Proposition

209, which sought to end affirmative action programs in the state.

Nick Thompson, a Stanford University undergraduate who had lobbied,

unsuccessfully, against Proposition 209, wrote that, despite the cogency of

many of the arguments for the proposition, its supporters must surely have

been aware of the racial and ethnic tensions that the campaign for its passage

would further inflame.

They must have known this, and yet they still dedicated enormous resources to passing it. Why? Because of race politics hidden behind valid, analytical arguments that obscure honest motivations.

 There is a difference between a valid argument and an

honest argument. A valid argument is any argument that is plausible and possibly defensible. An honest argument stems from our true motivations. Honest arguments are what drive us. Valid arguments are what we use to defend our positions when our honest arguments would repel people.

 Prop 209 falls into a long tradition of the forces of

racism arguing validly, but not honestly, in support of measures to increase racial inequity and their own personal power, without ever mentioning racial inequality or personal power....

 In 1996 no one argued that we should support

Proposition 209 because it would decrease the power of people of color in society. If they had, the proposition would have been defeated. Blatant race baiting doesn't sell in this society. Subtle race baiting, cloaked in other arguments, does. (Washington Post, Nov. 19, 1996)

 Shortly afterward, Terry Mitchell, a former Democratic National

Committee press secretary and later and later director of the Washington

Center for Politics and Journalism, answered

Thompson with a sharp rebuttal, excerpts from which are included below: 

[In his column Thompson] was merely reflecting the received wisdom of those who, for years, have been playing the liberal race card, doing their heavy-handed best to stifle a reasonable public discussion of racial

preference policies by impugning the motives of others who want to end the civil wrong of group entitlements....

 In an attempt to silence principled, progressive arguments by those of us who oppose racial preferences,... [Proposition 209 opponents] tried to tar ...[its supporters] as friends of David Duke and the Ku Klux Klan.

 The forces of civil rights non-leadership would like

nothing better than to maintain the fiction that there has been a public consensus around group entitlement policies, which they euphemistically refer to as "affirmative action"—corrupting a term that originally meant reaching out to consider as many people as possible and then not discriminating on the basis of race or gender in the selection process....

 In the same way conservative opponents of the civil rights and voting rights acts of the 1960s attempted to camouflage their opposition to ending institutionalized bigotry with a phony appeal to states' rights, the advocates of race-based policies attempt to conceal their true agenda: handing out opportunity based on skin color and sex rather than individual need and ability....

 Much as the guardians of this status quo want to

keep it that way, a substantial portion of the public has now been able to express itself tangibly against the fundamental unfairness of group preferences. (Washington Post, Nov. 30, 1996, italics original)

 In considering these excerpts, I urge readers to try to suspend

momentarily their opinions about affirmative action generally. Try to suspend

as well judgment about Thompson's assertion that Proposition 209 supporters

actually were dishonest about their motives, as well as whether, as Thompson

claims, eliminating affirmative action policies would in fact "decrease the

power of people of color." Similarly, try to set aside for the present any

opinion about whether Mitchell is right in saying that Thompson, by "playing

the liberal race card," was therefore guilty of trying "to stifle a reasonable

public discussion of racial preference policies by impugning the motives" of

209's supporters. Focus instead on one key contention in each of the articles:

Thompson's contention, or at least his assumption, that the motives of the

antagonists in the 209 controversy are germane to an analysis of the

affirmative action issue; and Mitchell's contention that, because "group

preferences" sanctioned by affirmative action policies are "fundamentally

unfair," the motives of 209's supporters (regardless of whether Thompson is

correct in stating what they were) are irrelevant to a "reasonable public

discussion of the issue."

Thompson's distinction between "valid" and "honest" arguments is

clearly invidious, given his ironic definition of the former as the kinds of

arguments we use "when our honest arguments would repel." Whatever

respectability "valid" arguments might otherwise have, moreover, is hardly

salvaged by Thompson's vaguely characterizing them as "plausible and

possibly defensible." Thus, Thompson's rhetorical ploy of counterposing the

two kinds of arguments in the way that he does might well appear, and

certainly did appear to Mitchell, to be a disingenuous tactic for making an ad

hominem argument seem respectable. To Mitchell, valid arguments require

no scare quotes signifying such an ironic and disparaging definition; valid

arguments, rather, are valid by virtue of their appeal to "reasonable public

discussion" that would in his view surely reveal the "fundamental unfairness of

group preferences." Mitchell does not explain (though perhaps owing to the

space limitations of op-ed columns) why group preferences of the sort

promoted by affirmative action are fundamentally unfair; but, it is clear that he

sees the issue as a matter of principle, the application of which in the case of

affirmative action is perverted by those who cast aspersions on the motives of

others with whose substantive position they disagree.

Principled moralists would, of course, be far from unanimous in

supporting Proposition 209 or in opposing affirmative action generally. They

could disagree with one another (including Mitchell), for example, about which

principle or principles are truly at stake in the 209 controversy; and, even if

they agreed upon the pertinent principles, they could very well differ over

their correct interpretation in the case of affirmative action. Nevertheless,

principled moralists would more likely approve of Mitchell's style of argument

than Thompson's. Unlike Thompson, who "personalizes" the issue by focusing

on the ostensible motives of Proposition 209's supporters, Mitchell argues that

support for it rationally follows from principle, namely, that "group

preferences" (to him a less euphemistic phrase than "affirmative action") are

fundamentally unfair by virtue of their violating the twin, as well as

substantively neutral, principles of color-blindness and equal opportunity.

 

Principles and Pragmatism

In criticizing Mitchell's reasoning and siding with Thompson's mode of

engaging the issue, I shall draw from Stanley Fish's recent book, The Trouble

with Principle (1999), to show, first, why Mitchell's hope that a prior

commitment to these principles supports 209, or indeed that such a

commitment supports any position whatsoever with respect to affirmative

action, is logically unrealizable; and, second, that Thompson's concern with

the motives of both 209's supporters and its opponents is not only legitimate,

but also a necessary feature of the debate over the issue.

Fish's argument about "the trouble with principle" runs roughly as

follows: A commitment to any abstract principle—such as fairness, freedom of

association, merit, nondiscrimination, or color-blindness—necessarily

presupposes both an understanding of and a particular moral stance toward

the historical circumstances that gave rise, and continue to provide

operational meaning, to that principle. Contrary to the belief that principles

can be neutral in the sense of being free of prior as well as current substantive

commitments, principles in fact derive from those commitments. The

vocabulary of substantive neutrality typically employed by those who engage

in principled discourse simply serves to disguise those commitments, giving

the false impression that abstract principles somehow preceded history and

the substantive commitments upon which people act.

Take, for example, the "principle" of nondiscrimination. Independent of

its historical and current association with acts of political oppression and

economic deprivation against various minority groups and women, the word

"discrimination" otherwise seldom provokes our disapprobation, connoting as

it does merely the act of making pertinent and even socially approved

distinctions between particular ideas, actions, or phenomena. Discrimination

became a morally contentious word—and thereby part of the vocabulary of

principle—only when, in a particular social, political, and economic context,

"discriminatory practices" came to be used to describe, and indeed decry,

those acts of oppression and deprivation. Hence the term "invidious

discrimination" arose in order to differentiate such acts from other, more

socially and politically acceptable, forms of discrimination.

It is likely that neither Thompson nor Mitchell would find much fault in

the preceding paragraph, although Mitchell should begin to feel somewhat

apprehensive about its implications for his own position. "Invidious," quite

obviously, is an adjective that has meaning only insofar as it describes the

motive or intention to bring about real-world consequences of which at least

some people strongly disapprove. No moral principle is either embodied in or

violated by the act of discriminating per se, nor indeed necessarily violated

even by acts of racial, gender, or age Adiscrimination@ that are not part and

parcel of institutional practices that meet with our disapproval.

Mitchell seems implicitly to condone, for example, a form of "group

preference" discrimination when he approvingly cites the original,

"uncorrupted" meaning of affirmative action as "reaching out to consider as

many people as possible and then not discriminating on the basis of race or

gender in the selection process." "Reaching out to consider as many people

as possible," however, seems to suggest that special efforts are needed to

reach out to some groups—surely a kind of group preference—who have not

previously been adequately considered. By this reasoning, suspending the

principle of "no group preferences" is apparently acceptable in the process of

"reaching out to consider," but not in the process of selection itself—leaving

one to wonder what other, presumably higher, principle warrants suspending

the no-group-preference principle in the former instance but not in the latter.

Mitchell might answer that the "neutral" principle of merit supersedes the no-

group-preference principle, and should therefore be decisive in the selection

process. I shall forgo the temptation here to rehearse the many arguments as

to why merit is itself a contestable concept, whose prevailing institutional

definitions very often, upon examination, reflect the substantive interests of

those empowered to define merit authoritatively. Instead, I would only note

that the legitimacy of the merit principle, however it may be operationalized,

derives not from some higher neutral principle, but from the expectation that

one or another operational meaning of merit, when put into practice, will aid in

producing outcomes that some, perhaps even most, people happen to like.

More importantly, however, Mitchell's characterizing group preferences

such as those promoted by affirmative action as fundamentally unfair begs the

question of what "fundamentally" in this context is supposed to mean. In its

standard connotation "fundamentally" would seem to exclude, by virtue of

transcending, any consideration of local or historical contingencies that might

affect particular wants and preferences. But, if principles are vacuous, and

indeed impossible, in the absence of these considerations, Mitchell's claim that

group preferences are "fundamentally unfair" seems to be merely a rhetorical

ploy to make some interests and preferences appear more respectable than

others. Moreover, Thompson's consideration of the motives of Proposition 209

supporters, irrespective of whether he identified those motives correctly, is by

the same token not only appropriate, but necessary. Substantive

commitments by definition involve the connection between motives, on the

one hand, and the consequences of political and institutional practices arising

from them, on the other. Practices and substantive commitments without

motives to effectuate them are a logical absurdity.

One might object, however, that the wide-spread acceptance of this

view would result in replacing the political discourse of reasoned

argumentation with the vulgar politics of competition between naked

preferences. Fish answers that this would be a damning point only if one

accepts the "neutral principles" view of the world that radically separates

abstract principle from substance and preference in the first place. From that

view,

naked preferences are the danger and neutral principles the bulwark erected against them. But there are no naked preferences

for the same reason that there are no neutral principles: principle and substance come always mixed. Principle and its vocabulary of fairness, equality, and so on are already informed by substantive preferences..., and preferences are always preferences in relation to some notion of the good; they are never naked. In fact, preferences...are principles (or at least principled)--not principles of the neutral kind but principles of the only kind there really are, strong moral intuitions as to how the world should go combined with a resolve to be faithful to them. (Fish, 1999, p. 9, italics original)

 

Lest readers construe Fish's argument as a subterfuge to promote an

exclusively liberal political agenda of which affirmative action is typically seen

as being a part, he makes plain that the critique of neutral principles cuts both

ways. Fish's targets of criticism, in fact, include on the whole principled

liberals and conservatives in virtually equal measure. Principled defenses

made by liberals of the U.S. Supreme Court's 1954 decision in Brown v. Board

of Education, for example, raise the same logical difficulties as those

encountered by principled, typically conservative, opponents of affirmative

action. Fish cites a landmark essay by Herbert Wechsler (1959), who, as a

constitutional scholar, was troubled that the Brown decision had been

motivated chiefly if not exclusively by the justices' wish to end school

segregation, "rather than being driven by a principle indifferent to particular

results and faithful only to the enforcement of...[the Court's] own abstract

norm" (Fish, p. 26). In trying to locate such a principle after the decision had

been handed down, Wechsler at first proposed the principle of "freedom of

association" as a plausible candidate. Freedom of association, he argued (and

which the Supreme Court could have argued), had been historically denied to

blacks through state-imposed segregation of public schools. In what Fish calls

a last-minute reversal, however, Wechsler reluctantly concluded that

if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant; [and] given a situation where the state must...choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that...the claims for association should prevail? (Wechsler, 1959, p. 34)

 Wechsler=s answer was evidently no, prompting Fish to add that:

 

Deliberately obscured is the fact that one wish is born of the desire to escape a history of oppression and exclusion, while the other wish is born of a desire to retain the political and economic advantages that have been produced by that same history. You can see the two wishes as equivalent only if you empty them of their historical and moral content, which is exactly what the doctrine of neutral principles demands that you do. (Fish, p. 27)

 

Similarly, the debate over affirmative action should not be seen as

hinging on the question of which side has the better neutral principle(s) to

support its position, nor even whether one side more persuasively deduces its

position from a neutral principle upon which both sides have previously

agreed. Rather, since no neutral principle can provide any substantive and

moral guidance whatsoever, we have no choice but to rely on a combination of

moral intuition and an appreciation of the historical and local contexts that

have given rise to that intuition. Moreover, recognition of this by no means

settles or even biases the outcome of arguments made on other grounds

either for or against affirmative action. Although Fish seems to support, for

example, many (though not necessarily all) affirmative action policies and

programs, he would have to concede that, all things considered, affirmative

action may turn out to be a bad idea or only temporarily a good one. He is

claiming, therefore, only that the tests of whether affirmative action is a good

or a bad idea ought to be pragmatic rather than "principled," and constructed

in the light of local and historical experience with it. Various of these tests,

while no doubt debatable in their own right, already comprise much of the

repertoire of arguments made by affirmative action supporters and opponents

alike. Rid of spurious appeals to neutral principle, debate over affirmative

action might then produce, if not common ground and wide-spread public

consensus, at least a more tentative, experimental public attitude toward it.

When Nick Thompson invidiously contrasted "valid" with "honest"

arguments, he probably had in mind something very close to Fish's distinction

between neutral principles and principles construed as strong moral intuitions.

At first glance the parallel appears weakened slightly by Fish's refusal to credit

neutral principles with even the mildly positive attributes of "plausible" or

"possibly defensible" that Thompson grants them. To Fish, neutral principles

possess no positive qualities because such principles are necessarily devoid of

any intrinsic moral content; but this may be what Thompson was really getting

at in any event. Ostensibly neutral principles, Fish says, are merely

"mechanical tests"—for example, whether this policy or that program displays

"race-consciousness"—to which people grant phony moral status in order to

disguise, in Thompson's phrase, their honest motives. The disguising of honest

motives may explain why the discourse about "neutral" principles, rather than

facilitating the resolution of differences, actually prevents it: first, by

concealing the hoped-for outcomes actually at stake and, second, by inserting

a presumably authoritative abstraction as a wedge between, rather than a

possibly unifying symbol to connect, those who for the moment disagree with

one another.

To recognize principles as expressive rather than justifying provides no

guarantee that differences will be resolved and agreements reached. No

knock-down arguments justifying one moral intuition rather than another may

be admitted under such a view. The hope that honest differences might on

occasion be unified or at least amicably lived with, however, rests in

abandoning the illusion that ultimate justification of the sort promised by

neutral principles is even desirable. Because they entail no claims to

transcendent truth, expressions of moral intuitions, owing to the authentic

conviction that motivates them, might possibly be heard as an invitation to

understand and connect with others, rather than as a tactic for defeating them

in argument.

 

Conclusion

Stanley Fish would, I suspect, readily admit that his warnings about “the

trouble with principle” are not entirely original. As both a pragmatist and a

legal scholar he is no doubt familiar with similar sentiments expressed more

than a century ago by one of pragmatism’s four great founders, Oliver Wendell

Holmes, whose most frequently quoted sentence on the theory of

jurisprudence anticipates all that has been said here. “It is the merit of the

common law,” Holmes wrote, “that it decides the case first and determines the

principle afterwards” (quoted in Menand, 2001, p. 338). He said this with no

trace of irony, cynicism, or disappointment, for such a conclusion seemed

obvious in view of not only his reading of the history of the law, but also his

appreciation of the infinite manipulability of principles.

My own views on the possible benefits of a pragmatist stance toward

principles in general and affirmative action in particular are hopeful inasmuch

as I see pragmatism as potentially liberating public discourse from the false

expectations, the deceit, and the acrimony that principled discourse inevitably

breeds. Freed from divisive appeals to principle, the debates (and I use the

plural form deliberately here) over affirmative action at least might focus more

directly on whether or in what sorts of circumstances practices so labeled have

produced or show reasonable promise of producing what they intend. A

pragmatist stance toward such discourse neither settles nor even biases the

outcomes of those debates in one direction or another. Pragmatism’s overall

neutrality on the matter, moreover, is predictable in view of the wide range—

from conservative (e.g., Richard Posner [1990]), to liberal (Richard Rorty

[1989]), to leftist (Fish [1994] himself)—of political opinion represented by

those who share that philosophical outlook. And, of these three, only Rorty

seems to draw any direct connection between philosophical pragmatism and

his politics, for which he has been criticized by Fish (1994) on the ground that

pragmatism leads to no political agenda whatsoever.

Pragmatic—which is to say, nonprincipled—discussion about affirmative

action might actually get somewhere. I would eagerly attend, for example, a

public conversation on the subject between Fish and John McWhorter (2001),

whose recent and controversial book, Losing the Race, argues that affirmative

action programs in higher education, especially in California, have failed owing

to their unintended complicity with the cults of black victimology, separatism,

and anti-intellectualism. There may be more common ground underlying Fish’s

and McWhorter’s positions than at first seems apparent. Fish, while in one

sense an advocate of affirmative action, directs his ire chiefly against

principled arguments opposing affirmative action, rather than developing

principled or any other kind of arguments supporting it. Similarly, McWhorter,

though not a self-declared pragmatist, argues almost exclusively from

evidence of recent historical experience, rather than from principle, that

affirmative action in higher education in the main is not now fulfilling its

promise and is unlikely to do so within the climate that such practices have

tended, unwittingly, to perpetuate. At the same time, he argues, such

programs probably were (not just that they seemed) sensible three decades

ago in view of the then-widespread and often blatant discriminatory admissions

practices of many American universities. Moreover, he explicitly restricts his

objections to current affirmative action programs in American higher

education, arguing that affirmative action with respect to employment,

perhaps especially in the business sector, is still needed.

My intention here is not to assess the merits of pragmatic arguments for

and against affirmative action, but only to highlight a few of the chief features

of pragmatic discourse about it. Rather than being general and abstract, as

principled argumentation nearly always is, such discourse is instead

necessarily local, concrete, and context-specific. Pragmatists would urge that

we not expect that experience with affirmative action at one point in history, or

in one sector of social life, or in one geographical area will necessarily be the

same as that in another. The lessons learned from one time or context,

therefore, may or may not be transferable. Pragmatist discourse, therefore, is

also tentative, viewing programs and practices emerging from it as

experimental rather than definitive and permanent. Whether affirmative action

“works” is thus more properly seen as a question to be answered by

experience than in terms of a priori moral criteria—making due allowance, of

course, for the fact that experience is itself always subject to widely differing

interpretations. At the very least, however, we should not expect that answers

derived from varied experience will very often be uniform.

Asserting any general position about affirmative action in the belief that

it either embodies or, alternatively, violates one or another cherished principle

should be regarded as unwise and even irresponsible. By implication, then, it

may be similarly unwise to regard affirmative action chiefly as a policy issue in

view of the word’s connotation of general authoritative practice. Both blanket

prohibitions on what are typically labeled as affirmative action practices, and

“indiscriminate” mandates instituting them across various sectors of public life,

ought to be discouraged. The local and the experimental, where the varied

experiences with affirmative action can as a continuing practice be most

fruitfully assessed—and thus continued, revised, or discarded accordingly—

would seem to be an appropriate province of public administration. Such a

claim, however, would require radical revision of our field’s most ancient but

still most influential definition, namely, “the systematic execution of public

law” (Wilson, 1941). The field’s redefinition in light of this and kindred

arguments, a task that has already consumed the energy of many PATNET

members, is, alas, beyond the scope of this present effort.

In view of these arguments, does there remain any valid and

honest sense in which principles might further rather than impede our

collective moral project? The answer, I believe, is certainly yes—so long as we

take principles to be nothing more than the sincere expression of moral

convictions. If understood as such, principles might assist us in initiating and

sustaining discourse rather than terminating it by means of unrealizable

promises of Aultimate justifications.@ Under this more modest conception,

principles, which of course everyone has and cannot help but have, could no

longer be played as moral trump cards, claimed as the moral high ground,

hidden behind when our actions harm or appall others, nor otherwise used as

artful means for disclaiming our responsibility as moral agents. Construed in

this way, principles may serve as aids to responsibility rather than substitutes

for it. The kind of responsibility I have in mind, of course, is personal

responsibility: the mutual, back-and-forth responding among citizens and

public servants unafraid of confronting the freedom made evident to us by the

uncertainties and paradoxes of contemporary moral life.

 

 

 

 

References

Fish, Stanley (1994). There’s No Such Thing as Free Speech, and It’s a Good Thing, Too. New York: Oxford University Press.

 _____ (1999). The Trouble with Principle. Cambridge, MA: Harvard University

Press. 

Kennedy, Randall (2002). Blind Spot: Racial Profiling, Meet Your Alter Ego: Affirmative Action. The Atlantic Monthly, April, p. 24.

 McWhorter, John (2001). Losing the Race: Self-Sabotage in Black America.

New York: HarperCollins. 

Menand, Louis (2001). The Metaphysical Club: A Story of Ideas in America. New York: Farrar, Straus and Giroux.

 Mitchell, Terry (1996). The Liberal Race Card. Washington Post, Nov. 30. Posner, Richard A. (1990). The Problems of Jurisprudence. Cambridge, MA:

Harvard University Press. Rorty, Richard (1989). Contingency, Irony, and Solidarity. Cambridge, UK:

Cambridge University Press. 

Thompson, Nick (1996). The Race Card in California. Washington Post, Nov. 19.

Wechsler, Herbert (1959). Toward Neutral Principles of Constitutional

Law. Harvard Law Review, 73. Wilson, Woodrow (1941). The Study of Administration. Political

Science Quarterly, 66, 481-506. (Reprinted from 1887, June).