One may ask whether society has to change before laws or the other way around. The American experience would suggest that new laws do indeed lay the foundation for a changed society. It suggests too that democratic transitions—and that is the only way to think about the path from slavery to equal rights—require agency. Institutions are not worth the paper they are written on until people are willing to say that they must be what they claim to be and to sacrifice and even die to make the point.
The role of the Constitution in this painful history reminds us of the importance of founding documents—and of their place in evolving a society toward justice. Women have used the Constitution to gain suffrage and gay people have won the right to marry. But Tocqueville’s third race, American Indians, were left outside of the Constitution’s framework of protections until the Indian Citizenship Act of 1924. They have by and large suffered a much different fate and their condition remains an ugly stain on modern-day America.20
Even as the Constitution has been used to overcome the legacy of inequality, the arguments have gotten louder and more complicated about its proper purposes, none more so than those about affirmative action. It is a prime example of how the country has tried to balance competing principles in the pursuit of racial equality.
The idea was rather simple at its inception. Years of legal segregation and societal prejudice had led to an imbalance in the opportunities available to American minorities. When the policies first emerged in the 1960s, the Jim Crow era was coming to an end and the integration of the University of Alabama had just taken place. Not surprisingly, blacks were underrepresented in academia, government, and the corporate world. In theory, America was more equal than ever before, but the reality continued to tell a different story.
Lyndon Johnson argued that the country could not be satisfied with this paradox. As he put it, “You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.”
A year after signing the Civil Rights Act, Johnson issued an executive order requiring federal contractors to take “affirmative action” to hire qualified minorities. In 1967, he expanded the order to include women. When Richard Nixon became president, he continued these efforts. In 1969, Nixon created the Office of Minority Business Enterprise to promote equal opportunity for minority-owned businesses. Labor Secretary George Shultz then approved the Philadelphia Plan, which required federal contractors to adopt “numerical goals and timetables” to desegregate their workforces. In 1970, the Labor Department issued an order applying the Philadelphia Plan to almost all government contractors, and a year later that order was also extended to include women.
It was not long, however, before tensions emerged between the principle of race-blind equality (the Fourteenth Amendment outlawed discrimination based on race, color, or national origin) and the desire to overcome a history of racial exclusion. From Ronald Reagan, who avowedly challenged affirmative action and sought to end it, to Bill Clinton, who promised to “mend it not end it,” the tug and pull between the two principles continued.
Emotional cases before the courts pitted aggrieved individual white citizens against larger societal concerns. How was it possible that white teachers with many years in service could be laid off simply to assure racial balance in a school district? The white teachers won. Was it really right for black firefighters with lower examination scores to be promoted ahead of their white counterparts? No, not really. These questions frankly had no good answer when seen as a contest between two compelling principles.
Nowhere was the tension more pronounced than concerning the question of race in admissions in higher education. Access to quality education is at the core of fulfilling America’s promise of upward mobility and personal progress. Choosing to advantage one student over another because of race, ethnicity, or gender seemed to some an assault on this promise.
As provost of Stanford in the 1990s, though, I knew we would enroll fewer minority students if we could not take race into consideration. The president of the university, Gerhard Casper, and I defended affirmative action in college admissions before alumni groups, a few skeptical faculty, and the board of trustees. For an elite university, I truly believed we were not making compromises of quality: Stanford, Harvard, and our peers are so selective and small that admissions officers can “handpick” minority students who can succeed, even if in some cases their test scores are slightly lower than their white counterparts.
At large state institutions, however, implementing affirmative action policies can be trickier. The University of Michigan had established a point system in admissions that awarded applicants a certain number of additional points if they represented a qualified minority group. A white student sued the school for discrimination in a case that ended up before the Supreme Court in 2003.21 I was national security adviser to President Bush at the time, and he called me into the Oval Office one day. “I’ve got to make a decision in this Michigan case,” he began. He was asking me to opine on an issue that was, of course, well outside of my job description: the language of the administration’s amicus brief in support of the plaintiff in the landmark case.
The president explained that as governor of Texas, he had not supported quotas but had sought to pursue affirmative action through what he called “affirmative access.” In the Texas program, the top 10 percent of every high school class was guaranteed a place in the Texas university system. In the Michigan case, on the other hand, the plaintiff alleged that the point system in undergraduate admissions amounted to a quota system. Quotas had been ruled unconstitutional by the Supreme Court in 1978, in a case called Regents of the University of California v. Bakke, but that decision also upheld the use of race as one of several factors in admissions decisions, given the compelling state interest in promoting diversity. The president had two options. One was simply to support the plaintiff’s claims that the University of Michigan’s point system was unconstitutional. The other was to go beyond that and ask the Court to overturn the last vestiges of affirmative action in college admissions and eliminate any use of race in admissions decisions, in effect overturning the Bakke precedent.
I felt a little odd weighing in on a matter of domestic policy, but knew that as a close adviser who was black and the former provost of Stanford, I should do so. I told the president that I personally would not have joined the amicus brief on behalf of the plaintiff, but he and his advisers had already decided to do that. But I also urged him not to support those who would overturn the Bakke decision. “Mr. President,” I said, “this work isn’t yet done. One day it will be, but not yet.”
Later, I learned that Alberto Gonzales, the White House counsel at the time, who went on to become attorney general, had made the same case to him. Against the wishes of some in the administration, the president took the middle course we recommended. When the Washington Post published a story claiming that I had argued for overturning Bakke, I asked the president to allow me to do something that I had never done before: reveal the contents of our private conversation. He agreed, and I let everyone know that I was—and still am—a supporter of affirmative action. Sometimes when important principles clash, you have to choose: I believe that we still need to choose inclusion even if it collides with our desire to be race-blind.
The time is coming when we, as a country, may make a different choice. In her opinion on the Michigan case, Sandra Day O’Connor thought that the need for preferences would expire in twenty-five years. That would be 2028.
Affirmative action is also being challenged on a state-by-state basis. In 1996, for example, the people of California voted in a referendum to end affirmative action by state agencies in employment, education, and contracting.
&n
bsp; But the underrepresentation of minorities in academia, the corporate environment, and the government persists. Affirmative action has caused people to stop and think and make good-faith efforts to diversify outside of traditional channels. I doubt that Stanford would have taken a second look at a young Soviet specialist from the University of Denver on a one-year fellowship without an eye toward diversification. But the university took a chance on me and I joined the faculty. It worked out well for both of us.
When I was secretary of state, I told my aides that it was appalling to me that I could go through an entire day of meetings and never see someone who looked like me. The president of the United States had selected two African Americans in a row, Colin Powell and me, to be the country’s chief diplomats, and yet the Foreign Service was still just 6 percent black, a percentage virtually unchanged since the 1980s and half of what one would expect based on the population.
Obviously, it isn’t easy to know what role choice plays in these and other circumstances of underrepresentation. I have argued to rooms full of minority students that they can’t personally decide against studying a foreign language and expect the diplomatic corps to be diverse. I have told black undergraduates that they can’t personally refuse to go on to PhD study and protest the lack of minority professors.
Moreover, as other groups have rightly claimed the need for relief from underrepresentation, further contradictions have appeared. Asian American representation in college admissions is arguably depressed by efforts to include other minorities. And I am very aware that every admitted minority student faces a kind of stigma due to affirmative action, no matter what universities argue to the contrary. I saw this so often that it ceased to come as a surprise.
One incident sticks in my mind. I asked a colleague at Stanford how his teaching was going. He told me that despite being very busy, he was holding an extra section to help his minority students come up to speed. The quarter had just started and I asked innocently if he had done an evaluation of the students to see if it was needed. He had never thought of doing so. I wanted to ask him, “Have you thought that your white students might need help too?” But I didn’t. He meant well but had fallen into the worst kind of prejudice. In another context, President George W. Bush once called this “the soft bigotry of low expectations.”
These are the tensions and contradictions that the admirable effort to overcome our nation’s birth defect of slavery and prejudice has produced. That we are still struggling with these issues today, after more than two centuries as a nation, is yet another reminder that nothing is smooth on democracy’s path.
As people around the world struggle to build democracies of their own, the effort to protect the rights of ethnic, religious, and other minorities is a daunting challenge. As the American experience shows, it will continue long after the democracy is stable. But it helps to have a “spirit of constitutionalism,” and a belief that the institutions of the nation are in the end just—and that it is worth the trouble to use them.
The United States is a stable democracy today not because the Founders’ institutional design answered every question for all time about how to balance the rights and interests of citizens and their state. They relied on necessary compromises to create a framework of principles and laws that could guide future generations as they met new challenges. The lesson for young democracies is that not everything can be settled at the start. But if the institutions are put in place and citizens use them, there is at least a way to channel the passions of free people and to resolve the hard questions of governing as they arise in future times.
Chapter 2
RUSSIA AND THE WEIGHT OF HISTORY
The visit to Saint Petersburg had been surprising and even a little unnerving. Anatoly Sobchak, the reformist mayor of the city, had invited a group of professors from Stanford to help him think through the creation of a great new Russian university. It was 1992 and I was about a year removed from my stint in Washington as special assistant to the president for Soviet affairs. The Soviet Union had recently collapsed and I looked forward to my first visit to the Russian Federation. Once there, it was painfully clear to me that the Russians were struggling to find their footing in radically changed circumstances.
The artifacts in Sobchak’s office were testimony to the temptation to situate the new squarely within the confines of the past. A map of the Russian Empire at its height and a portrait of Peter the Great adorned the walls. The symbol of the tsar, the double-headed eagle, sat on his desk. In one interpretation, the eagle looked both ways to remind his subjects that the tsar was at once human and divine.
Sobchak explained that the “European University” he envisioned would return Russia to its rightful place as an intellectual leader of the continent—a role that the Soviet “interlude,” as he called the previous seventy-five years, had destroyed. Almost as an afterthought, Sobchak mentioned the recent decision to change the name of the great city of Leningrad back to Saint Petersburg. It had been controversial. World War II veterans were unhappy, he noted, but he said he would find some way to honor their sacrifice at the siege of Leningrad, which cost one million Russian lives. The change marked progress, he said, and now it was time to move on. I couldn’t help but think that this kind of progress was decidedly backward-looking. The Russian nationalist restoration was well under way.
That evening, Sobchak held a reception for our group in one of the grand halls of the Winter Palace. The room was filled with Russian intellectuals, dressed in the all-black attire that was so popular at the end of the nineteenth century. Quite a few of them had also appropriated the names of the time. I met several Chekhovs, Tolstoys, and at least one Pushkin. These descendants, real and imagined, of Russia’s great literary figures of the past were staking a claim to the country’s future.
I broke away from the crowd and walked around, admiring, as I had on many occasions, the extraordinary beauty and artistry of Russia’s greatest architectural treasure. A former home to the tsars, the palace is part of a complex of buildings on the Neva River. Its pastel rooms of blue and green are dotted with malachite columns and gold chandeliers. I eventually spotted a short, pale man with icy blue eyes standing alone in a corner. He seemed quite uncomfortable, dressed in a Soviet-era suit. I don’t know what compelled me to seek him out and introduce myself; perhaps I felt a little bad for him because he seemed out of place. I walked over and stuck out my hand. The deputy mayor of Saint Petersburg and I said very little, or at least I remember very little of what was said.
Almost a decade later, President George W. Bush and I waited for the Russian president to arrive for their first summit in Slovenia in June 2001. The same pale man from the Winter Palace party walked briskly toward us. President Putin extended his hand and we exchanged greetings. I didn’t say that we had met before. Neither did he.
Vladimir Putin personifies Russia’s struggle to find its footing. As a KGB officer in East Germany he witnessed Gorbachev’s reforms and the collapse of the Soviet Union. As Yeltsin’s young prime minister he participated in the chaotic birth and failure of Russia’s quasi-democratic institutions. In the end, he rode the wave of the population’s frustration and fear, pulling the country back to its authoritarian past.
Winston Churchill once called Russia a “riddle wrapped in a mystery inside an enigma.” When looking at Russia’s journey, it is tempting to fall back on arguments about the country’s uniqueness. I have heard more than a few exasperated people—experts, government officials, and commentators—revert to “It is just Russia” as an explanation.
It is tempting too to reference Russia’s brutal and troubled history. The country began in the late fifteenth century as a collection of principalities that were systematically kludged together into the Russian state. A ruling dynasty arose in Moscow as the four tsars of the Rurik clan defeated and in some cases bribed landowning families (called boyars) to pledge allegiance to the central state and to build the core of what would become the Russian Empire
. Loyalty was maintained by sheer force and fear. It was not unusual to see the severed heads of those who disobeyed displayed on stakes along the walls of the Kremlin fortress, which was made the headquarters of the new state by Ivan the Great.
What authority the tsar did not command by brute strength, he sought by fealty to the Orthodox Church. As head of the church, the ruler of Russia was believed to be both human and divine. The tsar protected and enriched the church, and the hierarchy of the church returned the favor. To celebrate a military victory, Ivan the Terrible commissioned a new cathedral near the Kremlin that was so beautiful it remains a symbol of Russia to this day. He in turn made sure that the masterpiece, St. Basil’s Cathedral, would never be copied: The architects’ eyes were reportedly put out so that they could never design anything again.
Then, in 1584, Ivan the Terrible died without a capable heir. His son Fyodor became tsar, but real power fell to a Russian boyar named Boris Godunov, and when Fyodor died in 1598, the Rurik dynasty died with him. Pretenders to the throne arose with alarming frequency, only to be murdered in their beds (quite literally) by other pretenders. Foreign rulers picked at the carcass of the vulnerable Russian state and sent their own candidates (in some cases their own children) to lay false claims to the Russian throne. When Boris Godunov died (he was driven to madness by the apparitions of those he had killed), Russia plunged into a long civil war. This period came to be known as the Smuta, the Time of Troubles.
Surely, one would think, an episode from five centuries in the past could not possibly have resonance today. Yet I will never forget going to the Bolshoi Theater in Moscow in the early 1980s to hear a performance of Mussorgsky’s great opera based on this story. The spectacular coronation scene used the Kremlin bells, which can be heard clearly since the theater is only a few blocks away. Since they are the same bells that rang for Godunov’s coronation, the experience was a bit chilling.
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