Originally posted by Vox:
OK, Sergeant, here's the story. Listen carefully, because I really find these kinds of arguments annoying.
There is no absolute prohibition against anything, anywhere in the constitution. There are valid laws banning certain types of speech. There are certain laws that limit freedom of the press. So despite what the constitution says, there can be no absolute prohibitions, because various rights, responsibilities, and government interests, all of which are protected, clash. Therefore, rights, prohibitions, and interests have to be weighed. If this weren't the case, there would be no need for a supreme court.
When certain types of government actions do things that the constitution says it usually should avoid, there are tests employed by courts to determine whether the state action is unconstitutional or not. These tests have been in effect for centuries. One such test, "Strict scrutiny," was involved in the affirmative action case.
If these tests did not exist, America would be thrown into chaos, because very few laws and government actions would be constitutional. To combat the chaos, Congress would have to amend cthe COnstitution so much that it would become a paper tiger, useless and of little effect.
Therefore, there are no absolute prohibitions against the use of race. If the use of race meets the "strict scrutiny" test, then it's constitutional. People who are against AA have no qualms against arresting people for threatening to commit a terrorist act, or yelling "fire" in a crowded theater. This is because you understand that there are interests that the 1st amendment must be balanced against. But whenever there is any action that seeks to level an uneven playing field to benefit historically disadvantaged minorities, all of a sudden the Constitution has to be construed in absolute terms, and all balancing tests must be thrown out of the window. Cut it out.
Sergeant, I'm coming out of my temporary hiatus to answer your question... AGAIN (yawn)... about why AA is constitutional. In the Clarence Thomas thread, I answered this same question, addressed my answer to you specifically, and you never responded to it. I am pasting the same wording here, in its entirety. No matter how many times I see you ask the same question, I'm simply gonna post it again.