Larson on Legacy Preferences as Titles of Nobility
posted by Frank Pasquale
Carlton Larson’s article on the “Unconstitutionality of Legacy Preferences in Public School Admissions” is provocative, persuasive, and beautifully written. I read its seamless synthesis of legal history and constitutional advocacy at one sitting, and I think anyone interested in egalitarian thought would do well to consult it. As its precis states,
[The Article] sets forth a framework for building a modern jurisprudence under the Nobility Clauses and concludes that legacy preferences are blatantly inconsistent with the Constitution’s prohibition on hereditary privilege. Indeed, the closest analogues to such preferences in American law are the notorious “grandfather clauses” of the Jim Crow South, under which access to the ballot was predicated upon the status of one’s ancestors. The Article considers a variety of counterarguments supporting the practice of legacy preferences and concludes that none of them are sufficient to surmount the Nobility Clauses’ prohibition of hereditary privilege.
Larson’s piece is also impeccably timed, as controversy over admissions to elite universities heats up. Justice Talking featured a series of speakers on college admissions on last week’s podcast. As book after book reveals inequities in the system, apologists for privilege are mounting a counterattack. Larson’s article reminds us of what is at stake–no less than the egalitarian values at the core of the American Revolution’s rejection of British aristocracy.
I particularly liked this exposition of Thomas Paine’s views:
Paine crystallized the exasperation so many Americans felt in the presence of a hereditary monarchy and a hereditary House of Lords. Although the supporters of monarchy invoked biblical authority, Paine argued that monarchy was “the most preposterous invention the Devil ever set on foot for the promotion of idolatry.”
Hereditary succession was “an insult and an imposition on posterity.” “One of the strongest natural proofs of the folly of hereditary right in kings,” Paine argued, “is that nature disapproves it, otherwise she would not so frequently turn it into ridicule, by giving mankind an ass for a lion.” It opens the door to “the foolish, the wicked, and the improper.”
Larson’s legal history work leads to some solid policy proposals. Here is his stirring conclusion:
[L]egacy preferences belong more to the world of eighteenth-century British aristocracy than to the world of twenty-firstcentury American democracy. It is that British world of inherited privilege that the Revolutionary generation sought to destroy forever. And each day legacy preferences remain in place in public universities is a betrayal not only of America’s highest aspirations, but of the explicit command of the Constitution itself.
Though I agree wholeheartedly with Larson’s proposal, I wonder if the symbolic indicia of nobility might be decoupled from its monetary advantages–or compensated for by certain measures. I linked to Gary Lavergne’s article above (sorry for the walled garden); he has some interesting things to say about these issues:
[E]lite colleges are overpopulated with affluent young people, but it is undeniable that such students are qualified to be there and are successfully earning diplomas. We need more acceptable alternatives for all who have demonstrated they can perform at such a high academic level — at a probable cost of hundreds of billions of dollars. . . . We must move away from the debate about “who gets in” to one about how to provide elite-like quality to many more. All sides of the access argument can easily present thousands of highly qualified students who could succeed in the environment of a demanding, highly selective university..
So I suppose one response to Larson would be: what if legacy preferences were compensated by money granted to provide equivalent educations to the people displaced by the preferences? Would that avoid the constitutional problem he’s so skillfully identified?
PS: On the “full disclosure” note, I should add that Carlton and I have known each other since being bitter competitors in the “Citizen Bee,” a now-defunct high school civics contest. But I’d recommend this piece even if I didn’t know him from Adam.
Hat Tip: Legal Theory Blog, which notes Larson’s “knack for seeing new uses of old (and neglected) clauses.”
November 27, 2007 at 11:21 pm
Posted in: Education, Law and Humanities, Law and Inequality
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Responses (1)
anon - November 28, 2007 at 4:53 am
So what about hereditary U.S. citizenship (14 amendment only grants citizenship to people actually here, hereditary citizenship is by statute), especially considering at the time of the founding, not everyone was a citizen (i.e. slaves also inherited their non-citizenship)?
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