SJ Quinney College of Law, University of Utah
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Abstract

We are witnessing the power of distorted and neutral rhetoric that rings with deceptive clarity. This post-racial process discourse is advanced on many levels: in political discourse, by a distrustful citizenry energized by hateful rhetoric that appeals to their concerns of being “left behind” on the basis of “preferences” for minorities that diminish America’s “greatness,” and a Court that seeks to constitutionalize a mythic democracy that promises participation while implicitly endorsing structural exclusion.

Voter initiatives should not determine the substantive core of the Fourteenth Amendment. While democratic participation is essential to our Republic, decisions like Schuette perpetuate a democratic myth of accessibility while the political process has been restructured to ensure that race-conscious remedies are invalid. The danger is that we will accept this inequality as a natural product of our democracy. The Court once acknowledged this danger in its political process decisions; and, while these decisions have not been explicitly overruled, Schuette marks the constitutionalization of post-racial process discourse and the democratic myth. Now, more than ever, we must reject the rhetorical allure of this contrived neutrality.

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