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Hi-Voltage Wire Works11/30/2000
ds." It requires them "to give personal attention to and consideration of minority and women businesses that need not be given to non-MBE/WBE's. Furthermore, the contractor may not `unjustifiably reject as unsatisfactory bids prepared by any [MBE's/WBE's].' This requirement alone grants a distinct preference to MBE/WBE businesses."
With respect to the participation option, the court determined the evidentiary presumption established an impermissible goal for including MBE/WBE firms in a contractor's bid. It found unpersuasive the City's contention that the evidentiary presumption is not discriminatory or preferential because its purpose is "only to `screen' for discrimination, `not to have contractors achieve some predetermined objective' . . . ." In the court's view, " either the text of Proposition 209 nor its accompanying ballot materials suggest that a violation occurs only when the government intentionally discriminates or grants preferences."
We granted the City's petition for review to settle this important question of state constitutional law. To properly measure the relevant analytical context, we trace back almost 150 years before the passage of Proposition 209 and find recurring patterns in the law as to the appropriate role of government concerning questions of race. This extended perspective both illuminates the meaning and purpose of Proposition 209 and guides its application.
Discussion
I.
A.
The United States was founded on the principle that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." (Declaration of Independence.) Yet, our history reflects a continuing struggle to enable every individual to fully realize this "self-evident" article of faith. (See University of California Regents v. Bakke (1978) 438 U.S. 265, 387-395 (conc. & dis. opn. of Marshall, J.) (Bakke II).) That struggle demarcates the historical and cultural context within which we decide the issue before us.
While the courts have been instrumental in effecting positive change in the quest for equality, their involvement in articulating a coherent vision of the civil rights guaranteed by our Constitution has not been without its low points. (See McCleskey v. Kemp (1987) 481 U.S. 279, 343-344 (dis. opn. of Brennan, J.); Fullilove v. Klutznick, supra, 448 U.S. at p. 516 (conc. opn. of Powell, J.).) The nadir was perhaps the Dred Scott decision, in which the United States Supreme Court denied citizen status to African-Americans, "whether emancipated or not." (Dred Scott v. Sandford (1856) 60 U.S. (19 How.) 393, 405 [15 L.Ed. 691] (Dred Scott).) The true vice of Dred Scott lies not so much in the fact it "treated prohibition of slavery in the Territories as nothing less than a general assault on the concept of property." (Washington v. Glucksberg (1997) 521 U.S. 702, 770 (conc. opn. of Souter, J.); see Dred Scott, supra, 60 U.S. at pp. 449-452.) Rather, a majority of the United States Supreme Court endorsed the then-prevailing societal view that African-Americans-whether slave or free-were "altogether unfit to associate with the white race, either in social or political relations"; and "had no rights which the white man was bound to respect." (Dred Scott, supra, 60 U.S. at p. 407; cf. People v. Hall (1854) 4 Cal. 399, 404-405 [holding as a matter of "public policy" under state statute that Chinese, "a race of people whom nature has marked as inferior," were precluded from testifying against White persons].) In legitimating this pernicious concept, the court set the stage not only for the cataclysm of the Civil War but for the cont
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