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In his book, Liberalism, Ronald Dworkin takes to the task of defining what a liberal and a conservative are in political theory. To do this, Dworkin distinguishes between constitutive and derivative positions, constitutive positions being essential to the theory and derivatives being strategies for implementing the constitutive positions. For example the essential, intrinsic value, of utilitarianism can be happiness, and a derivative principle for achieving happiness could be a romantic relationship, traveling abroad, education, a mansion, etc.
Dworkin distinguishes treatment as equals deserving of concern and respect, and equal treatment in distribution of some resource or opportunity. For example, if there were two flooded communities, one devastated and the other with minor damage, it would violate treatment as equals deserving concern and respect to give each community the same amount of flood relief, or equal treatment. On the other hand, to treat people with equal concern and respect may require equal treatment as some argue is the case with voting rights. Both the liberal and conservative are committed constitutively to treatment as equals rather than equal treatment, which can be a derivative, though they are committed in different ways. To the liberal, treatment as equals means the political establishment should be neutral between competing conceptions of the good life. For a liberal to treat someone with respect is to allow one to lead one’s life according to one’s own conception of the valuable life. In contrast, conservatives believe that people cannot be treated as equals without establishing some conception of what the good life is, because treating a person as equal means treating one as a rational or moral agent would wish to be treated. The conservative may question whether or not we are demonstrating proper concern for another if we allow one to continue to make decisions which causes them pain or suffering.
Under the liberal theory, a derivative position of representative democracy creates civil rights that are needed to ensure that the personal preferences of the minority are not prohibited by the personal preferences of the majority, as this would create a system of external preferences in which some personal pursuits of the good life are prohibited, and therefore, violate equal concern and respect. But due to the nature of the criminal justice system in a representative democracy, someone will be deciding guilt or innocence based on their own conception of the good life. Therefore, procedural rights are necessary to protect the innocent from the prejudices of the majority even if this means that the accuracy of the verdict in criminal proceedings is not improved. The liberal may contend a similar scenario exists in hiring practices in which racial prejudice is an external preference which limits the opportunities of members of minority groups. Affirmative action may be required as a procedural guard against these external preferences even if it does not improve the odds of the most qualified person being accepted.
In contrast, the conservative believes that the political structure must not be neutral regarding a conception of the good life, but must enforce some notion of social morality, or virtuous society in which people are rewarded for virtues like hard work and talent. In a representative democracy, the conception of the good life is not based on an abstract principle, but reliant upon tradition and majoritian rule, and in the marketplace values like talent and perseverance are rewarded.
In the case of Hopwood v. Texas, the affirmative action component of the admission policy of University of Texas School of Law is at issue. The plaintiffs are white and filed suit against the school for discrimination in their admission policy. The Appellant Court agreed with the plaintiffs that the admission policy violated the Constitution because it granted an advantage to preferred minority students (blacks and Mexicans) to non-preferred minorities and whites in admission. It did this by setting lower standards of admission for the preferred minorities than for non-preferred minorities and whites.
The liberal and the conservative should both agree with the decision in this case. The conservative will argue that having a racial preference in admission policy will not properly reward individuals for their hard work and talent. Although the conservative will recognize that consideration to a person’s background and any adversity one may have overcome is a testament to one’s hard work and talent, using a race as a proxy for such an assessment is a representative fallacy because it assumes that people of the same skin color all have the same life experiences and that this is indicative of their abilities. But if the conservative values majority rule, then whatever the majority decides is the preferred policy is okay. Though, this conflicts with the notion of merit-based rewards in which people need to be treated individually and more variables need to be considered than race in assessing a person’s life experiences and perspective. The liberal will argue that race is a valid consideration because there are external preferences based on race that influence admissions. In order to prevent discrimination against what have historically been disfavored minorities, affirmative action to ensure a certain number or percentage of selected minorities are admitted is appropriate because it provides diversity and enables minorities to attain a status closer to the status enjoyed by whites. Ironically, this compelling interest in diversity seems it is more easily argued as a conservative position in promoting a virtuous society (a diverse society is a good society). Furthermore, a liberal seeks to defend the individual, as an individual, against the majoritian notions of the good life supported by the conservative. To do this, the liberal believes in the narrow tailoring of a statute in order to pass constitutional muster. A statute that emphasizes race fails to treat the individual with equal concern and respect. A rich black person with well educated parents comes from a different circumstance than a poor white person with poorly educated parents. To grant the black person an additional advantage based on his race seems grossly unjust.
To treat people based on race is to deny individuality and treat them as a homogenous group. Race can be a factor but only one of many. This means an individual assessment is needed in all cases. This defeats the applicability of a broad policy granting advantages to one race over another. The liberal has more invested in keeping the focus on the individual than does the conservative because the conservative can rely on tradition and majoritian rule. The liberal seeks to remedy these external preferences but the liberal cannot do so by creating another external preference that prefers the opposite group of people or beliefs.