Originalism and Affirmative Action Part I: The Critics’ Argument

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Recently, I completed a draft of an article on affirmative action and the original meaning of the 14th Amendment.  I thought I would put up a couple of posts on the article.  For the syllabus or to download the article, see here.  While I did not write the article with the University of Texas v. Fisher case in mind, it is clearly relevant to the case.

The article responds to various scholars who have argued that the original meaning of the Constitution clearly permits affirmative action.  These scholars actually make two claims:  first, that the Constitution’s original meaning strongly supports the constitutionality of affirmative action, and second that the originalist justices – Justices Scalia and Thomas – are behaving like hypocrites because they are both originalists and believe that government affirmative action is unconstitutional.

For example, consider Cass Sunstein’s claim that originalism:

strongly suggests that affirmative action policies were originally regarded as legitimate.  Hence there is no historical warrant for the [originalist] view that affirmative action is generally unconstitutional.  On the contrary, history supports affirmative action.  In the aftermath of the Civil War, Congress enacted programs that provided particular assistance to African-Americans, and this makes it extremely difficult to attack affirmative action on [originalist] grounds.

[The originalist justices] have abandoned their own favorite principles of interpretation.  Astonishingly, the Court’s most enthusiastic [originalists], Justices Scalia and Thomas, have voted to strike down affirmative action programs without devoting so much as a sentence to the original understanding of the Equal Protection Clause.  Both justices usually pay a great deal of attention to history, particularly when they are voting to invalidate the actions of other branches of government.  But on affirmative action their judgments do not depend on history at all.  They don’t seem to care about it.

Sunstein and the other scholars base their argument on a set of federal statutes that were passed at the time of the enactment of the 14th Amendment.  In my next post, I will show that these statutes are weak evidence of the original meaning, because they are federal statutes, they are in most cases not clearly race based, and they are merely expected applications.  Thus, Sunstein’s confidence here about the original meaning is not at all justified.

But Sunstein is right about one thing.  Justices Scalia and Thomas have not explained how they reconcile their colorblindness position with the original meaning.  (Perhaps the other justices and the briefs have not raised the issue and they felt no need to raise it on their own.)  My argument, however, shows that if the originalist justices address the issue, there is significant evidence to support their position.