Originalism and Affirmative Action Part I: The Critics’ Argument

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.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Recent Popular Posts

Related Posts


  1. Ken MasugiKen Masugi says

    Clarence Thomas originalism rests on the color-blind Declaration of Independence. It’s the same originalism that prevents the Constitution from being a pro-slavery document.

  2. Mike Rappaport says

    Ken, I know that Clarence gave some early speeches to that effect (when you were working for him). Is there a place where he says that in a judicial opinion? I vaguely remember some brief references, but perhaps you know off the top of your head.

  3. Ken Masugi says

    In his concurring opinion in Aadarand–sorry, I just saw this. in other opinions (Kelo) he speaks about natural rights. “That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, 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”).”

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>