Originalism and Affirmative Action

In this recent SCOTUSblog post on the upcoming Supreme Court case of Fisher v. University of Texas, David Gans and UCLA law professor Adam Winkler take conservative originalist opponents of affirmative action to task for ignoring originalism in their arguments against the constitutionality of racial preferences for minorities. They particularly single out Supreme Court Justices Clarence Thomas and Antonin Scalia, who have taken a hard line against affirmative action in their opinions, but have never provided any evidence that this position is consistent with originalism. Gans and Winkler also argue that originalism in fact supports the constitutionality of affirmative action because “[t]he same elected officials who wrote and endorsed the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted several measures embodying ‘racial preferences.’” The latter argument builds on the work of previous academic defenders of affirmative action, such as Yale law professor Jed Rubenfeld.

Gans and Winkler are right to criticize Scalia and Thomas for neglecting originalism in their affirmative action opinions. But they are wrong to assert that originalism clearly supports their own side of the affirmative action debate. Without exception, all of the nineteenth century “racial preferences” that they cite are federal laws, such as the Freedman’s Bureau programs intended to aid recently freed slaves. But the text of the latter part of Section 1 of the Fourteenth Amendment, the provision at issue in affirmative action litigation, only applies to state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis added].

Beginning with the famous case of Bolling v. Sharpe (1954), the Supreme Court retroactively applied the Amendment’s restrictions on racial discrimination to the federal government. But no one imagined that the amendment applied to the federal government at the time it was enacted. Therefore, the framers and supporters of the amendment could well believe that the federal government had the power to enact racial preferences that would be banned by Amendment if adopted by the states. Nor were they completely unreasonable in accepting this double standard. The framers of the Amendment hoped that the federal government would continue to be controlled by (relatively) pro-black Republicans and therefore could be trusted with the power to use racial preferences. By contrast, they did not have similar faith in the states, particularly the southern states where most white voters were unrepentant ex-Confederates and supporters of slavery.

In addition, as co-blogger David Bernstein points out, the racial preferences adopted by the federal government in the Reconstruction era were intended to help alleviate the massive injustices inflicted on recently freed slaves. This compensatory justice rationale for racial preferences is far different from the “diversity” rationale offered by the University of Texas to justify its racial preferences. The diversity rationale has very different implications from the compensatory justice theory, and could potentially justify preferences for a wide range of groups. In the Texas case, as David notes, many of its beneficiaries are the children of recent Hispanic immigrants who never experienced the kind of large-scale systematic discrimination suffered by American-born blacks (to say nothing of that endured by one-time slaves in the 19th century). Even if the framers and ratifiers of the Fourteenth Amendment would have been willing to allow state governments to engage in compensatory justice preferences for African-Americans, it is highly unlikely that they would have endorsed diversity preferences. After all, the dominant ideology viewed cultural diversity with suspicion and pushed immigrants to assimilate as quickly as possible.

Moreover, it seems unlikely that the overwhelmingly white (and to a large extent, still racist) electorate of the 1860s would have supported ratification of the Amendment if they had thought that it allowed state governments to discriminate in favor of blacks and against whites, while forbidding the reverse. Today, the dominant version of originalist theory is “original meaning” originalism, which holds that the Constitution should be interpreted as understood by the general public or the ordinary reader at the time of enactment (as opposed to “original intent” – the understanding of the political elites who drafted the document). It is improbable that the average member of the general public who supported the Amendment understood it to mean that states were empowered to discriminate in favor of racial minorities in ways they could not discriminate in favor of whites.

The above does not prove that adherence to originalism requires judges to strike down all affirmative action preferences by state governments. But it does undercut the standard originalist case for them. At the very least, originalist judges would have to review such policies with considerable suspicion.

UPDATE: Co-blogger David Bernstein made some related points in this post. There is some important overlap between his argument and mine. But I have let this post stand nonetheless, because it also raises some points that David didn’t address.

UPDATE #2: I have updated this post slightly to make clear that it is the text of [the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – Section 1 which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.

UPDATE #3: In my previous update, I foolishly confused the text of the second sentence of Section 1 of the Amendment with Section 2. I apologize for this error, and have now corrected.