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03/21/2012

Originalism on the Web
Michael Ramsey

Vikram David Amar: Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action.  Among other insightful points, Professor Amar writes:

Originalism in some form is a very attractive idea.  Yet throughout the modern affirmative action cases over the last generation, the most conservative Justices have never really explained how their view that government cannot use race in any way whatsoever—that the Constitution is “color-blind,” so to speak—can be squared with the fact that the very same Congress that passed the Fourteenth Amendment did, in fact, use race-based programs to help African Americans.

As I've indicated in previous thoughts on Fisher, I sort-of agree and sort-of disagree.  Because these decisions are based on the equal protection clause (applicable only to the states), the fact that the federal government of the 1860s "used race-based programs to help African-Americans" doesn't show that the Fourteenth Amendment allows state governments to use race-based programs to held African-Americans.  (It does raise some questions about the originalist basis of modern decisions, such as Adarand Constructors v. Pena, denying that power to the federal government).  But Professor Amar's broader point stands: we seem to have no complete originalist discussion of the constitutional status of such programs at either the state or federal level.  Perhaps Fisher will provide some explanations.