Cass Sunstein: Does the Constitution Echo Republican Views?
Cass R. Sunstein (Harvard Law School) has posted Does the Constitution Echo Republican Views? on Bloomberg.com's Opinion site. On affirmative action:
Last week, the Supreme Court heard oral arguments involving the constitutionality of an affirmative-action policy at the University of Texas. Here is the great paradox: None of the conservative justices asked a single question about whether affirmative-action programs are consistent with the original meaning of any provision of the Constitution.
How can we explain this conspicuous lack of historical curiosity? A tempting answer would point to the Constitution’s text, which bans states from denying any person the “equal protection of the laws.” Perhaps any effort to consider race is, by definition, inconsistent with this requirement. Yet that argument is hopelessly unconvincing. As the historical debates reveal, whether colorblindness is required by a commitment to “equal protection” is the question, and the words themselves don’t provide that answer.
Professor Sunstein goes on to identify two other areas in which (he says) originalists have "made no serious inquiry into the original understanding": regulatory takings under the Fifth Amendment and restrictions on commercial advertising under the First Amendment. He concludes:
In short, the constitutional judgments of many influential conservatives show an uncomfortably close overlap, not with the original understanding of those who ratified the Constitution, but with the political understandings of the Republican Party in 2012. Who, then, believes in the living Constitution?