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03/08/2012

Originalism in the Blogs: David Gans on Fisher, Originalism, and Affirmative Action
Michael Ramsey

At Balkinization, David Gans: Fisher v. University of Texas, Justice Kennedy, and the Text and History of the Fourteenth Amendment.  Key paragraphs:

For the last two decades, conservatives on the Supreme Court, led by Justice Antonin Scalia and Justice Clarence Thomas and more recently by Chief Justice John Roberts, have been waging a war on affirmative action. In their view, the Equal Protection Clause requires the government to be colorblind, equally forbidding Jim Crow segregation as well as affirmative action programs that seek to overcome the legacy of hundreds of years of slavery and racial discrimination. These arguments – by the Court’s self-professed conservative originalists – cannot be squared with the history of the Fourteenth Amendment, which recognized a basic distinction between government action designed to oppress African Americans and government action to secure to them the Constitution’s promise of equal opportunity.

As chronicled in Perfecting the Declaration, [the Constitutional Accountability Center]’s recent study of the text and history of the Equal Protection Clause, the Framers of the Fourteenth Amendment did not view efforts to ensure equal opportunity as a violation of the Fourteenth Amendment. On the contrary, they recognized a basic distinction between oppression and assistance, between laws designed to subordinate and laws designed to make equal opportunity a reality for all. At the same time they adopted the Equal Protection Clause of the Fourteenth Amendment, the Framers enacted race-conscious legislation designed to help ensure that the Amendment’s promise of equality would become a reality for African Americans seeking to make the transformation from slavery to citizenship. The Freedmen’s Bureau Acts, as well as a host of other race-conscious legislation enacted during Reconstruction, gave financial and educational benefits to African Americans, who needed the affirmative assistance of the federal government to enjoy meaningfully the Constitution’s new guarantees of freedom and equality.

As I’ve noted, conservative originalists need some better arguments on the unconstitutionality of affirmative action.  On the other hand, as Mike Rappaport explains, the fact that there were federal race-conscious programs at the time of the adoption of the Fourteenth Amendment hardly proves that the Amendment allowed such programs at the state level.

Moreover, I wonder if Mr. Gans wants to tie himself to the original meaning in matters of equality.  It’s much less clear that the Constitution’s original meaning imposes a strong equality obligation on the federal government (to which the equal protection clause of course does not apply).  That would suggest that federal affirmative action is not constitutionally suspect, but it might also lead to some results Mr. Gans finds unpalatable.  (See this article by Ryan Williams, concluding that the original meaning of the Fifth Amendment due process clause does not contain an equality principle).