Colorblindness and Affirmative Action: A Response to Eric Segal
Andrew Hyman
On March 22, Professor Eric Segal posted The Racist Roots of Originalism at Dorf on Law, critiquing a related article by Calvin TerBeek. This is a response to Professor Segal, who writes:
[T]oday's originalists generally believe that affirmative action is unconstitutional, that voting suppression tactics such as Voter ID laws are constitutional, that Congress' power to enforce the 14th and 15th Amendments should be quite narrow, and that after centuries of slavery and segregation we should just start over with a non-textual, rigid, color-blindness rule.
If, as Professor Segal says, some purported originalists favor a “non-textual…rule” then they are not real textualist originalists in the first place. Originalism is simply the idea that judges have no legitimate power to replace the likely intended meanings of words in a legal text with their own preferred meanings, and thus effectively legislate from the bench. For example, the U.S. president’s term of office is four years, and an originalist textualist would say that judges are not entitled to interpret the word “year” to mean Martian years instead of Earth years (there are 687 Earth days in a Martian year). By this standard, I would venture to guess that Professor Segal is himself a textualist originalist. It’s true that some misguided people have embraced and twisted originalism because of their racism, but many other people have embraced originalism for reasons having nothing to do with race, and statutory originalism has been going on a lot longer than the United States has existed. History is also full of racists who took a liking to living constitutionalism, as this quote from Woodrow Wilson shows:
Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission - in an era when "development," "evolution," is the scientific word - to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
According to the Merriam-Webster Dictionary, originalism is “a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.” It’s quite a leap to say that originalism is a "racist" legal philosophy. I doubt that Professor Segal really believes we should start to interpret legal documents according to what we wish they would say. It has become fashionable these days to throw around terms like “racist” and “fascist” with abandon, against one’s political opponents, and against policies that are not inherently racist at all such as voter ID laws. Whether that name-calling continues or not, let’s at least acknowledge that the victors in the U.S. Civil War had a virtually free hand to amend the Constitution to their liking; they did so, but they did not write a bunch of gibberish so the judiciary could interpret it however the judges might want.
With regard to affirmative action, most self-styled originalists believe that it is constitutional insofar as it is undertaken by the private sector with no discrimination or involvement by government. Moreover, since the Equal Protection Clause of the Fourteenth Amendment is solely a limitation upon action by the state governments and not the federal government, many (perhaps most) originalists believe that the Fourteenth Amendment leaves it up to the good judgment of Congress to decide whether or not the federal government pursues a policy of affirmative action or instead color-blindness. My own policy preference (as opposed to my understanding of the Constitution) is that all governments should strive mightily to ensure equal opportunity instead of race-based affirmative action, because judging people by the color of their skin rather than their merit is noxious and destructive, and also likely to affect people whose ancestors had no part in slavery or segregation; anyway, whatever good could come from affirmative action could probably instead be achieved in a race-neutral manner (e.g. by increasing inheritance taxes, and/or ensuring that schools make equal opportunity a practical reality).
The question whether state governments may constitutionally engage in affirmative action, or instead must be color-blind, depends upon how the Equal Protection Clause is interpreted. Personally, I believe the Equal Protection Clause’s original meaning has been misinterpreted to some extent, and does not forbid affirmative action by state governments, unless Congress and the Supreme Court jointly block it. See my article titled The Substantive Role of Congress Under the Equal Protection Clause.