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10/19/2022

David Bernstein (and Others) on the Colorblind Constitution
Michael Ramsey

At Volokh Conspiracy, David Bernstein (George Mason): On the Originalist Case that Racial Preferences by Government are Constitutional.  From the introduction: 

I am reprinting a post from 2012, again pertinent given that the Supreme Court is about to hear arguments in the Harvard and UNC affirmative action cases. (Harvard is a private university, but under precedent it's held to the same anti-discrimination standards as public universities via Title VI of the 1964 Civil Rights Act).

The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici. The brief tries to exploit a weakness in conservative Justices' affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the Fourteenth Amendment would allow for race-based legislation meant to advantage African Americans. The brief therefore concentrates on showing that the same Congress that enacted the Fourteenth Amendment passed several race-conscious measures intended to aid African Americans, that these measures were denounced by opponents as class legislation, and that the same Congress rejected versions of the Fourteenth Amendment that would have explicitly banned race-conscious legislation.

First, unless I somehow missed it, every piece of race-conscious Reconstruction-era legislation mentioned in the brief is federal legislation. None of the legislation in question grants authority to states to engage in race-conscious legislation. In Fisher the underlying issue is whether a state university may engage in race-conscious admissions. The authors not only don't defend, but don't even raise, the claim that the Reconstruction Congress thought that the same standards of race-neutrality should apply to the federal as to state and local governments. ...