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06/30/2023

Justice Thomas on Originalism and Affirmative Action
Michael Ramsey

Justice Thomas's concurring opinion in the affirmative action cases decided yesterday gives an extended originalist defense of the colorblind reading of the Fourteenth Amendment.  From the introduction: 

In the 1860s, Congress proposed and the States ratified the Thirteenth and Fourteenth Amendments. And, with the authority conferred by these Amendments, Congress passed two landmark Civil Rights Acts. Throughout the debates on each of these measures, their proponents repeatedly affirmed their view of equal citizenship and the racial equality that flows from it. In fact, they held this principle so deeply that their crowning accomplishment—the Fourteenth Amendment—ensures racial equality with no textual reference to race whatsoever. The history of these measures’ enactment renders their motivating principle as clear as their text: All citizens of the United States, regardless of skin color, are equal before the law.

I do not contend that all of the individuals who put forth and ratified the Fourteenth Amendment universally believed this to be true. Some Members of the proposing Congress, for example, opposed the Amendment. And, the historical record—particularly with respect to the debates on ratification in the States—is sparse. Nonetheless, substantial evidence suggests that the Fourteenth Amendment was passed to “establis[h] the broad constitutional principle of full and complete equality of all persons under the law,” forbidding “all legal distinctions based on race or color.” Supp. Brief for United States on Reargument in Brown v. Board of Education, O. T. 1953, No. 1 etc., p. 115 (U. S. Brown Reargument Brief).

This was Justice Harlan’s view in his lone dissent in Plessy, where he observed that “[o]ur Constitution is colorblind.” 163 U. S., at 559. ...

The opinion continues with extensive discussion of the drafting history of the Fourteenth Amendment and of the Civil Rights Acts of 1866 and 1875.

Justice Thomas then addresses a common counterargument:

Despite the extensive evidence favoring the colorblind view, as detailed above, it appears increasingly in vogue to embrace an “antisubordination” view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks. Such a theory lacks any basis in the original meaning of the Fourteenth Amendment. Respondents cite a smattering of federal and state statutes passed during the years surrounding the ratification of the Fourteenth Amendment. And, JUSTICE SOTOMAYOR’s dissent argues that several of these statutes evidence the ratifiers’ understanding that the Equal Protection Clause “permits consideration of race to achieve its goal.” Post, at 6. Upon examination, however, it is clear that these statutes are fully consistent with the colorblind view.

The opinion discusses the key statutes, with frequent citations to my colleague and co-blogger Mike Rappaport's article Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71 (2013).

And in conclusion on this point:

Most importantly, however, there was a wide range of federal and state statutes enacted at the time of the Fourteenth Amendment’s adoption and during the period thereafter that explicitly sought to discriminate against blacks on the basis of race or a proxy for race. See Rappaport 113–115. These laws, hallmarks of the race-conscious Jim Crow era, are precisely the sort of enactments that the Framers of the Fourteenth Amendment sought to eradicate. Yet, proponents of an antisubordination view necessarily do not take those laws as evidence of the Fourteenth Amendment’s true meaning. And rightly so. Neither those laws, nor a small number of laws that appear to target blacks for preferred treatment, displace the equality vision reflected in the history of the Fourteenth Amendment’s enactment. This is particularly true in light of the clear equality requirements present in the Fourteenth Amendment’s text. See New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___, ___–___ (2022) (slip op., at 26–27) (noting that text controls over inconsistent postratification history).

(Also with citations to leading originalist scholars including Akhil Amar, Randy Barnett, Evan Bernick, John Harrison, Kurt Lash, Michael McConnell, Ryan Williams, and I'm sure I forgot a few.)

It's a strong response to those who have said (and will soon be saying again) that the colorblindness standard has no basis in originalist materials.  I continue to think (see this recent post) that originalism theory needs to do more to develop the relationship between textual meaning and post-ratification history.  It's surely true, as Thomas says, that "text controls over inconsistent post-ratification history" -- sometimes.  But post-ratification history is also indicative of textual meaning -- sometimes.  Thomas mostly avoids developing this relationship because he finds (relying on Professor Rappaport) that the post-ratification history mostly doesn't support raced-based preferences for non-whites.  And he assumes (in the paragraph quoted above) that post-ratification laws "that explicitly sought to discriminate against blacks on the basis of race or a proxy for race" aren't indicative of the Amendment's meaning.  That's surely right, but it may be more difficult to explain why those laws aren't, but other post-ratification laws might be.

Leaving aside the foregoing concern, I think Dobbs, Bruen, and Thomas' concurrence taken together  begin to sketch a methodological outline: (1) develop a presumptive meaning of the text, using the text itself, and pre-ratification, drafting, and ratification materials; then (2) look at post-ratification practice to see if it points to a different meaning or to exceptions to the text's general rule, depending on the clarity of the text in step (1) and the clarity of the post-ratification practice.