Michael Rappaport (University of San Diego Law School) has
posted Originalism and the Colorblind Constitution on SSRN. Here is the abstract:
The legal literature on the subject
of originalism and affirmative action asserts two propositions: that
originalism strongly supports the constitutionality of affirmative action and
that the two originalist justices – Justices Scalia and Thomas – appear to be
hypocrites for holding that the Constitution forbids government affirmative
action. These claims are made by various leading scholars, including Cass
Sunstein and Jed Rubenfeld.
This Article challenges these claims. First, I argue that the Constitution’s
original meaning does not plainly establish that state affirmative action is
constitutional. Instead, there is, at the least, a reasonable argument to be
made that such affirmative action is unconstitutional. In fact, based on the
available evidence, I believe that the case for concluding that the 14th
Amendment’s original meaning prohibits affirmative action as to laws within its
scope is stronger than the case for concluding that it allows affirmative
action. Second, because there is at least a reasonable argument for their
position, I argue that the originalist justices are not being inconsistent or
hypocritical by supporting a colorblind Constitution. I do argue, however, that
the originalist justices should have explained how an originalist methodology
could yield the colorblind constitution.
The claim that the original meaning supports affirmative action is based on a
set of federal statutes passed at the time of the 14th Amendment that are
thought to provide race based benefits to blacks. I argue, however, that these
statutes do not provide strong evidence that the 14th Amendment allows such
race based benefits. These were federal statutes that were not governed by the
14th Amendment and therefore were not directly informative of its meaning. Moreover,
most of these statutes, and perhaps virtually all of them, are not necessarily
best interpreted as providing race based benefits.
In addition to arguing that the evidence for the constitutionality of
affirmative action under the 14th Amendment’s original meaning is weak, the
Article also contends that there is relatively substantial originalist evidence
in favor of the colorblind Constitution. The Article explores two leading and
representative theories of the original meaning of the equality component of
the 14th Amendment – John Harrison’s interpretation of the Privileges or
Immunities Clause and Michelle Saunders’s interpretation of the Equal
Protection Clause – to show that they are reasonably interpreted to support the
colorblind Constitution.
I plan to blog about this more in the near
future.
Posted at 7:59 AM