At the Hill, Kim Forde-Mazrui (Virginia): How originalism supports affirmative action. From the introduction:
If the court applies originalist analysis to the higher-education affirmative action cases currently before it, race-conscious admissions across the country should be upheld.
The originalist theory of constitutional interpretation holds that the 14th Amendment’s meaning was fixed by how people understood the amendment when it was ratified in 1868. Historical laws and practices before and following ratification is important evidence for originalists seeking such understanding.
And from later on:
State colleges have used race preferences in admissions throughout American history. Indeed, until the second half of the 20th century, the great majority of Southern state colleges imposed admission quotas: 100 percent of admitted students were white (and, overwhelmingly, male). Such race-based admissions practices were prevalent when the 14th Amendment was ratified and persisted for nearly a century thereafter.
Moreover, the Reconstruction-era Congress, many of whose members drafted the 14th Amendment, apparently believed the amendment permitted states to use racial preferences in college admissions. In the decade following the amendment’s 1868 ratification, Congress enacted civil rights laws to explicitly prohibit race discrimination in several contexts, including property and contract rights, and access to public-serving businesses, such as hotels, restaurants, theaters and public carriages. But Congress did not prohibit race discrimination by states in higher education, including college admissions. In fact, during Reconstruction, Congress repeatedly considered and rejected proposals to prohibit race discrimination in college admissions as a condition for states to receive federal funds for higher education.
…
This historical evidence adds further support to Harvard’s and UNC’s arguments that the 14th Amendment did not require states to be blind to race. That the amendment’s original meaning appears to have permitted college-admission preferences for white people is disappointing. However, the uncontested, primary purpose of the 14th Amendment is equality for Black people, so the historical practice of race-conscious admissions in the 19th and 20th centuries certainly supports the permissibility of race-conscious admissions for Black people in the 21st century.
I don't think this argument is correct as an originalist approach or that the current Court will be persuaded by it. But I do think it shows the problem of relying too narrowly on the history and tradition approach of Dobbs and Bruen. If the Court reaches the constitutional issue in the UNC case some further elaboration may be needed.
Posted at 6:09 AM