The 14th Amendment and School Desegregation

I have a post up at TAPPED discussing “originalist” arguments in light of today’s Supreme Court case considering school integration in Louisville and Seattle. A follow-up question might be: “OK, Scott, since you’re not an originalist, why isn’t the Scalia/Thomas “color-blind Constitution” argument right, even if it contradicts their own stated jurisprudence?” Well, for the following reasons. First, I agree with Thurgood Marshall that the equal protection clause is most usefully construed as reflecting an antisubordination principle, and read this way it’s obviously implausible to see programs intended to remedy past discrimination as the constitutional equivalent of programs designed to entrench a racial caste system. And, second, on a pragmatic level, the brute fact that school segregation was largely crated and reinforced by state action makes race-conscious remedies, while suboptimal in a perfect world, necessary. The problem of school segregation has hardly been solved. The actions of the school boards here should be upheld.