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A Last Word on Affirmative Action and Originalism


On the issue of affirmative action and the alleged principled “originalism” of the Court’s conservatives, Simon Lazurus has a very good summary:

On the contrary, as legal and historical scholars — 60 of whom signed an amicus curiae brief to the Court — have exhaustively demonstrated in scores of books and scholarly articles, Reconstruction Congresses, in addition to adopting the Thirteenth, Fourteenth, and Fifteenth Amendments, aggressively promoted racial integration as a goal and deployed race-conscious measures to achieve it. They provided for special payments to “colored” soldiers to ensure they were compensated for service to the Union; established a bank to provide financial services to “freedmen and their descendants;” passed numerous race-conscious anti-poverty measures; and, most important, created the Freedman’s Bureaus to fund school construction and other education programs specifically for blacks. All these measures were enacted over objections, including vetoes from President Andrew Johnson, that marshaled precisely the arguments made today by opponents of school integration programs like those deployed in Seattle and Louisville.

Principled conservatives acknowledge that the Reconstruction generation “originally” understood the Fourteenth Amendment to promote equality for blacks and posed no ‘absolute,” across-the-board bar to race-based classifications. Chief Judge Michael Boudin of the First Circuit Court of Appeals, a widely respected Bush I appointee, observed in a 2005 case that a Lynn, Massachusetts integration plan similar to those in Seattle and Louisville “is far from the original evils at which the Fourteenth Amendment was addressed . . . [which were] the oppression of one race by another.” In the Seattle case itself, in the Ninth Circuit decision under review by the Supreme Court, Judge Boudin’s approach was endorsed by prominent conservative and Reagan appointee Alex Kozinski.

It’s simply overwhelmingly clear that the 14th Amendment was understood as permitting race-conscious policies far beyond the extremely narrow of category of policies Thomas and Scalia would consider “remedial,” and at any rate accepting the policies of Reconstruction makes it abundantly clear that we’re not debating about a “color blind Constitution” (cf. also Scalia and Thomas’s belief in the constitutionality of racial segregation in prisons.) Scalia and Thomas have never bothered to even try to mount an “originalist” defense of their position on affirmative action and to defend their vacuous soundbites about a “color-blind Constitution” because you can’t.

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