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Yesterday’s Opinions Today!


I will have more on today’s appalling disemboweling of the Voting Rights Act imminently. In the meantime, enjoy this column about why conservative constitutional arguments against affirmative action are wrong:

Perhaps the most salient feature of the Thomas concurrence, considering that it comes from the member of the Court with the strongest avowed to commitment to “originalism,” is the uttter lack of any serious discussion about the historical origins and purposes of the 14th Amendment. As I’ve pointed out before, the reason for this is obvious: There’s no serious “originalist” argument to be made against affirmative action. There’s no reason to believe that the framers and ratifiers of the 14th Amendment intended to eliminate all racial consciousness (as opposed to at least some forms of racial subordination) from state laws. As Justice Thurgood Marshall noted in his opinion in the landmark affirmative action case Regents of California v. Bakke, “Since the Congress that considered and rejected the objections to the 1866 Freedmen’s Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures.”


While Justice Thomas’s concurrence has nothing to say about the history of the 14th Amendment, he does extensively detail the history of defenders of segregation insisting that unjust discrimination was really in the interests of those being discriminated against. To Thomas, the lesson is that the benign motives of affirmative action are beside the point: “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”

The problems with this facile “gotcha” are also plainly evident. The crucial difference is that the paternalistic justifications for segregation were offered almost exclusively by the dominant caste. Only in the fantasies of segregationists did African-Americans believe that segregation was good for them, which is why disenfranchisement was necessary to maintain the system. Conversely, African-Americans today overwhelmingly support affirmative action. Thomas isn’t just comparing white university administrators to Jim Crow apologists; he’s comparing the heroes of the civil rights movement to Jim Crow apologists. It’s possible that Martin Luther King and John Lewis are wrong about affirmative action and Strom Thurmond and Jesse Helms happened to be right, but to argue that the former are more comparable to segregationists than the latter is specious in the extreme.

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