I recently placed a drafted of this paper 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.