The Originalist Case for Affirmative Action?

Presumably anticipating an adverse decision at the Supreme Court in its upcoming affirmative action decisions, University of Virginia law professor Kim Forde-Mazrui has a gotcha for the justices: “If the court applies originalist analysis to the higher-education affirmative action cases currently before it,” Forde-Mazrui writes in The Hill, “race-conscious admissions across the country should be upheld.” It’s a curious argument—one wonders how the many originalist theorists and judges contemplating this thorny socio-legal question since the 1970s missed such a simple, elegant solution—and one suspects that Forde-Mazrui may just be trolling originalists. But taken in good faith, his argument shows just how much some would be willing to sacrifice to preserve the racial-discrimination regime in public education—and noble intentions or not, affirmative action is, as Forde-Mazrui admits, a racial-discrimination scheme—and points to some real but conquerable problems raised by the Supreme Court’s turn to text-and-tradition interpretation.

The crux of the originalist argument for affirmative action follows a simple syllogism. If, as originalists believe, “the 14th Amendment’s meaning was fixed by how people understood the amendment when it was ratified in 1868,” and, as the Court reasoned in recent cases like Dobbs and Bruen, “historical laws and practices before and following ratification [constitute] important evidence for originalists seeking such understanding,” then race-based discrimination in higher education should not be barred by the Fourteenth Amendment’s Equal Protection Clause. Why? For the same reasons abortion did not become a constitutional right suddenly and without warning in 1973 after two centuries of state laws banning them: “State colleges have used race preferences in admissions throughout American history,” notably including “the great majority of Southern state colleges imposed admission quotas: 100 percent of admitted students were white (and, overwhelmingly, male).” If the Equal Protection Clause’s meaning is fixed, then no number of Supreme Court decisions can supersede its public meaning, which public practices indicated would include condoning racial discrimination.

Simple and elegant, indeed, but such reasoning concedes a lot. First, it admits that affirmative action belongs in the same analogical category as separate-but-equal, even if the supposedly equal black colleges Forde-Mazrui mentions were admittedly underfunded—yet still constitutional. As Justices Thomas and Scalia have been careful to point out in Second Amendment cases, states need not show that their regulations are the same as those at the time of a legal provision’s fixation in order to pass the historical test; they only need to analogize to historical practice. Advocates could choose a more abstract version of the interest at stake, such as “admissions practices that reflect our sense of fundamental fairness.” So Forde-Mazrui’s choice of concrete comparison is telling. To know whether affirmative action would be constitutional under the fixed meaning of the Fourteenth Amendment, we compare it to its obvious analog of “Southern state colleges” engaging in rank racial discrimination in service of a state-sanctioned racial hierarchy.

That is quite an admission, and one suspects it has more to do with undermining the methodology than defending the current practice. It smacks of a familiar criticism of originalism, which questions the foundations of “fixation,” or the notion that the law’s meaning is fixed when ratified, and cannot be changed through reinterpretation. Why should enlightened diverse citizens today be bound by the dead hand of racist white men of the past? We who care about equality would be fools to stake our law to those written by men whose view of racial equality was primitive, to say the least, goes the criticism. Comparing remedial affirmative action to white-supremacist discrimination is meant to sound ridiculous, because normatively it is—one is malicious and the other well-intentioned. Shouldn’t it be legally dubious as well?

Taking the premise of legal fixation to its logical conclusions can indeed lead to some uncomfortable places. Is our law really the one ratified by the people of 1868, unchanged in meaning, even if (theoretically) everyone at the time thought separate-but-equal was an acceptable interpretation of it? Yes, but that does not mean the law is immutable. If there is enough social consensus to pass an amendment that supersedes fixation through legitimate means—not by judicial reinterpretation but by democratic supermajority—we can do so now. The alternative of allowing courts to rewrite laws when they determine through independent philosophical inquiry that the old interpretation is outdated may be far more dangerous than forcing lawmakers to be precise and persistent until they have achieved their desired outcomes. But for now, the important takeaway is that this kind of argument is not really about the narrow issue of affirmative action but about the principle of fixation. And it is a real challenge to originalism.

But before returning to that challenge, we can think for a bit longer about what accepting Forde-Mazrui’s argument would entail, or the collateral damage that his argument would leave in its wake. First, it would sacrifice the principle of stare decisis and precedent as a general matter. The pro-affirmative action analysis implies that precedent should be no obstacle to an originalist interpretation of constitutional provisions, as the Court has clearly built a great deal of doctrine upon the more muscular interpretation of the Fourteenth Amendment in the twentieth century and into the twenty-first. As such, it concedes that to keep affirmative action, one must admit, for instance, that Dobbs was rightly decided—a bitter pill for many to swallow amidst cries that the unjustified reversal of Roe is supposed to be some kind of mark against judicial legitimacy. So what if a 50-year-old decision beneath supposedly manifold reliance interests vanishes? The originalist case for affirmative action affirms by its core logic that many other precedents—from “substantive Due Process” to criminal procedure to the Establishment Clause—should come tumbling down. (I suspect that plenty of anti-affirmative-action conservatives would take that deal, while pro-affirmative-action progressives would not.)

Second, it would sacrifice some particularly sacred precedents in the realm of racial equality. If Forde-Mazrui is right that race-based discrimination that persisted in the decades after 1868 is not an equal protection violation, then Brown v. Board is wrong and Plessy is right. A host of other doctrines built upon this Equal-Protection foundation would suffer accordingly. (Of course, the Civil Rights Act passed under Congress’s Interstate Commerce power would still apply to private parties that meet its requirements.) As noted, this is an unpopular but principled position that one may hold without thinking that racial discrimination is anything less than evil. But it is so anathema to today’s legal academy that it beggars belief that Forde-Mazrui would accept it as an implication of his argument.

A Constitution that belongs to the American people reveals its meaning to future generations through the interpretation given to it by the people—in all branches of government and in citizens’ regular behaviors, not simply by courts.

Finally, if the Court accepted this version of originalism and upheld affirmative action on these grounds, other Equal Protection Clause doctrines—such as sex-equality rights and same-sex marriage—would go out the window, recognized as judicial innovations in the twentieth and twenty-first centuries, respectively. Ruth Bader Ginsburg’s efforts at extirpating sex discrimination in the law would have been for naught had there been a long tradition of sex equality across the prior century. And same-sex marriage was an oxymoron in all states until 2004. Clearly, extending originalism—at least, Forde-Mazrui’s characterization of the Court’s text-and-tradition originalism—to the Equal Protection Clause would present a legal upheaval.

We can question why affirmative action is so important as to be worth these sacrifices, or recognize that this argument does not reflect a commitment to advancing originalism in a serious way. But it would be a mistake to wave this provocation away entirely. Good-faith originalists still have a problem: How should we deal with the Court’s turn to post-ratification practices, particularly in the Equal Protection context, when those practices often reflect a less-than-ideal construction of the Constitution?

One strategy has been to disavow the Court’s recent reasoning altogether. It is not clear that the analysis that was present in Dobbs and Bruen is originalist at all. Leading originalist lights such as Sherif Girgis, Randy Barnett, and Lawrence Solum (the latter of whom is responsible for articulating the “fixation thesis” so central to Forde-Mazrui’s analysis) have expressed skepticism that post-ratification practice has much interpretive value. To one extent or another, they argue that practices cannot justify departures from the communicative content of a legal provision. Moreover, even originalists sympathetic to examining post-ratification practices, such as Will Baude, tend to believe that only certain kinds of “deliberate” practices that reflect “constitutional reasoning” result in “liquidation,” or the crystallization of ambiguous constitutional meanings.

Did the Supreme Court abandon its originalist commitments in Dobbs and Bruen by looking to historical practices for interpretive guidance? It is possible. But it seems more likely that the justices are treating historical practices as probative of the original public meaning of ambiguous constitutional provisions. To understand what the right to bear arms meant to the public in 1791, for instance, they looked at what kinds of behaviors Americans treated as rights, notwithstanding gun regulations, and what behaviors were seen as the legitimate province of government regulation.

There is good logic behind this. Public-meaning originalism would, it stands to reason, profit from looking at all available evidence of what a provision actually meant to the public. A Constitution that belongs to the American people, moreover, reveals its meaning to future generations through the interpretation given to it by the people—in all branches of government and in citizens’ regular behaviors, not simply by courts. That interpretation, which emerges through individuals and institutions applying themselves to the law as written and ostensibly trying to conform their behavior to it, is the law. It is the unarticulated corpus of the behaviors that are and are not allowed. Once settled, this corpus cannot change without subsequent legitimate lawmaking action. To the extent that the public—regulators and regulated alike—might have misunderstood a provision’s true meaning (what communicative-content public-meaning originalists tend to focus on), we would expect to see lawmakers and litigators fight until that true meaning is reflected in the law as practiced. These considerations form the basis of an originalist-traditionalist synthesis, in which looking to historical practices is the way to operationalize public-meaning originalism.

However, sometimes laws are imposed upon a population that does not want to conform its behavior to the law’s plain, public, obvious meaning. This can happen justifiably, such as in the Reconstruction of the Union that imposed Republican rule on the former rebel states, and was necessary for passing the Reconstruction amendments, including the Equal Protection Clause. In such cases of massive resistance, the logic of traditionalist-originalist interpretation is harder to justify. Practices of a recalcitrant set of institutions—universities, state governments, the attorney’s bar—knowingly flouting the law, disobeying what they knew to be a law’s meaning, cannot be probative of the provision’s meaning. If we have good reason to suspect that we are not observing a law-abiding public, that fact should vitiate our presumption that behaviors reflect good-faith interpretation. It ought to differentiate Equal Protection Clause traditionalism from the Court’s analysis of the rights at issue in Dobbs and Bruen.

There is no slam-dunk response to the genuine version of Forde-Mazrui’s challenge. The historical record might still reveal that racial preferences in higher education were widely considered acceptable in the years following 1868, even to those trying to obey the Equal Protection Clause’s demands. It may be the case that colorblindness really is not yet part of our Constitution—though it should be—and legislators should race to introduce the amendment that guarantees true equality before the law. These matters are unsettled and will not simply present resolutions on their own. So while Forde-Mazrui’s provocation is probably not made in good faith, originalists should nonetheless take seriously the challenges it poses, especially in this nascent era of traditionalist jurisprudence. We have likely not seen the last such argument.


SCOTUS Justices Oct 2021 Term

Originalism Tested

The term’s central question is whether the Court majority can interpret the law as written even as others press for the law's distortion.