Affirmative action.

• Author: Rubenfeld, Jed

Affirmative action is so burning it's boring. Why? Partly because so much of what one sees and hears on the subject smacks of hypocrisy or speaking in code. Exhibit A: the name of California's affirmative-action-killing referendum, the "Civil Rights Initiative." Exhibit B: the term "affirmative action." Exhibit C: "I oppose affirmative action because it's harmful to minorities." Exhibit D: "Diversity is not counter to merit; it's an aspect of merit." Exhibit E: "[T]he fact that he is black and a minority has nothing to do with this in the sense that he is the best qualified at this time."(1)

This Essay rethinks the constitutionality of race-based, governmental affirmative action measures. There are, I know, a thousand essays on the same topic already. I make one promise: Readers who persevere will learn something new. First, although it is a matter of public record, most lawyers and judges are unaware that Congress in the 1860s repeatedly enacted statutes allocating special benefits to blacks on the express basis of race (and I am not referring to the well-known Freedmen's Bureau Acts,(2) which did not rely on express racial classifications). Accordingly, to be true to their principles, two of the five Justices in the prevailing anti-affirmative action majority--Justices Scalia and Thomas, whose commitment to original understandings and practices is also a matter of record--should drop their categorical opposition to race-based affirmative action measures.

Second, strict scrutiny doctrine, as it has been applied to affirmative action, can no longer survive strict scrutiny. I don't mean this statement figuratively. I mean that strict scrutiny doctrine, understood as it has been in the recent affirmative action cases, can no longer satisfy its own doctrinal requirements. Current affirmative action law may be the first instance in our jurisprudence of a constitutional doctrine unconstitutional under itself.

Finally, and most important, the Court's recent affirmative action decisions have consummated a remarkable but unremarked-upon transformation in the entire analytic structure of heightened scrutiny doctrine. One powerful function of strict scrutiny has always been that of "smoking out" invidious purposes masquerading behind putatively legitimate public policy. But under today's affirmative action doctrine, strict scrutiny has become altogether different. It has become a cost-benefit test measuring whether a law that falls (according to the Court itself) squarely within the prohibition of the equal protection guarantee is justified by the specially important social gains that it will achieve.(3)

This shift in the use and understanding of strict scrutiny is momentous, not only for equal protection law, but for every field of constitutional law in which the compelling state interest test figures. Or rather it would be momentous, if it really were the law. But it cannot be. Strict scrutiny cannot serve as a general escape hatch through which reasons of state may trump acknowledged constitutional injuries. As a smoking-out device, heightened scrutiny is sensible. As a cost-benefit justificatory test, it is indefensible. Or so I will argue.

This argument, however, will not decide affirmative action's constitutionality. Part of the problem with current doctrine is its effort to pack far too much of the difficult work of equal protection analysis into a determination of the appropriate "standard of review." Straightening out strict scrutiny in the affirmative action cases can only strip away a certain false doctrinal mesh, leaving exposed the contending claims of color-conscious and colorblind justice.

But the debate over colorblindness in constitutional law, whose thrusts and parries are so well known, will raise very different questions when the cost-benefit approach of current doctrine is systematically stripped away. For example, the Justices who have found against affirmative action programs repeatedly have done so on the ground that affirmative action threatens inadvertently to entrench racial thinking and to stigmatize minorities. Defenders of affirmative action tend to respond to this assertion by denying the reality of these harms or by arguing that they are outweighed by affirmative action's benefits. But this entire set of arguments, both for and against, is in fact constitutionally irrelevant.

Throughout Fourteenth Amendment jurisprudence, inadvertent harm to minorities, without more, is rejected as a basis of constitutional invalidity or even of heightened scrutiny.(4) Equal protection jurisprudence, outside the arena of affirmative action, generally does not engage in cost-benefit analysis. It does not purport to measure up and balance the social gains and losses a law will produce. The constitutional question is instead whether a law embodies an invidious or otherwise constitutionally impermissible purpose. And this must be the constitutional question with respect to affirmative action as well. The degree to which affirmative action inadvertently entrenches racism or harms minorities is of fundamental importance to affirmative action's merits as a matter of policy. But it is irrelevant to affirmative action's constitutionality. The ultimate constitutional question presented by race-based affirmative action--by no means an easy question--is whether whites' equal protection rights are violated when the government purposefully acts to assist blacks and other minorities by granting them special opportunities.

Part I of this Essay describes the failure of those who champion strict construction to live up to their principles when it comes to affirmative action. Part II analyzes current doctrine's treatment of strict scrutiny as a cost-benefit test rather than as a device for smoking out constitutionally illegitimate purposes. Part III confronts the debate over colorblindness as it would be presented if strict scrutiny were restored to its proper footing and concludes that standard affirmative action programs are in fact constitutional, however unwise they may be as policy in many contexts. Part IV adds a postscript on Romer v. Evans(5) and California's Civil Rights Initiative;(6) the former confirms the equal protection analysis offered in this Essay, and the latter, I suggest, is constitutional for the same reasons that affirmative action is. Although the Initiative may be a racial classification under the extant precedent, neither the Initiative nor standard affirmative action plans met the criterion of invidious purpose necessary to render a racial classification unconstitutional.

1. STRICT CONSTRUCTION

   In a recent televised address, Senator Orrin Hatch--overseer of the nation's judicial confirmation process--vilified "activist" judges while lionizing those who have held the line against affirmative action.(7) He was applauded roundly for both points. Evidently his audience felt that these two positions could be held by one person at the same time. And so they can, to judge from the opinions of some of our best-known judicial figures, such as Justices Scalia and Thomas and former Judge Bork. All three are pupils in that interpretive school that famously instructs judges to adhere to the letter of the law, to the "original understanding,"(8) or, if these are ambiguous, then to "the most specific level at which a relevant tradition protecting, or denying protection to, [an] asserted right can be identified."(9) On this view, if at the time of enactment there was a specific understanding about the permissibility of a certain kind of law, judges today have no business altering that result.(10) That would be government by "authoritarian judicial oligarchy."(11)

   When it comes to affirmative action, these strict constructionists(12) are strict indeed, holding that no governmental program "that operates on the basis of race" is "in accord with the letter" of the Constitution.(13) Pro-affirmative action holdings are for them just another example of "the politics of ultraliberalism . . . driving the law."(14) It follows, surely, that a strict rule condemning race-based affirmative action comports with strict construction, that such a rule either must reflect the original understanding of the 1860s, or at the very least must be the rule evinced by the most specific, relevant historical practices. For how else could these honorable men take the position they take?

   In July 1866, the Thirty-Ninth Congress--the selfsame Congress that had just framed the Fourteenth Amendment--passed a statute appropriating money for certain poor women and children.(15) Which ones? The act appropriated money for "the relief of destitute colored women and children."(16) In 1867, the Fortieth Congress--the same body that was driving the Fourteenth Amendment down the throat of the bloody South--passed a statute providing money for the destitute in the District of Columbia.(17) (And remember that Congress is the constitutional analogue of a state legislature for the District of Columbia.) What classification did Congress adopt in this poor-relief statute? Relief was to be given to the destitute "colored" persons in the nation's capital.(18) Year after year in the Civil War period--before, during, and after ratification of the Fourteenth Amendment--Congress made special appropriations and adopted special procedures for awarding bounty and prize money to the "colored" soldiers and sailors of the Union Army.(19)

   These statutes are not like the well-known Freedmen's Bureau Acts (20) of the same period,(21) directing benefits to blacks but using classifications that were formally race-neutral.(22) On the contrary, these statutes expressly refer to color in the allotment of federal benefits. Nor are these statutes buried in archives deep within the Library of Congress. They are, if not well-known, at least knowable by anyone who takes three minutes with the United States Statutes at Large (look up "colored" in the indexes for...