Originalism and the colorblind Constitution.

• Author: Rappaport, Michael B.
• Position: Introduction through III. The Federal Laws Passed at the Time of the Fourteenth Amendment B. Do These Laws Employ Racial Categories? 1. The Freedman's Bureau Acts, p. 71-101

INTRODUCTION I. THE ORIGINALISTS' COLORBLIND CONSTITUTION A. Justice Scalia B. Justice Thomas II. THE CRITICS OF ORIGINALIST COLORBLIND CONSTITUTIONALISM III. THE FEDERAL LAWS PASSED AT THE TIME OF THE FOURTEENTH AMENDMENT A. Do The Laws Benefiting Blacks Inform the Meaning of the Fourteenth Amendment? 1. The Best Case for the Critics: An Alternative Fourteenth Amendment 2. Reasons for Exempting the Federal Government: The Jurisdictional Theory 3. Alternative Theories B. Do These Laws Employ Racial Categories? 1. The Freedmen's Bureau Acts 2. Other Laws C. The Laws Harming Blacks IV. ORIGINALIST THEORIES OF THE EQUALITY COMPONENT OF THE FOURTEENTH AMENDMENT A. John Harrison's Interpretation of the Privileges or Immunities Clause B. Melissa Saunders's Interpretation of the Equal Protection Clause 1. The Scope of the Equal Protection Clause: Civil Rights and Political Rights 2. Race Discrimination and Special Laws 3. General Laws and Colorblindness 4. Conclusion CONCLUSION INTRODUCTION

Anyone who has read the legal literature on the subject knows two things about originalism and affirmative action. They know 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. At least, these are the claims of various leading scholars, including Cass Sunstein and Jed Rubenfeld. (1)

What is peculiar, however, is how confident these assertions about the Constitution's original meaning and the hypocrisy of the Justices are, and how insubstantial the evidence is that is said to support these claims. The claims of original meaning are based on a set of federal statutes passed at the time of the Fourteenth Amendment that are thought to provide race-based benefits to blacks. But these statutes do not provide strong evidence that the Fourteenth Amendment allows race-based government actions that benefit blacks or other minorities. These were federal statutes that were not governed by the Fourteenth 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 this Article, I challenge the claim that the original meaning clearly allows the states to engage in affirmative action. I argue that the original meaning does not plainly establish that affirmative action by the states is constitutional. (2) Instead, there is, at the least, a reasonable argument to be made that state government affirmative action is unconstitutional. In fact, based on the available evidence, I believe that the case for concluding that the Fourteenth 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. I do not, however, take the next step and argue that the Constitution's original meaning forbids affirmative action. That would require a satisfactory understanding of the original meaning of the Fourteenth Amendment, an understanding that I do not believe we currently possess.

This Article, then, contests both of the basic claims made by the critics. It argues that the original meaning can reasonably be interpreted as prohibiting affirmative action and that the originalist Justices are therefore not being inconsistent or hypocritical by supporting a colorblind Constitution. I do, however, agree with one significant complaint that the critics make of Justices Scalia and Thomas. These Justices have not made any real effort to justify their affirmative action opinions based on the Constitution's original meaning. Instead, their decisions have relied on a combination of precedent, moral claims, and legal principles. As originalists, these Justices should have grounded their arguments in the original meaning. This Article argues that, had they done so, they would have had a basis in the original meaning to support their views.

In Part I of this Article, I describe the opinions of Justices Scalia and Thomas on affirmative action, showing that they both view the Fourteenth Amendment as adopting the principle of a colorblind Constitution. In Part II, I then move on to the views of Cass Sunstein, Jed Rubenfeld, and other critics of the two originalist Justices, who argue that originalism strongly supports the constitutionality of affirmative action.

Part III then explores the federal statutes relied upon by the critics of Justices Scalia and Thomas. First, this Part asks whether these federal laws--assuming that they provide special benefits to blacks--are fairly interpreted as informing the meaning of the Fourteenth Amendment. If the equality component of the Fourteenth Amendment applied to the federal government, I argue that these federal statutes would constitute some evidence of the Amendment's meaning. But this evidence would be far from conclusive, since it would at best be the view of the Congress, which might be mistaken or biased.

Once one recognizes that the Fourteenth Amendment does not apply to the federal government, the connection between this federal legislation and the Amendment's meaning becomes far more attenuated. I argue that the federal legislation was unlikely to have reflected the meaning of the Fourteenth Amendment because the federal government was purposefully excluded from the Amendment. The best explanation for why the Amendment excluded the federal government is that the enactors believed the federal government could be trusted far more than the states. While the Congress likely believed that the federal government should not engage in arbitrary racial discrimination, it allowed this norm to be enforced solely through a principle of political morality.

The Part then examines these federal statutes to determine whether they in fact provide race-based benefits to blacks. It turns out that many, and perhaps virtually all, of these statutes do not discriminate on the basis of race. In particular, the important Freedmen's Bureau Acts do not racially discriminate, but instead provide benefits to former slaves that are not best understood as involving race. Moreover, four of the five remaining statutes that initially appear to provide benefits based on the race of the recipient do not upon examination necessarily turn out to do so. In each of these cases, there is at least a reasonable interpretation of the statute that would render it to not confer special race-based benefits to blacks. The last statute does appear to confer such benefits, but it may turn out to confer them on considerably narrower grounds than the critics suggest.

Part III concludes by examining various federal laws, largely ignored by the critics, that discriminated against blacks or other minorities. While the logic of the critics' interpretation suggests that these laws should also inform the meaning of the Fourteenth Amendment, that would then suggest that the states could discriminate significantly against blacks. The better interpretation, I contend, is to view these laws as also not significantly informing the Amendment's meaning.

While Part III argues that the originalist evidence relied upon by the critics to support affirmative action is weak, Part IV argues that there is relatively strong originalist evidence in favor of the colorblind Constitution. This section explores two leading and representative theories of the original meaning of the equality component of the Fourteenth Amendment to show that they are reasonably interpreted to support the colorblind Constitution. These theories are John Harrison's interpretation of the Privileges or Immunities Clause to protect against caste legislation and Michelle Saunders's interpretation of the Equal Protection Clause to prohibit class legislation. Harrison's theory interprets the Privileges or Immunities Clause to prohibit state laws that racially discriminate either for or against blacks. While Saunders's theory interprets the Equal Protection Clause not to prohibit all race-based legislation, but only special laws that lack an adequate public purpose justification, I argue that her interpretation needs to be revised to take into account certain aspects of the enactment of the Fourteenth Amendment. Once those revisions are made, Saunders's theory suggests that state racial discrimination should probably be subject to even stricter scrutiny than she suggests.

1. THE ORIGINALISTS' COLORBLIND CONSTITUTION

   The objects of the scholars' criticisms are Justices Scalia's and Thomas's affirmative action opinions. These two Justices have adopted the position that the Constitution is colorblind and therefore does not permit racial distinctions. They argue that all racial distinctions are subject to strict scrutiny and that virtually no racial distinctions pass muster. Yet, these two Justices, who have espoused originalism, have not explained how these interpretations derive from the Fourteenth Amendment's original meaning. To provide a sense of their arguments, I review their main affirmative action opinions.

   1. Justice Scalia

      Justice Scalia explained his view of the unconstitutionality of affirmative action most completely in his sole concurrence in City of Richmond v. J.A. Croson Co. (3) In Croson, Richmond, Virginia had adopted a minority business utilization plan that required prime contractors who won bids for city contracts to subcontract at least 30% of the dollar amount of the contracts to one or more minority business enterprises. (4) The record revealed "no direct evidence of race discrimination on the part of the city," nor evidence that the city's prime contractors had discriminated against minority-owned subcontractors. (5)

      The Supreme Court held that Richmond's plan was an unconstitutional violation of the Equal Protection Clause. (6) Justice O'Connor wrote an...