SELECTIVE ORIGINALISM. Amy Stuart Wells discusses the school integration cases that will be argued before the Supreme Court today. In addition to their intrinsic interest, cases involving racial classifications that are used to facilitate integration rather than segregation are intriguing because they provide evidence (beyond the obvious) of the incoherence of modern conservative judicial theories. It's not uncommon to hear the Court upholding affirmative action programs as "judicial activism," although of course in such decisions the courts are deferring to electorally accountable branches. So perhaps this means that the court is departing from the "original meaning" of the Constitution?

The problem is that it's almost impossible to justify striking down affirmative action programs in "originalist" terms, and the Supreme Court's purportedly "originalist" judges have never bothered to try. If you look at the relevant jurisprudence of Antonin Scalia and Clarence Thomas, you'll see ahistorical assertions that the language of the 14th Amendment prohibits all racial classifications along with powerful policy arguments against the practice, but no attempt to prove that the 14th Amendment was understood at the time of its ratification to proscribe racial classifications intended to alleviate past discrimination. And the reason for this is obvious: it is implausible in the extreme to argue that, at the time of the Reconstruction Congress, the equal protection clause was generally understood to prohibit all racial classifications. While it's not strictly accurate to say that you can't defend the Thomas/Scalia position on state racial classifications in "originalist" terms, you can do so only by defining constitutional principles at such a high level of abstraction that "originalism" is essentially devoid of content. If this is what originalism means, then William Brennan can be considered an originalist, Roe v. Wade is perfectly defensible in originalist terms, etc. etc.

But it gets worse. Scalia and Thomas also believe that the Constitution prohibits federal affirmative action, although the equal protection clause applies only to state governments. Adarand v. Pena invokes the "equal protection component of the Fifth Amendment's Due Process Clause," a phrase that from Scalia's perspective should be wholly nonsensical (if the due process clause has an "equal protection component," why was the equal protection clause necessary at all?) If it's a stretch to argue that the 14th Amendment was originally understood as prohibiting ameliorative racial classifications, it's farcical to claim that the Fifth Amendment was understood as doing so in 1791. Bolling v. Sharpe, which found a prohibition on federal segregation in the due process clause, is a classic example of pragmatic jurisprudence, the Court understanding that it could hardly allow the federal government to segregate while it prohibited the states from doing so. Like Brown v. Board of Education itself, the Court determined that sometimes departures from precedent and the "original understanding" are justified. To me, this is a good thing -- but, then, I've never claimed to be an "originalist." And when originalism conflicts with their strongly held policy preferences, Scalia and Thomas can hardly claim the name either.

--Scott Lemieux

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