Does the Constitution Allow Affirmative Action at Public Universities?

In early October the U.S. Supreme Court will hear oral argument
in the case of Fisher v. University of Texas at Austin. At
issue is whether the university’s use of race in determining school
admissions violates the Equal Protection Clause of the 14th
Amendment, which declares that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.” Last
week, the Constitutional Accountability Center, a left-leaning law
firm and think tank, filed
a friend of the court brief in the case urging the justices to
allow the university’s admissions policy to stand. What’s notable
here is that the CAC brief makes an originalist argument in defense
of affirmative action. The brief marshals an array of historical
evidence to show that the congressional Republicans who framed the
14th Amendment in 1868 also supported various race-conscious
federal laws and programs aimed at assisting the recently freed
slaves, such as the Freedman’s Bureau. Thus, as the CAC brief
asserts, “the text and history of the Fourteenth Amendment permit
governments to enact race-conscious measures to ensure equality of
opportunity.”

It’s a very interesting document full of fascinating historical
information. But does it make a persuasive argument about the
original meaning of the Constitution? Perhaps not. Writing at the
Volokh Conspiracy, George Mason University law professor David
Bernstein highlights the brief’s originalist shortcomings.
Bernstein writes:

First, unless I somehow missed it, every piece of race-conscious
Reconstruction-era legislation mentioned in the brief is federal
legislation.  None of the legislation in question grants
authority to states to engage in race-conscious legislation. 
In Fisher the underlying issue is whether a state
university may engage in race-conscious admissions.  The
authors not only don’t defend, but don’t even raise, the claim that
the Reconstruction Congress thought that the same standards of
race-neutrality should apply to the federal as to state and local
governments.

Indeed, given what we know about the historical events that
produced the 14th Amendment, there’s some reason to think that
while the Republicans of the 39th Congress trusted federal
legislators to craft non-harmful race-conscious laws, they may not
have been so eager to allow the former Confederate states to enjoy
that same power, thus they introduced the strict equal protection
language limiting state action.

Since the CAC has produced some very valuable originalist work
in previous Supreme Court cases, particularly
McDonald v. Chicago, I’ll be very interested to see how
the group responds to Bernstein’s criticisms in this case.

2012-08-23 15:16:26

Source: http://reason.com/blog/2012/08/23/does-the-constitution-allow-affirmative