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 Freedmen’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.

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  • Night Elf Mohawk||

    Does the Constitution Allow Affirmative Action at Public Universities?

    No.

    Can it prevent people from doing it anyway? No.

  • Fluffy||

    A law assisting a freed slave is based on the subject's legal status and not his race.

    The fact that all freed slaves were black is a mere coincidence and is incidental.

    Could free blacks in the North have taken advantage of those programs? If not, they weren't actually race-based.

  • Auric Demonocles||

    But every black today is obviously a descendant of slaves, and if your great-great-great-grandfather was a slave, you obviously deserve an advantage when being considered for college admission.

  • Bardas Phocas||

    I have a great-great grandfather who was a serf. That's almost a slave (just a pale, ugly russian one).

  • Ramjet||

    ...if your great-great-great-grandfather was a slave, you obviously deserve an advantage when being considered for college admission.

    No, it's not obvious.

  • Auric Demonocles||

    Apparently sarcasm isn't either.

  • ||

    Can we please establish an acceptable "Sarcasm" font or tag for the slow kids or does that defeat the purpose of sarcasm?

  • Randian||

    Defeats the purpose. The best sarcasm is the British deadpan kind: where you "can't tell if serios."

  • Auric Demonocles||

    I usually try to make part of it so obvious that you can't miss it. In this case I figured the "every black today is obviously a descendant of slaves" would give it away right at the start.

  • Mainer2||

    Well, you figured wrong.

  • BarryD||

    Some of my ancestry is SLAVic. Don't I get anything?

  • Drake||

    The Civil Rights Act of 1964 makes racial quotas at public universities illegal.

  • Almanian's Evil Twin||

    Then it is racist and must be ignored. Duh.

  • Leebig||

    The Congress that drafted the First Amendment also passed the Alien and Sedition Acts... I guess that means it doesn't really protect political speech.

  • Drake||

    It protects free speech for everyone except aliens and seditions.

  • Almanian's Evil Twin||

    So that must be why only the cowboys got to talk in "Cowboys and Aliens." Makes sense now.

  • robc||

    The Congress that drafted the First Amendment also passed the Alien and Sedition Acts.

    False. The 1st Amendment was drafted by the 1st congress. The AS Acts were passed by the 5th congress.

  • DJF||

    So Universities which teach that there is no difference between races and in some cases teach that race does not exist say that different races should be treated differently?

  • Auric Demonocles||

    One of the professors at my undergrad university claimed that blacks couldn't be racist (he was black himself) and that there can't be racism against whites. This was so ludicrous, that when he said it my very liberal friend who was in his class got up and walked out to drop the class.

  • ||

    There are two competing definitions of racism. The first, the more common one, is that racism is personal beliefs. The second is that racism is actually societal power relations.

    When someone says, "Black people can't be racist," they're using the second definition. They're saying, "Blacks don't have the power to harm or exclude other races." But people who think of racism as beliefs think, "That's stupid. Blacks can hate other races as well as anyone." In truth, both people are right.

    The problem is similar to "capitalism" being used both for our existing system and for an ideal free market with justly distributed property.

  • Auric Demonocles||

    No, even if they use the second definition (which is the stupidest one possible), they are wrong. Affirmative action is harming or excluding some races. Blacks have numerous clubs and organizations that exclude other races. Some blacks harm people because of their race (a "hate crime").

  • ||

    Affirmative action is harming or excluding some races.

    But blacks don't have the power to create or enforce it. Only whites do. That power difference is the racism, according to definition #2.

    Blacks have numerous clubs and organizations that exclude other races.

    But none of those exclusions can cause system-wide injury to whites. "You can't drink in my bar" is different from "you have to attend these shitty schools". And whites could close those black orgs tomorrow, if we desired.

  • Randian||

    But blacks don't have the power to create or enforce it.

    Right, except for the head of the Executive Branch of the United States.

    But none of those exclusions can cause system-wide injury to whites. "You can't drink in my bar" is different from "you have to attend these shitty schools".

    Races aren't 'systems'.

    And whites could close those black orgs tomorrow, if we desired.

    I think that the black President and the black AG would have something to say about that.

  • ||

    Blacks and whites have equal power because we finally got a black President? Get real.

  • Randian||

    Blacks and whites have equal power because we finally got a black President? Get real.

    That's definitely what I said.

    This is what you said that was so patently absurd:

    But blacks don't have the power to create or enforce it. Only whites do.

    I'll have to notify the Executive Branch that it's totally irrelevant.

  • DJF||

    But power comes in many forms and in many different situations.

    A CEO of a fortune 500 company has power in certain areas

    A guy on the street who is beating up the CEO of the fortune 500 company has power in other areas.

  • Doctor Whom||

    I raised that point in first-year constitutional law. My professor answered that later in the term, he would show me why I was wrong. He never got around to it.

  • wareagle||

    maybe he's still searching to find the reason you were wrong. Persistence, you know.

  • ||

    the congressional Republicans who framed the 14th Amendment in 1868 also supported...assisting the recently freed slaves

    Wow, what a timely and contemporary piece of logic. If there are any recently freed slaves then I am absolutely okay with them receiving favorable treatment. Otherwise earn the admission on your merits.

  • BarryD||

    Hell, I'm fine with giving favorable treatment to people where were slaves, but were freed 25 years ago, even 50 years ago. No problem. Doesn't even have to be recent.

  • BarryD||

    (The best evidence, I believe, indicates that the last freed American slave died in 1948 at age 105.)

  • wareagle||

    the best evidence also indicates that every program ostensibly designed to help minorities has had the opposite effect. See: war on poverty, war on drugs, affirmative action, quotes/set asides, etc.

    At what point do minorities themselves stand up and recognize what those who claim to act in their behalf are actually doing?

  • ||

    AA has been very detrimental to blacks. You can tell, because white racists support it, and blacks oppose it.

    Wait, you mean it's the exact opposite? Huh.

  • Auric Demonocles||

    Talk about poisoning the well.

  • wareagle||

    when the bar to admission is lowered for certain groups, say those from Jersey, everyone else in the class or the workplace or whatever the setting is looks at folks from Jersey and wonders if they earned entry and were given it. No, nothing says hand up to black folks quite like a healthy dose of liberal-inspired condescension.

  • John||

    It has been good and bad for blacks Patriot. It helped create a much larger black middle class. But it also funneled blacks into big corporations and government, places where affirmative action was most prevalent. And it devalued black achievement and perpetuated the idea that blacks cannot ever get a fair shake in this country. The longer it goes on, the smaller the benefits get and the more the disadvantages fester.

  • R C Dean||

    the sad thing is, the very institutions that affirmative action steered blacks into are the very ones taking the most punishment in the current social/economic upheaval.

  • WTF||

    I would say the white leftists who support affirmative action because they think blacks are incapable of succeding without their benevolent patronage are racists, yes.

  • BarryD||

    Last I checked, Clarence Thomas, Thomas Sowell, Condoleeza Rice were "members of minority groups."

    Don't fall into the collectivist trap and forget that every individual is an individual.

  • Mr. FIFY||

    "Should the Constitution Allow Affirmative Action?"

    Phrasing makes all the difference.

  • Nick Schweitzer||

    Are we actually going to start arguing that it's OK with the government to not have equal protection, as long as it's the Federal government doing it?

    If we're going to be this strict regarding whether state prohibitions like this don't apply to the Federal government, then doesn't that cause issue with the whole concept of incorporation of the Bill of Rights onto the states? Do the Bill of Rights no longer apply to them?

    In certain parts of the Constitution, the various *responsibilities* of the states and the Federal government are laid out. However, protections of basic civil liberties, like equal protection under the law, should easily be understood to apply to all government. Its dangerous to argue otherwise.

  • Old Johnnie Goggabie||

  • John||

    Bakke said that affirmative action was legal in places where it was justifiably making up for a history of past discrimination. That actually made a bit of sense if you were talking about some fire department that refused to hire black people until the courts forced them in the 1970s. But here we are in 2012 and these uber liberal public universities are claiming that they have such a history and track record of discrimination in admissions that the only way to fix it is by self imposed affirmative action. The University of Texas is just as institutionally racist as the Birmingham fire department in 1971. Who knew?

  • Almanian's Evil Twin||

    They certainly need more Native American instructors at Harvard

  • Auric Demonocles||

    My old school in Vermont is so racist that minorities only make up 10% of the student population in a state with a minority population of 4.5%. They clearly need more affirmative action!

  • Ranter||

    Who even cares? After the Court's abysmal performance on ACA and the other horrible decisions (Kelo, BongHits4Jesus, etc) it's clear they've been off their meds for a long, long time.

  • John||

    This is supposed to be the "long game" that Roberts was playing by sticking it to the country on the ACA decision. That was supposed to mean liberals won't be able to complain when Roberts sticks it to them on affirmative action and voting rights. yeah right.

    More likely is that Roberts is a sniveling weasel worried more about his own political standing than interpreting the law. My guess he is completely shocked at how much the Right hates his guts right now and will try to get back in their good graces by authoring a majority opinion killing affirmative action in colleges. That of course will just ensure both sides hate him equally.

  • wareagle||

    did Roberts miss the part that his is a lifetime appointment? Or is he worried about the cocktail parties along the way that he won't be invited to if he does not vote correctly?

  • Randian||

    Take that cocktail parties shit and cram it. That has to be the most worn-out nonsense still winging around H&R.

  • John||

    Don't think the Court doesn't read the polls and don't listen to the pundits. They do. They want to be liked. They cloak it in the guise of protecting the integrity of the court. But at heart, they want to be liked and don't want to be outcasts. You don't get to that level without deeply caring about the opinion others have of you.

  • wareagle||

    then why? Because he thought calling it a tax instead of a mandate made sense? Come up with a better counter, sparky. DC culture is extremely insular; ALL those folks care what others think about them.

  • John||

    Roberts is a guy who was making decisions in law school based on how it might some day affect his confirmation chances to the court. He is a classic political toady. He desperately wants to be liked and respected.

  • wareagle||

    it's part of the DC culture, from teh elected class to the Pentagon generals to everyone else. They all want to be in the club, to be perceived as noteworthy, to get the right table at the right restaurant, and to have heads turn when they walk in. The correlation made between DC and Hollywood is dead on accurate.

  • John||

    My wife used to do fund raising in this city. And the fund raisers will tell you that raising money in Washington is exactly like raising money in Hollywood. It is all about glam and being seen. Not a lot of old school class or sobriety. Just new school rich and tacky see and be seen. It is totally Hollywood.

    The funny thing is that the city is not that great. The restaurants are not that fabulous. The monuments are pretty. But the city doesn't have any particularly great neighborhoods and the suburbs are awful.

  • wareagle||

    power or the perception of it...makes viagra seem like cough drops. But Randian says it's bullshit; guess that means your wife did not see what she saw.

  • LTC(ret) John||

    Argh! You could not be more right about the f'ing brass at the Pentagon. Some of those guys were real soldiers once....then they get there and many of them get warped into the strangest things. Bah.

  • ||

    This is supposed to be the "long game" that Roberts was playing by sticking it to the country on the ACA decision.

    The "long game" Roberts was playing was the one for his personal and family legacy. He no doubt believes that the progressives will be the ones writing history and hopes that they treat him well in the text books of the future.

  • John||

    I said "supposed to" be playing. I didn't say I believed it. I think he is a crap weasel toady. Whatever he does it will be for the wrong reasons. I wouldn't be surprised if he swung back right on this decision to try to gain some good will back from the Right. People like Roberts end up kind of tragic figures. By trying to please everyone they wind up pleasing no one and being universally despised.

  • Randian||

    Right, like Heller and Citizens United.

    Or is that not what you meant?

  • John||

    They have moments of lucidity.

  • Auric Demonocles||

    Before the penaltax I thought we might be on the brink of one of the best SC runs we've seen in a long long time.

  • John||

    Question, would you trade either one of those decision for a reversal of the Obamacare decision? I don't think I would. Gun rights and free speech are pretty essential to a functioning republic. But it still would be a close call.

  • Randian||

    I would give up Heller for it, given that SCOTUS essentially still told the states they could whatever they wanted.

  • John||

    That remains to be seen. McDonald said it applied to the states. Some states are clearly going the Jim Crow route and ignoring the decision. But how much they can get away with that remains to be seen.

    And consider the alternative. If Heller had gone the other way, states would be free to completely ban all gun ownership. That is a pretty scary thought.

  • Mr. FIFY||

    Jim Crow is, thankfully, dead forever, John.

  • John||

    I know. But it took more than Brown v. Board to kill it. The states just ignored it. And that is exactly what they are doing with Heller. That was my point.

  • wareagle||

    on the other hand, the states watch the feds ignore their laws, immigration comes to mind, and figure what the hell.

  • Zeb||

    If by "ignore" you mean "actively challenge" then I guess immigration is a good example.

  • wareagle||

    the feds ignore federal law and sue states that attempt to apply it on the basis of it being federal law. Sure, that makes sense.

  • Spoonman.||

    I wouldn't give up Heller and McDonald for anything.

    I wouldn't give them up to avoid a completely planned economy. I am fucking serious about that and I think if you think it through you would be too.

  • Randian||

    It just depends on your long-ball viewpoint, is all. I am thankful that despite overwhelming pressure in the 80s and 90s, the NRA and other like them refused to buckle to the worldwide call for a ban on guns.

    I remember what it was like being in the Public Indoctrination System at that time and it was completely insane.

  • Auric Demonocles||

    I think I would give up Heller because as a practical matter I think expansive federal power over commerce is more likely than a gun grab.

  • John||

    Heller is a close call. But Citizens isn't. That is why liberals bitch and moan so much more about Citizens than they do about Heller. They know they politically can't ban guns. But they really thought they had a shot at silencing their opponents.

  • wareagle||

    does anyone honestly believe that there is a campaign finance law that will turn off the spigot? I don't see it. It's like commanding the oceans to rise or fall. Money will find its way into the process one way or another.

  • John||

    That wasn't the point of campaign finance law. There were two reasons behind it. First, make it impossible for average people to run for office by making the laws so complex only someone with the money to hire a lawyer can do it. That protects incumbents. Second, they wanted to make the law as arbitrary and vague as possible so they can use it to go after political opponents and trouble makers.

    Lastly, they wanted to protect insiders and incumbents by limiting the amount any one person can give to a campaign. That means no one who doesn't already have a huge fund raising network can run for office. No more Eugen McCarthys getting a few rich guys to back him to go out and cause trouble for incumbents.

  • wareagle||

    but that is not how it was presented, now was it? Of course, not. We heard all the puffery about taking special interest (whatever the hell that means anymore) out of politics, and the media steno pool dutifully took notes and regurgitated what the pols were saying.

    The first aim, by the way, has largely succeeded. Absent high personal wealth or a rich benefactor, which pretty well kills "average", regular folks cannot run.

  • Spoonman.||

    No. Absolutely not.

    Think about it: even North Korea's government had to acknowledge the free market existing within its borders.

  • Randian||

    Again, though, through Heller and McDonald, states can still make it virtually impossible to get a gun., Furthermore, there are states that would probably never ban guns.

  • John||

    That has yet to be determined. There hasn't been enough litigation yet to really define what reasonable restrictions are. Heller and McDonald really are analogous to Brown v. Board. The precedent is there. But that doesn't mean much without years of continued litigation to make it have an effect. At this point it could go either way.

  • Auric Demonocles||

    Oh, I'm sure you'll still be given a "choice" between government approved options. I just think that it's been proven Americans as a whole are much more willing to go along with government expanding over economic matters than taking guns away.

  • CE||

    A literal reading of the Constitution as amended would prohibit the government from even asking what race a person is on any government form.

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