Is Affirmative Action Constitutional?

August 10, 2009 · Filed Under Politics, Racism

This is a question that came up repeatedly in the last few months, especially during Sotomayor’s confirmation hearings.

I’m no lawyer, so take what I have to say with a grain of salt. But I do think that it is constitutional. Let’s look at this from an originalist perspective. Nothing in the text of the constitution prohibits affirmative action. It says that the races get equal protection under the law. But it does not say that the ability to get into one’s first choice college for example falls under protection of the law.

There is nothing in the history of the time that suggests the authors of the 14^th amendment wished to prohibit affirmative action. I don’t see any evidence that Thaddeus Stevens wanted to prevent the University of Michigan from using race as a plus factor to get accepted. It’s important to understand the context of the amendment. It was written during reconstruction at a time when southern states were trying to deny rights such as the right to vote to the newly emancipated black slaves.

So my understanding of the intent is that the authors wanted to protect the black minority from the white majority in these states. It’s not at all clear that the authors were against using race to help these former slaves. In fact, they set up the Freedmen’s Bureau to do that. It used a strictly racial criterion to decide who to help.

You could argue that the authors of the 14^th amendment intended those measures to be temporary, and that their goal was eventually for a completely color-blind society that didn’t even consider race as a tip factor for college. But that is reading a lot into the amendment. As I said earlier, I don’t see evidence that the authors wanted to ban efforts on the part of the white majority to help the black minority.

So originalism probably doesn’t support outlawing affirmative action. Ironically enough, the one school of thought that might is the living constitution school of interpretation—the idea that the constitution should be interpreted in light of changing societal mores—something conservatives tend to dislike.

That is not to say affirmative action is a good policy, or a wise one. But those would seem questions for Congress, not the Supreme Court to address.

-Marcus Gadson

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