The following contribution to our Fisher symposium comes from Roger Clegg, president and general counsel of the Center for Equal Opportunity.

In their post, David Gans and Adam Winkler argue that, because Congress passed a number of bills aimed at helping African Americans prior to the ratification of the Fourteenth Amendment, therefore it is consistent with the “original meaning” of the Fourteenth Amendment for the University of Texas to give racial preferences to Latinos and blacks over Asians and whites in 2012.

I’ll note at the outset that of course this broadly remedial rationale for the legality of its discrimination is not being urged by the University of Texas (making it unlikely that the Court could invoke it), that adopting it would also require the Court to toss aside a lot of case law (including, as discussed below, Brown v. Board of Education), and that the only reason we are talking about the Constitution in this case is that activist judges have chosen to ignore the plain meaning of Title VI of the 1964 Civil Rights Act (as well as 42 U.S.C. § 1981). The justification used by the University of Texas in this case is a different one, namely the “diversity” rationale.  And that rationale would by its terms allow discrimination against African Americans; and it is in this case being used to justify discrimination in favor of some whites (Hispanics) against other whites (non-Hispanic) and against other racial minorities (Asians) – and the historical evidence cited in the post offers no justification for that sort of discrimination.

Putting all this aside, the post is unpersuasive.  “Original meaning” focuses on the text of the law.  Here, the relevant parts of the Fourteenth Amendment don’t apply to Congress at all, and the statutes cited in the post all precede the ratification of the Fourteenth Amendment anyhow.  The Framers of the Fourteenth Amendment would logically have been much more willing to trust the national legislature to use racial classifications than, say, the state of Texas, and in any event could hardly have felt constrained by a law that didn’t exist at the time.

What’s more, the post’s basic argument seems to me indistinguishable from arguments a half-century ago that the Fourteenth Amendment should not be read to ban segregated schools in the states because Congress in the 1860s and ‘70s set up and funded segregated schools in the District of Columbia.  What matters is the text and its principles; that text and those principles are not always followed beforehand or afterwards by the politicians involved.

Of course, any statute passed for the benefit of “freedmen” or “freed slaves” would not be using a racial classification at all, and in any event using race as a proxy for being a recent victim of systematic racial discrimination made a lot more sense – was more narrowly tailored to a compelling interest, to use the Court’s current standard – in 1865 than in 2012.  That is, the post’s cited “gulf which separates servitude from freedom” was before the Framers in 1865, not 150 years behind them.

Today, many African Americans have no slave ancestors, and all have at least some nonslave ancestors.  If the Framers had meant to allow African Americans to be given preferential treatment over members of other racial groups forever, they would have, could have, and should have written the Fourteenth Amendment very differently, and would in particular have avoided the present-tense use of words like “all” and “any” and “equal.”

Posted in Featured, Fisher Symposium

Recommended Citation: Roger Clegg, Online Fisher symposium: Response to Gans and Winkler on “original meaning”, SCOTUSblog (Sep. 10, 2012, 1:41 PM), http://www.scotusblog.com/2012/09/online-fisher-symposium-response-to-gans-and-winkler-original-meaning/