Clearly we have touched a nerve.  Among the more than seventy amicus briefs filed on behalf of UT-Austin in Fisher, the argument made by the Constitutional Accountability Center’s brief (signed by both of us, along with preeminent constitutional scholars including Jack Balkin, Bruce Ackerman, and Burt Neuborne) has sparked considerable commentary among conservative proponents of originalism.  The brief argues that the text and history of the Fourteenth Amendment are consistent with affirmative action in education. The brief and our post detail the Reconstruction Era Congress’s use of race-conscious measures to benefit African Americans. The resulting commentary has been both critical (by Professors David Bernstein and Ilya Somin) and favorable (by Professor Josh Blackman).  Most recently, Roger Clegg, who joined an amicus brief supporting Fisher’s challenge, has weighed in, arguing that race-based affirmative action in education is barred by the Fourteenth Amendment.

Clegg’s argument turns the Fourteenth Amendment on its head.  Clegg correctly writes that the Fourteenth Amendment must be interpreted based on “its text and principles,” but his understanding of the Fourteenth Amendment and constitutional principles of equality take their cues from those who opposed the Fourteenth Amendment rather than the Framers of that Amendment who sought to fulfill Lincoln’s promise of a “new birth of freedom” and integrate African Americans as equal citizens.  Clegg’s claim that the Constitution forbids all use of race by the government was rejected time and again by the Framers of the Fourteenth Amendment, both in writing the text and enacting a long list of race-conscious measures that assisted African Americans – not merely former slaves – in the transition to their new status as equal citizens.  Clegg’s argument – like those trumpeted by conservative Justices on the Supreme Court to strike down race-conscious measures to foster equality – is, at bottom, a rejection of fidelity to Fourteenth Amendment history.

Clegg also gets his facts wrong. Clegg argues that all of the race-conscious acts approved by the Reconstruction Congress predate the Fourteenth Amendment.  Thus, he claims, Congress “could hardly have felt constrained by a law that didn’t exist at the time.”  This is simply incorrect.  The Reconstruction Congress enacted race-conscious measures to foster equality both before and after the drafting and submission of the Fourteenth Amendment.

Clegg, Bernstein, and Somin all also argue that, even if the Fourteenth Amendment didn’t bar affirmative action by the federal government, it did bar such uses of race by state governments. The problem is that none of them cite any facts to support that claim. Somin goes so far as to say that if the Fourteenth Amendment permitted states to enact affirmative action programs, the people would never have ratified it. Such counterfactuals are popular these days in some circles; Justice Scalia wrote in the Arizona immigration case from last Term that states wouldn’t have joined the Union if they didn’t have the power to control their borders, again without any factual support for that proposition.  But reasoning from counterfactuals isn’t a proper interpretive method. All a constitutional interpreter can use are the facts that we have, and the fact is that the Framers of the Fourteenth Amendment enacted race-conscious measures to foster equality and then defended those programs from charges that they violated the Constitution’s imagined command of colorblindness.

In the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Clegg, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment. (The Supreme Court has said as much repeatedly.) In the arguments over racial preferences in Congress, the Framers and their opponents all assumed that the federal government was required to respect the equality of all persons. Supporters of the Fourteenth Amendment argued that sometimes taking race into account was necessary to fulfill that goal and made no differentiation between state and federal law in this regard, and they repeatedly won this debate in legislative battles.

Clegg and our other critics argue that the people who drafted and ratified that provision would not have accepted “diversity” as a rationale for affirmative action. Perhaps they are correct. But again, that’s nothing but supposition, supported with nary a single statement of a single framer or Fourteenth Amendment proponent to that effect. Our own working hypothesis would be that they never thought about racial preferences in this very modern way. Regardless, what we know for sure is that they accepted the validity of affirmative-action-type racial preferences at least some of the time. The burden is on those who would say that today’s affirmative action is different to show that such differences mattered to the people who ratified the Amendment.

Some of our critics insist that the Framers of the Fourteenth Amendment would not have permitted racial preferences for anyone but African Americans. Again, maybe this supposition is right. Yet nothing in the text of the amendment – which doesn’t provide special rules for African Americans – supports that position and we know of no historical facts to support such a claim. The Fourteenth Amendment demands equal protection and due process for all.  And, again, one thing we do know for a fact is that the Framers accepted some race-conscious measures when designed to improve the lives of historically subjugated people.

Reasonable people can disagree about how to apply, nearly a century and a half later, the Fourteenth Amendment’s guarantee of the equal protection of the laws in light of the Framers’ repeated approval of affirmative action programs.  But the right answer cannot be found by using counterfactuals to marginalize what the Americans who wrote and ratified the Fourteenth Amendment actually did. And what they did was enact race-conscious measures, both before and after the proposal of the Fourteenth Amendment, in the field of education to realize the Fourteenth Amendment’s guarantee of equal protection of the laws.

Posted in Fisher Symposium

Recommended Citation: David Gans and Adam Winkler, Online Fisher symposium: Text and principle support use of race to foster equality – a reply to Roger Clegg and other critics, SCOTUSblog (Sep. 17, 2012, 10:36 AM),