In the context of affirmative action, some of the nation’s most important and distinguished conservative legal thinkers, including Justices Antonin Scalia and Clarence Thomas, appear to have abandoned their own deepest beliefs about how to interpret the Constitution.
Unfortunately, this is not the only area in which they have done so. To appreciate the problem, we have to step back a bit.
For at least 25 years, there has been a clear division between leading conservatives and liberals with respect to constitutional interpretation. Conservatives have tended to favor “originalism” -- the view that the meaning of the Constitution is fixed by the original understanding of its provisions at the time they were ratified.
Liberals have tended to reject originalism. They contend that the Constitution establishes broad principles whose specific meaning changes over time and that must, in the words of the influential legal theorist Ronald Dworkin, be given a “moral reading.”
Consider debates over the right to choose abortion and to engage in sexual relationships with people of the same gender. Many conservatives insist, rightly and to their credit, that our moral judgments must be separated from our judgments about the meaning of the Constitution. They go on to argue that if no provision of the Constitution was understood to protect these rights when it was ratified, then none protects these rights today.
Just this month, Justice Scalia put the point unambiguously: “Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” By contrast, liberals have urged that the meaning of the Constitution’s broad principles evolves, and that judges can legitimately help shape the evolution.
Last week, the Supreme Court heard oral arguments involving the constitutionality of an affirmative-action policy at the University of Texas. Here is the great paradox: None of the conservative justices asked a single question about whether affirmative-action programs are consistent with the original meaning of any provision of the Constitution.
This failure to consider history is long-standing. Justices Scalia and Thomas, the court’s leading “originalists,” have consistently argued that the Constitution requires colorblindness. But neither of them has devoted so much as a paragraph to the original understanding. As conservative Ramesh Ponnuru, liberal Adam Winkler and others have suggested, their silence is especially puzzling because for decades, well-known historical work has strongly suggested that when passed by Congress in 1866 and ratified by the states in 1868, the 14th Amendment did not compel colorblindness.
Perhaps the most important evidence is the Freedmen’s Bureau Act of 1866, which specifically authorized the use of federal funds to provide educational and other benefits to African-Americans. Opponents of the act (including President Andrew Johnson) explicitly objected to the violation of colorblindness, in the form of special treatment along racial lines. In fact, much of the congressional debate involved colorblindness. Along with many others, Representative Ignatius Donnelly of Minnesota gave what the strong majority of Congress saw as a decisive response: “We have liberated four million slaves in the South. It is proposed by some that we stop right here and do nothing more. Such a course would be a cruel mockery.”
As law professor Eric Schnapper has shown, the 1866 Freedmen’s Bureau Act was one of several race-conscious measures enacted in the same period during which the nation ratified the 14th Amendment -- which is now being invoked to challenge affirmative action. If Congress enacted race-conscious measures in the same year that it passed that amendment, and just two years before the nation ratified it, we should ask: Isn’t it clear that the 14th Amendment doesn’t require colorblindness?
Maybe this question can be answered. Maybe current affirmative-action programs, including the one at the University of Texas, are meaningfully different from the measures enacted by Congress after the Civil War. But to invalidate current programs, constitutional originalists have to say more. They must show that such programs are fatally inconsistent with the original understanding. Maybe they can do this, but remarkably, they haven’t even tried.
How can we explain this conspicuous lack of historical curiosity? A tempting answer would point to the Constitution’s text, which bans states from denying any person the “equal protection of the laws.” Perhaps any effort to consider race is, by definition, inconsistent with this requirement. Yet that argument is hopelessly unconvincing. As the historical debates reveal, whether colorblindness is required by a commitment to “equal protection” is the question, and the words themselves don’t provide that answer.
In the context of affirmative action, conservative constitutional thinkers appear to have adopted the approach of some of their liberal adversaries. They are giving a moral reading to the 14th Amendment.
This is far from the only area in which they have been doing so. For example, many conservatives believe in strong protection of property rights. They want courts to use the Fifth Amendment’s takings clause to strike down regulations that interfere with property rights -- even though some leading historical accounts suggest that when originally ratified, the Fifth Amendment was limited to actual physical takings of property, and didn’t restrict regulation at all. Here too, Justices Scalia and Thomas have made no serious inquiry into the original understanding.
Conservatives tend to believe the First Amendment requires courts to invalidate many restrictions on commercial advertising. But until 1976, the Supreme Court didn’t believe that the First Amendment protected commercial advertising at all. It would take a lot of work to establish that the constitutional protection that some would give to commercial advertising can be traced to the original understanding in 1791.
In short, the constitutional judgments of many influential conservatives show an uncomfortably close overlap, not with the original understanding of those who ratified the Constitution, but with the political understandings of the Republican Party in 2012. Who, then, believes in the living Constitution?
(Cass R. Sunstein, the Felix Frankfurter professor of law at Harvard University, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and, most recently, the author of “On Rumors: How Falsehoods Spread.” The opinions expressed are his own.)
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