Originalism and precedent

Volokh, Eugene VOLOKH at law.ucla.edu
Thu Sep 8 09:22:48 PDT 2005


	Here's what strikes me as the tough originalist question related
to affirmative action programs.  Say the Fifth and Fourteenth Amendments
was originally understood to (1) secure color-blind protection for all
races but (2) only as to rights and not privileges and (3) only against
state governments.  Now there are precedents that relax condition 2 and
3, and they are so well-settled that they're highly unlikely to be
changed; discrimination against blacks and other nonwhite racial groups
is thus unconstitutional even as to privileges, and even as to the
federal government.  Should an originalist say "Well, it's too bad [as a
matter of constitutional law, though not as a matter of justice or good
policy] that we've gone beyond the original meaning as to discrimination
against nonwhites, but at least we should stick with the original and
quite limited meaning as to discrimination against whites," thus
preserving as much as possible of 2 and 3 but sacrificing 1?  Or should
he say "Well, it's too bad that we've gone beyond the original meaning
as to 2 and 3, but at least we should stick with the original meaning as
to 1, and make sure that the Fifth and Fourteenth Amendment continue to
secure color-blind protection in that zone in which they now apply"?

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
> Sent: Thursday, September 08, 2005 8:49 AM
> To: DavidEBernstein at aol.com
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: John Roberts's Refusal to Defend Federal 
> Statutes in MetroBroadcasting
> 
> 
>  From an originalist perspective, the original understanding of the 
> Fourteenth Amendment is that it was passed in an era where the 
> right/privilege distinction was firmly entrenched, and that 
> it dealt only 
> with rights (which, confusingly enough, included those rights 
> that were 
> protected by the privileges and immunities clause of Article IV), not 
> privileges such as government benefits..  By contrast, all of the 
> affirmative action cases of which I am aware deal with the 
> latter, and thus 
> should be constitutional for that reason.
> 
> At 11:04 AM 9/8/2005 -0400, you wrote:
> >Federal affirmative action, the subject of Marty's post, has 
> nothing to 
> >do
> >with the 14th Amendment, but can only be unconstitutional 
> under the due 
> >process clause of the 5th Amendment.
> >
> >As for the Reconstruction Congress's "affirmative action" 
> program, were
> >these programs for "negroes" or for "freedmen?"
> >
> >In a message dated 9/8/2005 11:03:12 AM Eastern Standard Time,
> >crossf at mail.utexas.edu writes:
> >
> >I'm no elite but must confess I haven't read Scott's 
> sources.  There's 
> >so much to read. Yesterday, on NPR, Cass Sunstein took 
> Thomas to task 
> >on this issue.  He said that it was clear at the time of the 14th 
> >Amendment that affirmative action was legitimate and that the 
> >contemporary Congress adopted several affirmative action 
> programs.  He 
> >complained that Thomas had ignored this.
> >
> >Scott, can you give us a synopsis of the response to this argument?
> >
> >
> >David E. Bernstein
> >Visiting Professor
> >University of Michigan School of Law
> >Professor
> >George Mason University School of Law http://mason.gmu.edu/~dbernste
> >_______________________________________________
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