Race preferences, original meaning, and precedent

Steven Jamar stevenjamar at gmail.com
Mon Jun 4 10:32:09 PDT 2007

Well, one ought not write out Section 5 of the 14th Amendment in  
quite so facile manner, I think.

On Jun 4, 2007, at 1:20 PM, Volokh, Eugene wrote:

> 	I agree that Justices Thomas and Scalia can be faulted for not  
> explaining how their view of race preferences is consistent with  
> the original meaning of the Constitution.  But my understanding is  
> that there is an account of that in the literature (though I don't  
> recall the exact source):  The Fourteenth Amendment was originally  
> understood as barring race discrimination in "civil rights," such  
> as the right to own property, the right to sue and be sued, the  
> right to be treated equally by the criminal law, and the like.
> 	It was not understood as barring race discrimination in political  
> rights (that's why the Fifteenth Amendment was needed) but not  
> government spending, such as government employment, government  
> contracting, or general aid programs.  The Freedmen's Bureau Bill  
> was thus constitutional not because remedial preferences for blacks  
> were permitted where preferences for whites were not; rather, it  
> was constitutional because it had to do with government benefits,  
> not civil rights.  The Fourteenth Amendment thus contained two  
> components: (1) a bar on race discrimination (2) limited to civil  
> rights.
> 	Since 1868, of course, the second bar has been solidly rejected by  
> very well-entrenched precedent (even outside the race context, see,  
> e.g., the Fourteenth Amendment voting/redistricting cases).  Even  
> Justice Thomas isn't willing to reverse all precedent, though he's  
> more willing to reverse precedents than his colleagues are, so the  
> extension of the Fourteenth Amendment to contracting, employment,  
> and the like is there and not going to go away.  But even if the  
> original meaning as to (2) is rejected, we should keep the original  
> meaning as much as possible, which is to say apply the no race  
> discrimination norm throughout the Fourteenth Amendment's scope  
> (even if it's now a broader scope than before).
> 	Again, this doesn't acquit Thomas of the charge of not adequately  
> explaining his position; but if this is his view, then it wouldn't  
> be the case that "you can't get [to Thomas's views on race  
> preferences] from Thomas's starting position [generally requiring  
> reliance on original meaning]."  Am I mistaken on that?  Or, more  
> broadly, has the rough argument I outlined above been definitively  
> rebutted?  (My recollection is that Schnapper's piece, for  
> instance, didn't squarely confront it, but maybe I'm mistaken.)   
> Thanks,
> 	Eugene

Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar at gmail.com
Washington, DC  20008	                          http://iipsj.com/SDJ/

"A life directed chiefly toward the fulfillment of personal desires  
sooner or later always leads to bitter disappointment."

Albert Einstein

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