Writing in the New York Times before the ruling in Ricci v. DiStefano — the case involving New Haven firefighters denied promotions by city officials on grounds that were quite intentionally race-conscious — NR senior editor Ramesh Ponnuru observed:

To conclude that New Haven acted unconstitutionally is to assume that the Constitution’s Fourteenth Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.

This assertion sparked spirited debate at NRO and elsewhere. (I’ve written two columns already on related aspects of Ramesh’s article — here and here.)

Some critics have groused over the timing, so close to the confirmation hearings of Sonia Sotomayor, the Second Circuit judge who ruled against the firefighters and was overturned last week by the Supreme Court on which she hopes to sit. That critique is wayward. Put aside Ramesh’s cover article in the June 22 edition of NR, in which he lambasted Judge Sotomayor as a liberal activist who “would take us farther away from democracy, the rule of law, and the Constitution” — and I would have thought it by now obvious that Ramesh, no shrinking violet, would not resort to indirection if he actually thought Sotomayor should be confirmed. (The burden of his cover article was to explain why she shouldn’t be.) In point of fact, Ramesh’s position is long-held. In a 2003 NR essay, “Originalist Sin: Conservatives, the Constitution, and affirmative action,” he framed it thus:

In truth, the claim that the Fourteenth Amendment, as originally understood, bars racial preferences cannot really be maintained. In 1865 and 1866, radical Republicans proposed a constitutional amendment declaring, “No state shall make any distinction in civil rights and privileges . . . on account of race, color, or descent.” The proposal failed. Colorblindness “died in the Joint Committee of the Thirty-Ninth Congress,” as Andrew Kull remarks in The Color-Blind Constitution (1992). America would almost certainly have been better off had the no-distinction amendment prevailed. But the Fourteenth Amendment that actually passed was much more limited.

This is no apologia for affirmative action — quite the opposite. Ramesh went on to argue that “racial preferences are unwise and immoral.” His quarrel with conservative legal thinkers is that “they’re not unconstitutional,” and thus that “the Constitution does not impose a colorblind regime.”

It is here that I part company with Ramesh. I think there is a subtle but important difference between imposing a colorblind regime and declaring racial discrimination by government to be unconstitutional.

Terms such as “a policy of strict colorblindness” and “a colorblind regime” are imprecise. If what they mean is that the Fourteenth Amendment was not taken at the time of ratification to mean that states were required to stamp out every vestige of racial discrimination — even racial discrimination supported by state or federal funding — one would be hard-pressed to see how an originalist could deny that. None less than Judge Robert Bork, a pathbreaking originalist, has written that “the inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in any aspect of life.” (I understand Judge Bork’s “any” to mean “every” in this context.)

Moreover, an immediate purpose of the Fourteenth Amendment’s framers, perhaps the paramount purpose, was to validate the Civil Rights Act of 1866 (1866 CRA). That legislation, which guaranteed specified civil rights (namely, contract, litigation, property, and security rights), was constitutionally dubious because it was enacted pursuant to Congress’s power to enforce the Thirteenth Amendment. That is, its purported “enforcement” measures outstripped the Thirteenth Amendment’s narrow substantive proscription of slavery. (See my column earlier in this series, arguing that, in the Fifteenth Amendment context, a constitutional guarantee cannot be expanded by enforcement legislation.)

Putting aside the question of its propriety as an enforcement measure, the bill that led to the 1866 CRA was originally proposed as stating: “There shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery.” This provision, however, was stricken precisely because of congressional fears that it would force school desegregation, create a right to jury service, and outlaw miscegenation prohibitions. Consequently, to the extent the 1866 CRA can be portrayed as spurring the Fourteenth Amendment, there is a powerful argument that the Fourteenth Amendment was understood to countenance — though certainly not to mandate — at least some forms of official discrimination.

But in an important 1995 academic article, “Originalism and the Desegregation Decisions” (81 Va. L. Rev. 947), former University of Chicago law professor Michael McConnell, now a federal appeals judge, undertook to refute this interpretation of the Fourteenth Amendment. A principal thrust of McConnell’s theory is that the amendment was not meant as a mere reaffirmation of the 1866 CRA. This is because the Fourteenth Amendment — which, unlike the 1866 CRA, does not enumerate a narrow set of protected civil rights — includes a general protection of “the privileges or immunities of citizens of the United States.” That formulation, McConnell argues, is materially indistinguishable from the “civil liberties or immunities” language that had been stricken two years earlier during the debate over the 1866 CRA. Thus, the argument goes, the Fourteenth Amendment was understood to safeguard all civil rights: it was not limited to what was specified in the 1866 CRA, nor did it omit school segregation, jury service, anti-miscegenation, or any other privileges implicitly omitted when the disputed 1866 CRA language was stricken.

If McConnell is right, that rebuts Ramesh’s reliance on Andrew Kull. As Ramesh notes, Kull claimed that the failure of the Fourteenth Amendment’s framers to include a guarantee of “civil rights and privileges” against racial discrimination meant the amendment did not prohibit state discrimination on account of race. But McConnell counters, convincingly in my view, that the “privileges or immunities” language the Fourteenth Amendment’s framers did include was understood to effect that precise prohibition.

Moreover, while there was scant debate over the meaning of the “privileges or immunities” provision when the Fourteenth Amendment was adopted, there was robust debate over the amendment’s coverage during the five years of congressional deliberation over what eventually became the Civil Rights Act of 1875 (1875 CRA) — the first legislation enacted to enforce the Fourteenth Amendment. The debate over the 1875 CRA, coupled with the text of the Fourteenth Amendment (as well as the other Reconstruction-era amendments, the Thirteenth and Fifteenth), leaves no doubt that the Fourteenth Amendment was understood at the time of its ratification to mandate a principle of equality: If a privilege was recognized — or came over time to be recognized — as a civil right, the state and local governments were henceforth constitutionally barred from racially discriminatory extension or enforcement of that right.

This mandate of equality did not necessarily mean colorblindness throughout society — certainly not right away. There were firmly rooted distinctions, tracing back to the Middle Ages, between the “privileges and immunities” of citizenship, on the one hand, and “rights” that were deemed “social” or “political” on the other. Public education is a good example. As Paul Johnson recounts in A History of the American People, it was not until the middle of the 19th century that Horace Mann’s groundbreaking work in Massachusetts catalyzed what eventually became an “established . . . right of every American child to a proper education at public expense.” While this is a settled civil right today, it was still a work in progress when the Fourteenth Amendment was adopted over 140 years ago.

This is why there is a valid originalist argument for the result in Brown v. Board of Education, the 1954 ruling that invalidated the “separate but equal” doctrine under which official segregation had been indulged by the Supreme Court for over half a century. The equality mandate of the Fourteenth Amendment was triggered by a right’s elevation to the status of “civil right.” Public education simply did not have that status throughout the United States in 1868, or even 1875, though it surely did by 1954.

McConnell recounts why the taxonomy of the Fourteenth Amendment’s equality mandate has been so elusive. Two Supreme Court cases are responsible. The historical record that best elucidates the original meaning of the Fourteenth Amendment, the debates over the 1875 CRA, has often been overlooked because the statute was only on the books for eight years. In 1883, the Court invalidated the 1875 CRA in the Civil Rights Cases on the ground that it was overbroad (i.e., the amendment’s federal proscriptions against state discrimination could not properly be enforced against private actors — at least in states whose governments had good track records of protecting civil rights).

Perhaps more significantly, ten years earlier, in the midst of the debate over the 1875 CRA, the Supreme Court essentially nullified the Fourteenth Amendment’s privileges-or-immunities clause in the Slaughterhouse Cases (1873). This absurd (and widely condemned) ruling did not and could not alter the original understanding of the amendment — indeed, the original understanding is part of what shows the wrongness of the ruling. It did, however, dramatically alter the strategy of proponents of the 1875 CRA. They were now driven to shift their theory for enforcing equality from the straightforward privileges-or-immunities clause to the vague equal-protection clause.

This was an awkward fit. The “privileges or immunities” clause was meant to convey a broader set of rights that belonged only to U.S. citizens. By contrast, “equal protection,” whatever its parameters, was meant to convey the more limited privileges extended to all persons (i.e., non-Americans as well as U.S. citizens). Linguistic niceties aside, after Slaughterhouse, equal protection became the vessel into which privileges and immunities were poured, obscuring the original purpose to safeguard all established rights of citizenship.

Obscuring but not extinguishing. As McConnell compellingly shows, even opponents of the 1875 CRA proceeded on the assumption that the Fourteenth Amendment compelled equality of the races. That is why they opposed it. They were a decided minority in doing so: not so small a minority as to be unable to stop a positive mandate to desegregate the schools, but small enough that their effort expressly to permit “separate but equal” accommodations was soundly defeated. Indeed, the whole premise of the “separate but equal” canard is the discriminationists’ implicit concession that the Fourteenth Amendment required equality. They fully understood that separate could not even get into the ballpark under the Fourteenth Amendment unless it could plausibly pass itself off as equal.

On this accounting, the real travesty against the Constitution is yet another Supreme Court case, Plessy v. Ferguson (1896). As McConnell contends, in upholding “separate but equal,” the Supreme Court in Plessy not only departed from “the original understanding” of the Fourteenth Amendment but “adopted a position more extreme than even [the staunchest] opponents of civil rights could maintain in the early 1870s.” McConnell’s position on Plessy is the one also staked out by such renowned originalists as Ed Meese and Mark Levin. Had Plessy taken the originalist course, Jim Crow might have been stopped in his tracks, and there would never have been a Brown to usher in the modern era of “progressive” judicial activism.

Ramesh is right to argue that the Fourteenth Amendment did not impose a colorblind regime. But this is not the same as proving that it was not meant to bar racial preferences. It was. The Fourteenth Amendment was meant to herald a colorblind regime by imposing an equality mandate that applied to all the rights and privileges of citizenship. When rights and privileges are accepted as guaranteed to any, they must be guaranteed to all. If there are to be laws, they must be applied and enforced equally, regardless of an American’s race. Racial preferences are not only unwise and immoral, they are unconstitutional.