Bench Memos

Originalism and Affirmative Action

Excellent discussion here by Professor Michael Rappaport.  The bottom line (quoting the abstract):  “In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution.”  I came to a similar conclusion, but without the impressive scholarship, here.


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