Bench Memos

Re: Ricci and Constitutional Avoidance

Anthony: Here’s what I wrote about McConnell’s article a few years ago:

Michael McConnell, recently confirmed to a federal appeals court, has argued that Reconstruction-era Republicans considered segregation in education to be a violation of civil rights and that Brown v. Board of Education is thus defensible on originalist grounds.

But not even the broadest plausible originalist account of the Fourteenth Amendment holds it to forbid all governmental discrimination by race. Nor can the amendment be held to assert an individual right to race-blind treatment in state-university admissions (or federal contracting). A few justices of the Supreme Court have held the Constitution to command colorblindness, but no majority has ever done so.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.