In an aside the other day, I suggested that I couldn’t quite agree with the conservative justices on racial matters, and linked to an article elaborating on my disagreement. That prompted Roger Clegg of the Center for Equal Opportunity (also an occasional Cornerite) to send me this email:

[H]ere’s how I would square striking down racial preferences with originalism:

1. For starters, most racial preference programs are flatly inconsistent with the text of this or that federal statute, in particular the various titles of the Civil Rights Act of 1964. If originalism is original meaning, then that’s that. Even if you define originalism as original intent, I think that the general principle that was meant to be enshrined was one of nondiscrimination across the board. The framers of the 1964 statutes, for instance, were certainly aware of the issue of racial preferences. The dissent in Weber and Stevens’s (!) opinion in Bakke go through the legislative history of Titles VII and VI, respectively, and conclude that it was the statute’s intent as well as meaning that all groups were to be protected from discrimination.

2.So I would think that your claim that striking down racial preferences is shaky on originalism grounds must have been made with the Constitution in mind. It is certainly true that the text of the Fourteenth Amendment is very broad, and that the framers probably didn’t have anything like modern affirmative-action programs in mind. But, again, they wrote what they wrote, and what they wrote was a law that makes no distinctions on the basis of race (to do so, after all, would have been paradoxically to deny literally “equal protection”), again enshrining a general principle of nondiscrimination. Sometimes proponents of affirmative action point to the existence of contemporaneous Freedmen’s Bureau programs, but (1) these programs were federal, and thus not covered by the Fourteenth Amendment, and (2) they were, I suspect, focused not on color per se, but on status as an ex-slave (in modern parlance, they were “victim specific”).

3.It is true that the anti-preference decisions do not really rely on the grounds given above, but instead simply adopt the Court-constructed “strict scrutiny” framework, and argue that racial preferences do not pass that scrutiny. That’s a fair point, but there may not be five votes to jettison that framework and go back to statutory text, etc. In that case, it’s understandable on stare decisis grounds that the majority votes to reach the right result (i.e., the result that originalism would dictate) on the basis of a framework that is judge-made.

What do you think? Anyway, my bottom line is that I’d be wary of discouraging judges from striking down racial preferences by simply implying that it has been, and maybe must be, activist, for them do so.

Here’s how I responded to Clegg, who allowed me to publish the correspondence:

I think your first point, about CRA’64, is correct (and I made it in the old article to which I linked the other day).

I’m less sure of your second point, but I would now modify the verdict of my article. I think the best take on the plain meaning of “equal protection of the laws,” as historically recovered, is that, for example, laws against killing have to be applied equally to victims of all races, and so do legal protections guarding suspects: For both reasons, lynchings can’t be permitted to go unpunished. The additional point I would make now is that in conjunction with CRA’64 and similar state laws, that constitutional provision creates a problem for certain forms of race-consciousness in public policy. If you have a ban on racial discrimination in the law, you can’t enforce it in cases of anti-black discrimination without also enforcing it in cases of anti-white discrimination.

So, on point 3, I’d come down where you do: Even if the reasoning is a bit awry, the result is nearly the same. I say “nearly” because it’s not clear that, for example, race-conscious legislative districting could be struck down under this reading of the law.