Ramesh’s op-ed in today’s New York Times is an updating of a more fleshed-out version I’ve read and heard before. He makes the straightforward argument that an investigation into the original meaning and intent of the Constitution and its amendments will not reveal a constitutional prohibition of race preferences. The Constitution simply does not demand colorblindness, says Ramesh. I find it an unlovely argument, not because it is poorly formulated or poorly written but because it might well be true. But as a firm believer that the something bad can be constitutional and something good can be unconstitutional (or unsupported by the Constitution) I shouldn’t be surprised when the Constitution fails to ratify my own philosophical preferences.

I don’t know near enough about the ratification of the 14th and 15th amendments to argue with Ramesh about this and it’s been a very long time since I’ve read-up on the conservative case for colorblindness in the Constitution. But a few thoughts do come to mind. First, it seems to me that Clarence Thomas’ straying from originalism — as Ramesh describes it — might have something to do with his belief in natural law and his much-touted belief that the ideals laid out in the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . .”) frame the meaning and intent of the Constitution. I don’t know if Ramesh would disagree with this explanation of Thomas’s reasoning, he might just think that Thomas is wrong to interpret the Constitution that way.

I’m certainly sympathetic to Thomas’s view. I strongly believe that there should be a Constitutional bias toward colorblindness, and I agree with Ramesh that the better, earlier, version of the 14th amendment should have been ratified. But none of that means it’s actually in there. I’d be interested in knowing what brother Whelan and Roger Clegg have to say about Ramesh’s argument.

Moreover, I think it will be interesting to know what liberals make of Ramesh’s argument, since the upshot of it is that racial discrimination of all kinds is constitutional — not just the kind liberals like.

It’s also worth reminding readers who are only going by the Times’s op-ed, that even Ramesh concedes that even though racial preferences are constitutional, they are still illegal. As he wrote during the debate over racial quotas at the University of Michigan:

The Supreme Court should uphold the University of Michigan’s admissions preferences as constitutional. But then it should strike them down anyway, because they’re illegal. The Constitution may not prohibit racial discrimination, but the Civil Rights Act of 1964 does. It is a long-accepted legal doctrine that if a court can settle a case on statutory rather than constitutional grounds, it should do so.

Last, while I think Ramesh’s argument moves his chances of ever making the Supreme Court — which was already something like .0000001% – a couple more zeroes down from the decimal point, I still support his nomination.

Ponnuru for Scotus!