The crux of the originalist argument for affirmative action follows a simple syllogism. If, as originalists believe, “the 14th Amendment’s meaning was fixed by how people understood the amendment when it was ratified in 1868,” and, as the Court reasoned in recent cases like Dobbs and Bruen, “historical laws and practices before and following ratifi...
If the Equal Protection Clause’s meaning is fixed, then no number of Supreme Court decisions can supersede its public meaning, which public practices indicated would include condoning racial discrimination.
To know whether affirmative action would be constitutional under the fixed meaning of the Fourteenth Amendment, we compare it to its obvious analog of “Southern state colleges” engaging in rank racial discrimination in service of a state-sanctioned racial hierarchy.
As Justices Thomas and Scalia have been careful to point out in Second Amendment cases, states need not show that their regulations are the same as those at the time of a legal provision’s fixation in order to pass the historical test; they only need to analogize to historical practice.
Taking the premise of legal fixation to its logical conclusions can indeed lead to some uncomfortable places. Is our law really the one ratified by the people of 1868, unchanged in meaning, even if (theoretically) everyone at the time thought separate-but-equal was an acceptable interpretation of it? Yes, but that does not mean the law is immutable...
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