The Supreme Court’s conservatives claim to be “originalists,” a doctrine which holds that the Constitution means what its authors intended.
This term, the court will revisit affirmative action, and lawyers opposed to the practice will argue the 14th Amendment requires college admissions to be “colorblind.”
Not according to those who wrote it. The same Congress that drafted the 14th Amendment passed “a series of social welfare programs whose benefits were expressly limited to blacks,” including financial assistance to colleges established to educate black students (see article here).
In their brief (here), lawyers for the plaintiffs challenging affirmative action quoted Sen. Daniel Pratt (bio here), who in 1874 said “free government demands the abolition of all distinctions founded on color and race.” But Pratt wasn’t one of the 14th Amendment’s authors, or even a member of Congress; he didn’t take office until 1869. Congress drafted the 14th Amendment in 1866, and the states ratified it in 1868.
The only other historical evidence they offered for the proposition that the 14th Amendment requires “colorblindness” are statements by one House member and one member of the Pennsylvania legislature. History proves Congress, in fact, rejected the “colorblind” principle. President Andrew Johnson vetoed some of aforementioned legislation because it favored the black race, and Congress overrode those vetoes — and that objection.
On a purely logical basis, without reference to history, legislation and policies targeting a disadvantaged group for special help to overcome existing inequality passes muster under an “equal treatment” principle, because it intends to ensure they’re treated equally and tries to make equal treatment a reality.
Opponents of affirmative could argue that affirmative action isn’t need to ensure equality because black students applying for college admission today aren’t disadvantaged in the manner that newly-freed black slaves were in the aftermath of the Civil War, but that’s not an originalist argument, it’s an argument to adapt the Constitution to today’s conditions, whether it has merit or not.
Does this mean the Supreme Court will reject the challenge to affirmative action? Hardly. Everyone expects the conservative majority to gut what’s left of affirmative action. But the majority’s decision will be based on today’s conservative dogma, not original intent. Three things no one should expect from the conservative justices are logic, consistency, and honesty.