Where was originalism in Fisher?

June 24th, 2013

Jack Balkin opines, with shoutouts to the scholarship of Mike Rappaport, David Upham, and others:

Affirmative Action and Original Meaning. Justices Scalia and Thomas once again argue for a strict colorblindness rule, but, once again, neither attempts to square their views with the original meaning of the Constitution. The closest Justice Thomas comes is citing to Clark v. Board of Directors, an Iowa Supreme Court decision from June 1868. The problem is that Clark construes the Iowa state constitution (not the federal Constitution), and it appears to have been decided before the Fourteenth Amendment was officially ratified in July 1868.

I am not sure that Mike is entirely successful in showing that colorblindness was required by the original meaning of the Fourteenth Amendment, for reasons I will explain in a future post. There is just too much contrary evidence (for one thing, Thaddeus Stevens– the major proponent of that position–would have been turning cartwheels at the prospect, which he was most decidedly not doing). Moreover, the conclusion does not seem to square fully with Mike’s own approach to originalism, which looks to original methods and for a general consensus about what is protected by seemingly abstract rights provisions. But at least Mike is attempting to do the heavy lifting, and he should get kudos for that. Scalia and Thomas, by contrast, armed with very talented law clerks each Term, have not yet been willing to employ their favored method of interpretation to one of the most salient issues in contemporary constitutional law. Perhaps they will do so in the next case. Or perhaps they will simply continue to treat race as a very large exception to their originalist approach.