How originalism supports affirmative action

Originalism is becoming the coin of the realm at the conservative Supreme Court. Even newly appointed liberal Justice Ketanji Brown Jackson has drawn on originalist evidence in her comments during oral arguments, and Justice Elena Kagan has quipped — only somewhat facetiously — “We are all originalists.”

If the court applies originalist analysis to the higher-education affirmative action cases currently before it, race-conscious admissions across the country should be upheld.

The originalist theory of constitutional interpretation holds that the 14th Amendment’s meaning was fixed by how people understood the amendment when it was ratified in 1868. Historical laws and practices before and following ratification is important evidence for originalists seeking such understanding.

In last term’s Dobbs v. Jackson Women’s Health Organization, the conservative majority overturned the nearly 50-year-old abortion precedent in Roe v. Wade because the Supreme Court’s reading of history found that state laws did not protect abortion when or after the 14th Amendment was ratified.

In the same term, in New York State Rifle & Pistol Association v. Bruen, the court looked at the history of gun regulations around the time the 2nd and 14th Amendments were ratified, reading them as permitting a right to carry firearms outside the home. As a result, states may now ban abortions of pregnancies from rape or incest, but they cannot regulate many firearms if such firearms were not similarly regulated in 1868.

By that originalist standard, the Supreme Court should uphold race-based affirmative action in the two cases currently before it: Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.

State colleges have used race preferences in admissions throughout American history. Indeed, until the second half of the 20th century, the great majority of Southern state colleges imposed admission quotas: 100 percent of admitted students were white (and, overwhelmingly, male). Such race-based admissions practices were prevalent when the 14th Amendment was ratified and persisted for nearly a century thereafter.

Moreover, the Reconstruction-era Congress, many of whose members drafted the 14th Amendment, apparently believed the amendment permitted states to use racial preferences in college admissions. In the decade following the amendment’s 1868 ratification, Congress enacted civil rights laws to explicitly prohibit race discrimination in several contexts, including property and contract rights, and access to public-serving businesses, such as hotels, restaurants, theaters and public carriages. But Congress did not prohibit race discrimination by states in higher education, including college admissions. In fact, during Reconstruction, Congress repeatedly considered and rejected proposals to prohibit race discrimination in college admissions as a condition for states to receive federal funds for higher education.

Even congressmen who had voted for the 14th Amendment voted against prohibiting discrimination in the context of college admissions.

By 1890, Congress required only that states receiving federal funding provide access to alternative colleges for Black people. So states were free to use federal funds to reserve flagship colleges for white people and leave Black people to attend far less-resourced “negro” colleges.

At oral arguments in the Harvard and UNC cases currently before the Supreme Court, litigants and justices discussed the original meaning of the 14th Amendment as applied to affirmative action. The historical record presented in the briefs showed that the Congress that proposed the 14th Amendment also enacted race-conscious programs to benefit Black people, including those who were not formerly enslaved. Justice Amy Coney Barrett acknowledged that the original 14th Amendment likely permitted race-conscious remedial laws.

Conceding that history, some amicus, or “friend of the court,” briefs opposing affirmative action speculated that Congress may have believed the 14th Amendment required states to be colorblind, but not the federal government. Their arguments overlook the states’ long history of race-conscious college admission policies before and after the 14th Amendment’s ratification. Both the states and the federal government apparently understood the amendment to permit states to continue to use race in college admissions — and continued to believe this for nearly a century.

This historical evidence adds further support to Harvard’s and UNC’s arguments that the 14th Amendment did not require states to be blind to race. That the amendment’s original meaning appears to have permitted college-admission preferences for white people is disappointing. However, the uncontested, primary purpose of the 14th Amendment is equality for Black people, so the historical practice of race-conscious admissions in the 19th and 20th centuries certainly supports the permissibility of race-conscious admissions for Black people in the 21st century.

Nor would affirmative action be barred by the Civil Rights Act of 1964, if the court were to apply the Constitution’s original meaning. (That act applies to private schools, such as Harvard, whereas the Constitution only applies to public schools.) The court has consistently interpreted the 1964 Act to allow affirmative action to the same extent as the Constitution does. Thus, if the court upholds affirmative action under an originalist interpretation of the Constitution, it should likewise uphold affirmative action under the Civil Rights Act.

If originalist justices are true to their judicial philosophy, they should hold that, whether affirmative action is good policy or not, it is not barred by the Constitution.

Kim Forde-Mazrui is the Mortimer M. Caplin Professor of Law and director of the Center for the Study of Race and Law at the University of Virginia School of Law.