Erwin Chemerinsky—
One more example—a particularly powerful one of originalists abandoning originalism when it does not serve their ideological goals—is affirmative action. The originalists who have been on the Court, like Justices Scalia and Thomas, are fervent in their opposition to affirmative action. Never have they voted to uphold an affirmative action program. This position, of course, is completely consistent with the strong conservative opposition to affirmative action, but it is not sustainable under originalism.
In Grutter v. Bollinger (2003), which upheld colleges’ and universities’ use of affirmative action to achieve diversity, Justice Thomas wrote an impassioned dissent arguing against affirmative action, joined by Justice Scalia.63 Thomas concluded his dissent by declaring: “For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. ‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’”64 The quoted line came from Justice Harlan’s famous dissent in Plessy v. Ferguson.65
Scalia likewise was adamant in his opposition to affirmative action. In a 1995 case, for example, he wrote:
In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race…To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.66
What is striking, however, is that from an originalist perspective, affirmative action is clearly constitutional. There is no basis for concluding that those who wrote the Constitution, or who drafted and ratified the Fourteenth Amendment, ever meant to create a requirement for color blindness. Professor Stephen Siegel thoroughly examined the constitutional history and concluded that originalism provides no grounds for limiting the federal government’s ability to enact programs to benefit racial minorities.67 He argues that “when interpreted through originalist jurisprudence, nothing in the Founding era Constitution limits federal power to enact race-based classifications…Under the Founding era Constitution the federal government has plenary power (within its limited jurisdiction) to enact color-conscious laws, both invidious and benign.”68
Perhaps more importantly for understanding the Civil War Amendments, Siegel shows that “the Reconstruction era Congresses produced a vast array of laws treating blacks preferentially, indicating its view that federal affirmative action violated no constitutional norms.”69 One of the most significant examples was the Freedmen’s Bureau, which implemented a massive federal assistance program. Originally established in March 1865 for one year, the bureau was renewed by subsequent Congresses and operated until July 1872. It was seen at the time as a program primarily intended to benefit Blacks. As Siegel notes: “While active, the Bureau provided its charges with clothing, food, fuel, and medicine; it built, staffed, and operated their schools and hospitals; and it wrote their leases and labor contracts, rented them land, and interceded in legal proceedings to protect their rights. The Bureau even provided courts in unreconstructed states in order to secure civil and criminal justice and equal rights in cases involving freedmen.”70
This is but one example of many race-conscious programs adopted by the same Congresses that ratified the Thirteenth, Fourteenth, and Fifteenth Amendments. Professor Siegel writes: “Beyond the Freedmen’s Bureau laws, Reconstruction era Congresses enacted a mass of express race-conscious preferences for blacks. Some dealt with black soldiers…Other Reconstruction era benign race-conscious laws involved charitable payments restricted to black recipients or payments and property transfers to institutions restricted to serving the black community. In each instance, there were no corresponding payments or transfers to whites, who received their share of governmental charity through legally unrestricted transfers.”71
Originalists frequently look to practices at the time a constitutional provision was adopted to determine its original meaning. By this measure, the original meaning of the Fourteenth Amendment as it relates to affirmative action could not be clearer. Yet originalists such as Scalia and Thomas pay no attention to this original meaning. They make no effort to justify their opposition to affirmative action in originalist terms because it can’t plausibly be done. As Professor Eric Segall noted, “Neither Justice Scalia nor Justice Thomas addressed this specific history or even the original meaning of the Fourteenth Amendment as applied to limited racial preferences.”72 Affirmative action is a very powerful example of how conservative political ideology is far more important to these justices than their commitment to originalism.
The remarkable willingness of originalists to abandon originalism when it fails to produce conservative results shows that the theory was never the constraint on the judiciary that its boosters promised. It is simply convenient rhetoric, used by conservatives to make it seem that their decisions are a product of something other than their political views. To be sure, there are a few examples where originalists do follow originalism even when they dislike its results. But the important examples in this chapter—voting rights, the Eleventh Amendment and sovereign immunity, campaign finance laws, and affirmative action—show that in the areas conservatives care deeply about, they are unwilling to let a mere theory stand in the way of the outcomes they desire.
63. Grutter v. Bollinger, 539 U.S. 306 (2003).
64. Id. at 378 (Thomas, J., dissenting).
65. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
66. Adarand Constructors v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., dissenting) (citations omitted).
67. Stephen A. Siegel, Federal Government’s Power to Enact Color-Conscious Laws: An Originalist Inquiry, 92 Nw. U.L. REV. 477 (1997–98).
68. Id. at 481.
69. Id. at 556.
70. Id. at 558–59.
71. Id. at 560–61.
72. ERIC J. SEGALL, ORIGINALISM AS FAITH 128 (2018).
From Worse Than Nothing: The Dangerous Fallacy of Originalism by Erwin Chemerinsky. Published by Yale University Press in 2022. Reproduced with permission.
Erwin Chemerinsky is Jesse H. Choper Distinguished Professor of Law and Dean of the Berkeley Law School, University of California at Berkeley. He is the author of fifteen books, including Free Speech on Campus and Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable.
Between Memory and History