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 ratification [constitute] important evidence for originalists seeking such understanding,” then race-based discrimination in higher education should not be barred by the Fourteenth Amendment’s Equal Protection Clause. Why? For the same reasons abortion did not become a constitutional right suddenly and without warning in 1973 after two centuries of state laws banning them: “State colleges have used race preferences in admissions throughout American history,” notably including “the great majority of Southern state colleges imposed admission quotas: 100 percent of admitted students were white (and, overwhelmingly, male).” 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.
Simple and elegant, indeed, but such reasoning concedes a lot. First, it admits that affirmative action belongs in the same analogical category as separate-but-equal, even if the supposedly equal black colleges Forde-Mazrui mentions were admittedly underfunded—yet still constitutional. 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. Advocates could choose a more abstract version of the interest at stake, such as “admissions practices that reflect our sense of fundamental fairness.” So Forde-Mazrui’s choice of concrete comparison is telling. 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.
That is quite an admission, and one suspects it has more to do with undermining the methodology than defending the current practice. It smacks of a familiar criticism of originalism, which questions the foundations of “fixation,” or the notion that the law’s meaning is fixed when ratified, and cannot be changed through reinterpretation. Why should enlightened diverse citizens today be bound by the dead hand of racist white men of the past? We who care about equality would be fools to stake our law to those written by men whose view of racial equality was primitive, to say the least, goes the criticism. Comparing remedial affirmative action to white-supremacist discrimination is meant to sound ridiculous, because normatively it is—one is malicious and the other well-intentioned. Shouldn’t it be legally dubious as well?