History, Logic and the Court

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Let me share a few brief and general thoughts on today’s decision.

First, on its internal logic, the decision can appear compelling. But step back and you see that a specific class of Americans who were enslaved for two centuries and then mostly lived under a system of legal apartheid for another century somehow still remain largely excluded from social and economic preferment. And we’re told that the constitution not only bars the government from doing anything about that but also bars private institutions from attempting to do anything about that. Judged from that more holistic perspective it’s very hard to see how that can possibly be right whatever the internal logic of “color blindness.”

Second, the same people who wrote the amendments that undergird this decision also passed various laws specifically to raise Black social and economic power to the level of white people. So the Court’s definition of “color blindness” simply cannot have been the intent of the authors of the amendment. The history is open and shut.

Third, the question of whether the constitution requires or looks favorably on racial diversity is a complex question and it’s not entirely clear that it does, at least if we’re limiting our analysis tightly to the intent of the people who wrote the relevant amendments. But if originalism or history plays any role in your jurisprudence, African-Americans represent a unique class which the constitution specifically intends to raise to the level of white people. One could argue that that task is done somehow, or that society has changed in some respect that makes the original injunction operate differently or that affirmative and compensatory educational preferment is somehow uniquely damaging and thus a disallowed means of achieving that aim. But again, specifically for African-Americans, the “color blindness” constitutional argument doesn’t add up.

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