JB

Stuart Buck responds to my previous post by suggesting how Scalia might strike down the Michigan affirmative action plan consistent with his adherence to a philosophy of original intention. Stuart makes some fine points, and I would add only the following comments:

1. Stuart assumes that my evidence of race conscious remedial relief by the Reconstruction Era Congress that framed the Fourteenth Amendment is the Freedman's Bureau statutes. I'm actually thinking of the various acts that my colleague Jed Rubenfeld discusses in his 1997 piece on Affirmative Action in Yale L.J. They applied not only to recently freed blacks who had been enslaved, but also to free blacks who had been free for many generations.

The freedman's bureau acts, which Eric Schnapper discusses, are some evidence, but they also present many interpretive problems. Rubenfeld's argument is much cleaner.

2. Stuart doesn't adequately address the basic problem for Scalia: squaring his interpretive theory with the whole set of proof requirements the Court has added since Bakke to enforce strict scruinty. As I mentioned in my previous post on the subject, there's no evidence that the Reconstruction Era Congress thought they were required to make the sorts of findings of fact that the Court now requires. Nor in those cases, did the body that engaged in the discrimination have to be the same body that engaged in race conscious relief. Rather, Congress appears to be remedying general societal discrimination, which existing law does not permit. Quite apart from whether diversity would be a permissible goal to the Reconstruction Congress, remedying past societal discrimination clearly would be, and that would also be inconsistent with existing doctrine.

3. In conjunction with this last point, it's important to recognize that the statutes that Rubenfeld identifies can't be distinguished on the grounds that they remedied discrimination by identified victims of discrimination. They applied to free blacks without any proof of discrimination against them. That presumption is not permitted by Croson or Adarand.

4. All of this is covered in my conlaw casebook, Brest, Levinson, Balkin and Amar, Processes of Constitutional Decisionmaking (4th ed. 2000) and you can look it up for more details.

5. The basic point I am trying to make is not, as Stuart suggests, that Scalia is necessarily engaged in logical contradiction. There are certainly ways to strike down affirmative action laws even given the congressional history, and I talk about them in the casebook. Rather, my complaint is that Scalia is being hypocritical, because he has never, to my knowledge, discussed the historical issues, even though they are easy to learn about, and even though he states, to any one who will listen, that original understanding is the touchstone of constitutional interpretation. My problem with Scalia is that he speaks with the arrogant assurance of one completely convinced that he is in the right when he has not done the necessary research to justify his conclusions about the constitutionality of affirmative action.

Judging from his public writings on the subject, my first year con law students appear to know more about the original understanding of the Fourteenth Amendment than Antonin Scalia does. That, I think, is a disgrace for someone who claims to have the interpretive philosophy that he purports to have, and who has the power to shape the U.S. Constitution that he possesses.

6. Finally, the point of my previous post was to chide Scalia for a more general failing: In his opinions, he tends to invoke original intention as a rhetorical ploy when it suits his agenda, and when it does not, he simply fails to say anything at all about history or original understandings. And all the while he insists that he has no authority to do anything but follow the original understandings of the text of the Constitution. That may or may not be a logical contradiction. I do think it is hypocritical.