JB

Well, at least that seems to follow from this speech reported by the Associated Press (via Howard Bashman):

Supreme Court Justice Antonin Scalia on Monday said he can only interpret the Constitution as it was written and not factor in the time it was written when ruling on issues such as affirmative action.

Scalia said during a speech at the University of Toledo he can't dismiss the Constitution "and say it's the work of old, dead white males."

"The only power I have as a federal judge, I derive through that of the Constitution," he said.

As I've pointed out in a previous post, the Congress that framed the 14th Amendment did not believe in the colorblindness principle, and, moreover, it engaged in a host of race conscious remedial measures that would not pass muster under the Court's existing strict scrutiny doctrines. If I read Scalia right, I'm afraid all these doctrines will have to go out the window, including the decisions in Croson and Adarand in which Scalia himself joined.

After all, Scalia wouldn't want to be accused of imposing his own conservative predelictions on the country.

If the Framers believed that democratically elected legislatures could engage in race conscious remedial legislation, who is the Supreme Court to strike such legislation down? If the Framers thought race conscious remedial relief was constitutional, then it doesn't matter whether judges think it's bad social policy. As Scalia put it in response to a question following the speech, "As long as we're operating under [the Constitution], it is the only source of my authority."

After reading Scalia's remarks, I breathed a sigh of relief. It's good to know that at least one Justice is a man of his word, principled and devoted to the Rule of Law and the Framers' original understandings above all else.

I await his opinion in the Michigan affirmative action case.