JB

Stuart Buck responds to my previous post on Justice Scalia by pointing out that Scalia is a textualist, not an originalist, so that he might easily strike down affirmative action laws as inconsistent with the Fourteenth Amendment.

Stuart is half right. Scalia is an adherent of original meaning, not original intention. For him, the question is about text, not secret intentions; about words, not individual or group psychology. For him, the test is what the words the Framers produced would fairly have been understood to mean at the time of their adoption. It is important to understand (and I think Stuart glosses over this point) that Scalia is not referring to what the same words fairly mean to us today, for otherwise, Scalia would be commited to a Living Constitution, which he despises.

The original understanding of the constitutional text of the Fourteenth Amendment is exactly what my previous post on colorblindness was concerned with: What did the words of the Fourteenth Amendment mean at the time they were adopted? What was their generally accepted public meaning? The answer is not difficult to discover.

It is quite clear that the words "privileges and immunities" and "equal protection" were used precisely to avoid a general rule against racial classifications. The framers did not use the word "race" in the Fourteenth Amendment (as they did in the Fifteenth, when they specifically wanted to give black males, but not women, the right to vote). They refused to adopt a rule of racial colorblindness even though such language was repeatedly pressed upon them. Nor did they create language that forbade all racial classifications. That is not the way that people in 1868 thought about the problem. Our focus on suspect classifications is anachronistic. They were concerned with the rights of citizenship-- what privileges and immunities all citizens had by virtue of being citizens. Their key idea was that all citizens should be equal before the law; that is, that they should enjoy civil equality, not political or social equality. That is what the words "privileges or immunities," and "equal protection of the laws" were fairly understood to mean in 1868. One need not look to any secret intentions to discover this. It is clear from the debates over the Fourteenth Amendment themselves, as well as from general intellectual histories of the period.

Indeed, the privileges or immunities clause, and not the equal protection clause, was understood to do most of the work in protecting civil equality. The equal protection clause was at best a minor addition emphasizing that all persons were equal before the law, which was another way of saying that all citizens enjoyed civil equality and that all other persons (remember the EP Clause refers to persons, not citizens) enjoyed the equality of rights before the law that non-citizens enjoyed. (Nobody thought that the words "equal protection" made citizens and non-citizens equal in all respects).

So we return to the question that a textualist (or more correctly, an original meaning textualist) like Scalia would ask: Were the words of the Fourteenth Amendment fairly understood at the time of their adoption to prohibit democratically elected legislatures from race conscious remedial relief? The answer is quite clearly no. The best evidence of this understanding is what the Congress that passed the Fourteenth Amendment actually did, not what their secret intentions were. They passed a whole slew of relief acts for "colored" people, both former slaves and free blacks. Many of those concerned special educational benefits for blacks.

At best, one might make a distinction between what Congress might do and what the states might do. That would mean that Adarand is wrongly decided, and the federal government today could engage in race conscious affirmative action. However, if one believes that the privileges or immunities of national citizenship bind Congress as well as the states (otherwise, why would they be privileges or immunities of *national* citizenship?) then the same rules would apply to the states as to the federal government. That means Croson is also wrongly decided.

Finally, one might try to get around this fairly convincing evidence of the public meaning of the Amendment's words by insisting that what Congress did was actually consistent with the distinction between civil, political and social equality. What Congress did was not a matter of civil equality, but a matter of social equality-- giving special welfare and educational benefts to blacks involve issues of social, not civil equality. I myself don't buy this interpretation, but let's accept it for the moment and consider its logical consequences. If the argument is correct, why doesn't the civil/political/social distinction apply equally in our own time? After all, if one is concerned with what the words of the Fourteenth Amendment were fairly understood to mean at the time they were adopted, the words "privileges and immunities" and "equal protection" *meant* civil equality, not political or social. They were meant, and were generally understood to mean, that civil, and not political or social equality was guaranteed by the Amendment. They should mean today what they meant then, at least to someone like Scalia. Under that reading, then what Michigan is doing is also not a matter of civil equality, and is therefore untouched by the Fourteenth Amendment's prohibitions.

Again, I await Scalia's opinion in the Michigan case with great interest.