In this Article, I challenge the claim that the original meaning clearly allows the states to engage in affirmative action. I argue that the original meaning does not plainly establish that affirmative action by the states is constitutional. Instead, there is, at the least, a reasonable argument to be made that state government affirmative action is unconstitutional. In fact, based on the available evidence, I believe that the case for concluding that the Fourteenth Amendment’s original meaning prohibits affirmative action as to laws within its scope is stronger than the case for concluding that it allows affirmative action. I do not, however, take the next step and argue that the Constitution’s original meaning forbids affirmative action. That would require a satisfactory understanding of the original meaning of the Fourteenth Amendment, an understanding that I do not believe we currently possess.
Michael B. Rappaport,
Originalism and the Colorblind Constitution,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol89/iss1/3