14th Amendment and Colorblindness

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Marty Lederman has a post at Balkinization arguing that originalism is inconsistent with colorblindness. Justices Scalia and Thomas, for instance, think it's always unconstitutional for the government to use race as a basis for giving someone more favor in hiring or college admissions (and private organizations receiving government funding are subject to this as well). I think they have the wrong view, both constitutionally and morally. Affirmative action is not in principle wrong, even if in our current setting it's more harmful than helpful to those it's intended to help.

Lederman and Balkin argue that originalism is inconsistent with colorblindness. The primary argument for this is that the Congress that passed the Fourteenth Amendment wasn't colorblind in outlook. Some of them went only as far as they did with "equal protection of the laws" and "privileges and immunities" because they didn't want to give blacks the right to vote. It wasn't until the 15th Amendment that blacks were guaranteed the right to vote, and the 14th Amendment even says how to handle states that did deny blacks the right to vote, assuming it could be done. Balkin also says that many of the people voting for the 14th Amendment did not intend to remove bans against racial intermarriage, which I don't think is really surprising given predominant views at the time.

Now Balkin and Lederman seem to me to overstate the conclusion we should draw from this. They say that this shows the original understanding of the 14th Amendment did not include these additional rights that colorblindness requires. I don't think it's quite so simple. What this shows is that some of the people voting for this language didn't intend it to mean colorblindness, though others who voted for this language did intend it that way. That means there are (at least) two intended meanings of the amendment. On Justice Thomas' view, original intent is what determines the Constitution's meaning, but we don't have just one original intent. We have an underdetermined original intent. It could mean either. What's common to both, however, is certainly intended. So the original intent of the amendment does include the things both factions agreed upon. The original intent of the group of all voters does not. That seems to me to be the most plausible way to go with this if you hold to original intent (which I don't). So the conclusion does seem to me to follow from original intent, but it's not as straightforward as saying that the original intent of Congress conflicted with colorblindness. That was true of some of them but not all, and you have to take a further step to recognize that the intent of the language chosen cannot be something not intended by a large enough portion of the people voting for it.

But that's only one version of originalism, and it's not the one I endorse. Justice Scalia holds to original understanding, not original intent. In fact, Balkin speaks constantly of original understanding and not original intent. For Scalia, it doesn't matter if the people writing the words had a certain intent. What matters is how it would have been understood by the ordinary (but informed enough) person. So if half of Congress was trying to weaken the language so it could be interpreted in two different ways, with the intent of guaranteeing only the weaker of those two ways, then what matters is not what they sneakily intended by the words they chose but how an ordinary person would have understood that language. Someone could say something deliberately ambiguous to intend one of the meanings while fooling others to vote for it by hoping they think it means something else, but that hope is only well-founded if the others think it means something else because that's a natural way to take it. So the way to resolve this question is to figure out if one meaning is more natural than the other or if they're equally natural. If they're equally natural, then we get the indeterminacy of meaning, and it must mean only the weaker meaning. If one is more natural than the other, then it should mean the more natural meaning. Scalia has a way out that allows him to try to argue that his interpretation is the more natural one.

Balkin argues that the very Congress that passed the amendment had no problem with race-distinguishing programs like affirmative action because they had no qualms passing such policies. While this is so, it's still within the realm of possibility that they were simply acting at odds with the natural interpretation of the amendment they had passed, and they weren't worried about it because it wasn't how they intended the amendment. I think Scalia's view is still ok at this point. He has a way out. He'll need to argue that the most plausible interpretation of the 14th Amendment at the time is his intepretation of it now, and that's going to require saying that the 15th Amendment's giving the right to vote to blacks was unnecessary. It's going to require saying that some of the members of Congress intended something by the words of the 14th Amendment that weren't its most obvious meaning. I don't know if that argument can be made, but I don't think it's wholly unreasonable. I don't, in the end, think this argument undermines an originalist's understanding of the 14th Amendment as requiring colorblindness. An originalist need not think this, however, and I don't myself. I'd be interested to see how Scalia's view might be argued. I think we should assume the alternative in lieu of such an argument, given that we know some people at the time took this in the more limited way (i.e. a large number of those writing the amendment and a majority of Supreme Court justices who upheld laws banning anti-miscegenation and denying blacks the right to vote).

As I've said elsewhere, I do think colorblindness in our setting is both immoral and impossible to implement, but I also think affirmative action as it's usually done in the college and university setting is harmful to those it's intended to help. But either issue is a matter for lawmakers to address, not the Supreme Court. Admissions programs are doing a disservice to those they're intended to help. These are bad, even counterproductive, policies. I'd be in favor of making them illegal through legislation (or, as California did it, through referendum). I don't think the Constitution requires eliminating them, however. I also don't think it's automatically inconsistent to maintain originalism while holding that they're unconstitutional, but I think the burden of proof is on those who do that to establish their view, and Scalia to my knowledge has not made this argument.

Update: See my Nov 19, 10:30 am comment below for a little more on how Justice Thomas deals with this issue.


Yes, let us continue this stupid racial garbage that we have been living with for so long. Let us give blacks the college seats that Orientals earned until Orientals are ready to cry for reperations.

The 14th Amendment is quite clear and originalism is completely consistant for originalism also compells one to take the words of the Constitution at face value.

If AA is moral then it is moral to deny loans for rich black folks and give them to poor whites, it is OK to deny college spots to middle-class blacks and give the seat to a stupid white gal from Arkansas.

No thanks.

Originalism isn't about taking words at face value. That's strict constructionism. Originalism is about taking things as originally intended or originally understood, and I just gave a lengthy argument about how they were originally intended and originally understood. If you care to respond to that lengthy argument, then do so. Otherwise you're just chanting a hollow mantra.

You're making claims that simply don't follow. It's not just ok to pay attention to race in certain situations (e.g. because it's good to look out for those who have historically been underprivileged, as the by the way Bible consistently says about the orphan, the widow, and the resident alien). It's morally obligatory. It's our duty. You seem to think that implies doing everything people have done in the name of that sort of thing, but it just doesn't.

Thinking it can be good to pick a black candidate over an equally good white candidate merely because it's good to have black public officials to offest the imbalance does not entail thinking it's ok to choose someone with lower qualifications. Thinking it's ok to lower qualifications a little bit (as I do) doesn't mean it's ok to lower them a lot. Thinking it's ok to lower them a lot (which I think is only ok in very particular circumstances not present in most universities and colleges in this country today) does not entail lowering them a lot in every situation, just the ones justified by whatever argument justifies it.

Ethical and political thought requires making careful distinctions, and you seem particularly averse to that sort of thing for some reason.

By the way, it's considered offensive to call people Orientals. They're Asians.

That the Bible exhorts us to look out for the widow, orphan, and alien doesn't necessarily imply that Caesar (the polis) need to follow that lead. I've argued in the past that governmental charity tends to dampen our personal feelings of responisbility to act charitible ourselves. I think institutionalized charity and especially racial preferences foster very uncharitable impulses. Recently, (on some blog somewhere) it was noted that segregation was initially instituted as a progressive measure with the goal of lesseng racial violence. Look where that "unequal treatment" ended up.

I agree that charity is "morally obligatory" and "our duty". But I also think it is incorrect for the state to encode in law racial preferences. And I don't think that those two ideas are inconsistent.

To exaggerate, it's ok for you to pick a black candidate over a white one (that's called voting). But it's wrong for you to count votes toward blacks as 5/3s of a vote for a white candidate.

The kind of thing I'm thinking of isn't government legislating charity (which by definition would no longer be charity). What I'm thinking of is individual people extending charity, e.g. Bush deciding that it would be a good thing to have another woman on the Supreme Court and at least consider that result morally valuable (but by no means an absolute obligation). Selecting people from historically and even recently underrepresented groups has some important value to it, other things being equal enough. That's why I think colorblindness is morally insensitive. There's an important moral reason that it ignores.

In a post largely about more general matters, David Bernstein sheds some light on what Justice Thomas says on this issue (in the FURTHER UPDATE at the very bottom). Here's what he says:

Liberal critics of Scalia have also (correctly) noted that he is strangely silent in affirmative action cases with regard to the original understanding of the Fourteenth Amendment, which arguably would allow racial preferences, at least for African Americans. Thomas receives the same criticism, but I tend to agree with Scott Gerber that in race cases, Thomas's originalism manifests itself in resolving the ambiguous meaning of the equal protection clause by reference to (what he sees as) the founding and enduring principles of the American experience. Whether this is a sincere alternative "natural rights" form of originalism, or "too convenient," I'll leave for another time, but it's at least an attempt at originalism.

I wanted to note that now I'm less sure of this argument, given the distinction between original meaning and original application. See my recent post.

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