Last week, in Fisher And Original Intent, I mentioned an interesting exchange in a Scotusblog symposium on Fisher: an unpersuasive argument by David Gans and Adam Winkler that the original intent of the 14th Amendment supports racial preferences, and a persuasive reply by Roger Clegg that it does not. Now Gans and Winkler have replied to Clegg and other critics here, repeating their argument that Reconstruction-era measures designed to help former slaves indicates that current affirmative action to help blacks (although according to the “diversity” justification for preferences, that is not what affirmative action is designed to do) is similarly justified.
Their argument is no more persuasive when repeated than it was the first time. The measures to which they refer (more with a general nod than any specificity), for example, were targeted based on the previous condition of servitude of the intended beneficiaries, not their race. More telling, but left left unstated in the Gans-Winkler posts, is that the overriding reason the framers of the 14th Amendment they celebrate opposed pure colorblindness (as opposed to the former abolitionist critics like Thaddeus Steven and Charles Sumner, who favored it) is because they clearly wanted to protect the rights of states to discriminate on the basis of race for all sorts of reasons, including maintaining separate schools. If the Supreme Court had continued to follow the Gans-Winkler version of original intent, as it did in Plessy and other cases upholding segregation, Brown v. Board would be a figment of our imagination rather than law. See discussions of this point here, here, here, and here, among other posts.
I shall have more to say about this debate over originalism in a longer post that is still brewing, but for now I will limit myself to posting Roger Clegg’s recent reply to the Gans-Winkler reply, made necessary because Scotusblog has understandably closed its symposium to additional comment. Here’s what Roger would have posted there:
There are two basic problems with the Gans/Winkler reply to my rebuttal of their post: (a) it consistently says I said things in my post that I didn’t say, and (b) it ignores what I did say. On the first point, I never said that “the Constitution forbids all use of race by the government” or that “all of the race-conscious acts approved by the Reconstruction Congress predate the Fourteenth Amendment” (they also say I said other things that I did not say and then that I failed to back those assertions up; I might have been willing to make some of those assertions and, if I had, I would have backed them up). On the second point, most of what I did say they do not address (read my post if you don’t believe me), including the main point, which is that the TEXT of the Fourteenth Amendment is what matters most to originalists, and that text plays (and continues to play) little or no role in what Gans and Winkler have written.
Stay tuned for more original originalism comment….