The Federal Government's Power to Enact Color-Conscious Laws: An Originalist Inquiry

Abstract

The vogue for originalism in constitutional theory and the Constitution's condemnation of race-conscious laws lie in uneasy tension. Aware that no constitutional theory that impugns Brown v. Board of Education can possibly be accepted, many originalists have elaborated various arguments to support its rightfulness. Focused on Brown, these originalist inquiries discuss the power of the states to enact color conscious laws.

In contrast to their obsession with Brown, originalists have paid scant attention to Bolling v. Sharpe, the case that prohibited the national government from segregating the District of Columbia's schools. Even though Bolling undergirds all equal protection analysis of federal law, there are almost no originalist studies of the propriety of that case and its progeny - other than repeated concessions that its Fifth Amendment Due Process Clause analysis is unsupportable.

The Supreme Court, however, never has questioned Bolling's holding and, over time, has expanded the case's rationale into a general proscription of invidious federal racial discrimination. Then, in 1995, in Adarand v. Pena the Court extended Bolling to hold that federal race-based affirmative action laws are subject to the same strict scrutiny test as laws imposing burdens on minorities.

The vote in Adarand was 5-4. Adarand's bare majority depended upon solid support from the Court's three Justices committed to construing the Constitution from an originalist perspective. Yet neither the Court nor its originalist Justices offered any historical analysis to support the belief that the Constitution, as understood by those who framed and ratified it, permitted the national government little or no power to legislate race-based classifications. This Article undertakes the originalist inquiry so clearly lacking in Adarand and the scholarly literature. It is a thorough originalist investigation of the federal government's power to enact color-conscious laws, both invidious and benign that considers the founding and Reconstruction eras. The Article is premised on a comprehensive consideration of race-conscious colonial, state, and federal statutes from the beginning of European settlement through the Reconstruction era.

Keywords: affirmative action, constitutional history, civil rights, equal protection, fourteenth amendment, discrimination, originalism, due process, ninth amendment, citizenship, segregation, Reconstruction, slavery