12 Pages Posted: 19 Jan 2001
The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, and few of us think that the racial prejudices of the Framers should continue to govern contemporary race relations. There are a host of fancier, non-interpretivist constitutional theories, including structural theories, moral theories, civic-republican theories, representation-reinforcement theories, public-choice theories, and postmodern critical-race theories, but none has sufficiently broad support to claim status as the one "authentic" approach to constitutional interpretation. Rather, they are parochial overlays imposed on a Constitution that is best understood as defining the terms of engagement for political bargaining. Given the increasingly transparent dominance of political policy considerations in Supreme Court constitutional adjudication, it is not surprising that recent strands of constitutional scholarship have chosen to advocate judicial minimalism, and even the curtailment of judicial review.
Because the Constitution says absolutely nothing about affirmative action, the Supreme Court should have absolutely nothing to say about it either. Rather, the political branches should set the nation's affirmative action policy, and they should do so with political leadership provided by the President. President Clinton has both advocated and actively practiced affirmative action to the extent that he could do so without offending the racial policy preferences of the Supreme Court. But he has failed to perform a presidential function that has even greater constitutional significance. He has failed to contest the Supreme Court's usurpation of racial policymaking power from the political branches of government.
Suggested Citation: Suggested Citation
Spann, Girardeau A., Writing Off Race. Law and Contemporary Problems, Vol. 63, Nos. 1 & 2, Winter/Spring 2000. Available at SSRN: https://ssrn.com/abstract=256985 or http://dx.doi.org/10.2139/ssrn.256985