Friday, October 11, 2013

Preparing for Originalism

Monday is Columbus Day, mourned in some quarters and often largely ignored, but still a national holiday, the premise for a four-day weekend. But in Washington, teams of lawyers will spend the weekend preparing for their oral argument in the Supreme Court Tuesday, in Schuette v. Michigan Coalition to Defend Affirmative Action. The question in that case is whether a state constitutional provision, adopted by the voters of the state in a referendum, violates the Equal Protection Clause of the Fourteenth Amendment. The new provision forbids invidious discrimination by race, and in the same breath forbids affirmative action. Oral arguments are a pointless but necessary ritual. The justices rarely allow the lawyers to say much,and in effect conduct their own deliberations. On Tuesday, we all will be watching what the justices say. The case is likely to draw discussion of fundamental questions. Members of the Court who style themselves "originalists," when addressing the Fourteenth Amendment often rely on precedents that long ago departed from the text of the Constitution. Holmes, the great defender of the rule of precedent, likely would be with them. On the other side in such cases, Justice Ruth Bader Ginsburg is likely once again to speak and eventually to write on behalf of Fourteenth Amendment originalists, who recognize along with nearly all historians and scholars that the principal aim of the Amendment was to give all persons born or naturalized in the United States, regardless of their race, the same rights that white citizens had held under state laws. Most of the laws adopted to enforce that Amendment were affirmative action measures, to undo the disabilities of color, imposed by whites. The Michigan referendum was a vote by the white majority, for a constitution barring minorities from seeking any legislation that would recognize or seek to remedy the disabilities imposed by race and gender. It would seem patently unconstitutional, but some of the justices may still be moved by the rhetoric of a "color blind" Constitution, as the Republican Party of Michigan,a friend of the Court, urges them to do. Denial of reality is a political program these days. Let's hope it doesn't become law.