aTypical Joe: a gay New Yorker living in the rural South

Tuesday, December 13, 2005

Strict Constructionist II

The president is, of course, a politician. As an elected official, his views on the constitution can be expected to be, how shall I put this, more malleable.

But those justices who have spent their entire career within the legal establishment, in appointed government posts, or in the hallowed halls of academia, they’ve had time to hone that ideology, to fully develop their dogma, and we can expect a purity of thought and action.

Or can we?

Cass Sunstein on Clarence Thomas and Antonin Scalia from Fresh Air in September:

At their best, Justice Scalia and Justice Thomas will follow history wherever it goes, and as I’ve said on the right of privacy, they are dead on in terms of the history. But there are areas where their historical interest is relaxed… Justice Thomas and Justice Scalia have joined the constitutional assault on affirmative action programs. They have not said that whether states and localities have affirmative action is up to them in a federal system. They have not said that judicial restraint is the right approach in a system of separated powers. And then instead they’ve basically said no affirmative action ever.

Have they inquired into the history behind the 14th Amendment which are the basis for their decisions? Has either of them uttered even a sentence about the original understanding of the 14th Amendment? No is the sad answer to that question. There’s a lot of historical work suggesting that affirmative action was just fine on the original understanding. [...]

Many fundamentalists assert that our Constitution is color-blind, and there can’t be any racial lines drawn by government. But the Congress that ratified--that produced the 14th Amendment--was eventually ratified by the states--itself had a body called the Freedmen’s Bureau, and the Freedmen’s Bureau engaged in affirmative action. There was a lot of discussion of whether the Freedmen Bureau’s special favors to the newly freed slaves was a form of discrimination. That was discussed. And the answer was special favors for newly freed slaves--in fact, special favors for people who were African-American--were just fine. The ultimate view in the country was this form of discrimination, so-called, wasn’t discrimination in the bad sense. It was a way of equalizing.

Now maybe the people who said this were wrong. Maybe affirmative action is bad policy. That’s a legitimate argument to make. But what is to me astounding is that Justice Thomas and Justice Scalia, who normally use history in good faith, don’t even talk about history in asserting a principle of color-blindness, so those who like Justice Scalia and Justice Thomas and their method, they ought to be very happy with affirmative action, not as a matter of policy, but as a matter of constitutional law. If that’s not right, then they have a lot of historical work to do, and they haven’t done it yet.