In early November, the U.S. Supreme Court heard an affirmative action case that could decide the fate of this critical policy initiative that spans over fifty years, as did Roe. The court appears ready to rule that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, based on more than five hours of vigorous and sometimes testy arguments, a move that would overrule decades of precedents.
Upending affirmative action, a legacy of the Civil Rights Movement, has serious implications for African-Americans—the impetus group behind the policy’s creation. The likelihood that Black people, already underrepresented in particular occupations, universities, and neighborhoods, would become underrepresented even further is high.
But is that a constitutional concern?
The basis for affirmative action isn’t actually found in the constitution. It wasn’t mentioned anywhere in the text, directly or indirectly, by the founders—and why would it be? The founders were only concerned with one group of people: white, Protestant, male landowners.
That matters because, of the nine judges on the Supreme Court, six of them—Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas—are all influenced by “originalism.”
Originalism, a method of constitutional interpretation, demands that judges be bound by the exact words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution. With six originalist judges on the Supreme Court, it is not unreasonable to expect that affirmative action will be ruled unconstitutional, in the same way that it wasn’t unreasonable to expect the overturning of Roe v. Wade, prior to the actual ruling.
In a lecture dedicated to the memory of President William H. Taft, who was also a Justice of the Supreme Court, archconversative Antonin Scalia said that originalism was the lesser evil compared to nonoriginalism, which he scorned, writing, “Nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing—either ignoring strong evidence of original intent that contradicted the minimal recited evidence of an original intent congenial to the court’s desires, or else not discussing original intent at all, speaking in terms of broad constitutional generalities with no pretense of historical support.”
But Scalia either ignores or tacitly approves of a “greater evil” that teachers recognize all too well about ignoring the truth of U.S. history.
When teaching students about the Constitution and the judicial branch of government, educators teach about originalism while also examining the context surrounding the meaning of the words in the Constitution, as well as unpacking how they were understood when they were added to the original text by its framers.
But conservatives do not choose to be “original” in their interpretation of why the Constitution was created the way it was.
The framers viewed African people as property, commodities that increased production and profits. Seventeen of the fifty-five delegates to the Constitutional Convention enslaved about 1,400 African people. Apologists for the Constitution say that it isn’t a pro-slavery document, while others cite the morals of men like George Washington and Thomas Jefferson, despite of the fact they were both slave-holders.
What all of this means is that teachers must discuss the founders' role in developing a federal government that sustained the chattel enslavement of African peoples. Constitutional apologists argue that enslavement—specifically the word slavery—isn’t found anywhere in the Constitution. While that term isn’t explicitly stated, it’s hidden with the text in four clauses: the fugitive slave clause (Article 4, Section 2, Clause 3), the importation clause (Article 1, Section 9, Clause 5), the insurrection clause (Article 1, Section 8, Clause 14), and the three-fifths clause (Article 1, Section 2, Clause 3).
What all of this means is that teachers must discuss the founders' role in developing a federal government that sustained the chattel enslavement of African peoples.
The Constitution was formed to enable the ruling class of white settler-colonialists to continue to derive social, political, and economic value from the exploitation of African peoples, a reality scholar Cedric Robinson termed racial capitalism.
Constitutional apologists (here they are again) will scream from the rooftops that chattel enslavement is no more since the adoption of the Thirteenth Amendment, and the importation clause could be considered a precursor of the abolition of enslavement. The Thirteenth Amendment, however, does allow for enslavement if you’re convicted of a crime. Also, Africans were still being brought to the United States up to the time of the Civil War, largely because the ban on the trade wasn’t totally enforced.
Conservative politicians are no doubt pleased by the current composition of the court. The association of these politicians with originalism is not accidental—conservatives are generally more likely than liberals to find originalism a normatively attractive approach to Constitutional interpretation. These politicians have worked overtime to establish policies against preventing the teaching of “critical race theory” in schools or, in other words, prevent the accurate teaching of American history.
Originalism—for conservatives—stops short of telling the original history of the United States and why the framers framed the Constitution the way they did, while allowing them to continue to reverse the progressive elements of our society previously established by court precedent.
The court will argue that it is up to Congress to pass laws that reflect the will of the populace, but how can that happen when the will of the people—particularly, Black people—is circumvented through a variety of means to prevent their vote?
Therein lies the danger.
Without a working knowledge of the history and context surrounding what the framers intended when constructing the Constitution, how can citizens properly judge whether or not originalism is a valid judicial view and a correct interpretation of Constitutional law?
An understanding of Constitutional law could—and possibly would—determine federal elections for the U.S. Congress and the presidency that would oust conservatives from all three branches of government at a time where they’re working hard to secure their power and influence in a society that is becoming less white faster than anticipated.
As young people grow in an increasingly restrictive and politically divisive society, it is important for them to understand the concept and context of originalism, in order to be empowered to make political decisions that will affect them, their families, and all of our future.