ORIGINAL INTENT….“Originalism” is a doctrine that says constitutional questions should be decided based on the original intent of the framers. Today, via Sam Heldman, Yale law professor Jack Balkin suggests there’s less to originalism than meets the eye:

My experience has been that people tend to invoke originalist arguments only when it produces constitutional results they like and they tend not to mention originalist arguments when they prove embarrassing. If I have the time, I hope to do a series on originalism in constitutional argument, but for the moment I want to focus only on the issue of colorblindness and original understanding.

Balkin then goes on to make a pretty compelling case that the original framers of the 14th amendment did not intend to prohibit race-conscious behavior. In fact, they specifically foresaw that blacks could still be prevented from voting (thus the need for the 15th amendment a few years later). What’s more, the same congress that passed the 14th amendment also passed a number of bills offering special welfare and educational benefits solely to blacks.

So: will Justices Scalia and Thomas, who claim to be originalists, uphold the University of Michigan’s affirmative action program? Answer: does it produce “constitutional results they like”? What part of “no” don’t you understand?

UPDATE: History professor Tom Spencer doesn’t think much of originalism either. My own take on the doctrine is here.

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