Cass Sunstein has a post criticizing originalists Justice Scalia and Thomas for the alleged inconsistency of their opinions with originalism. The main focus of his article is affirmative action, about which he argues that the history of the Fourteenth Amendment “strongly” supports the constitutionality of affirmative action. But he also raises concerns about other issues, such as commercial speech and the regulatory takings. In this post, I will discuss affirmative action; in a future post, I will address commercial speech and regulatory takings.
Sunstein’s argument about affirmative action is taken from his earlier book Radicals in Robes. Yet, his argument here is no more persuasive than it was in the book. Two basic points. First, Sunstein argues that the Freedmen’s Bureau Act of 1866 “specifically authorized the use of federal funds to provide educational and other benefits to African-Americans.” But this is misleading at best. This Act provided benefits to war refugees (who could be white or black) and former slaves. It is true that all former slaves were black, but not all blacks were former slaves. This legislation was focused not on a racial category, but on a category (being former slaves) that was defined by past behavior.