Wednesday, October 17, 2012

Was the 14th Amendment meant to be color-blind?

Here's a great argument that it was not, and that legislation passed around the time the 14th Amendment was ratified - the 1866 Freedmen's Bureau Act - explicitly intended to provide extra opportunities to the recently freed slaves. This might potentially buttress arguments in favor of affirmative action today.

The author points out that this is an originalist argument, which conservatives tend to employ in other areas, but not here. The author thinks the conservatives are mimicking the liberal tendency to read the Constitution in moral terms, which allows for flexibility in interpretation.