The Supreme Court will hear oral arguments in two major cases on affirmative action in college admissions on Monday. Justices and lawyers will deliberate over the nature of the admissions programs at Harvard University and the University of North Carolina. They will debate whether a series of precedents allowing colleges to consider race when crafting its student body should stand or fall. Most importantly, they will be talking about history.
The two cases, brought by an organization run by conservative legal activist Edward Blum, are Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC. Each involves claims of racial discrimination by Asian American applicants to the two universities. Both schools fall under the Fourteenth Amendment’s Equal Protection clause, which guarantees among other things the equal protection of the law: UNC because it is a public university, and Harvard because it receives federal funds. Though closely related, the cases are being heard separately to ensure that Justice Ketanji Brown Jackson, who recused herself from the Harvard case because she served on the school’s board of overseers, can take part in the UNC case.
Despite all of the legal issues that will be brought up in these cases, there is really only one question for the justices to decide. Does the Fourteenth Amendment of the Constitution allow the government or its agents to consider race in some circumstances, or is it an unbending prohibition on any consideration of race whatsoever? It’s as much a historical question as it is a legal one, and answering it will be an interesting test for originalism.
Some of that history has come before the court in friend-of-the-court briefs filed by third parties. The quality of these briefs varies substantially. John Eastman, who helped former President Donald Trump attempt to overturn the 2020 election, filed a brief on behalf of the Claremont Institute, where he now works. He made the awkward argument that the Founding Fathers themselves had expressed opposition to any race-conscious legal system in the Declaration of Independence and the Constitution itself. While Abraham Lincoln and others had argued during the Civil War that both documents and the Framers themselves had opposed the expansion of slavery, even they did not attribute to them any sort of racial enlightenment.
That did not deter Eastman from making such claims. “Even those founders who owned slaves recognized that slavery was inconsistent with the principle of equality articulated in the Declaration of Independence,” he added, quoting as proof a letter from Thomas Jefferson that spoke generally about meritocracy on the fiftieth anniversary of independence in 1826. That Jefferson could write that “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately” from his working plantation at Monticello says more about his inability to realize enslaved people’s full humanity than anything else.
Eastman, however, is something of an outlier. The conventional understanding on both sides of these cases is that the Civil War—and the constitutional amendments that were drafted in its wake—changed everything. Congress ratified the Fourteenth Amendment in 1868 in large part to ensure that formerly enslaved people in the South would not be denied citizenship, thereby overturning the Supreme Court’s infamous decision in Dred Scott, or the rights to which they were entitled as citizens of the United States.
Edwin Meese, a former attorney general in the Reagan administration, filed a brief arguing that the Fourteenth Amendment had transformed the Constitution into a “colorblind” document. Meese is a heavyweight in the conservative legal movement, having played a key role in the formulation of originalism as a method of constitutional interpretation in the 1980s. He also oversaw the Justice Department at a time when young conservative lawyers were getting their first taste of exercising power in Washington, among them Chief Justice John Roberts.
As expected, Meese adopted an originalist lens in his brief, drawing upon what he saw as the “original public meaning” of the Fourteenth Amendment at the time of its ratification. To understand that, he pointed to how the ratifying Congress approached civil rights legislation in general. “The principles eventually enshrined in the Fourteenth Amendment were sown first in the Civil Rights Act of 1866,” Meese argued. “Because of (1) uncertainty about Congress’s authority to pass the 1866 Act and (2) fear that a subsequent Congress would unravel it, the Thirty-Ninth Congress preserved the Act’s tenets by constitutionalizing them. For that reason, the debates surrounding the 1866 Act necessarily inform the original understanding of the Amendment itself.”
On the 1866 act, he wrote that lawmakers initially thought that the bill would be color-blind, noting that they claimed in debates that it could even forbid laws that segregate schools or ban interracial marriages. “As originally introduced in the Thirty-Ninth Congress, the 1866 Act conveyed the general principle that ‘there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery,’” Meese noted.
In other briefs, a group of historians and law professors disputed Meese’s understanding of the historical record. They took particular issue with his citation of the 1866 act as introduced instead of the final version that Congress approved. “In fact, the first draft’s ‘on account of race’ language did not make it into the final bill,” they pointed out. “The actual text of the enacted Civil Rights Act of 1866 explicitly acknowledged that white citizens had certain rights and were treated as a privileged class, and required that non-white citizens be permitted to enjoy those rights.”
To that end, they quoted from Section 1 of the 1866 Act, which said that people “of every race and color ... shall have the same right ... to make and enforce contracts, to sue, to be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Section 2 made it a misdemeanor for state and local officials to punish Americans on account of their race differently from what “is prescribed for the punishment of white persons.” The scholars noted that President Andrew Johnson vetoed the bill because he thought it would provide “discriminating protection to colored persons,” especially in Section 2, but Congress overrode his veto.
To argue that the Fourteenth Amendment’s drafters had intended to allow some forms of race-conscious legislation, the scholars pointed to contemporary laws that appeared to take that approach. The Reconstruction-era Congress created the Freedman’s Bureau and the Freedman’s Savings and Trust bank to help formerly enslaved Americans. It passed laws that explicitly targeted financial fraud schemes against Black veterans, provided special chaplain services for Black regiments, and provided funding to charities that specifically helped Black orphans and paupers.
“Just like the Civil Rights Act and Freedmen’s Bureau Act of 1866, these legislative efforts confirm that the Reconstruction Framers did not have an unbending vision of colorblindness,” the scholars concluded. “Rather, they believed that race-conscious measures to ensure equality of opportunity were necessary to ameliorate the harms inflicted through generations of racial subjugation.”
Meese submitted his brief before the scholars did, so he did not directly reply to them. But he did anticipate the use of some of the evidence that they offered for a race-conscious Fourteenth Amendment. He argued that while the Reconstruction-era Congress did pass some laws to benefit formerly enslaved Americans, these should not be understood as race-conscious laws. “Properly understood, however, the Freedmen’s Bureau Acts were not race based,” Meese claimed. “Although the term ‘freedmen’ referred to former slaves, and virtually all former slaves were Black, the triggering characteristic for receipt of government assistance was not skin color alone. By its terms, the Freedmen’s Bureau Acts did not help African Americans who were not enslaved before the Civil War.”
To support that proposition, he quoted from a similar analysis by then-Justice Antonin Scalia. “The Freedmen’s Bureau Acts were a constitutionally permissible example of the government ‘undo[ing] the effects of past discrimination in [a way] that do[es] not involve classification by race,’ even though the Acts had ‘a racially disproportionate impact,’” Meese argued. He dismisses other laws cited by the scholars’ brief as “sloppy draftsmanship and the use of proxy terms.” In one instance, he claimed that a federal law explicitly aimed at providing help to destitute “colored” residents of Washington, D.C., was not race-conscious because it was a surrogate term for the city’s destitute residents in general. They just almost entirely happened to be Black, Meese argued.
This is not the full extent of the historical debate that takes place in the friend-of-the-court briefs in these cases, of course. But it is nonetheless a useful window into what the Supreme Court will use to interpret one of the most consequential eras in American history. Historians often recognize that history itself is not carved in marble. Some historical facts are immutable—the U.S. declared independence in 1776, the Fourteenth Amendment was ratified in 1868, and so on—but the popular and academic understanding of history can always change. That poses challenges to any method of constitutional interpretation that promises to find its singular original public meaning. Most historians can embrace ambiguities, complexities, and shifting interpretations. Supreme Court justices might have a harder time.