Justices Make It Tougher for State Universities to Discriminate, But Not Tough Enough

Fisher v Texas(This is the third of several short commentaries on recent Supreme Court decisions. see HERE and HERE)

The Supreme Court’s recent decision in Fisher v. University of Texas has made it tougher for state universities to run their ethnic spoils systems. But not tough enough.

First, the background:

The Fourteenth Amendment requires states to extend “equal protection of the laws” to their citizens. The primary goal of the Equal Protection Clause was to stop states from discriminating against racial and ethnic groups. But the actual wording of the Clause covers more than just racial and ethnic discrimination.


Do the Feds Belong in Indian Adoption Law?

Rob Natelson writes: “There is little more heart-rending than the sorrow of a child.

The sorrow of a child—and of her adoptive parents—created one of the Supreme Court’s more compelling cases this term. I was happy to be cited extensively in one of the opinions. And, much more importantly, happy that the Court acted to minimize the sorrow of the child and of her adoptive parents.”


Why the Framers Could Suggest Ratification by Only Nine States

SigningconstituIn prior postings such as the one here, I have explained why it is wrong to claim that the commissioners (delegates) to the 1787 Constitutional Convention exceeded their power in recommending that the Articles of Confederation be replaced by a new instrument.

Another aspect of the same charge is that the Framers exceed their power by providing that the Constitution could come into effect upon ratification by only 9 states instead of the 13 the Articles required.

One quick answer is that ultimately the Constitution was ratified by all 13. The 13th state (Rhode Island) ratified on May 29, 1790, less than three years after the document was composed.

But there is a more formal, and perhaps better answer.  Here’s the background:

The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate


The Real Original Understanding of Original Intent

images-28This Article re-examines the controversial question of whether the American Founders believed their own subjective understandings should guide future interpretation of the United States Constitution, or whether they thought constitutional construction should be guided only by objective public meaning or some other hermeneutic standard. This is a historical question, and in this Article, I treat it as such. I do not argue that one standard of interpretation is better or worse than another. I explore the Founders’ views on the matter and report the results.

Previous commentary on the issue has been fairly extensive. Interest seems to have been encouraged by the issue’s implications for modern constitutional interpretation. For example, Professor H. Jefferson Powell, whose influential article concluded that the Founders would have thought subjective intent irrelevant, went beyond the historical material to argue that his conclusion impaired the legitimacy of traditional originalism.

Not surprisingly, defenders of traditional originalism, such as Harvard’s Raoul Berger, have claimed that history supported their own position. Perhaps that is why the scholarly exchange over what should have been purely a historical question has been marked by the bitterness of political strife.

It is true, of course, that one’s chosen interpretive method can affect the outcome of constitutional disputes. Results can change according to whether a court applies originalism or some other method. Results also can change, although in a lesser number of cases


The Myth of the “Conservative Supreme Court”

Supreme-Court-Gallery-500x250Is the current U.S. Supreme Court conservative? No, it is not. And certainly not if you define “conservative” as interpreting the Constitution according to the understanding of the makers.

The claim that the Court has a conservative majority is certainly widespread. Googling the phrase “conservative supreme court” turned up over 38 million hits. The more specific phrase, “conservative majority supreme court” yielded 3.75 million. TheNew York Times has even editorialized that “the aggressiveness of the majority’s conservatism” actually renders the court “radical.”

A careful reading of a study by the Times itself shows the latter claim to be pure bunk. Although the headline affixed to the study suggested that it found the Court to be conservative, that headline was somewhat misleading. The study’s findings were much less definitive. It did conclude that (1) “the recent shift to the right is modest,” (2) “the court’s decisions have hardly been uniformly conservative,” and (3) by contemporary public standards the court is centrist, not conservative.

Careful analysis of the Times study by Professor Jonathan Adler turned up more. Professor Adler demonstrated that the study actually found that the current justices are restrained, not necessarily conservative. They form, in point of fact, the most restrained bench in decades. That means they don’t change the law much one way or another.