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Why the ERA Failed: Comfort Over Content in the Fight for Women’s Rights -

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The Extent to Which Parents Should Regulate Their Children’s Abortions -

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Human Rights in a Reclusive Context: North Korea -

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Separation without Justification: Parental Rights of Pregnant Juveniles in Correctional Facilities -

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U.S. Asylum after September 11: Failures of the PATRIOT and ID Acts -

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Genomicare: The Affordable Care Act of 2023 -

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“Social Worker with a Gun:” The Role of Policing in Harm Reduction Among Addicts -

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Pulling Principles Out of Thick Air: The Incorporation of Customary International Law Under the Alien Tort Claims Act of 1789 After Sosa v. Alvarez-Machain -

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Schuette v. BAMN: Moving Toward a Colorblind Constitution -

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American Women in Combat: What Israel and Canada Can Teach the United States About Integration -

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The Intersection of Lawlessness and Justice: Police Misconduct -

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A Recommendation for Eliminating Lifetime Tenure for Federal Judges -

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VICTORY OF THE MINORITY: The Jehovah’s Witnesses’ Fight for Constitutional Rights -

Monday, June 30, 2014

VACATING CONVICTIONS: The Efficacy of One Form of Relief from the Consequences of Conviction -

Monday, June 30, 2014


Article submissions are now open for the Journal! Deadline: December 19!


WULR Volume VI, Issue III, Spring 2013

Originalism and Affirmative Action

Bradley Silverman
Brown University

Last fall, the U.S. Supreme Court heard Fisher v. Texas, a case
concerning the affirmative action policy at the University of Texas.
The decision that the Court hands down later this term could shape
affirmative action policy and jurisprudence for decades to come. At
least two of the Justices call themselves originalists, saying that the
Constitution should be interpreted in light of its original
understanding. But what does originalism have to say about
affirmative action? In this study, I argue that contrary to some
expectations, both the original intent and original meaning inherent
in the 14th Amendment’s Equal Protection Clause support reading it
to allow states to implement affirmative action policies. Although the
Clause is often assumed to mandate colorblindness in the law, the
passage of laws affirmatively benefiting African Americans as a
racial group by the same Congresses that passed the Reconstruction
Amendments indicates that the framers of those amendments did not
consider affirmative action to violate equal protection of the law.
Furthermore, a unitary reading of the Reconstruction Amendments
supports understanding the Equal Protection Clause to prohibit not
simply race-conscious laws, but laws that connote stigma or
inferiority upon a racial group. Because affirmative action does not
imply the inferiority of whites even though it benefits African
Americans, it does not violate the 14th Amendment.

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