Joy Milligan, University of California, Berkeley Law School, has posted The Constitution of Racial Repair: A Reconstructed History, which is forthcoming in the Iowa Law Review:
If affirmative action is dead, we should remember it accurately.
Dominant narratives claim that bureaucrats invented affirmative action in the 1970s as a policy of voluntary racial preferences in jobs and university admissions, undermining merit and provoking long-running conflict with the Constitution. That account is misleading, distorting our grasp of the nation’s racial history and the Constitution itself.
This Article offers a new, more complete constitutional history. Affirmative action was once constitutionally required, consisted of far more than preferences, and represented the Supreme Court’s own best interpretation of Brown v. Board of Education. The “positive theory” of Equal Protection required government to repair the past century’s worth of constitutional violations under Jim Crow, using a broad range of race-conscious and race-neutral measures. Lower courts and agencies applied the mandate beyond schools, to the many public institutions throughout the North and South in which government had imposed segregation. However, an opposing “negative theory” of Equal Protection persisted, which required only government inaction and claimed that any remedial steps violated white people’s freedoms or material interests. Over time, the Court increasingly sided with the negative theory, diluting the Constitution’s remedial requirements and fragmenting Equal Protection jurisprudence. The very concept of an affirmative duty to remedy the nation’s unconstitutional past dissipated.
Forgetting affirmative action’s true history biases our judgments of the nation’s present, its past, and the Constitution. As the modern proponents of the “negative theory” of Equal Protection attempt to halt all efforts at racial equality, it is crucial to recover the Constitution’s prior meanings—and imagine alternative futures.
--Dan Ernst
