- The Washington Times - Tuesday, February 21, 2012

Defenders of racially-based preferential treatment argue that affirmative action was part of the original intent of the framers of the 14th Amendment. They should study more history.

On Tuesday, the Supreme Court agreed to hear a case on race-conscious admission policies in the Texas public-university system. Abigail Noel Fisher sued the University of Texas in 2008 when her application was rejected when less academically qualified minority students were accepted. Ms. Fisher argues the race-based admissions policy violated her rights under the 14th Amendment, specifically the equal protection clause which says no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

Texas counters, “Those who drafted and ratified the 14th Amendment did not establish the principle of ‘colorblind’ government that opponents of race-conscious admissions so often invoke.” The 14th Amendment has proved to be the most elastic of any of the additions to the Constitution and the most useful for justifying the type of government activism liberals advocate. Contrary to Texas’ interpretation, selective preferential treatment based on race was not part of the original intent of the amendment. Racial preferences were precisely what it sought to eliminate.

During the argument in the 1885 Supreme Court case of San Mateo County v. Southern Pacific Railroad Co., former Sen. Roscoe Conkling, New York Republican, spoke about the intention of the drafters of the 14th Amendment. He was well qualified to do so; 20 years earlier as a House member he had served on the drafting committee. He said the amendment wasn’t intended only to protect and promote the rights of blacks, but of every citizen. He argued the rights of whites could no more be suppressed for the benefit of blacks under the amendment than vice-versa. Conkling explained the drafters “vitalized and energized a principle as old and as everlasting as human rights … not for a few, or for a race, but for man.” Nothing in the early history of the 14th Amendment suggests it could ever be used to create preferential treatment based on race, either for college admission, hiring or noncompetitive, no-bid federal contracts.

The earliest cases arising under the 14th amendment, such as Strauder v. West Virginia (1879), are also useful for determining the original meaning of the law. Taylor Strauder was convicted of murder and sentenced to hang during a time when blacks were excluded by law from West Virginia juries. The Supreme Court ruled such exclusionary language was a clear violation of the equal protection provision. Justice William Strong, writing for the majority, asked rhetorically, “What is this but declaring that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states …?” That is the same question Ms. Fisher is asking today. The high court should return the 14th Amendment to the purpose its authors intended and strike down race-based preferences.

The Washington Times