All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Section 1 of the 14th Amendment to the United States Constitution)
Mr. Sunstein recently stepped down as chief information and regulation officer for the White House. Now he spends his time in the “green pastures of Harvard University.” Recently he had enough time to pen the attached apology for nonsensical interpretations of the US Constitution.
The article concerns the 14th Amendment and specifically how it applies to affirmative action at the University of Texas. (Didn’t we do this 10 years ago?) But affirmative action is not the chief issue in his op-ed. More important is Sunstein’s convoluted argument about what “orginalist” thinking is and is not. Very quickly in the essay we head down the lawyerly rabbit hole. Rabbit holes with lawyers are the worst kind.
Sunstein holds that Justices Scalia and Thomas are not really “originalist” in their interpretations of the Constitution and especially in the recent UT case.
He explains that in his opinion Scalia and Thomas were real “orginalists” they would have to take into account the various nuances which surround the 14th Amendment, the institution of the Freedmen’s Bureau for instance. “Originalists” would surely have to take into account this tangential legislation (and its intent) which occurred in the wake of the Civil War.
But just because a piece of legislation was enacted at the same time as the Amendment was instituted, or because the general vibe of government was radiating this way or that does not matter. Orginalist interpretation centers on what the Constitution actually says. What does the Equal Protection Clause acually say?
Now this is where the linguists, the political correctness police, and the lawyers come together. I mean just because “up” may mean “up” to you mister bourgeois middle class guy, does not in fact mean that “up” is “up” to me or someone with a different “worldview.” “Up” may in fact mean “down” to some, or even sideways. This mister bourgeois middle class guy is why we have lawyers who can decipher the meaning of “up” for everyone, and what the 14th Amendment actually says for that matter.
People like Mr. Sunstein understand that if people in positions of power call the sky red when it is blue long enough everyday folks will begin to agree that the sky is in fact red. In fact over enough time people will even forget what the color blue is (if this is what the redskyers desire.)
The Constitution says what it says. But to accept this is to accept that much of the government superstructure we have erected over the last 100 years is illegitimate. MrSunstein and his fellow travelers will never accept that.