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107 Yale L.J. 427 (1997-1998)
Affirmative Action

handle is hein.journals/ylr107 and id is 461 raw text is: Affirmative Action Jed Rubenfeld' Affirmative action is so burning it's boring. Why? Partly because so much of what one sees and hears on the subject smacks of hypocrisy or speaking in code. Exhibit A: the name of California's affirmative-action-killing referendum, the Civil Rights Initiative. Exhibit B: the term affirmative action. Exhibit C: I oppose affirmative action because it's harmful to minorities. Exhibit D: Diversity is not counter to merit; it's an aspect of merit. Exhibit E: [TIhe fact that he is black and a minority has nothing to do with this in the sense that he is the best qualified at this time.' This Essay rethinks the constitutionality of race-based, governmental affirmative action measures. There are, I know, a thousand essays on the same topic already. I make one promise: Readers who persevere will learn something new. First, although it is a matter of public record, most lawyers and judges are unaware that Congress in the 1860s repeatedly enacted statutes allocating special benefits to blacks on the express basis of race (and I am not referring to the well-known Freedmen's Bureau Acts,2 which did not rely on express racial classifications). Accordingly, to be true to their principles, two of the five Justices in the prevailing anti-affirmative action majority-Justices Scalia and Thomas, whose commitment to original understandings and practices is also a matter of record-should drop their categorical opposition to race-based affirmative action measures. Second, strict scrutiny doctrine, as it has been applied to affirmative action, can no longer survive strict scrutiny. I don't mean this statement figuratively. I mean that strict scrutiny doctrine, understood as it has been in the recent affirmative action cases, can no longer satisfy its own doctrinal requirements. Current affirmative action law may be the first instance in our jurisprudence of a constitutional doctrine unconstitutional under itself. t Professor, Yale Law School This Essay profited enormousl from a %orkshop held it Duke L.s School. Special thanks to Bruce Ackerman, Akhil Amar. Kate Bartlett. George Chnstie. Am> Chua. Jim Coleman, Zoe Hilden. Don Horowitz, Tnna Jones. and Jell Po%%ell I. The Supreme Court: Excerpts from News Conferrrmce'rn tonm g Court .oimthn , N Y TL%'iiS, Jul> 2, 1991, at A14 (quotmg President Bush on his innounccment ol Clarence Thomas's nomination to the United States Supreme Court) 2. Act of July 16, 1866, ch 200. 14 Stat 173. Act of %. 3. 1, 65. ch 90. 13 Stat 507 427

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