Editor’s Note: The following is the sixth in a series of articles in which Mr. Yoo and Mr. Phillips lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry is available here, the second here, the third here, the fourth here, and the fifth here.
Affirmative action is unconstitutional. Full stop. That doesn’t mean that legislatures cannot craft solutions that will have the result of helping minority students succeed or making business more competitive; it just means those solutions cannot be based on race. Nothing in the Constitution, for example, prohibits institutions from seeking diversity based on poverty or skills. It just cannot use race. Even if the Court must use its power of judicial review to override the considered judgment of the elected branches of government, this is what the Supreme Court’s power is for: to refuse to carry into effect the commands of the other branches that violate the higher law of the Constitution. That is not activism; it is constitutional fidelity.Perhaps it is time to end the systematic racism that is affirmative action.
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