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The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, and few of us think that the racial prejudices of the Framers should continue to govern contemporary race relations. There are a host of fancier, non-interpretivist constitutional theories, including structural theories, moral theories, civic republican theories, representation-reinforcement theories, public-choice theories, and postmodern critical-race theories, but none has sufficiently broad support to claim status as the one "authentic" approach to constitutional interpretation. Rather, they are parochial overlays imposed on a Constitution that is best understood as defining the terms of engagement for political bargaining. Given the increasingly transparent dominance of political policy considerations in Supreme Court constitutional adjudication, it is not surprising that recent strands of constitutional scholarship have chosen to advocate judicial minimalism, and even the curtailment of judicial review.

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63 Law & Contemp. Probs. 467-477 (2000)