Affirmative Action

By Rubenfeld, Jed | The Yale Law Journal, November 1997 | Go to article overview

Affirmative Action

Rubenfeld, Jed, The Yale Law Journal

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: "[T]he 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."(1)

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.

Finally, and most important, the Court's recent affirmative action decisions have consummated a remarkable but unremarked-upon transformation in the entire analytic structure of heightened scrutiny doctrine. One powerful function of strict scrutiny has always been that of "smoking out" invidious purposes masquerading behind putatively legitimate public policy. But under today's affirmative action doctrine, strict scrutiny has become altogether different. It has become a cost-benefit test measuring whether a law that falls (according to the Court itself) squarely within the prohibition of the equal protection guarantee is justified by the specially important social gains that it will achieve.(3)

This shift in the use and understanding of strict scrutiny is momentous, not only for equal protection law, but for every field of constitutional law in which the compelling state interest test figures. Or rather it would be momentous, if it really were the law. But it cannot be. Strict scrutiny cannot serve as a general escape hatch through which reasons of state may trump acknowledged constitutional injuries. As a smoking-out device, heightened scrutiny is sensible. As a cost-benefit justificatory test, it is indefensible. Or so I will argue.

This argument, however, will not decide affirmative action's constitutionality. Part of the problem with current doctrine is its effort to pack far too much of the difficult work of equal protection analysis into a determination of the appropriate "standard of review." Straightening out strict scrutiny in the affirmative action cases can only strip away a certain false doctrinal mesh, leaving exposed the contending claims of color-conscious and colorblind justice.

But the debate over colorblindness in constitutional law, whose thrusts and parries are so well known, will raise very different questions when the cost-benefit approach of current doctrine is systematically stripped away. For example, the Justices who have found against affirmative action programs repeatedly have done so on the ground that affirmative action threatens inadvertently to entrench racial thinking and to stigmatize minorities. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article

Affirmative Action


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.