Color Blindness, Originalism, and the Equal Protection Clause:

In, Parents Involved in Community Schools v. Seattle School District, the Court, with minor qualifications, upholds the "color blind" ideal approach to the 14th Amendment's Equal Protection Clause. Good for them. Some lefty-liberals criticize such "originalist" approach, while signaling out "color-blind originalists" Scalia and Thomas, noting that, under the original expected application of the EPC's text, "the 'race neutral' interpretation...has no basis whatsoever in originalism."

Well, not exactly. The original expected application of the EPC's text permitted some, arguably many forms of racial discrimination against blacks (and logic therefore suggests against whites). However, at the very least, the original meaning of the Clause required equal application of whatever general rules of law happened to be on the books, be they statutes against murder or theft, the legal ability to enter contracts, give evidence, sue or be sued, or even take advantage of substantive legal rules that come from court decisions.

If constitutional law holds that all purposeful government discrimination against blacks violates the EPC (something perhaps not within the original meaning but that all liberals and conservatives and everyone on the Court now agrees on), then the original meaning of the EPC likewise requires such expanded meaning of the text equally protect whites and other races.

In other words, whatever degree of protection "the law" decides to give, the original meaning of the EPC requires it be given equally to all persons without regard to race. When the EPC was originally ratified, "the law" simply granted a lower level of protection. It didn't grant blacks (or whites) rights against government policies which took race into account; but now "the law" does, at least for blacks, it does. Government must, therefore, protect all races within this general rule against racial discrimination. Otherwise, the way the leftists would have it, we end up with a norm where blacks receive greater constitutional protection under the EPC than whites or other races, which is impossible to square with the original meaning of the EPC's text.

No one wants to "go back" to the original expected application of the EPC's text, which arguably permitted racial segregation and without question permitted bans on miscegenation. But given that is out of the realm of possibilities, the "color blind" interpretation of the EPC requiring race neutrality is the next closest thing to an originalist outcome. Such outcome also avoids constitutional double standards on racial grounds which ought to be unacceptable in modern liberal democratic societies.