Commitment to Equal Opportunity?: <em>Students for Fair Admissions v. Harvard</em> and the Ends-Oriented Constitution

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College(2023), the United States Supreme Court held that the Equal Protection Clause ofthe Fourteenth Amendment prohibits the use of affirmative action admissionsprograms in higher education. Underlying the Court’s decision was a commitmentto negative constitutionalism, which seeks to restrain the power of government toprotect individuals from government. More specifically, the Court adhered tocolorblind constitutionalism, perceiving any racial classifications in the law, eventhose designed to ameliorate entrenched racial disparities like affirmative action,as unconstitutional. However, the Constitution’s logic is positive — that is, itempowers the government to pursue public goods to bring about and maintain adesirable social state of affairs. One aspect of this desirable social state of affairsis an equal-opportunity society that “lifts artificial weights from all shoulders,”as President Abraham Lincoln contended. Thus, the Court erred in Students forFair Admissions by proscribing affirmative action in higher education, for it is areasonable means to achieve that end. This decision officially terminated aconstitutional commitment to an equal-opportunity society and epitomized theCourt’s fundamental misconception of the Constitution’s normative character.