INTRODUCTION :: My assignment was to comment on Professor Crump’s article from a conservative perspective, to complement the response to his article from Dean Dennis Shields, who had been instrumental in administering the University of Michigan School of Law’s affirmative action policies approved in Grutter v. Bollinger. Professor Crump suggests that the conservative position on the issue of affirmative action in university admissions is to argue for a “color-blind” admissions policy, ignoring any distinctions of race or ethnic origin and I have made it on another occasion myself, but advocacy of a “color-blind” Constitution, much in the manner of the first Justice Harlan, is not all there is to a conservative constitutional jurisprudence, and it may be that there are elements of conservative thought that support, rather than undermine, affirmative action. Nevertheless, what most conservatives believe is inconsistent with what Justice O’Connor and her colleagues did in Grutter, and inconsistent as well with what Professor Crump proposes as an alternative to Grutter’s approach. Accordingly, in this Commentary I will first set out what I believe to be the principal tenets of modern American conservatism and then suggest how they apply in the context of constitutional law. I will proceed to criticize the opinions in Grutter in light of this particular version of conservative jurisprudence, and then subject Professor Crump’s proposal to the same conservative scrutiny.
March 2015, Vol. 67, No. 2
Albert W. Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow
Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness
Jeffrey A. Lefstin, Inventive Application: A History
Onnig H. Dombalagian, Principles for Publicness
Kristen M. Blankley, Impact Preemption: A New Theory of Federal Arbitration Act Preemption
Alan Devlin, Antitrust Limits on Targeted Patent Aggregation