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.
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December 2013, Vol. 65, No. 6
Adam Mossoff, The Trespass Fallacy in Patent Law
Alan White & Carolina Reid (Essay), Saving Homes? Bankruptcies and Loan Modifications in the Foreclosure Crisis
Lee Harris, CEO Retention
Jennifer Koh, Rethinking Removability
Katrina Wyman & Nicolas Williams, Migrating Boundaries