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Affirmative Action

4. Jurisdiction

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About this Lecture


In this module, we consider the argument that affirmative action should be declared unconstitutional on the grounds that such programmes do not fall under the jurisdiction of the federal government. In particular, we focus on: (i) the carefully-balanced relationship between individual states and the federal government, and the general belief that the federal government should interfere as little as possible in the internal affairs of individual states; (ii) the United States as a common law jurisdiction, and (consequently) the extent to which judges can themselves develop law in their judgements; (iii) the concept of ‘judicial activism’, in which (as critics would define it) judges stretch the literal meaning of the law in order to pursue a particular political or social agenda; and (iv) two more cases related to affirmative action – Wards Cove Packing Co. v. Atonio (1989) and Adarand Constructors, Inc. v. Peña (1995).


In this course, Dr Matthew Williams (University of Oxford) explores the concept of ‘affirmative action’ in the United States through the question ‘Why have critics asserted that affirmative action should be declared unconstitutional?’ In the first module, we introduce the question itself, before looking in more detail at the history of race relations in the United States and the idea of “unconstitutionality”. After that, in the second module, we think about why the judiciary is the only branch of government in the United States with the power to declare something “unconstitutional”, and how the Supreme Court obtained these powers. In the following four modules, we outline four potential arguments that critics of affirmative action have used to question its constitutionality – first, on the grounds of basic principles of political philosophy such as liberty and natural justice; second, on the grounds that the Supreme Court does not have the jurisdiction to enforce affirmative action; third, on the grounds that federally-enforced affirmative action is no longer needed; and fourth, on the grounds that the ends of affirmative actions are unacceptably vague. Finally, in the seventh module, we provide a brief recap of the question that we were considering and the different arguments that we considered in trying to answer it, before moving on to suggest some avenues for further reading.


Dr Matthew Williams is Access and Career Development Fellow at Jesus College, Oxford. His research focuses on the the language of politics, especially how the language of legislation has changed over the previous century. His recent publications include How Language Works in Politics: The Impact of Vague Legislation on Policy (2018).

Cite this Lecture

APA style

Williams, M. (2020, December 30). Affirmative Action - Jurisdiction [Video]. MASSOLIT.

MLA style

Williams, M. "Affirmative Action – Jurisdiction." MASSOLIT, uploaded by MASSOLIT, 30 Dec 2020,