JB

My op-ed on Roe and the Republican party's coalition appears in today's New York Times.

The Times, like most newspapers, gives you only about 700 words to make your argument, so I thought I’d add a few additional explanations about three important points that the op-ed raises. The first is how judicial review affects political coallitions, the second is how the Supreme Court diverts political heat onto itself, and the third is the special place of religion as a divisive issue in politics. These three ideas are analytically distinct, but they all apply to Roe, and for lack of space, they all had to be explained together in the op-ed. I'd like to separate them out in this post.

1. Judicial Review and Party Coalitions. The basic idea that shifting policy agendas shifts party coalitions is nothing new. The classic explanation of how judicial review preserves or destroys party coalitions by shifting policy agendas was made by Mark Graber in his article "The Nonmajoritarian Difficulty," published in 1993, and the basic idea about how shifting policy agendas fractures political coalitions was explained by William H. Riker in his book The Art of Political Manipulation (1986). Both used the Supreme Court’s decision in Dred Scott v. Sandford as an example, and Graber showed how the same logic applied to Roe.

The basic idea is this: Through its exercise of judicial review, the Supreme Court can either keep party coalitions together or it can fracture them. Roe is an example of the former, Dred Scott is an example of the latter. Both involve striking down statutes, but the issue is not really whether the Court strikes down something or upholds it. It is whether the decision keeps the party system together or blows it apart. Roe helps keeps the contemporary party system together, Dred Scott blew the party system of its day apart.

Before Dred Scott, the Democratic Party was amazingly successful at winning the Presidency. It did so because it was a coalition of Southern Democrats who were devoted to the preservation and spread of slavery, and Northern Democrats, who cared less about the issue. Instead, they dealt with the question through a series of compromises. Democrats in the North instead pushed for the idea of popular sovereignty. Each state and, more importantly, each territory could decide for itself whether it wanted to be free or slave. Dred Scott made this position impossible, because it held that Congress could not ban slavery in the territories, and that slaveowners had the right to bring slaves into the territories. This split the Democratic Party in two, destroying its chances at winning the presidency. As a result, Abraham Lincoln won the White House. Unable to accept the Republican Party’s control, South Carolina seceded, beginning the Civil War.

From the standpoint of the Democrats, Dred Scott was a terrible blunder because the Supreme Court made it impossible to form a working majority within the Democratic Party. On the other hand, if you think that slavery would never have been resolved peacefully, it was probably better that the Court wreck the coalition and get on with the War. In the casebook that Paul Brest, Sandy Levinson, Akhil Amar, and I edit, we have this to say about the timing issue:

If one objects to Taney's opinion on the grounds that it hastened war, consider that a decision freeing Dred Scott would surely have generated intense opposition by the already secession-prone Southerners, who might not have waited until 1860-61 to attempt secession. Consider also that the North might not have won a war begun in 1857, especially because of its lack of military preparedness and the fact that its Commander-in-Chief would have been the feckless James Buchannan rather than Abraham Lincoln. Is this a good reason to support the result in Dred Scott--that it bought the North valuable time? Or is your view that justice, i.e., the repudiation of slavery, should be done (and, indeed, is required by the Constitution) though the heavens (or, at least, the Union) fall?

Another recent example of how Supreme Court decisions affect coalition formation is affirmative action. The Democratic party includes African Americans, Latinos and white liberals who strongly support affirmative action, and moderates who are iffy on affirmative action. In this case, its possible that by applying strict scrutiny to affirmative action programs, the conservative Justices in the Supreme Court are actually keeping some people in the Democratic Party, because they limit how far the left wing of the party can push for affirmative action. The logic is very similar to that in Roe, with the parties reversed. If Croson and Adarand were overruled, it might not work to the advantage of the Democrats.

But the issue on the table right now is not overturning those decisions; It is extending them by overruling Bakke. That shifts the political agenda in a different direction than overruling Croson and Adarand, because it means less affirmative action, not more. If Bakke were overturned, and Croson and Adarand applied to university admissions, you might get more movement toward the Democrats than movement away from them.

2. Judicial Review and the Supreme Court as Lightning Rod. A different idea in the piece is that the Supreme Court can act as a lightning rod, taking heat from the political process and onto itself. The best recent example of this would be Judge Richard Posner’s argument about the 2000 Election. Even if the decision in Bush v. Gore didn’t make much sense as a matter of legal argument, Posner argues, it had the beneficial effect of resolving the disputed election and preventing riots in the streets. If Posner is right on his facts, I think this is an excellent example of how the Supreme Court can act as a lightning rod. I’ve argued in a recent article that Posner is wrong on the facts; there were no riots in the streets, and there were unlikely to be riots in the streets. The Democrats did not suggest that they would take no prisoners if they lost. (Ironically the party that was most likely to threaten civil disorder if they lost was the Republican Party, and since they are the law and order party we know they would never do a thing like that. :-) ). Therefore, it was unnecessary for the Supreme Court to act as a lightning rod to resolve the election, and it should not have done so. Still, it is true that two years after the 2000 election the bitterness about the election is largely sublimated in the general public, so perhaps Posner is right, although I’ve also argued that the memory of the election may still come back to haunt the Bush Presidency, like Poe’s tell tale heart. Only time will tell.

3. Religion as a Coalition Busting Issue. The final point the piece makes is that certain types of issues tend to be coalition busting and diffusing them by shifting the grounds of political agendas helps working majorities form; by contrast, other issues are less threatening to coalition building and controversies are less problematic for democratic politics. Slavery was one such divisive, coalition busting issue. I tend to think that religion is another, at least in contemporary America. This is not an argument against the recognition of religious argument in the public sphere, which I support. Rather it is an argument for certain types of decisions about religious liberty that help religious and secular people inhabit the same political space and belong to the same political party. One interesting feature of American politics is that although religion has played a central role in the development of American values, the political parties have usually been quite polyglot. The Democrats, for example, contained both Southern Baptists and urban Catholics. One reason why I support some types of changes in the current doctrines of religious liberty and not others is because of how they affect the everyday practice of politics. I hope to say more about that later.

JB

In an earlier post, I explained that I did not think that Roe v. Wade would be likely to be overturned, although it was quite possible that future Republican judicial appointments would chip away at it severely.

The long run future of Roe as a precedent, however, does not simply concern abortion but also new reproductive technologies like cloning. Congress is currently considering legislation that would ban human cloning. Roe is important to this debate, because it is relevant to the constitutionality of any legislation affecting cloning.

Roe builds on Eisenstadt v. Baird, which tells us that “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child..” It also builds on Skinner v. Oklahoma, which held that the state could not sterilize convicts for certain crimes because the right to procreate is fundamental.

Proponents of cloning could use Skinner, Eisenstadt and Roe to defend the right to clone. They would use Roe in two different ways.

Prospective parents wish to create new children through cloning. This is the decision whether or not to bear a child. It does not matter whether the method of producing a child is traditional, so the argument goes, because in vitro fertilization does not use traditional methods, and it should equally be protected by Skinner, Roe and Eisenstadt. Especially for couples who cannot have children any other way, the right to clone is constitutionally protected. And even for those who could produce children the old fashioned way but choose not to, Roe still protects that choice.

But Roe is important in another way too. The decision to clone is also the decision to end the life of embryos, because it is likely under current technologies that some number of embryos will be discarded in the process of cloning. (And some fetuses may be discarded in the process too, if the results go awry later in the process.). But, the advocates of cloning might say, that is ok because of Roe v. Wade.

To be sure, the proponents of cloning might argue, the right to clone is not absolute. The state may impose requirements, even stringent requirements, to ensure that the children produced are healthy, and to avoid damage to the gestational mother who carries the cloned baby. But the basic choice whether to use cloning or not, these proponents would say, is beyond the state’s power. The state may not prohibit cloning because it thinks it immoral; it may only legislate to protect health and safety of the DNA donors, the cloned baby, and the gestational mother.

That’s how Roe might be used in a very simple argument for cloning. (I think the argument could be improved with a bit more effort, but that's a first cut). Could Roe v. Wade also be used in an argument against cloning? You bet.

First, opponents of cloning might point out that Roe is premised on the notion of forced motherhood. Women who get pregnant are subject to the social stigma of putting a child up for adoption, and so they will keep the baby and this will completely change their lives. But the prohibition on cloning has nothing to do with forced motherhood. Prohibiting the creation of human clones forces no woman to become a mother against her will.

Second, Roe is really a case (and should have been originally viewed as a case) about women’s equality. Abortion rights are necessary for women to be equal citizens in American society. But human cloning doesn’t substantially contribute to women’s equal citizenship. The inability to clone babies does not subordinate women. Indeed, one could argue in precisely the opposite direction: Cloning will lead to selection of boys over girls, or the selection of traits that will reinforce stereotypes that undermine women’s equality.

Third, Roe is premised on the idea that in order to guarantee women’s liberty and equality, a painful choice must be made to end the life of the fetus. But in the case of cloning, the discarded embryos (or fetuses) are not discarded in order to keep women from forced motherhood. The balance between liberty rights and the life of the embryos or fetuses is completely different in the case of cloning, and therefore should tip the balance against the procedure.

Now these three arguments don’t make Roe *necessary* to the case against cloning. They show that the case against cloning is entirely consistent with the principles behind Roe. But they do so by interpreting Roe as a case about forced motherhood and women’s equality.

This is ironic for two reasons. First, the forced motherhood/equal citizenship argument is the interpretation that feminists and liberal constitutional scholars have been pressing on the courts for years. Second, it is also the interpretation that has been most powerfullly resisted by pro-life forces, who tend to see Roe as a misguided application of a right to privacy that they don’t accept in the first place, and who tend to regard feminist and liberal arguments about abortion as destructive of family values.

But every argument, if invoked often enough in enough different contexts, eventually becomes useful to a different group of people. This is what I call the principle of “ideological drift.” It turns out that the best arguments for not extending Roe to the case of human cloning are based on liberal and feminist justifications for Roe. That doesn’t mean that pro-life forces need to become liberals or feminists. But it does mean that changing contexts may reveal some wisdom in arguments they have rejected for years.

The converse, I think, is also true. As new reproductive technologies like cloning develop, people on the left who are concerned about equality and social hierarchy will increasingly see the value in pro-life arguments about the misuse and abuse of human life. As Mr. Huxley says, it's a brave new world, folks, and that world will surely upend the political certainties of the past all across the political spectrum.

JB

In a recent e-mail Gary Haubold, responding to my post on the coming war with Iraq, takes issue with my reasons for caution:

Here’s what I said:

The major problem, as I see it, is that we really don’t know how long the war will last, how many people will be killed and dislocated, how many refugees we will create, how many lives we will shorten through sickness and famine, whether we will destabilize other regimes in the Middle East, and whether America’s enemies will use our preoccupation to gain advantages elsewhere in the world (think about North Korea, for example).

Here’s Gary’s concern:

Thinking back over every war the United States has fought over the past 200+ years, I can't identify one war that would have been supportable under your framework. Did you really mean to write that the U.S. shouldn't fight any war, because the consequences are so extreme and unknowable?

Gary reads me as saying we should never go to war in conditions of uncertainty. Of course, that’s not my position. One always goes to war in conditions of uncertainty. But before going to war, you must ask: How many casualties are likely to your people and to the other side, and what collateral consequences will occur? How will this affect your strategic situation, five, ten, twenty years from now? While the war with one enemy is going on, what will your other enemies do in response while you are preoccupied? If you do manage to win, how long will you have to occupy your former enemy’s country? How much will the occupation cost? What new wars and conflicts will your occupation provoke? If you don’t ask these sorts of questions, you are just being foolish. This is exactly what the great military strategist Sun Tzu said two thousand years ago. He who reduces uncertainty before going into battle wins, he who embraces uncertaintly loses. That is what I meant by my previous post. The problem is that right now we are not reducing uncertainty. We are embracing it.

There is some evidence that the war with Iraq will not be as painless or quick as the President hopes, but put that aside. Even if the war is painless and quick, as I hope it will be, there is good reason to think that the occupation following the war will be particularly difficult and complicated. Jim Fallows has offered a good summary of the problems, and I recommend it to Gary and to anyone else who is interested. I don’t think one can make a decision about going to war without taking these issues into account. I fear that the Bush Administration is not being sufficiently realistic about these issues. I think there is a lot of wishful thinking going on about about American invulnerability, and about America's ability to remake Iraq any way it wants.

At one point Fallows interviews Merrill McPeak, a retired Air Force General who is dubious about a preemptive strike:

There is an even larger realm of imagination [necessary to understanding the costs of war], McPeak suggested to me. It involves the chain of events a war can set off. Wars change history in ways no one can foresee. The Egyptians who planned to attack Israel in 1967 could not imagine how profoundly what became the Six Day War would change the map and politics of the Middle East. After its lightning victory Israel seized neighboring territory, especially on the West Bank of the Jordan River, that is still at the heart of disputes with the Palestinians. Fifty years before, no one who had accurately foreseen what World War I would bring could have rationally decided to let combat begin. The war meant the collapse of three empires, the Ottoman, the Austro-Hungarian, and the Russian; the cresting of another, the British; the eventual rise of Hitler in Germany and Mussolini in Italy; and the drawing of strange new borders from the eastern Mediterranean to the Persian Gulf, which now define the battlegrounds of the Middle East. Probably not even the United States would have found the war an attractive bargain, even though the U.S. rise to dominance began with the wounds Britain suffered in those years.

What General McPeak is talking about here is exactly what I had in mind when I spoke about the uncertainties of war, and the unintended consequences that war can bring. To my mind, those uncertainties should not be taken as lightly as Gary seems to do. Good generals and good political leaders never take them lightly.

And there is another issue that goes beyond mere strategy. It is the question of how much new evil we will unleash on the world through our use of force. We often talk as if once we know that our cause is a just one, the deaths, the sickness, the famine, the refugees, the dislocations caused by war don’t really count or aren’t our concern. I think that is wrong. Whenever we exercise our power we affect others, and we are morally responsible for what we do. The more evil we cause in the world through our military action, the greater must be the showing that it is counterbalanced by the good we will accomplish. If we do not take this into account when we go to war, we are not living up to our own ideals. The deaths of Iraqis are the deaths of fellow human beings. The refugees we will create are fellow human beings. The children who will die of malnutrition and disease both during and after the war are fellow human beings. That is why Sun Tzu said that the best general is one that never has to fight. He recognized that when you go to war, you destroy-- often in unpredictable ways that can quickly spin out of control. And such destruction is to be avoided unless there is no other way. War is a necessary evil. When it is necessary it must be pursued vigorously, without apology; but when a necessary evil is not necessary it is just plain evil.

Most Americans I listen to today who talk about the war with Iraq do not seem to worry much about the evils that others will suffer. They worry only about American casualties. I think this is short-sighted. The evil we do today, even for the best of reasons, will live on, spreading its effects throughout the globe, and coming back to haunt us in unexpected ways. War is the most serious business of the state, posing the ultimate question of life or death. It should not be treated carelessly or cavalierly. I fear that is precisely what we are about to do.

JB

The bright Yale Law students who run The Kitchen Cabinet offer a possible solution to the problem posed by my previous post in which I asked whether George H.W. Bush's nomination of Clarence Thomas to replace Thurgood Marshall violated the colorblindness principle currently at issue in the debate over affirmative action. They make the following argument:

[P]residents are "allowed" to consider a whole host of things in making judicial nominations that we wouldn't consider relevant or appropriate in an undergraduate-admissions context -- whether the president trusts and respects the candidate, whether they have personal rapport, whether the candidate stands a decent chance of being confirmed or of serving for many years, etc.


I'd consider a different set of personal characteristics in drawing up a list of invitees to a dinner party than I would in deciding whom I'd let join my Richard Posner fan club. Do I need a "principle" to do that, other than "they're two different things?"



. . . . The president's nomination of Supreme Court Justices is, at bottom, his personal choice. Ideally, we'd like his choice to reflect some national or party consensus about the kind of person we want on the Court, but if the president wants to ignore what everyone else thinks and draw a name out of a hat, he can. He's under no obligation to explain how he chose. There's no question of what's "allowed" and what's not; that's just the way the process works. (Of course, the Senate confirmation process provides a check on presidential idiosyncrasy.)


But because the University of Michigan is a public school, its admissions officers are acting as agents of the citizens of Michigan to allocate the limited seats in the class. No one believes that the criteria for that allocation should be left up to the personal whims of individual admissions officers; therefore, it's appropriate to ask what they are "allowed" to consider.

This leads to a number of interesting questions.

(1) Is the difference between the President and the University of Michigan admissions committee that the members of the admissions committee are acting as agents of the state while the President of the United States is not? That is, is the problem a failure of state action?

(2) Is the difference that when the President picks a Justice of the Supreme Court, it is essentially like choosing whom to invite to a dinner party, a purely "private" choice with no recognizable public consequences, while the choice of the entering class at the University of Michigan is a public choice with clear public consequences?

(3) Is the difference that in order to carry out his duties the President needs people around him he can trust and feel comfortable with, whereas the Michigan admissions committee doesn't have to trust or feel comfortable with the class they admit?

Suppose that the local sheriff in a small town in my home state of Missouri says: "When I pick deputies, I have to pick people I feel comfortable with, because they are the ones who will be watching my back if we get into trouble. I need people I can trust. The public safety is at stake. And I just have to tell you, I just don't feel comfortable with women or black people." Does this violate the colorblindness principle? Would it violate Title VII of the Civil Rights Act of 1964? Now suppose the Commander-in-Chief and says, "You know, I just don't trust black advisors. They are shiftless and lazy." Does this violate the colorblindness principle?

(4) Finally, suppose the President, when asked why he chose a particular person as a Justice, responds, "Well, he's white and I think that only white people should be Supreme Court Justices." Does this decision by the head of the Executive Branch of the federal government violate the colorblindness principle? Does it fall outside the ambit of the colorblindness principle as long as the President keeps quiet about his reasons? (This would be a sort of "don't ask / don't tell" solution to the problem.). If so, is this answer consistent with Washington v. Davis, which holds that facially neutral government practices violate the Equal Protection Clause if they are secretly motivated by a racial animus?

So what's the point of all these questions? Is it just to make advocates of colorblindness look silly? No, that's not the purpose. Rather, my goal is to make the following points about antidiscrimination law.

First, "colorblindness" is a provisional principle of equality, it is not equality itself. Second, although the principle seems clear and determinate, on closer inspection, it turns out that it is enormously complex and indeterminate. The concept of colorblindness cannot be implemented without a series of decisions about what constitutes actionable discrimination "on the basis of" race. Third, what sorts of private or state action are seen as properly falling within the ambit of the colorblindness principle shifts over time in response to social contestation. Some practices that previously were never considered as violations of colorblindness later become seen as paradigmatic violations, and vice versa

This fact leads to all sorts of ironies. For example, the same day the President denounced the Michigan plan, an action which was widely applauded by advocates of colorblindness, he advocated Texas's Ten Percent plan (which as I've explained in a previous post, is not colorblind). The next day he announced that he would push for increased funding for historically black colleges, which is also not really a colorblind decision. One assumes that he did this without any sense of contradiction.

But back to Clarence Thomas, and the point of my original post: The category of Presidential appointments that take race as one factor in the overall political calculation is a good example of the sort of race conscious state action that is generally not recognized as falling within the ambit of the colorblindness principle-- that is, unless the President is stupid enough to make an issue of it. George H.W. Bush did that when he said at the press conference announcing Thomas as his pick that race had nothing to do with his selection, and that Thomas was simply the most qualified candidate. Thomas is an intelligent man, and has proven to be a very interesting Justice, but it was simply not true that in 1991 he was the most qualified individual for the job, and everybody knew it. When a politician says what George H.W. Bush said, he's just begging for people to call him on what he did. If a President said publicly that he would not hire a black person as a close advisor, that would also cause people to shift their notion of how the colorblindness principle should be implemented. What was before simply swept under the rug or ignored would then become an issue of social contestation.

Advocates of colorblindness often assume that they and not their opponents have moral clarity on their side. Nothing could be further from the truth. The more you know about the history and implementation of the colorblindness principle in American antidiscrimination law, the more you come to realize that the concept of colorblindness is not as clearcut as it seems.

JB

Suppose it could be shown that one factor in George H.W. Bush's nomination of Justice Clarence Thomas in 1991 was that Thomas was black. (I realize that this is difficult to believe, but bear with me). Suppose that Bush said to himself, "When Thurgood Marshall retires, I need to fill his seat with another African-American and Thomas is the most conservative African-American I can find with the requisite experience in law and necessary degree of legal talent." In 1991 there were more qualified and experienced legal scholars, particularly among conservatives. But Thomas met at least the minimum requirements of legal skill and experience, and he was African American, and therefore more likely (at least judged ex ante) to win confirmation.

Some questions for the class:

(1) Was the nomination of Clarence Thomas consistent with the principle of colorblindness?

(2) If the answer to question (1) is no, did George H.W. Bush violate his oath of office to uphold the Constitution when he nominated Thomas?

(3) If the answer to question (2) is no, then what principle allows presidents to take race as one factor among many in nominating Supreme Court Justices but does not allow the University of Michigan to take race as one factor among many in selecting a student body?

(4) Suppose that the reason why Presidents or other executive officials may take race into account in nominating judges and Justices, or in selecting cabinet members or National Security Advisors is that these are political appointments and that one is permitted to use race to secure political support. Is this practice consistent with the Supreme Court's statement that using race in government decisionmaking should be subjected to strict scrutiny because it is divisive and reinforces racial identities, and fosters the racial division of American society?

(5) Is the use of race as one factor in Presidential appointments in order to please potential voters more or less praiseworthy than the use of race to produce a diverse student body from which students might learn from each other?

JB

The Raving Atheist has just declared me "Godidiot of the Week" for a recent post that uses the I Ching to discuss the war on Iraq.

I'm so proud.....

For an encore, I invite my readers (both of you) to suggest other questions for me to pose to the Oracle of Change. If I receive enough questions, I will cast the hexagrams and provide commentary on a regular basis. All questions must be serious and of the sort you would be willing to have openly discussed in public. Please do not ask questions of the form: "Hey Jack, why are you such a stupid git?" as I think you already know the answer.

JB

John Rosenberg’s very interesting set of responses to my previous posts on colorblindness lead me to offer an additional point about colorblindness and baselines.

In a previous post, I pointed out that one’s sense of what constitutes “equal rights” and what constitutes “special rights” for a group depends on the baseline of expectations. I pointed out that Justice Bradley struck down the Civil Rights Act of 1875 because he thought that antidiscrimination laws made black people “the special favorite of the laws.” I also pointed out that if one takes the common law as the baseline of fairness, antidiscrimination laws do in fact shift power from whites to blacks, and that is why many whites opposed them. The common law rules of property and contract, after all, make no distinction based on race; these rules apply to blacks and whites alike, and in this sense they are colorblind. In order to see the Civil Rights Act of 1964 as fair one has to believe that the common law rules of contract and property, although formally neutral as between blacks and whites, are simply unfair when operating against the background of racial stratification in the United States.

John disagrees and says that I am “simply wrong” about this. He replies:

Neither the majority who passed the Civil Rights Act nor those who today defend its attempt to legislate neutral colorblindness "reject the fairness of the common law rules of property and contract."

With all due respect to John, I just don’t think this can be right. Suppose we got rid of the Civil Rights Act of 1964 and returned to the common law rules. Those rules include the right to refuse to contract with others for any reason, including their race. In at-will employment contracts the common law also gives employers the right to fire an employee at will because of their race. Similarly, under the common law rules one was permitted to rent or sell to refuse to rent or sell real property because of race.

Common law rules regarding inns and some places of public accommodation were somewhat different: traditionally, the innkeeper could not refuse service. Apparently in many southern states that common law rule was different-- it did not apply to restaurants and hotels; instead the restaurant or hotel owner had the right to eject people he did not want to serve using the common law rules of trespass. In any case, even where a place of public accommodation could not refuse service to a willing customer, there was no requirement at common law that the facilities had to be integrated. At common law, one could have separate drinking fountains for whites and blacks, and require blacks to sit at the back of the bus, as long as they were allowed on the bus in the first place.

Now the people who fought for the Civil Rights Act of 1964 wanted to change this state of affairs, in which private employers could refuse to hire people because of their race and could fire at will employees because of their race. They also wanted to desegregate privately owned bus lines and dismantle segregation in other places of public accommodation. In short, they wanted to prevent white businessmen from exercising their common law rights.

Now I take it that John believes that these practices were odious. But they were protected by common law rules of contract and property. People who engaged in this practices were simply doing what the common law allowed them to do. So in what sense can he be claiming that these rules are fair?

Whether John recognizes it or not, the Civil Rights Act of 1964 modified the common law baseline of expectations about fair treatment and replaced it with a new one. Under this new regime you could refuse to serve a person because they were not wearing a shirt or shoes, but you could not refuse to serve them because they were black. You could fire at-will employees or refuse to promote employees because they were too short, or too loud, but not because of their race. From now on, racial motivations were now treated differently from all other motivations. Not surprisingly, this change in baselines worked to the advantage of blacks. Antidiscrimination laws are in derogation of common law notions of freedom, and that is why many conservatives opposed them when they were first proposed, arguing that they gave minorities special rights. The same debate is playing out now with respect to gay rights. I hope that the objection that gay rights are special rights is eventually rejected too, and for much the same reasons.

Congressional power to prohibit discrimination. John makes one other rather technical point that I think is worth commenting on. He argues that, contrary to my view, Congress shouldn't be able to pass civil rights legislation prohibiting purely private discrimination through its powers to enforce the 14th Amendment. The reason is that this would require overturning the 1883 Civil Rights Cases, and would also abolish the state action requirement. (The Fourteenth Amendment says that "no state" shall deny equal protection of the laws.)

I've written on this issue at length, and won't repeat all my arguments here. But I do want to point out three things. First, the state action requirement is analytically separate from the scope of Congress's power to prohibit discrimination. Courts might only be able to reach unconstitutional state action, but Congress might have much broader powers under the Fourteenth Amendment to proscribe and prevent violations of civil rights. Second the state action requirement by its own terms does not apply to Congress's powers to enforce the Citizenship Clause. Third, the 1871 and 1875 Civil Rights Acts, which were drafted and enacted by many of the same people who drafted and passed the Fourteenth Amendment, did reach private discrimination. That is the strongest possible evidence that the Civil Rights Cases of 1883 are inconsistent with original understanding of Congress's powers under the Fourteenth Amendment. (I'm not an originalist, but for those who think that original understanding matters, this is a powerful argument). Moreover, as historians of Reconstruction have pointed out, the result in the Civil Rights Cases appears to reflect not the original understanding but the changed racial politics of the Compromise of 1876, in which Northern whites ended Reconstruction and basically acquiesced to Southern white domination of their black populations. The history shows that the motivations behind limiting Congress's power to pass civil rights laws in the Civil Rights Cases were racist, even though the purported justification was states rights (sound familiar?). The Supreme Court has ratified and extended the result of the Civil Rights Cases in United States v. Morrison. But I don't think that case was correctly decided either, and I think it's a disgrace that it relied on the Civil Rights Cases to limit Congressional power to pass new civil rights legislation.

JB

This is the second of two posts on the history of the concept of colorblindness. In the first installment, I explained why colorblindness is inconsistent with the original understandings behind the Fourteenth Amendment. Although this is not a problem for me, it is a problem for originalists who support colorblindness. In today’s post, I discuss how the idea of a colorblind Constitution arose, and explain how it was actually premised on the continuing social inequality of the races.

As I noted previously, most of the Framers of the Fourteenth Amendment believed in a distinction between civil, political and social equality. Civil equality included the the right to make contracts, own property, sue and be sued, give evidence in courts, enjoy freedom of speech and religious liberty. Political equality included the right to vote, hold office, and serve on juries. Social equality meant equal status in society, and concerned social comingling and intermarriage. The Fourteenth Amendment was understood to guarantee blacks civil, but not political or social equality. It was not a guarantee of colorblindness. When people said that the Fourteenth Amendment made all races equal before the law, it meant only that they were civilly equally, not politically or socially. They were equal in their “civil rights,” that is, their right to make contracts and hold property, sue and be sued in court, but not in any other respect.

Furthermore by “civil rights” people in the nineteenth century did not mean that *private* parties could not discriminate on the basis of race, (that is a twentieth century conception of “civil rights”) but rather that the *state* could not limit the power of blacks to contract or hold property. When we read nineteenth century political and legal arguments we have to keep this special meaning of “civil rights” and “equal before the law” in mind.

II. Justice Harlan and the Origins of the “Colorblind Constitution.”

In fact, the rhetoric of colorblindness does not emerge in Supreme Court doctrines until Justice Harlan’s famous dissent in Plessy v. Ferguson. Plessy upheld a Louisiana law that required segregated railway carriages. The court conceded that the Fourteenth Amendment made blacks and whites equal before the law-- for that is what civil equality meant. The right to sit next to whites, however, was a matter of social equality, and was not guaranteed by the Fourteenth Amendment. Similarly, a decade before Plessy, in Pace v. Alabama, the Supreme Court upheld a ban on interracial marriage, arguing that blacks and whites were equally forbidden to marry each other. The point was that marriage, like social intermingling, was an issue of social, not political or civil equality. In this respect neither Pace v. Alabama nor Plessy v. Ferguson are inconsistent with the original understanding of the Fourteenth Amendment.

Justice Harlan’s dissent in Plessy has been championed by contemporary defenders of colorblindness, often without fully realizing what Harlan was saying. Justice Harlan’s objection to the majority in Plessy was not that the Fourteenth Amendment guaranteed social equality. He had, after all, joined in the opinion in Pace v. Alabama. Rather, he argued that the Louisiana law violated aspects of civil equality. Social equality was irrelevant. When blacks sat next to whites, this did not make them social equals, and they were unlikely ever to be so. All that colorblindness meant to Harlan was civil equality, which to him was the same thing as “equality before the law.” So civil equality and colorblindness were completely consistent with racism in social organization. Indeed, before Harlan makes his famous statement about colorblindness, he has this to say:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

Only after Harlan establishes his belief in white social supremacy and black social inferiority does he make his famous claim that the Constitution is colorblind. And in light of the distinction between civil, political, and social equality, this famous passage has a very different meaning to it than most people think it does:

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

Remember that for Harlan being equal “in the eyes of the law” means only civil equality, not social equality. Blacks will be social inferiors for all time, and that’s perfectly fine, and is even to be expected, as long as they have equal rights to make contracts, sue and be sued, and so on. (Remember also that the equal right to make contracts does *not* mean that private persons may not discriminate on the basis of race in making contracts. It means only that the state may not put restrictions on blacks’ rights to contract that it does not also put on contracting by whites).

But what about the mingling of races in railway carriages? Isn’t that an attempt to enforce social equality? Harlan has a ready answer, which, once again, puts the notion of colorblindness in a very different light:

social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting.

That is, just because a black person gets to vote, or serve on a jury, or sit next to a white person in a railway carriage doesn’t make them social equals of whites. Colorblindness, Harlan insists, is perfectly consistent with blacks being social inferiors forever.

And to clinch the argument, Harlan notes that the Chinese, who in his view rank even lower than blacks, can sit in railway carriages with whites:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.

What do we learn from all this? When the idea of colorblindness was first introduced into American constitutional discourse by Justice Harlan, it did not represent a full grant of equality to blacks. Rather, it was a grant of basic economic rights to blacks while preserving a sphere of private choice or discrimination in which blacks would remain socially inferior to whites. Colorblindness did not permit the state to deny blacks the right to earn a living or own property on terms different from whites, but neither did it permit interference in the private sphere of private association. Whatever social stratification resulted from purely private choices was not the law’s business. Regardless of what happened in the private sphere, black and white were still "equal before the law."

This vision of colorblindess was central to conservative opposition to the Civil Right Act of 1964. Both Strom Thurmond and Ronald Reagan opposed the Civil Rights Act of 1964 on the grounds that it interfered with private association, private property, and private contract. Both Thurmond and Reagan could claim that they believed in colorblindness in Harlan’s terms, for in many aspects of Jim Crow the state was not denying blacks the right to contract or hold property. Rather, private citizens were refusing blacks the right to sit at lunch counters or ride on privately owned busses.

The idea of colorblindness was reformulated in light of the victory of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Conservatives who previously opposed it now accepted it, and their ideological descendents reinterpreted colorblindness as now applying to (some) private action as well as public. Many conservatives assume that the Civil Rights Movement was just a call for colorblindness, but this is incorrect. Colorblindness is only one theme in the rhetoric of the Civil Rights Movement, and indeed, it may not have been the dominant one. Martin Luther King's famous “I Have a Dream” speech is remembered today for its line about colorblindness, but that was because it was most palatable to White America. What King actually said in that speech was this:

There are those who are asking the devotees of civil rights, "When will you be satisfied?" we can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

In fact, the Civil Rights Movement had a much thicker, more substantive view of equality than the formal notion of equality generally associated with contemporary colorblindness rhetoric, which usually finds nothing constitutionally troubling about wide disparities in effects on blacks and whites unless there is overt racial classification or proof of deliberate intent to harm. In this way, colorblindness can actually be employed to preserve the racial status quo, and that is not what King was about. The Civil Rights Movement was about practical freedom, the right to adequate jobs and housing, among other things, not simply about formal equality between the races. We must remember that the full title of the March on Washington was the March on Washington for Jobs and Freedom. (Note which one comes first in the title).

It is no accident that the rhetoric of colorblindness was selected from the many strands of argument that the Civil Rights Movement made and was championed by whites who were deeply concerned about how far the movement might go. When conservatives insist on colorblindness today, they are picking out that portion of the rhetoric of the Civil Rights Movement that is most hospitable to their ideology, but their views are not identical to those of the Civil Rights Movement.

The notion of colorblindness championed by conservatives today insists that governments (and some private employers and landlords) may not make decisions on the basis of race. But that requirement plays out against the background of continuing socioeconomic disparities between blacks and whites. Nevertheless, according to the modern notion of colorblindness, the continued socioeconomc disparity between blacks and whites is completely consistent with blacks and whites being equal before the law, because such disparities are the result of a private sphere of individual choice and social interaction. By contrast, attempting to remedy the socioeconomic disadvantage of minorities through race conscious remedies is impermissible “social engineering,” which disturbs the natural outcome of impersonal market forces that reflect private choices.

Thus, if we examine how the rhetoric of colorblindness has actually been invoked by whites from Justice Harlan forward, we will see that it always has carried with it the acceptance of social inequalities between blacks and whites that are explained and justified as the result of a private sphere of social interaction. The boundaries of public and private shift over time, but the notion that blacks and whites are not socially equal and cannot be made so by law remains a constant theme. Put another way, those forms of social stratification that a colorblind system of law does not reach are by definition not law’s fault, for by definition a colorblind law treats everyone as an individual, and therefore as equal before the law. That statement that could have been made by Justice Harlan in 1896, or by advocates of colorblindness today.

JB

Tony Mauro has an article on Roe v. Wade that discusses the January 31st conference I am running at Yale Law School, and has comments from several law professors (including yours truly) on Roe after 30 years. In keeping with my earlier post on the subject, I pointed out that you cannot understand the survival of Roe without recognizing how it interacts with the party system. Roe stabilizes the political system and existing party coalltions. Get rid of it, and you throw all the cards up into the air, or to vary the metaphor, the house comes crashing down. As Clint Eastwood might say, "Do ya feel lucky today, punk?"

JB

This is the first of two posts on the history of the concept of colorblindness in American Constitutional law. In the first installment, I discuss the original understandings behind the Fourteenth Amendment, and explain why the concept of colorblindness actually conflicts with the original understanding. In the second installment, I will discuss how the idea of a colorblind Constitution arose, and explain how it was premised on the continuing social inequality of the races.

Many people in the affirmative action debate assume that the Fourteenth Amendment and its guarantee of equal protection of the laws were originally intended to enforce a colorblind Constitution. This is incorrect.

The original understanding of the Fourteenth Amendment specifically rejected colorblindness, and the same Congress that adopted the Fourteenth Amendment also adopted a number of race conscious remedial measures.

This fact is an embarrassment both to the theory of colorblindness and to the theory of original understanding. It is a particular embarrassment to those Justices on the Supreme Court-- like Justices Scalia and Thomas-- who insist that affirmative action is unconstitutional and who simultaneously argue that the Constitution must be interpreted according to the original understanding of the Framers.

My own view is that appeals to original understanding are only one of many permissible modalities of constitutional interpretation, including text, history, precedent, structure, ethos, and consequences. Arguments from original understanding have no greater legitimacy than other forms of constitutional argument, and in certain areas of constitutional law– like civil rights, civil liberties and the scope of national power-- originalist arguments are often particularly unconvincing and even perverse.

Nevertheless, there are many people who claim that arguments from original meaning have greater legitimacy than other forms of argument, or (like Judge Robert Bork) even go so far as to say that they must be the touchstone of all legitimate constitutional interpretation. Ironically, many people in this camp also believe that the Constitution requires colorblindness. The purpose of the following post is to suggest that one cannot hold both views simultaneously.

Indeed, my experience has been that people tend to invoke originalist arguments only when it produces constitutional results they like and they tend not to mention originalist arguments when they prove embarrassing. If I have the time, I hope to do a series on originalism in constitutional argument, but for the moment I want to focus only on the issue of colorblindness and original understanding.

I. The original understanding behind the Fourteenth Amendment.

The view of most of the framers of the Fourteenth Amendment was that it guaranteed only civil equality, but not political or social equality. Civil equality referred to the right to make contracts, own property, sue and be sued, give evidence in courts, enjoy freedom of speech and religious liberty. Political equality meant the right to vote, hold office, and serve on juries. Social equality was the most amorphous term of all. Generally it meant that one was of the same social rank in society. This was demonstrated, for example, through social comingling or marriage between families. The classic question of social equality was whether blacks and whites had the right to intermarry.

The division of citizenship rights into civil, political and social is the tripartite theory of citizenship, and it was the view that dominated the debates over the Fourteenth Amendment. Although the most radical elements of the Republican Party wanted full equality for blacks, most of the Framers of the Fourteenth Amendment were not willing to go that far. In particular, they were unwilling to give blacks the right to vote and they most certainly did not want to prohibit bans on miscegenation. The best evidence that the Fourteenth Amendment was not intended to be colorblind is the fact that it was necessary to pass a Fifteenth Amendment in 1870 specifically granting blacks the right to vote. (Indeed, section 2 of the Fourteenth Amendment assumed that some states might deny blacks the vote, and required that they would lose a proportionate share of House representation as a consequence.).

In fact, the Framers of the Fourteenth Amendment chose to speak of "privileges and immunities" and "equal protection" rather than colorblindness because they were worried that a colorblindness rule would give blacks the vote: As Andrew Kull writes in his book The Colorblind Constitution:"[T]he evidence shows that an open-ended promise of equality was added to the Constitution because to its moderate proponents it meant less, not more, than the rule of nondiscrimination that was the rejected radical alternative."

Thus the original understanding of the Fourteenth Amendment offered blacks considerably less than a colorblind notion of equality. But the original understanding also rejected colorblindness in a different way. The same Congress that passed the Fourteenth Amendment also passed a number of bills that gave relief money and educational benefits to “colored persons.” That is, the Reconstruction Congress that passed the Fourteenth Amendment enaged in a considerable amount of what we would today label race conscious affirmative action. One might defend the legislation on the grounds that these benefits were purely remedial and directed only at those who had suffered from slavery. But in fact these bills made no distinction between free blacks and former slaves.

The Framers of the Fourteenth Amendment offered welfare relief and special educational benefits to indigent blacks whether or not they were the victims of discrimination, or, at the very least, without requiring any showing of previous discrimination. Moreover, they did not abide by any of the restrictions that the modern Supreme Court has set down in affirmative action cases: In almost every case the body (Congress) that created the race-conscious program was not the governmental unit that previously discriminated against the recipients of the program. Nor did Congress make detailed findings of its previous discriminatory acts against blacks, as the current Court requires. All of this suggests that the current Court's rejection of programs that remedy general societal discrimination is unsupported by the original understanding of the Fourteenth Amendment.

One possible way of distinguishing the acts of Congress from the meaning of the Fourteenth Amendment is that the Fourteenth Amendment’s guarantee of equal protection did not apply to the National Government. However, if you buy that line of argument, it follows that the Adarand case, which restricts federal affirmative action plans, is inconsistent with the original understanding. And that should be quite embarrassing for Justices Scalia and Thomas, who supported the result in Adarand and who have repeatedly insisted in other areas of constitutional interpretation that they are bound by the original understandings of the Framers. The fact that neither Scalia or Thomas has ever confronted the history of the Framers of the Fourteenth Amendment in any of their opinions on race and racial equality is, to say the least, interesting, and tends to undermine confidence in the principled nature of their attachment to the concept of originalism.