Friday, March 21, 2003


Antonin Scalia Declares Affirmative Action Constitutional, Part III

Stuart Buck responds to my previous post by suggesting how Scalia might strike down the Michigan affirmative action plan consistent with his adherence to a philosophy of original intention. Stuart makes some fine points, and I would add only the following comments:

1. Stuart assumes that my evidence of race conscious remedial relief by the Reconstruction Era Congress that framed the Fourteenth Amendment is the Freedman's Bureau statutes. I'm actually thinking of the various acts that my colleague Jed Rubenfeld discusses in his 1997 piece on Affirmative Action in Yale L.J. They applied not only to recently freed blacks who had been enslaved, but also to free blacks who had been free for many generations.

The freedman's bureau acts, which Eric Schnapper discusses, are some evidence, but they also present many interpretive problems. Rubenfeld's argument is much cleaner.

2. Stuart doesn't adequately address the basic problem for Scalia: squaring his interpretive theory with the whole set of proof requirements the Court has added since Bakke to enforce strict scruinty. As I mentioned in my previous post on the subject, there's no evidence that the Reconstruction Era Congress thought they were required to make the sorts of findings of fact that the Court now requires. Nor in those cases, did the body that engaged in the discrimination have to be the same body that engaged in race conscious relief. Rather, Congress appears to be remedying general societal discrimination, which existing law does not permit. Quite apart from whether diversity would be a permissible goal to the Reconstruction Congress, remedying past societal discrimination clearly would be, and that would also be inconsistent with existing doctrine.

3. In conjunction with this last point, it's important to recognize that the statutes that Rubenfeld identifies can't be distinguished on the grounds that they remedied discrimination by identified victims of discrimination. They applied to free blacks without any proof of discrimination against them. That presumption is not permitted by Croson or Adarand.

4. All of this is covered in my conlaw casebook, Brest, Levinson, Balkin and Amar, Processes of Constitutional Decisionmaking (4th ed. 2000) and you can look it up for more details.

5. The basic point I am trying to make is not, as Stuart suggests, that Scalia is necessarily engaged in logical contradiction. There are certainly ways to strike down affirmative action laws even given the congressional history, and I talk about them in the casebook. Rather, my complaint is that Scalia is being hypocritical, because he has never, to my knowledge, discussed the historical issues, even though they are easy to learn about, and even though he states, to any one who will listen, that original understanding is the touchstone of constitutional interpretation. My problem with Scalia is that he speaks with the arrogant assurance of one completely convinced that he is in the right when he has not done the necessary research to justify his conclusions about the constitutionality of affirmative action.

Judging from his public writings on the subject, my first year con law students appear to know more about the original understanding of the Fourteenth Amendment than Antonin Scalia does. That, I think, is a disgrace for someone who claims to have the interpretive philosophy that he purports to have, and who has the power to shape the U.S. Constitution that he possesses.

6. Finally, the point of my previous post was to chide Scalia for a more general failing: In his opinions, he tends to invoke original intention as a rhetorical ploy when it suits his agenda, and when it does not, he simply fails to say anything at all about history or original understandings. And all the while he insists that he has no authority to do anything but follow the original understandings of the text of the Constitution. That may or may not be a logical contradiction. I do think it is hypocritical.

Wednesday, March 19, 2003


Textualism and Original Understanding, or Antonin Scalia Declares Affirmative Action Constitutional, Part II

Stuart Buck responds to my previous post on Justice Scalia by pointing out that Scalia is a textualist, not an originalist, so that he might easily strike down affirmative action laws as inconsistent with the Fourteenth Amendment.

Stuart is half right. Scalia is an adherent of original meaning, not original intention. For him, the question is about text, not secret intentions; about words, not individual or group psychology. For him, the test is what the words the Framers produced would fairly have been understood to mean at the time of their adoption. It is important to understand (and I think Stuart glosses over this point) that Scalia is not referring to what the same words fairly mean to us today, for otherwise, Scalia would be commited to a Living Constitution, which he despises.

The original understanding of the constitutional text of the Fourteenth Amendment is exactly what my previous post on colorblindness was concerned with: What did the words of the Fourteenth Amendment mean at the time they were adopted? What was their generally accepted public meaning? The answer is not difficult to discover.

It is quite clear that the words "privileges and immunities" and "equal protection" were used precisely to avoid a general rule against racial classifications. The framers did not use the word "race" in the Fourteenth Amendment (as they did in the Fifteenth, when they specifically wanted to give black males, but not women, the right to vote). They refused to adopt a rule of racial colorblindness even though such language was repeatedly pressed upon them. Nor did they create language that forbade all racial classifications. That is not the way that people in 1868 thought about the problem. Our focus on suspect classifications is anachronistic. They were concerned with the rights of citizenship-- what privileges and immunities all citizens had by virtue of being citizens. Their key idea was that all citizens should be equal before the law; that is, that they should enjoy civil equality, not political or social equality. That is what the words "privileges or immunities," and "equal protection of the laws" were fairly understood to mean in 1868. One need not look to any secret intentions to discover this. It is clear from the debates over the Fourteenth Amendment themselves, as well as from general intellectual histories of the period.

Indeed, the privileges or immunities clause, and not the equal protection clause, was understood to do most of the work in protecting civil equality. The equal protection clause was at best a minor addition emphasizing that all persons were equal before the law, which was another way of saying that all citizens enjoyed civil equality and that all other persons (remember the EP Clause refers to persons, not citizens) enjoyed the equality of rights before the law that non-citizens enjoyed. (Nobody thought that the words "equal protection" made citizens and non-citizens equal in all respects).

So we return to the question that a textualist (or more correctly, an original meaning textualist) like Scalia would ask: Were the words of the Fourteenth Amendment fairly understood at the time of their adoption to prohibit democratically elected legislatures from race conscious remedial relief? The answer is quite clearly no. The best evidence of this understanding is what the Congress that passed the Fourteenth Amendment actually did, not what their secret intentions were. They passed a whole slew of relief acts for "colored" people, both former slaves and free blacks. Many of those concerned special educational benefits for blacks.

At best, one might make a distinction between what Congress might do and what the states might do. That would mean that Adarand is wrongly decided, and the federal government today could engage in race conscious affirmative action. However, if one believes that the privileges or immunities of national citizenship bind Congress as well as the states (otherwise, why would they be privileges or immunities of *national* citizenship?) then the same rules would apply to the states as to the federal government. That means Croson is also wrongly decided.

Finally, one might try to get around this fairly convincing evidence of the public meaning of the Amendment's words by insisting that what Congress did was actually consistent with the distinction between civil, political and social equality. What Congress did was not a matter of civil equality, but a matter of social equality-- giving special welfare and educational benefts to blacks involve issues of social, not civil equality. I myself don't buy this interpretation, but let's accept it for the moment and consider its logical consequences. If the argument is correct, why doesn't the civil/political/social distinction apply equally in our own time? After all, if one is concerned with what the words of the Fourteenth Amendment were fairly understood to mean at the time they were adopted, the words "privileges and immunities" and "equal protection" *meant* civil equality, not political or social. They were meant, and were generally understood to mean, that civil, and not political or social equality was guaranteed by the Amendment. They should mean today what they meant then, at least to someone like Scalia. Under that reading, then what Michigan is doing is also not a matter of civil equality, and is therefore untouched by the Fourteenth Amendment's prohibitions.

Again, I await Scalia's opinion in the Michigan case with great interest.

Tuesday, March 18, 2003


Antonin Scalia Declares Affirmative Action Constitutional

Well, at least that seems to follow from this speech reported by the Associated Press (via Howard Bashman):

Supreme Court Justice Antonin Scalia on Monday said he can only interpret the Constitution as it was written and not factor in the time it was written when ruling on issues such as affirmative action.

Scalia said during a speech at the University of Toledo he can't dismiss the Constitution "and say it's the work of old, dead white males."

"The only power I have as a federal judge, I derive through that of the Constitution," he said.

As I've pointed out in a previous post, the Congress that framed the 14th Amendment did not believe in the colorblindness principle, and, moreover, it engaged in a host of race conscious remedial measures that would not pass muster under the Court's existing strict scrutiny doctrines. If I read Scalia right, I'm afraid all these doctrines will have to go out the window, including the decisions in Croson and Adarand in which Scalia himself joined.

After all, Scalia wouldn't want to be accused of imposing his own conservative predelictions on the country.

If the Framers believed that democratically elected legislatures could engage in race conscious remedial legislation, who is the Supreme Court to strike such legislation down? If the Framers thought race conscious remedial relief was constitutional, then it doesn't matter whether judges think it's bad social policy. As Scalia put it in response to a question following the speech, "As long as we're operating under [the Constitution], it is the only source of my authority."

After reading Scalia's remarks, I breathed a sigh of relief. It's good to know that at least one Justice is a man of his word, principled and devoted to the Rule of Law and the Framers' original understandings above all else.

I await his opinion in the Michigan affirmative action case.


A Great Gamble, By an Untrustworthy Man

My op-ed on Iraq, of which the previous post is the first draft, appears in today's Hartford Courant.

Several readers have asked for a bill of particulars justifying my conclusions about the election.

Here's what happened in 2000.

Before the election, officials in the Florida Republican Party violated the Voting Rights Act of 1965 by purging African-American voters from the authorized voting lists, reducing the number of votes for Gore. This purging of the voting rolls was completely overshadowed by the controversies over butterfly ballot and chads, and the greater percentage of spoiled ballots by minority voters. The purging of voter rolls to exclude African-Americans, however, was the most serious violation of law and went almost completely unreported by the American press.

After the election, the U.S. Supreme Court stayed the recounts in Florida on December 9th just as Gore was about to push ahead. (Bush I) The reasons given for the stay were completely at odds with the law governing when injunctions should be issued.

The Supreme Court then handed down a decision on December 12th (Bush II) that argued that the manual recounts violated Equal Protection and that the recounts should cease permanently. The Court's interpretation of the EP Clause was unprecedented, and was supported by Justices who are opposed to novel extension of Equal Protection claims. Perhaps more suspicious, the Court argued that its interpretation of the Equal Protection Clause, announced for the first time in this case, applied only to the facts of this particular case and to no others.

Finally, the Court offered a remedy wholly inconsistent with the underlying claimed violation of Equal Protection. If the EP Clause were violated, the proper remedy would not have been to stop all recounts (for that might have violated EP as well) but to recount under a method consistent with Equal Protection.

There is no doubt that if the parties had been reversed, there would not have been five votes either for the initial stay or for the EP argument and final remedy. Indeed, there might not have been a single vote for what the Court did.

These issues are discussed at length in my academic writings. A discussion of the violations of the Federal Voting Rights Act appears here, in an article that was published in the Virginia Law Review, and a discussion of the role of the Supreme Court appears here in an article that was published in the Yale Law Journal.

Monday, March 17, 2003


The Die is Cast

By the time most of you read this, we may be at war.

Many Americans will now rally around the President. All Americans will rally around and support our troops in the field. All of them hope, as I do, that the war will be short and with a minimum loss of life for both sides.

It does not matter what our position was before. Once war has started, we want things to go as well as they possibly can. We want our generals to do what it takes to win.

But the fact that we support our troops once war has begun does not mean that we would have chosen this war in the first place. Rather, the man who sits in the Oval Office has placed our country in this precarious position. Our troops are mobilized and in harm’s way. They must fight to survive.

This is not a war of necessity. It is a war of choice. A choice made by George W. Bush and his advisers.

All this would be bearable if a President clearly and legitimately elected by We the People had taken us into war. But many Americans, myself included, do not believe that Bush legitimately won the election. We believe, and continue to believe, that the election was stolen.

To many Americans, it is especially galling that we are being pushed into an unnecessary war by a man who did not legitimately attain the vast power he now enjoys. It is one thing to democratically elect a President who makes bad decisions. It is quite another if the President who leads us into danger was forced on the country through trickery and deceit.

Make no mistake: A man who took power illegally is now taking us into war. And if he miscalculates, he may well bring blood and destruction on countless numbers of people.

The election of 2000 seems so long ago for many of us. But the consequences of that struggle haunt everything that is happening today.

The President’s political legitimacy was established not by the election of 2000, but by the events of 9-11. Our country was attacked, and we needed to put aside previous disputes in order to respond to that attack. George W. Bush was, quite literally, the only President we had.

Moreover, no matter who became President, that person would have invaded Afghanistan and made war on the Taliban in response to 9-11.

But at that point important differences began to emerge. It began to matter greatly who held power.

It is hardly clear that President Gore would have made the centerpiece of his Administration a war on Iraq, and that he would have engaged in blunderbuss diplomacy that would fracture alliances of fifty years’ standing, and squander all the good will America enjoyed in the wake of the terrorist attacks.

Nor is it clear that Gore would have hatched such a grand scheme against Iraq while disregarding the mounting threat simmering in North Korea.

Every day, the consequences of the disputed election of 2000 become clearer and clearer, and that clarity is not to the advantage of the man who now wields power over us and over the whole world.

For those Americans who think that the election was illegally concluded, the path our country is traveling is deeply troubling. For we know that we would not be moving in this dark and dangerous direction but for a constitutional coup, an unlawful accession to power. We now see, all too clearly, that the power of the Presidency, obtained dishonestly and unconstitutionally two years ago, has not brought us peace, but only more struggle, more danger, more strife.

The constitutional coup of 2000 has led to a great gamble by a man we do not trust, a gamble that threatens ever more wars, ever more death and destruction.

If war comes, I want our troops to win. I will pray that our generals are discerning, that their strategies are sound, and that their victory is speedy.

But I have no confidence in the man who sent them into war. He knows only how to seize power, not how to use it wisely.

Alea jacta est. The die has been cast by a would-be 21st-century Caesar.

Let us hope that we do not end up paying for his arrogance.