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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts "History" and History in Students for Fair Admissions
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Friday, June 30, 2023
"History" and History in Students for Fair Admissions
Mark Graber
Justice Clarence Thomas’s
concurring opinion in Students for Fair Admissions, Inc. v. President and Fellows
of Harvard College (2023) (SFFA) demonstrates why originalism as
practiced is a vehicle for judges to import their policy preferences into constitutional
law rather than a constraint on constitutional decision making. Thomas begins with an exaggerated account
of the conventional, but mistaken wisdom that the point of the Fourteenth Amendment
was to provide constitutional foundations for the Civil Rights Act of
1866. He blithely dismisses the
consensus view among nineteenth century legal historians that Republicans were
color-conscious in favor of a colorblind account of Reconstruction that has gained no traction among professional historians. Thomas then rummages through Reconstruction
history baldly declaring Republican assertions on removing discriminations
against persons of color as demonstrating commitments to colorblindness and the many
Republican assertions on laws benefitting persons of color as exceptions to this more general principle. By this measure, we might declare that the Oakland Athletics are the best team in baseball, point to the twenty games they have won while treating their sixty losses as exceptional. If this is
objective history, we should prefer judges who make no pretense of writing
their politics into law without distorting the history we teach our students. The opinions in SFFA
uniformly adopt the conventional, but mistaken view that the point of the
Fourteenth Amendment was to provide constitutional foundations for the Civil
Rights Act of 1866. As I demonstrate in Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (shipping next week!), the point of the Fourteenth Amendment was
to ensure loyal persons controlled the national government and the governments
of former confederate states. Proponents
of free labor and racial equality sought constitutional reform because the
unamended constitution provided former confederate states with thirty
extra seats in the House of Representatives and thirty extra votes in the
Electoral College for former slaves denied the ballot. This representational boon would enable a coalition
of former slaveholders and northern Democrats to establish the control of the
national government necessary to repeal all civil rights acts and make the
Thirteenth Amendment a nullity. Although
Thomas claims without citation that “many” proponents of racial equality had
doubts about the constitutionality of Section 1 of the Civil Rights Act of 1866,
Representative John Bingham of Ohio was the only person who voted for the
Fourteenth Amendment who expressed these doubts on the floor of Congress. Many Republicans expressed doubts about a
rejected version of Section 1, but there appears to be only one other Representative
who supported the Fourteenth Amendment and had constitutional doubts about the final
first paragraph of the Civil Rights Act. Had Thomas relied
on mistaken conventional wisdom among legal historians throughout his opinion,
that would have been a feature rather than a bug. Judges are not professional historians. They are not supposed to adjudicate disputes among historians (or accept my not yet published revisionist work as authoritative, even though I and two other people think it is). Originalism constrains judges only when
justices rely on conventional wisdom among historians. When justices deviate from that conventional
wisdom, they inevitably deviate in ways that reflect their political
priors. Thomas, in particular, abandons
conventional wisdom that supports progressive outcomes. His SFFA opinion is a particularly
gruesome example. Thomas exhibits
his disdain for history when he observes “it
appears increasingly in vogue to embrace an “antisubordination” view of the
Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not
help, blacks.” This is the view of most
historians and was ably articulated by an amicus brief by legal historians
filed in SFFA. They point out that constitutional law in the 1860s did not adopt a banned category understanding of equality. Rather, government could make distinctions among different groups of citizens only when those distinctions were based on real distinctions between people (i.e., gender) and served the public interest. Republicans acted on this principle when providing special benefits to persons of color, because only persons of color had been enslaved and victims of the slave system. An objective
originalist would rely on this history, which Justice Sonia Sotomayor convincingly
discusses in her dissent. Thomas calls historians "faddish" and cites one article published in a student edited law review that takes his position. The main alternate to this conventional wisdom does not help
Thomas. I could not sign the historian’s
brief because I believe that for most framers other than John Bingham, the
relevant constitutional provision was the Thirteenth Amendment. Reconstruction Republicans understood Section
2 of the Thirteenth Amendment as empowering Congress to eradicate slavery and
the slave system by passing legislation that enabled African-Americans to
become full citizens of the United States.
Given that only African-Americans had been enslaved and that a slave
system involved substantial discrimination against free persons of color,
Congress was empowered under the Thirteenth Amendment to pass legislation that
benefitted only African-Americans who had been enslaved and persons of color
who had been victims of the slave system. The difference between those
historians who are Thirteenth Amendment revisions and the historians brief in SFFA,
however, is limited to what amendment Republicans in 1866 thought supported
remedial color-conscious legislation. The leading
contemporary legal historians who have studied Reconstruction agree that the Republicans who
framed the post-Civil War Amendments were color-conscious as well as
colorblind. Thomas rejects
conventional history by taking the same slapdash approach to the evidence as
characterizes his majority opinion in New York State Rifle & Pistol
Association v. Bruen (2022). Bruen
acknowledged many instances of state and territorial regulations banning
carrying weapons in public, but then pronounced them inconsistent with a
general rule, derived from no more sources, that persons had a right to carry
weapons in public. SFFA acknowledges
that the Congress that framed the Fourteenth Amendment passed various laws
providing special benefits to persons of color, but then concludes that these
were exceptions to the rule of colorblindness.
Thomas cannot find a single instance in which a sponsor of the
Fourteenth Amendment explicitly rejected a measure providing special benefits
for persons of color on the ground that such measures were inconsistent with
constitutional commitments to equality.
The practice was simple. When
Republicans prohibiting discriminations against persons
of color, they spoke the language of colorblindness. When they were considering how to help
persons of color become full citizens of the United States, they spoke the
language of color consciousness. General laws should be colorblind, but laws that have the specific purpose of transitioning former disadvantaged groups into full citizenship may acknowledge the distinctive characteristics of that group. This is
a basic confusion that historians avoid, but apparently not justices who confuse a
Supreme Court appointment with the conferral of a PhD. Value-voting on apex courts is inevitable. History best serves as a data point than a command. Perhaps the color-conscious programs of Reconstruction outlived their usefulness a century ago. Perhaps colorblindness is the best road to full citizenship at present. These are questions for the present to answer. But we are unlikely to achieve the best answers by conjuring up an imaginary past that suits our priors and then declaring that past authoritative.
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |