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.