Race preferences, original meaning, and precedent
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Jun 4 10:20:44 PDT 2007
I agree that Justices Thomas and Scalia can be faulted for not explaining how their view of race preferences is consistent with the original meaning of the Constitution. But my understanding is that there is an account of that in the literature (though I don't recall the exact source): The Fourteenth Amendment was originally understood as barring race discrimination in "civil rights," such as the right to own property, the right to sue and be sued, the right to be treated equally by the criminal law, and the like.
It was not understood as barring race discrimination in political rights (that's why the Fifteenth Amendment was needed) but not government spending, such as government employment, government contracting, or general aid programs. The Freedmen's Bureau Bill was thus constitutional not because remedial preferences for blacks were permitted where preferences for whites were not; rather, it was constitutional because it had to do with government benefits, not civil rights. The Fourteenth Amendment thus contained two components: (1) a bar on race discrimination (2) limited to civil rights.
Since 1868, of course, the second bar has been solidly rejected by very well-entrenched precedent (even outside the race context, see, e.g., the Fourteenth Amendment voting/redistricting cases). Even Justice Thomas isn't willing to reverse all precedent, though he's more willing to reverse precedents than his colleagues are, so the extension of the Fourteenth Amendment to contracting, employment, and the like is there and not going to go away. But even if the original meaning as to (2) is rejected, we should keep the original meaning as much as possible, which is to say apply the no race discrimination norm throughout the Fourteenth Amendment's scope (even if it's now a broader scope than before).
Again, this doesn't acquit Thomas of the charge of not adequately explaining his position; but if this is his view, then it wouldn't be the case that "you can't get [to Thomas's views on race preferences] from Thomas's starting position [generally requiring reliance on original meaning]." Am I mistaken on that? Or, more broadly, has the rough argument I outlined above been definitively rebutted? (My recollection is that Schnapper's piece, for instance, didn't squarely confront it, but maybe I'm mistaken.) Thanks,
Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Rosenthal, Lawrence
> Sent: Monday, June 04, 2007 10:06 AM
> To: Mitch Berman; Sanford Levinson; DavidEBernstein at aol.com;
> curtism at bellsouth.net; s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
> Subject: RE: "Explaining" justices
>
> The Fourteenth Amendment, unlike the Thirteenth Amendment and
> the Civil Rights Act of 1866, was written in race-neutral
> terms. As Earl Maltz and others have demonstrated, this was
> a quite conscious decision made during the drafting process.
> Thus, I see no contradiction between Justice Thomas's
> position on affirmative action and the text or original
> meaning of the Fourteenth Amendment. It is a perfectly
> plausible reading of history to conclude, as many scholars on
> the left have done, that whatever constitutional power
> Congress has to authorize race-conscious action resides in
> the Thirteenth and not the Fourteenth Amendment.
>
> FWIW, I do not intend to "praise" Justice Thomas. I have
> many qualms about his jurisprudence. But I find him to be a
> remarkably principled and candid justice who has deserves
> better than he has received at the hands of the academy. I
> also believe that the charge that he is hostile to the
> interests of minorites is particularly unfair. I find him to
> be extraordinarily sympathetic to the interests of the the
> African-American lower class -- a group that, for the most
> part, is particularly poorly understood by those in the legal
> academy.
>
> Larry Rosenthal
> Chapman University School of Law
>
>
> ________________________________
>
> From: Mitch Berman [mailto:MBerman at law.utexas.edu]
> Sent: Mon 6/4/2007 9:22 AM
> To: Rosenthal, Lawrence; Sanford Levinson;
> DavidEBernstein at aol.com; curtism at bellsouth.net;
> s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
> Subject: RE: "Explaining" justices
>
>
>
> Though I do not really expect to change anybody's mind on
> this issue, it requires greater self-restraint than I possess
> to allow Professor Rosenthal's praise for Justice Thomas's
> affirmative actions opinions to pass without comment. Surely
> Professor Rosenthal is correct that those opinions are clear
> enough. But they are not, in my opinion, "candid." Indeed,
> "grotesque" strikes me as closer to the mark.
>
> To start, as innumerable others have charged time and again,
> Thomas's insistence that the Constitution simply forbids all
> racial classifications (or plainly subjects them all to
> strict scrutiny) is inconsistent with his embrace of
> originalism. To be clear, I do not deny that there are
> reasonable arguments of policy and principle against
> race-based affirmative action programs. I'm even prepared to
> grant that there exist plausible arguments that race-based
> affirmative action is unconstitutional. But you can't get
> there from Thomas's starting position (nor, of course, from
> Justice Scalia's). Moreover, neither Thomas nor Scalia has
> even bothered to offer a serious account of how their
> positions on affirmative action can be squared with their
> interpretive methodologies. (At least I'm not aware of any
> such explanations; if I'm mistaken, I'd be grateful for the
> correction.) For my money, this is intellectual dishonesty,
> pure and simple.
>
> Second, and notwithstanding my granting that the moral case
> for affirmative action is not unproblematic, Thomas's claim
> of a "moral equivalence" between affirmative action and Jim
> Crow defies belief. I am aware of no plausible moral theory
> according to which this would be true.
>
> So those who think Thomas's positions cry out for explanation
> need not be guilty of crass or naïve essentialism. The
> question they ask is not "how could a black man possibly
> reach results different from those favored by a majority of
> members of his race?" The question (or one big question) is
> what drives Thomas so forcefully toward those results as to
> blind him to the intellectual and moral indefensibility of
> his claims? (Again, I am speaking of the particular claims
> he advances en route to the conclusion that affirmative
> action is unconstitutional, not of that bare conclusion itself.)
>
> Mitch Berman
> The University of Texas
>
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Rosenthal, Lawrence
> Sent: Sunday, June 03, 2007 3:08 PM
> To: Sanford Levinson; DavidEBernstein at aol.com;
> curtism at bellsouth.net; s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
> Subject: RE: "Explaining" justices
>
> I find it puzzling that most liberal academics (and
> journalists) see Justice Thomas as a racial enigma. I do not
> think that any member of the Court has gone to greater
> lengths to make apparent the roots of his views on race and
> the law than Justice Thomas.
>
> On the question whether he lacks sympathy for minorities and
> is guilty of some form of self hatred, see his dissenting
> opinion in City of Chicago v. Morales, 527 U.S. 41 (1999). I
> am hardly a disinterested observer, having argued the case
> for Chicago, but to my eye, Justice Thomas's dissent evinces
> enormous sympathy for the residents of high crime minority
> neighborhoods of Chicago who are must live amid gang
> violence. It seems clear to me that the minority residents
> of Chicago who advocated for the gang loitering ordinance
> (whose testimony he stressed although it went ignored by
> every other member of the Court) reminded Justice Thomas of
> the people who raised him in Georgia. Apparently Justice
> Thomas is expected to sympathize with the gang members who
> terrorize these communities, and embrace legal doctrines that
> make it harder to put them in jail, and make jail nicer for
> them while they are there. Instead, Justice Thomas's
> sympathy lies with the hard working law abiding !
> residents of the communities who bear the brunt of epidemic
> gang crime. Is that really an enigma?
>
> As for affirmative action, Justice Thomas's views could not
> be more clear. His opinions in Missouri v. Johnson and
> Grutter v. Bollinger are among the most candid and personal
> of any in the history of the Court. Indeed, I find it
> enigmatic that in the legal academy, Derrick Bell is usually
> treated as some kind of saint while Justice Thomas is cast as
> the villian. In Grutter, Justice Thomas argued that
> affirmative action had been embraced by the University of
> Michigan only because it was thought to serve the interests
> of white elites, and he is accused of self hatred. Yet
> Professor Bell has argued for years that affirmative action
> is likely to do no more than serve the interests of white
> elites without alterning the fundamental power structure of
> the country, and no one accuses him of self hatred. Perhaps
> Justice Thomas can be accused of some measure of hypocrisy
> for accepting a nomination that was doubtless influenced in
> part by considerations of race. (Although Preside!
> nt George H.W. Bush vigorously denied that selecting Judge
> Thomas on the basis of race, and it is a bit odd to fault
> Justice Thomas for not indignantly calling President Bush as
> a liar and declining the nomination on that basis. Is that
> really what he was expected to do?) In any event, if pressed
> on the point, I think it fairly clear that Justice Thomas
> would say that he was not going to turn down a nomination
> that would enable him to do a great deal to advance the
> causes about which he cares because of his doubts about the
> motives of the President that nominated him. Who among us
> can truthfully say that they would turn down a Supreme Court
> nomination based on suspicions about the motives that may
> underlie the nomination? No enigma there.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
> Sent: Sun 6/3/2007 10:16 AM
> To: DavidEBernstein at aol.com; curtism at bellsouth.net;
> s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
> Subject: RE: "Explaining" justices
>
>
> David writes, "We don't need to "explain" Justice Thomas any
> more than we need to "explain" Justice Scalia, Chief Justice
> Roberts, or Justice Alito. Where are all the
> psycho-biographies explaining how a nice son of Italian
> immigrants could someone become a crazed right-winger?"
>
> Does David mean, therefore, that we don't need "to explain"
> anyone in the world, because it is always enough to say that
> X sincerely believed in A, B, and C (which is often true, of
> course), or that we should be equal opportunity "explainers"
> who realize that it is of interest to ask why could at the
> same time believe in ghosts and the theory of gravity, why, a
> al Thomas Kuhn, some scientists were able to make the jump to
> new understrandings of the world while others remained
> devoted to phlogiston, Newtonian physics, etc? I take it
> that Mark Tushnet's two volume biography of Thurgood
> Marshall, along with much useful information, offers some
> "explanations" for why Marshall behaved as he did, though
> Juan Williams helpful biography probably offers more
> "explanations." And would anyone dare write biographies of
> Harry Blackmun and Warren Burger without consulting Linda
> Greenhouse's book detailing the relationship between the two
> men? And so on. (My own view, obviously, is tha!
> t we're all subject to psychological explanation, though
> that none of us should be reduced to such explanations.)
>
> I can easily agree with David that there has been a lot of
> simplistic reductionism vis-a-vis Thomas, someone I've always
> belileved, even as I opposed his confirmation even before
> Anita Hill, was a more interesting person that his critics
> portrayed or, most regrettably, that he himself portrayed in
> his disastrous testimony, prior to Anita Hill and presumably
> with the advice of his principal DOJ handler, Michael Luttig,
> in which he renounced practically everything he had said in
> speeches (because, after all, he was only mouthing the words
> written by speech writers). But I also think it merits some
> psychological analysis to explain not only why he so
> vigorously opposes affirmative action (even though his race
> is the only plausible explanation for why someone so
> conservative as he he was nominated and confirmed, given the
> political balance in the Senate at the time), but why he in
> fact turns away from the systematic cruelty that is endemic
> to the American state prison system.
>
> sandy
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of
> DavidEBernstein at aol.com
> Sent: Sun 6/3/2007 9:29 AM
> To: curtism at bellsouth.net; s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
> Subject: Re: NYTimes.com: The Next Big Thing in Law? The
> Harsh JurisprudenceofJustice...
>
>
> The review states: "They offer a wealth of insight, but they
> have no answer to the central enigma he poses: why the
> justice who has faced the greatest hardships regularly rules
> for the powerful over the weak, and has a legal philosophy
> notable for its indifference to suffering."
>
> It has irritated me for many years that Justice Thomas is
> supposedly an "enigma" because he is a black man with a
> conservative outlook on life and judicial philosophy. Ever
> since he was appointed to the USSC, there have been so many
> articles trying to "explain" Justice Thomas. How about this
> one: he is a thoughtful person who read a lot out of
> intellectual curiosity, and eventually became persuaded that
> certain ideas were right, and others were wrong--just like
> all of the white Justices! Imagine that! It's well-known
> that Thomas has been subject to a host of intellectual
> influences, ranging from Richard Wright to Thomas Sowell to
> his grandfather to Ayn Rand to Ken Masugi and so on. We
> don't need to "explain" Justice Thomas any more than we need
> to "explain" Justice Scalia, Chief Justice Roberts, or
> Justice Alito. Where are all the psycho-biographies
> explaining how a nice son of Italian immigrants could someone
> become a crazed right-winger?
>
> I vote for started to treat Thomas like an individual human
> being who has a well thought-out understanding of the world
> (which, like may such understanding, no doubt has its
> contradictions), even if one strongly disagrees with it,
> rather than as a representative of his race gone astray.
>
>
>
>
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