1. The Fourteenth Amendment imposes its willful blindness to racial disparities upon the Fifteenth Amendment (don’t worry that the Fifteenth Amendment guarantees that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race”).

2. And because, according to City of Boerne v. Flores, Congress may not add to the substantive contours of rights (including the right to vote), if the Fifteenth Amendment takes no note of racial disparities absent discriminatory intent, neither may the Voting Rights Act.

3. Thus, Congress’ 1982 amendment to Section 2, which for fifty years has targeted proscribed—regardless of intent—racial disparities in voting, no longer does.

Add to this the Court’s laundry list of plausible (to your racist uncle’s ear) “non-racial” explanations for disparities in voting, today, a vote dilution claim requires nigh-impossible proof (again, to uncle’s ear) of discriminatory intent. So, Section 2 remains constitutional, if only because Section 2 now means next-to-nothing. It’s only a hair shy of proclaiming that the Fifteenth Amendment’s reference to, and thus cognizance of, race violates the Fourteenth’s Colorblind Equal Protection Clause.

Suffice it to say, Alito gets it wrong on the text, the law, and the history. But on that morass we need not linger. A graver concern draws our attention. For Justice Kagan, in dissent, nevertheless (and unnecessarily) concedes that “The Fifteenth Amendment, all agree, prohibits only purposeful discrimination.” Indeed, to hear Kagan tell it (if you can survive the academic slog), Section 2’s Effects Test (the prohibition of disparate impact, “results in,” that is)—does not reflect the meaning of the Fifteenth Amendment. Rather, Section 2—though it steps out ahead of the Amendment itself—reflects an “appropriate” means for Congress to enforce the prohibition of discriminatory intent in voting.

One wonders where the hell Elena Kagan has been for the last thirty years. Simply put, (unless I’m very much mistaken as to where she’s getting her Constitutional exposition from) Kagan is adhering to the delusion that the Court (and the Court alone) tells us what the Constitution means. But why shouldn’t Congress’ judgment that the Supreme Court erred in City of Mobile v. Bolden (that the pre-1982 Section 2 did not cover disparate impact), and subsequent amendment of the statute “enforc[ing]” the Fifteenth Amendment, inform our judgment of the Amendment’s scope in the first instance? Very rarely in our American experience of dueling Constitutional interpretations between the Court and Congress has history vindicated the Court. On the contrary, numerous examples damning the Court come readily to mind: Dred Scott v. Sandford (interpreting the Constitution as inextricably an enslaver’s document); the Civil Rights Cases (circumscribing the Fourteenth Amendment to only cover State action); Hammer v. Dagenhart (ruling child labor conditions outside of the Commerce Clause); Shechter Poultry (ruling wage and hour laws outside of the Commerce Clause); National League of Cities v. Usury (ruling wage and hour laws outside the Commerce Clause when applied to States); City of Boerne v. Flores (asserting complete judicial ownership of individual rights); United States v. Morrison (applying Boerne to strip American women of protection again sexual assault); and, why not, Shelby County v. Holder (interpreting the Voting Right Act’s Preclearance Regime to violate the made-up principle of equal state dignity). It’s high time the liberals on the Court recognize that the solution to an out of control Court isn’t an out of control Court on our side, it’s a Court that doesn’t have the opportunity to get out of control in the first place—because Congress is the first branch of government.

Moreover, if the institution as Constitutionally unreliable as the United States Supreme Court is responsible for the notion that “The Fifteenth Amendment, all agree, prohibits only purposeful discrimination,” oughtn’t we not engage in a little bit of long-delayed self-reflection? Why should the Fifteenth Amendment only prohibit purposeful discrimination in voting?

Well, why shouldn’t the Fifteenth Amendment prohibit racialized disparities in voting? Does the Thirteenth Amendment prohibit only purposeful enslavement? Did millions of Black Americans labor and die in bondage, building this nation so that one day their progeny might be accidentally or inadvertently denied the right to vote?

Democracy requires so much more than the simple demand that we not intentionally harm one another—that we merely refrain from enslaving one another out of the Jeffersonian fear of retribution. It requires more than even Lincoln’s early phrasing that “as I would not be a slave, so I will not be a master.” Democracy requires, as Lincoln urges in his First Inaugural, and as Jaffa teaches in his New Birth of Freedom, that we submit ourselves to the votes of others—to those we’ve never met, to those of different colors, religions, and backgrounds we share little more in common with than the shared nationality, to those we treated only five minutes previously as our utmost adversaries.

Angels could perhaps run a democracy on a theory of equality that looks only to purposeful discrimination. Humans cannot. We require practice and treats to cultivate our better halves. A theory of equality, of the Reconstruction Amendments, that ignores racial disparities (or any other disparity relating to a historically subordinated group) grants the imprimatur of the law to our scorn for others—so long as we didn’t personally contribute to their condition. But just as no racist in the sheets may become a racial egalitarian in the streets, no one who can look with contempt at a fellow citizen’s plight can hope to submit herself to the vote of the other. Racial disparities in daily life reify until they inure us to racial disparities in voting, and to disparities in the requirement of democratic consent itself. The road from opposition to Brown, to Shelby County, to Students for Fair Admissions, to Louisiana v. Callais this week, makes this all too clear.

Not only may we interpret the Fourteenth and Fifteenth Amendments to abjure racial disparities, we must. Our democracy depends on it.

In 1818, Maryland enacted an annual tax on all banks operating within the State that had not been chartered by the legislature. In both purpose and effect, the law had one target: the Second Bank of the United States. Second because, although President Washington and the First Congress had chartered the Bank of the United States in 1791, James Madison had let it lapse in 1811 only to come to his senses five years later, signing the Second Bank charter in 1816. Anyway, J.W. McCulloch, the Maryland-branch cashier refused to pay, Maryland sued and prevailed in Maryland courts, and so McCulloch appealed to the Supreme Court, presenting a deceptively simple question: “has Congress power to incorporate a bank?”

1. The First Aside.

Chief Justice Marshall could have decided the case on the historical record alone. The matter, he noted, could “scarcely be considered as an open question.” On the contrary, “[t]he principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department.” One almost wonders whether age and maturity or golf schedules prompted the newfound moderation, so contrasted with the John Marshall of 1803’s Marbury v. Madison: “it is emphatically the province and duty of the judicial department to say what the law is.” Whatever the reason, here in 1819, Marshall evinces a good dose of judicial humility: “An exposition of the Constitution, deliberately established by legislative acts . . . ought not to be lightly discarded.”

2. The Underlying Issue: Federal Sovereignty.

But Marshall did not leave it at that. “The[ above] observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the constitution.” McCulloch is no more about what Congress had done than about a Bank. This Maryland’s argument quickly makes clear:

[T]he counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion.

Simply put, Maryland doesn’t just deny Congressional authority to make a bank—it denies Federal sovereignty, and thus Congressional authority, in toto.

Marshall, to be sure, makes short work of the argument. For one, “We the People” framed, established, and ratified the Constitution (the division of ratifying conventions by State being just a not to practical reality). For another, the Declaration itself rejected the notion that the People could not withdraw sovereignty from the States and re-vest it in a general government (“whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”). Thus, “The government of the Union, then, is, emphatically [same word as the judiciary’s duty to “say what the law is,” mind you] and truly, a government of the people.”

Yet as seemingly final and conclusive as this statement might appear, Marshall has the good sense to not leave the job half finished. Because, as any good lawyer will know, establishing something in principle does not necessarily instantiate it in practice. That is, proclaiming the sovereignty of the Federal government does little good without a framework for putting that national supremacy into effect. This explains why Marshall does not decide McCulloch merely on the historical record, but instead proceeds to explain how we ought to read and comprehend the United States Constitution as a document enabling the Federal government to take all measures reasonably calculated to advance the welfare of “We the People.”

3. The Practical Issue: Constitution of Experience.

In McCulloch, John Marshall propounds reason and experience as the touchstone of Constitutional interpretation. The Constitution ought to be read reasonably in light of the purposes for which it was established, permitting neither textual pedantry nor past mistakes to shackle present and future generations. Some examples will bear this out.

a) Reason & Context.

Marshall begins on the topic of Federal supremacy, illustrating his notion of reason. He acknowledges that “[t]his government is . . . one of enumerated powers.” But enumeration is one thing; Federalism another. And the Federal government’s bounds cannot be read to defeat its capacity. “If any one proposition could command the universal assent of mankind, we might expect it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action.” This follows naturally, not from any specific Constitutional text, but from basic democratic principles. The Federal government “is the government of all; its powers are delegated by all; it represents all, and acts for all . . . The nation, on those subjects on which it can act, must necessarily bind its component parts [the States.]” Or, in other words, Federal law preempts State law because the Federal government represents all of us. We act with the greatest democratic weight not via the States, but via the United States. The Supremacy Clause (“this constitution, and the laws of the United States, which shall be made in pursuance thereof . . . shall be the supreme law of the land”) confirms this principle, but it does not establish it.

b) Experience.

Marshall further develops this line of reasoning to explain Congress’ authority to charter a national bank. True enough, Marshall admits, “[a]mong the enumerated powers, we do not find that of establishing a bank.” Now, to require all powers of government to be enumerated would require a self-defeating level of detail. “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means in which they may be carried into execution, would partake in the prolixity of a legal code, and could scarcely be embraced by the human mind.” But that’s not really Marshall’s point.

Far more important than feasibility, however, requiring a total enumeration of means and ends would deprive Congress of the the ability to learn from experience. The Articles of Confederation had attempted precise Congressional enumeration, reserving to the States “every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States.” Of course, that attempt at government imploded when Congress could not even raise money to fund a militia to see off Shays’ rebellion. Thus the Philadelphia Constitution contains “no phrase, like the articles of confederation, excludes incidental or implied powers.” The Tenth Amendment, notably, “omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United States . . . are reserved to the States.” The Founders had learned their lesson, Marshall explains, “[t]he men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word [expressly] in the articles of confederation.” A self-defeating constitution is not merely a bad constitution, Marshall tells us, it is no constitution at all. “Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves”—“In considering this question, then, we must never forget, that it is a constitution we are expounding.”

At this point, Marshall does mention the various ends which a national bank would serve: Congress’ power to tax, borrow, and spend; regulate commerce; and to raise and support the armed forces. Marshall, good Federalist that he remains, does not mean to imply from all the foregoing that Congress can invent new substantive ends beyond those enumerated in Article I, Section 8. Rather, he means that Congress “must . . . be entrusted with ample means”—enumerated or not—to accomplish those ends. But perhaps grasping the delicacy of the situation (which we will flesh out at the end), besides mentioning that Congress needs a Bank to be able to effectively move capital around, Marshall leaves most of the reasons why Congress might need a Bank unstated. Instead, he focuses (and will continue to focus) on Congress’ authority to choose appropriate means to serve its ends: “The government which has a right to do an act, and has imposed on it the duty of performing the act, must, according to the dictates of reason, be allowed to select the means.”

c) Putting it all Together: Necessary & Proper.

Only then does Marshall finally reach the Constitutional text which most law students think (erroneously, as we have seen) McCulloch is all about: the Necessary & Proper Clause. But Marshall’s analysis here only re-illustrates the points of his constitutional interpretation already established.

Maryland argued that the Necessary & Proper Clause (which gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”), first, merely granted Congress the power to legislate, and, second, limited Congress to means without which the ends could not be achieved (“without which the power would be nugatory”). Marshall dispatches both with ease. The first he found scarcely worth responding to. “That a legislature, endowed with legislative powers, can legislate, is a proposition too self-evident to have been questioned.”

The second required little more explanation. “Is it true, that this [without which the power would be nugatory] is the sense in which the word ‘necessity’ is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without the other?” Of course not. “A thing may be necessary, very necessary, absolutely or indispensably necessary” (indeed, the Constitution recognizes as much, prohibiting States from enacting tariffs unless “absolutely necessary” to cover the cost of inspection laws). Maryland’s construction violated a simple corollary of Marshall’s rule of reason: don’t be a pedant. “It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense—in that sense which common usage justifies.” Thus, “we find that “necessary” “frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ means necessary to an end, is generally understood as employing any means calculated to produce the end.” Indeed, Maryland’s construction contravened not merely the ordinary usage of the term, but the structure of the the Constitution. The Necessary & Proper Clause, after all, rests in Article I, Section 8’s recitation of things Congress may do—not in Section 9’s list of things it can’t. “If, then, the[ Framers’] intention had been, by this clause, to restrain the free use of means which might otherwise have been implied,” this would have have been a pretty poor way to communicate it.

And yet, again, all of that textual machination simply lays the foundation. At bottom, Maryland’s constitutional interpretation would deny Congressional resort to experience. The Necessary & Proper Clause “is made in a constitution intended to endure for ages to come.” “To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.” Marshall’s Constitution of Experience looks to Congress’ “discretion”—

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

About a Bank, McCulloch is not.

4. Maryland’s Worry.

Marshall’s explanation, and his strategic omissions, make so much sense, one would not be amiss to wonder why Maryland spent all that effort trying to shackle Congress? There’s an immediate and concrete answer, and a more conceptual, longer term answer. Both, however, answer: because of the shackle.

a) Insurrection.

To the first, let’s go back to the very beginning. Why does Congress need a Bank? It certainly aids Congress’ ability to regulate commerce. It certainly aids Congress’ ability to tax, borrow, and spend. But perhaps Maryland was right, couldn’t Congress accomplish those ends, however roughly, by other means? Consider the opposite result in McCulloch. What if Congress couldn’t charter a Bank?

If Congress could not charter a Bank, the States still could. So Federal deposits would have to be held by banks chartered by the States. In the event of internal disruption or rebellion, either sanctioned by or with the sympathy of the local State legislature, Federal funds would be subject to impoundment. And thus, Congress—just as it found itself during Shays’ Rebellion—would find itself unable to levy troops. No sovereign will suffer (if it can help it) its deposits being in a bank chartered by another. Or, as Marshall puts it, “[n]o trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the States.”

But could not Congress still store funds for procurement of local militias in local treasuries? But that would require storage in some form reasonably guaranteed to hold its value during civil strife, that is, specie. Such local stocks of Federal specie, of course, would require Federal guards—a daily reminder of the waiting Federal jackboot, stripped of the local stimulus (that is, goodwill) bought by local Federal deposits. So Congress can either assuage the causes of insurrection while negating its capacity to respond; or maintain its capacity to respond while stoking the causes. It’s no coincidence, then, that Marshall notes, “[t]he exigencies of the nation may require that the treasure raised in the north should be transported to the south.” And so it will.

b) Experience & the Specter of Abolition.

But response to insurrection is the just the immediate consequence of letting Congress charter a Bank. Yet McCulloch, we have said, isn’t really about the Bank. It’s no coincidence (if I may be allowed the phrase again so soon) that Maryland—a slave State—contests Congress’ authority in McCulloch. To see why, just consider what the Constitution of Experience means for slavery.

To start, “[t]he government proceeds directly from the people . . . ‘in order to form a more perfect union, establish justice, ensure domestic tranquility, and secure the blessings of liberty to themselves and their posterity.’” “Its powers are granted by [the People], and are to be exercised directly on them, and for their benefit.”

True, there is no abolition clause. But neither is there a clause rejecting that power. And why would there be? The Federal government derives its legitimacy from the “consent of the governed,” and its supremacy from the fact that it “is the government of all”—the most democratic one we have. If McCulloch seeks to cement Federal sovereignty, human chattel bondage would undermine the whole venture.

True, the Constitution does instantiate slavery for some time. The Three-Fifths Clause pads Southern representation in the House and Electoral College. The Fugitive Slave Clause commits the North to return “fugitives.” And the Importation Clause forbids the abolition of the slave trade before 1808. But, of course, none of these clauses uses the word “slave”—just as the Tenth Amendment omits the term “expressly,” that can’t be written off as mere coincidence.

And if we’re playing textualism, many more Constitutional provisions contradict bondage. We’ve already mentioned “We the People,” an obvious reference to the Declaration and its doctrines of equality and consent. Article I sketches a legislature embodying the vote (consent), references the elections in which ordinary Americans will vote, and even populates the House of Representatives directly from those votes. The Electoral College again considers the consent of the governed. Article IV committs the Federal government to “guarantee to every State in this Union a Republican Form of Government.” And Article VII provides for the Constitution’s ratification by the consent of the governed. This before we even mention that the Import Clause implies, and the Commerce Clause confirms, Congress’ power to abolish the international slave trade (they did). The Commerce Clause also plainly covers the interstate slave trade. The Territorial Clause confirms Congress’ authority to abolish slavery in the territories (see the Northwest Ordinance).

But most of all, Marshall’s Constitution of Experience lets us learn from our mistakes, be it the five year “embarrassments” of lacking a national Bank, or the two-hundred fifty year embarrassment of human chattel bondage. What did experience make of human chattel bondage? What had slavery made of our national claim to self-government? What had slavery done to wages? What had slavery done to assuage the fears (or causes) of insurrection? What had slavery done for the cause of Republican government and Jefferson’s dream of yeoman farmers in the South, concentrating land, wealth, and power in the hands of a few oligarchic plantation owners? In another year after McCulloch, President Monroe would sign both a law declaring the slave trade to be piracy and the Missouri Compromise, banning slavery in the Louisiana territory north of Missouri’s southern border.

What would slavery do during the next forty years? Prompt South Carolina’s first call for secession in 1833? Render international embarrassment after embarrassment as Southern ports mistreated foreign sailors of color? Prompt the Trail of Tears? Annex Texas on spurious grounds? Engage the United States in a war of agression to conquer more land for enslaver’s plantations? Embroil the United States government in the continual indiginity of being called to account for ludicrous Southern “filibuster” schemes to conquer new overseas territory for slavery? Intrude upon Northern daily life ever more to “recover” free people of color living in the North? Foist an even more odious Fugitive Slave Act on the Nation? Rescind the Missouri Compromise in bad faith, reject the Constitutional interpretation of Thomas Jefferson and George Washington and the first Congress in Dred Scott v. Sandford, and threaten the expansion of slavery across the Continent north and south? Embroil us in a bloody civil war for a cause which has lingered, undead, for another century and a half?

Whether Marshall anticipated it or not, his Constitution of Experience permits Congress to take reasonably claculated, yet often-drastic, measures to advance the Constitution’s general ends, so long as the means are not otherwise prohibited. And no practice of ours better designed to undermine the legitimacy and welfare of the United States existed but slavery. If Marshall didn’t see it squarely in the crosshairs, Maryland did. Calhoun did, when he promulgated his doctrine of the concurrent majority. The South did, when they threatened to secede any time a vote went against them—until they did. Enslaver’s Constitution my ass.

McCulloch v. Maryland presents a trove of wisdom we ought not forget. Most law students grasp the Bank, and the Necessary & Proper Clause. There’s also the pragmatism, reliance on context and reason, and judicial humility—letting Congress, too, shape our Constitution’s meaning. But we disserve ourselves when we ignore the foundation of Marshall’s decision: the Constitution of Experience, which would have let Congress actually legislate a more perfect Union.

It should come as no surprise that Roger Taney would eschew John Marshall’s Constitution and instead espouse a recognizable form of modern originalism when the question of slavery’s continued western expansion arose in Dred Scott v. Sandford, declaring the Constitution irreparably a document of bondage merely because our historical practice in 1789 included slavery. Today’s Supreme Court shackles us to past generations’ errors by much the same doctrine. We can, of course, meet today’s originalism on the merits—for its failure to distinguish “between the Constitution’s compromises and its principles,” as Harry Jaffa would put it in New Birth of Freedom (2000). For its concession that slavery was ever, really, constitutional. For its inattention to equal citizenship for women or people of color.

For all these reasons, and many more, originalism is evil (or ideological neutrality that distinguish between force and principle—pick your demon). But all of those reasons are sort of beside the point in McCulloch v. Maryland. That we may learn from our mistakes “is a proposition too self-evident to have been questioned.” We ought to. And, if this Constitution is to endure, we must. In light of McCulloch, originalism isn’t just evil, it’s also dumb.

Late in the evening of February 18, one Hector Organ negotiated the purchase of “111 hogsheads of tobacco” from a Francis Girault, of Peter Laidlaw & Co. Overnight, after negotiations had concluded, some “Messrs. Livingston, White, and Shephard brought from the British fleet news that a treaty of peace had been signed at Ghent” and, by extension, the cessation of the blockade which, to that point, had suppressed prices. White, apparently party to “one-third” of Mr. Organ’s expected profits, communicated this news to him directly, before it became public by handbill at 8:00 a.m. on the 19th.

Thus Organ called on Girault “soon after sunrise” that morning to perfect his bargain. According to trial testimony, “Girault asked if there was any news which was calculated to enhance the price.” Organ offering no reply, “the said purchase was then and there made.” By about 9:00 a.m., the price of tobacco in New Orleans “had risen from 30 to 50 per cent.” Laidlaw, understandably, refused to honor the sale. Organ sued. And, reasoning that “[T]here being no evidence that plaintiff had asserted or suggested any thing to the said Girault, calculated to impose upon him with respect to said news, and to induce him to think or believe that it did not exist,” the trial court in New Orleans “charged the jury to find for the plaintiff.”

On appeal to the United States Supreme Court, Chief Justice John Marshall reversed. While, in the ordinary course, Organ “was not bound to communicate” his special news to Girault, “at the same time, each party much take care not to say or do anything tending to impose on the other.” Having been directly asked, a jury could reasonably have construed Organ’s silence as deception, particularly given his gross windfall. 15 U.S. (2 Wheat.) 178 (1817). Or, as more simply put by one of the leading Contracts textbooks to this day: “Laidlaw teaches that by asking a question, one party can create for the other a duty to disclose.” Ian Ayres & Gregory Klass, Studies in Contract Law (Foundation Press 8th 2012).

As a matter of contract law, Laidlaw v. Organ strikes most students as no more than a routine and reasonable proposition of law, made memorable by some cute facts (oh, and the added quirk that Francis Scott Key (yes, that one) argued for Organ at the Supreme Court). But as a Constitutional matter, Laidlaw is astounding. What the hell is this case doing in Federal Court? It’s a routine contract case—that’s supposed to be a matter of State law. After all, the States govern our daily lives. There’s no Federal law involved in Laidlaw (sure, I guess we can call the Treaty of Ghent Federal news—but it doesn’t decide the case). So what gives?

The short answer, sufficient for contracts students, is that the Constitution grants the Federal Courts what is known as “diversity” jurisdiction. “The judicial Power shall extend . . . to Controversies between . . . Citizens of different States.” Art. III, sec. 2. (see also, 28 U.S. 1332). When citizens of different states sue each other, we don’t make them take it to some local state court, with a “judge” (aka, the sheriff’s cousin) who’s never crossed state lines and toothless, twangy (and smelly) jurors who’ve never been outside the county. Instead, we let these “diverse” parties litigate in Federal court, in the big city, before a learned Judge who has, of course, honed his wisdom and traveled the county.

Yet diversity jurisdiction doesn’t really provide a sufficient answer here. It tells us what the case is doing in Federal court, but it doesn’t tell us why the United States Supreme Court has assumed to “teach[]” a lasting point of contract law. If the States govern your daily life, as we are so often reminded, why is the Supreme Court making law instead of just parroting some established point of Louisiana law? Because, it’s worth emphasizing here, as far as I can tell, no one cites Louisiana statute or case law in Laidlaw. Chief Justice Marshall just lays down a rule of conduct for Americans going about their daily lives and occupations—again, the hallowed reserve of the States—on the basis of some technical jurisdictional point.

A few weeks back, we discussed the Supreme Court’s curtailment of the Congressional Commerce Power in United States v. Morrison. Chief Justice Rehnquist struck down the Violence Again Women Act not so much because sexual assault in the workplace wasn’t “economic” activity—by that logic, neither was refusal to sell wheat in Wickard or refusal to serve on the basis of race in Heart of Atlanta—but because:

The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted.

Rehnquist’s (and the Court’s continual) denial of Appomattox certainly deserves its own treatment (and will, eventually), but let’s tackle the easy points first. Unless we are willing to accept the absurd “synthesis” that under James Madison’s watchful eye the Federal Government may stop a McDonald’s frycook from misleading a woman about the price of her burger but cannot stop him from sexually assaulting her, Laidlaw puts the lie to Rehnquist’s assertion that “our Federalism” had always left “truly local” issues to the States.

And Laidlaw is hardly an outlier. Over the first 150 years of our nation, the Federal courts, and in particular the United States Supreme Court, promulgated as a matter of course what was known as the “general law”—a law of commerce including contract, property, and torts—under the remit of the courts’ “diversity jurisdiction.” The Court itself ratified this practice in 1842’s Swift v. Tyson, going so far as to say that Federal courts sitting in diversity did not have to follow State court decisions in the Federal judiciary’s exercise of its own independent judgment of this “general” commercial law. The analogy between this “general” law and Wickard’s modern commerce clause should be clear. Whether we called it “diversity jurisdiction” or the Commerce Clause, Federal law in some form has basically always governed where otherwise-local action causes interstate ripples.

Of course, the Court overruled Swift in 1938’s Erie Railroad v. Tompkins in a proclamation of State sovereignty eerily reminiscent of Morrison (it do come around like that, don’t it). And it hardly needs to be said that most Antebellum and pre-New Deal commentators would, a) not have considered Swift to be indicative of an inchoate Congressional power, and b) have had a slew of explanations squaring Swift with “our Federalism.” But, to the former, I suspect Erie will be better understood as the Court stepping aside for the New Deal Congress. And to the latter, whatever excuses would have been given at the time, they do not overcome the fact that John Marshall, Chief Justice of the United States, wielded Federal authority to construct rules of conduct for your daily life. Rules which, in fact, we still inflict on new law students.

But that’s enough for today. I’ll be perusing random cases across the early Federal reports over the next few weeks to see what other interesting Swiftian examples I find. I’ll also read Swift v. Tyson and Erie v. Tompkins in the original reports (not just my textbooks) to see what else we can learn. And, don’t worry, I will also survey the objections or potential responses to my thesis to see where this all goes. More to come.

In 2022’s Dobbs v. Jackson Women’s Health, nixing Roe’s right to abortion, Justice Alito explained:

[O]ur decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government, but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. The second category-which is the one in question here-comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” [cue several paragraphs detailing the rigorous analysis for discerning such “unenumerated” rights]

In other words, stuff in that quick and dirty list James Madison scrawled out in 1791, the “Bill of Rights,” gets prime status; everything else, not so much. But that division is horseshit. Historically, there are no enumerated rights.

Now, before getting stuck in, two points are worth mentioning. First, the whole notion of “enumeration” does run headlong into the Ninth Amendment, where James Madison covers his ass and tell us: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Second, and more disturbingly, Alito’s reasonable sounding “history and tradition” and “ordered liberty” devolve to a total rejection of experience, and thus reason, according to his originalist “interpretation” of the Constitution. When Alito equates the inquiry to determining “what the Fourteenth Amendment means by the term ‘liberty,’” he means specifically shackling our understanding of the Amendment to precise historical practice at ratification. If that strikes you as re-legalizing racially-segregated schools and recriminalizing interracial marriage—two unquestioned practices at the Fourteenth’s ratification—well . . . yes.

But put all that to the side. Because Sam, oddly enough, sort of admits that the “enumeration” thing is made up, even if he doesn’t really acknowledge the import of his own words. Recall those favored “rights guaranteed by the first eight Amendments”—

Those Amendments originally applied only to the Federal Government, but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States.

Stop and read that again. The Bill of Rights originally applied only to the Federal Government. Not to the States. For most of our history those special, preferred, enumerated rights that we’re supposed to care so much about did not apply to your daily life.

At the Founding, the Bill of Rights did not apply to the States.

It really cannot be overemphasized: the primary tenet of the American Political Tradition is the States’ primacy in the governance of your daily life. Teddy Roosevelt, for example, would take this tenet for granted in his 1904 speech, more famous for articulating the Roosevelt Corollary to the Monroe Doctrine. “As long as the States retain the primary control of the police power the circumstances must be altogether extreme which require interference by Federal authorities . . . .”

This tradition of State primacy manifest early in the Supreme Court’s 1833 decision: Barron v. Baltimore. The City did some construction on the harbor that diverted a stream and that made the water around Barron’s wharf shallow so boats couldn’t sail up anymore and he got pissed and sued or whatever angry landowners do. (I wouldn’t know. I’m still $150k in student debt for all of this selfless public service I’ve performed.) But as much as the Supreme Court loves property rights, the Justices tossed Barron’s claim. The Fifth Amendment, which prohibits the taking of private property without just compensation, did not apply to the States. In fact, neither did any of the Bill of Rights:

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided sch limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power; if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

The rest of the decision proves just about as repetitive and circular. The Bill of Rights doesn’t apply to the States because it applies to the Federal government, because the Bill is contained in the document that creates the Federal government, which the States all agreed to, and which is the supreme law of the land, but only applies to the Federal government, which it creates, and not to the States which agreed to it, because it applies to the Federal government instead. Frankly, Barron v. Baltimore doesn’t make a lick of sense unless you recognize that the decision means not to tell us anything new but rather to illustrate the primary tenet of our Federalism: the States govern your daily life. So much so, it turns out, that the Bill of Rights does not constrain the States’ control over that daily life. And if that doesn’t scare you (um . . . get help?) this will. Who argued and won Baltimore’s case? Roger mother-“no rights which the white man was bound to respect”-fuckin’ Taney.

Reconstruction Foiled

While you’d be outing yourself as a brand new reader here, you’d otherwise be forgiven for imagining that Reconstruction changed all that State primacy and unfettered control over your daily life. To be sure, Congress really did try, with the Civil Rights Acts of 1866, 1871, and 1875 (which I’ve explained some here and here). But the Court swung back hard (see previous). Even before striking the 1875 Act down in the Civil Rights Cases, even before the Act, the Court had gutted Reconstruction at the first opportunity, 1872’s Slaughterhouse Cases.

In brief, the newly-integrated Louisiana State legislature proposed to relocate all of New Orleans’ butcheries from upstream to a new spot downstream of the City because, well, as Prof. Kennedy taught me in Fluid Mechanics: blood, guts, and shit flow downstream. The largely-white butchers, incensed at being regulated by Black men, sued, claiming that the regulation infringed their right to ply their trade, secured by the Fourteenth Amendment guarantee of “privileges and immunities” of United States citizens. This should have been a forgotten case decided upon routine citations to Blackstone or Coke excoriating us that “a Manne hath notte the right to cause, by his toile in trade, howevere usefulle, the spoiliation of the watercourse to the detrimente of the commonweale.” Instead, the Supreme Court took a blowtorch to Reconstruction. The Fourteenth Amendment did not apply to the case.

Citing Dred Scott v. Sandford (which I’d sworn the Fourteenth Amendment overturned) for the “distinction between citizenship of the United States and citizenship of a State,” Justice Samuel Miller explained that the Privileges & Immunities Clause—“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—protected only the rights incident to U.S. Citizenship, not the rights incident to State citizenship, that is, those involving your daily life.

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

. . .

[S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights . . . We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

Simply put, even after Barron’s Federalism led to Civil War, the Court still adhered to the States’ primacy over your daily life. True, Reconstruction brought some limits. But that’s all they would be: limits. State authority to pass Black Codes in the first instance remained. Federal intervention to protect due process and equal protection would come after the fact, as mere correction, not affirmative guarantee.1

The Backdoor Bill of Rights

Today most of the Bill of Rights does apply to the States, but not because it was written down. Even once the Court admitted in 1908’s Twining v. New Jersey that “it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action,” the actual application of those rights to the States took place via the process of “incorporation” of the Bill of Rights, component by component, via the Fourteenth Amendment’s Due Process Clause (if this sounds backasswards, that’s because it is). And even then, significant resistance remained.

In 1937 the Court declined to incorporate the Fifth Amendment’s protection against double jeopardy against the States. Justice Cardozo conceded that the Due Process Clause included “principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty.” He just didn’t think double jeopardy ranked as that important. Similarly, in 1947’s Adamson v. California, Justice Reed dismissed a claim that the Fifth Amendment protected criminal defendants against self-incrimination in State criminal trials. Justice Frankfurter concurred:

For historical reasons a limited immunity from the common duty to testify was written into the Federal Bill of Rights . . . But to suggest that such a limitation can be drawn out of “due process” in its protection of ultimate decency in civilized society is to suggest that the Due Process Clause fastened fetters of unreason upon the States.

Barron—alive and kicking in the Nuclear Age.

Ultimately the incorporationists won out and all but the Third Amendment, Sixth’s grand jury, and Seventh’s guarantee of a civil jury now bind the States. The most recent addition to the list of incorporated rights came in 2018’s Timbs v. Indiana, where Justice Ginsburg explained that the Eighth Amendment’s guarantee against excessive fines “is ‘fundamental to our scheme of ordered liberty,’ with ‘deep roots in our history and tradition.’” But it really has to be repeated: today the Bill of Rights applies to the States not because they are “enumerated” but because the Justices consider them to be really, super-duper important.

In many regards, Justice Alito’s reliance on certain rights’ “enumeration” in the Constitution counts against their being more important or legitimate than a right to abortion, or contraception, or interracial marriage, or integrated schooling. So far from reflecting a list of rights the Founders thought truly fundamental to American citizenship, the Bill of Rights rather reflects a list of rights the Founders (and many subsequent generations) considered and determined inapplicable to the contours of your daily life. Better to be unenumerated, then, than to be so devalued.

But perhaps we don’t have to go that far. Justice Alito tells us in Dobbs that claimed rights must be “deeply rooted” in our “history and tradition,” as evinced by historical practice at ratification. Suffice it to say that, if “history and tradition” have any meaning, there are no such things as “enumerated rights.” An originalism that rejects the right to abortion on such grounds must necessarily reject application of the Bill of Rights to the States. But if we yet demand those “enumerated” rights, and if the only reason that those rights of speech, assembly, guns, and all aspects of criminal procedure apply to the States today is that those rights have been separately determined fundamental to our history, tradition, collective conscience, and notions of ordered liberty, then the test applicable to the first Eight Amendments ought to be applicable to the Ninth and the Fourteenth. Perhaps I’ve become a broken record on this point, but . . .

I’ll admit to lazily adopting these takes about Brown and Loving for the last several years. To be sure, I did at least think that Loving shows us a thoughtful and more rigorous approach to individual rights than the usual liberal, history and living tradition method. But I’ve certainly given short shrift to what Brown and Loving teach about equal protection more generally. I now suggest two reasons. On one hand, Brown and Loving succeeded so fully that we cannot really imagine anymore life before them. On the other, later decisions of the Court have taken us so far from Brown and Loving that it’s easier and less painful to pretend there never really was any there there in the first place.

To illustrate the sea change, it’s worth stepping back to an earlier keystone race-discrimination case that I suspect we’ve also been misreading. On its face, Korematsu—when the Supreme Court blessed the rounding up into concentration camps of west-coast Japanese Americans—stands for two propositions: 1) while racial classifications get “strict scrutiny” (quoth Hugo, “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect . . . courts must subject them to the most rigid scrutiny”); 2) often enough, “national security” gets trotted out to justify racism and violation of rights. Obviously Korematsu gets it wrong by our lights; but there’s the rub. We can’t read Korematsu from our perspective; we have to read it from the perspective of the flawed Supreme Court justices learning in real time not only what racial discrimination is but which instances of racial discrimination matter to the Fourteenth Amendment (you know, citizenship, due process, equality)—not to mention learning when the facts make out a plausible case of discrimination.

Recall, “separate but equal” is just the horseshit gloss we put on Plessy to explain Jim Crow segregation. The real legwork in Plessy comes from the Court’s holding that the Fourteenth Amendment does not apply to “social” issues (just as the Civil Rights Cases said about the Thirteenth). That is, the Reconstruction Amendments simply do not care about most instances of racial discrimination. So, as I asked my pre-law students a few weeks back, what case would you cite in Mr. Korematsu’s defense? Strauder v. West Virginia? Can’t exclude Black men from juries. A specific, long-recognized (and enumerated by Civil Rights Act of 1866) issue relating to niche issues of local self-government. Wong Kim Ark? Children born to Asian-American immigrants are citizens? Great, but the Court also accepted without question that Congress could limit the admission of or just totally bar Asian immigrants.

Yick Wo. v. Hopkins? Sure, there the Court recognized that the Equal Protection Clause applied where the City of San Francisco granted nearly all white-applicant laundry building permits and denied all Chinese-American applicants. That is, disparate application of a facially-neutral law could violate equal protection. But that lofty legal recognition runs headlong into a thorny factual question: when lawmakers learn to whisper their racial biases behind closed doors and off the record, we do we have enough proof to conclude—factually—that a law reflect unlawful racial animus? Yick Wo presented a simple case. The City backed the Court into a corner, offering no explanation at all for the total rejection of Chinese-American applicants. The Court had no choice but to conclude, as a matter of fact, that racial animus . . . well . . . animated the decision. It’s not unfair to read Yick Wo less as woke-SCOTUS and more as “lie better” SCOTUS. And notice that Yick Wo is very much not a case about civil or social equality. It’s a case about letting immigrants do service work.

So put yourself into the world before Brown. What did “equal protection” mean for Americans of color by 1944? As a matter of law, not protection from private action. Not protection within the “social sphere,” that is, most of your daily life. Not protection from matters of State or foreign affairs. And as a matter of fact, not protection from discrimination coming under any other guise or explanation.

On this background then, give the haters their due, Brown and Loving do reconstruct the Constitution. With Brown, the Equal Protection Clause starts to mean something. For one, it cuts through the question of whether the Fourteenth Amendment applies. Segregated schools had been the first example Plessy gave us of an (intensely local) social issue laying beyond the reach of the Fourteenth Amendment. In other words, Brown dispenses with Plessy’s (and Civil Rights Cases) central distinction between the civil and the social. Taken seriously, now the Reconstruction Amendments apply potentially to everything the States might do to you.

For another, Brown cuts through the quagmire of proving racial animus as a matter of fact. Sure, in some light, Brown can be viewed as a mealy-mouthed compromise, Chief Justice Warren gathering a unanimous Court at the expense of avoiding discussion of why the States had been in the habit of segregating the schools on the basis of race (white supremacy). That would have been a nice decision. But don’t let that obscure what we got instead:

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.

. . .

Separate educational facilities are inherently unequal.

Whether or not the States intended segregated schools to deprive Black children of equal educational opportunity is irrelevant to the decision. All that matters is that the children got the message. Oh, you State legislator’s didn’t specifically intend this result? You expected it, but didn’t mean it? Or you didn’t even realize it could play out this way. Irrelevant. It does not matter that the States segregated the schools specifically to subordinate on the basis of race—because the Court neither mentions it nor relies on it (and it hardly mentions the segregation laws either, showing how little role they play). The power of Brown rests in its holding that the legislator’s intent (or lack thereof) plays no role; the decision turns entirely on the law’s impact.

And it gets better. If Brown focused on effect, Loving focused on intent. Virginia justified its antimiscegenation laws (besides appealing to white supremacist propriety and tradition) on the basis that it treated (punished) white and black alike. The Court dismissed that argument out of hand (in a line that Chemerinsky omits from his textbook abridgement of Loving, so perhaps it’s not entirely my fault for missing it until recently):

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

Not effects, or impact, or harms flowing from invidious discrimination—“sources.” Nothing about a law needing some sort of specific wording, or facial racial classification. Intent, racial animus, alone damns a law. Chief Justice Warren makes this even clearer a few paragraphs later, explaining an alternate approach whenever laws differentiated on the basis of race: that “[a]t the very least, the Equal Protection Clause demands that racial classifications . . . be subjected to the most rigid scrutiny.” This, of course, makes sense. The men who had spent the last twelve years demanding racial cognizance for the remedial purpose of integrating schools would necessarily approach bare racial-classifications and racial animus differently. The take-home point still stands though. Explicit or not, laws driven by racial animus could never stand.

If the one-two punch of Brown and Loving—that the Fourteenth Amendment proscribes both 1) racialized impact regardless of intent and 2) racial animus regardless of effect—seems like news to you, it’s not your fault. The moment Chief Justice Warren retired, the Supreme Court got to work pulling back from the joint-promise of Brown and Loving.

In 1971’s Palmer v. Thompson, the Court upheld Jackson’s (Mississippi) decision to close the city pools instead of integrate them. Allegations of racial animus, without disparate impact, Hugo told us, didn’t trigger heightened scrutiny. The other shoe dropped only five years later. Racial disparity without allegation of intent, Byron told us in Washington v. Davis, didn’t trigger heightened scrutiny either. Simply put, racial animus or disparity, each alone sufficient under Brown and Loving to damn a law, no longer warranted a court’s second glance unless accompanied by the other, so long as the law didn’t expressly mention race on its face—as though Brown and Loving would suffer such formalism. Palmer and Davis should not be read, as many law professors now pretend, to clarify some needed distinction between facial and non-facial racial classifications. They substantially overrule Brown and Loving.

And the Court buried them further, upping the required level of intent required alongside a disparate impact. In 1977’s Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court demanded racial animus be a “motivating factor.” Two years later in Personnel Administrator v. Feeney, the Court required that animus (this case actually dealt with gender discrimination) be even more plain:

The appellee’s ultimate argument rests on the presumption, common to the criminal and civil law, that a person intends the natural and foreseeable consequences of his voluntary action.

. . .

“Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.

Simply put, so long as a state legislature acted—on the record of 400 years of human chattel bondage—with no more than the knowledge that its actions would disproportionately impact Americans of color, it could avoid judicial scrutiny by simply employing race-neutral enough language.

This post has gone on long enough. So suffice it say the Supreme Court laid the groundwork for Trump v. Hawaii, upholding the Muslim-Travel Ban on “national security” grounds because it didn’t actually say “Muslim,” long ago. But saying things suck today because they’ve always sucked and were always going to suck is cheap and lazy. It’s also just wrong. Brown and Loving had us on the right track. We’ve let ourselves forget how right they were. Can’t blame the Founders for this one folks.

But, most importantly, we grappled with the modern reality that most of your Federal civil rights rest not on Congress’s basically-defunct (more in weeks to come) Reconstruction Enforcement Power, but on the Commerce Clause. Because what screams “lesson learned” from centuries of racialized slavery than pegging civil equality to your joining other goods and chattels in the channels of interstate commerce? I’m only half serious, of course. A mature notion of “commerce” certainly ought to grasp that when we step out our front doors into the civil sphere—created, protected, and ordered by the State—we agree to play by the public’s rules. So it should come as no surprise that a fulsome notion of Congress’ Commerce Clause authority, capable first of dealing with the Great Depression, expanded before too long to the eradication of racialized-denial of public accommodations, employment, and housing. What should come as a shock is that after all that, in the two thousandth year of our Lord, the Supreme Court would resurrect the zombie of James Madison’s utterly-failed Federalism (see, e.g., a little thing call The Civil War) to slap down modern Congressional civil rights legislation.

For our purposes, the modern Commerce Clause starts with 1942’s Wickard v. Filburn, when the Supreme Court upheld Congress’ authority to regulate the agricultural production destined only for local or personal use. But to appreciate the magnitude of this development, a little background will help.

Even if they did not grasp the full extent, the Founders certainly understood the tension between the Commerce Clause and the States’ traditional primacy in the governance of your daily life. On one hand, proponents of a narrower view construed Congress’ Commerce power as limited only to remedying the States’ habit of tariffing each other under the Articles of Confederation. On the other, proponents of national power could point to Shays’ Rebellion as illustrative of the need for centralized economic control, lest the rabble get to leveling. Pretty early in the new Republic, 1824 to be precise, the Supreme Court adopted the latter view. In Gibbons v. Ogden, the Court cut through a morass of competing state licenses and purported-monopolies to operate steamboats on the Hudson River between New York and New Jersey. Those channels of interstate commerce, not to mention the instruments, goods, and people flowing in them, belonged to Congress. States, more or less, had to keep their hands off.

The potential of Congressional power over the channels of and things in would have been apparent to early commentators—even without recourse to the Importation Clause (“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight”) admitting Congress’ commercial abolition authority (Congress would, in fact, abolish the Slave Trade on January 1, 1808), the scope of Congress’ power to regulate the channels of and things in interstate commerce would have been hard to miss. But old habits die hard—none harder than State primacy in the governance of your daily life (see, e.g. The Civil War). So the next century of Commerce Clause jurisprudence reflects a delicate Federal(ism) balance between the Court striking down State commercial regulations under Gibbons’ “dormant” Commerce Clause (joined during the Gilded Age by the Fourteenth Amendment) and making up horseshit limitations (commerce v. production, national v. local) to curb Congress’ growing willingness to regulate the national economy.

This mindset, of course, carried us headlong into the Great Depression and animated the Court’s violent reaction to the First New Deal, embodied in the Schechter Poultry decision that Congress couldn’t regulate Schechter’s sale of tainted chicken, even chicken bought and transported across State lines, because that ultimate sale was “local” activity. But then FDR set things straight. (Sure, the Court packing plan fell flat in Congress. But between retirements and deaths,1 FDR got seven nominations and one promotion to Chief Justice in the next four years. So you tell me whether the Court Packing plan “failed.”) And by the end of 1942 in Wickard, the Court had no problem recognizing that Congress’ Commerce Power extended not only to the channels of and things in interstate commerce, but to any activity—however local and personal—that, if we all did it, would substantially impact the national economy. Not so much an expansion of Congressional power, but the Court finally shedding all the horseshit limitations it had concocted over the last century.

The rest should have been history. We know FDR left Federal civil rights for another day, but when it came, it came. Congress sidestepped the thorny Civil Rights Cases and Reconstruction Enforcement Power questions (saving capital for 1965’s Voting Rights Act) and rested the Civil Rights Act of 1964 on the mature Commerce Clause. In a pair of cases, Heart of Atlanta Motel v. United States, and Katzenbach v. McClung, the Court upheld the Act. Racial discrimination in public accommodations, they recognized, however seemingly local, however seemingly private, occurred both within the flow of interstate commerce (that is, Gibbons’ Commerce Clause) and had segregated the entire national economy on the basis of race. Obviously, more discrimination remained to be addressed, but that should have been the end of the debate over Congress’ power to address it.

And you know what? For 36 years it was. Until in 2000’s United States v. Morrison, the Court decided that certain “discriminatory” behavior wasn’t “economic” enough for Congressional regulation. Surveying the States’ utter failure to address sexual violence, in 1994 Congress passed the Violence Against Women Act, giving American women a Federal civil claim (and district court jurisdiction) against sexual assailants, similar to the Civil Rights Act of 1871’s extension of a Federal claim and jurisdiction for racialized civil rights violations. A young woman at Virginia Tech sued after the university failed to take seriously her repeated assault at the hands of a school football player, and the Court had its test-case. Could Congress outlaw sexual violence, a private deed historically under State control?

Following Heart of Atlanta, the justifications could hardly have been simpler. Aside from all the medical and legal costs and other financial ramifications, the prevalence of sexual assault constituted one of the primary historic barriers to women’s access to the national economy, the civil sphere, and the workplace. Congress even put together a giant report detailing these findings. Yet none of that mattered to Bill Rehnquist and Company. “Gender motivated crimes are not, in any sense of the phrase,” Bill told us, “economic activity.” Thus, Congress’ record carried no weight. “Simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.”

It would be unfair, however, to characterize Morrison as resting on a made-up rule that wouldn’t survive a first-year law student’s scrutiny in light of Heart of Atlanta, McClung, or the Fair Housing Act of 1968. If “economic activity” had been the touchstone then, the entire structure of Federal civil rights would have fallen apart. Racialized denial of public accommodations, employment, or housing constitutes not so much economic activity itself, but a refusal to engage in it. So to Rehnquist’s credit, he does just come out and say what he really means.

The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States’ police power) to every attenuated effect upon interstate commerce . . . the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded.

That’s right, folks. “[E]conomic activity” has nothing to do with it—it’s just a facade. Why can’t Congress prohibit sexual violence? Our Antebellum Federalism. The Federalism that tolerated human chattel bondage. The arrangement between the State and Federal governments that walked us right into The Civil War. That Federalism. I would have sworn we buried that at Gettysburg. Or at least with Wickard. But alas, here’s Johnnie.

The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted.

So far as I can tell, the Court has never explicitly pulled back from Wickard, but it doesn’t have to. Today, the Court concocts all sorts of bullshit reasons why Congress can’t legislate. Wasn’t clear enough.2 Wild new interpretation of the Seventh Amendment.3 There’s already more I’m missing; and, if the first-century of Commerce Clause jurisprudence teaches anything, more will come. Morrison’s “economic activity” contrivance makes that clear enough.

But, to close, let’s not lose the trees for the forest. Morrison is a case about a young woman repeatedly assaulted by her classmates; who relived her trauma daily as Virginia Tech investigated, tried, and convicted her assailant, only to commute his pathetic slap-on-the-wrist sentence; who relived her trauma every day for years after that, defending Congress’ power to protect others from going through the same. Morrison might speak in the register of high politics, but it remains first and foremost a case about sexual assault—the University’s failure to take it seriously; the State’s failure to take it seriously; and the Court’s failure to take it seriously.

If you find yourself shocked by the continued revelations that this or that director, politician, judge, or professor has turned out to be a sex pest, don’t be. We picked this course long ago. Under our Federalism, if the McDonald’s fry-cook just refuses to take your order on account of race or sex, the Constitution lets Congress do something about it. But if instead he takes you out back and sexually assaults you, Congress can’t do squat. Bill Clinton’s Supreme Court said so.

Here especially, the current intro-to-poli-sci textbooks’ focus on “bringing the issue to life via recent examples” really disserves students because it focuses too narrowly on abortion. Of course abortion provides a great lens for relevant debate, for putting together all we’ve learned—at the end of class. But individual rights jurisprudence doesn’t start with abortion, or even with Griswold’s early recognition of the right to privacy. If class hopes to be any more than just asking students to memorize various recognized rights, we’ve got to tell the story. And the story starts with abolition.

In crucial aspects, our constitutional rights jurisprudence begins with Congress’ attempts to delineate the contours of both free-personhood and citizenship during Reconstruction. And we had a decent start. The Civil Rights Act of 1866 extended citizenship and equal rights to contract, property, and court stuff as was enjoyed by white citizens. Even with this seemingly sparse classical-liberal list, we can see a lot of potential. Congress extends both citizenship and rights to “such citizens,” bypassing any of those horseshit potential traps about leaving Black Americans in affirmative legal limbo, or, worse, leaving (forced) emigration still on the table. The right to contract guarantees wages (at least some protection against enslavement, but see sharecropping or modern California Central Valley plantation farm labor). The right to property includes not merely ownership of the fruit of ones labor, but the right “to inherit” property. That is, for the first time, the State must, as a matter of law, recognize Black families; arguably, “as is enjoyed by white citizens” even includes the right to interracial marriage (see, e.g. Thomas Jefferson’s recognized white-passing kids). And the right to court stuff, particularly the right to testify, recognizes for the first time that Black Americans have a voice and are competent to report both injuries to themselves and the facts they have experienced.

But it wouldn’t be America if the Supreme Court didn’t put a stop to a good thing. In 1872’s Slaughterhouse Cases, the Court reaffirmed the States’ primacy in the governance of your daily life, reaffirming not just Baron v. Baltimore (argued and won by city attorney Roger B. Taney) but Dred Scott v. Sandford’s distinction between U.S. and State citizenship. Then the Hayes-Tilden Compromise put an end to Reconstruction. And the Civil Rights Cases of 1883—holding both that the 14th Amendment only covered State action, and rejecting the 13th Amendment’s application to “social” matters (Plessy would extend this to the 14th as well, even where we had State action)—would conclusively boot Congress from the business of defining your rights for nearly 60 years.

Congress would eventually get back in the business of civil rights, by way of the Commerce Clause (e.g. Civil Rights Act of 1964 and Fair Housing Act of 1968) and its Tax and Spend Power (Title IX). But the Civil Rights Cases’ “state action doctrine” has never been overruled. Thus our modern American approach to individual constitutional rights must be understood as the Supreme Court’s piecemeal and pale shadow of Congress’ long forgotten power to reconstruct the Constitution and enforce the abolition of bondage.

With that prelude, though, the modern story is relatively easy to tell. Even before Griswold, the Court undertook that piecemeal approach. In 1923’s Meyer v. Nebraska, the Court nixed the State’s attempt to prohibit a parent from passing their native language to a child. In 1925, that burgeoning right of familial privacy extended to the right to send one’s children to parochial instead of public school. Pierce v. Society of Sisters. And in 1942’s Skinner v. Oklahoma, the Court (alluding to events abroad) held that a State had to have a pretty damn good reason to sterilize someone—serial chicken theft didn’t cut it.

If the State couldn’t dictate how you must raise your kid, and couldn’t take away your capacity to have children, then neither could the State force you to have children. The only real question for the Court in Griswold was “why not.” Douglas did his “penumbras” and “emanations” thing, reasoning that the Bill of Rights framed a right to privacy of the mind (1st, 5th), body (4th, 5th), and home (3rd, 4th) which obviously covered the marital relationship. Goldberg pointed to the 9th Amendment’s reservation of individual rights, Harlan to the 14th Amendment’s liberty—each explained that we should sketch the contours of privacy/liberty in accord with the principles evidenced in our history and tradition—and Byron White just thought Connecticut’s contraceptives ban plain-old dumb. Two years later the Court recognized a right to interracial marriage, given antimiscegenation laws had only ever served racial bondage and then subordination. By 1972’s Eisenstadt v. Baird the Court extended Griswold’s marital-contraceptives right to the individual: what decision could be more important to an individual than “whether to bear or beget a child?” And Roe followed naturally the next year.

Then, things changed. In 1980, Reagan ran against abortion, won, and by 1989, new Justices O’Connor, Scalia, & Kennedy announced Court’s new approach: originalism. In Michael H. v. Gerald D., the Court rejected a biological, yet non-marital father’s claim for parental rights. Justice Scalia had scoured our history and tradition and found no prior, let alone “deeply rooted,” recognition of such a form of fatherhood (never mind that James Madison predeceased Rosalind Franklin by some 120 years). But the trend was not yet set in stone. The Court bounced between Griswold’s living tradition and Scalia’s historical practice and back several times over the next two decades. In 1997 the Court rejected a right to die, but in 2003 it recognized a right to same-sex intimacy. In 2008, Heller invented an individual right to gun ownership, citing originalism. And 2015’s Obergefell v. Hodges wielded the living tradition to recognize a right to same-sex marriage. But the 2016 election cemented originalism’s triumph. With the addition of Justices Gorsuch, Kavanaugh, and Barrett, the Court promptly reversed Roe—no state had recognized a right to abortion in 1868—and so stands the law today.

But we’re not just here to make kids memorize things; we’re here to teach them to think, and invite them to join the ongoing dialogue. So:

Three methods of discerning individual rights should be evident in the story above. History and tradition come in two broad varieties. On the liberal end we have Douglas, Harlan, and Goldberg looking to the principles animating our tradition of republican liberty. Douglas focused his analysis on the immediate consequences of those principles of privacy that made it into the Bill of Rights. Goldberg framed the venture as probing the “fundamental principles of liberty and justice” “deep[ly]-rooted” in our “traditions and conscience;” Harlan as the “basic values” “implicit in the concept of ordered liberty.” But it’s essentially the same notion of a living history and tradition.

On the reactionary end we have originalism. They still call it history and tradition, but play it out to the opposite end. Damn us to the silliest things James Madison did, lest we let the liberals recourse to the ideals he preached.

And longtime readers will recall that I set quite a bit in stock by Chief Justice Warren’s decision in Loving, that we realized just how fundamental the right to marry was by confronting how we’d deny. I call it defining by denying.

With the framework in place, we can replay different cases. How would Loving come out under an originalist lens (not good). Should that affect our view of Dobbs’ overruling Roe (probably)? Do the living tradition or equality give you a right to physician assisted suicide? How should Dobbs have come out if we took gender equality and the experience of enslaved women seriously? Isn’t this fun?

To varying degrees, each of these formulas for discerning rights can run into the same conservative criticisms: 1) what does that squishy moral take have to do with law and politics; and 2) why does the State owe you that? I’ve written quite a bit (here, here, here, and here) about why I think the democratic requirements of equality/reciprocal-consent require the state to recognize these rights. Yet I freely grant the rhetorical efficacy of the criticisms: why should the State guarantee you the pill, a pack of condoms, an abortion, or a tax break for your gay marriage? We on the left have got to find another way to think about rights that doesn’t revolve around the framing of State obligation. After this week, I think I’ve got it.

Instead of thinking about what the State owes us, we have to also ask ourselves what American citizenship will bear. In his Civil Rights Cases dissent, Justice Harlan offered two bases for Congress’s authority to prohibit racial denial of public accommodations. The first leaps off the page. American slavery as an institution rested on racial subordination; freedom under the Thirteenth Amendment demands immunity from that badge of servitude. Classic defining free-personhood by how we’ve denied it. At first glance, Harlan’s argument under the Fourteenth Amendment just repeats the same. But it doesn’t.

But what was secured to the colored citizens of the United States . . . With what rights, privileges, or immunities did this grant invest them? There is one, if there be no other—exemption from race discrimination in respect of any civil right . . . That, surely, is their constitutional privilege . . . A such must be their constitutional right . . . unless the recent amendments be splendid baubles . . . Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race . . . .

Sure, there’s equality there. But more so, Harlan says: if U.S. Citizenship tolerates discrimination on the basis of race, then U.S. Citizenship is a cheap blessing indeed. Given his repeated invocations both here and in Plessy, Harlan invites to recount the cost of American citizenship—in particular, every drop spilled by the 200,000 black men who fought to preserve the nation that had previously held them in bondage—as to ask ourselves: does the majesty of this citizenship, borne of this blood and toil, tolerate this bullshit?

Can there be a more deeply unserious intellectual venture—a greater affront to reason—than the drawing of distinctions between the human beings on the basis of melanin content? Would you tolerate for one moment being detained on account of your race by some piss-ass local cop in any nation across the globe today? Would you not whip out your passport, brandish the Secretary of State’s guarantee of your safe conduct, and threaten airstrikes should your body or your Vienna Convention rights be infringed?

With our heads not firmly screwed on straight we can see the full force of Justice Douglas decision in Griswold. Not satisfied merely to detail the entrenched tradition of privacy in our tradition and our constitutional text, he concludes:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marital relationship.

Whether you view America as the inheritance of Magna Carta, the Republic, or the Covenant on Sinai—or perhaps a little of each—what does that cherished blessing handed down through the ages entail? Does the citizenship hard won at Saratoga, Brandywine, Monmouth, and Yorktown tolerate its inheritors starving under an overpass? Does the blood let at Shiloh suffer the squalor of inner-city tenements? Shall we dishonor the boys frozen and massacred in the Ardennes by kneeling on citizens’ necks or by shooting them in the back. Did we liberate Dachau to see masked agents roam our own streets. Do we bury our boys by the tens and hundreds of thousands at Arlington so that women may bleed out in parking lots. I thought American citizenship meant something.

If you’re in the SCOTUS know, you may be aware that the right-wing nutjob law profs have been at it over the last year [insert, e.g., tweets from morons at Georgetown and Minnesota Law here], pretending that the Fourteenth Amendment to the United States Constitution doesn’t guarantee birthright citizenship. You’ll also know that Donald has issued an executive order to the same effect, which the Supreme Court may well uphold this coming spring/summer opinion season. It should tell you all you need to know about the “debate” to learn that the rightwingers trying to strip birthright citizenship from brown children born to undocumented parents are relying on some long-lost and newfound original understanding—which even the Supreme Court missed when settling the matter only 30 years after the Fourteenth Amendment’s ratification. Because, surprisingly enough, when the Court took up the matter for the first (and until now, only) time in 1898, they actually reached the right answer. How’s that for history and tradition?

Sometime in the late 1890s, San Francisco-born Wong Kim Ark accompanied his Chinese-national-but-lawful-permanent-resident parents on a visit to the home country. On his return, customs detained Ark, reasoning that he couldn’t possibly be a citizen (recall the Chinese Exclusion Acts barred his parents from naturalizing) and detained him. Ark filed a habeas corpus petition, which the Northern District of California granted (let’s hear it for 450 Golden Gate) and the Federal Government appealed to the Supreme Court to chuck him out.

Chief Justice Fuller and Justice Harlan (yeah, that one, sorry) would have let them. They reasoned that all this namby-pamby birthright (jus soli) citizenship nonsense was a relic of English feudalism, which we tossed in ‘76. All that common law, gone, Chief Justice Roger B. Taney told us (hold up, is that the guy you want to be citing here?). No such thing at the Federal level. So what replaced it? The Civil Law of Nations—the rule of jus sangui. Citizenship followed parentage, obviously. Otherwise, vacation babies wouldn’t be, you know, American citizens. Gasp. The horror.

Setting aside that jus sangui encapsulates very much the logic that Roger Taney wielded to deny citizenship to Black Americans on the grounds that their fore-bearers had been brought here purely to toil unremunerated in perpetuity, if you’ve spent even half an hour studying the law or have ever glimpsed at a history textbook, you’ll recognize all that as horseshit. American Law remains to this day a common law tradition. For most of our history, American courts would still look to British cases from time to time. Where do you think we got our notions of due process, property rights, basic criminal procedure, contract, and so much more? Hell, in 1898, Federal Courts still applied Federal General (simply put, Common) Law to commercial cases.

So as a matter of Hornbook law, Fuller flubbed it. But even more so as a matter of American political history. If the complaint with jus soli is that it’s a relic of Feudalism, boy do I have news about the Civil Law Tradition for you. Ever heard of France? Birthplace of Feudalism? Primary expositor of the civil law tradition by this point—the Code Napoleon? Submission to a god-king or an emperor? Still collecting “reparations” from Haiti? There’s jus sangui for you.

Contrast the bargain inherent in the common law’s jus soli: all born within the realm owe allegiance and submission but are also entitled to the Sovereign’s protection, which for what it’s worth, by 1688 means the King in Parliament. And this here’s the rub for Fuller, because he’s not so much worried about vacation babies as about the fact that, once properly recognized as a citizen, Wong Kim Ark can vote.

It’s this tradition, this bargain between the sovereign and the governed—entitled to both a say and protection, that Justice Gray’s majority opinion zeroes in on. Absolute sovereign territorial integrity means both that everyone born within that territory is born within the bargain and delineates the exceptions. If the Sovereign is essentially going to abandon someone born within that bargain to another sovereign, our Sovereign better have consented to it: thus children born to ambassadors and consuls, treated as bodily representatives of other sovereigns, or the courtesy of children born aboard foreign warships in our ports. And children born to hostile occupying forces aren’t actually born within the bargain.

The Fourteenth Amendment doesn’t really change any of this. If anything, Gray recognizes, the universal language of the amendment affirms jus soli, making damn clear that whatever racialized-exceptions we had concocted (Dred Scott) were now dead and buried. The legislative record even reveals that the Senate understood and agreed that the Fourteenth Amendment would make Chinese-American children citizens. True, we do technically add a third exception, Native American children born within tribal territory did not yet become citizens as of birth. Though, again, to Gray, that rested on the United States’ consent to the separate sovereignty of the tribes. But, in the main, the Fourteenth Amendment means exactly what it says. Anyone born within the jurisdiction of the United States is a citizen.

And here’s the best part. Because we can ignore all of that history and still reach the right result. Just read the text. Today’s rightwingers hope to convince the Court that undocumented people don’t exist within the “jurisdiction” of the United States because they aren’t here lawfully and, I guess, are contravening that jurisdiction? As Justice Gray recognized, the Fourteenth Amendment leaves no room for this argument. Again, just read the text:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

We need not attempt to interpret “jurisdiction” in a vacuum. The amendment uses it twice. Not just in the same amendment. Not just the same section. But the same sentence. The uses must align. If you are within the jurisdiction of the State such that they can violate your rights, you are within the jurisdiction for the purposes of birthright citizenship.

So today when we discuss the citizenship of a child born to undocumented people, we don’t actually have to jump into the legal histories of jus soli and jus sangui to determine which tradition prevailed at the Founding or during Reconstruction. We don’t even need to fight about analogies between undocumented persons and Native American tribes in the late 19th century, or worry about whether migrants cross the U.S. border at a rate sufficient to call it an invasion. The Fourteenth Amendment, as United States v. Wong Kim Ark recognized nearly 130 years ago recognized, gives us a simple test. If ICE could be present at a child’s birth, that child is an American citizen.

Reading—it’s not that hard.

This week in my introduction to American politics course we talked a lot about legitimation or origin myths. I started by asking: what makes you feel American, such that you might bat an eyelash if Vladimir Putin’s falschirmjaeger drop out of the sky one crisp morning?

Of course, many students (namely, sports fans and those burgeoning alcoholics) report some emotional stir at our rollicking anthem. Most still recall reciting the pledge daily beginning in kindergarten, or pre-K—as though having 24-year-old pre-school teachers brainwash children with meaningless drivel is a responsible way to run a government. Moving past one reported friendly “welcome home” from a customs officer at the airport (huh—never had that experience myself) and the odd (and upon inquiry, largely meaningless) recitations of “freedom” or “liberty” that made other students feel American, I asked them what gave them the right to feel American? Why shouldn’t they be British subjects, or French, or Spanish, or Mexican citizens, or citizens or subjects or visitors of an indigenous nation? What gave America the right to exist? Of course, they had no answer. So I asked them a simpler question: what stories did they hear growing up about American’s origins? And I’ll be damned if they didn’t all (okay, all who answered) warm my heart with the same answer: the Pilgrims, the Mayflower, and the first Thanksgiving.

Fortunately, it seems, we’ve done away with dressing kindergartners up in bad, mock Native American garb (I look forward to those pictures resurfacing in a Senate hearing someday). But they all got the story, and they all located it at the start of America.

And why shouldn’t they? After all, the Mayflower Compact stakes out the origin of our political tradition. Everything the Philadelphia Constitution will tell us in 1789, the Pilgrims presaged in 1620. “We, whose names are underwritten.” Why, that’s “We the People!” For the Glory of God, Advancement of the Faith, for our Better Ordering, Preservation, and the General Good. Just an early form of more perfect union, establish justice, tranquility, welfare and all that. Covenant and Combine Ourselves into a civil Body Politick. Just a fluffier way of saying “do ordain and establish.” Enact such just and equal laws as from time to time will be though meet and convenient. Well, you can’t expect the Pilgrims to have anticipated that we’ll blow that one into six articles of Federal procedure by 1789. Promise all Due Submission and hereunto subscribe our names. By 1789 we’ll turn that into a formal ratification process, but still keep the signature block for what it’s worth.

There we have it. Faith. Community. Deliberation. Labor (we read a little Cotton Mather to illustrate this). A people ordained by God. It will be hard, we shall be tested, but we shall be a city upon a hill, chosen by God as a beacon for all the world to see. Your inheritance, our inheritance, the wealth and magnificence of America, our entire tradition of democracy, traces step by step, day by day, community meeting by community meeting, organically (by the Grace of God) to that plucky little cross planted on a windswept spit of sand in some misbegotten corner of the Atlantic. I pledge allegiance, to the Flag…

And yet, my students grasp, even if they cannot yet articulate, something’s missing. The Mayflower Myth certainly does yeoman’s work, should you find yourself a blue-eyed, sandy haired, anglo-saxon evangelical. But what about the rest of us? I still remember my initial deflation when Mrs. MacIntyre assigned me to be an “Indian” as opposed to a Pilgrim in the Chapman Hills Elementary Thanksgiving pageant. Sure, I came around and had fun. But isn’t it remarkable that a five-year-old child, three-months into his public education, had already begun to comprehend a fundamental aspect of the Mayflower Myth: that the Pilgrims were Americans, and that the Native Americans were qualified Americans.

What does Mayflower mean for women, Native Americans, people of color, and people of different faiths? No, I don’t just mean flimsy liberal-squish representation—that we should run wild the bare historical fact that no women, indigenous or other people actually signed the Compact (paging Roger Taney). That can be overcome if Mayflower’s ideological components extend further than its particular circumstances. But there’s the rub. What beyond the bare fact of the Pilgrim’s presence at Plymouth grounds their actions? What, beyond the mere fact of their physical separation from their King gave them the right to covenant? Or, more to the point, what—beyond bare force of arms against the indigenous population of the land they now claimed as their own—gave the Pilgrims the right to govern themselves?

Here, we cannot but see the distance between Mayflower and Philadelphia. “We the People,” the most important words in the United States Constitution, tell us all we need to know: government of, by, and for the People. Everything else in the document (and on this, we may roughly agree with Kendall) is just detailed procedure for our deliberations to frame those just and equal laws. The title deed to the American project, the moral justification for our existence, lies in the appeal made by those first three words: to the consent of the governed, made necessary by the recognition that “all men are created equal.”

And to what, or whom, does Mayflower appeal by contrast? “We, whose names are underwritten?” We, who happen to find ourselves far enough away from King James with enough shot and powder to eradicate opposition? Okay, there’s more than that. “In the name of God, Amen” and “in the Presence of God and one another, covenant and combine ourselves into a civil Body Politick.” God gives them the right! Presumably just as he covenanted with the Israelites? Now, for one, what gives these Puritans the right to claim the inheritance of Israel? Sounds a lot like we’re just polishing force of arms by saying “Jesus” (wasn’t there a Commandment about this?) though to be fair, the Pilgrims aren’t alone in that fraud. And, for another, recall that the Old Testament Covenant left a rather genocidal wake. So, we see that the Mayflower Compact’s claim of right distills to an exclusive (“city upon a hill”) divine favor, to being a community of the Elect (which, as we recall, Kendall will airbrush as the faithful people deliberating under God)—the obvious flip-side being that everyone else, who by the way are not included in this democratic experiment, is damned to hell for all eternity.

The inadequacy of the Mayflower Myth as a moral justification for America is matched only by its threat to the entire venture. Whether the Protestant Congregational tradition embodied by Mayflower gave birth to the flaws of American classical liberalism or merely supercharged those already present, we cannot hope to address here. It is enough to see that latter did in no way displace the former. On the contrary, the Founders’ liberalism appears to have gulped down all its dangers as only a protestant could. What follower of Christ so readily acknowledges “the Duty of Self Preservation”—fear of death, that is—as “the first Law of Nature” (Sam Adams, Rights of the Colonists (1772)) but an adherent of the arbitrary and capricious Old Testament Almighty who isn’t entirely sure of his Election? The only word Paine will forget in Common Sense, describing “government” as a “necessary evil,” “the last punisher” of “our wickedness,” is depravity. And blessed are the poor, whom you shall love “as yourself,” for as Poor Richard tells us—trust not to the care of others, “If you would have your Business done, go; If not, send;” after all, “When the Well’s dry, they know the Worth of Water;” thus, accumulate!, for “God helps them that help themselves”and “there will be sleeping enough in the grave.”

As it turns out, the horseshit stories we tell our kids do matter. Mayflower offers a pretty good starting point for explaining Poor Richard’s Death Drive: a nation of depraved potential murderers driven to ceaseless accumulation just as much by the desperate need for material indicia of God’s favor as by the mortal terror of finding out they are arbitrarily damned to eternal hellfire. Happy first week back, everyone. Have fun asking ChatGPT for help on your calculus homework.

I got a very late call to join the political science department at the California Polytechnic State University in San Luis Obispo. That’s right—just as I had gotten genuinely comfortable with the unemployed polemicist gig, I got a job. Goddamit. Best laid plans…

On the other hand, that’s right, someone of policymaking authority at the California State University system has had the bright idea to entrust your boy with hundreds of California’s brightest and most impressionable young minds: teaching the mandatory general education introduction to American government. Who thought that was a good idea?

Obviously, I have had precious little no free time for the past few months. But that is finally starting to change. I might have time to read for fun a little this evening instead of just prepare class material, though let’s not get too ahead of ourselves. Over the next few weeks, I will try to get Seditious Conspiracy back up and running with biweekly and then (hopefully) weekly posts. It will probably look more like brief reflections on my weeks’ class material, rather than the longer-form essays of yore. Though, maybe that will be a good thing.

In sum, thanks to all four of you still here. It’s been quite a summer/fall.

A fun question, amenable to goodhearted debate for the entirety of the fifteen-week academic semester, but ultimately the wrong one. Law, and politics for that matter, either work, or they don’t. Or, as Leo Strauss taught, justice is either durable, or is no justice at all. There is no categorical command but justice, the common good. Principles, even timeless ones, offer only general guidance, because justice lies in the particular. Rules beget exceptions, and “the exceptions are as just as the rules.”

For it is not possible to define precisely what constitutes an extreme situation in contradisctinction to a normal situation. Every dangerous external or internal enemy is inventive to the extent that he is capable of transforming what, on the basis of previous experience, could reasonably be regarded as a normal situation into an extreme situation. Natural right must be mutable in order to cope with the inventiveness of wickedness.

To be sure, the exception must be recognized as such—not as license to depart from our usual norms, as a measured, even reluctance, responsibility to. And so, practical judgment always requires both our good sense and no small degree of critical self-reflection, “the objective discrimination between extreme actions which were just and extreme actions which were unjust is one of the noblest duties of the historian.” Thus we grapple with our incapacity to bring back four millions human lives, and even tragedy of adding another to the count, as we deliberately and carefully snap Hans Frank’s neck to ensure: never again. In short, if there be justice, we must by extraordinary means eradicate fascism. If not, we may choose to. Either way, hang the fuckers.

Yesterday, by a six-to-three vote, the Supreme Court of the United States permitted President Donald Trump to move forward with an executive order purporting to strip many of the blessings of birthright citizenship guaranteed by at least the Fourteenth Amendment and the blood of more than six hundred thousand Americans on the logic that the courts of the United States Federal Judiciary lack the authority to enjoin the full effect of unlawful action by the Executive. I may in future posts unpack the errors of constitutional interpretation, historical literacy, and basic civil procedure contained within Friday’s ruling in Trump v. CASA. But those must be seen as secondary.

Even assuming the accuracy of Justice Amy Coney Barrett’s opinion regarding the history, tradition, and general rules surrounding “universal” injunctions, the case asked a simpler question: what is more important to us? Birthright citizenship or civil procedure. Shall the promise of multiracial democracy and the blessings of equal justice under law triumph or bend to the minutiae of numerosity, commonality, typicality, and adequicity and their accompanying notes of decision prescribed in little pamphlets that only truly sick people carry in their pockets? Shall the contravention of our greatest declaration, that “all men are created equal” be subjected to the arcane writs and bills cognizable before the Hanoverian King’s Court of Chancery? Once we might have trusted the Court to know better. Even the arch-conservative Justice Lewis Powell recognized in 1973’s Chambers v. Mississippi, that even so foundational and respected law as the prohibition against hearsay “may not be applied mechanistically to defeat the ends of justice”—affording a defendant the right to present a full and cogent defense. Today, according to this Court—according to this mother of naturalized citizens—for the sake of the red hand illuminated on the pedestrian walk sign we may step not one foot into the street to aid a child.

It is the domain of the charlatan to present the law as theory instead of practice, as pure reason rather than real-world effects. A law student can check boxes on “settled” law; a jurist is expected to possess the judgment to recognize and resolve extraordinary cases. No tribunal which subordinates bedrock Constitutitonal principles to formalist hurdles on account of racial animus—and make no mistake, that is again the driver here—is entitled to institutional respect or personal obedience. In the coming months and years, as has already begun, the dignity of our fellow Americans, citizens or not, will rest ever more on our individual and communal action and our unreserved dedication to the principle of birthright citizenship. “[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased[] to be their own rulers.” Amy has made her decision. Now let her enforce it.

For Hurst, the myth of laissez faire in the American economy is, in a word, bullshit. By private property, the State delegates control over its resources to private individuals (and later, corporations). By contract, the State goes to bat for private parties to enforce duties and obligations imposed not by society but by the parties themselves. And beyond picking and choosing which preferred private parties the State elects to imbue with its coercive force, it also determines which behaviors to encourage (and which to discourage) across every other area of law, such as the limitation of damages to a narrow band of anticipated costs in contract. All law begins with policy. And in the nineteenth century, that policy was business.

The Federal government could not survey and basically throw wildly cheap land at white settlers across the ever progressing “West” fast enough. Once there, Federal and State funds built and granted charters and monopolies for desperately needed infrastructure—turnpikes, canals, and ultimately, railroads—these private entities often entrusted with the State’s power of eminent domain. In the name of the Commerce Clause, the Federal Courts erased State and local barriers to integrated markets. The corporation transformed from an instrument of high policy (think the East India Company) to an ordinary business form, carrying with it new forms of limited liability and access to credit flowing from the numerous State and then national banks. Bankruptcy offered security for the overzealous enterprise. And all the while, State and Federal reticence of not just progressive taxation but income taxation at all—in favor of levies on railroad and utility receipts at the State level, or tariffs and excise at the Federal, each which fell largely on consumers—left capital to accumulate, and more importantly, consolidate. As Hurst put it, “[t]hus [American] industry and finance could operate within a framework of social order paid for by other people” (82).

American law only slowly began to grapple with the consequences of the vast concentrations and disparities of wealth in large part because none of this had been planned. Piecemeal legislative action and ex-post judicial cultivation had created a self-propagating monster that could not be controlled without a substantial shift in the American legal psyche toward proactive regulation, particularly the expansion of legislative cognizance into the social realm, and the development of legislative fact-finding programs to focus broad action. Of course, the Supreme Court promptly declared war on much of this, rejecting early attempts at antitrust regulation, perverting the due process clause of the Fourteenth Amendment into a shield against regulation (such as the attempts to regulate obscene railroad carriage rates), and divining the specter of socialism is all attempts to provide baseline consumer and labor protections (e.g., Lochner v. New York). But it really can’t be missed, only against the backdrop of nearly a century of pro-business State beneficence could the Supreme Court discover a policy of laissez faire.

If there’s an original sin buried in there, it’s probably tied to the American love of private property. On the first day of property law, professors regale budding American lawyers with the Tragedy of the Commons (I swear to you this is real and not just a parody of Star Wars Episode III and the Tragedy of Darth Plagueis). In the beginning, the distinguished professor declaims, was the commons, the commons was without private ownership, and all was held in common. Yet the serpent came to one shepherd and asked, truly, ye shalt graze thy sheep this much and no more? And soon enough everyone overgrazed, the commons became barren, and that’s why we have private property, to ensure we each take personal responsibility for our plot, and keep our natural capital from going to waste. Except that, to Hurst, the reckless divvying up of America into yeoman’s plots accomplished the same damn thing. Dispossessed small-farmers, broken cities and impoverished masses, destroyed environs. John Quincy Adams lamented that the Federal government had sold vast quantities of land off too cheaply as the land of “inexhaustible” natural wealth proved anything but for our voracious appetites. An 1867 Wisconsin legislative report admitted the destruction of vast swathes of State forest, “[l]ands have thus been stripped of timber which are now little better than wastes” (100). But little came of these recognitions. Market and social regulation did not attempt to change American’s fundamental relationship with property. One recognizes a similar failing in today’s suburban sprawl, paved urban wastelands, Americans cocooned into automotive-isolation, awaiting one more lane or parking lot or new road—infrastructure incapable of keeping pace with an American land-allocation policy as dysfunctional as ever.

But the indictment comes with a glimmer of hope. For Hurst, “to the men whose bid for power formed the working institution of modern private property in the seventeenth and eighteenth centuries, property was chiefly a political idea” (8). Partly traditional, political power had always rested with the landed gentry and nobility, and partly practical, control of resources inherently carries communal influence, what began in England with the official enfranchisement of the newly-landed commercial men continued in the American project of even broader enfranchisement-via-landholding (for white men, at least). This sure seems to explain why the Founders entrusted legislatures, with simple due process and Common Law “treat likes alike” property protections (e.g., the Fifth Amendment), to not interfere too much with the interests of their fellow landholding voters, why succeeding generations of legislators and judges would focus American law to economic ends, and even why the Reconstruction Congress just assumed that mere extension of the franchise, property, and contract rights to black men would solve…you know (/gestures wildly)…slavery. There are a thousand reasons why American law developed the way it did, as stupidly as it did, and a lot of it begins with our concept of property. But the recognition that property is inherently political isn’t one of them. Within the recognition that control of resources brings political power lies the forgotten corollary that political freedom rests on economic freedom. If that’s not a spark of socialism, I don’t know what is.

I know some of you have been fretting about the future lately. Are we on the road to fascism? Will there be a 2028 Presidential Election? Are we getting a MAGA antipope in Pope Leo’s brother? Are all my friends moving abroad? Has everyone forgotten how to read? Will the Bannerlord expansion really drop in June? Where will you keep getting all of your incisive commentary on American law, politics, and constitutional thought?

Well folks, let me put your minds at ease: I’m not going anywhere. I am pleased to announce that despite my, and I presume yours, and many former supervisors and colleagues’ best efforts over the last five months, I will remain totally, 100%, entirely unemployed for the 2025-26 Substack Season. I’m all Seditious Conspiracy, all the time. That means more content. More memes. I’m talking more deep dives into the dark niches of political thought you didn’t know you wanted. More shitposting about reactionary freaks in legal academia. More bombastic plans to fix America. More Lincoln. And, of course, what you’re all here for, more Harry Jaffa.

Look, I know it’s been a slow and halting start this year. I had to move last summer. Then I went dark to organize several years of thoughts into a book proposal so I could apply for grant funding from the National Endowment for the Humanities—remember when we thought that stuff would still exist? Money’s got to come from somewhere though. So I spent the last five months applying for jobs, hoping to jump back on the horse of regional tier legal academia with a hot new research agenda and aggressive publishing plan. Okay, okay. It was always a fool’s errand. That’s on me.

The American legal establishment—having proven itself perennially incapable of providing for the American people’s basic material needs, securing racial and gender equality, guaranteeing the right to vote, refraining from engaging in genocide either foriegn or domestic, and now wholly incapable of preventing a fascistic, twice-impeached felon who is both textually and spiritually ineligible from returning to the Presidency—has not only failed, it’s the entire reason we’re in this mess. With a modicum of hindsight, only an idiot would put much hope into such a system suddenly changing it’s raison d’etre. Hope is always a little irrational though, isn’t it? Though while putting in that idiot’s labor, I denied you all dozens more posts. Mea culpa.

But things are settling. The book has an outline and a goal. The less I think about it, the more I wind up writing it. I’ve got lots to read this year, including several old Civil War histories and accumulated works of Lincoln liberated from musty antique malls out here in the woods.

I may (will) go dark this summer both to take some time off and just read. But this fall, we are so back. We’ll finish off the series on the “colorblind” Constitution and probably take a detour to see how reactionaries’ anti-classification notion runs headlong into the judicial doctrine of standing. We’ll take a spin through the origin and consequences and (hopefully) point of judicial review in the American system. What does the obscure Eleventh Amendment actually mean? (Hint, whatever the Fourteenth says.) Does the government owe us anything, or are we just shit out of luck when others assail us within the territorial jurisdiciton of a sovereign who supposedly possesses and must therefore maintain the monopoly on the legitimate use of force? And why is American law so damn punitive and selfish and why is it John Calvin’s fault?

It’s Seditious Conspiracy Season 2. Sophomore Slump. Back to our roots. 2 Houses, 2 Divided. Tell your friends! Tell your mom, your dad, your aunts (probably not your uncle). Shout it on the mountaintops. And to all four of you reading, thank you.

Like abortion, the debate over gay marriage does not really concern the particular right claimed but rather the equal human dignity and decisional capacity of a perceived “other.” That, conclusively, is what “the Constitution . . . [has] to do with it.” Unlike abortion, however, which reactionaries damn as an abomination in all instances (save, in utmost secrecy, the conveniency of their mistresses, wives, and daughters), opponents of gay marriage debate do not deny the importance of marriage or its status as a Constitutional right. As Chief Justice Roberts detailed in his Obergefell dissent:

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms.

In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes . . . promoting domestic felicity, and . . . securing the maintenance and education of children.” An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” The first edition of Black’s Law Dictionary defined marriage as “the civil status of one man and one woman united in law for life.”

This Court’s precedents have repeatedly described marriage . . . as “the union for life . . . which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” . . . as “fundamental to our very existence and survival.”

In other words, marriage equality presents a sort of inverse to the usual reactionary rejection of a claimed right. Marriage is certainly a right—it’s sacred! Too sacred, in fact, to be shared with those who would degrade it. Reactionaries would deny LGBTQ folks’ competence to share in that most fundamental of choices—whom to build a life with, whom to raise a family with, and whom to love. And, as before, one incompetent to govern their most intimate affairs is surely incompetent to partake in civil and political society.

Both the rapid embrace of LGBTQ Americans into mainstream(ish) society over the last twenty-or-so years and the Right’s backlash, portraying gay and trans Americans as some sort of “woke” invention of this recent era, can obscure American law’s deeply rooted animosity toward queer folks. So it’s worth taking a very brief and truncated spin through history to illustrate that American law has long acknowledged and abhorred the existence of LGBTQ people. For this summary, I draw heavily on the work of Professor William Eskridge, who literally wrote the many books on the subject.

We ought to begin by recognizing the somewhat exclusionary nature of framing the matter of LGBTQ rights and equality around marriage in the first place. Whether or not you believe marriage intractably patriarchal (I’d like to think it’s not—if my work shows anything, it’s that we can royally fuck up even the nicest things), we have to recognize that not everyone wants marriage. Equality must extend beyond the blessing of relationships that just look like “traditional” ones, and certainly beyond mere tolerance for divergence from “traditional,” procreative, marital sex behind closed doors, and must instead embrace queer folks as equally morally good and valuable members of our society. But, as previously noted, the marriage equality debate offers a useful lens because it isn’t really about marriage. Nor has it really been about “traditional” or prudish discomfort with homosexual activity.

To be sure, it sort of, theoretically, started that way. The Common Law’s preoccupation with “theology-based unnatural acts” imposed severe punishments, including burning or burying alive. British colonists naturally carried this tradition with them to the New World. As Chief Justice Burger concurred in 1986’s Bowers v. Hardwick, upholding Georgia’s criminalization of sodomy:

During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.”

The creation of a theologically condemned class would have obvious (if not yet particularly relevant) political implications—how could the God-fearing folk of Britain and the Colonies subject themselves to rule by votes of the presumably damned? Indeed, despite the bombastic rhetoric and potential violence, such broader societal implications seemed to be the point, at least more than actually rooting out and preventing homosexual encounters. As Eskridge notes, antisodomy laws were rarely deployed against consensual homosexual activity until the Gilded Age.

All this began to change in the 1880s and 1890s as American law transformed queer folks from the Common Law’s “heretical sodomite” first into the “degenerate sexual invert” and then into the “psychopathic homosexual,” revealing more openly the political implications of Americans’ newfound and rather obsessive regulation of queer bodies. When early sexologists described of one’s departure from traditional gender norms as “congenital defect,” “sexual pathology,” “degeneration, or reversion,” regulators ran wild with the notion of a societal infection. “All vice and crime,” one commentator maintained, “could be traced to ‘the degenerate classes,’” chiefly including “sexual inverts.” Eskridge recounts:

More alarmingly, degeneracy was thought to be a social disease that can be passed on to the next generation, both through inheritable characteristics and the bad examples set by degenerates to the young. As cures, [some doctors] proposed bans on marriage by degenerates, eugenic castration, and sterilization.

Anthony Comstock—yes that Comstock, whose eponymous and draconian Act the Right now seeks to wield against the transport of medication-abortion prescriptions, and perhaps even medical implements for other procedures—captured the spirit: “These inverts are not fit to live with the rest of mankind.” The postal potentate’s involvement heralded serious Federal intervention.

Immigration law had already provided for the exclusion of alleged prostitutes, among other purveyors of “moral turpitude,” the 1917 Act “added a new category of excluded individuals: persons suffering from ‘constitutional psychopathic inferiority.’” Or, as the Commissioner-General of Immigration put it, “nothing can be more important than to keep out of the country the anarchistically [sic] and criminally inclined and the degenerate of sexual morality.” Unsurprisingly, Federal officials targeted gay men. Following the First World War and several “disturbing” (and embarrassing, if utterly unsurprising) revelations about homosexual activity at Newport (Rhode Island) Naval Training Station, the military moved to eject “medical degenera[tes].” Army Regulation 40-105 detailed various anatomical “stigmata of degeneracy” and functional, including “sexual perversions,” and “excluded recruits who showed signs of constitutional psychopathic state, including sexual psychopathy, which made them incapable of attaining a satisfactory adjustment to the average environment of civilized society.”

The 1920s marked yet another shift. (Mis)interpretations of Freud transformed the “congenital invert” into the “homosexual . . . the failed product of an easily derailed psychosexual development . . . more of a social threat . . . sexually out of control and even predatory.” Dr. Paul Bowers of the Indiana State Prison offered a representative opinion that “the homosexual was the quintessential psychopath,” explaining:

Not all expressions of homosexuality are to be regarded as evidence of insanity, yet it may be safely said that the majority of sexual perverts are psychopathic individuals.

Sexual perverts of the most disgusting types are found among the psychopaths.

Whether these anomalies of the sexual instinct are always congenital or not has not been settled, and it does seem that inverse and perverse sexual habits may be acquired early in life by association with vicious and depraved individuals. The sexual perverts are at any rate an exceedingly dangerous and demoralizing class which should be permanently isolated to prevent their mingling with others.

While none could reasonably mistake the political implications of labeling people innate criminals and social outcasts, with the close of the Second World War, regulators upped the rhetoric again: reclassifying LGTBQ folks as an existential threat to the State.

It started quite naturally with redoubled exclusion from the military and denial of G.I. Bill benefits to gay men (and women, for that matter, given the act tied benefits to marriage), but quickly escalated into witch-hunts across the Federal bureaucracy. A newsletter from the National Republican Party Chairperson warned that “[s]exual perverts . . . have infiltrated our Government in recent years” and reckoned they were “as dangerous as actual Communists.” A Senate investigative report concluded:

[T]hose who engage in overt acts of perversion lack the emotional stability of normal persons and indulgence in acts of sex perversion weakens the moral fiber of an individual to a degree that he is not suitable for a position of responsibility . . . One homosexual can pollute an entire office [of the government.]

Congress even declared “homosexuals and other sex perverts to be an enemy of the state because of their threat to American youth, public morals, and national security.” It should come as no surprise that “[b]y the 1950s, citizenship for homosexuals was conditioned upon their willingness to be closeted.”

We need not belabor the obvious. The matter of same-sex marriage never really turned on marriage. And, for that matter, to the extent it ever really turned on prudish discomfort with sex, we left that behind long, long ago. For at least the last century, American law has regulated LGBTQ folks with the express purpose of relegating them from the body politic. Though never enslaved or formally disenfranchised, their classification as various forms of mental deficiency or degeneracy, exclusion from immigration, expulsion from the military and civil service, and surveillance designed to suppress and drive them from society all rested on the notion of queer folks’ inherent indignity and decisional incapacity, and thus necessarily if implicitly their lack of fitness for democratic self-governance.

Constitutional arguments in favor of gay marriage have run the gamut from extending the right to privacy and First Amendment protected expression to unwarranted gender discrimination based on the underlying right to marriage. These are all very nice and lawyerly arguments, but it should be clear enough now (if a little ironic) that Justice Kennedy’s pontifications about dignity and being nice to gay people (in otherwise stable and traditional relationships) proves nearest the mark—even if he never could really articulate it as a constitutional matter. However undeveloped, Kennedy’s discomfort with the vilification of LGBTQ folks—evident previously in his decisions decriminalizing consensual-same-sex relations in Lawrence v. Texas or striking down a weird constitutional referendum in Colorado barring queer folks from statutory civil rights protections (such as had been enacted in Denver, Boulder, and Aspen) in Romer v. Evans for displaying bare “animus”—grasps the core of equality. Indeed, conservatives’ continued tantrums, either equating same-sex marriage to bestiality, pedophilia, or other forms of non-consensual (and thus subordinative) relations, or their attempts to recast themselves as the victims of some grand (and intolerant) “homosexual agenda” (always refusing to address the long history summarized above, of course), betray an implicit understanding that these equality fights revolve not around “traditional family values” but around animus and subordination. The rights, privileges, or dignities we strip from or deny to disfavored groups in order to subordinate them are the best evidence that we’ve stumbled, however accidentally, across the contours of citizenship and personhood. Denial of access to a right so universally recognized as fundamental as marriage should prove the case doubly so. It just cannot be overemphasized that those whom we deem incapable of handling their private affairs we quickly and easily deem incapable of republican citizenship.

Not yet long enough ago in Romer, Justice Scalia sought to uphold Colorado’s anti-LGTBQ constitutional filibuster in part on the Court’s previous “approv[al of] a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote.” I suspect many took the jab as just another entry in the canon of Scalia rhetorical bluster which conservatives recite in sleepless whispers. It wasn’t bluster. In the name of “traditional” religious exercise the Court has since stripped queer Americans of equal civil accommodations. In the name of parental rights and vague invocations of propriety, the Court looks set to bless the erasure of LGBTQ Americans’ existence from public school curricula. And it has recently permitted the expulsion of trans people from the military. Beyond chipping away at queer Americans’ ability to partake equally in their nation’s civil, economic, and (ultimately) political life, each of these moves deny their fitness to. Certainly more than a few steps remain between us and the recriminalization and disenfranchisement of queer Americans. But just ask Black Americans, the path is well trod.

The same analysis works to sketch the fundamental rights of citizenship. Recall from last summer, the democratic compact rests not merely upon the recognition that no one may rule over another without their consent but equally upon our mutual recognition of our shared human dignity and decisional capacity—we each consent to be ruled by the votes of others. At bottom, there’s no meaningful distinction between personal and communal self-governance; the personal is the political—self-control means playing well with others. Denial of one’s basic and personal decisionmaking necessarily denies one’s capacity not merely for citizenship but for freedom.

The denial of enslaved women’s reproductive autonomy should be enough to rank it as a fundamental right. But let’s play it all out for those in the back.

The decision to bear a child or not ranks among the most important one can make in charting, governing you might say, their life. Yet abortion bans don’t stop abortion, and they don’t preclude a decision from being made. Rather, they take that most constitutive decision and hand it to another. The woman’s1 decision to become a parent or not becomes the State’s. Thus, the whole abortion debate is really just a debate about women’s decisional capacity.

It’s worth framing the issue amidst some practical considerations. Assuming the abortion decision can be alienated from the woman, we run immediately into several complications. To start, who if not the woman, decides? In its best democratic façade, the state legislature appropriates a pregnant body to “vindicate” the state’s interest in potential life. Yet even if a theoretical argument about the primacy of legislative deliberation to decide individual abortion petitions case by case could be made, reality quashes it. The incidence and pace of pregnancy utterly prevent such a venture. So legislatures do not weigh and decide every case of unplanned, unwanted, or complicated pregnancy; they delegate. Thus, even where States supposedly carve out civilized exceptions into their categorical abortion bans, they usually just hand the ultimate decision to some second-rate hack, usually referred to as a “district attorney.” Whether to subject one’s body to the rigors of pregnancy becomes the DA’s choice. Whether to assume the risks to health and life involved in pregnancy becomes the DA’s choice. The line between abortion and miscarriage? The line between medically necessary and not? Drawn by the DA.

This leads to a further snag. Rare as they may be, medical complications occur often enough to demand our attention. For one, we should expect legislation to grapple with such reasonably foreseeable (and well publicized) complications. For another, the supposed justice of abortion restrictions rests on the assumption that the State will reach a better decision than the woman might. Yet experience lends little assurance that legal or political actors will make better medical decisions than doctors. And one suspects, given the deeply personal balancing of medical, moral, religious, and material interests across varied circumstances within the temporal constraints of pregnancy (and of the various procedures), that even good-faith State health and safety exceptions to abortion prohibitions would prove largely inadministrable. How much risk to health and wellbeing is required to justify treatment? Presumably we want physicians to err on the side of caution. Though, in the pregnancy context, erring on the side of maternal wellbeing runs dangerously close to erring on the side of felony indictment. For on-the-spot legal guidance, must emergency rooms install special red telephones directly to the State Attorney General? Or will our good on-site medical commissars clear up murky zones? The theoretical and idealized “State’s decision” inevitably becomes the woman’s and her doctor’s decision made under threat of the State’s ex post review. Even setting aside the financial, professional, and social burdens, punishments, and rampant discriminations attendant upon childbirth, it is difficult to see how the American lust for enforcement-via-criminal-sanction would ensure rather than chill good medical decisionmaking.

Against the backdrop of women already denied treatment by scared doctors or arrested for miscarriage, we would be remiss here to ignore the bad faith with which Republicans have implemented the first-round of post-Roe abortion prohibitions. In an advisory published shortly after Dobbs, Texas Attorney General Ken Paxton promised felony charges, hundred-thousand dollar fines, and loss of medical licenses for any who might “‘knowingly perform, induce, or attempt an abortion’ except under limited circumstances, such as a life-threatening condition to the mother caused by the pregnancy.” If the gleeful punitivity alone did not bely the State’s professed dedication to sound medical decisionmaking within the exception, in December 2023, after one woman sued for declaratory relief seeking the assurance that her fatal fetal-diagnosis qualified, Paxton threatened action against any hospitals that might have permitted doctors to carry out the procedure before (days later) the Texas Supreme Court quashed a lower court injunction that would have permitted the treatment—its parsing of meaningless semantics making abundantly clear that law enforcement personnel and judges, not doctors, will determine (presumably in years later criminal proceedings) whether Texas’ vague medical-necessity standard has been satisfied. In re State, No. 23-0994 (Tex. Dec. 11, 2023). So much for the State’s supposed interest in maternal health and safety.

Suffice it to say, as a practical matter, taking such potentially complex and personal decisionmaking from the woman proves cumbersome at best. Against all this weigh a few simple considerations. Uncoerced decisionmaking usually proves best. Nothing can be done to or for the potential life that does not first impact the mother. And no one of decisional capacity stands closer to the decision, to the facts, and offers a better focal point for the informed counsel of doctors, spouses, family, friends, and even . . . gasp . . . clergy (one must wonder why so many freedom loving Catholics would substitute priestly guidance for the DA’s dictate). We can cherish the potential life, aim to provide for it, and still recognize that the careful balancing of life, health, love, career, family, and all aspects of self-determination has to be made by someone. Not just equality but pragmatism, recognizing women’s equal dignity and capacity for self-determination, holds that this decision, complex or not, must ultimately rest freely with the one most intimately connected to the entire matter: the woman herself.

Thus we arrive at the ultimate question of underlying the abortion debate: why shouldn’t the woman decide? Theological window dressing, arguments on this point have been remarkably honest in our nation’s history: because they can’t. One Dobbs amicus brief, neatly summarized the historic view:

In the nineteenth century, the physician who led the campaign to ban abortion, Dr. Horatio Storer, claimed that childbearing was the end for which married women are physiologically constituted and for which they are destined by nature . . . [D]octors further justified controlling women’s roles by asserting women’s incompetence to make their own decisions about sex and childbearing . . . anti-abortion advocated claimed that termination of pregnancy is disastrous to a woman’s mental, moral, and physical well-being. The notion that interrupting a pregnancy produced feminine hysteria followed neatly from the premise that women lack decisional capacity to choose to avoid motherhood.

Indeed, this decrepit stereotype—invoked by state legislatures right up to the present (Mississippi’s H.B. 1510 at issue in Dobbs recited a slew of “emotional[] and psychological consequences of abortion,” including depression, anxiety, and substance abuse)—fails to justify gender-specific abortion regulations on current sex-discrimination law, especially given the innumerable means of both contraception and material child-support States could (and don’t) offer to discourage abortion (many of which simply enable women to choose childbirth, free(r) of financial, professional, or other material coercions). And all that should be enough to condemn abortion restrictions to the dustbin. But this standard equal protection argument stops short of the ultimate point. Abortion restrictions hold a pregnant person categorically incapable of their most-intimate self-governance.

If this account seems too hysterical, take the Justices’ own words over the years. Opening his Roe dissent (in the accompanying Doe v. Bolton decision), Justice White demeaned a “putative mother’s” decision to obtain an abortion as motivated by “convenience, whim, or caprice.” In 1992’s Planned Parenthood v. Casey, confirming (if scaling back) Roe’s abortion right, Justices O’Connor, Kennedy, and Souter endeavored to more fully respect such choices—“the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it”—but all too often fell back into condescension:

Abortion is a unique act . . . fraught with consequences . . . for the woman who must live with the implications of her decision.

[I]t does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear.

Measures aimed at ensuring that a woman’s choice contemplates the consequences for the fetus do not necessarily interfere . . . .

Try to imagine the Court describing men as presumably ignorant and in need of stern guidance in their most intimate and personal decisionmaking. Matriculation into law school is a unique act, fraught with consequences social, economic, and political. The State has a compelling interest in ensuring young men grasp the philosophic debate and consequences of accepting an offer of employment from a large, international lawfirm. Measures aimed at ensuring these young men contemplate the social and economic consequences of their law practice do not necessarily interfere . . . . Justice Blackmun bluntly summarized Chief Justice Rehnquist’s accompanying view in Casey:

[F]or The Chief Justice, only women’s psychological health is a concern, and only to the extent that he assumes that every woman who decides to have an abortion does so without serious considerations of the moral implications of her decision.

In other words, States may fairly presume that women make important medical decisions without due consideration (and apparently ignorant of their doctor’s advice), unaware of the implications unless the legislature (composed primarily if not exclusively of men, mind you) steps in.

Justice Kennedy’s 2007 decision in Gonzales v. Carhart, upholding the constitutionality of the Federal Partial-Birth Abortion Ban of 2003, leaned so heavily into the decisional incompetence trope that it’s worth recounting in detail:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.

In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue.

It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.

Poor, hysterical women (Justice Ginsburg summarized in dissent). No need to ensure doctors properly explain things. Better to remove just difficult options entirely rather than to let women hurt themselves. No wonder even “free” women ranked as barely citizens for most of our history, lacking a separate legal existence from husbands, access to contract, courts, property, and above all, the franchise. One constitutionally incapable of governing her own body, after all, must be incapable of governing others.

All the old arguments in favor of abortion rights grasp truth. Restrictions rest on old offensive stereotypes and draw gender-distinctions without exhausting easy gender-neutral alternatives. Abortion rights permit women to partake equally in our national economy and public sphere. And they recognize an individual’s right to privacy and bodily autonomy. But none of those arguments adequately addresses the underlying point, or why abortion rights matter to the Constitution. At bottom, abortion restrictions in this country rest, and have always rested, on the denial of women’s equal decisional capacity. This strikes at the heart of the democratic compact. Thus abortion rights don’t merely let women partake equally in society and overcome old stereotypes, it recognizes them as capable republican constituents at all. Absent this basic recognition of equal dignity and capacity for self-governance, women’s enfranchisement, citizenship, and ultimately their freedom, rests on no more than the “majority’s” squishy good graces. If the American experience teaches anything, that’s not much to rely on.

That in itself should come as no surprise. As the dissenting justices noted, a corpus of law authored by white, landed men would tend to overlook the more “feminine” aspects of life. Yet the dissenters’ disagreement with the majority was not so great as might be supposed. Justices Breyer, Sotomayor, and Kagan agreed that history and tradition govern the Constitution’s protection of individual rights; they just looked both to a livelier tradition and from a more generalized vantage. Alito focused narrowly on the traditional reference to or regulation of abortion. The dissenters drew from the broader but long recognized principle of bodily autonomy. It should be emphasized, however, that both majority and dissent looked to evidence of some affirmative tradition to resolve the debate. Such analysis, I contend, remains incomplete.

In fairness to both wings of the Court, American law has long looked to such affirmative traditions of one sort or the other to demarcate the contours of American citizenship and free-personhood, though this should not be taken for granted. After all, while the Ninth Amendment tells us that more constitutionally cognizable rights exist than are mentioned in the Bill of Rights, it doesn’t tell us how to discern them. But aside from Justice Harlan’s assertion that black American’s equal civil accommodations counted “among those [rights] which are fundamental to citizenship in free republican government”—an assertion the Court rejected in 1883’s ironically named Civil Rights Cases—the lack of guidance did not prove too troublesome for the first few decades of the Federal Courts more active role in the late nineteenth and early twentieth centuries delineating the contours of citizenship under the Fourteenth Amendment. Jurists schooled in post-Lockean political theory naturally took the rights of property and contract for granted (the former tangentially mentioned in the Bill of Rights, the latter not at all), even if they disagreed that various maximum rate or minimum wage laws infringed those rights. And common sense governed the rest. As the Court explained in 1923’s Meyer v. Nebraska, recognizing the right to control the upbringing of one’s children, parents have always had that authority.

The Sexual Revolution and 1965’s Griswold v. Connecticut forced the Court to grapple seriously with the question of how to discern the unenumerated bounds of personhood within a rapidly diversifying society of opposed viewpoints. Could Connecticut criminalize marital use of contraception? Certainly some (ahem, Catholics) thought the prohibition not only established but even mandated by natural or divine law. Without going that far, two justices (Black & Stewart) thought Connecticut well within bounds because the Constitution had nothing to say on the matter, no matter how silly the pair thought the law was. By contrast, the remaining seven justices agreed that the Constitution protected married couples’ right to contraception, but fractured into three different theories. Justice Harlan (grandson of the 1800s Justice Harlan) thought the Due Process Clause of the Fourteenth Amendment protected against Connecticut’s “violat[ion of] basic values ‘implicit in the concept of ordered liberty.’” Justice Goldberg thought marital privacy so “basic and fundamental and deep-rooted in our society” as to surely fall within the Ninth Amendment’s reference to yet unenumerated rights. And Justice Douglas constructed a right to privacy upon the pillars of the First Amendment (right of association), Third Amendment (privacy from quartering of soldiers), Fourth Amendment (privacy of person and affects from unreasonable search), and the Fifth Amendment (privacy of mind and person against self-incrimination) which he thought certainly encompassed the (obviously) sacrosanct privacy of marital relations. Thus even the liberals of the Warren Court started with history and tradition.

Discerning new rights from some extant tradition provided boundaries to the endeavor, but it left the Court open to wild swings in application. How lively is that tradition? How closely do we frame the claimed right? In 1989, Michael H. v. Gerald D. asked whether a non-marital but biological father had constitutionally protected parental rights. Justice Scalia’s plurality opinion answered, no, because American law has not traditionally recognized the rights of multiple fathers; Justice Brennan answered, yes, because American law has long cherished parenthood and familial relations.

But if this mere disagreement over particularity presented an analytic hiccup, the Court has since proven wildly incapable of grappling with the realities of an imperfect, and at times abhorrent, legal tradition. For one, before recognizing the right to consensual homosexual activity rooted in the tradition of bodily autonomy in Lawrence v. Texas (2003), the Court had upheld its criminalization in 1986’s Bowers v. Hardwick, reasoning that such activity could not be deeply rooted—on the contrary, it had been long proscribed (which, to be sure, was true)! For another, while the Court has recognized rights to both interracial (1967’s Loving v. Virginia) and same-sex marriage (2015’s Obergefell v. Hodges), one must admit that neither practice can be said to be “deeply rooted in this Nation’s history and tradition”—as the Court demanded be shown of unenumerated rights in 1997’s Washington v. Glucksberg, rejecting a right to physician-assisted suicide—even if such relationships are arguably “implicit in the concept of ordered liberty” (whatever that means). And, of course, this all came to a head with abortion, recognized in 1973’s Roe v. Wade as a natural extension of the broader trend of privacy and autonomy, stripped in 2022’s Dobbs v. Jackson Women’s Health as not, at a more granular level, “deeply rooted” in our history and tradition. Whatever quibbles one might have with the Court’s more recent rigid crackdown on unenumerated rights, one cannot deny that the inherent conservatism of discerning such rights from history and tradition—of, to borrow from Strauss, discerning the ought from the is—lends itself to such approach.

This is not to condemn wholesale the turn to history and tradition for guidance. Humility and pragmatism advise against needless reinvention. But tradition warrants little more deference than its present utility. If much good is inherited, so too is much ill. Recall, until January 1, 1863, chattel bondage ranked among the most “deeply rooted” of our ways.

Reliance on affirmative tradition to sketch the contours of personhood has admirable roots in Rousseau’s generalization principle, viewing equality as reciprocity. My interests are just to the extent I recognize those identical interests in others. Lincoln considered such mutual recognition a duty concomitant to the right. One appealing to a “right” appeals to an objective, communal standard which governs us all equally. As Jaffa put it, “he who wills freedom for himself must simultaneously will freedom for others.” More simply, Lincoln wrote, “As I would not be a slave, so I would not be a master.”

So viewed, American law’s reciprocal practice of extending to all those fundamental rights already recognized, “deeply rooted” in our history and tradition, is just. But it remains incomplete. Lincoln reminds us that as much as equality demands reciprocity, it begins with our rejection of subordination. As much as we justly sketch the bounds of citizenship and free-personhood by reflecting on our most cherished interests, we define those bounds just as clearly by their denial to others. Equality demands we ask not only how in our history and tradition we have constructed the citizen, but equally how we have constructed the slave.

The Supreme Court recognized this, if implicitly, in the landmark Loving v. Virginia. While Chief Justice Warren’s opinion concluded by holding that a right so deeply rooted in our culture as marriage could not be abridged on account of race, the larger portion of his opinion attacked Virginia’s antimiscegenation statute as a pillar of white supremacy—not just in the twentieth century, but as one of the original pillars supporting chattel bondage. In so many words, the Court recognized marriage, and interracial marriage at that, as a fundamental right precisely because it had been denied for the purpose of subordinating Black Americans.

Defining citizenship and personhood by the denial of obvious civil and political rights, like voting or due process, is a start. But Loving pushes us further. Marriage does not often strike one as a political, let alone constitutional, matter. Racial animus made it so. And so (as we’ll explore) with many other matters. The democratic compact—our mutual submission to each other’s votes—demands our reciprocal recognition of equal human dignity and decisional capacity. Loving illustrates how the denial of seemingly apolitical personal and social dignities, premised on one’s unequal dignity or decisional capacity, defines both the bounds of citizenship and freedom.

Returning to the start, then. The turn to history and tradition to discern “unenumerated” rights is not necessarily unjust, but it—even from a more liberal vantage—remains incomplete. That the right to abortion is not “deeply rooted” in our history and tradition is both perfectly unexpected and yet answers only half of the question. Lest we shackle ourselves to past, indeed “deeply rooted,” error, we must also ask whether the denial of a right has served to subordinate. Concerning abortion and women’s bodily autonomy, the answer will presumably be yes. But we’ll get to that next time.

Last time we discussed the historical fact that the Fourteenth Amendment permits and anticipates race conscious remedies. But that raises the question: should it?

Let’s get one thing abundantly clear. The United States Constitution has never been colorblind. From the moment Jefferson’s ink hit the page, from the moment the Founders asserted their natural right to rule by popular consent, by democracy, one group was excepted—ruled without their consent, denied sovereignty, denied fit for democracy.

Racialized chattel enslavement marked an explicit racial exception to the United States Constitution’s first principle: “all men are created equal.” As we will see, the question of whether the Constitution can or should be colorblind is identical with the question of whether we may atone for that original sin. I have written enough already about the theoretical implications of equality—that “all” really means all; that democracy’s inherent justice embraces all humans regardless of race; and that rejection of human equality necessarily rejects the concept of justice—we need not repeat that here. For now, we will focus on lessons drawn from experience. We must take account of race until we have utterly forgotten racial animus and consigned it to the dustbin of history because the material badges and incidents of servitude inevitably provide ongoing bases for subordination. That bears repeating. The badges and incidents are the bases of enslavement.

We’ll get to all of this in time. But first some history. Given all the focus on Justice Harlan’s (in)famous proclamation, it would be worth reading the Court’s decision in Plessy, if only for context. Yet more importantly (conveniently?), as we will see, Plessy read in conjunction with the earlier Civil Rights Cases marks the paradigm for how the badges and incidents of servitude metastasize into the bases of continued subordination. That might not be apparent at first glance (it wasn’t to me), so today we’ll spend some time unpacking those two cases. Next time we’ll bring the story to the present. And after that, we’ll look to the future and answer the questions posed above.

If Justice Harlan’s dissent in Plessy surprised few in 1896, it was only because of his monumental dissent in 1883’s Civil Rights Cases. That case is taught, if at all, in Constitutional Law courses as the origin of the Court’s “state action” doctrine: the invention that the Fourteenth Amendment governs only State, not private, action. True enough, but simplistic. For the Civil Rights Cases’ real impact lies in its evisceration of the Fourteenth Amendment’s guarantee of equal citizenship.

To step back a moment, the Civil Rights Act of 1866 really was only the first round of Congressional Reconstruction. Soon after, Congress divvied the South into military districts and conditioned Southern States’ readmission to the Union on their ratification of the Fourteenth Amendment. The Civil Rights Act of 1871 gave President Ulysses S. Grant sweeping powers to wield the Union Army in defense of the Freedmen’s civil rights and cut Southern State courts out of the equation altogether. Where civil rights plaintiffs under the 1866 Act had to sue first in State court—for mistreatment undoubtedly sanctioned either by State law, official practice, or neglect—and then finagle their way into Federal court via a complicated procedural mechanism called “removal” jurisdiction, the 1871 Act extended Federal court jurisdiction to their claims. Then in 1875, building on the 1866 act, Congress added to the list of rights incident to American citizenship: equal civil accommodations. The Civil Rights Act of 1875 declared:

That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, facilities, and privileges of inns, public conveyances on land and water, theaters, and other places of public amusement.

Black Americans were to receive equal treatment at restaurants, pubs, theaters, railroads and other transportation—anything held open to the public. And to make itself exceedingly clear, Congress took a further extraordinary step. Since the Founding, State courts had been (and still generally are) presumed competent to hear cases and claims arising under Federal law. On the matter of equal civil accommodations, Congress had had enough of the recalcitrance, and stripped the State courts of the ability to preside over cases arising out of violations of the new Civil Rights Act. Unsurprisingly, white America resisted.

By October 1882, a batch of cases arising out of denials of service at various hotels, a theater in San Francisco, an opera in New York, and the Memphis & Charleston Railroad reached the Supreme Court. Yet these cases evinced more than Americans’ adherence to racism, they raised a seemingly mad challenge—that Congress lacked the authority to pass the Civil Rights Acts of 1875 under the auspices of the Thirteenth and Fourteenth Amendments which had so recently entirely remade the Constitution in Congress’ favor! And yet, it worked. Eight Justices, led by Grant’s own appointee, Joseph P. Bradley, declared the Act unconstitutional.

Bradley’s folly warrants little serious grappling. All could see the Fourteenth Amendment’s guarantee of due process, privileges and immunities, and equal protection targeted State misconduct—“No State shall . . . .” But those obviously weren’t the clauses on which Congress relied. To confine the force of the Amendment solely against the States, however, Bradley simply ignored the first sentence, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Indeed, in a truly laughable turn, Bradley posited that Congressional delineation and enforcement of the contours of such citizenship according to the Fourteenth Amendment would be “repugnant to the Tenth.” And, while he admitted that the Thirteenth Amendment prohibited both slavery and its badges and incidents, Bradley denied that the mere “social right[]” of civil accommodations fell within that ambit. “It would be running the slavery argument into the ground to make it apply to every act of [racial] discrimination . . . When a man has emerged from slavery . . . there must be some stage . . . when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.”

Alone, Harlan lambasted the Court. How could the Civil Rights Act of 1875 not fall comfortably within the Thirteenth Amendment’s ambit? What could the eradication of slavery mean any less than the eradication not just of the name but of the material badges and incidents of bondage—the guarantee of “the enjoyment of such civil rights as were fundamental to freedom?” However universally phrased in its dictate, the Thirteenth Amendment arose from a particular historical instance of enslavement, one which “rested wholly upon the inferiority, as a race, of those held in bondage.” Freedom for black Americans thus “necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races.”

Even ignoring a general protection from discrimination, the Common Law made abundantly clear freemen’s entitlement to equal accommodation on public highways and at inns and places of public amusement. Turnpikes, ferries, and railroads all served a fundamentally public function—liberty begins with “the power of locomotion,” Blackstone had told us. That’s why public highways, even privately owned, enjoyed the power of eminent domain, but were also subject to general State regulation. Inns played much the same public role. “An innkeeper is bound to take all travelers and wayfaring persons,” Justice Story had written. More pointedly, Harlan drew directly from English case law: “[I]nnkeepers are a sort of public servant[] . . . An indictment lies against an innkeeper who refuses to receive a guest, he having at the time room in his house . . . The innkeeper is not to select his guests.” And as to places of public amusement, “established and maintained under direct license of the law,” Harlan quoted the acclaimed English jurist, Lord Chief Justice Hale:

When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good.

Leaving nothing to the imagination, Harlan continued, “The colored race is part of that public.”

Harlan capped his argument dragging the cruel irony in the Court’s decision. There could be no question that the Thirteenth Amendment authorized Congress to directly govern private conduct in pursuit of the foregoing. After all, it both granted the right of free personhood and named Congress its guarantor. Besides directly governing private conduct, 1850’s Fugitive Slave Act placed far more Federal resources at a “master’s” disposal on the mere implication of the Constitution’s eponymous clause. As Justice Joseph Story had explained in Prigg v. Pennsylvania regarding the 1793 Fugitive Slave Act’s less intrusive—but no less direct—regulation of personal conduct: “It would be a strange anomaly and forced construction to suppose that the national government meant to rely for the due fulfillment of its own proper duties, and the right which it intended to secure, upon State legislation, and not upon that of the Union.” Is “[t]hat doctrine,” Harlan asked, “now to be abandoned when the inquiry is not to an implied power to protect the master’s rights, but what may Congress, under powers expressly granted do for the protection of freedom” for “a people which had been invited by an act of Congress to aid in saving from overthrow a government which, theretofore, by all its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them?”

Hardly content to leave matters to the Thirteenth Amendment, Harlan then detailed the Fourteenth’s equal authorization of the Civil Rights Act of 1875. Far from mere prohibition on State action, Harlan read the first sentence of the Amendment as though it had meaning. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Amendment explicitly and affirmatively granted United States (and State) citizenship to all who had been emancipated. And what substantive rights did Congress necessarily impart within that grant of citizenship? “[T]hose which are fundamental in citizenship in a free republican government.” At the very least, “if there be no other,” this included “exemption from race discrimination in respect of any civil rights belonging to citizens of the white race . . . .” And just as above, the Amendment’s enforcement provision, Section 5, authorized at least as direct and intrusive legislation as the Court had repeatedly recognized to be valid in defense of enslavers’ rights.

In one sense, the Civil Rights Cases left the result in Plessy v. Ferguson in doubt. Just because Congress could not prohibit racial discrimination in civil accommodations did not mean States could mandate it. But alongside inventing the “state action” doctrine, the Court crucially characterized civil accommodations as a “social” concern—not a matter of civil rights. In that light, the Fourteenth Amendment had nothing to say on the matter, be it Federal or State action. Plessy, then, was just a matter of time.

The facts of Plessy recount a familiar American story. In defiance of a Louisiana Statute prescribing racially segregated railcars, Homer Plessy, a black man, entered a whites-only carriage, was confronted by a conductor,1 ejected from the train, and imprisoned. And as even schoolchildren know, the United States Supreme Court upheld the constitutionality of such racial segregation, proclaiming it “equal but separate”—it was actually Harlan who phrased it “separate but equal.”

How did the Court ensure state-mandated racial segregation survive both the Thirteenth Amendment’s prohibition of slavery and its badges and incidents and the Fourteenth Amendment’s guarantee of equal citizenship? Well for one, segregated railcars, the Court said, merely separated the races. It did not reduce one back to bondage. For another, as to equal citizenship, the Court explained that equal did not so much mean equal treatment as much as equally ensuring each citizen stayed in his or her place:

[W]hen this great principle [Equality] comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same function and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.

While the Reconstruction Amendments meant “undoubtedly to enforce the absolute equality of the two races before the law . . . it could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political equality, or a commingling of the races upon terms unsatisfactory to either.” After all, no one seriously thought that racially segregated schools, or prohibitions of interracial marriage violated the Fourteenth Amendment. As our dearest First Lady Elinor Roosevelt would one day say, “No one can make you feel inferior without your consent.” Thus, the “fallacy” of Plessy’s complaint lay “in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not because of anything found in the act, but solely because the colored race chooses to put that construction upon it.” At bottom, “[i]f the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane [er . . . railroad car].” Of course, “the proportion of colored blood necessary to constitute a colored person” depends upon State law, and therefore may differ between the States. But that wasn’t the Court’s problem.

Harlan, to be fair, was not entirely alone in failing to join Justice Henry Billings Brown’s decision. Brown’s Yale classmate,2 Justice David Josiah Brewer (yes, the intellectual inbreeding goes all the way back) “did not hear argument or participate in the decision of th[e] case.” But for all intents and purposes, Harlan sat alone behind the bench.

We cannot ignore the modern debate about the Constitution’s cognizance of race as we read. This is no grand treatise on the Reconstruction Amendments, the import of civil accommodations to equal citizenship, and their denial as a badge of enslavement. To be sure, Harlan mentions those. But most modern misinterpretation of the opinion stems from ignorance of the fact that it is first and foremost a practical judicial decision, aimed at a specific legal question: the abomination of legalized racial subordination under the heading “separate but equal.”

So it should come as little surprise that Harlan begins the opinion by lambasting the use of race in civil accommodations at all, observing:

In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of their rights.

We need not dig into the weeds to grasp why. Civil accommodations are one notable area where simply erasing racial restrictions would be expected to resolve past injustice, no affirmative action or race-conscious continuing remedy required. Take down the “whites only” sign and the railcar or pub or hotel is, in fact, open to all. In the simplest cases, equality ignores race. But that is not this case.

It was not Plessy but Louisiana that brought race into question by segregating its railcars. This demanded a more searching notion of equality. The Reconstruction Amendments prohibited “discrimination . . . against any citizen because of his race.” The freedom guaranteed by the Thirteenth Amendment, and the equal citizenship guaranteed by the Fourteenth, each imparted “exemption from legal discriminations, implying inferiority in civil society.” Anticipating later debates regarding interracial marriage and LGBTQ rights, Harlan rejected the notion that “separate but equal” accommodations did not discriminate but rather “prescribe[d] a rule applicable alike to white and colored citizens.” He explained:

Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.

. . .

I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating citizens of the United States of a particular race, would be held to be consistent with the Constitution.

. . .

The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.

Even truly equal accommodations could not overcome the fact that the separation itself embodied racial hostility. The goal of race neutrality did not prevent our Constitution, in Harlan’s view, from rejecting the stratification of the people into superior and inferior:

[I]n 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.

Our Constitution may grant its blessings irrespective of race, but it sees and tolerates no deviation from that goal.

It remains an evergreen irony that those who would misconstrue Harlan’s words to reactionary ends today ignore the blatant white supremacy of his opinion. For his rosy conception of Constitutional civil equality masks a gaping caveat: social inequity:

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.

As in the Civil Rights Cases, Harlan’s operative disagreement with the Court proves to be simply whether public accommodations should be considered a civil or a social matter, and he chides the Court for opting for the latter, under fear that integrated railcars undermine white supremacy:

That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when travelling 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 a jury box.

Indeed, Harlan cannot help but mock Louisiana’s shabby (in his eyes) drafting, noting that while it excludes Black American citizens from white railcars, it fails to exclude members of other races, whom we consider “so different from our own that we do not permit those belonging to it to become citizens of the United States . . . I allude to the Chinese race.”

Thus, context confirms the conclusions sketched briefly last time: Harlan adopts an anti-subordination, not an anti-classification, notion of the Reconstruction Amendments, so far as they apply. But big complications remain. We will discuss Harlan’s ideological dissonance more later. On one hand, his white supremacy proves a useful caution against idealizing the past. On the other, it makes all the more remarkable his grasp of civil equality as by necessity a matter of racial antisubordination—and raises the question of what modern reactionaries stand to lose by rejecting Harlan’s best instincts while embracing his worst.

For a long time, I thought the Civil Rights Cases rendered Plessy more or less a footnote. Recasting civil accommodations as a social, not civil, right outside the scope of the equal protection clause freed States to segregate at will. Plessy just confirmed that. Moreover, I don’t think anything in Plessy matches the import of the Court’s rejection of Congress’ power to define that equal U.S. citizenship (as explained here). But I have come to recognize the importance of taking the step a prior case presages. With Plessy, the badges and incidents dismissed by an exasperated Bradley have transformed into the bases of Jim Crow.

It cannot be overemphasized. At common law, an innkeeper, bargeman, or train conductor would have had no ground to reject a traveler on the basis of race. Denial of civil accommodations to Black Americans rested entirely on their subordination and exclusion from the rights and privileges attending free personhood. This was no mere denial of dignity. Even today, the right to travel means little without accommodation on the road (just look at the Americans with Disabilities Act). Denial of those accommodations (and the resultant denial of travel) confines enslaved persons to the land of their bondage, just as it did serfs. Magic words don’t enslave people—material political, economic, and social shackles do. And so the badges and incidents of slavery must be viewed not merely as markers of servitude but the material pillars of that subordination.

All of this suffices to damn Bradley for denying Congress’ authority to eradicate not just the name but the practical condition of enslavement. Plessy, however, renewed the overt and legally mandated subordination which the malingering badges and incidents had threatened. Congressional incapacity gave way to relegalized white supremacy, but in new clothes. Recall from above:

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races on terms unsatisfactory to each.

Of course, we know, as did Harlan, that “unsatisfactory to each” meant “unsatisfactory to white folks.” But this is, at least nominally, a different argument than Black American’s supposed fitness for bondage. Justice Brown continued with:

If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals.

and

If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

In other words, Congressional incapacity has transformed into sociocultural propriety! We cannot force these separated peoples together; segregation must persist until white Americans view black Americans as equals. Having lawfully excluded Black Americans from white life for the preceding two centuries in the name of enslaving them, Justice Brown recast that remaining de facto segregation (very much ignoring the Black codes that had been passed across the South during Reconstruction) as white American’s right to be free of their Black compatriots.

This notion would merge into the “right of association,” embraced across American law all the way to the top. Case in point, Professor Herbert Wechsler of Columbia Law School—drafter of the liberal-fever-dream Model Penal Code, president of the preeminent American Law Institute, and still-namesake of the textbook on the jurisdiction of the Federal Judiciary— criticized Brown v. Board of Education rejection of Jim Crow in his celebrated Holmes Lecture at Harvard Law, Toward Neutral Principles of Constitutional Law:

For me, assuming equal facilities, the question posed by state-enforced segregation is not one of discrimination at all. Its human and its constitutional dimensions lie entirely elsewhere, in the denial by the state of freedom to associate, a denial that impinges in the same way on any groups or races that may be involved. I think, and I hope not without foundation, that the Southern white also pays heavily for segregation, not only in the sense of guilt that he must carry but also in the benefits he is denied . . .

But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is this not the heart of the issue involved, a conflict in human claims of high dimension, not unlike many others that involve the highest freedoms . . . Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?

As though white America has not merely the right to be racist, but the right to act upon it—claiming victimhood should that right to subordinate be infringed. This notion of law persists today in the “Mrs. Murphy” exception to 1968’s Fair Housing Act, which exempts small-time landlords from its prohibition of racial discrimination on the basis of that “right” to associate. But that starts treading on our topic next time.

For the present it suffices to answer Prof. Wechsler’s objection as we hinted at the start. The difference between one’s generalized right to choose friends and associates differs from one’s “right” to be free from interaction with Black Americans in that the former is just called making friends and the latter launders a renewed subordination predicated on the lingering badges and incidents of prior subordination. And that should start to make clear why we cannot avoid race-conscious remedies to historical racial subordination. Experience teaches that so long as markers of prior subordination remain they tend to retrench and provide the basis for renewed subordination.

We’ll explore some more recent examples and why this seems to be the case in the next two posts.

In a new introduction for the third printing of his masterpiece, Crisis of the House Divided, Harry Jaffa offered this illuminating remark about the origin of his work:

It was born in my mind when I discovered—at a time when I was studying the Republic with Leo Strauss—that the issue between Lincoln and Douglas was in substance, and very nearly in form, identical with the issue between Socrates and Thrasymachus. Douglas’s doctrine of “popular sovereignty” meant no more than that: in a democracy, justice is the interest of the majority, which is “the stronger.” Lincoln, however, insisted that the case for popular government depended upon a standard of right and wrong independent of mere opinion and one which was not justified merely by the counting of heads.

Initially, my lawyer-brain fixed upon the latter sentences; they do summarize the book remarkably well. The first sentence I dismissed jointly as necessary introductory fluff, rhetorical flourish, and continued evidence of Jaffa’s tendency to approach the condition of human chattel bondage too theoretically. Yet continued appreciation for the text eventually turned my mind to the question: where did Jaffa get it all? Inquiry into the student led naturally to the master, in particular, a book compiling several lectures Prof. Strauss delivered toward the end of Jaffa’s time with him at the University of Chicago.

There’s no escaping it: Leo Strauss’ Natural Right & History is an exhausting read. And given how many times I rolled my eyes at Jaffa’s invocations of natural right in Crisis, I won’t pretend to have approached this book with anything other than skepticism. Moments of brilliance interspersed among half-hours of drudgery (not escaping any German stereotypes), Strauss’ work may easily be read and dismissed as an old man’s diatribe about, well, everything these days. In bleaker moments, one might simply take solace playing Bingo with the same quirks evident in Crisis. Fixation with the Declaration? Check. Digging through political thinkers’ seemingly inconsistent statements to find some obscure, embedded, consistent principles? Check again. Tangential swipes at Marxists and modern liberals? Of course. Indeed, at the unresolved cessation of text (I dare not call it a conclusion), which one suspects even Wagner could suppress his antisemitism to admire, one wonders what the hell the book was about in the first place. On reflection, however—and crediting the master with a (perhaps excessive) caution of prose not evinced by the student—Natural Right & History lays a greater and more lasting foundation for Jaffa’s work than even the later acknowledgment lets on.

But first, the diatribe. Kids these days have turned from the eternal truths of natural right and instead taken to relativism and historicism:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness?” The nation dedicated to this proposition has now become, no doubt partly as a consequence of this dedication, the most powerful and prosperous of the nations of the earth. Does this nation in its maturity still cherish the faith in which it was conceived and raised? Does it hold those “truths to be self-evident?”

In the name of unreflective tolerance and openness, modern political thinkers have rejected the possibility of a universal justice or Right. Instead, reasoning that across time and space, different peoples have settled on different concepts of right and wrong, they dismiss all human thought as historically contingent. Thus our modern concept of justice has devolved into local and temporal custom. The historicist lacks any basis to pick between “civilization” and “cannibalism.”

Strauss would reject this trend outright, but apparently it gets worse. For its flaws, at least this softer form of historicism recognizes some rough-justice in local custom. Max Weber and his followers (read: Strauss’ Weber, and Strauss’ ______, throughout) rejected even the belief that communal custom might reflect an objective or intelligible justice. Human dignity lies in unfettered autonomy—individual self-actualization. Excellence becomes one’s devotion to a cause; it doesn’t really matter which. Though shalt have preferences. Conflicts between different values cannot be resolved by human reason. “Peace” denotes no more than the will of last victor to define it. So who are we to judge? Do as you will. Soon enough come the camps.

So that escalated quickly. Setting aside for the moment that Strauss hasn’t really given us a reason to prefer stuffy-old natural right, let alone any reason to think the medievals or classics offer a better path to avoiding racial or religious genocide, Strauss does answer the historicism’s challenge convincingly enough. In the great funhouse of the universe: 1) everything will look a little different depending on where one stands—diversity is the condition precedent for the search for truth, not its preclusion; and 2) anyone telling you it’s all mirrors and there’s no way out is, in fact, also promulgating a universal truth (one which, by the way, he inexplicably exempts from his own hypothesis). So, at least logically, historicism’s attempt to refute natural right fails. Maybe there are so universal tenets of justice?

But so what? What does natural right theory have to offer us today other than obsessively homophobic trad-Caths? Besides, Strauss’ quick jump from the abandonment of natural right theory to the amoral mass murder of the twentieth century seems a bit much; he doesn’t really account for the difference between the conduct of the liberal democracies and the fascist and communist dictatorships of the century. Several dozen million lives can’t be ignored that easily. Although, considering the pace with which American liberals swung from screaming about kids in cages on the Mexican border to gleefully exterminating them in Gaza, maybe Strauss is on to something. Couldn’t hurt to hear him out.

According to Strauss, philosophy has been one catastrophe after another since the decline of natural right in about 1600. To really understand how, we must go all the way back to understand how classical natural right developed. Philosophy, Strauss tells us, begins with doubt. Prephilosophic thought equated the good with the traditional or ancestral. Dogs wag. Birds fly. Our tribe foregoes pork. That tribe wears silly hats. Ways are; custom just is, if not divinely ordained. Somewhere along the line, humans grasp the abstract and recognize individuals as members of a class. The obvious diversity of things—different sizes and shapes of dogs and birds, varied custom—triggers one to turn the preference for observation over hearsay to “the most weighty matters.” Which custom is better? Why this diet, those hats? This leads into more fundamental questions. What makes a bird a bird, a dog a dog, or a person a person? Or put differently, what are our fundamental similarities? And if one custom is better than another, it can only be so by reason of some preceding thing. Nature precedes convention. So philosophy doubts tradition in search of the good not merely by convention, but by nature.

This, however, doesn’t necessarily get us to natural right theory. The distinction between nature and convention runs us pretty quickly into a problem: society. Humans create societies. Doesn’t that make society conventional and unnatural? Some thought so. The conventionalists (including the Epicureans) believed nature, in its fury and grandeur, to be wholly unconcerned with mortals. “Justice” and “right” were mere convention dictated by each city—convention atop convention! And since all political rule essentially rested on force or fraud, the common good was illusory. Instead the good became the pleasant, before and free of any human convention, to be truly sought (ultimately) only by the lone philosopher living at society’s fringe. Another group, the egalitarians, adhered to some notion of natural justice, but similarly rejected civil society as both artificial and as an affront to natural human freedom and equality. Society could be formed by compact, but it remained a depreciated form of humanity.

In the face of such antisocial pessimism, classical natural right flips the narrative. The diversity of concepts of justice and right prompt the search for a natural synthesis. Moreover, language points us not to solitude, but to natural sociability. That the city is a human construct does not make it unnatural. No one is an island, and more to the point, there’s no golf in the state of nature. The realm of freedom and pleasure begins where necessity ends. The good life, human cultivation toward perfection, requires society. It only comes about between citizens. We are political animals. Classical natural right seeks to construct the best society.

It should be emphasized here that classical natural right does not promulgate a code of conduct, or a natural law as some would later develop. Pursuit of the good life, or the common good—indeed, the pursuit of any principle—will vary according to ever-changing circumstance. Every rule has an exception. The exception that preserves the common good embodies justice just as much as the general rule might—a common good that is not durable is no common good at all. When push comes to shove, the closest thing to a classical natural law would be: 1) preserve the common good; 2) by all means; 3) without forgetting number 1. Practical results come ultimately from, well, practice.

Accepting for the purposes of the book that natural right had a good run from Socrates through Aquinas, it eventually all went to hell—fast. Hobbes recast nature not as man’s transcendent end but as his brutish beginnings. Reason could lead people to society by compact, but it could not overpower the fundamental moral truth: the individual fear of death—even if dressed up as a “right” to self-preservation. Locke, employing the Gospel according to Calvin, laundered that pessimism and even managed to steer Hobbes’ alienated flock toward democracy via a new underlying law of nature: fuck around and find out. But that fundamental Hobbesian death-drive toward self-preservation (along, one suspects, with no small dose of faith in providential ordering and election of the depraved) led Locke to a theory of selfish and unencumbered accumulation (in pursuit of the common good, of course), the sanctification of private property, and ultimately the “joyless quest for [accumulative] joy.”

Passion, emancipated by Hobbes, achieved its apotheosis under Rousseau. The natural brute became the noble savage; a pre-rational, sacral individual floating in the essentially random course of events. Only Rousseau’s fixation with classical virtue restrained him from equating, as did his students, liberty with license. And Burke took us to within one step of the abyss by equating the good with not so much the traditional but the is. Locke’s theory of property invaded politics, providence became progress. Human reason cannot match the wisdom of accidental history and time, which produce the common good out of acts and events not in themselves good, even if some can discern via prudence the present march of progress. “Everything good is inherited.”

For Strauss, pessimism, rejection of human reason, of nature supplying a standard, and individualization lead naturally to the rejection of any standards—either universal or local. Social science simultaneously contracts from the study of the ought to the is, from the human to the local to the individual. Without standards, anything goes. And when ideas don’t ultimately matter, force remains. Then indeed come the camps.

While there’s something to Strauss’ telling, left dangling so, one really is tempted to dismiss the work as a reactionary diatribe about the virtue of pre-seventeenth century thought. How are we supposed to fix this? Can we? Strauss never actually tells us. Yet, on reflection, one begins to suspect that’s the point. The books’ introduction parades around the opening of the Declaration of Independence as proclaiming the principles that propelled the United States to rise above all other nations. With a convert’s zeal, Strauss challenges our adherence to those principles. And then, for the remaining 300 pages, not a peep. The omission is too obvious. Why he doesn’t just come out and say it, that’s guesswork for another time (read, he’s German). For now it suffices to say that for Strauss, something in Jefferson is worth saving.

But what? Natural Right & History, after all, spends 200 pages detailing the crises of natural right in 1776, not its triumphs. What in the Declaration could be worth saving? It’s probably not the individual rights bit. Beside the aversion to individualization throughout, Strauss ends the book with this description of Burke:

The quarrel between the ancients and the moderns concerns eventually, and perhaps even from the beginning, the status of “individuality.” Burke himself was still too deeply imbued with the spirit of “sound antiquity” to allow concern with individuality to overpower concern with virtue.

He’s also likely not thrilled about the “right to life” insofar as it carries forward that Hobbesian death drive. And while Strauss would surely join the “pursuit of” the good life, he would just as surely oppose not just the apolitical and lonesome Epicurean pursuit but even more forcefully Locke’s happiness-via-accumulation or Rousseau’s passionately untethered individualism—pervasive notions at the Founding. So that’s unalienable rights, life, liberty, and the pursuit of happiness. Soon enough, then, we must realize that the only aspect of the Declaration Strauss hasn’t criticized (or heavily circumscribed) is equality. This requires us to credit Strauss with a . . . let’s call it caution, which he admirably ascribed to men like Locke. But with a little digging, equality emerges as a consistent theme of the work.

To start, though, there’s no avoiding that classical natural right severely devalued human equality. That, and the concomitant tolerance for slavery and monarchy, might be considered its greatest oversight. The best regime is the uninhibited rule of the wise. Consent of the governed might be a necessary fudge where we cannot readily find a good philosopher-king. But make no mistake, wisdom trumps consent for the classics.

One imagines that Strauss would consider these not damning flaws, but inescapable human errors on the road to truth. Philosophy synthesizes two imperfect tools: reason and senses. Ideology tends to self-justify. And our eyes and ears may lie to us (though, to be sure, stomachs don’t—starving people do die). Wealthy academic men, tended by servants and slaves in a world thus far written only by similarly situated men and characterized by force, iniquity, and monarchic or oligarchic rule since time immemorial, would tend to overvalue their own contributions while devaluing the dignity of all others. Fortunately for them, philosophy asks not so much whether they got it right as whether they, in dialogue with their forebearers, left us closer.

This would certainly explain Strauss’ seemingly tangential discussion of the egalitarians at the end of his introduction to philosophy. Classical natural right seeks to address the egalitarian pessimistic view of society by designing a state founded on justice rather than force, natural because it permits human flourishing. And the egalitarian demand for consent corrects the classics’ primary oversight: far from contrasting, consent—that is, the communal dialogue and deliberation manifest in the Congress that adopted Jefferson’s Declaration—embodies wisdom in ways an individual can never hope to achieve. Strauss points to a synthesis, equality as an ongoing political goal, that neither alone grasped.

Equality plays a similar implicit but foundational role in modern natural right, prompting the greatest developments and highlighting the primary flaws. However pessimistic, Hobbes and Locke’s contractarianism rests on equality; consent applies to all of us. As one would not be a slave, so one might not be a master (paging Lincoln?). And it is remarkable that Locke, despite his pessimism, reasons his way to the Golden Rule (if in decidedly negative form). The notion that another might, or indeed has any claim to, reciprocate mistreatment rests inescapably on equality. For his flaws, Rousseau recovered a positive view of equality. His principle of generalization, that our wants and claimed rights become legitimate only to the extent we recognize them in others, simply calls for our mutual recognition of equal human dignity. And Burke’s great failing, his rejection of human equality as the basis for political enfranchisement, runs straight into his great achievement, the recognition that a constitution must, first and foremost, actually work. Both Hobbes and Locke would have been familiar with the adage that only the wearer can tell where the shoe pinches (Kloppenberg, Toward Democracy 147). That is, Burke’s inability to see how the British constitution did not, in fact, serve its constituents can be attributed directly to his failure to credit the views of precisely those whom the arrangement failed to serve.

But all of this has been too deep in the weeds. There’s a simpler explanation. In Strauss’ telling, Weber’s grappling with the question of reason versus revelation and ultimate distrust in the capacity of human reason to grasp anything resembling Truth can be distilled into a seemingly disconcerting question: if gravity didn’t already exist, could we reason our way to it? Strauss demurs, perhaps because the answer is simple. No. If gravity did not already exist, we could not reason our way to it. In fact, if the universe did not already exist, we could not reason our way to it either. That’s fine. Natural right does not seek to create a world from scratch; it seeks to understand and live rationally within the one we’ve got. Weber’s discomfort turns out to be discomfort with the fact that humans are not gods. But then, isn’t that the fundamental moral fact of the universe? All men are created equal, because no man is a God.

Strauss tells us that philosophy began when we first applied the recognition of humanity’s natural similarity to the “most weighty things.” The twenty-five hundred year quest for natural right, much of political science it seems, has sought to apply that fundamental equality to the weightiest of things. Far from bombast, Jaffa severely understated the matter in his introduction to Crisis. Human equality is not merely “a standard of right and wrong independent of mere opinion.” It is the standard. The quest for Right is the quest to fully recognize human equality. If there be Right, it governs humans as humans—equally. If not, then there can be no Right. Right and wrong reduce to convention, to the will of the majority, to the will of the more powerful, and ultimately, to force. In the end, all men are created equal, or else.

While diving headlong into conservative political tracts might strike most as dull labor, I find fantasy to be an engaging and freeing genre in these troubled times. The then-late Willmoore Kendall and George Carey’s 1970 work, The Basic Symbols of the American Political Tradition, proved just the delight I needed. I laughed. I cried. I hummed, once or twice, at a cogent remark. I laughed again. Actually I laughed quite a bit. And most of all, I learned, once more, that some people are still pretending they weren’t conclusively defeated in the Civil War.

If nothing else, Kendall and Carey offer a clever methodology (apparently borrowed from some conservative eminence, Eric Voegelin, whom I’ve never read): taking seriously as politically revealing the stories, myths, yarns, or tales—symbols as they term them—with which America inculcates its children. For example, what does the myth of young George Washington and the cherry tree reveal about, say, our national need for a secular (dare we say political?) morality, aside from the Commandments? What does the demonstrably-false (for anyone having ever set foot between the 1500-mile expanse from the Sierra Nevada mountains to the Missouri River) claim that a squirrel could once jump branch-to-branch from coast-to-coast without once touching the ground reveal about American land use and resource-extraction policy? Why do so many pasty-white Americans claim native heritage? And what the hell was the point of Paul Bunyan’s blue cow?

Yes, all these, like history, are just lies we tell our children to justify the present. But what do they reveal about that present? That, one must admit, poses a worthy question. Now Kendall and Carey turn this methodology toward somewhat less colorful topics: America’s political charters. But they nevertheless begin where most of our childhood pageantry also began: the Mayflower. And, were one to squeeze her eyes shut and suppress all thought or imagination, Kendall and Carey’s retelling of the American political tradition just about works. Just about.

The American political tradition, Kendall and Carey tell us, begins in the saloon of the Mayflower in 1620 where the Pilgrims, finding themselves somewhat beyond the effective reach of London, have to recreate the King’s peace for themselves. Being good scripturalists they, naturally, put their plan to the page: the Mayflower Compact. Five aspects of the document warrant our attention. The drafters (1) begin with an invocation, “In the name of God,” suggesting their self-conscious deliberation. Remember that, it will be important. They continue, (2) identifying, themselves—though at this stage still as loyal subjects of the Crown. They (3) state their purposes, beginning with the usuals: glory to God, Advancement of the Faith, King and Country; and then more importantly: to combine into a body politic for their better ordering. Not best or perfect, but in good Puritan humility, just better—an ongoing commitment to improved interrelations. The (4) oath, we “solemnly . . . covenant,” reaffirms the self-conscious deliberation already noted, and (5) addendum quickly delineates some procedures and duties to live by: “to enact . . . just and equal laws . . . as from time to time shall be thought . . . convenient for the general good,” along with “all due Submission and Obedience.”

Funny hats and weird accents aside, for a first attempt at a written constitution, Mayflower isn’t half bad. From now on, most American political charters will follow its structure: invocation, identification, purposes, constitutive oath, and an addendum specifying the duties and procedures of the polity. Of course, things will develop. In about twenty years, the Fundamental Orders of Connecticut (1639) will flesh out the “general good” and “better ordering” as maintaining peace and union, maintaining and preserving liberty and the purity of the gospel, and orderly and decent government. And, curiously enough, the Connecticutians won’t even bother specifying the word “covenant” in their oath; Kendall and Carey tell us it’s already implied. Two years further on, the Massachusetts Body of Liberties (1641) will add an important adjective to the oath: “unanimously.” We can’t just form a new state by majority vote; this is too important. Everyone’s got to agree! Skip ahead to the eve of revolution and the Virginia Bill of Rights (1776) gives us the separation of church and state. Not a secular society, mind you. Virginians are still expected to practice mutual Christian love and charity, if given freedom to pick their preferred Rite. But they, like Pope and Emperor long before, have recognized the value of separating spiritual and temporal governance.

Perhaps most important, what Kendall and Carey call just an “addendum” in Mayflower will become the major part of those later documents, including the Constitution itself. Rather quickly, the Connecticutians recognized the need for some procedures of governance beyond the Mayflower’s sparse “play nice together,” giving us the first delineation of a legislative body and its accompanying governor and magistrates. Massachusetts next offered the first “Bill of Rights,” mostly what we would term criminal procedure—and not equal rights yet, mind you, merely those “due to every man in his place and proportion.” But hey, baby steps. Moreover, just because the colonial legislature doesn’t have any formal or legal limits doesn’t mean it’s all powerful. The bounds of humility, civility, and Christianity still apply, obviously. And the Virginia bill raised the first instance of a right (press freedom) which perhaps, in the modern sense, limits legislative power. But this, according to Kendall and Carey, is phrased less as a limitation on the Virginia legislature and more as a maxim of good governance.

The basic symbol should be clear enough by now. Throughout, Americans (well, white, male Americans of certain property) seek by communal self-government to improve their lives. They don’t need extravagant lists of what their legislature can or can’t do. They’re all good, pious men. Christian virtue and consensus will ensure the justice of their lawmaking. Simply put, as Kendall and Carey posit, the supreme symbol of the American political tradition is the virtuous people deliberating under God. Oh say, can you see. Eagle screech.

Thus far (still squinting, remember), Basic Symbols presents as a perfectly acceptable piece of white, conservative, mid-twentieth century political thought. Yes, questions linger. What gave early Americans the notion they were entitled to democratic self-governance? Sure, as Kendall and Carey note, the Puritans just modeled the Covenant on Sinai, and for a biblical textualist, that might be enough—even if it doesn’t really explain why this particular group of upstarts considers itself excepted from the unbroken command to “render unto” from Saul to James (or Charles); nor does it really explain why Virginia’s papaly-curious and presumably less-scripturally-retentive Anglicans would follow the same path. Though, jumping off of that, we’ve discussed precisely three colonies so far. Where’s the rest of the country? Why are we so concerned with an exclusive, home-grown political tradition that we spend half the Virginia chapter scrubbing Locke from the list of influences? Why does our concern with New England legislative supremacy lead to a half-baked diatribe about the hypothetical Mrs. Murphy’s right to choose (read, exclude Black people) her boarders?1 But, hey, this is all just historical curiosity, right? How much of this tradition will actually survive the Revolution, Reconstruction, or experience? Surely we’ll find out. Baby steps, right?

So it comes as somewhat of a shock when Chapter 5 implodes into a gripe fest about the Declaration of Independence and Abraham Lincoln. Apparently, the Declaration of Independence, yes, that Declaration of Independence—Jefferson, Adams, Franklin, George Washington crossing the Delaware, 1776 and all that!—should be viewed neither as a constitutive document, nor as the founding of a nation, but merely as the explanation for revolt; not an organic step in the American political tradition—but a deviation. Founding of a nation? Hogwash! The States were “united” only in lower case, “free and independent” all on their own! (Never mind that they declared independence together, in one Congress, that no state achieved that independence alone, and that they concluded the peace together, Adams, Franklin, & Jay representing not individual but “United States.”) The Declaration can’t rise to the stature of the Mayflower Compact! It gives “no guidance” how to construct a government! (Apparently, we ought to ignore the Declaration’s fundamental guidance, that just government rests on the “consent of the governed,” leaves us but one choice: democracy). And “all men are created equal?” Heresy. Never before mentioned in our political tradition. A single phrase, ripped from context. How does liberty square with equality, after all? Besides, Jefferson obviously didn’t mean it, since he didn’t free the slaves (paging Roger Taney). The best that can be said for the Declaration, Kendall and Carey tell us, is that it correctly notes the King’s interference with the American tradition of self-governance, and that those governments ought to secure men’s rights and consent. More seriously, they say, the Declaration severs our political inheritance in two: one tradition of communal deliberation for the common good; the other of extreme, Lincolnian equality.

Thank God the Philadelphia Constitution returned us to sound five-part tradition. Okay, so we skipped the invocation. But “We the People” is a great identification; “in Order to form a more perfect Union . . . ” (and so on), an excellent purpose; “do ordain and establish this Constitution for the United States of America,” see the “covenant” is still implied! And then, seven articles of addenda. No mention of newfangled individual or unalienable rights or, shudder, equality. Just detailed procedures for slow and methodical deliberation to consensus—who’s to say the majority view isn’t just another faction? The only way to be sure that something is in the public interest is to get the minority on board as well. We’re back! A virtuous people indeed deliberating under God.

And, don’t worry, the Bill of Rights didn’t change any of this. Some people (none of whom were in Philadelphia) were concerned, and consensus-building James Madison convinced the First Congress that it couldn’t hurt to jot down a few aspects of criminal procedure, searches and seizures and trials and whatnot, to ensure their lasting respect. Oh and something about guns, and freedom of speech, within the common law boundaries of sedition and libel, of course. None of this required much debate, because it didn’t much change anything. As always in our tradition, rights only run against executive or judicial overreach; they don’t limit legislative supremacy because they don’t need to. Remember, slow, steady, approaching unanimity. A virtuous people deliberating under God don’t oppress each other.

With a single chapter remaining for Kendall and Carey to both reveal the modern derailment of this tradition and get us back on track, one’s lingering questions can no longer be suppressed. Have Kendall and Carey just dropped us off in 1791 and called tradition accomplished? What about the Civil War? What about Reconstruction? Jim Crow? Civil Rights? For that matter, isn’t it odd that we haven’t once mentioned slavery? And wait a minute, why are we so against equality anyway? Did I mention we haven’t talked about slavery yet?

At last Kendall and Carey reveal their perceived derailment of the American political tradition. The pair likely could not have foreseen how well their framing of the matter would resonate with future audiences living under the aggressively-unintelligent judicial oligarchy of the Roberts Court. Why, they ask, does Congress so regularly defer to the Supreme Court? Don’t blame the Constitution. The Court’s present role as supreme constitutional arbiter finds no basis in the text. On the contrary, the Constitution empowers Congress as first among the branches, wielding both the purse and impeachment. The notion of three coordinate branches comes not from Philadelphia, but from The Federalist. So, they repeat to a cheering audience, why does Congress bend over backwards to the Court?

Except that, to Kendall and Carey, The Federalist is precisely why Congress ought to back down. The Constitutional morality of consensus building between coordinate branches counsels the avoidance of “showdowns.” Congress should wait for wayward justices to eventually die. Congress should, presumably, respect the veto power. In fact, Congress should respect every bit of delay, minoritarian check, and procedural mire. That is, Kendall and Carey have resurrected Congress not in glory, but still crucified! Incapable by design! Our Constitutional morality calls not for majority rule, but for rule “by the deliberate sense of the community.” That majority, to be sure, “has its role in the system; but that role, as we begin to understand, is that of midwifing.” Consensus demands, more or less, “unanimity, obeying the basic rule: The majority must carry the minority along with it, because all men are created equal, as they were in the saloon of the Mayflower, in their capacity to give or withhold consent” (148–49). Oh, now they care about equality.

It is then that one realizes, Kendall and Carey have not, in fact, been unwittingly missing one crucial symbol of the American political tradition. They have, rather, just like the Philadelphia Constitution, been elaborately, obviously dancing about it. The genius of the American Constitution and of the American political tradition lies not the recognition of human equality, the concomitant demand for consent, and the inherent justice of majoritarian democratic rule but in the Constitution’s byzantine tapestry of checks and balances by which the supposedly supreme legislature is beholden not to the majority, but to that disciplined minority that best and most doggedly asserts itself—by which that minority, with due paeans to conciliation and consensus, subjects the majority to its will. The supreme symbol of the American political tradition is not, we discover, the virtuous people deliberating under God. It is the shackle.

In the end, Kendall and Carey might be forgiven for never actually grappling with Lincoln’s teachings because, despite it all, Lincoln’s teachings emerge entirely unscathed: equality, recognized in the moment or not, undergirded the only parts of our tradition worth keeping. So occupied with “identifying the traditional with the good,” Kendall and Carey forget that Jefferson too discerned and distilled the wisdom of his inheritance: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed?” What else lies beneath the American claim by right to self-governance and independence? Kendall and Carey never say.

Yet it is worth noting that if we take seriously the scriptural basis for Mayflower Compact, the original Covenant, we still reach the remarkable revelation that just as God humbled himself unto death on Golgotha, he had already humbled himself to rule the Hebrews just as man might rule man: by consent. And just as Christ commands us to love another as we love ourselves, so too no man may rule over another without his consent. The virtuous people shall deliberate.

Either way you cut it, then, all men are created equal. Majoritarian communal deliberation is our best and most just form of decisionmaking. And the bounds of that deliberation are precisely the principles that grant its moral legitimacy: equal human dignity. We need not play out here the theological consequences of denying human equality. For our purposes it suffices to say, deny man’s equality, and recourse to the Covenant resolves to no more than the claim, by some lonely group of radicals on a beach in Massachusetts and their progeny, to divine favor evidenced by force of arms alone. That at least explains why, even today, denials of human equality seem to go hand in hand with denials of Appomattox.

I wish I could say, imagine if planes just started falling out of the sky . . . . But that’s been happening for a while now. So imagine if instead of DEI witch hunts or revelations that Boeing management has abandoned safety in pursuit of profit we learned that our nation’s engineering schools kept producing classes of aerospace engineers who just reject the primacy of safety in air travel? Would we not haul the engineering school deans before Congress? Would we not lose confidence in the system? I sure did the first time a Boeing manager chastised me for finding something wrong with the design work coming across my desk.

In the ten years since I fled Boeing’s increasingly abusive and profit-driven culture, I’ve been surprised and amused by my new profession’s mass delusion—delusions. Ignore the legal profession’s adherence to doctrinal tradition and established theory in the face of American Law’s obvious blame for and failure to remedy nearly everything wrong with American society. Let’s tackle a simpler, institutional problem. Given the credentialism that has promoted and enabled many of the professors, judges, and politicians now seemingly hellbent on aggravating America’s problems, I remain baffled and appalled by my profession’s apparent continued belief that our current “merit” pipeline will produce the lawyers, professors, and judges to solve these problems.

Think of all the heinous morons of the Right that hail from the top law schools. Antonin “the Founders tell me to hate the gays” Scalia. John “I just don’t like black voters” Roberts. Neil “bow to the dictionary” Gorsuch. And Ted “are babies racist?” Cruz. All hailing from the hallowed halls of Harvard. Then there’s Clarence “see Ginni—oh and Harlan Crow’s yacht” Thomas. Sam “stop the steal” Alito. Brett—too many of these to pick just one—Kavanaugh. Josh “insurrection fist!” Hawley. JD “lapdog to fascists” Vance. Vivek “wannabe Elon Musk” Ramaswamy. The cream of Yale. And lest you believe this to be a two horse race, try out the University of Chicago’s Robert “what if the Founders were against Brown v. Board?” Bork, or Stanford’s Bill “what if I was against Brown v. Board?” Rehnquist. This is just the beginning! The list of “elite” garbage grows with every Trump administration appointment.

But these are all Republican political operatives, you might object. Surely the measured and bipartisan halls of legal academia promote the best and the brightest. Wrong again! Let’s take three easy and recent examples found with an appaling lack of effort.

Consider Yale’s notorious sex-pest, Jed Rubenfeld, who a few weeks back weighed in on JD Vance’s deliciously stupid take about Federal judicial authority to check executive misconduct (remember, the take so incredibly dumb that I only had to crack open my baby law textbook to demolish it?):

Don’t fall for Jed’s attempt to confuse matters by bringing in military or prosecutorial discretion. JD was whining about bog standard judicial authority to check executive misconduct. So there you have it. Yale’s best—flubbing basic constitutional law questions in defense of Donald Trump’s recent, wildly unlawful (and wannabe tyrannical) seizures of Congressional authority.

Or how about Minnesota Law’s Ilan Wurman and Georgetown’s Randy Barnett. A few weeks back, no less than the New York Times offered the pair the pulpit to offer some bullshit excuse for Trump’s executive order gutting birthright citizenship. Even before that, Wurman was running his mouth about it on Twitter:

We don’t need to beat the dead horse. Prof. Steve Vladek methodically dismantled the order’s foundations here, and Profs. Melissa Murray, Leah Litman, & Kate Shaw (of the Strict Scrutiny podcast), joined by Prof. Kate Masur, demolished Wurman and Barnett’s reasoning and grasp of history here. Though, for my part, I’m not even sure these buffoons are entitled to such gracious substantive rebuttals. We know why the Trump administration seeks to gut birthright citizenship: anti-Latinx racial animus. And we know the practical results of stratifying the human species: American chattel enslavement. So if we pull our heads out of our asses for just a moment, we’ll see that Wurman and Barnett aren’t engaged in some arcane historical inquiry—they’re justifying subordination. Yet because of their varnished credentials, the Times gave their filth a bullhorn.

And, for good measure, let’s check in on Harvard’s Noah Feldman—he of so, so many wonderfully stupid takes over the years. Who could forget his fawning over notorious moron Brett Kavanaugh: Bad Temperament Alone Shouldn’t Sink Kavanaugh, and Kavanaugh is the Last Hope for Abortion Rights. Now that women are bleeding out in parking lots across the nation, surely Noah might realize the error of his ways? Apparently not. Trump is Testing Our Constitutional System. It’s Doing Fine., he wrote for Bloomberg last month. “The president’s flurry of illegal actions have been stopped by the courts. That’s how it’s supposed to work.” That’s funny. I seem to recall Donald Trump’s captured Federal judiciary gutting the administrative state over the last few years, spending more time shackling Joe Biden’s “misconduct” (cough, student loan forgiveness) than Trump’s, and—oh yeah—exculpating Trump from consequences for a botched coup, and for whatever unlawful action he feels like in the future. Stellar reasoning!

All of these people have pristine credentials: good law degrees, prestigious clerkships, posh firm jobs, cozy DoJ or other Federal gigs. Judging by credentials alone, they’re all eminently qualified for their positions. And that’s the problem. These people range from idiotic to malevolent. The credentials have failed. When will we finally acknowledge that a professional pipeline that spews this garbage is fundamentally broken?

Sure, American law schools also produce good people. Though, it’s not at all clear that’s what they’re designed for. For one, the $240,000 student loan bill does a damn fine job of recruiting students who might have once looked favorably toward the lower pay of public interest into the employ of bougie law firms servicing (ahem) serving the rich and powerful.

For another, law school is first-and-foremost a concentrated brainwashing session in the pontifications of centuries of landed, Anglo-Saxon, Catholic-then-protestant men. And there’s no use pretending law school grades and transcripts separate the wheat from the chaff. You have to be smart enough to get it, but dumb enough so that the entire self-contradictory artifice of the law doesn’t drive you mad. Sure, in mundane cases, we can evaluate law students’ “rational” and “objective” application of various rules. But pretty quickly thereafter, we run into serious problems. It’s not just about female and black and brown students struggling to comprehend the corpus that overtly contradicts their lived realities, although that is certainly part of it. It’s more fundamentally about the impossibility of “rationally” applying irrationality. It’s about trying to figure out how to apply the pleading standard in Federal District Court (how detailed the facts have to be to make out a violation of law) when the rule is that “it’s gotta be plausible” and the Supreme Court’s primary example of implausibility is the most damned plausible thing you’ve ever heard: that FBI Head Bob Muller and Attorney General John Ashcroft were all in on the Federal government’s secret round up and detention of Muslim men in the aftermath of 9/11. It’s about wrapping your head around the fact that the bare desire to harm a group damns a law restricting white hippies from getting food stamps or stripping civil rights protections from LGBTQ folks in Colorado, but it won’t stop Jackson, Mississippi from closing the pools rather than racially integrate them; won’t stop Alabama from executing black men wildly more than they do white; and won’t stop any of Trump’s obviously racially animated measures against Latin American or Muslim immigrants. There’s supposedly a distinguished legal rule in there, but a) it’s stupid, and b) it’s made up by white supremacists. So truly, if you think hard and broad enough about most legal questions, the whole thing falls apart. And unless you realize that, law school grades can’t tell you whether someone is dumb enough to buy it, actually believes the bullshit, or can suppress intelligence for the duration of a three-hour exam.

But set all this aside and pretend that law schools graduate genuinely good people in comparable numbers and with comparable credentials to the reactionary ghouls (& without shackling the good ones to too much debt and without shifting the center of debate too far to the right). For every Sam Alito Yale produces, we also get one Sonia Sotomayor. That still, I submit, isn’t a very good deal!

Don’t get me wrong. Justice Sotomayor rules. But the law isn’t a tit for tat balancing act. Building is a lot harder than tearing down. She can’t clean up all of Alito’s bullshit once it gets out any more than the Strict Scrutiny Podcast can extract Wurman and Barnett’s bullshit from potentially millions of New York Times readers. No one can.

Yet even that’s beside the point. The real damnation of this law-school credentials consensus is that the Sotomayors are being used to launder the credentials of the Alitos. Because some school happened to produce a good lawyer, we have to pretend all the jackasses are qualified. And so, in the name of this unreflecting credentialism, we have to debate the validity and historicity of shackling our understanding of our Constitution to the drivelings of enslavers, whether brown people are allowed to be born in this country, whether insurrection in defense of enslavement was, and whether Donald Trump now wields unconstrained, dictatorial authority—instead of merely discussing and laughing at the sociopathic delusions of these white supremacist reactionaries as the zoological curiosities they are.

Of course I’m bitter. I find myself continually on the wrong side of the credentials line, perennially unemployed no matter how hard I work. Not prestigious enough undergrad. Good, but not good enough, law school. Wrong clerkships, apparently. I couldn’t get a job for fifteen months after clerking at the Federal trial court in San Francisco. Sure, some of this was my fault. Though, by fault, I mean that my last employer (a small, regional law school) sent me packing after I suggested to the conservative snowflakes in my Constitutional Law class that treating their gay classmates with dignity in public and restraining from murdering trans kids in bathrooms was neither: a) an imposition on their religious beliefs, nor b) reverse bigotry. And so now I find myself sitting in a basement in the shitty middle of nowhere wondering why the fuck I bother when, no matter how hard I work, absolute dipshit morons still run not just my profession, but the United States, all while paying off student loans that have kept me employed barely two-thirds of the time.

Should my personal investment temper my contempt? Perhaps. Does it? Absolutely not. Because I’m still an engineer. When the plane falls out of the sky, I don’t get to play pretend, I don’t get to stand there sputtering about sound theory, twiddling my Ti-89. I judge by results. Because every day I look out my window to see misery, poverty, and malingering racial division, violence, and disparity—the abject failure of American law and the profession built on credentialism that elevates good people, squishes, and Confederate-apoligists alike. And mostly, because this January the state forty-five minutes from my former-school passed a resolution calling on the United States Supreme Court to strip my students of their equal dignity. I’ll take my apology cards in the form of a check.