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.

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.

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.

A. Reactionary Colorblindness.

Take a step back. Constitutional interpretation too often devolves into a meaningless academic venture. What is actually going on here? Of course, we know that for Pete, “colorblind” and “merit based” just means circling the wagons around mediocre white men (God, I hope I’m not one of them) getting jobs (phew, safe) and holding power at the expense of qualified women and people of color. But Harlan said it, and more polished rightwingers have been using the phrase for a while. So it’s worth probing. What do reactionaries even mean when they proclaim, “our Constitution is colorblind.”

Reactionary proponents of the “color-blind” Constitution zero-in on a single phrase in the Fourteenth Amendment. “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” We call it, creatively enough, the Equal Protection Clause. Let’s just, for now at least, ignore historical context and the rest of the amendment.

For the most part, reactionaries envision a colorblind interpretation of the Equal Protection Clause as an absolute bar against racial consciousness by government actors (some more radical interpretations include private businesses, too, but that’s for a different time). What does that mean in real life? No affirmative action. No diversity initiatives. No cognizance of race. Why? Willful historical ignorance. Slavery was abolished. Jim Crow abandoned. “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Chief Justice John Roberts proudly proclaimed in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1, striking down the City’s gradeschool integration efforts.[1] “Eliminating racial discrimination means eliminating all of it,” he repeated two summers back, ending affirmative action in undergraduate admissions.[2]

The Chief’s cutesy profundity masks an insidious agenda. In plain English, what’s the problem? To most, “discrimination” is a dirty word, evoking racial or gender distinctions drawn for purposes of subordination. But in the law, “discrimination” can take a simpler definition: drawing a distinction or difference. An infant discriminates between parents’ faces. A teacher’s discriminating look implies not wrongdoing but discernment of subtleties. Indiscriminate action applies to all, difference or not. And so, conservatives argue, our Constitution’s prohibition of race discrimination does not just prohibit discrimination against people on the basis of race, prohibits drawing racial distinctions or differences, indeed any racial cognizance at all, in the law. We call it the anti-classification notion of Equal Protection.

In most cases, it works. One’s race should have nothing to do with their riding a bus or a subway; eating at this restaurant or that pub; enjoying this theater or that ballgame; whether they may attend school or university; or whether they may marry, move about, sue, give testimony, serve on a jury, contract, transact property; whether they may be paid for their labor; or indeed whether they may assert ownership over their own body. But there’s the catch. As soon as the first enslaved person arrived in this country against their will, race has always mattered to every one of those example, and many more. This nation did not enslave all comers. Our Founders “ma[d]e slaves of whom they [thought] fit”[3]—on the basis of race. Emancipation took just as much cognizance of race—one does have to see color to realize that only black people are being enslaved—but not to subordinate, to remedy. And so legal progressives offer an opposing view of Equal Protection’s prohibition against race discrimination: anti-subordination. Race discrimination is not merely the cognizance of race but discrimination against a disfavored group. So the State and Federal governments may take race into account, if only when necessary and carefully done to eliminate racial subordination.

But this has all been too academic. Everyone says slavery is unlawful and that people may no longer be barred from public transit or restaurants on account of race. The real difference between the conservative anti-classification and progressive anti-subordination notions of Equal Protection lies in their response to the unabated material legacy of slavery. As soon as you take down the sign denying them entry, a black American can step onto a bus, into a restaurant, or attend gradeschool. For many parts of life, such anti-classification on the basis of race works. But life isn’t that simple. For one, you can’t just hand a ballot to people who have been denied education and literacy and pretend it will work. For another, it takes money to make money. And Emancipation didn’t come with cash, or land, or a home (recall, forty acres and a mule), or, for that matter, any means of sustenance.

Were that the end of it, racial disparities in wealth, education, and health would likely persist, as bare Emancipation left black Americans economically dependent upon their former enslavers. But that wasn’t the end of it. Emancipation and Reconstruction gave way to Jim Crow. For eighty more years, while the Federal government threw land at white settlers across the West, and university educations and cheap home loans at generations of white men, America denied black citizens integrated gradeschool education, access to most state and private universities, and graduate schools. Sure, the GI Bill theoretically gave black men equal access to home loans and university educations as their white colleagues. But between exclusion from or tight racial quotas in universities, and red lining and racially restrictive covenants effectively prohibiting black home ownership, such equitable benefits proved largely illusory. So while white America built intergenerational wealth and enjoyed its concomitant educational, health, and social benefits—black America couldn’t.

The material legacy of slavery continues today. As of 2019, the average white American family wealth stood at $188,000; black families averaged $24,000. White households enjoyed a median income of $76,057; black $45,438. Black homeownership trailed white by 25 percent, tended to be worth less, and were subject to higher property taxes. Black student representation at state flagship universities still lags population percentage, and black students graduate with substantially more student debt. All of this trickles into graduate education and professions. Black Americans comprise 13% of the population but only 5% lawyers, and only 25 of the 1800 CEOs of Fortune 500 companies. Wealth saps health. Black children suffer twice the blood lead levels of their white compatriots. Black men are twice as likely to die of prostate cancer; black women twice as likely to die of uterine cancer; and black mothers four times as likely to die in childbirth.[4]

Reactionaries’ “colorblind Constitution” rejects not just efforts to integrate gradeschool and university to eradicate the material legacy of slavery—it rejects race conscious efforts to remedy that material legacy wholesale. The “colorblind Constitution” marks not an academic inquiry into some obscure matter of Constitutional interpretation. Reactionaries see these racial disparities, the material legacy of a slavery they profess to damn, and in the name of a “colorblind Constitution,” don’t care.

In the immediate term, this is no good faith matter of interpreting our written Constitution, just a diversion.[5] Indeed, reactionaries offer each of Hirschman’s three reactionary theses in their fight against affirmative action: raising the specter of rampant and never ending racial quotas (perversion) (“Twenty years later, no end is in sight!”);[6] the undermined legacy of Emancipation and Reconstruction (jeopardy) (“The time for making distinctions based on race has passed.”);[7] and even that affirmative action efforts must ultimately prove futile as black students, raised above their station, will inevitably fail to compete with their counterparts (futility) (“[Affirmative action] policies sort at least some blacks and Hispanics into environments where they are less likely to succeed academically relative to their peers.”).[8] Yet on a deeper level, the debate between equality as anti-classification and as anti-subordination, of our refusal to remedy the malingering legacy of slavery, of black American’s quest for recognition of their equal human dignity—that strikes the core of our Constitution. So long as we tolerate racial subordination, turn our backs on the tenet that no one may rule another without her consent, we too reject the Declaration: that “all men are created equal.” And so long as we reject that, we have no right to call America a democracy.

B. Neither Knows nor Tolerates.

Taken seriously, the debate over the “colorblind Constitution” proves anything but. Anyone arguing it must first confront Harlan’s original text.

But in 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. The humblest is the peer of the most powerful.

Harlan indeed wrote what reactionaries now proclaim, “Our Constitution is color-blind,” but his statement continues. Our colorblind Constitution “neither knows nor tolerates [racial] classes.” Of course, a colorblind view would not “know” race. How could one who refuses to see color simultaneously recognize and tolerate no racial class?

At risk of overanalyzing the text, the whole debate comes down to Harlan’s use of “is.” Because the deceptively simple verb encompasses at least two different meanings, one descriptive and one normative: one stating things as they presently exist, one stating things as they ought to be. The various forms of “be” illustrate. Consider the parental statement, I am your father. Depending on the context, the meaning shifts from pure revelation of fact (we got the DNA test back, I am your father) to a normative assertion of authority (you will listen to me! I am your father) (hell, it can even synthesize the two! Who can forget, “I am your father . . . join me, and together we can rule the galaxy as father as son!”). Similarly, two motorists in court don’t so much as report simple fact as assert facts as they wish them to be when they testify, “the light was red/green.”

None of this should be news to Americans. One our founding charters begins with such a normative use of the verb:

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.

To read Jefferson’s Declaration as a simple description would be preposterous. To pretend the line accurately described our equal creation by the cosmos would be just about meaningless. All men were not created equal—not even on Jefferson’s own land. They were born into, created for servitude, endowed with no right to life or liberty, let alone pursuit of happiness. Forcing Jefferson’s words into a simple descriptive mode has serious consequences. A large part of Chief Justice Roger B. Taney’s decision in Dred Scott v. Sandford—that black Americans were not and could never be citizens of the United States—revolved around the argument that Jefferson’s failure to secure equality for black Americans meant that he’d never meant for them to be included in the Declaration’s “all men.” Damn Jefferson for failing to implement his principle, but don’t throw the baby out with the bathwater. As Lincoln reminds us, “all men are created equal” marks our continuing aspiration.

So too Harlan’s “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan could not be accurately describing the state of the Constitution. He was writing in dissent! As he wrote those words, the United States Constitution both saw color and openly denied the equal dignity of its black citizens. Certainly by our sensibilities, John Marshall Harlan (“I allude to the Chinese race”) was a white supremacist (and we’ll get to that). But it should offend our notion of plain English to pretend his words, “Our Constitution is color-blind,” demand, let alone imply, an absolute and willful ignorance of race.

C. As is Enjoyed by White Citizens.

Now set Harlan aside. Constitutional interpretation, in a democracy at least, should not depend entirely on the words of one long-dead aristocrat. Admitting that the words of the Fourteenth Amendment itself—“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 . . . deny to any person within its jurisdiction the equal protection of the laws”—do not squarely resolve the debate between anti-classification and anti-subordination, their circumstances of their drafting and ratification do.

As soon as they had surrendered, and while they joined in ratifying the Thirteenth Amendment, the former-Confederate States began passing Black Codes to deny freedmen their civil and political rights. So when Congress reconvened in early 1866—having locked out all the former-Confederates the Southern States had tried to reelect—it set to work on two new bills which would become the Civil Rights Act of 1866 and the Second Freedman’s Bureau Act.[9] The Civil Rights Act settled the question of black citizenship. “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

Of equal importance, the Civil Rights Act delineated the first round of individual rights Congress thought necessary to American citizenship:

[S]uch citizens of, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make an enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real property and personal property, and to full and equal benefit of the laws and proceedings for the security of person and property, as is enjoyed by white citizens.

However justified, this was a wild expansion of Congressional authority at the States’ expense. Some Republican Congressmen argued the Thirteenth Amendment empowered Congress to eradicate the “badges of servitude” and thereby guarantee civil and political equality for black Americans. Not all agreed, though. So even before President Andrew Johnson vetoed the bill, Congressional Republicans began drafting the Fourteenth Amendment to forcefully authorize the provisions of the Civil Rights Act.[10] That is, Congress explicitly drafted the Fourteenth Amendment to authorize its race conscious efforts to eradicate both slavery and its material incidents. And that could be the end of it.

But history only tells us how we got here. It doesn’t tell us how things should be. Next time: should our Constitution be colorblind? Can it be?

[1] 551 U.S. 701, 748 (2007).

[2] Students for Fair Admissions v. Harvard, 143 S. Ct. 2141, 2161 (2023).

[3] Somerset v. Stewart, 98 E.R. 499, 509, 13 Geo. 3 (K.B. 1772) (argument of Serjeant Davy).

[4] SFFA, 134 S. Ct. at 2269–70 (Justice Brown Jackson, dissenting).

[5] See generally Alfred Hirschman, Rhetoric of Reaction (1991).

[6] SFFA, 134 S. Ct. at 2165–66.

[7] Id. at 2160.

[8] Id. at 2197 (Justice Thomas, concurring).

[9] Laura Edwards, Legal History of the Civil War 97–100 (2015).

[10] Edwards at 99, 103–04.

Recall Lincoln’s (via Harry Jaffa) argument against slavery from earlier in the summer. Lincoln creatively interpreted Jefferson’s line that “all men are created equal” as a meaningful substantive constraint on, and indeed the basis for, democratic self-government. Human equality means that no man is good enough to rule another without his consent. No man a god; no man a slave. Enslavement denies the precept of democracy: consent of the governed. And so, enslavement contradicts democracy. The Thirteenth Amendment prohibits it. Lincoln tells us why.

Yet abolition presented its own questions—“It is rather for us to be here dedicated to the great task remaining before us . . . that this nation, under God, shall have a new birth of freedom.” Abolition left millions of penniless, landless, and homeless freedmen scattered across a ravaged land that still—North and South—viewed them as outsiders, if not inherently inferior. Lincoln’s syllogism against slavery, after all, had been race neutral! Before crowds who would just as easily expel all black Americans from the State of Illinois (if not the continent!), he proclaimed man’s natural equality and the immorality of the institution that enslaved those seen fit for it, but solicited votes against slavery predicated on its potential to degrade the white man’s working conditions too. Lincoln’s simple and individual argument did convince ordinary Americans to oppose the condition of enslavement, and did provide a simple constitutional basis, but it did not fully address the bases for American chattel enslavement. An ordinary convert to Lincoln’s cause in 1858 might easily still believe black Americans racially inferior, even if they should not be enslaved. As he explained at Charleston, Illinois, on September 18, 1858:

I will say then that I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races, [applause] that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality.

Was freedom nothing more than permission to starve or scrape by meager livings, disenfranchised and unwanted in the land of one’s birth?

Much of Lincoln’s apparent ambivalence might be explained away as the contingent, fleeting concessions of pragmatic politics. He, Jaffa notes, could not realistically push for the extension of political rights to black Americans in 1858 without sacrificing the cause of abolition in the first place. “Lincoln understood the task of statesmanship . . . to know what is good or right, to know how much of that good is attainable, . . . to act to secure that much good,” and to not “do anything to hinder future statesmen from more perfectly attaining his goal.”[1] Consider the circumstances prompting Lincoln’s moderation. Thus far in his political career, he had watched the once promising-enough cause of abolition—buoyed by Jefferson’s prophecy, Congressional abolition of the import of the enslaved (on the first day Constitutionally permitted!), and both the Northwest Ordinance (passed by the First Congress, no less!) and the Missouri Compromise barring slavery’s expansion North—dashed by Southern conquest of Northern Mexico, repeal of the Missouri Compromise in 1854, and the Supreme Court’s rejection of Congressional authority to abolish slavery in the territories in 1857’s Dred Scott v. Sandford—an obvious first step toward rejecting the States’ authority to do the same within their jurisdictions. By 1858, Lincoln had been reduced to preaching slavery’s immorality to white supremacists. Necessity demanded as much of his arguments as did reason.

Moreover, parse the master litigator’s concessions carefully. Lincoln admits in the present (“am not”) and past (“have never been”) tenses. Strictly, he admits nothing of the future.[2] Sure enough, Lincoln moved forward on the matter during the War. After decades defending the Missouri Compromise from slavery’s expansion, once elected (during the Secession Crisis) he categorically rejected its renewal—and its recognition of slavery’s dominion over the South—in the Crittenden Compromise. Though he trod carefully around the Border States, initially rejecting emancipatory efforts, he soon pressed for compensated emancipation. That failing, he ordered emancipation by military necessity—uncompensated. And by the end of the War, Lincoln had laid the groundwork for black veterans’ enfranchisement. While his state of mind in 1858 remains murky, Reconstruction under Lincoln’s hand would hardly have been constrained by concessions made in darker days.

The foregoing seems sufficient explanation. Politics is a dirty business, paths jagged. If some horrific concessions are the price of effective politics, one finds it difficult to argue with Lincoln’s results. But Jaffa attempts a principled explanation—defense, actually—of Lincoln’s troubling disclaimer: that insofar as emancipation solicited black Americans’ consent to governance, an opportunity to emigrate might justly be afforded in lieu of citizenship. 

The ethnocidal impracticality of expelling millions from the land of their birth seems at least as remarkable as the proposition that the United States should spend upwards of six hundred thousand lives securing the freedom of their fellows only to banish them. We may grant for the sake of argument that some Freedmen, perhaps many, did not want to be Americans.  Who can blame them? But radical one need not be to recognize that having constructed—constituted, one might say—a major portion of this nation, black Americans by their toil already counted among the People. True, “[a]dmission to the status of citizen is always something for the legislative power in civil society to determine, from the point of view of the advantages of society.”[3] Yet one doubts that a champion of conservatism preaching the Anglo-American compact theory of government would so quickly abandon the Anglo-American Common Law of Contract—unless the Common Law tenet to treat likes alike does not span skin color? A hornbook’s grasp of the subject would recognize that white America offered and consented to black Americans’ participation in civil society by importing them and reaping the benefit. Perform (as my Contracts professor would admonish) the compact.

Turning to the question at hand, though, why not make citizens of the Freedmen? The public will, Jaffa assures us, would not admit it. “Lincoln said over and again that he believed opinion was well-nigh universal in the country against any more equality for the Negro than that implied in a policy of turning slavery back on its existing legal rights in the slave states.” Eighteen score and twelve-odd pages into a tome proclaiming the statesman’s role in shepherding the public will within substantive limits compatible with democratic self-government, we are suddenly to throw up our hands at the notion that American public opinion stood against black citizenship? Apparently so. “Now the opinion of the governed, unfortunately for the utopians for the world, does not always favor the full and unequivocal recognition of that very equality which, alas, constitutes the title deeds of its own authority.” “Political justice, as a compound of equality and consent, requires deference to opinions which deny many of the implications of abstract equality.” The philosopher might take the attorney’s advice: don’t answer unasked questions. For what public will but act of Congress in 1866 and Constitutional Amendment by 1868 made citizens of the Freedmen? Nevertheless, Jaffa defends the justice of the bypassed public opinion:

[T]he privileges of citizenship are not unalienable natural rights but civil rights, to be determined by civil process . . . no man need be accepted whose joining does not make the others feel more secure . . . [it] is clear that Negro slaves were not members of the civil society established in 1776 or of the one perfected in 1787 . . . In any case [the Freedman] was certainly a non-member. The principles of the Declaration do not require that any one who chooses to reside in a land where he is not a member of the polity has a right to a share in the government of that polity merely because he is subject to its laws. The proposition that all the governed have a right to an equal voice in the government applies only to those who are members of the civil society. Whether rightly or wrongly, the overwhelming opinion of white Americans before the Civil War was that Negroes were not fit to exercise the privileges of citizenship . . . The right to emigrate was a corollary of the right to liberty.

Expulsion, we are told, might justly follow abolition.[4]

If Jaffa means to discuss merely who might become a citizen, that left unsaid dredges a deeper question. Why did the overwhelming public opinion believe black Americans unfit for citizenship? Our great moralist does not say. But we know the answer: racial animus—America enslaved those seen fit for bondage. The real question, then, is this: if democracy cannot survive the state of enslavement can it nevertheless survive its bases? By Jaffa’s own teachings, no.

Now, a gracious reader might, “[w]hether rightly or wrongly,” credit Jaffa for merely defending and not himself adopting Americans’ “overwhelming” racial animus. But it is hard to see how such a racial barrier between freedom and citizenship would not negate Jaffa’s framing of America as a credal rather than ethnostate (or of the elect deliberating under God—to the extent the two differ). If we may within the framework of democracy justly limit our recognition of others’ equal humanity to those of our own race, then our creed means nothing. Moreover, just as Jaffa teaches that Douglas’ moral indifference to human enslavement opened the door for its expansion across continent (and race), so too the moral allowance of racial animus toward any permits it toward all. We know race to be a social construct. And experience proves no “white” man safe from racial animus; just ask the Irish. It should come as no surprise that racial animus—the basis for American chattel enslavement—embodies the same pernicious tendency to swallow all around it that the state of chattel enslavement did. Majority subjugates minority until only a tyrant remains.

Consistency and practicality aside: Jaffa’s teachings impart a more fundamental lesson: The racial animus that would justify limitation of or exclusion from citizenship would necessarily justify enslavement. Consent of the governed may be necessary for democracy, but is by no means sufficient. Democratic majority rule requires our submission to the votes of others, especially when we find ourselves in the minority. “Those forming a civil society by means of compact can do so only in virtue of their prior recognition of each other’s equal humanity.”^[5] In more concrete terms, submission to the vote of another requires recognition of the other’s basic capacity for self-governance. So the basic equal human dignity and capacity that entitles one to be governed only by consent also qualifies one for citizenship (the process of naturalization comprising no more than formal offer, assurance, and marking of mutual consent).

One might be tempted to distinguish capacity for democratic or communal self-government from capacity for personal self-government. That would be folly; no one acts in a vacuum. Even Aristotle recognized the inherent link between the two, teaching the injustice of enslaving those “who [are] morally and intellectually capable of managing their own lives without injury to others.”[6] That is, the mark of fitness for freedom is simultaneously personal and communal—the ability to order ones affairs and play well with others. This, of course, makes sense. If demos truly differs from aristos (or whatever it is in Greek—I did my undergrad in aerospace engineering, not classics), then the basic human capacity for self-governance suffices for one to join the communal project. We may certainly search for the best representatives to form a government. But democracy resides in the principle that each individual is entitled to vote based on whether she can put bread on the table. Denial of that basic human dignity, on whatever animus or prejudice, subordinates.

Before closing, it’s worth answering another question Jaffa glances over. Why jump to expulsion? Why not grant Freedmen the ready-made status of free-person-lacking-political-rights, that of white women? Because, for all the reasons above, a large, permanent, disfavored and disenfranchised minority cannot remain free. More so. Lincoln’s phrasing, disavowing social and political equality, implicitly confers some civil equality with free-status. But those old rights buckets, useful in theory, never hold in practice. For one, stupid is as stupid does—believers in social or political inequality vote like it. That is, no one who opposes interracial marriage or integrated schools votes in favor of black voting rights. The question isn’t how much social or political equality civil equality buys. It’s how much civil equality social and political inequality tolerate. Judging by the example of women in this nation, not much. Law rarely serves those excluded from its drafting.

For another, rights have a nasty habit of bouncing around the buckets depending on favor. Despite Congress naming equal access to public accommodations in the Civil Rights Act of 1875, the Court discussed such accommodation in both 1883’s Civil Rights Cases and Plessy v. Ferguson as social issues. And consider education—which Montesquieu ranks among the most important bases of republican citizenship, or bodily autonomy and marriage equality (both race and sex)—matters central to one’s self-governance, each long treated as mere social matters in American law.

The immediate answer seems clear enough. On emancipation, freed black Americans had to be offered equal citizenship. And so we did—sort of. We have yet to fulfill the reasons for that correct action. Democracy rests upon the mutual recognition of our shared dignity and capacity for self-governance, our compact to rule by majority will, and the acceptance that we may sometimes be in the minority—subject to disagreeable rule by others. Equality marks each of us as fit for citizenship. And it rejects not just the state of enslavement or subordination, but the animosities and prejudices that give rise to it. Any way you cut it, Jaffa-via-Lincoln teaches the folly of dividing the human species into the elect and not, lest all be enslaved by the greatest. One searching for the floor between fitness for citizenship and fitness for freedom will find none. Denial of either leads to subordination.

[1] Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates 370–71 (3d 1982).

[2] Id. at 383.

[3] Id. at 379.

[4] Id. at 372–80.

[5] Harry V. Jaffa, A New Birth of Freedom: Abraham Lincoln & the Coming of the Civil War 115 (2000)

[6] Crisis at 345.

The Right’s present war on the administrative state and Congressional commercial authority more generally reveals a lingering resentment of abolition, and they’re not chasing shadows. Under its original commerce authority, however inchoate, Congress possessed the authority to abolish slavery. The Left has not only forgotten this, but ceded, virtually uncontested, more fundamental ground. Recognizing Congress’ authority to abolish slavery demands an equally vigorous understanding of the Reconstruction Amendments, lest they become superfluous: Congressional authority to define and guarantee, in affirmative contradiction to the substantive shackles of enslavement, the contours of both free personhood and citizenship in the United States. Amidst the Right’s simultaneous war on individual rights, the Left must recognize that The People in Congress have had, at least since 1868, the power to guarantee food, shelter, education, safe working conditions, healthy environment, bodily autonomy, and anything else we might decide American freedom and citizenship should mean. Our failure to do so represents not some long-dead enslavers’ constitutional bindings, but every successive generation’s failure of political and moral will.

A specter haunts Republicans, the specter of Congressional abolition. Far more than just condemning us to the fractured whims of local luminaries, as incapable of tackling climate change as they are policing airspace between crop-dusters, Republicans’ present war on Congressional commerce powers obfuscates both its authority to abolish slavery under the original Constitution and its plenary authority under the Reconstruction Amendments to define and enforce the guarantees of American freedom and citizenship.

Many Republican grievances clearly serve their agenda. They strip women of bodily autonomy, and thus their “ability . . . to participate equally in the economic and social life of the Nation,” because they believe women to be subordinate.[1] They gut voting rights—particularly Black Americans’ voting rights—because they dislike democracy; free and fair elections, after all, infringe States’ “power, dignity, and authority.”[2] They place Republican presidents above the law, preferring the dictate of an “energetic, vigorous, decisive, and speedy,” yet still “sensitive” and “fearless[]” man.[3] They hate unions which would raise wages or, worse, threaten factory and plantation owners’ “sole and despotic dominion” over their property.[4] They gleefully strike gun regulations because this nation’s tradition of mob violence, particularly against people of color,[5] “demands our unqualified deference”[6]—some people ought to be killed![7] They minimize or ignore civil rights legislation to marginalize women, people of color, the disabled, and (most recently) LGBTQ folks.[8] And they perpetuate the lingering effects of chattel slavery, dismissing remedial efforts as incoherent, burdensome to White America, and, ultimately, because they’ve never accepted people of color as their equals.[9]

But the source of Republicans’ general distaste for Congressional power proves more elusive. Just this past term, the Supreme Court gutted Congress’s authority to create causes of action and delegate them to administrative tribunals, like the Securities and Exchange Commission whom Congress tasked with more vigorously rooting out investment fraud following the Great Recession,[10] and, inflamed by commercial fishing regulations, axed administrative agency authority generally.[11] Two years ago, rebuking the hated-Environmental Protection Agency, it slashed Congress’s power to grant authority to those agencies in the first place, if the Court thought the issue too important.[12] And in one highlight of COVID summer, the Court took a bat to the Consumer Financial Protection Bureau to kneecap Congress’ power to insulate certain expert agencies from undue political influence.[13] Before that, the Court nixed Congress’s power to curtail violence against women[14] or limit guns in schools.[15] These last two prove particularly illustrative because rather than simply striking important provisions of the Violence Against Women Act of 1994 for perpetrating an unequal affirmative action preference for women, or the Gun Free School Zones Act of 1990 for infringing disgruntled Americans’ right to liquidate schoolchildren—as one would expect—the Court instead castigated Congress for overstepping its authority to regulate conduct and goods in and about the national economy. “We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.”

Naturally, Republicans also reject Congressional authority over economic activity that, on aggregate, substantially impacts interstate commerce. The name Wickard v. Filburn[16] still haunts them. To control wheat prices and supply during the Great Depression, and in the leadup to the Second World War, Congress limited the amount of wheat an individual could grow, even for personal use. Mr. Filburn complained that his personal wheat stores—that is, stores in his barn that have never even left the farm, much less crossed state lines—fell outside of Congress’s authority over interstate commerce. The Court disagreed, reasoning that Congress could regulate not just the channels and instrumentalities of interstate commerce (as it had long been understood to) but also economic activity that (though not interstate in particular) would in aggregate substantially affect interstate commerce. That is, if we all stayed home and grew our own wheat, the wheat market would go bust.

Detractors hardly lack grounds to criticize the Court’s decision. To take just one, penalizing wheat production seems irrational on the verge of world war. One might also easily distinguish the decision as a special case: it was an emergency; the country wallowed in depression; the storm clouds of war loomed; or, in the timbre of conservative grievance: Wallace and FDR’s commies were just tyrannizing the wheat market so they could ship it all to Stalin. Yet in my experience conservatives eschew these arguments and instead focus their anger on the Court’s expansion of “interstate commerce” to include activity that itself does not cross state lines. They genuinely do believe that the Congress overstepped its commerce power.

Amidst other and more glamorous fronts (e.g., white supremacy, misogyny, homophobia, islamophobia, antisemitism) in our kulturkampf,[17] opposition to Congressional commerce power seems a curious hill for conservatives to die on, passions inflamed by regulatory vicissitudes. It becomes all the more curious considering that Republicans enjoy gross overrepresentation—to the point of capture—in both Houses of Congress. Why not wield Congress’s broad commercial authority to reactionary ends? It can’t simply be contempt for democracy, as legislative bodies may serve totalitarian ends. And the six justices’ arrogating authority at their Republican colleagues’ expense don’t lead the movement, they just reflect it. Something more’s afoot.

History answers. Why have reactionaries always abhorred Congress’s expansive power to regulate interstate commerce? Slavery. A Congress possessing broad commerce power can abolish slavery. Our civil rights owe more to Congress’s commercial powers than one might think. Antebellum lawmakers had recognized (or feared!) Congress’s power to abolish slavery in at least an inchoate form. This power, supercharged by the Reconstruction Amendments, would offer Congress great authority to grant and enforce our civil rights.

To start, never discount the lingering emotional trauma of abolition. Conservative law professors still (at least, as of my time in school) refer to Lincoln as a tyrant and to abolition as “a taking”—implying the validity of the pretension to property in human flesh. Having never even come close to resolving the evils of bondage and the resultant wealth, health, and education (and more) disparities between White and Black America, Chief Justice John Roberts complained only two summers ago: “Twenty years [after this Court authorized token affirmative action programs in higher education,] no end is in sight.”[18] From Justice Scalia calling the Voting Rights Act a “racial entitlement[],”[19] or the Chief’s description of affirmative action as “racial preferences,”[20] to Justice Clarence Thomas’ parroting of Thomas Sowell’s exhausted ‘argument’—that affirmative action policies “redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended . . . where they are less likely to succeed”[21]—Republicans continue to recast abolition and its enforcement not as the bare minimum human decency required of us but as an undeserved blessing to be repaid, echoing early white views of abolition: “My friend, you was [sic] once a slave. You are now a freedman . . . With treasure and precious blood your freedom has been purchased. Let these sufferings and sacrifices never be forgotten . . . prize your freedom above gold, for it has cost rivers of blood.”[22] And consider 2021’s Cedar Point v. Hassid in which the Court, studiously avoiding mention of the Thirteenth Amendment, ruled that a California regulation providing farmworker union organizers minimum access to a commercial farm infringed the plantation owners property rights.

Second, thanks in part to cramped understandings of the Thirteenth and Fourteenth Amendments, much modern Federal civil rights legislation actually rest on Congress’s commerce and spending powers. Under current law, the Equal Protection Clause doesn’t stop universities from creating or ignoring climates of sexual assault and harassment; loss of Federal funding via Title IX does.[23] Employers can’t harass or fire women or people of color or the elderly not because of some robust understanding of Constitutional rights, but because Congress owns and regulates the interstate commerce in which all that conduct occurs.[24] So too, restaurants, bars, clubs, theaters, hotels, tolls roads, railroads, airlines, businesses open to the public, and all forms of public accommodation can’t deny service on the basis of race or sex or religion not because of the Fourteenth Amendment but because, again, interstate commerce occurs at Congress’ pleasure.[25]

This may seem a crass workaround. Morally, we may protest, racial discrimination in restaurants should be prohibited as a badge and incident of slavery, not because some suits from D.C. successfully argued that Ollie’s Barbecue obtained the ingredients and customers for their crappy racist-white-person barbecue from the local Federal interstate highway. Further digging, however, reveals not a slapdash workaround but a powerful argument for civil rights and equality well founded in the common law. 

Take a step back. Why don’t most civil rights provisions rest on the Thirteenth and Fourteenth Amendments’ abolition of slavery and extension of equal citizenship? Much traces to an 1883 group of Supreme Court cases called, aptly enough, The Civil Rights Cases.[26] Alert to the first rounds of Jim Crow laws passed not even ten years after Appomattox, Congress outlawed racial discrimination in public accommodations in the Civil Rights Act of 1875. In a decision of unnecessary length, Justice Joseph P. Bradley struck down these provisions, reasoning that they exceeded Congress’s enforcement powers under either the Thirteenth Amendment—former slaves can’t just call “racism” at each injustice; it’s time for them to pull themselves up by their bootstraps—or the Fourteenth Amendment, which Bradley reported as only prohibiting “State[s]” from infringing one’s rights. Besides, he reasoned, if the Fourteenth Amendment authorized Congressional civil rights legislation, that would violate the Tenth Amendment’s reservation of States’ Rights.

Dissenting alone, Justice John Marshall Harlan (remembered largely for his Plessy v. Ferguson dissent) lambasted the Court. Precisely the same racism animated denial of service as ‘justified’ enslavement—“such discrimination practiced by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude”—precisely what the Thirteenth Amendment prohibits.[27] And while Sections 2 and 3 of the Fourteenth Amendment prohibit “State[s]” from infringing one’s due process rights and equal protection of the law, Section 1 extends equal citizenship to all born in the United States. “Citizenship in this country necessarily imports at least an equality of civil rights among citizens of every race . . . .”[28] That citizenship necessarily includes one’s right as a freeperson to travel freely and engage in all sorts of public life—rights explicitly denied to the enslaved. Equal access to public accommodations, Harlan explained, constituted not some special privilege but rather counted among the core bundle of rights of freedom and citizenship.

Crucially, however, Harlan didn’t rest this notion of free-personhood and civil accommodations on some newfangled reading of the Thirteenth or Fourteenth Amendments. He rooted it deep in the common law, surveying how innkeepers (“The innkeeper is not to select his guests.”)[29], ferrymen, and pub[lic house—you see it?] landlords would face liability for denying accommodations to any traveler unless he (the purveyor) lacked capacity (“no room at the inn?”). Commerce is conducted at the sovereign’s pleasure, after all. And our Framers vested that same power, if only over interstate commerce (though, one might struggle to find turnpikes, ferries, railroads truly untethered from the interstate network), in Congress. That is, neither Amendment gave Congress the power to govern civil accommodations. Congress already possessed that power. Recognizing the equal dignity of people of color, women, and other historically marginalized folks in this nation remains crucial to the passage and implementation of civil rights legislation today. But the Commerce Clause justification rests on an equally important foundation: that when one enters (and indeed profits from) civil society, society rules.

Third, then, it should come as no shock that if Congress may govern even denials of commercial interaction incident to its commerce authority, it may also govern—even abolish—the ultimate perversion of commerce: human bondage. True, the Three-Fifths Compromise and the Fugitive Slave Clause very much accommodated the original Constitution of the United States to human enslavement. But do not exculpate the Founders and every antebellum generation for their failure to abolish slavery on the pretext that they placed their hands over their hearts and humbly stripped themselves of that power. The story of Anglo-American constitutional development proclaims the slow but inexorable development of legislative supremacy, as Parliament matured from minor fundraising gatherings for insolvent sovereigns into the sovereign manifest. So too the Founders expected, or feared, Congress to follow.

That Congress never tried to abolish slavery by commercial legislation proves only that it lacked the moral will or political capital to try. Why constrain Congress not to prohibit the slave trade until January 1, 1808 (which, coincidentally, it did) if Congress did not inherently possess the power to do so? Plenary authority over interstate commerce plainly authorized Congress to abolish the domestic slave trade. The Takings Clause hardly guaranteed perpetual property in other human beings. It merely guaranteed just compensation (including none) if the property were to be taken. The First Congress’s Northwest Ordinance prohibited slavery in the Old Northwest; and the Missouri Compromise of 1820—legislation hallowed to the point of near-constitutionality until the near-secession of 1850[30]—prohibited slavery above the southern border of Missouri (Missouri excepted, of course). Calling these mere territorial bills cheapens their practical effect: Congress abolished slavery in Northern States. No wonder the South fought so hard to repeal the Missouri Compromise in the 1854 Kansas-Nebraska Act, even arguing that the Compromise of 1850 had already superseded it.[31]

Finally, consider how the question of Congressional authority animated the blockbuster case of the era. Law professors like to teach the infamous Dred Scott v. Sanford[32] as primarily holding that Black Americans could not be United States (Federal as opposed to State) citizens—the infamous “no rights which the white man was bound to respect” line—calling everything else Chief Justice Taney said about Congress lacking authority to abolish slavery in the territories superfluous dicta. Aside from ignoring courts’ tendency to offer alternative justifications for a result, this view mistakes the facts of the case. Scott’s claim to freedom by reason of travel[33] to free territory (Fort Snelling, outside modern Minneapolis) rested, regardless of the Missouri Compromise’s official repeal, on its continued practical effect: Minnesota remained free territory and would enter the Union as a free state the next year. Damn the man but recognize the reasoning. Ruling only on Mr. Scott’s capacity to sue would leave the law splintered. Territorial claims to freedom would continue to arise. Taney’s procedural ruling would bar Black Americans from Federal court. And he could trust Southern State courts to reject claims to freedom based on travel (Scott had previously lost his claim in Missouri State court). But he could not rely on Northern State courts to do the same. Theoretically, dissatisfied enslavers could seek the Supreme Court’s review of adverse State Court decisions—cold comfort if the State Court had already (and irretrievably) released a plaintiff, rendering any word from Taney hopelessly futile. The issue of Congressional abolition would fester unresolved in the Courts, stoking debate over the issue in Congress. If Taney didn’t decide it in 1857, Congress would.

Yet even with Taney’s decision, how could it not? In 1857 the Supreme Court had yet to seize its modern mantle of Constitutional Arbiter.[34] Not only had President Jackson claimed the authority to differ from the Supreme Court on constitutional matters in vetoing the Bank of the United States—“The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”[35]—President Lincoln shortly would too, specifically referencing Taney’s decision!—“[T]he candid citizen must confess that if the policy of the Government upon vital questions, affecting the whole people, is to be irrevocably fixed by decision of the Supreme Court . . . the people will have ceased to be their own rulers.”[36] Congress surely would decide the matter.

In a pleasing irony, Taney’s attempt enlivened the very point he sought to bury. His hubris, inconceivable only years before—that not just the 1820 but the First Congress of men who drafted the Constitution overstepped—had only become politically feasible by the repeal of the quasi-constitutional Missouri Compromise and the antipathy to slavery’s expansion it represented. Loosed by a coalition of men who believed either in the positive good of enslavement or, like Senator Stephen A. Douglas, preached moral indifference under the guise of popular sovereignty, “a Constitution interpreted by judges of Taney’s persuasion might mean anything the interests of the slave power required it to mean.”[37] Lincoln recognized well the art of the possible in politics. As he later hammered Douglas, Taney’s first step (on Douglas’ foundation) burst the door wide to the next: a declaration that States, too, lacked the power to abolish slavery within their jurisdiction.[38] But sauce for the goose, Mr. Saavik . . . . On the rock of a renewed moral condemnation—“I tremble for my country when I reflect that God is just”[39]—Congress’ unquestioned power over the import and interstate dealings, and over the channels of interstate (and international) commerce that permeated the South, breathing life into the institution of chattel enslavement,[40] Douglas’ stunning political reinterpretation of the Constitution to enslaver’s ends may just as easily have bent toward abolition. True, Lincoln professed in public his belief that Congress lacked the authority to abolish slavery. Though, for one, as a politician he made all sorts of rhetorical concessions to win votes[41] (or to avoid civil war), and, for another, he then proceeded to initiate Southern abolition by executive order. Confirming the matter, the South seceded as soon as the anti-slavery Republican party proved capable of winning both Houses of Congress and the Presidency. In a Congress composed of antislavery men, abolition was merely a matter of time.

Republican resentment of Congressional commerce power may be a centuries-long temper tantrum, but we cannot call it fantasy. A fulsome commerce power would authorize not just Congressional abolition, but most of the ‘overbearing’ administrative that state conservative voters (and landowners) fear. Federal airspace lies above all land. All water flows downhill into the navigable waters of the United States. All pollution eschews state boundaries. All employment conditions, wages, hours, and benefits, ripple at least across a regional economy crisscrossed by interstate highways and often enough across state lines. Interstate conduct and conduct that substantially affects the national economy be damned! Federal authority permeates our daily lives and employ which necessarily rely on the bounty not just of interstate but international commerce—the core of the commerce power. If twenty-five hundred years of political theory have taught us anything, we should tread carefully around such expansive powers, whether wielded for good or for ill. Though, that’s no argument not to use them.

Moreover, intended or not, fear of Congressional commerce authority obscures a greater and untapped power. Under a mature understanding of the Commerce Clause, the Thirteenth Amendment no more ‘grants’ Congress the authority to abolish slavery than it makes human bondage wrong in the first place. Instead, it grants Congress plenary authority to root out and shatter the substantive shackles of human bondage—those rights and privileges of freepersons specifically denied to the enslaved—wherever they may be found. That is, the Amendment vests in Congress the authority to define and guarantee the contours of free personhood. So too the Fourteenth Amendment no more grants Congress the power to provide for equal accommodations in interstate commerce than it makes Americans of color equal. Rather it grants Congress plenary authority to delineate and enforce the contours of United States citizenship in all contexts. After all, Congress explicitly drafted the Amendment to confirm just that: its legislation of citizens’ rights to travel, sue, give testimony, contract, and transact real property in the Civil Rights Act of 1866.  The Supreme Court’s early hesitation and ultimate hostility to this power, from 1872’s Slaughterhouse Cases[42] to City of Boerne v. Flores[43]—1966’s Katzenbach v. Morgan[44] a telling exception—merely illustrates pervasive reactionary (read, white supremacist) strains in American law alongside liberals’ cherished tendency to cede ground uncontested.

Indeed, Republicans’ stalwart resistance to Congress’ commerce powers marks a defense of forward ground. For if liberals were to recognize the true power of Congress’ commerce powers, so too they might discover the true potential of the Reconstruction Amendments. Thus Republicans fire recklessly at disfavored agencies like the Consumer Financial Protection Bureau or the Environmental Protection Agency with arguments that would also destroy the Federal Aviation Administration or the Federal Reserve.[45] They wield property rights against union organization, against decades of precedent and the Thirteenth Amendment.[46] And they have begun to fashion religion as a trump card over basic civil accommodations.[47] If anything, Republicans appear to be advancing.

It’s easy to despair, dismissing the Constitution as irretrievably an enslaver’s document. Yet it bears repeating: abandoning the Constitution to the Right unnecessarily absolves every postbellum generation—including our own—for their failure to effectively abolish slavery and guarantee the blessings of American freedom and citizenship. If the forces of reaction want our Constitution so, let them come and take it. Our hands are not tied. Never let the want of perfect tools prevent use of effective ones, and we have been handed effective tools. The Constitution as it has existed since 1868 has authorized Congress to do all of this. Our failure to do so represents not some long-dead enslavers’ constitutional bindings, but every successive generation’s failure of political and moral will.

But look on the bright side. Congress has always possessed the (however inchoate) power to abolish slavery. It always had the power to govern conduct in large swathes of the public sphere to enforce that abolition. The Thirteenth and Fourteenth Amendments supplanted the original primacy of the States and named Congress the primary expositor and guarantor of both the contours of freedom and citizenship in this country. This mature notion of Congressional authority asks not merely whether Congress may regulate incident to interstate commerce or funding. Rather, it first asks us to define freedom by affirmatively breaking the substantive shackles that once defined bondage. And, more powerfully, it asks what we can imagine freedom and citizenship in the United States of America should mean. The Reconstruction Amendments charge Congress to guarantee at least American’s access to food, shelter, education, clean drinking water, safe working conditions, gun safety regulations, bodily autonomy, and much more. In other words, Republicans should fear Congress. A specter indeed haunts.

[1] Dobbs v. Jackson Women’s Health, 597 U.S. __, op. at 64–65 (2022).

[2] Shelby County v. Holder, 570 U.S. 529, 544 (2013).

[3] Trump v. United States, 603 U.S. __, op. at 6–11 (2024).

[4] Cedar Point v. Hassid, 594 U.S. __, op. at 7 (2021).

[5] Carol Anderson, The Second (2021); Dave Davies, Nat’l Pub. Radio, Historian Uncovers the Racist Roots of the 2nd Amendment (June 2, 2021) (“In that, the Second Amendment really provided the cover, the assurances that Patrick Henry and George Mason needed that the militias would not be controlled by the federal government, but that they would be controlled by the states and at the beck and call of the states to be able to put down these [slave] uprisings.”).

[6] NY State Rifle & Pistol Ass. v. Bruen, 597 U.S. __ (2022). See also, Garland v. Cargill, 602 U.S. __v (2024).

[7] Greg Sargent, The New Republic, MAGA Gov Candidate’s Ugly, Hateful Rant: “Some Folks Need Killing!” (July 5, 2024). Or consider Justice Samuel Alito’s formulation: “Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years . . . [t]he New York law at issue in this case obviously did not stop that perpetrator.”). Bruen, concurrence at 2.

[8] 303 Creative v. Elenis, 600 U.S. __ (2023); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. __ (2020); Comcast v. Nat’l Ass’n of African American-Owned Media, 589 U.S. __ (2020); Hosanna-Tabor Evan. Luth. Church & Sch. v. EEOC, 565 U.S. 171 (2012).

[9] Students for Fair Admissions v. Harvard, 600 U.S. __, op. at 22–23 (labeling remedy incoherent), 27 (college admissions as zero-sum) (2023); Parents Involved in Comm’ty Schls. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

[10] SEC v. Jarkesy, 603 U.S. __ (2024).

[11] Loper Bright Enters. v. Raimondo, 603 U.S. __ (2024).

[12] West Virg. v. EPA, 597 U.S. __ (2022).

[13] Seila Law LLC v. CFPB, 591 U.S. __ (2020).

[14] United States v. Morrison, 529 U.S. 598, 617 (1999).

[15] United States v. Lopez, 514 U.S. 549 (1995).

[16] 317 U.S. 111 (1942).

[17] Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, dissenting).

[18] SFFA at 22. 

[19] Shelby County v. Holder, Tr. at 47:9 (Feb. 27, 2013).

[20] SFFA at 23.

[21] Id. at 39–40.

[22] Saidiya Hartman, Scenes of Subjection 130 (1997).

[23] Education Amendments of 1972, Pub. L. 92-318, 86 Stat. 235, 373 § 901 (June 23, 1972); Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 173, 181–82 (2005) (When Congress enacts legislation under its spending power, that legislation is in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.”) (cleaned up).

[24] Civil Rights Act of 1964, Title VII, Pub. L. 88-352, 78 Stat. 241, 253, § 701 (“The term “employer” means a person engaged in an industry affecting commerce . . . .”); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 367 (1978) (Brennan, J., concurring in part and dissenting in part) (“Title VII was enacted pursuant to Congress’ power under the Commerce Clause.”).

[25] Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

[26] 109 U.S. 3 (1883).

[27] Id. at 43.

[28] Id. at 48.

[29] Id. at 41.

[30] Harry V. Jaffa, Crisis of the House Divided 284 (Chi. ed. 1982)

[31] Id., chs. V–VIII.

[32] 60 U.S. (19 How.) 393 (1857).

[33] No mere technicality, this argument articulates the principle that a state governs its own jurisdiction, that is, its own soil, generally to the exclusion of other states. Indeed, in 1772, the King’s Bench freed one Mr. Somerset, who “had been a slave to Mr. Stewart, in Virginia,” and “had been brought over to England by his master . . . The question on that [being] not whether slavery is lawful in the colonies . . . but whether in England?” Somerset v. Stewart, 98 E.R. 499, 12 Geo. 3 (K.B. 1772).

[34] Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he interpretation of the Fourteenth Amendment enunciated by this Court in [Brown v. Board of Education] is the supreme law of the land.”).

[35] Andrew Jackson, Message to Congress (July 10, 1832).

[36] Abraham Lincoln, First Inaugural Address (Gilder Lehrman Collection, March 4, 1861).

[37] Jaffa at 293.

[38] Jaffa at 284–89.

[39] Thomas Jefferson, Notes on the State of Virginia, Query XVIII in The Portable Thomas Jefferson (Merrill D. Peterson, ed. 1975).

[40] Matthew Spooner, Ph.D. dissertation, Origins of the Old South: Revolution, Slavery, & Changes in Southern Society (Col. Univ. 2015), at 14 (“[T]he most important factor limiting the inward spread of slavery was the interior’s lack of access to the global market.”), at 232–33 (“[S]outherners threw money and slaves into clearing unusable land, digging canals, and opening new roads and waterways to bring bulky slave-produced goods to the ocean.”).

[41] Consider his public remarks against interracial marriage while arguing against racial chattel enslavement to white supremacist Illinoisians via a race-neutral syllogism: “As I would not be a slave, so I would not be a master.” Id. at 306.

[42] 83 U.S. (16 Wall.) 36 (1873).

[43] 521 U.S. 507 (1997).

[44] 384 U.S. 641 (1965).

[45] Seila, West Virginia, and Loper Bright.

[46] Cedar Point.

[47] 303 Creative.

It would be a mistake to view these decisions as misapplications or misapprehensions of the Court’s view of equality.  The Court knew exactly what it was doing. Justice Alito curtly dismissed the matter in Dobbs v. Jackson Women’s Health, explaining that the regulation of gender-specific medical procedures—and any resultant disparities—did not implicate the Fourteenth Amendment’s guarantee of equal protection unless some grotesque sex-discrimination (obviously, inapplicable to abortion) underlay the whole matter.  And in Students for Fair Admissions v. Harvard, Chief Justice Roberts did not dispute the racial disparities persisting across American education, wealth, health, or political power.  Rather, he called the remedy, race consciousness remedial efforts—that is, efforts—“odious to a free people.” 

Our dissenting justices, however stalwart, only partially grasp the ideological disparity.  In Dobbs, Justices Breyer, Sotomayor, and Kagan jointly explained the centrality of bodily autonomy to women’s dignity and access to American public life and admirably detailed the consequences of stripping it away.  Similarly in Students for Fair Admissions, Justices Sotomayor and Jackson recounted the race-conscious remedial history of the Fourteenth Amendment and forecast how the end to affirmative action will reify the already startling wealth and education disparity between white and black America. 

Yet they miss the bottom line.  In both cases the dissents expound upon racial and gender disparities to a Court that both grasps them and does not see them as problems.  That is, the Supreme Court in Dobbs and SFFA did not fail to apprehend gender or racial disparities.  It saw them but did not care.  Equality, to the current Court, does not merely shut its eyes to these disparities.  It tolerates, indeed, mandates them.  In opposition, the dissents simply assume otherwise. 

Why?  Why should we care—as a constitutional matter—about these disparities?  Why should bathrooms be separated by gender yet racially integrated?  Why should the law tolerate no racial distinctions in public accommodations yet allow racial cognizance in college admissions?  What does women’s dignity have to do with democratic governance?  

To my mind, the dissents don’t offer a satisfactory answer.  For one, the Fourteenth Amendment’s broad text—“No State shall…deny to any person within its jurisdiction the equal protection of the laws”—offers little guidance, let alone an explanation of how it differs from the common law precept to treat like cases alike.  For another, sure, the Amendment’s drafters understood the necessity of racial cognizance in remedial legislation.  After all, the Civil Rights Act of 1866 extended to all the same rights as enjoyed by “white” citizens in contract and property.  But the men who wrote that law turned around and denied women separate legal existence from their husbands, exterminated Native Americans across the West, and gave us Jim Crow racial apartheid.  So history can’t get us all the way. 

Instead, the dissents seem to rest substantially on the moral assumption that we should care about the plights of others and remedy historic wrongs regardless of personal culpability.  I agree; my faith demands it.  But I’m not content to so quickly peg constitutional doctrine to one’s particular morality.  If our constitution must survive diversity of belief, why should this particular moral take prevail other than by force of votes or arms? 

Stepping back, this isn’t a niche legal disagreement. Tens, if not hundreds, of millions of Americans on both sides of the aisle still view people of color, different faiths, different abilities, the poor, and the incarcerated as inherently subordinate beings.  Just look at our racialized housing patterns and school resegregation rates.  Look under the nearest overpass or read up on prison healthcare.  And consider discussions of Islam in national politics, or our ongoing genocide in Gaza.  The question lies at the center of our political debate. 

So what does it mean that “all men are created equal?”  What should we expect from the law’s equal protection?  Do school integration and women’s bodily autonomy rest merely on good vibes?  I hope not.  What is equality good for?