AN OPEN LETTER TO JOHN ROSENBERG:

Dear John:

A few weeks ago I promised to try explain how a preferentialist’s view of the 14th Amendment is more consistent with the our history and Constitution than you allow.

Over the last few days I started to respond by showing how the constitutional modalities do not support a colorblind interpretation of the equal protection clause. Today, I want to expand on those explanations and try to incorporate them into a larger picture.

Some of my earliest posts here focused on what I saw (and still see) as the conflation of two arguments against affirmative action -- or, to put it positively, in favor of an absolutely colorblind government. There are moral arguments for a colorblind government, and there are legal arguments, but those arguments are not (always) the same thing.

I’m going to ignore the moral arguments in favor of colorblindness, for now, because I covered them (or started to, at least) in some length with Bob, and because I think that other than your fierce determination to stamp out the invidious non sequiter (which is, in fact, not invidious or a non sequitor if the question is framed morally rather than legally) you tie most of your arguments to the constitutional case in favor of colorblindness.

What does the Constitution say about colorblindness? Or, to put it more specifically, what does the 14th Amendment’s Equal Protection Clause say? And what does it mean?

In relevant part, it reads: “”No State shall make or enforce any law which [shall deny] to any person within its jurisdiction the equal protection of the laws.”

To figure out what the Equal Protection clause means, I’m going to rely, as I’ve explained before, on Professor Bobbitt’s modalities of constitutional argument – “the ways in which legal propositions are characterized as true from a constitutional point of view.”

The six modalities are (quotes taken from Professor Bobbitt’s book):

Textual: “looking to the meaning of the words of the Constitution alone, as they would be interpreted by the average contemporary ‘man on the street;’

Historical: “relying on the intentions of the framres and ratifiers of the Constitution;”

Doctrinal: “applying rules generated by precedent;”

Structural: “inferring rules from the relationships that the Constitution mandates among the structures it sets up;”

Ethical: “deriving rules from those moral commitments of the American ethos that are reflected in the Constitution;”

Prudential: “seeking to balance the costs and benefits of a particular rule”

I see their application working out something like this:

Textual: cannot provide the basis for or against the colorblindness argument. A woman on the street, reading those words, cannot attribute any sensible meaning to them absent reliance on one of the other modalities. The text says nothing about race; it says nothing about gender, disability, or sexual orientation. I concede your point, for now, about the textual focus of the clause on individuals rather than groups, but I cannot see what more help it provides. It offers no definition for “equal protection of the laws,” a phrase clearly crying out for definition. Is it unconstitutional for the government to draw any sort of classifications among its citizens? That is what the text requires, but even a woman on the street, reading the 14th Amendment for the first time, would be hard-pressed to make that argument with a straight face.

I’m not suggesting that the phrase “equal protection of the laws” is meaningless; rather just that it can’t, as a text, answer any of our questions meaningfully.

Historical: I know that you and Jack Balkin, who is far more qualified than me to comment on this, have already had an exchange on the colorblind intentions of the framers and ratifiers. For what’s it’s worth, I think that the historical intent argument in favor of a colorblind equal protection clause demonstrates well the danger Justice Scalia identified with all inquiries into legislative intent; and, at best, leaves the Fourteenth Amendment open to a Dworkin-style interpretation.

For those of you following at home: Ronald Dworkin argues that constitutional provisions like the Equal Protection Clause are abstract moral statements that must be understood “in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on government’s power.” I think Dworkin’s theory of constitutional interpretation is crazy because it forces judges to make all sorts of judgments they aren’t good at. Some people like it, though, and it would fit well with some statements about American history and constitutional philosophy. So John, would you endorse the moral reading of the Equal Protection Clause? And if so, are you willing to live with Dworkin’s view of it?

But I’m getting ahead of the framework.

Doctrine: Applying rules generated by precedent leaves us with no clear answer on whether the Constitution requires absolute colorblindness; if anything, precedent suggest that it doesn’t. At an extreme point, at least for now Bakke is still good law in most parts of the country. What’s more, even the most “conservative” decisions in this area—Croson, Adarand, et al.—leave open the possibility for some governmental classifications based on race. (In Adarand O’Connor observed that strict scrutiny isn’t always “fatal in fact.”)

To this, I suppose the obvious response is to start arguing about whether educational diversity, or broad social remedies, ever constitute compelling state interests. Whether they do or not, though, they don’t support the assertion that the Equal Protection Clause mandates a colorblind society.

Structural: I don’t see how the structural modality applies here at all. Do you have some ideas?

So far, I don’t see how the modalities help figure out what the Equal Protection Clause means. The text is overbroad, the history, if anything, is anti-colorblindness, the doctrine is muddled and the structure is unhelpful.

This leaves ethics and prudence.

I touched on my qualms about the ethical reading of the Constitution earlier, but to engage the modality: while there is a current of absolute neutrality in American history (and within the Constitution), it is pretty a muddy one.

To take the question as an empirical matter first: while some founders and ratifiers—and probably even a greater percentage of common citizens—embraced a notion of colorblindness not completely alien to our own, their actions showed precious little of that commitment. Moreover, I can’t see how a 21st notion of colorblindness can be squared with the realities of American culture and law. Brown v. Board, after all, hasn’t even celebrated it’s 50th anniversary yet.

One historical narrative supporting the colorblind Equal Protection Clause would point to our fitful, but most often sincere, attempts to have the realities of American law reflect the rhetoric and broad (inclusive) language found in the Constitution. That argument, I guess, embraces the idea that our history moves – if not inexorably, then something close to it – toward that shining city on the hill, and classifies all non-colorblind interpretations of the Equal Protection Clause as historically or morally suspect.

Another narrative – or at least a strong subplot – is available, however. That narrative understands the Constitution as a profoundly conservative document, rather than a revolutionary one, designed to protect certain, shall we say, more influential sections of American society from the vicissitudes of democratic state governments. That narrative might point at the conservative movement’s recent embrace of colorblindness not as a “seeing of the light,” but instead as yet another means—with historical roots in the 3/5s clause and Jim Crow—of preserving a status quo still very much affected by prior generations of racism.

The second narrative doesn’t compete against the first for a different result (both want colorblindness), but it does cast doubt, I think, on the first’s validity as an accurate representation of American ethos.

(These waters are muddy in other areas as well. The commitment to neutrality in the First Amendment, for instance, has to be measured against both the Amendment’s explicit protection of religion and our collective history of running roughshod over the rights of religious minorities. We’re still fighting the school prayer issue, for the love of Pete. And whatever the formal commitments to religious neutrality found in the amendment, we are still one non-Protestant president away from having two. The words might be there on the paper, but I have serious doubts as to whether the ethos has caught up with them, yet).

Until now I’ve treated ethos as an empirical matter—mostly because I’m better at my American history than I am my moral philosophy. But I think there’s arguments to be there too, which ultimately start (and end) with the question I posed you a few weeks ago: doesn’t it strike you as a cruel joke, or maybe something tragic, that the “true meaning” of the 14th Amendment reasserts itself just in time to resegregate our graduate programs? (The colorblindness partisans also assume that the 14th Amendment acts only to limit the means of government action rather than the goals of that action. I think if we’re going to talk “ethically” on a blank slate, that argument is up for grabs, too.)

Before I leave ethos I’d like to pose a hypothetical and get your response.

Suppose it is sometime in the late 1880s, and Congress comes to its senses (belatedly) and decides it wasn’t a good thing to trade Reconstruction for a presidential election. In response, Congress reasserts its authority in our southern states, and passes a law that mandates new, federally-run schools funded at the highest level with the best teachers. The only catch is that only black students are allowed to attend these schools – all others (white students) must continue to be educated as they were before. The obvious rationale is that some enlightened member of Congress realized that education could be a great social equalizer. Call it the “Leave No Child to Rot in Jim Crow Act of 1888.”

How would you evaluate LNCRJCA? Is it moral? Does it keep with the ethos of America? Is it consistent with the 14th Amendment?

Finally, prudence. The court system could not enforce a strictly colorblind reading of the Equal Protection Clause. What would happen the first time that a white cop was turned down as an undercover cop because of his skin color? (Say what you will, but farm boys from Nebraska have little business trying to work into a Hong Kong triad). Is that a violation of the Equal Protection Clause? If not, why not? Also, there must be conceptual space for remedial programs – outside the strict “you three were fired and so you are going to get rehired” gambit. What if 15 years from now we catch Chicago or New York school officials deliberating resegregating their schools? What solution under the colorblind reading of the 14th Amendment?

When I look at the Equal Protection Clause through its text, history, doctrine, structure, ethos and prudence, I wonder if it isn’t the colorblindness-supporters, rather than the preferentialists, that need to be calling for the constitutional convention.

Sorry for the length. I’m looking forward to hearing your response. Also, if you (or any readers who have made it this far) have any suggestions for scholarly work in this area, I’d be more than happy to hear them. I know nothing I wrote here is particularly shocking or new, but as I’ve said before, this really isn’t “my” area.

All the best,

Simon

UNINTENTIONAL FUNNY OF THE DAY. During ABC’s coverage of the Nissan Open, one announcer noted that “Nick Price tied for the most wins, 15, on the PGA Tour during the 1990s, with Tiger Woods.”

For the non-golfers reading this: Nick Price has been on the Tour since the late 80s. He played all ten seasons of the ‘90s. Tiger Woods turned pro (and won his first tournament) in the fall of 1996. He played 3-1/4 seasons.

As Rick Reilly once wrote, we should all be on pogo-sticks trying to see Woods in person.


SPEAKING OF SPORTS. I’ve officially had it with Andrew Sullivan. It used to be the first three websites I checked every day were slate.com, salon.com, and andrewsullivan.com. Now Salon is almost dead, Slate is free (again), and Andrew has wandered off the end of the cliff.

I mean, really. It’s one thing to hold yourself out as the laureate of the warbloggers, and to continue to froth and stew about the same perceived threats to our liberty (fifth columnists, anyone?), but it’s another to run a series of items amounting to little more than ad hominem attacks on the people they target and the people they mock.

Andrew’s most recent “Begala Award Nominee,” and the proximate cause of this rant, is Keith Olbermann’s column is Salon, where he [Olbermann] observed:

"Most of us have learned to simply accept the fact that Rupert Murdoch's News Corp. exists in the world, just as we've come to accept that there are terrorists among us, as well as people who scam grandmothers out of their savings."

Rupert Murdoch the entertainer, owner of Fox television and movie studios, is a man I owe a great debt of gratitude (see, e.g., The Simpsons).

Rupert Murdoch the publisher, owner of Fox News and myriad newspapers, consistently makes me reconsider my longstanding commitment to completely unfettered immigration.

His “news channel” and “newspapers,” with a few exceptions (notably Andrew’s Sunday resting spot), are cesspools.

What the New York Post did to Sandy Koufax was disgraceful; the fact that it took them so long to apologize even more so.

I would have hoped Andrew, who has been subject to scurrilous invasions of his own privacy in the not-too-distant-past, would be more sensible and supportive of the true victim here: the greatest lefty in baseball history, and one of the classiest acts, ever.

NEW RULE. No Federalist is allowed to talk about judicial activism until he or she either disavows or explains Alden v. Maine. This means you, Professor Kerr.

SPEAKING OF CONSERVATIVES. It's not really fair to tar the law-and-economics movement with the conservative brush, or the conservatives with the law-and-economic one. But the correlation between the two can't be an entirely coincidental, can it?

I'm prompted by this after reading the great new blog, Legal Theory, run by Lawrence Solum. Now, I understand there's a role for economics in law, and that the law-and-econ movement has given us some interesting insights (although I wish they'd leave just a tiny corner of antitrust for the rest of us to play with). But, after skimming this paper, I really think it's gone too far.

The paper develops an economic model to explain the rise of democartic government in ancient Greece. I can't help but think that somewhere Marx is laughing.

WAIT JUST MORE THAN A SECOND OR TWO. Both during and after law school I bought into the conservative complaint about liberal justices, namely, that most formulations used to defend the reasoning in cases like Griswold or Roe was something less than compelling (and raised all sorts of other troubling issues).

No longer. The typical conservative argument is summarized well by a post at Howard's site.

If it is "conservative" to insist on confirming only those judges who are wary of employing such high-flown phrases to "find" new constitutional rights -- look! I found another right over there, under that oak tree! -- then call me conservative. I will respect Justice Scalia's opinions when he votes to protect flag-burners or overturn criminal convictions, because I trust that he is voting that way for the right reasons. I can't say the same for the Stephen Reinhardts of the world.

Two questions for Howard's anonymous correspondent.

1. Explain Bush v. Gore.

2. Explain Alden v. Maine.

Most everyone knows the first decision. But the bulk of it, at least, is based on some plausible interpretation of the equal protection clause (if only the Court hadn't announced that it was tantamount to an unpublished decision).

The second case is worse. Far worse. It is legal sophistry. It's incoherent. Justice Kennedy can't decide what principle he rests his opinion on, and as a result wanders from "vestiges of sovereignty" to "state sovereignty" to I-don't-know-what.

Not to go off on a rant here . . . but does the Rehnquist Court know what it is doing to the English language? Do they not realize that sovereignty has a meaning that predates their desire to enforce 1830s federalism on 1990s America? And can someone, anyone, define sovereignty (as the Court has used it recently) for me?

Just wondering. And until someone does, the conservatives can just shut up about judicial activism.

A BUDDING COURT TV PERSONALITY. Phil Carter recalls the Lindh change-of-plea hearing, and adds some interesting questions.

FINALLY. I think Juan pushes it too far when he tries to draw Judge McConnell into the discussion about Estrada. As luminous as Estrada's resume is, it ultimately amounts to a series of high-profile (and highly prestigoius) functionary positions: clerkships, OLC @ DOJ, GD&C. Nothing to sneeze at (most--including me--would kill for half of it), but no where near the record Judge McConnell compiled.

AND JUST TO PROVE I CAN MULTITASK: Continuing my discussion on why the 14th Amendment doesn't require colorblindness, I leave you, gentle readers, with this:

The third constitutional modality is History. It doesn't really support colorblindness, either. But I can't improve on what Jack Balkin has already said.

AND ANOTHER THING. I take inspiration whereever I can find it.

NOT MUCH GOING ON TONIGHT. Oh wait, the Respondent's Brief is available. I'm taking the rest of the night off to read it.

BUT . . . Over the next few days I hope to flesh out my arguments about John's premises (see the last post). I want to start easy.

John claims that us preferentialists are urging a new constitutional order, one "fundamentally incompatible with our traditional principles of official neutrality and individual as opposed to group rights, especially the individual right to be treated 'without regard' to race, religion or national origin. *** I like the neutral, non-discrimination principle that I believe is embodied by the 14th Amendment."

Cookbook Conlaw Part XXIV: Six means of interpreting the constitution-- text, history, structure, doctirne, ethos and prudence. What do they tell us about the Fourteenth Amendment (and anything imbedded therein):

TEXT: The "person" v. "group rights" argument might get somewhere, but it runs into the question of what "equal protection" means pretty quickly. And "equal protection" can't mean what it says -- no one suggests that the 14th Amendment requires the Army to give commissions to overweight slobs with no work ethic. But there's nothing on the face of it that suggests that it doesn't. And nothing to suggest that it has anything more to do with race than it does anything else.

DOCTRINE: So far as the history of the doctrine goes, John doesn't have much to talk about. Of the 130 years (give or take) since the 14th Amendment's passage, all but the last 15 have allowed for some recognition by the government of the existence of racial groups, and allowed that recognition to shape policy and law. (I'm reminded of a comment from my First Amendment professor, who kept insisting that notions of second class citizenship aren't just feelings but social facts.)

I'll keep on this throughout the week. But my basic point is that I don't think it's so self-evident that the preferentialists are the ones who need to call the constitutional convention.

FAIR USE? I hope John doesn't mind (welcome back, by the way) me excerpting our exchange from his comments section:


John--

You say:

"But whether they are divinely inspired or not, we should be very clear that the principles underlying the new order or preferentialism that is being urged upon us are fundamentally incompatible with our traditional principles of official neutrality and individual as opposed to group rights, especially the individual right to be treated “without regard” to race, religion, or national origin."

It seems like some sort of sick joke to suggest that the 14th Amendment’s equal protection clause, which for a hundred years was ignored or perverted in service of discrimination, now prevents us from taking the most direct route possible of remedying that discrimination, doesn't it? Or is it merely the convenience of history?

Simon

Posted by Simon February 2, 2003 12:49 PM
***

Simon - One could say better late than never. But I won't, since that trivializes an important disagreement that is at the core of the debate over preferences: whether the non-discrimination principle of the civil rights laws is still valid. You obviously believe that racial discrimination is an acceptable means of remedying the effects of racial discrimination. I don't. Nor does the 14th Amendment, which says "no person" can be treated without equal protection of the laws.

Posted by John Rosenberg February 2, 2003 01:05 PM
***

John-

I hope to get to these answers more fully on my site at some point soon, but briefly:

You say "still valid." But doesn't that just ignore the question I ask, which is, in effect, when has it ever been valid (in that some part of validity has to involve its actual on-the-ground use)? In admin law they talk about the non-delegation doctrine having one good year (1937)-- wouldn't it be more accurate to say that the reading of the 14th Amendment you espouse has had one (three at the most) good decades? And what should that tell us about its validity as an ongoing principle?

Simon

Posted by Simon February 2, 2003 09:11 PM
***

Simon - I look forward to reading your further comments. I like the neutral, non-discrimination principle that I believe is embodied by the 14th Amendment. I believe it reflects what is best, and most essential, about our history. You obviously don't like it. You'd like government(s) to have to have the flexibility to do the most efficient thing possible to correct a problem, even when doing so conflicts with a principle -- neutral, non-discrimination regarding race and religion -- that has grown out of our history and was written into the Constitution in several places, not simply the 14th Amendment (such as the neutrality toward religion in the 1st Amend.). For that reason you might well prefer a parliamentary system to a constitutional one; many reasonable people do. But for better or worse, we do have a Constitution. The 14th Amend. does guarantee equal protection to every person, not simply to people in preferred groups. I think you should call for a new amendment, or even a new constitutional convention, in which your views might well prevail.

Posted by John Rosenberg February 2, 2003 11:59 PM

I'M BACK. Sorry to my loyal readers -- if you are both still here -- for the long absence. Travels, illness and general malaise kept me away from the web for longer than I expected. But now I'm back, and hope to resume a more regular posting schedule.

On a related note: where are you Bob? I hope my last response didn't offend you -- I'm waiting anxiously for your reply.

PROVING TOO MUCH (OR IS IT TOO LITTLE?) BY HALF. Juan Non-Volokh tries to explain -- seriously, I think -- why opposition to Estrada relates to his ethnicity. He closes with:

None of the above means that Estrada's opponents are bigots, anti-Hispanic, or anything of the sort. They don't wish to keep Hispanics off the appellate courts. Rather, they want to keep out politically attractive Supreme Court nominees with unfavorable judicial philosophies -- and Estrada falls into that category because he is Hispanic. In other words, Estrada's ethnicity may not be the proximate cause of the opposition. Nonetheless, it is a but-for cause.

Rather than proving anything significant about the role of race in this nomination, Juan's post just highlights the problems with "but for" reasoning.

Consider

But for Estrada's conservative leanings, there would be no opposition.

But for the successful reelection of Patrick Leahy, Tom Daschle, et al., there would be no opposition.

But for the appointment of Anthony Kennedy, Clarence Thomas, Sandra Day O'Connor, William Rehnquist and Antonin Scalia to the Supreme Court, there would be no opposition. (Because, presumably, there would be nothing to propose).

But for Estrada's birth, there would be no opposition.

I suspect what Juan really meant to imply is not that there is no proximate causal relationship, but that there is an attenuated proximate causal relationship. But all he really highlighted was the weakness of but/for causation.

As a matter of observation I don't think that's right, but it does make a bit more sense than the alternative.

And because no one cares, my own thoughts on the nomination: he's probably qualified (though not as qualified as his supporters make him seem). The Democrats are just throwing what the Republicans have done back in their face, and more power to them.

Finally, with apologies to Howard, I think the notion that the Senate and the Presidency being controlled by the same party has some bearing on the appropriateness of Democratic opposition is a little silly. Opposition is either appropriate or it is not. Preventing votes is either appropriate or it is not. The fact that the Democrats can take advantage of the Senate's procedural quirks to block Estrada is not--facially--that removed from not allowing him out of committee when they were in control.

I see two immediate problems with the argument that it is different. First, it suggests that there is some sort of democratic legitimacy that descends on the President's picks by virtue of a GOP majority in the Senate. I think that's wrong -- the President's legitmacy derives from his own election, not anyone elses. I don't think the 2002 election had much of anything to do with judicial nominations.

Second, I don't think we are in the past anymore. The Republicans will account--especially in the area of judicial nominations-- for the original sin of Bush v. Gore's per curiam opinion for many, many years to come. When I first read Bruce Ackerman's suggestion that the Senate Democrats block all Supreme Court nominations I thought it was a bit crazy, like some of his other writing. But the more I witness the sorts of judges the President nominates -- too many Pickerings, not enough McConnells -- I begin to wonder if Ackerman didn't have a point. There are principled, capable conservative jurists out there; the President has done a remarkable job thus far of avoiding them.