Gans on Reconstruction and Affirmative Action

At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment.  Gans makes two points:

First, he claims that in

the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment.  (The Supreme Court has said as much repeatedly.)  In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons.

Gans point here is problematic.  It is true that during these debates, people often argued about equality.  But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement.  It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government. 

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American by Nature


A great deal of ink has been spilled of late on the question what, exactly, it means for someone to be a natural born citizen under the U.S. Constitution. As Senator Cruz was born in Canada, to a mother who was a citizen and father who was not a citizen, the question is on point. The Constitution states in Article II that “no Persons except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

What, exactly, does that mean?

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Tradition and the Judicial Talent

I previously suggested that a traditionalist judicial decision is self-consciously so. It demonstrates a keen interest in the coherence and continuity of particular legal practices and authorities over long periods of time. It is intentional about retransmitting and re-cementing those enduring legal practices and authorities in its own decision. And its traditionalism emerges from a close reading of the opinion and from attending to the court’s understanding of its own role.

In this respect, consider the plurality opinion authored by Justice Scalia in Burnham v. Superior Court.

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State of the (Angry) Union

Andrew Harrer/Bloomberg via Getty Images

Well, I agree with Donald Trump that the President’s big speech was boring and lethargic. That’s partly because there’s nothing more pathetic than a lame-duck President whose party doesn’t control Congress. He may talk big about executive orders and such, but he can’t help but project weakness and irrelevance. It’s true that the President is reduced to acting unconstitutionally, because the Constitution is no longer any President’s friend as his second term nears its end. Let me put forward the heretical thought that it would be better if he could run for reelection, and that constitutionally mandated term limits are counterproductive especially for Presidents. Now that I’ve made you angry, we can talk some about anger.

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14th Amendment Bars Protectionism, But Not Inefficient Regulation

In a previous post, I argued that the Fourteenth Amendment protects economic liberties. One concern often expressed about such protection  is that the courts would become “a perpetual censor” of all  legislation. But the best evidence of the originalist standard of review shows that concern is misplaced. The standard forbids economically protectionist legislation directed against citizens within a state, but is otherwise relatively modest.

Here Justice Field’s dissent in Slaughterhouse is again instructive both about which rationales justify trenching on economic liberties and which do not. (While his opinion relied on the Privileges or Immunities Clause, two justices who would have also relied on the Due Process Clause concurred on these standards).  Fields, of course, would have invalidated the Louisiana monopoly that made it impossible for other butchers within the state to compete in New Orleans. Thus, it is not a justification under the Fourteenth Amendment to prefer one group of citizens to another. Economic protectionism, which is the essence of a state granted monopoly without public regarding considerations, is thus unconstitutional.

Indeed, no Supreme Court case has ever clearly stated that state regulation based on economic protectionism or on favoring one class of citizens over another is constitutional. The fact that the Court at the height of the New Deal was unwilling to say that states were justified in preferring one class of citizens over another because of politics shows how unpersuasive it the attempt to conclude that purely protectionist legislation meets even the most lenient standard of review.

The harder question is how courts are to proceed, assuming that the defense of the legislation can be rooted in a putative police power objective.

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Locating Traditionalism in Jurisprudence

Law Reports

How might we distinguish the traditionalist judicial decision?

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The Fertility God of Conservatism


It is hard to imagine what the world of a conservative intellectual looked like in 1953. In our present age of talk radio (led by Rush Limbaugh), Fox News, national conservative magazines and blogs, and the New York-D.C. axis of Right-leaning think tanks, we regard the conservative movement as ubiquitous—and inextricably linked to politics and public policy.

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The 14th Amendment Protects Economic Liberties

The Fourteenth Amendment is one of the hardest provisions in the Constitution to get right. Sometimes there seem be as many theories of the provision as there are theorists. I admire their persistence. While I am not an expert in the all the intricacies of the Amendment myself, I do think it very probable that it protects economic liberty at least from discriminatory and arbitrary interference. Thus, its original meaning offers support for recent courts that have invalidated irrational licensing schemes.

For me, three reasons combine to present a persuasive case that the Fourteenth Amendment protects economic liberty. First, there seems little doubt that the Fourteenth Amendment was ratified in part to permit federal protection of economic rights.  Before ratification, there had been constitutional doubts about the Civil Rights of 1866 which was aimed at preventing discrimination against African Americans in their exercise of economic rights like the right to contract. That background  suggests that either the Privileges or Immunities Clause, or the Due Process Clause, neither of which by their terms are limited to racial discrimination, must cover economic rights. (For reasons elaborated by Chris Green and John Harrison, I tend to think that the historical meaning of equal protection did not provide a general basis for preventing discrimination in the decision about what laws to adopt).

Second, this interpretation of the Fourteenth Amendment also makes it comport with an important part of the ideology of Republican party—free labor. Thus, understanding the Fourteenth Amendment as protecting economic liberty also has the advantage of making it flow from the central tenets of the political party that was responsible for entrenching that clause in the Constitution. These first two reasons are particularly powerful in combination: the inclusion of economics liberties within the Amendment’s scope gives it an expected legal effect that would also have resonated with popular popular political commitments.

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Unorthodox Law

Sea of bureaucracy

I’m not in the habit of pumping other scholars’ stuff, least of all scholars with whom I often disagree and with whom I compete for ssrn rankings. I’ll cheerfully make an exception for Abbe R. Gluck, Anne Joseph O’Connell, and Rosa Po, on “Unorthodox Lawmaking, Unorthodox Rulemaking.”

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The Genuine Article


Florence King, the essayist, fiction writer, literary critic, and wit, died last week at the age of 80. King is being hailed as “one of the most provocative and uncompromising prose stylists of her generation,” and rightly so.

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