The Volokh Conspiracy

I recently participated in a Tulsa Law Review symposium in honor of Yale Law School Professor Heather Gerken, one of the nation’s leading federalism scholars. Much of Gerken’s work urges her fellow political liberals to rethink their traditional distaste for federalism. My contribution to the symposium is now available on SSRN. Here is the abstract:

Professor Heather Gerken has made important contributions to our understanding of democracy and federalism. Part I of this article summarizes two of her most significant ideas. The first is “taking federalism all the way down,” the theory that many of the benefits of federalism can be enhanced by empowering local governments as well as states. The second is her insistence that federalism can be used to empower political dissenters, including racial and ethnic minorities. Subnational jurisdictions where nationwide minorities are in the majority enable these minorities to exercise power in their own right instead of relying on the good will of the national majority. In Gerken’s trademark phrase, they can “dissent by deciding.”

Part II proposes three extensions of Gerken’s ideas. First, both “federalism all the way down” and the empowerment of minorities might be enhanced by greater attention to the benefits of “voting with your feet” as well as voting at the ballot box. Foot voting has some important advantages over ballot box voting as a tool for actualizing political freedom and expressing dissent. Second, for minorities to be able to “dissent by deciding” effectively, Gerken may wish to rethink her opposition to judicial enforcement of constitutional limits on federal power. Finally, while Gerken argues that federalism may be beneficial for minority groups today, she accepts the conventional wisdom that it was largely detrimental to them throughout most of American history. In reality, however, the situation was far more nuanced. Although state and local governments often oppressed minority groups, so too did the federal government. During much of the last 200 years, African Americans and other minorities would have been even worse off with a unitary state than they were under federalism.

I previously commented on Gerken’s writings on federalism here. In this forthcoming article, I develop in more detail some of the extensions of Gerken’s ideas that I proposed in the symposium piece.

The Federalist Society recently unveiled its new Executive Branch Review Blog, which focuses on legal and constitutional issues involving – you guessed it – the executive branch.

One of the regular bloggers there will be my wife Alison Somin, who serves as a special assistant/counsel with the US Commission on Civil Rights. Yesterday, she put up her first post, which focuses on the EEOC’s efforts to curb employers’ use of criminal background checks in hiring on the grounds that such checks might have a disproportionate negative effect on minority job-seekers:

The Equal Employment Opportunity Commission... is making a particular effort to restrict allegedly discriminatory use by employers of criminal background checks. Because African-Americans and Hispanics are more likely to be arrested or convicted of crimes than members of other racial and ethnic groups, the EEOC’s thinking goes, an employer policy that excludes job applicants based on past arrests or convictions will have a disparate impact on African-Americans and Hispanics and, if not job-related and justified by business necessity, may violate Title VII of the Civil Rights Act of 1964.

In April 2012, the EEOC issued a new Enforcement Guidance regarding such employer criminal background checks. Some civil rights advocacy groups praised the document, stating that it will help “remove unfair barriers for people who have moved beyond their pasts” and discourage employers from discriminating against employees who have paid their debt to society.”

But critics raised both substantive and procedural concerns about the new guidance. Substantively, critics noted that the new policy does not do enough to make clear in what circumstances an employer may use a background check; it notably contains no “safe harbors” and may chill some lawful use of checks....

The EEOC appears committed to rigorous enforcement of the new Guidance. At a Chamber of Commerce luncheon, EEOC member Victoria Lipnic emphasized the EEOC’s commitment to pursuing these cases, noting that “Criminal background checks are ripe for the picking.”

Although the EEOC does not ordinarily make investigations public until a case has been filed, news stories about recent targets of EEOC investigation suggest that the agency is setting a fairly high bar for “business necessity.” Such investigations include a probe into the use of checks at a company that provides security services, and also an unnamed firearms retailer, although the employer believes that federal law requires him as a federal firearms licensee to conduct such checks.

[NOTE: I have not copied the numerous links in the original post].

For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.

Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.

Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.

I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom.

Legal scholar Peter Irons, a leading academic expert on the Japanese internment cases, has written a powerful article calling on the Supreme Court to explicitly repudiate those decisions [HT: Constitutional Law Prof blog]. Those notorious cases, most notably Korematsu v. United States, upheld the forcible detention of over 100,000 Japanese-Americans in internment camps during World War II, as well as various other racially discriminatory policies against them.

I. The Case for Repudiation.

As Irons notes, the overwhelming majority of legal scholars and jurists now recognize that the Japanese internment cases were outrageous injustices. They are among the most reviled decisions in Supreme Court history. In 1988, Congress and President Ronald Reagan formally denounced the internment, apologized to the surviving victims, and enacted a law compensating them for their losses (albeit, inadequately, given that each was paid only $20,000 in compensation for some three years of imprisonment, and the loss of large amounts of income and property). The Supreme Court itself has made negative references to these cases in more recent decisions, but has never formally overruled any of them. While lawyers today would be ill-advised to rely on these cases in their arguments, they are technically still on the books, and could potentially be used as precedents in the future – especially if changes in public or elite opinion make racially discriminatory war policies more popular than they are now.

In the article, Irons complies extensive evidence that federal government officials – including the Solicitor General of the United States – deceived the Supreme Court about the extent of the supposed security threat posed by the Japanese-Americans. He also cites evidence (long recognized by other scholars) that racism was in fact the most important motive for the internment policy. For example, General John DeWitt, the official who actually issued the internment order upheld in Korematsu, wrote that the Japanese had to be expelled from the West Coast because they were an “enemy race” whose “racial characteristics” made them untrustworthy. This statement, and others like it, directly contradicts the Korematsu majority’s statement that ” Korematsu was not excluded from the [West Coast] because of hostility to him or his race.”

II. What Kind of Repudiation do We Want?

Overall, the case for repudiating these decisions is very strong. But there are two additional issues that must be considered.

First, as Irons recognizes, any statement of repudiation by the Court would not be binding precedent because the original interment cases are today moot and there is no present litigation raising the same issues. Even if all nine justices issued a statement denouncing Korematsu, that would not officially overrule it or necessarily prevent government lawyers from citing it in future cases. I don’t think this is a decisive objection to Irons’ proposal. A formal repudiation by the Court would have great symbolic value, even if it isn’t technically legally binding. It would at the very least discourage lower courts and government lawyers from favorably citing these decisions in the future. Still, the difference between a mere public statement and actual overruling of precedent is worth keeping in mind.

Second, we need to ask what exactly it is that the Court would repudiate if it adopted Irons’ idea. The Japanese internment cases stand for at least three distinct, though interrelated, propositions:

1. National security in wartime is an important enough government interest to justify the use of racial classifications in at least some conceivable circumstances. Ironically, Korematsu was the first case in which the Supreme Court stated that racial classifications must be subjected to what we today call “strict scrutiny.” Today, strict scrutiny can only be overcome if the use of racial classifications is “narrowly tailored” to the advancement of a “compelling state interest.” It’s difficult to deny that national defense in wartime is a “compelling state interest,” especially if the Court refuses to overrule precedents such as Grutter v. Bollinger, which hold that the educational benefits of “diversity” in higher education qualify as a compelling interest. Surely wartime national security is at least as important as educational diversity.

2. Second, these cases hold that the judiciary should give Congress and the president broad deference in evaluating their wartime decisions. As the Court put it in Hirabayashi v. United States:

Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it.... Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute it judgment for theirs.

3. Finally, the Court decided that the evidence that Japanese internment was a legitimate military measure was strong enough to pass the appropriate level of judicial scrutiny, especially in light of the supposed need for judicial deference to the executive and Congress.

It makes a big difference whether repudiation of the internment decision means rejection of all three of the above propositions, or just one or two of them. The simplest way to repudiate Korematsu and its companion cases would be to just reject Point 3 above. That’s the issue that the evidence in Irons’ article is most relevant to. But notice that if we leave 1 and 2 intact, it would be constitutionally permissible for the federal government to engage in future wartime racial internments so long as they had better evidence supporting their decision (or perhaps even so long as they didn’t lie about and exaggerate the evidence they have).

For a repudiation of the internment cases to have real bite, it would have to reject Proposition 2 as well as 3. Such a rejection has already partially occurred in the Guantanamo cases, where the justices showed relatively little deference to the president and Congress. In my view, the Court can and should rule that there is no special deference to wartime legislative and executive decisions that infringe on fundamental constitutional rights. The Japanese internment and many other historical examples show that the executive and Congress often cannot be trusted to limit wartime infringements on individual constitutional rights to those that are genuinely required by military necessity. But obviously that idea remains highly controversial both within and outside the Court, and I doubt you could get all nine justices to sign on to it. Certainly not those conservative justices who dissented in the Guantanamo cases in part because they thought the majority did not give sufficient deference to the judgment of the president and Congress.

Setting aside the details of legal doctrine, there is a deep underlying disagreement here between those critics of Korematsu who believe that a measure like the Japanese internment can never be constitutional and those who think that it could potentially be upheld in a case where the government presented much stronger evidence that there was a genuine military necessity that could not be dealt with in any other way.

Despite these caveats, I think a Supreme Court repudiation of the internment cases would have considerable symbolic value. And there is good reason for it to cover Proposition 2 as well as Proposition 3.

My wife Alison Somin and University of San Diego law professor Gail Heriot have published a short article in Engage criticizing recent claims that the Thirteenth Amendment, which bans “slavery” and “involuntary servitude,” and authorizes Congress to pass “appropriate” enforcement legislation, actually gives Congress broad authority to legislate on a wide range of other issues:

[W]hen one of the authors of this essay told a friend that she was going to an all-day academic conference on contemporary applications of the Thirteenth Amendment, he expressed shock that there could be any need to discuss this subject and inquired if he had missed a campaign proposal by Newt Gingrich to revive chattel slavery.

He was joking—obviously. Hardly anyone is foolish enough to believe that chattel slavery is in danger of making an imminent or not-so-imminent comeback in America.... Nevertheless, there has been a growing movement in both academia and the halls of Congress to use the Thirteenth Amendment’s Section 2 to address a variety of social ills thought to be in some way traceable back to slavery. This movement has had its greatest recent success with the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA). In passing that law, Congress relied solely on its Section 2 constitutional authority for its ban on crimes motivated by race and color....

The HCPA is not the only effort to make use of Section 2 in light of the breadth of the Jones decision. Scholarly articles argue that Section 2 authorizes hate-speech regulation; bans on housing discrimination based on sexual orientation; federal civil remedies for victims of domestic violence; federal child labor bans; bans on racial profiling; minimum-wage laws like the Fair Labor Standards Act; federal regulation of the mail-order bride industry; bans on race-based jury peremptory challenges; regulation of racial disparities in capital punishment; regulation of environmental problems in African-American communities; state laws like Colorado’s Amendment 2 that prohibit states and localities from passing bans on sexual orientation discrimination; regulation of the use of the Confederate battle flag; laws that aim to protect employees’ privacy and autonomy; federally funded job-training programs for the urban underclass; federal guarantees of public education; a federal ban on rape; anti-sexual harassment laws; legislation protecting “reproductive freedom”; bans on payday lending; and even changes to our nation’s “malapportioned, undemocratic presidential election system” because of its adoption on the alleged basis of “appeasement to southern slaveholding interests.” [footnotes omitted].

The Thirteenth Amendment is an attractive vehicle for advocates of nearly unlimited federal power because a broad interpretation of it would enable Congress to circumvent the limits the Supreme Court placed on Congress’ powers under the Commerce Clause and the Fourteenth Amendment in cases such as United States v. Lopez, United States v. Morrison, and NFIB v. Sebelius. Unlike a law authorized by the Commerce Clause, a law authorized by the Thirteenth Amendment need not have any connection to interstate commerce or “economic activity.” Unlike most parts of the Fourteenth Amendment, the Thirteenth Amendment is also not limited to regulating action undertaken by state governments, since it bans even purely private slavery and involuntary servitude.

The broad vision of the Thirteenth Amendment relies on nineteenth century precedent claiming that the Amendment was meant to ban the “badges and incidents” of slavery as well as slavery itself. But Gail and Alison effectively argue that these concepts were originally understood to be fairly narrowly construed. I would add that a broad interpretation of “badges and incidents” is inconsistent with the text of the Amendment itself, which bans “involuntary servitude,” as well as slavery. If the Amendment’s ban on slavery also covers anything even remotely connected to slavery as a “badge” or “incident” thereof, then there would be no need to include a separate ban on “involuntary servitude.” After all, such a broad theory of badges and incidents would surely make the ban on involuntary servitude completely superfluous. If anything qualifies as a badge or incident of slavery, involuntary servitude does.

So far, the broad interpretation of the Thirteenth Amendment has been primarily advanced by liberals. But, as Gail and Alison note, conservatives are starting to get in on the act as well, including in recent efforts to enact a federal law banning sex-selective and race-selective abortions.

In this recent post, I took issue with Justice Clarence Thomas’ apparent recent statement that African-Americans were not considered part of the “we the People” referred to in the Preamble of the Constitution. In conveying what Thomas said, I relied on a report in the Washington Post, which was echoed by many other media sources.

However, the video of Thomas’ dialogue with Yale law professor Akhil Amar and a transcript of his remarks obtained by VC reader Andrew Hyman suggests that his remarks were a lot more ambiguous. Here’s the relevant part of the transcript (which occurs roughly between 8:00 and 12:00 of the video):

AKHIL AMAR: ...I guess I’d like to start our conversation — it seems fitting — with those — with the words that the Constitution starts with, “we the people,” and how that — what that phrase means to you, how that phrase maybe has changed over time thanks to amendments and other developments.

What do you mean — who are “we”? You know, who is this “we”? When did — when did folks like you and me become part of this “we”?... [Note: Akhil Amar is an Indian-American]

JUSTICE CLARENCE THOMAS: Well, you — the — well, obviously, it didn’t — it wasn’t perfect. That’s an understatement. But you grow up in an environment, at least I was fortunate enough to, where we believed that it was perfectible....

So when I think of we the people, there is a lot, I think, of the exclusion but the possibility and then the eventuality of the inclusion of you and me. I mean, look at — no one cares that, what, 40 years ago, you and I would not be sitting here talking about the Constitution of the United States except to say we’re excluded.

The last part of Thomas’ statement – that the inclusion of nonwhites was only an eventual “possibility” could be interpreted to mean that originally they were categorically excluded. But the statement is much more equivocal than the Washington Post’s summary, which stated that “Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did not include people who looked like him.” I think the Post’s interpretation of his remarks is plausible. But it’s also plausible to suggest that he meant that blacks, while not completely excluded at the Founding, were still subject to horrendous discrimination and only fully included as equal citizens many decades later.

I am grateful to Mr. Hyman for bringing this issue to my attention and for obtaining the transcript.

Some commenters and others have asked whether the distinction between categorical exclusion on the basis of race at the time of the Founding and “mere” extensive discrimination actually matters.

As I noted in my original post, the issue has great historical significance because it was one of the main points of disagreement over the Dred Scott decision. If at least some blacks were part of “We the People” at the time of the Founding, Chief Justice Taney’s notorious majority opinion is wrong, for reasons well captured in Justice Curtis’ dissent.

But the issue also has some relevance to modern debates over the legitimacy of originalism. Some critics of originalism have argued that the original Constitution was illegitimate because it excluded blacks. There is little doubt that the original Constitution tolerated severe racial injustices, most notably slavery. But there is nonetheless a difference between a Constitution that left slavery and other injustices alone (in part because abolition was politically impossible at the time), and one that categorically denied all blacks any “rights which the white man was bound to respect,” as Taney put it.

Obviously, one can reject originalism for a variety of reasons even if Taney’s claim was wrong. And it is possible to endorse originalism even if he was right. But the case against originalism does become stronger at the margin if Taney was right, and weaker if he was wrong.

UPDATE: I should note that when I say abolition of slavery was “politically impossible” at the time of the Founding, I mean nationwide abolition. Abolition in the northern states was not only possible but actually beginning to happen.

In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s:

It is true, Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did not include people who looked like him.

But the Declaration of Independence did, he contended, and that was something that a black kid growing up in Savannah, Ga., was told early on.

In reality, African-Americans were not categorically excluded from the “people” who established the Constitution. The “We the People” in the preamble of the Constitution refers to those people who “ordain[ed] and establish[ed] this Constitution for the United States of America.” And, despite the existence of brutal slavery and racial discrimination, some blacks were included in that group. As Justice Benjamin Curtis pointed out in his dissent in Dred Scott v. Sandford, at least five states at the time of the Founding allowed free blacks to become citizens on the same terms as whites, and also gave them the right to participate the elections for the state conventions that ratified the Constitution:

It has been often asserted that the Constitution was made exclusively by and for the white race... [But I]n five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established.

Earlier in the opinion, Curtis explained why citizens of states at the time of the Founding were legally citizens of the United States as well, and described the relevant laws of the five states he refers to: New Hampshire, Massachusetts, New York, New Jersey, and (most surprising) the southern state of North Carolina.

None of this negates the terrible reality that the vast majority of African-Americans in 1787 were slaves, and as such clearly were excluded from political participation and otherwise severely oppressed. Even free blacks were also subjected to extensive official discrimination, including exclusion from the franchise in several states. Nonetheless, it is not true that African-Americans were completely excluded from the “We the People” who established the Constitution.

The myth that blacks were categorically barred from citizenship and political participation at the time of the Founding was popularized by defenders of slavery in the nineteenth century, most notably Chief Justice Roger Taney in his majority opinion in Dred Scott; Taney advanced this idea to justify his claim that, at the time of the Founding and under the Constitution, blacks “had no rights which the white man was bound to respect.” In the twentieth century, ironically, Taney’s argument was recycled by some left of center critics of the original Constitution. The disreputable proslavery origin of this theory does not prove it wrong. But the historical evidence does.

UPDATE: There is room for possible dispute over whether Justice Thomas actually said what the Washington Post and other media reported he said. I discuss the issue in this follow-up post.

I am grateful that Akhil Amar has taken the time to respond to my post criticizing his theory that the original meaning of the Fourteenth Amendment bans racial discrimination by the federal government as well as the states. Akhil makes some good points, but I think he continues to fall short on the central point at issue. Neither of his posts adequately substantiates his argument that the original meaning of the Citizenship Clause of Section 1 of the Fourteenth Amendment protects African-Americans and others born or naturalized in the United States against federal racial discrimination simply by virtue of guaranteeing them citizenship.

In his new post, Akhil explains that his argument only applies to federal government discrimination with regards to “civil rights” (e.g. – rights to property and freedom of contract) rather than political rights (e.g. – voting and participation in juries and the military). I know that he has distinguished between the two in previous work. However, in the quote from his new book that he included in his earlier post criticizing me, Akhil makes the sweeping statement that the Citizenship Clause of the First Amendment means that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence” [emphasis added]. I think a reasonable reader could be forgiven for assuming that by “any law” Akhil means “any law.” Laws excluding blacks or women from the franchise, jury service, or military service certainly seem like laws “heaping disabilities or dishonor upon any citizen by dint of his or her birth status.” Perhaps this very broad statement is qualified elsewhere in the new book. But I unfortunately did not yet have a copy of a book that went into print just this week, and so was going by what Akhil said in the part he excerpted in his post.

Perhaps more importantly, Akhil ignores the fact that much of the evidence I cite against him applies to civil rights as well as political rights. In both of his posts, Akhil makes much of the fact that the Fourteenth Amendment was, at least in part, modeled on the Civil Rights Act of 1866. But as I noted in my last post, the Civil Rights Act does not assume that granting citizenship to blacks also necessarily protects them against racial discrimination with respect to civil rights:

I am also unpersuaded by Amar’s invocation of the Civil Rights Act of 1866, which stated that “All persons born in the United States . . . are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to . . . full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Notice that the text of the Civil Rights Act does not assume that making African-Americans (or anyone else) citizens automatically protects them against racial discrimination by the state or federal governments. To the contrary, the assumption is that it does not, which is why the drafters of that act included a separate provision extending to all such citizens “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” There would have been no need for this antidiscrimination provision if it were already implicit in the grant of citizenship itself.

Laws concerning “the security of person and property” are clearly laws that relate to civil rights, not political rights. Like the Civil Rights Act of 1866, the latter part of Section 1 of the Fourteenth Amendment bars states from discriminating with respect to various civil rights, but the Citizenship Clause does not include any such restriction on the federal government.

Similarly, Justice Curtis’ dissent in Dred Scott, which I quoted at some length, describes the pre-Fourteenth Amendment conventional wisdom that “citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights,” [emphasis added]. For example, Curtis referred to the fact that women are clearly citizens, yet were also barred from a variety of civil rights in many states.

Akhil makes a valid point in noting that I was too quick to assume that if racial discrimination between citizens is banned by the Citizenship Clause, the Equal Protection Clause becomes redundant. As he points out, the latter Clause protects all “persons,” not just citizens. Nonetheless, it is somewhat strange to conclude that the Equal Protection Clause offers no additional protection against racial discrimination to citizens beyond that already offered by the Citizenship Clause, and is only there to constrain such discrimination against noncitizens.

Finally, as I noted in my previous post and an update to my earliest post on this subject, in some places in both of them I referred to Section 2 of the Amendment where I meant to say the latter part of Section 1 (which includes the parts of the Amendment that, according to the text, apply only to state governments). I noticed the error before Akhil’s rebuttal, and posted updates noting it. But in my haste last night, I missed a couple instances of the error that I should have corrected. I have now fixed them. This is the sort of mistake that bloggers sometimes make when writing quickly, and I should have been more careful.

UPDATE: I cut a passage relating to the Privileges or Immunities Clause that was in the original version of this post in order to save space, and because I decided it wasn’t a good enough point to include without some additional elaboration and qualification that would take even more space. Since I made the cut only about 30 minutes after the initial posting and few readers will have seen that material, I am not going to discuss it in more detail in this update.

Like me, conservative National Review columnist Jonah Goldberg has a generally favorable take on Yale Law Professor Heather Gerken’s progressive case for federalism:

A one-size-fits-all policy imposed at the national level has the potential to make very large numbers of citizens unhappy, even if it was arrived at democratically.....

Pushing government decisions down to the lowest democratic level possible — while protecting basic civil rights — guarantees that more people will have a say in how they live their lives. Not only does that mean more people will be happy, but the moral legitimacy of political decisions will be greater.

The problem for conservative and libertarian federalists is that whenever we talk about federalism, the Left hears “states’ rights” — which is then immediately, and unfairly, translated into, “Bring back Bull Connor.”

But that may be changing. In an essay for the spring issue of Democracy: A Journal of Ideas, Yale law professor Heather K. Gerken offers the case for “A New Progressive Federalism.”

Gerken’s chief concern is how to empower “minorities and dissenters.” Not surprisingly, she defines such people in almost purely left-wing terms of race and sexual orientation. Still, she makes the very compelling point that the current understanding of diversity — having minority members as tokens of inclusion — pretty much guarantees that racial minorities will always be political minorities as well...

Allowing local majorities to have their way, Gerken continues, “turns the tables. It allows the usual winners to lose and the usual losers to win. It gives racial minorities the chance to shed the role of influencer or gadfly and stand in the shoes of the majority.”

She’s right, and not just about her favored groups. For instance, Mormons (not a group Gerken highlights) are a national minority. But they are a Utah majority. Hence, Utah takes on Mormon characteristics. It’s no theocracy, but it is more representative and distinctive. In areas where Latinos or blacks are the majority, what’s so terrible about having institutions that reflect their values?

Whereas I think Gerken sometimes doesn’t give federalism enough credit, Goldberg sometimes gives it too much. For example, he ignores the problem that federalism is often ineffective in protecting the rights of immobile people and rights to immobile assets, such as property rights in land.

Be that as it may, Gerken’s progressive defense of federalism continues to get favorable notice in conservative and libertarian quarters (see also this comment by libertarian Damon Root). It will be interesting to see whether it will be equally well received by the intended left of center audience. There is already this moderately favorable piece in the Nation.

Co-blogger David Bernstein links to a New York Times column by Thomas Chatterton Williams which argues that “[m]ixed-race blacks have an ethical obligation to identify as black — and interracial couples share a similar moral imperative to inculcate certain ideas of black heritage and racial identity in their mixed-race children, regardless of how they look.” He justifies this by the moral imperative of overcoming the legacy of anti-black racial oppression, claiming that “the black community can and does benefit directly from the contributions and continued allegiance of its mixed-race members, and it benefits in ways that far outweigh the private joys of freer self-expression.”

Such claims are not unusual. We often hear arguments that blacks, Jews, and members of other racial and ethnic groups have special obligations to their fellow group members. But there is no good justification for such claims. No one has a special moral obligation to another person merely because they happen to share the same race or ethnicity. Do I have a special moral duty to other whites or other Russian Jews that does not extend to nonwhites or gentiles? For reasons well articulated by Randall Kennedy, I reject any such notion.

Williams’ argument in regards to blacks has superficial plausibility because blacks have been victims of major historic injustices in this country. But it is not clear why other blacks – or mixed-race individuals – have a special obligation to combat those injustices that is greater than that of other people. If anything, the duty to combat an injustice falls most heavily on those who inflicted it – who, in this case, were mostly white.

Even if we accept Williams’ notion that interracial parents should consider the benefits to the “black community” from the contributions of “mixed-race parents,” how does he know that those benefits really do “outweigh the private joys of freer self-expression?” For many people, living their lives unburdened by a sense of tribal loyalty is a very important good.

Furthermore, it is not clear why mixed-race people should necessarily choose to “contribute” to one racial “community” rather than another. It is true that the black community has a history of great injustice. But other communities can make similar claims. Asian-Americans, for example, also have a history of victimization in this country. Under Williams’ criteria, it is far from clear that the children of a black-Asian couple have a duty to identify as black rather than Asian.

Or consider my own situation. I am a Russian Jew married to a gentile. When it comes to comparative victimology, Russian Jews are formidable contenders. There is the history of severe discrimination and pogroms under the czars, official anti-Semitism under the Soviets, and of course the Holocaust. Do I therefore have an obligation to raise my future children to identify as Russian Jews? Maybe. But on the other hand, my wife is half-Ukrainian (her grandfather fled Ukraine in 1919). Ukrainians have their own history of oppression, including a massive terror famine inflicted by the Soviet government in the 1930s, and years of repression under both the czars and the communists. Does the Ukrainian claim to my children’s “contributions” outweigh that of the Jews? What criteria should my wife and I apply in judging the question?

Finally, we should recall that many of the historic injustices noted above occurred precisely because people thought they had special moral obligations to their racial and ethnic compatriots and therefore felt justified in oppressing other groups for the supposed benefit of their own. This is what makes nationalism so pernicious, and racial and ethnic loyalty often creates similar dangers. Perhaps we can all make a greater contribution to society if we teach the next generation not to define their moral obligations in terms of race or ethnicity.

That is not to say that we have to ignore racial and ethnic injustices. But addressing them does not require us to define our own moral duties in racial and ethnic terms. As Randall Kennedy puts it:

[I]f one looks at the most admirable efforts by activists to overcome racial oppression in the United States, one finds people who yearn for justice, not merely for the advancement of a particular racial group. One finds people who do not replicate the racial alienations of the larger society but instead welcome interracial intimacy of the most profound sorts. One finds people who are not content to accept the categories of communal affiliation they have inherited but instead insist upon bringing into being new and better forms of communal affiliation, ones in which love and loyalty are unbounded by race.

Yale Law Professor Heather Gerken, a prominent federalism scholar, has an interesting article in Democracy urging her fellow liberals to take a more favorable view of federalism:

Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think “federalism” is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism’s past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Much of Gerken’s argument is based on the simple but important point that groups that are relatively weak minorities at the national level often wield greater influence in state and local governments where they are a much higher proportion of the population. In these situations, political decentralization benefits minorities by shifting power to the level of government where they have more political clout.

This will not come as news to students of federalism in countries outside the US. Many federal systems were established in the first place precisely because some ethnic groups that are minorities at the national level are majorities in a province or state. Federalism therefore protects them against domination by the national majority. Canada, Switzerland, Spain, India, and many other federal systems are examples of this pattern.

In the United States, of course, this aspect of federalism has largely been ignored because we have had very few cases of states where a national minority was a majority within a single state. The Mormons in Utah are an important exception, but one that few federalism scholars have paid attention to. However, as Gerken points out, racial and other minorities have increasingly become majorities in some state and local governments. In others, they at least form a much larger proportion of the population than they do at the national level and therefore have greater power. This helps explain why such causes as gay rights have made much more progress at the state level than in Washington in recent years.

Gerken rightly emphasizes that political empowerment through federalism enables minorities to be active agents protecting their own interests, as opposed to comparatively passive recipients of federal largesse, where their fate is in the hands of the national majority or the federal courts. Unfortunately, she ignores a different way in which federalism empowers minorities: By enabling a diversity of policies to arise in different jurisdictions, minorities are able to “vote with their feet” for the jurisdiction that serves them best. For reasons I describe in this article, foot voting is often of even greater benefit to unpopular minority groups than others. A century ago, millions of African-Americans improved their lot by migrating from the South to northern jurisdictions that had less racist policies. Today, ironically, many northern blacks are moving to the South in part because southern states have fewer regulations that artificially impede employment and inflate housing prices.

Gerken’s argument would be stronger if she were more willing to question the conventional wisdom about the history of American federalism, which holds that decentralization has almost always been an enemy of minorities, while the federal government is usually their friend. There is no doubt that state governments have engaged in severe oppression of minorities throughout much of American history. But the same can be said of the federal government, which was guilty of such sins as the Fugitive Slave Act; federally imposed segregation in the armed forces, the federal civil service, and the District of Columbia; the expulsion of Native Americans from much of their land; and the brutal internment of over 100,000 Japanese-Americans during World War II.

In an era when racial minorities were widely hated and wielded little political power, extensive discrimination against them was probably inevitable, regardless of whether the political system was unitary or federal. At many points in American history, however, centralization would likely have made minorities worse off than federalism did. For example, a unitary policy on slavery in 1787 would probably have led to a nationwide law in its favor, since nearly all states were still slave states at that time. A unitary national policy on racial segregation circa 1900 would likely have led to nationwide Jim Crow (though probably a less severe version than existed in the deep South) and nationwide denial of the right to vote for African-Americans. The point is not that federalism was always good for minorities (it clearly was not), but that our history is far more complicated than a morality play in which evil states oppress minorities until the latter are rescued by a benevolent federal government. I discussed these historical points about federalism and minority rights in greater detail here.

Finally, it’s worth noting that Gerken’s progressive defense of federalism coexists uneasily with her apparent rejection of judicial enforcement of structural constitutional limits on federal power. If federalism today is good for minority groups because they often have greater influence at the state and local level than in Washington, it logically follows that minorities could benefit from stricter enforcement of constitutional limits on federal authority. Otherwise, a hostile national majority can use its control of the federal government to override the locally powerful minority’s gains.

Much more can be said about Gerken’s article. For now, I would add only that it’s a valuable contribution to the ongoing reconsideration of federalism on the political left, as well as the broader debate on the subject.

George Will recently published an interesting column on Fisher v. Texas, an important affirmative action case that the Supreme Court is in the process of deciding whether to take:

The Supreme Court faces a discomfiting decision. If it chooses, as it should, to hear a case concerning racial preferences in admissions at the University of Texas, the court will confront evidence of its complicity in harming the supposed beneficiaries of preferences the court has enabled and encouraged.

In the 1978 Bakke case concerning preferences in a medical school’s admissions, Justice Lewis Powell, the swing vote on a fractured court, wrote that institutions of higher education have a First Amendment right — academic freedom — to use race as one “plus” factor when shaping student bodies to achieve viewpoint diversity. Thus began the “educational benefits” exception to the Constitution’s guarantee of equal protection of the laws.

But benefits to whom? For 33 years, the court has been entangled in a thicket of preferences that are not remedial and hence not temporary. Preferences as recompense for past discrimination must eventually become implausible, but the diversity rationale for preferences never expires.

Liberals would never stoop to stereotyping, but they say minorities necessarily make distinctive — stereotypical? — contributions to viewpoint diversity, conferring benefits on campus culture forever....

But what if many of the minorities used in this process are injured by it? Abundant research says they are, as two amicus curiae briefs demonstrate in urging the court to take the Texas case.

The details of the Texas policies are less important than what social science says about the likely consequences of such policies. A brief submitted by UCLA law professor Richard Sander and legal analyst Stuart Taylor argues that voluminous research refutes the legal premise for such racial classifications: They benefit relatively powerless minorities.

“Academic mismatch” causes many students who are admitted under a substantial preference based on race, but who possess weaker academic skills, to fall behind....

A second brief, submitted by three members of the U.S. Commission on Civil Rights (Gail Heriot, Peter Kirsanow and Todd Gaziano), argues that racial preferences in law school admissions mean fewer black lawyers than there would be without preferences that bring law students into elite academic settings where their credentials put them in the bottom of their classes. A similar dynamic is reducing the number of minority scientists and engineers than there would be under race-neutral admissions policies.

There are fewer minorities entering high-prestige careers than there would be if preferences were not placing many talented minority students in inappropriate, and discouraging, academic situations: “Many would be honor students elsewhere. But they are subtly being made to feel as if they are less talented than they really are.” This is particularly so regarding science and engineering....

In six devastating words, the Heriot-Kirsanow-Gaziano brief distills the case against the “diversity” rationale for racial preferences: “Minority students are not public utilities.”

The possibility that many minority students are actually harmed by “diversity”-based affirmative action is a further point of tension between the diversity rationale for racial preferences and the compensatory justice rationale, a subject I have emphasized in many previous posts (e.g. here, here, here, and here). I previously blogged about Fisher v. Texas in this post. Co-blogger David Bernstein commented here. If the goal of racial preferences is promoting “diversity,” then it does not matter much whether minority students are potentially harmed by them. If, on the other hand, the goal is compensating groups victimized by major historic injustices, it matters a great deal.

NOTE: As I have noted in my previous post on Fisher, I clerked for Fifth Circuit Judge Jerry E. Smith, author of Hopwood v. Texas, the 1996 decision striking down an affirmative action program at the University of Texas Law School that Grutter v. Bollinger and Fisher have superseded. Judge Smith wrote Hopwood several years before I clerked for him.

In addition, my wife is a special assistant/counsel for Gail Heriot, one of the coauthors of the brief by the three members of the US Commission on Civil Rights, which Will references. I should emphasize, however, that I have espoused the same views on affirmative action as I do today since long before she took that job, and indeed since before we met, as my earliest posts on the subject show. For about a decade now, I have believed that government-sponsored racial preferences might, at least in principle, be justified for purposes of compensatory justice, but not for diversity purposes. I am, however, pessimistic about the ability of government to institute compensatory justice preferences that are simultaneously equitable and effective in accomplishing their objectives.

UPDATE: The Sander-Taylor amicus brief is available here, and the brief of the three USCCR commissioners here.

UPDATE #2: David Schaub strangely accuses me of advocating a “one-size government mandate” banning affirmative action. This is strange because I have always taken the view that “private universities should have the legal right to practice as much affirmative action as they want.” I did not discuss this aspect of the issue in this post, since Fisher is a case about government-sponsored affirmative action at state universities. Schaub suggests that public and private universities are essentially the same. In some respects they are. But state universities are still public property and using public property for the purpose of promoting racial preferences raises moral, political, and constitutional issues that differ from those at private institutions. Similarly, it is not inconsistent to support a legal regime under which private universities, but not public ones can promote a particular religion. Even with respect to state institutions, I do not believe that affirmative action is categorically unconstitutional. But there is good reason for courts to view it with suspicion and subject it to tight scrutiny.

Schaub makes a more defensible point in claiming that the critique of “mismatch” is paternalistic. Mismatch would be less of a problem if universities were more forthcoming in telling affirmative action admittees the risks they run. But most are not. Moreover, when it comes to public universities, concern about mismatch is not just a concern about the students who get preferences. It’s also a matter of wasting public funds on students who are likely to perform very poorly at the institutions to which they are admitted, whereas they might have done better at schools more in line with their qualification levels.

Finally, Schaub suggests that mismatch concerns aren’t raised in nonracial contexts, such as legacy preferences. I’m no fan of legacy preferences. But they rarely involve academic qualifications gaps anywhere near as large as those in some affirmative action programs.

In a divided opinion, the U.S. Court of Appeals for the Sixth Circuit struck down Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative.” Proposal 2 was a successful ballot initiative that provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented. The decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan is here.

I am quite confident this is not the last we have heard of this case, and will be quite surprised if this decision is ultimately sustained. Given the panel and the holding, I think there is a reasonable likelihood of it going en banc, and if this opinion is not overturned en banc, I would think that this case — or perhaps the similar case challenging the equivalent California initiative — will go to the Supreme Court.

UPDATE: According to this story, Michigan Attorney General Bill Schuette will file a petition for rehearing en banc.

Thanks to commenter Ispep Teid for alerting me to this interesting Arizona statute, which was just signed by the governor on March 29:

A. A person ... is guilty of a class 3 felony ... [if he or she p]erforms an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child....

B. The attorney general or the county attorney may bring an action in superior court to enjoin the activity described in subsection a of this section....

D. A physician, physician’s assistant, nurse, counselor or other medical or mental health professional who knowingly does not report known violations of this section to appropriate law enforcement authorities shall be subject to a civil fine of not more than ten thousand dollars.

E. A woman on whom a sex-selection or race-selection abortion is performed is not subject to criminal prosecution or civil liability for any violation of this section or for a conspiracy to violate this section.

F. For the purposes of this section, “abortion” has the same meaning prescribed in section 36-2151[: "Abortion" means the use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Abortion does not include birth control devices, oral contraceptives used to inhibit or prevent ovulation, conception or the implantation of a fertilized ovum in the uterus or the use of any means to increase the probability of a live birth, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus.] ...

A person shall not knowingly perform or induce an abortion before that person completes [a signed] affidavit that ... [s]tates that the person making the affidavit ... has no knowledge that the child to be aborted is being aborted because of the child’s sex or race....

[Purpose:] Evidence shows that minorities are targeted for abortion and that sex selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman’s health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child’s sex or race by prohibiting sex-selection or race-selection abortions.

Howard v. Kansas City (Mo. Jan. 25) says “yes,” as to state antidiscrimination law, and notes the difference of opinion among different states’ courts on the subject. Judges are not covered by federal antidiscrimination law, and it’s not clear whether the Equal Protection Clause bars discrimination in the appointment of high-level officials (a category that might well include judges).

In this case, plaintiff was awarded “$633,333 in compensatory damages and $1.5 million in punitive damages” (plus attorney fees and prejudgment interest), because the jury found that she was denied a judicial appointment because she was white:

[T]he plaintiff, Melissa Howard, applied for the position along with 12 other applicants. From that pool of applicants, the commission nominated three Caucasian women to fill the vacancy. One of those three nominees was Howard. This panel was submitted to the council October 30, 2006. At its meeting November 9, 2006, the council rejected the panel by a 7-6 vote, despite acknowledging that all three panelists were well-qualified for the judgeship....

Several council members expressed dissatisfaction with the panel because it did not include any minorities. Multiple statements made during the city council meetings, which were open to the public, addressed concerns that the all-Caucasian female panel lacked diversity. [Statements omitted. -EV] ... Several council members also testified at trial as to the influence that the panelists’ race had on the council’s decision to reject the panel. One councilman agreed that race “was involved” in the council’s refusal to consider the applicants selected by the commission, and another councilman testified that, had the commission placed a minority on the panel of final applicants, he would have voted to consider the panel. Mayor Kay Barnes similarly testified that “race was a factor in [her] decision to reject the panel” and she likely would have voted to select a judge had an African-American candidate been on the panel, despite acknowledging her lack of knowledge as to the commission’s interview and selection process.