Well, she was unable to define what a woman was either, so her gobbletygook here shouldn’t have been a surprise.

KBJ’s Jumbled Musings on the Fourteenth Amendment

In today’s [Oct 3rd ] oral argument in Merrill v. Milligan, Justice Jackson capped her very long questioning of Alabama solicitor general Edmund LaCour with a speech/question that went on for around four minutes and that runs a full three pages (57:2-60:2) in the transcript. In her speech, Jackson states that the Framers of the 14th Amendment adopted it “in a race conscious way,” as they were “trying to ensure that people who had been discriminated against, the freedmen in — during the reconstructive — reconstruction period were actually brought equal to everyone else in the society.” As she puts it, the Civil Rights Act of 1866 “specifically stated that citizens would have the same civil rights as enjoyed by white citizens,” and the Fourteenth Amendment was designed to ensure that the Act had a solid “constitutional foundation.”

Somehow Jackson leaps from these propositions to the assertion that the 14th Amendment doesn’t embody “a race-neutral or race-blind idea in terms of the remedy” for discrimination against freed slaves.

I don’t understand her leap. By her own account, the very purpose of the Civil Rights Act of 1866 was “to make sure that the other citizens, the black citizens, would have the same [civil rights] as the white citizens.” It was designed to remedy a situation in which “people, based on their race, were being treated unequally” by the states. And the 14th Amendment had the same goal.

The proposition that the 14th Amendment requires that the government be color-blind is open to challenge both as to what exactly that means and to whether that meaning is well founded. But Jackson seems to think that the color-blind position is somehow at odds with the fact that the 14th Amendment was designed to ensure equal treatment—when that of course is exactly what advocates of the color-blind position maintain the 14th Amendment requires.

Jackson seems to confuse herself with her own terms. Yes, of course, the Framers can be said to have adopted the 14th Amendment “in a race conscious way”—if that means that the central purpose of the 14th Amendment was to ensure that freed slaves received equal treatment in fundamental ways. By its plain text, the 14th Amendment ensures that states shall not “abridge the privileges or immunities” of citizens, irrespective of their race; shall not “deprive any person of life, liberty, or property, without due process of law,” irrespective of the person’s race; and shall not deny any person the “equal protection of the laws,” irrespective of the person’s race.

But how is this elementary recognition at all at odds with the color-blind position? In his great dissent in Plessy v. Ferguson (1896), the first Justice Harlan celebrates that the post-Civil War Amendments “removed the race line from our governmental systems.” In his very next sentence, he states that these amendments had “a common purpose, namely, to secure to a race recently emancipated, a race that through many generations have been held in slavery, all the civil rights that the [white] race enjoy.” (Internal quote omitted.) He of course goes on to characterize the amended Constitution as “color-blind.” On what conceivable basis are we to think that there is any tension among Harlan’s statements?

Insofar as Jackson might be arguing that the 14th Amendment allows race-conscious remedies, she doesn’t touch on the critical questions of what counts as a race-conscious remedy and when such a remedy is permissible. Some scholars cite the Freedmen’s Bureau Acts as evidence that the Equal Protection Clause does not require colorblindness. But as law professor Michael Rappaport points out in “Originalism and the Colorblind Constitution,” even apart from the question whether those Acts inform the meaning of the 14th Amendment, they gave benefits to freedmen and refugees (most of whom were white) not on the basis of race but on the basis of the oppression and hardship they were enduring. Further, Justice Scalia and Justice Thomas—leading proponents of colorblindness—agree that states can act to provide benefits to blacks (or persons of other races and ethnicities) when they have been victims of discrimination.

The usual suspects are going gaga over Justice Jackson’s remarks. But neither they nor she appear to understand the position they think they are contesting.