Well, she was unable to define what a woman was either, so her gobbletygook here shouldn’t have been a surprise.<\/p>\n
KBJ\u2019s Jumbled Musings on the Fourteenth Amendment<\/a><\/p>\n In today\u2019s [Oct 3rd ] oral argument in Merrill v. Milligan<\/em>, Justice Jackson capped her\u00a0very long questioning<\/a>\u00a0of 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\u00a0transcript<\/a>. In her speech, Jackson states that the Framers of the 14th Amendment adopted it \u201cin a race conscious way,\u201d as they were \u201ctrying to ensure that people who had been discriminated against, the freedmen in \u2014 during the reconstructive \u2014 reconstruction period were actually brought equal to everyone else in the society.\u201d As she puts it, the\u00a0Civil Rights Act of 1866<\/a> \u201cspecifically stated that citizens would have the same civil rights as enjoyed by white citizens,\u201d and the Fourteenth Amendment was designed to ensure that the Act had a solid \u201cconstitutional foundation.\u201d<\/p>\n Somehow Jackson leaps from these propositions to the assertion that the 14th Amendment doesn\u2019t embody \u201ca race-neutral or race-blind idea in terms of the remedy\u201d for discrimination against freed slaves.<\/p>\n I don\u2019t understand her leap. By her own account, the very purpose of the Civil Rights Act of 1866 was \u201cto make sure that the other citizens, the black citizens, would have the same [civil rights] as the white citizens.\u201d It was designed to remedy a situation in which \u201cpeople, based on their race, were being treated unequally\u201d by the states. And the 14th Amendment had the same goal.<\/p>\n 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\u2014when that of course is exactly what advocates of the color-blind position maintain the 14th Amendment requires.<\/p>\n Jackson seems to confuse herself with her own terms. Yes, of course, the Framers can be said to have adopted the 14th Amendment \u201cin a race conscious way\u201d\u2014if 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 \u201cabridge the privileges or immunities\u201d of citizens,\u00a0irrespective of their race<\/em>; shall not \u201cdeprive any person of life, liberty, or property, without due process of law,\u201d\u00a0irrespective of the person\u2019s race<\/em>; and shall not deny any person the \u201cequal protection of the laws,\u201d\u00a0irrespective of the person\u2019s race<\/em>.<\/p>\n But how is this elementary recognition at all at odds with the color-blind position? In his great dissent in\u00a0Plessy v. Ferguson<\/em>\u00a0(1896), the first Justice Harlan celebrates that the post-Civil War Amendments \u201cremoved the race line from our governmental systems.\u201d In his very next sentence, he states that these amendments had \u201ca 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.\u201d (Internal quote omitted.) He of course goes on to characterize the amended Constitution as \u201ccolor-blind.\u201d On what conceivable basis are we to think that there is any tension among Harlan\u2019s statements?<\/p>\n Insofar as Jackson might be arguing that the 14th Amendment allows race-conscious remedies, she doesn\u2019t 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\u2019s Bureau Acts as evidence that the Equal Protection Clause does not require colorblindness. But as law professor Michael Rappaport points out in \u201cOriginalism and the Colorblind Constitution<\/a>,\u201d 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)\u00a0not<\/em>\u00a0on the basis of race but on the basis of the oppression and hardship they were enduring. Further, Justice Scalia and Justice Thomas\u2014leading proponents of colorblindness\u2014agree that states can act to provide benefits to blacks (or persons of other races and ethnicities) when they have been victims of discrimination.<\/p>\n The\u00a0usual<\/a>\u00a0suspects<\/a>\u00a0are going gaga over Justice Jackson\u2019s remarks. But neither they nor she appear to understand the position they think they are contesting.<\/p>\n","protected":false},"excerpt":{"rendered":" Well, she was unable to define what a woman was either, so her gobbletygook here shouldn’t have been a surprise. KBJ\u2019s Jumbled Musings on the Fourteenth Amendment In today\u2019s [Oct 3rd ] oral argument in Merrill v. Milligan, Justice Jackson capped her\u00a0very long questioning\u00a0of Alabama solicitor general Edmund LaCour with a speech\/question that went on … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,11],"tags":[],"class_list":["post-86377","post","type-post","status-publish","format-standard","hentry","category-courts","category-crap-for-brains"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/86377","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=86377"}],"version-history":[{"count":2,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/86377\/revisions"}],"predecessor-version":[{"id":86379,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/86377\/revisions\/86379"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=86377"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=86377"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=86377"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}