Central Texas College Affirmative Action and 14th Amendment Paper Directions: Select one (1) of the topics listed on pages 2 and 3. Write a four- to five-p

Central Texas College Affirmative Action and 14th Amendment Paper Directions: Select one (1) of the topics listed on pages 2 and 3. Write a four- to five-page paper clearly and cogently answering the question or questions posed. All questions require you to craft a well-edited and balanced analysis of the subject. Arguments should be clear, specific, and backed up by solid research (studies, statistics, specific examples, and logic). Make sure to include the best arguments on both sides of the question even if you ultimately disagree with some of them. Your paper should include a minimum of six (6) sources, half of which should be available in print. Refer to your syllabus for a more detailed discussion of paper guidelines before you begin writing. Any references or quotes should be clearly indicated with endnotes using any commonly accepted system of citation (MLA preferred). For an example go to: http://www.wisc.edu/writing/Handbook/DocMLA.html.Make sure to include a concise statement of your thesis in the introductory paragraph and reach an equally clear conclusion in your final paragraph. “I don’t know” or “it’s very complex” are not satisfactory conclusions. You should write in a professional and persuasive voice, avoiding the use of “I” and mushy feelings. Imagine that you are an aide writing a memorandum for a government official. A paper this brief requires that every word counts and every sentence is important, as you will be (or should be) packing large amounts of information in a relatively brief space. Grammar and spelling should be flawless, so I strongly suggest you use the spell-and-grammar tool in your software or seek advice from the gifted individuals who staff our Tutoring Center. Research and reflect carefully before beginning to write. You may use either 1.5 or double spacing in your paper. The page requirement/limit does NOT include your bibliography or works cited page. You may include either footnotes or endnotes in your paper. The latter, also, will not be counted against your page limit.The policy of affirmative action in hiring and university admissions is a controversial one. How can you reconcile this practice, if at all, with the 14th Amendment’s requirement that all persons receive “equal protection of the laws”? State the strongest arguments both for and against affirmative action, but don’t be a fence-sitter. Is/should affirmative action constitutional (legal) or not? BODEN LECTURE SSRN DRAFT 2.0 (DO NOT DELETE)
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DYING CONSTITUTIONALISM AND THE
FOURTEENTH AMENDMENT
ERNEST A. YOUNG*
I.THE FOURTEENTH AMENDMENT’S LOST YEARS…………………………………….. 4
II.THE LIVING CONSTITUTIONALIST CASE FOR RETRENCHED RACIAL
OPPRESSION …………………………………………………………………………….. 14
III.THE LESSONS OF CONSTITUTIONAL FAILURE …………………………………….. 27
My marching orders from Dean Kearney for this year’s Robert F. Boden
Lecture are to commemorate the sesquicentennial of the Constitution’s
Fourteenth Amendment, which was ratified in 1868. This ought to be a much
easier task now than it would have been at the demisesquicentennial—halfway
between 1868 and today—because I think it’s fair to say that the Fourteenth
Amendment largely failed to live up to its promise during the first half of its
existence. At that halfway mark in 1943, the African-Americans who were
supposed to be the amendment’s primary beneficiaries suffered under a
pervasively authoritarian Jim Crow regime in the South and faced rampant
discrimination and hostility in the North. The Supreme Court had begun to chip
away at Jim Crow in a few isolated decisions, but these hadn’t made much
practical difference. Fourteenth Amendment demisesquicentennialists—if
there were any—would have had very little to cheer about in 1943.
We live in a very different constitutional world today, with a robust and
vital Fourteenth Amendment at its center. And so it would be easy to tell you a
heartwarming story about the amendment’s second act as one of the great
comeback sagas in American history. But failures are often more interesting
than successes. I want to focus on the Fourteenth Amendment’s bad years,
because I think that they can tell us something important about constitutional
theory.
* Alston & Bird Professor, Duke Law School. This essay is a lightly-edited version of the Robert F.
Boden Lecture presented at Marquette Law School on Sept. 20, 2018. I am grateful to Dean Joseph
Kearney for his invitation and wonderful hospitality during my visit to Milwaukee, to my friend David
Strauss for his commentary, and to Joseph Blocher, Erin Blondel, James Boyle, Guy Charles, Thavolia
Glymph, Craig Goldblatt, Sean Griffith, Jed Purdy, and Richard Squire for comments on the
manuscript.
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On the surface, at least, contemporary constitutional theory is dominated by
a debate between originalism,1 which holds that judges should interpret the
Constitution in line with the original public meaning of its text at the time that
the constitutional provision in question was adopted, and living
constitutionalism, which holds that constitutional meaning should evolve over
time.2 The Fourteenth Amendment has been a critical battleground of this
debate. In particular, lawyers, scholars, and judges have disagreed about
whether the amendment’s Equal Protection Clause should be interpreted to
prohibit school segregation, as in Brown v. Board of Education,3 even though
the amendment’s framers probably did not envision this particular reform,4 and
whether the amendment’s Due Process Clause can be stretched to include rights
of privacy and reproductive freedom that would have surprised the generation
that ratified the amendment.5 In a nutshell, these debates posit that living
constitutionalism would allow courts to read what many regard as the moral
progress of the last fifty years or so into the Fourteenth Amendment and use
that amendment as a vehicle for further reform.
I believe that the Fourteenth Amendment’s bad early years put a different
spin on this debate. Living constitutionalists identify a number of different
mechanisms or modalities by which judges should assess the extent to which
constitutional meaning has “evolved” over time. These include broad changes
in public opinion,6 electoral or legislative victories by proponents of a new
constitutional interpretation,7 the achievements of social movements,8 and the
common-law-style development of constitutional meaning through decisions of
1. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989).
2. There is no canonical statement of the living constitutionalist position, and—as will be
evident—it comes in a number of quite different flavors. For an influential, albeit very general,
articulation of the living constitutionalist view, see William J. Brennan, Jr., The Constitution of the
United States: Contemporary Ratification, 27 S. TEX. L. REV. 433, 438 (1986) (“[T]he genius of the
Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in
the adaptability of its great principles to cope with current problems and current needs.”).
3. 347 U.S. 483 (1954).
4. Compare, e.g., Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA.
L. REV. 947 (1995), with Alexander M. Bickel, The Original Understanding and the Segregation
Decision, 69 HARV. L. REV. 1 (1955).
5. Compare, e.g., Thomas C. Grey, Do We Have An Unwritten Constitution?, 27 STAN. L. REV.
703 (1975), with Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND.
L.J. 1 (1971).
6. See, e.g., BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS
INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
7. See, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 81–85 (1993).
8. See, e.g., Jack M. Balkin, How Social Movements Change (or Fail to Change) the
Constitution: The Case of the New Departure, 39 SUFFOLK U. L. REV. 27 (2005); Ilya Somin, The Tea
Party Movement and Popular Constitutionalism, 105 NW. U. L. Rev. 300 (2011).
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the judges themselves.9 I am here to tell you that, in the Fourteenth
Amendment’s first seventy-five years, every one of these modalities strongly
supported the compromise or even abandonment of the amendment’s core
purpose of freedom and equality for black Americans. Strong social movements
supported the end of Reconstruction and the reestablishment of white
supremacy in the South, as well as the reunion of North and South predicated
on a reinterpretation of the Civil War’s meaning. These movements influenced
both major political parties, affected electoral outcomes, and then legislated
their interpretation of constitutional meaning into law. And the judiciary
responded by interpreting the Reconstruction Amendments narrowly and
redirecting their concern with racial equality into other channels as a limitation
on government regulation of the market.
That is why my title for this lecture is “Dying Constitutionalism.” Justice
Antonin Scalia used to insist that the Constitution was “dead” in a quite
different sense: He meant that constitutional meaning was static, and that the
whole point of having a constitution was to lock in particular rights and
institutional arrangements and make them nearly impossible to change even if
we might want to later on.10 Constitutionalism is about tying yourself to the
mast; you don’t want a loosey-goosey constitution, such that you can slip out
of it and throw yourself overboard to meet the pretty Sirens.
But this static model may not fit something like the Fourteenth Amendment
very well. That amendment was adopted by men who were themselves caught
in an unstable tension between their own racism—the best of them were still
products of their times—and the political principles of the Declaration of
Independence, which told them that God had created all men equal. It makes
sense to view the amendment as aspirational or redemptive, aiming at a state of
affairs that had not yet been achieved.11 And so rather than protecting existing
values against future backsliding, the amendment is importantly a source of
forward pressure.
9. See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV.
877 (1996); Ernest A. Young, Rediscovering Conservatism: Burkean Political Theory and
Constitutional Interpretation, 72 N.C. L. REV. 619 (1994).
10. See, e.g., Scalia, supra note 1, at 862.
11. See, e.g., Jamal Greene, Fourteenth Amendment Originalism, 71 MD. L. REV. 978, 981
(2012) (observing that “the [Fourteenth] Amendment announces majestic principles that we must
constantly strive, prospectively, to realize”). Some constitutionalists believe that all constitutional law
has this character. See, e.g., JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN
AN UNJUST WORLD 25 (2011) (asserting that “our system of government has a point, a trajectory: It
works toward the realization in history of the promises made in the Declaration of Independence and
the Constitution”).
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This makes the Fourteenth a favorite amendment for living
constitutionalists. But progress isn’t inevitable, even when a constitutional
marker has been laid down. Living things don’t always grow, mature, or
flower—sometimes they mutate, wither, or decay. It’s not hard to think of
constitutional provisions that have “evolved” right out of the Constitution—the
Contracts Clause in most of its applications, for example, or the Fourteenth
Amendment’s own protection of national “privileges or immunities.” These
clauses have been laid low by “dying constitutionalism.”
This potential for constitutional corruption and decay poses a serious
problem for any organic model of constitutionalism. But while I certainly don’t
come to praise living constitutionalism, neither am I here to bury it. At the end
of the day, despite it all, I consider myself a living constitutionalist, not an
originalist. And as I will explain, even many originalists agree that some sort
of evolutionary approach is inevitable, especially for open-ended and
aspirational provisions such as the Fourteenth Amendment. But it is essential
that living constitutionalists understand the downside risks that come with any
evolutionary model of constitutionalism. Living constitutionalism needs a
cultural shift, based on a sense of tragedy, to temper its progressive optimism.
Progress can and does happen, but it is by no means inevitable, and sometimes
constitutional law goes to hell in a handbasket. That is what happened in the
Fourteenth Amendment’s first seventy-five years.
I.
THE FOURTEENTH AMENDMENT’S LOST YEARS
The Fourteenth Amendment’s central aim was to confer on black
Americans “equality before the law, overseen by the national government.”12
Equality before the law did not exist in 1868, either in the South or in the North.
The Fourteenth Amendment was a promise to create that equality.13 Its framers
understood that one could not simply write out new rights on paper and expect
them to be respected; that is why the Fourteenth Amendment, more than any
other amendment in the Constitution, is centrally concerned with institutional
mechanisms for its own implementation. Section 2 created strong electoral
incentives to let black people vote, with the hope that the franchise would in
turn allow them to protect their own interests politically. Section 3 aimed to
destroy the existing political class in the South, which had held black people
down for so long by disqualifying ex-Confederates from office. And—most
important—Section 5 empowered Congress to implement the amendment’s
12. ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–1877, at 256
(1988).
13. See id. at 258–59.
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provisions by “appropriate legislation.” Congress thus gave itself a primary
voice in fleshing out the meaning of Section 1’s open-ended phrases.
The Fourteenth Amendment was, in Eric Foner’s words, “an effort by
Republicans to constitutionalize the ‘fruits’ of the War.”14 The Civil War had
begun as a war for union—not emancipation, and certainly not equality. But by
1863, President Abraham Lincoln’s Emancipation Proclamation made official
what was already generally acknowledged: that is, that freedom had become a
Union war aim. And although there is no “equality proclamation” to go with
emancipation, historians argue that equality had become a third Union war aim
by Appomattox.15 Once the guns fell silent, Congress set about following
through on that aim through a series of Civil Rights Acts and three
constitutional amendments. Southern historian C. Vann Woodward, looking
back, concluded that “[s]o far as it was humanly possible to do so by statute
and constitutional amendment, America would seem to have been firmly
committed to the principle of equality.”16
“And yet,” Professor Woodward noted, “[w]e know that within a very short
time after these imposing commitments were made they were broken. America
reneged, shrugged off the obligation, and all but forgot about it for nearly a
century.”17 White Southerners fought Reconstruction with fraud, deceit, and
terroristic violence. Northern Democrats largely opposed black equality, and
Republicans mostly gave up on it after 1876. “[T]he evidence” drove
Woodward “to the conclusion that the radicals committed the country to a
guarantee of equality that popular convictions were not prepared to sustain, that
legal commitments overreached moral persuasion.”18
In the beginning, though, there was progress. It is true that, as Professor
Michael Klarman has observed, “Reconstruction delivered far less to blacks
14. Id. at 251; see also WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL
PRINCIPLE TO JUDICIAL DOCTRINE (1988) (“What was politically essential [to the generation that
framed and ratified the Amendment] was that the North’s victory in the Civil War be rendered
permanent and the principles for which the war had been fought rendered secure . . . .”); HAROLD M.
HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE
CONSTITUTION 466 (1973) (“[W]hatever else the Fourteenth Amendment was supposed to accomplish
. . . high among Republicans’ priorities was the need to make certain impacts of the Civil War and
Reconstruction more permanent.”).
15. See C. Vann Woodward, Equality: The Deferred Commitment, in THE BURDEN OF
SOUTHERN HISTORY 69, 75 (3d ed. 1993).
16. Id. at 78; see also DAVID W. BLIGHT, RACE AND REUNION: THE CIVIL WAR IN AMERICAN
MEMORY 54 (2001) (“During the two crucial years that the radicals held sway, they did seek to make
the nation paramount over the states, and at least to root the idea of racial equality in the American
imagination.”).
17. Woodward, Equality, supra note 15, at 78–79.
18. Id. at 83.
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than they hoped”19: In particular, the national government disappointed hopes
that it would confiscate slaveowners’ property and redistribute it to the
freedmen.20 Nonetheless, with the Fifteenth Amendment soon in the books and
the Union Army occupying the defeated Southern states, black people exercised
real political power in the South.
But enthusiasm for Reconstruction faded quickly, for both good and bad
reasons. The good reason was that Americans have always been profoundly
uncomfortable with military rule, and even Republicans worried about the
incursions on civil liberties that such rule often entailed. The bad reason is that
white Northerners were simply never sufficiently committed to equality for
black people to stay the course of Reconstruction in the teeth of Southern
violence and recalcitrance. And so one by one, Southern state governments
slipped back into the hands of white supremacist “Redeemers.”
An illustrative battle in this long war occurred over Mississippi’s election
in 1875.21 White Democrats had been forming (and arming) “White Men’s
Clubs” as a vehicle for restoring white supremacy. When Democrats swept the
1874 congressional elections nationwide, it was widely interpreted as a
repudiation of Reconstruction. Mississippi’s White Men’s Clubs interpreted it
as a green light and vowed to “carry the election [of 1875] peaceably if we can,
forcibly if we must.”22 On reflection, they went straight for “forcibly,”
producing “dead books” with the names of black Republicans, disrupting
Republican meetings and running off Republican politicians, and assaulting or
murdering black leaders and burning black homes.
As the death toll mounted into the dozens, Mississippi’s Republican
governor, Adelbert Ames, asked President Ulysses S. Grant for federal troops.
Grant responded that the public was “tired out with these annual autumnal
outbreaks in the South” and refused to intervene unless Mississippi Republicans
first raised their own militia.23 Well-armed whites were spoiling for exactly that
sort of fight and threatened to wipe a black militia “from the face of the earth”;
Republicans declined in order to avoid igniting a race war.24 On election eve,
armed white riders drove freedpeople from their homes and threatened to
19. MICHAEL J. KLARMAN, UNFINISHED BUSINESS: RACIAL EQUALITY IN AMERICAN HISTORY
59 (2007).
20. Id. at 59–60.
21. See generally FONER, supra note 12, at 558–63; KLARMAN, Unfinished Business, supra note
19, at 64; RICHARD WHITE, THE REPUBLIC FOR WHICH IT STANDS: THE UNITED STATES DURING
RECONSTRUCTION AND THE GILDED AGE, 1865–1896, at 305–06 (2017).
22. Quoted in KLARMAN, Unfinished Business, supra note 19, at 64.
23. See FONER, supra note 12, at 560–61.
24. Quoted in WHITE, supra note 21, at 305–06.
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murder them if they voted.25 It worked. The overwhelmingly black Yazoo
County, for example, returned only 7 Republican votes against more than 4,000
Democratic ones.26 Democrats took control of the legislature, removed the
lieutenant governor, and impeached Governor Ames.27 He fled the state.28
Mississippi had been “redeemed.”
A year later, in 1876, the nation deadlocked over the presidential race
between Democrat Samuel J. Tilden and Republican Rutherford B. Hayes. The
election came down to three not-yet-redeemed Southern states—Florida,
Louisiana, and South Carolina—in which rampant fraud and violence had
marred the voting. Republican state election officials decreed Hayes the winner,
but Democrats “cried fraud and threatened to march on Washington and reignite
the Civil War.”29 A special commission including several Supreme Court
justices failed to transcend partisanship and resolve the dispute. But
Republicans struck a deal with Southern Democrats, who agreed to support
Hayes for president in exchange for the withdrawal of troops from the South.30
The remaining Republican governments in the South fell as Hayes took office.31
One Louisiana freedman remarked that “[t]he whole South—every state in the
South—had got into the hands of the very men that held us as slaves.”32
In Eric Foner’s judgment, the compromise of 1877 “marked a decisive
retreat from the idea, born during the Civil War, of a powerful national state
prote…
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