Jackson’s position seems to be that line-drawing based on race is not only permissible but required under the law.
Jackson’s position seems to be that line-drawing based on race is not only permissible but required under the law.
D uring yesterday’s oral argument in the consolidated cases Merrill v. Milligan and Merrill v. Caster, an eyebrow-raising interpretation of the Reconstruction amendments came from Justice Ketanji Brown Jackson. At issue is whether Alabama’s new congressional map violates Section Two of the Voting Rights Act.
A district-court decision by a three-judge panel finding such a violation and ordering a new map to be drawn was stayed by a 5–4 margin of the Supreme Court earlier this year. Alabama’s map made only minor changes to the previous district lines, and it contained one majority-black district (out of seven total), as had the last several maps stretching back decades. The question is whether the Voting Rights Act requires a second majority-minority district, a requirement which as Alabama argues “is virtually impossible” to satisfy “unless traditional principles” of district-drawing “yield to race-based line-drawing from the start.”
Justice Jackson’s position seems to be that line-drawing based on race is not only permissible but required under the law. Justice Sonia Sotomayor’s comments during argument suggest her agreement on that point.
But Jackson advanced a peculiar understanding of history. She asserted that the Framers adopted the 14th Amendment’s equal-protection clause and the 15th Amendment “in a race-conscious way.”
What she said next was a basic observation: “that they were in fact trying to ensure that people who had been discriminated against, the freedmen during the Reconstruction period, were actually brought equal to everyone else in society.” Also straightforward was that the point of the 14th Amendment was “to secure rights of the freed former slaves” (here Jackson was citing the report of the Joint Committee on Reconstruction) and that it was necessary for the Amendment to “restrain” the states that would otherwise “keep up this discrimination, and crush to death the hated freedmen” (here she was quoting Representative Thaddeus Stevens’s words from the debate over the amendment).
What these historical details do not support is Jackson’s takeaways: “That’s not a race-neutral or race-blind idea in terms of the remedy,” and “I don’t think that the historical record establishes that the Founders believed that race-neutrality or race-blindness was required.” But the record is clear that Congress was working to remedy flagrant racial discrimination under the law — particularly the discrimination of the Black Codes in the former Confederate states, which aimed to relegate those who had been emancipated to a status that closely resembled slavery.
The very remedy employed by Congress to override the Black Codes was the Civil Rights Act of 1866, for which the 14th Amendment was meant to provide a firm constitutional foundation. (A serious but more widely challenged argument was made for basing the new law on the recently ratified 13th Amendment, which abolished slavery.) The 1866 statute recited a litany of civil rights, many of them contract and property rights, guaranteed to all “citizens, of every race and color” in the same measure as they were “enjoyed by white citizens.”
Jackson cited this law without acknowledging that it was actually meant to eliminate racial distinctions. For that matter, she could have cited the Reconstruction Congresses’ authorization of the Freedmen’s Bureau, which aimed to remedy the condition of people who had been enslaved and of refugees by providing them with food, shelter, clothing, medical services, and education.
Even putting aside the whites who received rations from the Bureau, it is clear that benefits targeting formerly enslaved people — in a country where the institution of slavery was race-based — would go to African-American recipients based not on their race, but on their past enslavement. To remedy that was not to create any new racial category in the law.
The debates over the Reconstruction amendments and the laws meant to enforce them are filled with statements by supporters of those measures articulating the intent of abolishing racial distinctions in the law. That included the most prominent supporter in the House of Representatives, Thaddeus Stevens, who, during debate over the Civil Rights Act described as “the genuine proposition . . . the one I love” that “all national and state laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race or color.”
Two years later, Stevens added that “whenever . . . any one . . . undertakes to make a distinction between the black race and our own because of the color of the skin or the formation of the body he forgets his God, and his God will forget him.”
Decades later, the notion that the “Constitution is color-blind” was the basis of Justice John Marshall Harlan’s famous dissent protesting the Court’s validation of state-imposed racial segregation in Plessy v. Ferguson. Moreover, the dissent invoked respect for a law’s original meaning — “the intent of the legislature is to be respected” is how Harlan put it — in contrast to a majority that lacked such respect.
Harlan’s egalitarian mantra is not a favorite of today’s living constitutionalists, who want “race consciousness” to be the standard. Unfortunately for them, no amount of faux originalism will save their argument.
— Carrie Campbell Severino is the president of JCN. Frank J. Scaturro is the vice-president and senior counsel of JCN, and the author of The Supreme Court’s Retreat from Reconstruction.