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Race and the Constitution

by John Yoo
Two important Supreme Court cases present opportunities

November’s electoral setbacks have prompted conservatives to reconsider their beliefs and rhetoric on a variety of issues. While they debate new ideas on immigration, taxes, and entitlements, they should not leave unexamined their principles of constitutional government. A pair of important cases on race, to be heard by the Supreme Court this term, can begin the work of updating these principles for a new century by directly refuting the rationalizations used to justify racial preferences.

Conservatives have found their policies at cross-purposes with their constitutional agenda on the topic of race. They rightly recoil at affirmative action, with its emphasis on equality of result instead of equality of opportunity and its elevation of the color of individuals’ skin over the content of their character. To end racial preferences, however, conservative judges must reject the people’s democratic wishes by relying on the 14th Amendment’s vague Equal Protection Clause, which was adopted in the immediate aftermath of the Civil War to protect newly freed slaves. This can be a slender reed on which to rest such a weighty departure from the principle of restraint.

The clause’s text, which declares that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws,” does not obviously ban the government’s use of race in all circumstances. While some argue that affirmative action is illegal because it violates the Civil Rights Act of 1964, it is also at bottom unconstitutional. Yet the understanding of the 14th Amendment’s framers remains notoriously unclear: Segregation continued in the North as well as the South after its adoption, and the Reconstruction Congress enforced race-conscious policies specifically designed to help blacks make the transition to freedom. Liberals have relished the opportunity to accuse conservatives of hypocrisy: When race enters the picture, they say, conservatives conveniently forget about judicial restraint. The two Supreme Court cases coming up this term — Fisher v. University of Texas and Shelby County v. Holder — provide an opportunity to take a new direction in this constitutional debate.

The first case renews an attack on affirmative-action plans that bestow advantages on racial minorities in state-university admissions. Nearly a century and a half after the passage of the 14th Amendment, and 50 years after Martin Luther King’s hopeful prophecy that his children would be judged by character rather than color, the Supreme Court might finally find that Justice John Marshall Harlan was correct — “our constitution is colorblind.”

This is far from the first time the Court has heard challenges to affirmative action. In general, it subjects any public use of race to “strict scrutiny,” which demands a compelling government interest to justify racial classifications. Until 2003’s Grutter v. Bollinger, this test was, in the words of the legal scholar Gerald Gunther, “strict in theory, but fatal in fact.” The Court had upheld racial preferences only once before, in the notorious Korematsu case, which ruled legal the World War II internment of Americans of Japanese descent. Other than in Korematsu, which would almost certainly be decided differently today, the Court had allowed government consciousness of race only as a remedy for those who directly suffered past discrimination by the state. But in approving the University of Michigan Law School’s affirmative-action program in Grutter, the liberal wing of the Court, joined by Reagan appointee Sandra Day O’Connor, allowed university administrators to use race as a plus factor for applicants in order to build a “critical mass” of minority students — all in the name of the newly invented compelling government interest in achieving “diversity” in the classroom.

The diversity rationale’s faults are legion. Grutter does not identify what broader social good diversity advances, nor can it. Diversity itself is not an end of government, but at best a means. Grutter simply assumes that racial diversity guarantees diversity of viewpoint, which depends on the racist assumption that certain minorities can have only one set of ideas. No one can specify how much diversity is enough, nor why we should trust government officials to determine the correct proportions for each racial group.

In any event, skilled lawyers can identify any number of differences between Grutter and Fisher. Unlike Michigan in Grutter, the University of Texas seeks a demographic matching the state’s population not just for the student body as a whole, but in each classroom. And it already has boosted minority enrollment (more than 20 percent of incoming classes are black or Latino) with a race-neutral rule that guarantees admission to any state university to the top 10 percent of every Texas high-school class.

Best of all, opponents of racial preferences can now invoke compelling social-science research to demonstrate that ending such preferences will benefit members of minority groups as well as society as a whole, in ways that far outweigh the purported benefits of diversity. As UCLA professor Richard Sander has shown, affirmative action causes a “mismatch” between minority students and universities, placing them in schools for whose rigors they are not prepared — an idea that I first heard advanced by Justice Clarence Thomas more than two decades ago. In his recent book Mismatch, co-written with legal journalist Stuart Taylor, Sander demonstrates that minority students at our top universities are achieving less, switching into softer majors, and graduating at lower rates than they would at less prestigious institutions.

Racial preferences, it turns out, harm all students: whites by denying them an equal shot at admission to top schools, minorities by reducing their chances of success. Since the Grutter majority was willing to ignore the Constitution’s mandates in deference to the perceived greater goal of helping minority and white students, Sander’s findings offer a compelling basis for tossing out Grutter and thereby removing a blemish on the Court’s pursuit of race neutrality.

At the same time, conservatives can place their constitutional arguments to abolish racial preferences within a broader education-reform agenda that also promotes school choice and a return to a traditional curriculum that emphasizes hard sciences and math, American history and government, and the great books. Millions of minority students are trapped in terrible schools, and liberalism’s sad response is to guarantee the few who make it out a slot in elite universities, where they will often have trouble staying afloat. If this fig leaf is removed, the failure of our K–12 system to educate minority students, and the teacher’s unions’ role in perpetuating this failure, will become clearly visible.

This term’s second blockbuster race case — Shelby County v. Holder, a challenge to the Voting Rights Act (VRA) of 1965 — offers another opportunity to reformulate conservative principles for the new century. Section 5 of the VRA prohibits any covered jurisdiction (most, but not all, of which are in the South) from modifying its electoral system without permission (“preclearance”) from the Justice Department or the federal courts in Washington, D.C. This extraordinary remedy is based upon Congress’s authority under the 15th Amendment to enforce the right to vote — a right that was still widely denied to blacks when the act was passed.

While the VRA was necessary shock therapy to end Jim Crow, its violations of federalism have no place in the 21st century. In today’s South, blacks register and vote at rates that are equal to, and sometimes higher than, those of whites. Twenty-two percent of the U.S. voting electorate in the 2008 election was non-white (12.1 percent black, 7.4 percent Hispanic, and 2.5 percent Asian), and the 2012 election showed that this is a trend, not an anomaly. Minorities have won numerous positions of elected leadership at the local, state, and federal levels. Just over 10 percent of the members of the House of Representatives are black, and almost 7 percent are Latino. When Asians are added, the percentage of minority House members in the most recent Congress was 19.1. And, of course, a black American is about to start his second term as president.

The very nature of an extraordinary remedy means that it should not become ordinary. As recently as 2009 the Court expressed concerns with the preclearance regime, noting that it goes “far beyond the prohibition of the Fifteenth Amendment” and “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” The plaintiff in the current case, Shelby County, Ala., has asked to have Section 5 declared unconstitutional, since it imposes a great burden on state and local governments without any showing whatsoever of recent discrimination against minorities, let alone the sort of massive and sustained discrimination that would be necessary to justify (as it did in 1965) such an invasion of a state’s prerogative to determine its own voting laws.

And yet Democrats and Republicans have cynically colluded to use the Voting Rights Act to advance their partisan interests. In the George H. W. Bush administration, for example, the Justice Department allowed states to create congressional districts with very high concentrations of minority voters (no benefits of diversity here, it seems). Democrats approved of this policy because the districts reliably elected minority congressional candidates, while Republicans liked it because it siphoned minority voters from nearby districts, which were thus more likely to vote Republican. The minority-heavy districts sent (and continue to send) far-left representatives to Congress even as they helped Republicans win and keep control of the House of Representatives. Similar results have occurred on the state and local levels.

Constitutional arguments aside, Republicans should oppose the VRA, and not just because it immorally classifies individuals on the basis of their skin color. Drawing districts along natural geographic or historical boundaries, and letting the minority population fall where it may, will end minority officeholders’ exclusion from the vigorous competition of normal politics. At the same time, candidates of all stripes will have to consider minority views as they build coalitions. The rough-and-tumble of politics will mean that the number of minorities in Congress will wax and wane, as it does for every category in a truly competitive system, but both minority voters and minority politicians will benefit from the end of their ghettoization.

Most important, these two race cases will allow conservatives to reorient their policies to better comport with the true meaning of the Constitution. For too long, conservatives have trapped themselves into arguing that the Equal Protection Clause of the 14th Amendment demands color-blindness even though the clause’s plain text does not obviously address individual rights. Rather, the 14th Amendment’s long-neglected right to the privileges and immunities of citizens creates individual, natural rights. Section 1 of the amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

A careful reading of this text reveals that these three main provisions — privileges or immunities, due process, and equal protection — speak directly to the three branches of the federal government, and this points out a new way to color-blindness. When the text requires “equal protection of the laws,” it refers to a core function of the executive — enforcement of law. A sheriff, for example, cannot decide to investigate only the murders of whites. The guarantee of “due process of law” implicates the judiciary: Courts are to ensure that all citizens receive the same procedural fairness at the hands of government. Thus, equal protection and due process may prohibit racial preferences, but only in the realm of executive enforcement and the court system, respectively.

It is the third, neglected provision, the guarantee to all Americans of “the privileges or immunities of citizens,” that recognizes individual, natural rights. These are rights that are beyond the purview of legislative majorities, such as the right to not be penalized for something over which you have no control — the color of your skin or the ethnicity of your birth. This clause adopts the language of the federal Privileges and Immunities Clause in Article IV of the Constitution because abolitionist lawyers had developed an antebellum theory that slavery already violated that clause. Republican lawyers believed that slavery violated the natural rights of Americans — their privileges and immunities — to keep the fruits of their labor, to enjoy civil rights (such as the right to contract and pursue a profession), and to appear before their government without regard to their race.

Whether the abolitionist lawyers understood the original Constitution correctly matters less than their side’s victory in the Civil War. In the Reconstruction amendments, liberal and conservative constitutional historians such as Akhil Amar and Philip Hamburger agree, the Republicans in Congress overruled Dred Scott v. Sandford’s holding that blacks could never become citizens. Instead, they hard-wired into the Constitution an “antislavery interpretation” of natural rights. Such an amendment was necessary because southern governments treated freed blacks either not as citizens or as citizens lacking the full rights and privileges of whites.

Tragically, the Supreme Court read the clause into obscurity in 1873 when it decided the Slaughterhouse Cases, which used a minor dispute about the rights of New Orleans butchers to render the “privileges or immunities” clause a virtual nullity. Instead of recognizing the natural rights of Americans, the clause today preserves only a handful of specific rights that flow directly from federal citizenship (such as the right to travel across state lines). Because of an excessive attention to precedent, which the justices have rarely followed for so long or so far off course, Slaughterhouse continues to prevent the federal courts from unlocking the 14th Amendment’s true meaning. Liberals support this outcome because the Equal Protection Clause keeps courts focused on equality between groups rather than on individual natural rights. And conservatives prefer to leave “privileges or immunities” a dead letter rather than risk a new birth of judicial activism.

By building on the Privileges or Immunities Clause, however, conservatives can articulate a sound principle of constitutional jurisprudence that unifies their efforts to end the use of race by government. At first, it may not be apparent what the clause has to say about modern controversies like university admissions or minority voting districts. But the Privileges or Immunities Clause guarantees to each American citizen a common set of individual rights, drawn from the natural law, that can be invoked in court. It requires the government to treat citizens as individuals rather than as members of races — a basic natural right. It bans the state from the business of pursuing equality of result for minorities or from privileging one race over another. Rather than allowing racial engineers to dream up the ideal number of blacks in the classroom or Asians in a voting district, a natural-rights approach would allow competition to flourish in a free marketplace of university seats and electoral contests, fulfilling the promise that gave birth to our nation, that all citizens are equal in their rights and their ability to use those rights to pursue happiness. Restoring constitutional competition will fit harmoniously into a broader conservative agenda to oppose a federal government that interferes in private markets, picks economic winners and losers, and crowds out such agents of civil society as churches, volunteer groups, and charities.

We will not know until June whether our Constitution will return to its post–Civil War color-blindness or continue to sanction racial discrimination. The Court may strike down affirmative action and preclearance without resurrecting the 14th Amendment’s Privileges or Immunities Clause, which would require overturning long precedent in favor of the Framers’ original vision. But we know what the result should be: a Constitution for Americans, no further subdivision of citizenry necessary.

– Mr. Yoo is a law professor at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He served in the Justice Department from 2001 to 2003.

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