A House Divided? Justice Jackson’s View of Our History and Future

AMAC Exclusive – By David P. Deavel

A great deal rides on whether the Republicans can take the Senate this fall. While they look certain to take the House, the Senate is important not only because it would allow Republicans to pass legislation to Joe Biden’s desk but also because the latter body’s advice and consent is needed for federal judicial picks. A great many people over the last few election cycles have voted for the Republicans first and foremost for the judges.

There’s a reason for that. For decades liberals and so-called progressive jurists have worked with some version of the “living Constitution” idea. Under this idea, what the framers of the Constitution and its Amendments meant is superseded by what judges think they should mean today. To be clear, nobody thinks that the Constitution is so dead that it can never be changed—it’s just that liberals think robed philosopher judges can do it while conservatives think it should be amended by the process originally set up to amend it. The good news is that because of the triumphs of Justices Scalia, Thomas, and Alito in forcing jurists to go back to this common-sense view that a law means what it meant to its framers, even liberal jurists have to make textual and historical arguments about the Constitution rather than simply waving their magic “living Constitution” wand.  

One such big question has to do with our society’s turn to race-based law since the 1960s. Does the Fourteenth Amendment to the Constitution, which promises that no state shall deprive any person of “equal protection under the laws” mean that states should be making laws or setting race-based policies in order to right disparities? While most ordinary Americans would say that sounds like the opposite of the Amendment, Justice Ketanji Brown Jackson recently argued it does. She did this while questioning Alabama Solicitor General Edmund Lacour during oral arguments in the Merrill v. Milligan case, in which the plaintiffs are arguing on the basis of the Voting Rights Act of 1965 and the Fourteenth Amendment that because of changes in Alabama’s demography the state must redistrict in order to create a new “majority-minority” district to represent black Americans. According to her reading, “the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.”

This seems a bit confused. Of course the Fourteenth Amendment and Fifteenth Amendments were “race conscious,” insofar as these Amendments were designed to protect primarily, but not solely, black people living in states where they might very well be deprived of equal protection or their rights to vote. As the Fourteenth promises equal protection, the Fifteenth Amendment promises that voting rights of “citizens. . .shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” But that they were race conscious in the sense that they were designed to justify laws that benefit one group rather than or to the detriment of others seems a bit of a stretch. Because of the triumph of Scalia, Thomas, et al, however, Jackson was compelled to give an originalist defense.

Indeed, Justice Jackson, Joe Biden’s thus far (and, we pray, ultimately) sole appointment to the highest court is an avowed progressive but avowed herself as a kind of left-wing Scalia in her Senate hearings, telling senators not only that she does “believe that the Constitution is fixed in its meaning” but also “that it’s appropriate to look at the original intent, original public meaning of the words.” Indeed, she testified, these beliefs create a “limitation on my authority to import my own policy views.”

In her explanation to Lacour and the Court in this case, Justice Jackson did attempt to construct an originalist argument that would justify her progressive intention to defend race conscious policies such as, creating districts based on the racial composition of the state. She stated: “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally.”

Her reference to the Civil Rights Act of 1866 and the “freedmen in…the reconstruction period” seems a good clue to where her mind is. Ed Whelan observed in his brief commentary that there are scholars who point to the Freedmen’s Bureau Acts of 1865 and 1866 as examples of race-conscious government action, but points to legal scholar Michael Rappaport’s 2013 article “Originalism and the Color-Blind Constitution” to show that such acts were not necessarily “race conscious” in the sense Justice Jackson and progressive scholars say they were.

Rappaport notes that many benefits were directed to “freedmen,” which certainly means former slaves who were all black. But freedmen is not equivalent to black: “While it is true that all of these former slaves were blacks, not all blacks in the United States were former slaves. There were certainly blacks who had been free prior to the Civil War and some who had been free from birth.”

Further, most of the provisions were directed to “refugees,” a term Rappaport says “would normally include whites, and once it is recognized that virtually all southern blacks would be freedmen, refugees becomes a term that would appear to have been intended mainly to cover whites.” Add to this the point that “a significant portion of the 1866 Act operates to prohibit discrimination or to provide benefits on a nondiscriminatory basis” and we have a solid case to show that Congress was not intending to give benefits or discriminate on the basis of race.

Rappaport discusses five other laws from the period that have been described as providing benefits based on race, but only one, “a provision that placed price controls on the amount that could be paid to agents who helped black servicemen secure bounties, pensions, and other payments that they were due,” seems unambiguously to provide benefits based on race, though on a somewhat narrow basis. Rappaport also argues that the legislation, a somewhat narrow exception, seems likely to have benefitted blacks and whites in different ways.

Justice Jackson famously declined to say what a woman was in her confirmation hearings because she is “not a biologist.” Her work thus far shows she is not much of a legal historian either. The history she alludes to does not in the end provide a strong case for the kind of strong “race conscious” action she would like. It certainly does not demand that SCOTUS enforce such measures.

Perhaps even more troubling than the progressive originalist history are the big questions at hand if we were to accept it as factual. If the Fourteenth and Fifteenth Amendment are to be seen as race conscious in the sense she seems to see them, do they only apply to black Americans? Do we not need more Amendments for every other group that can claim discrimination?

Even more importantly, do we want to, as in the case of Merrill, continue the practice of treating Americans as a bunch of discrete racial groups who have their own collective interests? Should white or Latino or Asian Americans in largely black areas demand carve-outs that would allow them to vote with “their own people”? Why would we want any Americans to think of their own people as anything other than Americans?

Even if she has failed, it’s a pleasant thing to see Justice Jackson attempting to root arguments in what laws actually say and what their words meant to the people who framed them. A society needs to be able to trust that their laws will not simply be rewritten by justices who disagree with them or won’t bother to figure out what they were.

But let’s hope Justice Jackson takes a closer look at what she wants for the present and future. The old, unofficial motto of the United States is e pluribus unum: out of many, one. In promoting policies and laws that deal with Americans by race, progressive jurists, lawmakers, and activists are reversing the order. They are taking away our sense of unity and simply making us many different groups who fight against each other for favor and benefits. They are, even if some do so out of noble intentions, dividing us. As Abraham Lincoln observed, quoting a certain first-century rabbi, “A house divided against itself cannot stand.”

David P. Deavel is Associate Professor of Theology at the University of Houston, Texas, and a Senior Contributor at The Imaginative Conservative. Follow him on Gettr @davidpdeavel.