Yesterday's Fisher v. University of Texas was a disappointment to those, like me, who hoped to see clash among the justices over the original history of the Fourteenth Amendment. Justice Thomas added a concurrence reaffirming his view that the Constitution requires colorblind admissions policies, but without engaging directly with critics who have pointed to congressional action in favor of the freedmen and other black people around the time of the Fourteenth Amendment (summarized, of course, here) as proof of Thomas's hypocrisy. Thomas did, however, at one point cite Clark v. Board of Directors, 24 Iowa 266 (1868), noting that it was "decades before Plessy" but without noting that the Fourteenth Amendment was also certified as ratified by Secretary of State Seward in July 1868. Jack Balkin, one of those who have made such a charge against Thomas, responds with a dismissive discussion:
Justices Scalia and Thomas once again argue for a strict colorblindness rule, but, once again, neither attempts to square their views with the original meaning of the Constitution. The closest Justice Thomas comes is citing to Clark v. Board of Directors, an Iowa Supreme Court decision from June [CG: actually April] 1868. The problem is that Clark construes the Iowa state constitution (not the federal Constitution), and it appears to have been decided before the Fourteenth Amendment was officially ratified in July 1868.
I have a special interest in Clark, having discussed it as a possible guide to the interpretation of the Privileges or Immunities Clause here and here. A few thoughts after the jump.
First, Balkin's theoretical point here about timing seems exactly backward. Pre-enactment evidence is part of the background in light of which provisions are adopted–that is, the context in virtue of which the constitutional text expresses its meaning–but post-enactment evidence is produced by those who may have an ax to grind. While my analysis of the Privileges or Immunities Clause relies heavily on post-enactment evidence from the early 1870s to support, for instance, an antidiscrimination component to the Clause, I admit that such evidence supplies only reflected light. It is only because of the very great quantity of such evidence, and the clarity of its textual analysis of the Privileges or Immunities Clause, that aspects of it are more valuable than pre-enactment evidence. To the extent that courts around the time of the Fourteenth Amendment's adoption were explaining that separately-given privileges were not equal privileges, they are probative of the meaning of the Fourteenth Amendment whether or not they specifically refer to the Amendment, and whether or not they precede it.
Ironically, though, if we want post-enactment evidence specifically about the Fourteenth Amendment, Clark can also help supply it. In the discussions leading to the Civil Rights Act of 1875, Senator Frelinghuysen cited Clark favorably in arguing that the Fourteenth Amendment banned school segregation. See 2 Cong. Rec. 3452 (1874). Clark would also count as post-enactment under the loyal-denominator view, which I happen to hold, that the Fourteenth Amendment became law on February 12, 1867, when 3/4 of congressionally-represented states had ratified it.
There are further ironies related to the much more substantial use that Thomas could have made of Clark and other similar state material. Like the 1880 reverse-discrimination reductio in Strauder v. West Virginia, Clark actually used discrimination-against-the-English hypos as a reductio of racial segregation: if it were permissible to provide for separate schools for black children, it would also be permissible to provide for separate schools for English, Irish or German students, which the court held would obviously not supply school privileges equally to all students. Indeed, that sort of discrimination would "present precisely the same principle for our determination," the court said, as discrimination against black students.
Further, the state-constitutional equality tradition in states like Iowa rejects the simplest sort of constitutional theory that could broadly justify affirmative action. Indiana in 1851 and Oregon and Iowa in 1857 adopted constitutional antidiscrimination provisions phrased in terms of privileges and immunities of citizens, banning legislation that "grant[ed] to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Clark's repeated references to "equal privileges" and hostility to "limiting the rights and privileges of persons by reason of their nationality" mirror this state-constitutional language.
These sorts of provisions are emphatically not Carolene-Products-style provisions that only cover "discrete and insular minorities" mistreated by legislative majorities. Rather, the paradigmatic worry is precisely that the legislature will give favors to small groups of people–indeed, even a single citizen. John Hart Ely's defense of the constitutionality of affirmative action–that it is, at worst, a harm the majority inflicts upon itself, and thus undeserving of judicial scrutiny–clearly cannot make sense of provisions like these. To the extent, then, that state-constitutional equal-citizenship provisions provided the template for antidiscrimination readings of the Fourteenth Amendment's Privileges or Immunities Clause (as, for instance, the litigants in the Slaughterhouse Cases thought they did), Ely's affirmative-action-friendly Carolene-Products-style reading of the Fourteenth Amendment is not plausible.
Posted at 5:45 PM