At Dorf on Law, Michael Dorf: Is Justice Jackson an Originalist? Evidence from the Alabama Voting Rights Oral Argument.
During Tuesday's oral argument in Merrill v. Milligan, Justice Jackson made an originalist move to resist the core contention of the Alabama Solicitor General, Edmund LaCour. …
Justice Jackson pushed back on LaCour's argument in a more fundamental way. She said that the Constitution would not be an obstacle to the state itself using race to draw a map with two majority-minority districts (rather than the one such district drawn by Alabama) because the Constitution does not require race neutrality. Why not? Because the framers and ratifiers of the Fourteenth and Fifteenth Amendments intended and expected that they would allow for expressly race-based remedies for racial subordination.
Justice Jackson's originalist argument may feel exhilarating, as it hoists the conservatives by their own petard. It's a kind of constitutional jujitsu. Nonetheless, liberal originalism has the same vices as conservative originalism. And as I explain below, it won't work.
First, though, let me give credit where credit is due. Justice Jackson is right about the history. University of Washington Law Professor Eric Schnapper delivered the definitive evidence in a 1985 article in the Virginia Law Review. The abstract says (and the article details that:)
From the closing days of the Civil War until the end of civilian Reconstruction some five years later, Congress adopted a series of social welfare programs whose benefits were expressly limited to blacks. These programs were generally open to all blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections that such racially exclusive measures were unfair to whites. The race-conscious Reconstruction programs were enacted concurrently with the fourteenth amendment and were supported by the same legislators who favored the constitutional guarantee of equal protection.
To be sure, Justice Jackson did not refer specifically to the programs Schnapper identified in his article. Her principal example of a contemporaneous statute was the Civil Rights Act of 1866, which does not contain specifically race-based remedies (although its references to the Freedmen's Bureau hint at Congress's acceptance of such remedies). Still, Justice Jackson's historical point is sound. The framers of the Reconstruction Amendments did not think they were forbidding race-based remedies for racial subordination because they contemporaneously adopted such race-based remedies.
Posted at 6:08 AM