Archive | Racial Discrimination

Repudiating the Japanese Internment Decisions

Legal scholar Peter Irons, a leading academic expert on the Japanese internment cases, has written a powerful article calling on the Supreme Court to explicitly repudiate those decisions [HT: Constitutional Law Prof blog]. Those notorious cases, most notably Korematsu v. United States, upheld the forcible detention of over 100,000 Japanese-Americans in internment camps during World War II, as well as various other racially discriminatory policies against them.

I. The Case for Repudiation.

As Irons notes, the overwhelming majority of legal scholars and jurists now recognize that the Japanese internment cases were outrageous injustices. They are among the most reviled decisions in Supreme Court history. In 1988, Congress and President Ronald Reagan formally denounced the internment, apologized to the surviving victims, and enacted a law compensating them for their losses (albeit, inadequately, given that each was paid only $20,000 in compensation for some three years of imprisonment, and the loss of large amounts of income and property). The Supreme Court itself has made negative references to these cases in more recent decisions, but has never formally overruled any of them. While lawyers today would be ill-advised to rely on these cases in their arguments, they are technically still on the books, and could potentially be used as precedents in the future – especially if changes in public or elite opinion make racially discriminatory war policies more popular than they are now.

In the article, Irons complies extensive evidence that federal government officials – including the Solicitor General of the United States – deceived the Supreme Court about the extent of the supposed security threat posed by the Japanese-Americans. He also cites evidence (long recognized by other scholars) that racism was in fact the most important motive for the internment policy. For example, General John DeWitt, the official who actually […]

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The Scope of Federal Power Under the Thirteenth Amendment

My wife Alison Somin and University of San Diego law professor Gail Heriot have published a short article in Engage criticizing recent claims that the Thirteenth Amendment, which bans “slavery” and “involuntary servitude,” and authorizes Congress to pass “appropriate” enforcement legislation, actually gives Congress broad authority to legislate on a wide range of other issues:

[W]hen one of the authors of this essay told a friend that she was going to an all-day academic conference on contemporary applications of the Thirteenth Amendment, he expressed shock that there could be any need to discuss this subject and inquired if he had missed a campaign proposal by Newt Gingrich to revive chattel slavery.

He was joking—obviously. Hardly anyone is foolish enough to believe that chattel slavery is in danger of making an imminent or not-so-imminent comeback in America…. Nevertheless, there has been a growing movement in both academia and the halls of Congress to use the Thirteenth Amendment’s Section 2 to address a variety of social ills thought to be in some way traceable back to slavery. This movement has had its greatest recent success with the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA). In passing that law, Congress relied solely on its Section 2 constitutional authority for its ban on crimes motivated by race and color….

The HCPA is not the only effort to make use of Section 2 in light of the breadth of the Jones decision. Scholarly articles argue that Section 2 authorizes hate-speech regulation; bans on housing discrimination based on sexual orientation; federal civil remedies for victims of domestic violence; federal child labor bans; bans on racial profiling; minimum-wage laws like the Fair Labor Standards Act; federal regulation of the mail-order bride industry; bans on race-based jury peremptory challenges; regulation of racial disparities in

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What Did Clarence Thomas Actually Say About Whether African-Americans Were Part of “We the People” at the Time of the Founding?

In this recent post, I took issue with Justice Clarence Thomas’ apparent recent statement that African-Americans were not considered part of the “we the People” referred to in the Preamble of the Constitution. In conveying what Thomas said, I relied on a report in the Washington Post, which was echoed by many other media sources.

However, the video of Thomas’ dialogue with Yale law professor Akhil Amar and a transcript of his remarks obtained by VC reader Andrew Hyman suggests that his remarks were a lot more ambiguous. Here’s the relevant part of the transcript (which occurs roughly between 8:00 and 12:00 of the video):

AKHIL AMAR: …I guess I’d like to start our conversation — it seems fitting — with those — with the words that the Constitution starts with, “we the people,” and how that — what that phrase means to you, how that phrase maybe has changed over time thanks to amendments and other developments.

What do you mean — who are “we”? You know, who is this “we”? When did — when did folks like you and me become part of this “we”?… [Note: Akhil Amar is an Indian-American]

JUSTICE CLARENCE THOMAS: Well, you — the — well, obviously, it didn’t — it wasn’t perfect. That’s an understatement. But you grow up in an environment, at least I was fortunate enough to, where we believed that it was perfectible….

So when I think of we the people, there is a lot, I think, of the exclusion but the possibility and then the eventuality of the inclusion of you and me. I mean, look at — no one cares that, what, 40 years ago, you and I would not be sitting here talking about the Constitution of the United States except to say we’re excluded.

The […]

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Were African-Americans Part of “We the People” at the Time of the Founding?

In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s:

It is true, Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did not include people who looked like him.

But the Declaration of Independence did, he contended, and that was something that a black kid growing up in Savannah, Ga., was told early on.

In reality, African-Americans were not categorically excluded from the “people” who established the Constitution. The “We the People” in the preamble of the Constitution refers to those people who “ordain[ed] and establish[ed] this Constitution for the United States of America.” And, despite the existence of brutal slavery and racial discrimination, some blacks were included in that group. As Justice Benjamin Curtis pointed out in his dissent in Dred Scott v. Sandford, at least five states at the time of the Founding allowed free blacks to become citizens on the same terms as whites, and also gave them the right to participate the elections for the state conventions that ratified the Constitution:

It has been often asserted that the Constitution was made exclusively by and for the white race… [But I]n five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration that it was ordained and established

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Rejoinder to Akhil Amar on the Application of the Fourteenth Amendment to the Federal Government

I am grateful that Akhil Amar has taken the time to respond to my post criticizing his theory that the original meaning of the Fourteenth Amendment bans racial discrimination by the federal government as well as the states. Akhil makes some good points, but I think he continues to fall short on the central point at issue. Neither of his posts adequately substantiates his argument that the original meaning of the Citizenship Clause of Section 1 of the Fourteenth Amendment protects African-Americans and others born or naturalized in the United States against federal racial discrimination simply by virtue of guaranteeing them citizenship.

In his new post, Akhil explains that his argument only applies to federal government discrimination with regards to “civil rights” (e.g. – rights to property and freedom of contract) rather than political rights (e.g. – voting and participation in juries and the military). I know that he has distinguished between the two in previous work. However, in the quote from his new book that he included in his earlier post criticizing me, Akhil makes the sweeping statement that the Citizenship Clause of the First Amendment means that “Any law, state or federal, heaping disabilities or dishonor upon any citizen by dint of his or her birth status — because he was born black, or because she was born female or out of wedlock — violates a core principle of the Fourteenth Amendment’s opening sentence” [emphasis added]. I think a reasonable reader could be forgiven for assuming that by “any law” Akhil means “any law.” Laws excluding blacks or women from the franchise, jury service, or military service certainly seem like laws “heaping disabilities or dishonor upon any citizen by dint of his or her birth status.” Perhaps this very broad statement is qualified elsewhere in the […]

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Jonah Goldberg on Heather Gerken’s Progressive Case for Federalism

Like me, conservative National Review columnist Jonah Goldberg has a generally favorable take on Yale Law Professor Heather Gerken’s progressive case for federalism:

A one-size-fits-all policy imposed at the national level has the potential to make very large numbers of citizens unhappy, even if it was arrived at democratically…..

Pushing government decisions down to the lowest democratic level possible — while protecting basic civil rights — guarantees that more people will have a say in how they live their lives. Not only does that mean more people will be happy, but the moral legitimacy of political decisions will be greater.

The problem for conservative and libertarian federalists is that whenever we talk about federalism, the Left hears “states’ rights” — which is then immediately, and unfairly, translated into, “Bring back Bull Connor.”

But that may be changing. In an essay for the spring issue of Democracy: A Journal of Ideas, Yale law professor Heather K. Gerken offers the case for “A New Progressive Federalism.”

Gerken’s chief concern is how to empower “minorities and dissenters.” Not surprisingly, she defines such people in almost purely left-wing terms of race and sexual orientation. Still, she makes the very compelling point that the current understanding of diversity — having minority members as tokens of inclusion — pretty much guarantees that racial minorities will always be political minorities as well…

Allowing local majorities to have their way, Gerken continues, “turns the tables. It allows the usual winners to lose and the usual losers to win. It gives racial minorities the chance to shed the role of influencer or gadfly and stand in the shoes of the majority.”

She’s right, and not just about her favored groups. For instance, Mormons (not a group Gerken highlights) are a national minority. But they are a Utah

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Racial “Obligations” of Mixed-Race People

Co-blogger David Bernstein links to a New York Times column by Thomas Chatterton Williams which argues that “[m]ixed-race blacks have an ethical obligation to identify as black — and interracial couples share a similar moral imperative to inculcate certain ideas of black heritage and racial identity in their mixed-race children, regardless of how they look.” He justifies this by the moral imperative of overcoming the legacy of anti-black racial oppression, claiming that “the black community can and does benefit directly from the contributions and continued allegiance of its mixed-race members, and it benefits in ways that far outweigh the private joys of freer self-expression.”

Such claims are not unusual. We often hear arguments that blacks, Jews, and members of other racial and ethnic groups have special obligations to their fellow group members. But there is no good justification for such claims. No one has a special moral obligation to another person merely because they happen to share the same race or ethnicity. Do I have a special moral duty to other whites or other Russian Jews that does not extend to nonwhites or gentiles? For reasons well articulated by Randall Kennedy, I reject any such notion.

Williams’ argument in regards to blacks has superficial plausibility because blacks have been victims of major historic injustices in this country. But it is not clear why other blacks – or mixed-race individuals – have a special obligation to combat those injustices that is greater than that of other people. If anything, the duty to combat an injustice falls most heavily on those who inflicted it – who, in this case, were mostly white.

Even if we accept Williams’ notion that interracial parents should consider the benefits to the “black community” from the contributions of “mixed-race parents,” how does he know that those […]

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Heather Gerken’s Progressive Defense of Federalism

Yale Law Professor Heather Gerken, a prominent federalism scholar, has an interesting article in Democracy urging her fellow liberals to take a more favorable view of federalism:

Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think “federalism” is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism’s past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Much of Gerken’s argument is based on the simple but important point that groups that are relatively weak minorities at the national level often wield greater influence in state and local governments where they are a much higher proportion of the population. In these situations, political decentralization benefits minorities by shifting power to the level of government where they have more political clout.

This will not come as news to students of federalism in countries outside the US. Many federal systems were established […]

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George Will on Fisher v. Texas

George Will recently published an interesting column on Fisher v. Texas, an important affirmative action case that the Supreme Court is in the process of deciding whether to take:

The Supreme Court faces a discomfiting decision. If it chooses, as it should, to hear a case concerning racial preferences in admissions at the University of Texas, the court will confront evidence of its complicity in harming the supposed beneficiaries of preferences the court has enabled and encouraged.

In the 1978 Bakke case concerning preferences in a medical school’s admissions, Justice Lewis Powell, the swing vote on a fractured court, wrote that institutions of higher education have a First Amendment right — academic freedom — to use race as one “plus” factor when shaping student bodies to achieve viewpoint diversity. Thus began the “educational benefits” exception to the Constitution’s guarantee of equal protection of the laws.

But benefits to whom? For 33 years, the court has been entangled in a thicket of preferences that are not remedial and hence not temporary. Preferences as recompense for past discrimination must eventually become implausible, but the diversity rationale for preferences never expires.

Liberals would never stoop to stereotyping, but they say minorities necessarily make distinctive — stereotypical? — contributions to viewpoint diversity, conferring benefits on campus culture forever….

But what if many of the minorities used in this process are injured by it? Abundant research says they are, as two amicus curiae briefs demonstrate in urging the court to take the Texas case.

The details of the Texas policies are less important than what social science says about the likely consequences of such policies. A brief submitted by UCLA law professor Richard Sander and legal analyst Stuart Taylor argues that voluminous research refutes the legal premise for such racial classifications: They benefit relatively

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Sixth Circuit Strikes Down Michigan Civil Rights Initiative

In a divided opinion, the U.S. Court of Appeals for the Sixth Circuit struck down Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative.” Proposal 2 was a successful ballot initiative that provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented. The decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan is here.

I am quite confident this is not the last we have heard of this case, and will be quite surprised if this decision is ultimately sustained. Given the panel and the holding, I think there is a reasonable likelihood of it going en banc, and if this opinion is not overturned en banc, I would think that this case — or perhaps the similar case challenging the equivalent California initiative — will go to the Supreme Court.

UPDATE: According to this story, Michigan Attorney General Bill Schuette will file a petition for rehearing en banc. […]

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The “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011″

Thanks to commenter Ispep Teid for alerting me to this interesting Arizona statute, which was just signed by the governor on March 29:

A. A person … is guilty of a class 3 felony … [if he or she p]erforms an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child….

B. The attorney general or the county attorney may bring an action in superior court to enjoin the activity described in subsection a of this section….

D. A physician, physician’s assistant, nurse, counselor or other medical or mental health professional who knowingly does not report known violations of this section to appropriate law enforcement authorities shall be subject to a civil fine of not more than ten thousand dollars.

E. A woman on whom a sex-selection or race-selection abortion is performed is not subject to criminal prosecution or civil liability for any violation of this section or for a conspiracy to violate this section.

F. For the purposes of this section, “abortion” has the same meaning prescribed in section 36-2151[: “Abortion” means the use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Abortion does not include birth control devices, oral contraceptives used to inhibit or prevent ovulation, conception or the implantation of a fertilized ovum in the uterus or the use of any means to increase the probability of a live birth, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus.] …

A person shall not knowingly perform or induce an abortion before that person completes

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Are Judges “Employees” Covered by State Antidiscrimination Law?

Howard v. Kansas City (Mo. Jan. 25) says “yes,” as to state antidiscrimination law, and notes the difference of opinion among different states’ courts on the subject. Judges are not covered by federal antidiscrimination law, and it’s not clear whether the Equal Protection Clause bars discrimination in the appointment of high-level officials (a category that might well include judges).

In this case, plaintiff was awarded “$633,333 in compensatory damages and $1.5 million in punitive damages” (plus attorney fees and prejudgment interest), because the jury found that she was denied a judicial appointment because she was white:

[T]he plaintiff, Melissa Howard, applied for the position along with 12 other applicants. From that pool of applicants, the commission nominated three Caucasian women to fill the vacancy. One of those three nominees was Howard. This panel was submitted to the council October 30, 2006. At its meeting November 9, 2006, the council rejected the panel by a 7-6 vote, despite acknowledging that all three panelists were well-qualified for the judgeship….

Several council members expressed dissatisfaction with the panel because it did not include any minorities. Multiple statements made during the city council meetings, which were open to the public, addressed concerns that the all-Caucasian female panel lacked diversity. [Statements omitted. -EV] … Several council members also testified at trial as to the influence that the panelists’ race had on the council’s decision to reject the panel. One councilman agreed that race “was involved” in the council’s refusal to consider the applicants selected by the commission, and another councilman testified that, had the commission placed a minority on the panel of final applicants, he would have voted to consider the panel. Mayor Kay Barnes similarly testified that “race was a factor in [her] decision to reject the panel” and she likely would have […]

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Asian-Americans and Affirmative Action

As co-blogger David Bernstein notes, Fisher v. Texas highlights the ways in which today’s affirmative action programs victimize Asian-American students for the benefit of groups that often have not endured the kind of massive systematic discrimination inflicted on blacks, and indeed may have suffered less historic discrimination than the Asian-Americans themselves. I previously wrote about this problem here:

The Asian-American case also highlights the contradiction between the compensatory justice and diversity rationales for affirmative action in admissions… If the goal of affirmative action is to compensate minority groups who have been victimized by discrimination for the injustices they have suffered, many Asian-American groups deserve not only equal treatment but racial preferences. Chinese and Japanese-Americans, for example, were victimized by extensive state-sponsored discrimination — culminating in the internment of some 150,000 [correction: 120,000] Japanese-Americans during World War II, despite the fact that none were ever proven to be enemy spies, and very few showed any signs of disloyalty….

If, on the other hand, the goal of affirmative action is [as Grutter holds] to promote “diversity” for the sake of ensuring that each ethnic group is represented by a “critical mass” in the student body sufficient to educate other students about their culture, then the lack of affirmative action for Asian-Americans becomes more understandable. Because of their impressive academic credentials, a critical mass of Asian students can be achieved even without affirmative action preferences. However, this conclusion may be overstated. “Asians” are not a monolithic group. Japanese, Chinese, Indians, Filipinos, Vietnamese, and Cambodians all have very different cultures [and some of these groups don’t have as high average grades and test scores as others]. Indeed, immigrants from one part of India or China often have different cultures and speak different languages from those hailing from other parts of the same

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Fisher v. Texas

As Ilya notes below, the Fifth Circuit has upheld the University of Texas’s racial and ethnic preference practices in Fisher v. Texas.

There are a number of interesting aspects of Fisher. One is that the University of Texas-Austin had a very “diverse” class without using preferences. Under the university’s previous, race-neutral system, which included the “10 percent” plan, Hispanic and African American students were a total 21.4% of the 2004 freshman class, and Asian Americans made up another 20% or so of the class. This made UT-Austin one of the most ethnically diverse elite universities in the country, and, one might think, substantially undermined the purported compelling interest in using preferences. [The university argued, and the court agreed, that it had the constitutional authority under Grutter to be concerned not simply with overall demographics, but with the demographics of individual programs within the university, and, indeed, individual classes!]

A second interesting aspect of the case is the light it shines on the diversity rationale for preferences in higher education. University officials are forced by Supreme Court precedent to publicly rely on the diversity rationale for affirmative action admissions preferences. But everyone in academia knows that the primary underlying ideological rationale for such preferences has been a desire to redress the exclusion of African Americans from mainstream American life through hundreds of years of slavery and Jim Crow. (Like Ilya, I have much more sympathy for this rationale than for the diversity rationale.)

By contrast, the primary beneficiaries of UT’s admissions policies are not African Americans, who are only about six percent of UT students, but Hispanics, who are more than three times as numerous (though African Americans did benefit more proportionally). And, as a brief filed by the Asian American Legal Foundation pointed out, the primary […]

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Fifth Circuit Court of Appeals Upholds University of Texas Affirmative Action Admissions Program

In yesterday’s opinion in Fisher v. Texas, the US Court of Appeals upheld a University of Texas affirmative action program in admissions, applying the Supreme Court’s 2003 decision in Grutter v. Bollinger, which held that racial diversity in higher education is a “compelling state interest” justifying the use of racial preferences to ensure that there is a “critical mass” of minority students. There is a concurring opinion by Judge Emilio Garza that agrees with the majority’s application of Grutter, but also enumerates Grutter’s many shortcomings and urges the Supreme Court to overrule it. I think there is in fact a decent chance that the Supreme Court will take this case and either overrule or at least cut back on Grutter. Since 2003, Grutter author Justice Sandra Day O’Connor has been replaced by Samuel Alito, a justice unlikely to support the “diversity” rationale. Three other justices have been replaced by new justices whose views on affirmative action are similar to their predecessors’. Since Grutter was a 5-4 decision, the switch from O’Connor to Alito might determine its fate if the issue returns to the Supreme Court.

Fisher is particularly interesting in light of the fact that the Fifth Circuit upheld the program despite the fact that the Texas Ten Percent Plan (which gives automatic admission to any student who graduated in the top 10% of his or her high school class) had already significantly increased the percentage of black and Hispanic students at the University of Texas. In this 2006 post, I argued that the Ten Percent Plan is much more objectionable than traditional affirmative action, even though it is formally “race neutral.” Since then, new research has confirmed the anecdotal data I cited indicating that the ten percent plan creates perverse incentives for students to […]

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