The Color-Blind Court

by Jeffrey Rosen | July 31, 1995

The conservative justices are privately exuberant about the remarkable Supreme Court term that ended last week. Surprised and slightly dazed by the magnitude of their victory, they think they have finally exorcized the ghost of the Warren Court, fulfilled the goals of the conservative judicial revolution and vindicated the ideal of a color-blind Constitution for the first time since Reconstruction. At least four justices--Clarence Thomas, Antonin Scalia, William Rehnquist and Anthony Kennedy--have firmly committed themselves to the proposition that government can almost never classify citizens on the basis of race. They have signaled their readiness to declare the Voting Rights Act unconstitutional by insisting that the Fourteenth Amendment forbids states from using race as the "predominant purpose" in drawing electoral districts. They have paved the way for the judicial invalidation of most forms of affirmative action by insisting that all racial preferences, whether passed by Congress or the states, are presumptively unconstitutional unless narrowly designed as a remedy for past discrimination. And they have made clear their impatience with the court-ordered desegregation plans, the most tangible legacy of Brown v. Board of Education. The lawyers will quibble, and the president will implore everyone to search for common ground, but for the justices themselves, the victory is sweeter than they dared hope.

If the Court were Congress, it might be possible to admire what the justices have wrought. By following their consciences and the election returns, they have managed to represent the political mood of the country more faithfully than the people's elected representatives. The racialist remedies, such as minority set-asides and minority voting districts, that Democrats and Republicans briefly supported in the 1970s and 1980s have now lost favor among their former champions. And yet the new Republican Congress, afraid of the radical consequences of enacting the color-blind principle, is reluctant to repeal the programs it claims to oppose. The justices, by contrast, have plunged into the political thicket without worrying about the political consequences, and they have vindicated plebiscitary democracy more dramatically than the political branches themselves.

But the Court is not Congress; as conservatives never tire of reminding us, it is supposed to be a body of principle, not politics, committed to interpreting the law, not making it. So the great race cases of 1995 must be evaluated in light of the constitutional methodology that the conservatives themselves have chosen to embrace. For those of us, and I mean political liberals, who have been sympathetic to the conservative rhetoric of judicial restraint, strict constructionism and devotion to the original understanding of the Constitution, it's hard not to read the race decisions without feeling embarrassed and foolish and slightly duped, like an earnest child who discovers that fairy tales are not true. For the three race cases reveal the conservative judicial project to be unprincipled at its core.

In cases where they found it politically convenient, the conservatives were obsessively attentive to constitutional history. They exalted the understanding of the anti-federalists over the federalists, of Calhoun over Lincoln, and, with elaborate quotations from the late eighteenth century, revealed a Limbaughesque suspicion of federal power. In the Lopez case, they held, for the first time since the New Deal, that Congress lacked the power to enact a law; and, in the Term Limits case, they embraced a vision of state sovereignty that seemed to question the meaning of Reconstruction. In the desegregation case, Clarence Thomas went so far as to declare that "when an attack on the Constitution is followed by an open Federalist effort to narrow the provision, the appropriate conclusion is that the drafters and ratifiers of the Constitution approved the more limited construction offered in response." This is strict constructionism on steroids.

But in the three race cases there is a conspicuous silence. Discussions of the original meaning of the Reconstruction amendments--from which the conservatives claim to derive the principle that the Constitution is color- blind--are nowhere to be found. And no wonder. An examination of the historical evidence reveals that the original intentions of the radical Republicans in 1865 are flamboyantly inconsistent with the color-blind jurisprudence of the conservative justices in 1995. The selective historicism is so glaring that it calls to mind one of the most unfortunate eras in the Supreme Court's history--the civil rights cases of the 1870s and 1880s, when another band of conservative justices studiously ignored the original understanding of the Reconstruction amendments and struck down the laws passed by the Reconstruction Congress which guaranteed the civil equality of the freed slaves. The decisions to uphold segregation and to strike down affirmative action can hardly be compared, of course, despite Justice Thomas's suggestion that there is "a moral and constitutional equivalence ... between laws designed to subjugate a race and those that distribute benefits on the basis of race." But, in their indifference to the original meaning of the Reconstruction amendments, the justices of the Waite Court and the Rehnquist Court are eerily similar.

How, precisely, did this remarkable term come to pass? In the most obvious sense, the conservatives triumphed in 1995 because four of them are committed to the principle that government can never make distinctions among citizens on the basis of race. And a fifth, Sandra Day O'Connor, has an impulse rather than an argument, whose precise contours she is unable to articulate, that racial classifications are in general a bad thing, except when they aren't. But the liberal justices, too, must bear some of the blame. After a false sense of confidence at the beginning of the term, when the newly appointed Clinton justices eked out narrow majorities in two death penalty cases, Justices Breyer, Souter, Ginsburg and Stevens failed, in the race cases, to make the historical arguments that might have helped their cause. And, in other cases, they proved as willing to manipulate history as their conservative opponents. In the Rosenberger case, for example, the principle of state neutrality toward religious expression supported the conclusion that the University of Virginia should not be permitted to exempt a student newspaper with a Christian viewpoint from the school's policy of funding all student activities. Although O'Connor initially voted with the conservatives, she began to waver after the conference. Souter drafted an opinion insisting that the Founders believed that government should be stripped of all power to support religion directly, although this cast only indirect light on the question of whether religious speech should be singled out for special disfavor. Thomas circulated a strong response, and O'Connor's vote held firm.

In one sense, 1995 was the year that Clarence Thomas found his voice, and he deserves credit for helping to forge the new conservative majority. By committing himself to the rhetoric of original intention with uncompromising vigor, by combining a few heartfelt beliefs--racial classifications are bad, state sovereignty is good--with the historical research of able clerks; and by displaying a willingness to overturn decades of precedent in the name of his methodology, he helped to shift the terms of debate for the entire court.

This makes it all the more unfortunate that, in the three race cases of 1995, Thomas and his colleagues presumed to transform the meaning of the Reconstruction amendments without pausing to examine their original meaning. So we must brace ourselves for the dark and lonely work of historical excavation. The antiquarian detour may seem tedious, but it is the only way to appreciate the unabashed opportunism that the conservative justices have displayed at their moment of triumph.

Writing for the conservative majority in Miller v. Johnson, Justice Kennedy held that apportionment decisions are constitutionally suspicious whenever race is "the predominant factor motivating the legislature's decision to place a significant number of voters" in a particular district. Repudiating O'Connor's muddled focus on appearances in Shaw v. Reno, Kennedy emphasized that a district need not look bizarre to violate the Constitution; instead, the question is whether "race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale." O'Connor provided a fifth vote but has still not sorted out her conflicted impulses. In an anxious concurrence--it was drafted, uncharacteristically, in her own hand--she tried to keep her options open by denying the obvious implications of the color-blind principle she had just endorsed. The Court's decision, she declared, "does not throw into doubt the vast majority of the Nation's 435 congressional districts, where presumably the States have drawn the boundaries in accordance with their customary districting principles." The adjective "presumably" is a plaintive touch; but it can't elide the fact that the decision plainly does throw into doubt the minority districts created to comply with the 1982 amendments to the Voting Rights Act. The " predominant purpose" test is cleverly designed to make race-based districting virtually impossible in practice, whether or not the Voting Rights Act survives in theory.

In 1982, of course, Congress's impulses were perversely conflicted. Although the amendments claim not to establish a right of proportional representation, they clearly require legislatures and courts to be exquisitely race-conscious and to use race as the "predominant purpose" in creating minority districts. In areas where blacks and whites vote in racially polarized blocs, black voters, by definition, "have less opportunity to elect representatives of their choice." To avoid violating the explicit commands of the Voting Rights Act, legislatures must create at least some districts where black voters constitute the majority rather than the minority (although the Bush and Clinton administrations were wrong to demand as many districts as possible). But, in the wake of Miller, any district created to comply with the Voting Rights Act is vulnerable to a constitutional challenge. Thus, every state is now trapped between what the Voting Rights Act requires and what Justice Kennedy says the Constitution forbids.

But never mind the prudential concerns about judges interjecting themselves into the thick of politics. The only question for a principled strict constructionist is whether the decision is supported by the original understanding of the framers of the Fourteenth Amendment. Although the Kennedy opinion contains not a word about history, the answer is perfectly clear.

Kennedy's notion that the Fourteenth Amendment prohibits states from using race as the "predominant purpose" in drawing electoral districts is hard to reconcile with the text of the Fourteenth Amendment itself. Section 2 of the amendment says that when the right to vote at any election is denied or abridged in any way, the basis of representation in the offending state shall be proportionately reduced. This was a brazenly partisan measure. The grant of citizenship to millions of freedmen in the South meant, the Reconstruction Republicans recognized, a dramatic increase in the number of congressional seats allocated to their opponents. If the Democratic legislatures continued to deny the vote to blacks--and everyone assumed that they would--then Democrats would soon have a congressional majority. By passing Section 2, the Republicans tacitly acknowledged that states were free to use race as the " predominant purpose" in denying or abridging the vote, as long as they were willing to pay the penalty.

During the heyday of the Warren era, the conservative judicial revolution was founded on the principle that the Fourteenth Amendment has nothing at all to say about apportionment. Dissenting in Reynolds v. Sims, the "one-man-one- vote case," Justice John M. Harlan, the high priest of modern judicial conservatives, reviewed the historical evidence exhaustively. He concluded: " The history of the adoption of the Fourteenth Amendment provides conclusive evidence that neither those who proposed nor those who ratified the Amendment believed that the Equal Protection Clause limited the power of the States to apportion their legislatures as they saw fit." A few months ago the Federalist Society, purveyor of law clerks and mischievous ideas to the conservative justices, sponsored a symposium in Chicago on Original Intent and the Constitution. One panel focused on the original understanding of the Reconstruction amendments. The panelists included some of the best conservative scholars of Reconstruction, and all of them agreed that the Scalia-Thomas insistence on color-blindness in matters of apportionment is impossible to reconcile with the history of the Reconstruction amendments. The Fourteenth Amendment plainly was not designed to forbid racial discrimination in all circumstances. In the odd nineteenth-century locution, it was designed to protect a limited set of civil rights, as opposed to political and social rights. There was some confusion about what these categories entailed, but everyone agreed that political rights included the right to vote, the right to hold office and the right to serve on juries. The committee report accompanying the Fourteenth Amendment explicitly stated that the amendment would have no effect on state authority over voting rights.

"At the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class," declares Justice Kennedy. Of course, the Reconstruction Republicans also talked about prohibiting caste legislation, which stigmatized and degraded blacks as a group. But even if one concedes Kennedy's point that the Fourteenth Amendment was individualist at its core, this is persuasive evidence that it has nothing to say about apportionment. Drawing electoral districts is a communal activity in which groups of representatives choose groups of constituents, not where individual constituents choose individual representatives.

It is also hard to identify what injury the individual white plaintiffs in the voting rights cases have suffered. Unlike the affirmative action cases, in which individual whites lose jobs to individual blaks, no voter has any right to be placed in a district where his or her preferred candidates are likely to win. Justice Kennedy claims that the placement of white voters in one district rather than another caused them "representational harms." But, as Justice Stevens pointed out in his dissent, the notion that white voters suffer "representational harms" when they are placed in a mostly black district rests on the very stereotypes Kennedy claims to abhor: that voters of a particular race "think alike, share the same political interests, and will prefer the same candidates at the polls." And why does Kennedy think that black districts have a race while white districts do not? For all these reasons, the Court's effort to regulate the collective activity of apportionment by invoking the individualist text of the Fourteenth Amendment is conceptually absurd.

The affirmative action case, Adarand v. Pena, is not quite as incoherent. But it, too, combines nervous hedging from Justice O'Connor with sweeping rhetoric that calls into question much of affirmative action as it is currently practiced. It reveals that at least two and perhaps four justices are willing to ban racial preferences in all circumstances. And it is impossible to reconcile with the original understanding of the Fourteenth Amendment.

Justice O'Connor, writing for the Court, held that all racial classifications, whether passed by Congress or the states, must be strictly scrutinized by judges and can only survive if they are "narrowly tailored" to accomplish a "compelling governmental interest." This is a daunting test: the last time five members of the Court upheld a racial classification under strict scrutiny was the Japanese internment case in 1944. But O'Connor, the former state legislator, makes clear that the scrutiny she has in mind is not quite so strict after all: "It is only by applying strict scrutiny that we can distinguish between unconstitutional discrimination and narrowly tailored remedial programs that legislatures may enact to further the compelling governmental interest in redressing the effects of past discrimination."

After a constitutional sea change, there is always a period of denial and confusion, as the politicians and the lawyers rub their eyes and try to absorb the meaning of the new order. Courts are notoriously weak engines of social change, and so perhaps the Adarand decision will, in the long run, be discreetly ignored. But, if the remedial model is followed to its logical conclusion, few affirmative action programs outside the university can survive. As Walter Dellinger, the assistant attorney general, emphasizes in a clear-eyed memorandum to federal agencies, all the most controversial racial preferences (such as the Federal Communications Commission's distress sale for minority broadcasters) are almost impossible to justify as a remedy for past discrimination. The largest federal affirmative action program-- Executive Order 11,246, which requires federal contractors to adopt "goals and timetables" to correct "underutilization" of women and minorities--also appears to be unconstitutional under the new standard: there is little specific evidence of discrimination against minorities in most of the industries with which the federal government does business. And the federal set-asides for minority contractors are clearly doomed as well. Instead of succumbing to the O'Connorist impulse to deny the implications of the new order, President Clinton might do better to bow reluctantly to its radical force.

As a political matter, there is something appealing about the hardheaded skepticism of the Adarand opinion, which recognizes that Congress, no less than state legislatures, can be captured by cynical racial politics. Unlike the amorphous voting rights decisions, where judges have no objective standards for distinguishing permissible districts from impermissible ones, it's often possible, in the affirmative action cases, to identify real injuries to real victims.

As a constitutional matter, however, Adarand reveals the Achilles' heel of the jurisprudence of original understanding. The conservative justices have never begun to explain why the Fourteenth Amendment, which says that "no state shall abridge ... the equal protection of the laws," should be construed to constrain the powers of Congress in any way. In his concurrence, Clarence Thomas declares that "under our Constitution, the government may not make distinctions on the basis of race." But Justice John Harlan's argument in the 1880s was much narrower. He did not claim that racial distinctions were forbidden in all circumstances but, rather, that the privileges and immunities of national citizenship can't be granted to one race and denied to another. And Harlan's argument would hardly justify striking down racial preferences for minority contractors. As John Harrison of the University of Virginia has illustrated, the privileges and immunities of national citizenship were originally understood as a narrow category of benefits and entitlements. They were uniform from state to state, and supported by general taxation. In the nineteenth-century idiom, they were fundamental rights, rather than discretionary privileges that could be granted or withdrawn at the government's pleasure. Being hired by the government to build highways, in short, was not among them. A true originalist, then, would allow government to discriminate against black contractors, as well as in favor of them, which is perhaps why the liberals didn't press the point.

Both Scalia and Thomas insist there is no constitutional or moral difference between racism and racialism, that racial classifications are unconstitutional in all circumstances. "In the eyes of government, we are just one race here. It is American," says Scalia. This is a Freudian slip disguised as a constitutional principle: the image of an "American race" conjures up visions of the late-nineteenth-century imperialists, of Brooks Adams and Ernest Renan, that should not trip easily off the tongue of an American conservative. "There can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination," Thomas declares. "So-called benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence... In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice."

At first, this proposition seems implausible. Surely Thomas doesn't mean to say that there are no moral or constitutional differences between the malicious discrimination that led to slavery and the benign discrimination that can lead, say, to a Supreme Court appointment. But, on reflection, Thomas's point seems provocative. It's plausible to argue that, regardless of its motivation, affirmative action can stigmatize and degrade minorities just as slavery did, because racial classifications of any kind promote racial castes. Perhaps not all affirmative action is stigmatizing; but anything short of an absolute ban would not adequately distinguish between racial classifications that produce stigma and those that don't. Because so much is stigmatizing, all must be banned.

But what about the original understanding of the Fourteenth Amendment? The only historical support Thomas offers for his argument is a sweeping citation to the Declaration of Independence. "There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence." This is consistent with the natural law philosophy that Thomas embraced before his nomination, and more specifically, with the natural law rhetoric of some radical abolitionists. Charles Sumner believed, for example, that the Declaration of Independence was part of the Constitution and urged the Reconstruction Congress to adopt a resolution declaring that there shall be "no Oligarchy, Aristocracy, Caste or Monopoly invested with peculiar powers; but all persons shall be equal before the law, whether in the court room or at the ballot box." But Congress rejected Sumner's amendment and Thomas repudiated natural law at his confirmation hearings, declaring that it should play no role in constitutional adjudication. Thomas is trapped, in other words, between his personal impulses, which incline him toward Sumner, and his strict constructionist methodology, which tugs him back toward Calhoun. And without the shadowboxing rhetoric of original understanding, the Adarand decision might have been far more convincing.

The last case in the trilogy is Missouri v. Jenkins, which presages the end of court-ordered desegregation. The conservative five, speaking through Justice Rehnquist, held that the federal courts' power to remedy the effects of school desegregation does not extend very far beyond the elimination of segregation itself. A Kansas City district judge had ordered the state to pay more than $1.4 billion to create lavishly appointed magnet schools in the hope of attracting suburban whites into Kansas City public schools, which are almost 70 percent black. Rehnquist held that the district judge had exceeded his authority, because " t he proper response to an intradistrict violation is an intradistrict remedy." The sins of Kansas City could not be visited on the suburbs. Rehnquist also rejected the state's unlikely theory that the effects of segregation, rather than the effects of court-ordered integration, caused white flight to the suburbs. And he ridiculed the notion that the poor test scores of black students in the elaborately refurbished Kansas City schools--since the 1990s, they have included microcomputers, a planetarium, greenhouses, swimming pools and a 1,875-foot zoo--could be linked to the lingering effects of Jim Crow.

Of the three race decisions in 1995, Jenkins is, as a practical matter, the most important. Congress is unlikely to adopt new set-asides in the future; but hundreds of school districts remain under desegregation decrees. The decision also casts indirect light on the future of affirmative action, because it shows how narrowly the justices want to circumscribe the range of remedies for even the most egregious past discrimination. The proper goal, says Rehnquist, is to restore "the victims of discriminatory conduct to the position they would have occupied in the absence of that conduct."

Jenkins, moreover, is the most authentically conservative of the three race decisions, and, perhaps for this reason, it seems the most coherent and least arch. The five conservatives are brimming over with concern about the abuse of federal judicial power and the danger of empowering unelected judges to meddle in the politics of race--precisely the concerns that they overlooked in the reapportionment cases. "The necessary restrictions on our jurisdiction and authority ... limit the judiciary's institutional capacity to prescribe palliatives for social ills," O'Connor announces. "At some point," adds Thomas, "we must recognize that the judiciary is not omniscient, and that all problems do not require a remedy of constitutional proportions." Thomas contrasts his own color-blind vision with what he calls "a jurisprudence of black inferiority." He insists that voluntary segregation that results from private choices is not constitutionally troubling because it does not have the social meaning or stigmatic effects of state-imposed segregation. "It never ceases to amaze me that courts are so willing to assume that anything that is predominantly black must be inferior," he declares. "The mere fact that a school is black does not mean that it is the product of a constitutional violation," unless one is willing to accept the demeaning premise that racial separatism is itself unconstitutional. Thus, the black nationalism of Thomas's youth and the libertarianism of his early career intriguingly converge.

In his most personal contribution, Thomas goes on to confront the meaning and legacy of Brown v. Board of Education. Brown, of course, is the awkward subtext of the three race cases of 1995. As a law clerk forty years ago, William Rehnquist had written a memo to Justice Robert Jackson insisting that school segregation did not violate the Constitution and that Plessy v. Ferguson was correctly decided. Having converted to color-blindness, he is understandably wary about calling attention to his conversion. Thomas's views, however, are consistent, if hardly originalist. In a 1987 article in The Howard Law Review, "Toward a Plain Reading' of the Constitution--The Declaration of Independence in Constitutional Interpretation," he had criticized Brown for focusing on the psychological effects of segregated schools on black children, rather than on the social meaning of segregation: " Thus, the Brown focus on environment overlooks the real problem with segregation, its origin in slavery, which was at fundamental odds with the founding principles." In the Jenkins opinion, Thomas's argument is more formalistic: Brown "did not need to rely upon any psychological or social- science research in order to announce the simple yet fundamental truth that the government cannot discriminate among its citizens on the basis of race... Psychological injury or benefit is irrelevant to the question whether state actors have engaged in intentional discrimination--the critical inquiry for ascertaining violations of the Equal Protection Clause."

To support his claim that Brown rests on firmer historical ground than the Warren Court acknowledged, Thomas cites an article by Michael McConnell of the University of Chicago, "Originalism and the Desegregation Decisions," recently published in The Virginia Law Review. But, in fact, McConnell's article is devoted to rejecting Thomas's broad color-blind premise. The Reconstruction Republicans did not accept Thomas's anachronistic notion that the equal protection clause was designed to root out intentional discrimination across the entire range of state action. Instead, they understood the protection of the laws as a relatively narrow guarantee, designed to ensure equal administration and enforcement of laws passed for the security of liberty and property. "To the supporters of the civil rights bills during the Reconstruction period," McConnell points out, "the focus was on an equality of rights--not on whether the processes of government were infected by discriminatory intent."

McConnell challenges the received wisdom, embraced by constitutional theorists from Ronald Dworkin to Robert Bork, that the Brown decision is inconsistent with the original meaning of the Fourteenth Amendment. Between 1870 and 1874, majorities in the House and Senate repeatedly voted in favor of school desegregation, on the theory that the amendment entitled all citizens to the same civil rights. For those who accepted the notion that education was a civil right (and this was a less controversial notion in the 1950s than in the 1870s), the Fourteenth Amendment required that it be extended to white and black citizens on exactly the same terms. But this evidence comes from the period after the Fourteenth Amendment was ratified, hardly the kind that Thomas is ordinarily willing to accept.

Thomas's defense of voluntary segregation is not entirely inconsistent with the vision of the Reconstruction Republicans, who saw no contradiction between public equality and private Negrophobia. Like them, Thomas seems to believe that social rights are beyond the regulatory power of the state and that social inequality--resulting from the private reluctance of whites to associate with blacks, or blacks with whites--should be left entirely to private choices. By contrast, both Thomas and the abolitionists believe that state-sponsored segregation should always be illegal and unconstitutional. Senator Sumner, crisply distinguishing between the private and public spheres, insisted that each person "is always free to choose who shall be his friend, his associate, his guest," but when he "walks the streets ... he is subject to the prevailing law of equality."

But Thomas has boxed himself into a corner. In his Jenkins opinion he reiterates that, when an attack on a constitutional provision is followed by an attempt to narrow the provision, "the appropriate conclusion is that the drafters and ratifiers ... approved the more limited construction offered in response." And there is no doubt that, during the debates over the Fourteenth Amendment itself, a prominent supporter stated unequivocally that it would not affect segregation. In the course of trying to reconstruct Brown v. Board of Education, in short, Thomas has committed himself to a methodology that compels him to reject it.

If the conservative justices had made an honest attempt to respect the intentions of the Reconstruction Republicans in the race cases of 1995, they would have voted for judicial restraint rather than judicial activism. Instead of declaring that the Constitution is color-blind in all circumstances, they would have concluded that the Fourteenth Amendment neither imposes any limits on race-conscious apportionment nor forbids set- asides for minority contractors. Nor does it necessarily forbid segregated schools--unless Justices Thomas and Scalia are willing to construe the historical evidence more expansively than they are willing to do in cases involving states' rights and federal powers.

But the race cases of 1995 are distressing in a way that transcends the methodological inconsistencies of conservative or liberal justices. For the second time in a century, the Supreme Court has presumed to forbid Congress from passing civil rights laws and creating voting districts for the benefit of blacks. As an example of judicial usurpation of Congress's prerogatives alone, this should make conservatives cringe. Already, liberals are eulogizing the decade that produced federal set-asides and the first black representatives from the South since the first Reconstruction as the second Reconstruction; and conservatives are celebrating the dawning of the color- blind age. Both claims seem hyperbolic. Perhaps the country is finally ready to embrace the color-blind ideal that was proposed and rejected by the 39th Congress; but because the unelected justices have short-circuited the political debate, we may never know for sure.

"When a man has emerged from slavery," Justice Bradley declared in his notorious opinion striking down the public accommodations act of 1875, "and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws." If the historic moment has arrived at last, the wrong heralds, once again, have trumpeted its arrival. Remember Justice Scalia's cry of anguish in the last abortion case: "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

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