Two Ways to Fight Progressive Jurisprudence

Often, concurring opinions by thoughtful justices can shed light on possible improvements to American jurisprudence. The concurring opinions by Justices Clarence Thomas and Neil Gorsuch in a recent case take us back to fundamental questions of natural right and the challenge posed to them by progressives. Since the justices implicate such important philosophical and historical issues, readers should challenge them to develop their arguments further. 

The case in which they concurred raised the meaning of the Fifth Amendment’s due process clause and whether it demanded equal protection of the law for citizen residents of the United States as for citizen residents in Puerto Rico. Justice Brett Kavanaugh appropriately ruled for an 8-1 majority that “Congress may distinguish the Territories from the States in tax and benefits programs such as Supplemental Security Income, so long as Congress has a rational basis for doing so . . . The Constitution affords Congress substantial discretion over how to structure federal tax and benefits programs for residents of the Territories.” 

Kavanaugh also pointed out that Puerto Ricans do not pay many of the taxes obligatory for residents of the United States, so it is reasonable that they not receive all the benefits in turn. The case was United States v. Vaello Madero and it overruled the lower courts, holding there was no violation of “the equal-protection component of the Fifth Amendment’s Due Process Clause.”

Following up on his earlier attacks on the meaning of the 14th Amendment due process clause, Thomas in Vaello Madero found no equal protection clause in the Fifth Amendment’s due process clause (“No person shall . . . be deprived of life, liberty, or property, without due process of law; . . .”) The Court blithely made this addition to “substantive due process” jurisprudence in Bolling v. Sharpe, the companion case to the 1954 school desegregation decision in Brown v. Board of Education. 

Bolling sloppily equated the 14th amendment’s “equal protection” of the laws with the Fifth Amendment’s due process command, seeking to create a uniformity of federal and state protection against unequal treatment. Now the previous major Fifth Amendment due process case, the notorious Korematsu v. United States, concerned ethnic Japanese exclusion toward the end of World War II. That case upheld  the military’s forced relocation of some 110,000 ethnic Japanese, citizens and noncitizens alike, to centers far away from the West Coast. The 6-3 decision was immediately and thereafter criticized across the political spectrum for its “racism,” while neither the Court opinion nor the dissenters cited the Fifth Amendment. 

Korematsu’s critics fail to appreciate that the Court announced it with a companion case, ex parte Endo, which ruled unanimously that the relocation was illegal and ordered the relocation centers disbanded. But, of course, Thomas was not just touching upon but gleefully embracing this third rail of jurisprudence, which was, in turn, denounced for allegedly siding with racist policies of the past against blacks and Japanese immigrants and citizens.

But Thomas’ hesitation about the Fifth Amendment’s applicability in this case took reasonable and just account of the national government’s responsibilities that the state governments do not bear, for example, in foreign policy and immigration. “In sum, the text and history of the Fifth Amendment’s Due Process Clause provide limited support for reading into that provision an equal protection guarantee.” 

Thomas expressed regret for his earlier errors, specifically naming the affirmative action set-aside case of Adarand Constructors v. Peña. Some commentators mistakenly think Thomas repudiated his reliance on the Declaration of Independence there, but he did not. This statement from his brief Adarand concurrence still rings true: 

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 (‘We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness’).

In Vaello Madero, Thomas builds on his concurrence in the McDonald gun-rights case. “[T]he right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause” and not through its due process clause. For now the natural rights of the Declaration find expression in the privileges or immunities clause of the 14th Amendment. The dogmatism of “equal protection” is replaced by the prudence of “privileges and immunities, which brings the Constitution closer to its natural rights origins.

Thomas’ criticism of using the due process clause has implications for the way we should restrict its use in, for example, abortion rights cases.

Here it is also notable that Thomas goes into the history of the 13th Amendment and notes that Stephen Douglas, forced by Lincoln, conceded that citizenship brought with it enjoyment of certain rights. Thus the Civil Rights Act of 1866 derived its coverage against private discrimination from the 13th Amendment.

Moreover, Thomas observes that in the Civil Rights Cases,

The lone dissenter, Justice John Marshall Harlan, focused primarily on citizenship and echoed Republicans’ understanding of equal citizenship: ‘Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State . . . against any citizen because of his race.’ 

He would also add the lesser-known Gibson v. Mississippi, a unanimously decided case, to his precedents. Thomas contends that the privileges or immunities clause implicates “a broader set of civil rights” than the equal protection clause.

Finally, in our appreciation of Justice Harlan’s “color-blind constitution” dissent in Plessy v. Ferguson, we should note, following Thomas, how Harlan based his argument on equal citizenship. (I’ve written on Harlan’s argument elsewhere.) The 13th Amendment in my view of the Reconstruction amendments was the roof of protection; the 14th Amendment added some nails.

Thomas expanded on these themes in noting, 

Beyond its emphasis on equal citizenship, Justice Harlan’s Plessy dissent also specifically recognized that the Federal Government could not engage in racial discrimination. The Fourteenth Amendment, Harlan explained, ‘gave citizenship to all born or naturalized in the United States, and residing here,’ ‘obliterated the race line from our systems of governments, National and State,’ and ‘placed our free institutions upon the broad and sure foundation of the equality of all men before the law.’

“While the historical evidence above is by no means conclusive,” Thomas allows that, “it offers substantial support for the proposition that, by conferring citizenship, the Citizenship Clause guarantees citizens equal treatment by the Federal Government with respect to civil rights.” The significance of the privileges and immunities clause of the original constitution and the 14th Amendment’s version has long been an interest of the justice. 

The discussion takes us back to the founding and its struggle to save the principle of republican government—be neither master nor slave.

In his concurrence with the result, Gorsuch outdoes the sole dissenter, Justice Sonia Sotomayor, in his disgust for the Insular Cases—the original cases justifying unequal treatment of citizens in U.S. territories. “The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”

Gorsuch was talking about the rights of inhabitants of conquered island territories (including Cuba, which antebellum Democrats earlier had wanted as an additional slave state) as a result of the Spanish-American War. Gorsuch surveys the high points of the debate among legal scholars and justices on the question of the extent to which inhabitants of conquered island nations might have the same rights accorded Americans. He challenges the premise that such peoples may be “absolutely unfit” to receive the full constitutional protections accorded Americans.

A shocked Gorsuch reacts,

The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories. Nothing in it extends to the latter, only certain supposedly ‘fundamental’ constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.

But how different was granting statehood to other territories absorbed into the United States? 

The Republican Party’s first platform in 1856 denounced “those twin relics of barbarism—polygamy and slavery.” Here at the turn of the 20th century “The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding.” The justice here is close to touching on the progressive break with the constitutional tradition that Lincoln had sought to revive. Justice Harlan was the lone voice at the time who came closest to what the occasion demanded.

“To be sure, settling this question right would raise difficult new ones. Cases would no longer turn on the fictions of the Insular Cases but on the terms of the Constitution itself.” What Gorsuch lacks here and what earlier generations of jurists possessed was regard for the Declaration of Independence, which, as Thomas noted in Adarand, “the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence . . . ” Gorsuch might have noted how Puerto Ricans are still suffering from the infamous social and political experimentation inflicted on them by Governor Rexford Guy Tugwell, the New Deal intellectual and FDR adviser.

Gorsuch cannot denounce the alleged “racism” of the Insular Cases without assailing the progressive ideas the cases are built on. But that progressivism pervades today’s constitutional understanding, as much as the Declaration, as Thomas would argue, “infuses” our original Constitution. 

Gorsuch may get his wish about overriding the Insular Cases. But that won’t undo the differences between the United States and Puerto Rico or, more significantly, the difference between a progressive Constitution that transforms itself to accommodate the times and one built on natural right. The Gorsuch position here would instantiate new progressive views of race as distant from the founders’ view of equality as the older progressive ones that rightly horrify him.

About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: Chip Somodevilla/Getty Images

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