AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric

Abstract

How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?Consider first the Constitution. For much of our history, social movements have resorted to constitutional law and rhetoric as a foundation grounding campaigns for reform.2 That history creates a problem: if critique of the status quo is deep enough to erode the moral standing of the Constitution itself, then reformers destroy the substrate on which the critique rests. There is no simple way for a document born in original sin to cleanse itself of its own impurity.The problem runs deeper. The Constitution serves as a symbol of the broader American experience. At the beginning, our country was stained white. On one telling of our national story, the stain has colored all our history. If the telling is accurate, then purging the stain requires destroying the American ethos. Before we can achieve real political progress, we must explode the self-glorifying myth of American exceptionalism. Yet the very effort to come to terms with our real history undermines the normative basis for our rebirth.Questions raised by these problems do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of whether they can do so successfully. Least promising, I argue, are responses grounded in constitutional law understood as judicial parsing of constitutional text and precedent. This social practice is too deeply mired in a pernicious history, set of conventions, and restraints to pull itself out of its own muck.Political redemption offers more promise. Tactics used outside the courthouse that invoke the vaguer, higher ideals supposedly implicit in constitutional text and that reimagine and reconstruct our history in a more favorable light might provide a foundation for renewal. But the effective use of these tactics requires extraordinary political and rhetorical skill that no one on the current scene has yet demonstrated. Perhaps more importantly, it also requires a willingness of Americans, also yet to be demonstrated, to follow such a leader toward racial reconciliation.As an entry point into the problem, imagine that Washington, D.C., somehow realizes its long-time ambition to become a state. What should the new state be called? Clearly not “Washington, District of Columbia.” The only acceptable part of that name is the word “of.” Early versions of DC statehood bills labeled it “New Columbia,”3 as did a draft of the new state’s constitution.4 But that name is also unacceptable. Christopher Columbus was at a minimum a brutal enslaver, and he may have been a genocidal maniac.5 Making “Columbia” “New” doesn’t extirpate the crimes of the old Columbus any more than a “New Hitleria” would cleanse Hitler’s crimes.House Resolution 51, the first bill providing for D.C. statehood to pass either house of Congress, names the new state “Washington, Douglass Commonwealth.”6 This gets rid of Columbus and cleverly preserves the “Washington, D.C.” label by changing the words that D and C abbreviate. Unfortunately, though, it accomplishes these goals at the cost of considerable awkwardness. The name would inevitably be shortened to “Washington,” but we already have a state so named. The more serious problem is that the bill asks D.C.’s Black residents to accept a name honoring a man who enslaved their ancestors.The bill’s authors apparently thought the unacceptable implications of the naming could be avoided by balancing George Washington with Frederick Douglass, an authentic hero who was a D.C. resident and once was the D.C. recorder of deeds.7 But balancing a white slaveholder with a Black abolitionist and calling it a day is morally repulsive. It suggests that a compromise equally honoring our nation’s racist and liberatory past is acceptable. It isn’t.8Controversy about monuments, statues, and patriotic songs presents another version of the same difficulty. Consider first our national anthem. The poem that provided its lyrics was written by Francis Scott Key, a slave owner9 who used his legal acumen to prosecute abolitionists for libel.10 The third verse proclaimed thatNo refuge could save the hireling and slaveFrom the terror of flight or the gloom of the grave.11The apparent reference is to the dire fate that Key envisioned for enslaved African Americans who rushed to British battle lines in search of freedom. Without apparent irony, Key concludes the stanza by proclaiming thatAnd the star-spangled banner in triumph doth waveO’er the land of the free and the home of the brave.12The context makes apparent whose freedom Key cared about and whose home he was describing. Is it any wonder, then, that some defenders of racial justice refuse to stand when the song is sung? Still, we can understand and applaud their actions while also wondering whether our fragile politics can withstand a campaign to dethrone this supposed symbol of national unity.Monuments and statues that glorify traitors and racists pose a similar problem. It should be obvious that these structures deserve no place in our public iconography, but opponents of the iconoclasts ask, “Where is the stopping point?” It is not as easy as it might seem to dismiss their concern.Consider, for example, the people memorialized by the most important monuments in Washington, D.C. When George Washington went to Philadelphia, where he presided over the Constitutional Convention, he was accompanied by the enslaved William (Billy) Lee, whom Washington had purchased for 61 pounds, 15 shillings.13 Lee waited on Washington hand and foot. For years, Thomas Jefferson ran what amounted to a slave labor camp at Monticello. He repeatedly impregnated the enslaved Sally Hemings, the half-sister of his wife.14 Abraham Lincoln stated that he had no objection to a constitutional amendment that would have permanently protected slavery.15 Until nearly the end of his life, he believed that African Americans could never coexist with whites and favored various crackpot schemes to rid the country of them.16 Should we destroy the Washington Monument and Lincoln and Jefferson memorials?The controversy over names and statues might be thought to create no more than a trivial embarrassment. Perhaps it is an example of our unfortunate preoccupation with symbolism at the expense of substance. But confining the problem to statues, songs, and monuments seriously understates the sweep of the claims made by iconoclasts. On their account, the nation’s entire history is tainted by racism and oppression. Instead of an aberration, Trumpism is only the latest manifestation of our founding and permanent commitment to white supremacy. The Revolutionary War, the drafting of the Constitution, the settling of the West, the Jacksonian Revolution, the Progressive movement, the New Deal, the Nixon presidency, and the Reagan renewal are all colored by America’s racial stain. Arguably, it infects even modern American attitudes toward the war in Ukraine—we have been much more responsive to the suffering of white Christians there than we were to the suffering of, for example, victims of genocide and mass slaughter in Rwanda, Yemen, Myanmar, and South Sudan.Of course, there are other ways to characterize our history. I discuss these possibilities below. But suppose at least provisionally that the account is right, or even partially right. If America’s racial stain has always been white, then the iconoclastic projects risk the effacement of our history as well as all the statues, monuments, literature, and songs that glorify it. The projects suggest that we must disown both our Constitution (the document) and our constitution (our ontological status). Is that an undertaking that we could or should pursue in the name of the very Constitution and constitution we are attempting to displace?In the sections below, I explore this question first with regard to judicially enforceable constitutional law and then with regard to constitutionally tinged rhetoric as it operates in the political sphere.America’s racial stain inevitably produces disruptions, tensions, and contradictions in standard constitutional doctrine that, in theory, social activists might exploit. A generation of critical legal scholars tried to act on this theory. Many of them believed as an article of faith that the deconstructive project would open space for a politics that was more humane, equal, decent, and just.With the benefit of years of difficult experience, we now have solid reason to doubt that deconstruction can achieve this objective. There are two versions of the theory. On the first account, the contradictions could encourage timid judges to see that they have a choice about how to formulate legal doctrine. Judges would then use that freedom to support progressive change. On the second version, pointing out contradiction and incoherence could lay the groundwork for discrediting the very enterprise of liberal constitutionalism so it can be replaced with a more just legal structure.Perhaps the jury is still out on the second claim (more on this below), but in retrospect, the first claim seems impossibly naïve. It rests on a radical misunderstanding of the kinds of people who become judges and a radical underestimation of the resilience and flexibility of legal doctrine. The very indeterminacy that Critical Legal Studies emphasized means that judges have a limitless capacity to squirm out of embarrassing corners by recharacterizing or overruling precedent, reframing factual and temporal assumptions, exploiting the ambiguity of relevant text, or simply and willfully ignoring or obfuscating contradiction.The discussion that follows provides a brief case study of this phenomenon in the context of America’s racial stain. It documents both the discontinuities produced by the taint argument and the tactics that have been and will be employed to soften or obscure those discontinuities.The doctrinal problem begins with Washington v. Davis,17 in which the Court held that a facially neutral government policy need not be strictly scrutinized even if it has a disproportionate racial effect. The Court’s opinion surprisingly and candidly acknowledged the racial stain problem exemplified above by the difficulties posed when we contemplate a new name for D.C., abandoning the national anthem, or removing public art. The Davis Court thought that the results of an effects test “would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes.”18For proponents of the racial taint theory, that is just the point: the tendrils of American racism are pervasive, and getting rid of racial hierarchy and white privilege “root and branch”19 requires revolutionary change. For the Davis majority, though, the very fact that an effects test would require such change meant that the Court had to reject the test. The Justices seem to have thought that constitutional law necessarily operated at the margins, smoothing the rough edges of our practices and traditions but not requiring their transformation. That view entails living with a contradiction. On the one hand, we have the official story that insists that racial hierarchy is unconstitutional and unacceptable. But on the other, when the effort to eliminate racial hierarchy is “far reaching” and would raise “serious questions” about established institutions and practices, hierarchy is both constitutional and acceptable.But although Davis attempted to cabin the taint argument, it did not completely reject it. The Court reaffirmed long-standing doctrine applying strict scrutiny to statutes that facially discriminate on a racial basis, apparently even if they do not have a current, racially disproportionate effect. More significantly, it made clear that even a facially neutral statute or policy would trigger strict scrutiny if it was enacted for a racist purpose.If the Court thought this compromise effectively eliminated the revolutionary potential of the taint argument, it was sadly mistaken. The mistake becomes apparent when one examines the implications of Hunter v. Underwood20—a case that applied the “intent” test to invalidate a statute. Hunter, decided in 1985, concerned a provision of the Alabama Constitution adopted eighty-four years earlier. The provision disfranchised all persons convicted of “crimes of moral turpitude,” and the legislative history left no doubt that it was enacted for the purpose of restricting the voting rights of African Americans. Writing for a unanimous Court, Justice Rehnquist treated as irrelevant questions about whether the law currently served a legitimate purpose or remained on the books for nonracial reasons. Even if those facts were true, the Court held, the provision must be invalidated because of the motivation of the people who had enacted it years ago.21If the claims some people make about our racial stain are accurate, the potential implications of Hunter are breathtaking. There can be no doubt that slavery helped shape the Constitution itself. As historian Donald Robinson has written, “[t]he South’s enthusiastic participation in the nationalizing thrust of 1787 carried one portentous qualification: the national government could be as powerful as the vision of a great national empire demanded, provided that it keep its hands off slavery.”22 The compromises the Framers made with the motive of satisfying slaveholders are well known and affect virtually every aspect of American government.23 Later amendments reversed some of the most egregious coddling of slavery, including the three-fifths compromise24 and the requirement that free states return escaped enslaved people.25 The ban on the importation of slaves until 180826 expired according to its own terms. But other vital provisions remain. They include protections for states’ rights contained in the Tenth Amendment,27 the shape of the federal taxation power,28 the grant of federal power to mobilize the militia to put down insurrections,29 the protection of property rights,30 the ban on congressional export taxes,31 the electoral college system,32 and the allocation of treaty-making and appointment powers partly to the president rather than entirely to the Senate.33 Judicial enforcement of any of these provisions implicates modern generations in our nation’s racist past.I will have more to say below about the status of the Constitution, but even if disowning it is off the table, many sub-constitutional statutes and policies are vulnerable if we take Hunter seriously. Some examples:Some claim that police forces have their origins in the slave patrols tasked with capturing escaped enslaved persons and returning them to their former condition.34 The claim may be exaggerated or overly simple, but there can be no denying that a major motivation for having and expanding police forces was the felt need to control African Americans.Many of our drug laws were enacted because of racist fears of supposedly drug-crazed Asian and African Americans.35Conservative scholars have demonstrated that early progressive measures like minimum wage and maximum hours laws were enacted to suppress competition from African American workers.36 The Davis-Bacon Act, which requires contractors to pay the local prevailing wage to workers at federally funded construction projects, was passed for racist reasons.37 Federal home mortgage policy deliberately promoted residential segregation.38 More broadly, much of the New Deal was racially gerrymandered to help white, but not Black, workers.39The location of highways, public housing, public schools, and other public works projects was strongly influenced by the racial composition of neighborhoods in which they were located.40Our immigration laws were enacted with the express purpose of controlling the ethnic composition of the country. The very criteria for membership in our political community—who counts as Americans—is therefore racially stained in both senses of the word. The 1965 immigration act ended some of the most egregious aspects of this policy, but not all of them, and the effort to control the flow of immigrants remains motivated at least in part by racist assumptions that go back to the beginning of restrictionist legislation.41Early gun-control measures were apparently motivated by fears of what would happen if African Americans were armed.42Many argue that the death penalty, which has been abolished in most of the world, survives only because of its disproportionate effect on African Americans.43Unfortunately, these specific examples are just the beginning of the problem. For example, they leave out the pervasive effects that sexist assumptions and outright misogyny have had on our legal architecture. Discrimination against and exploitation of Hispanics and Asians are well documented and have had a profound effect on our history. And what are we to make of the treatment of American Indians? The country’s entire history is premised on their displacement, subjugation, and elimination.More generally, specific examples fail to capture the true radicalism of the Hunter approach. To fully vindicate Hunter’s promise, we must imagine what our society would look like if we had never had laws enforcing slavery, if Reconstruction had succeeded, if there had never been a Jim Crow regime, if different people had immigrated to the United States, and if Indians had not been slaughtered and displaced. That means ceding to judges the authority to imagine and put into place a wholly different country. Could it be that the Constitution requires this outcome?There was a moment in American history when the eradication of America’s racial stain might have been possible. After the Civil War, Union troops occupied the South, and radical Republicans controlled Congress. At least some radical Republicans wanted to remake America’s racial order.But as we all know, that effort failed. As Eric McKittrick has pointed out,44 the South, unlike post–World War II Germany and Japan, was never made to accept defeat. The South never became a subjugated enemy subject to the will of the prevailing power. Instead, from the beginning, powerful forces in the North were all too ready for reconciliation and “redemption.” Far from mandating radical reconstruction, federal courts used constitutional law as an instrument to frustrate it.45 The upshot, historian Heather Cox Richardson claims, is that the South eventually won the Civil War.46The victors in 1865 behaved differently from the victors in 1945 for many reasons. Perhaps the principal one is that Allied forces in World War II came from the outside. Germany and Japan had not been part of the United States or the United Kingdom. They did not share a common history or culture. For that reason, the problem of shared responsibility did not arise. In contrast, America’s racial stain was not limited to the South. It was and is built into our common history. Extirpating it meant dealing with problems in the North as well as the South.In any event, whether or not radical reconstruction was possible in 1865, it pretty clearly is impossible now, especially if one imagines it emanating from judicially enforced constitutional doctrine. The progress that was made after the Civil War came about largely because there were troops on the ground and, as noted above, despite rather than because of the efforts of judges to enforce constitutional law. Today, there are no troops on the ground and no prostrate and defeated enemy begging for mercy.The notion of the modern Supreme Court leading a campaign of radical reconstruction is fanciful to say the least. But worse than that, and more surprisingly, judicially led reconstruction is probably also undesirable. The last thing racial progressives should want is a conservative Court trying to imagine and put in place a reconstructed society conforming to its conception of what we would have been if we had had a different history. And even if the Court were somehow transformed, prior experience strongly suggests that judicially enforced constitutional law is not up to the task of radical reconstruction. The most liberal Supreme Court in our history—the Warren Court—mostly failed.47 Certainly, the modern Court is not about to lead us to a promised land. For these reasons, the courts need to find, have found, and will find off-ramps to escape Hunter’s implications.To understand these off-ramps, we must begin by making some analytic distinctions. It turns out that there are two different taint arguments.48 On some occasions, “taint” refers to a but-for causal connection between previous acts of unconstitutional discrimination and a current state of affairs. Perhaps, for example, a city exhibits a pattern of housing segregation, and this segregation can be traced to discriminatory government decisions made years earlier concerning the availability of government-backed mortgages.49 On other occasions, “taint” refers to the genealogy of a statute or policy. Perhaps a statute was enacted decades ago for a discriminatory purpose. If the statute remains on the books years later, or if it has been replaced by a subsequent statute that closely tracks its predecessor, the earlier statute or policy might be thought to “taint” the later one.50Matters are further complicated by different understandings of the previous “discriminatory purpose” that putatively infects current policy. Sometimes, the illicit purpose is a desire to harm or denigrate a disfavored group simply for the purpose of making things worse for members of the group.51 The possibility of this sort of discriminatory purpose lies behind the strict scrutiny afforded statutes or policies that facially discriminate against protected classes, but it might also play a role in finding that facially neutral policies are tainted by an unconstitutional purpose.The second kind of purpose often also involves a desire to harm a disfavored group, but that desire is not a necessary component of the prohibited purpose. Instead, the purpose is defined by the desire to produce the same result that facial discrimination would produce but to do so by facially neutral means. Put differently, the purpose is to use a facially neutral statute or policy with the aim of producing a disproportionate racial effect.52The Supreme Court has pretty much shut down the possibility of making the first sort of taint argument. It has repeatedly held that what it calls general “societal discrimination” resulting from previous unconstitutional acts is insufficient to require remedy. Indeed, a remedy for “societal discrimination” is not permitted even when it takes the form of race-based preferences.53 Instead, remedies are available only when there is a direct causal link between a discrete discriminatory act and an identifiable, personal injury.54 The fact that our country has been stained white throughout its history will therefore be unavailing for plaintiffs complaining about modern racial hierarchy.The second kind of taint argument, involving the genealogy of various statutes and government policies, poses a more difficult problem. At least in theory, Hunter requires invalidation of previous statutes that taint currently applicable statutes and policies. As the examples discussed above illustrate, there is no shortage of current statutes and policies that might be vulnerable if this command were taken literally.How might courts avoid taking Hunter’s command literally? The cleanest solution would be to overrule Hunter. Disowning the case is not without attraction. Why, after all, should the motives and purposes of people long dead matter today? If a statute currently has a neutral or salutary impact and if it is no longer supported for racist reasons, why should its pedigree matter? Why should identical statutes be constitutional or unconstitutional because of the reasons people supported them?Moreover, the effort to sort out the motives or purposes of actors is famously fraught and, perhaps, altogether incoherent. Different people have different motives that they might not fully understand themselves. They usually don’t tell us what these motives are, and many legislators and voters act without clear understandings of what they are voting for or how what they are voting for will intersect with unanticipated social conditions years later.More broadly, a repudiation of Hunter might mark a first step toward shifting the conversation from the past to the future and from imposing blame to finding solutions. On this view, preoccupation with the worst aspects of our history is a poor strategy for achieving social justice. People inevitably react defensively when asked to disown their national identity or when blamed for misdeeds committed by past generations. A more fruitful strategy for removing our racial stain is to reconstruct our history in a more positive way or, alternatively, to disregard it and start afresh.But as attractive as overruling Hunter might seem, an overlapping consensus between the left and the right stands in the way of that outcome.The first problem is that an outright overruling would permit the continued enforcement of racist laws, thereby undermining the prevailing ideology of racial neutrality. If the Court upheld statutes deliberately gerrymandered to disadvantage racial minorities, it would be publicly declaring that racial discrimination is constitutionally permissible. It is one thing to leave our racial hierarchy in place; it is another to overtly endorse it.Moreover, Hunter remains helpful to both progressives and conservatives when used judiciously and instrumentally to mount attacks on the outer defensive perimeters of our racialized politics. Writing for conservatives and progressives alike, Justice Gorsuch recently used the racial taint argument to discredit Louisiana’s statute permitting nonunanimous jury verdicts in criminal cases55—a point reinforced by Justice Sotomayor’s separate concurrence.56 Conservatives have used the taint argument to discredit gun control legislation57 and a variety of progressive reforms, most prominently the Davis-Bacon Act, which mandates payment of the locally prevailing wage on federally funded construction projects.58 Overruling Hunter might also complicate conservative reliance on illicit purposes to invalidate laws supposedly impinging upon the free-exercise rights of religious conservatives.59 For their part, progressives continue to use the taint argument to attack voting restrictions,60 segregated educational institutions,61 and a variety of police practices.62But perhaps the strongest reason for preserving Hunter is that there is no need to overrule it. Why incur the disruption and ideological cost of disowning the case when the justices can easily avoid its implications whenever it threatens to extend beyond the perimeters and into the heart of the racial status quo?Judges can use and have used a variety of off-ramps to avoid Hunter’s implications. As W. Kerrel Murray wrote, the Supreme Court has often greeted Hunter-type arguments with an answer that “resembles a shrug.”63 For example, in Trump v. Hawaii,64 where the Court upheld the third iteration of President Trump’s travel ban, it treated as essentially irrelevant the earlier iterations, which lower courts had found were infected with a discriminatory purpose. Similarly, in McCleskey v. Kemp,65 where the Court upheld Georgia’s death penalty against charges of racial discrimination, the justices summarily dismissed arguments that capital punishment was originally instituted in Georgia for overtly discriminatory reasons.66For courts unsatisfied with a mere “shrug,” numerous analytic tools are available to avoid Hunter’s force. The simplest is to deny that there was a racial motivation in the first place. On a few occasions, discriminatory motivation might be inferred from discriminatory impact, but in Village of Arlington Heights v. Metropolitan Housing Development Corp.,67 the Court declared that “such cases are rare.”68 In the more usual case, “impact alone is not determinative, and the Court must look to other evidence.”69The Hunter Court itself acknowledged that examining this evidence is a “problematic undertaking”70 and quoted a passage from United States v. O’Brien acknowledging that “[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.”71Hunter was unusual because the candor and shamelessness exhibited by proponents of the law meant that no guesswork was required. More often, the law’s proponents will be more discreet. For understandable reasons, even justices sympathetic to the underlying claim are reluctant to accuse public officials of racism and bad faith.The Court’s recent treatment of illicit purpose in the related context of anti-abortion legislation illustrates the point. In Whole Woman’s Health v. Hellersted,72 the Court confronted a Texas statute imposing a variety of restrictions on abortion clinics, including a requirement that doctors working at the clinics have admitting privileges at nearby hospitals and that the facilities meet the exacting standards for surgical centers.Writing for the majority, Justice Breyer recited in detail evidence indicating that the restrictions had no relationship to protecting the health of pregnant women. One might have supposed that this fact, taken together wit