The Lawfulness of Bolling v. Sharpe

The Supreme Court is busying itself deciding cases around the end of its annual term, and the big theme seems to be that the government is allowed to do unspeakable things to immigrants. One of today's decisions concerned the Trump Administration's withdrawal of temporary protected status from Haitian immigrants. The majority opinion, by one Sam Alito, is attracting attention for insisting that all of Trump's vile racist comments about Haitians actually have a perfectly race-neutral explanation. While that is deplorable, it is not very, uhhh, theoretically interesting.

Clarence Thomas's concurring opinion, on the other hand, is. Thomas takes issue with the whole idea that the federal government is obliged not to be racist. You see, the Fourteenth Amendment's Equal Protection Clause, which forbids government from "deny[ing] to any person within its jurisdiction the equal protection of the laws" and is taken as the basis for the constitutional law of equality and nondiscrimination, is part of a sentence that begins with the words "No state shall..." The implication, for Thomas, is that, in fact, it is only the states that are bound by this obligation, and not at all the federal government.

Now, this has come up before. Back when the NAACP was challenging the practice of school segregation under Jim Crow, one of the challenges was located in Washington, D.C. Which is not a state. The D.C. case, known as Bolling v. Sharpe, therefore raised distinct issues from the other school segregation cases, which we know today as Brown v. Board of Education (1954). Brown, of course, held that school segregation offended the Equal Protection Clause. Bolling, then, had to decide whether or not the same result should attain when the entity doing the segregation was the federal government.

The answer, of course, was "yes." Bolling held that the Fifth Amendment's Due Process Clause "incorporates" a requirement of equal protection, applicable to the federal government. This is analogous to how the Fourteenth Amendment's Due Process Clause had been held to "incorporate" a number of human rights provisions expressly applicable only to the federal government, notably the Bill of Rights. Bolling, therefore, is known as "reverse incorporation."

This is what Thomas takes issue with. And it's not really out of character for him to object, here, because he also objects to the doctrine of "incorporation" as to the Fourteenth Amendment's Due Process Clause. (He's right about that, for what it's worth: the correct textual vehicle in the Fourteenth Amendment for applying the federal human rights law to the states is the Privileges or Immunities Clause. But it is not really an important point, in my view; you can and should reach exactly the same results on either theory. Of course, Thomas being Thomas, he has various mischief he hopes to accomplish by changing the textual footing.)

Now, Thomas did not invent the idea that Bolling was wrongly decided. Nor is it out of character for him: he has long since been a critic – the Court's only avowed critic – of the doctrine of "substantive due process." This is the idea that the Fourteenth Amendment's Due Process Clause – part of the same sentence as the Equal Protection Clause – imposes a number of substantive restrictions on the states, notably those of the federal Bill of Rights. The textual objection to this is obvious: as John Hart Ely famously observed, "substantive due process" has the linguistic quality of saying "green pastel redness."

To this, Thomas adds the "originalist" point that the drafters of the Fourteenth Amendment certainly understood the business of incorporation to be done through the Privileges or Immunities Clause, the first of the three provisions of, yes, that same one sentence. (He's right about that, to be clear, though in my view it shouldn't make much difference to the outcome of cases: in general, whatever result you would reach under substantive due process is also the result you should reach under Privileges or Immunities.)

All of this is relevant because, of course, Bolling is a kind of substantive due process. The notion is that the Fifth Amendment's Due Process Clause imposes upon the federal government a substantive obligation of nondiscrimination. So it makes sense that Thomas would be skeptical. Of course the point about the intentions of the drafters of the Fourteenth Amendment aren't really relevant, but for what it's worth, if we're sticking in Thomas's preferred historical modality, it's plain enough that the people who drafted the Fifth Amendment – back in 1791 – certainly did not understand it to impose a principle of racial equality.

Now although Thomas thinks the Court's rationale in Bolling is wrong, he does think the result was correct, as he explained in one of his famous "here's what I think" concurring opinions back in 2021. Instead of the Fifth Amendment, Thomas would rest the decision on the first sentence of the Fourteenth Amendment: the Citizenship Clause! The idea is that implicit in the idea of "citizenship" is a relatively "thick" notion of substantive equality. Another way of putting it would be that there is only one class of citizen here, not higher and lower classes. I am quite fond of the idea, not least because, to my knowledge, the first person to advance this kind of "thick" reading of the Citizenship Clause was my grandfather, Charles Black. And, as we'll see in a moment, this is not far off from how I would express the true principle of Bolling v. Sharpe myself.

Today's decision, however, reveals a problem with the way Thomas has constructed the theory: the Citizenship Clause only applies to citizens. And if that is the only source of the federal government's obligation to treat people equally, then it follows, or it might follow, that it has no such obligation when dealing with non-citizens. In principle, if Thomas is right, then the federal government could go so far as to expressly exclude immigrants from sub-Saharan Africa, avowedly because of the color of their skin. This is actually a big part of why many legal scholars (to say nothing of the judges of the Warren Court) are skittish about switching the textual hook for Fourteenth Amendment human rights law from Due Process to Privileges or Immunities: the latter protects the privileges or immunities of citizens, while the former protects all persons.

This problem is not insurmountable, particularly at the state level. My grandfather expresses it directly, in Structure and Relationship:

The same reluctance, judicial and extrajudicial, must arise when one puts forward any line of reasoning based on the sheer status of citizenship. To this I would reply, shortly, that there seems to me few relational inferences better warranted than the inference that the national power over aliens as such is paramount, and that the states may not in general take any action against them as aliens. They are admitted by Congress. They reside where Congress (subject in this, as in all other matters, to such constitutional restrictions as Congress is under) says they are to reside. They stay here by national permission, on such terms as the nation imposes, or chooses not to impose. They are to be naturalized when and as Congress provides. Our relations with them vitally concern our foreign relations and our foreign commerce. That states may refuse them certain political privileges reasonably to be reserved for residents of more certain permanency and attachment, such as voting, may consist with their dominant relation with the national government. But that relation seems to me an entirely satisfactory ground for a general doctrine of national constitutional preemption, when it comes to most state discriminations against them.

The problem for our purposes is that, in denying the power of states to act against aliens as such, he is affirming the power of Congress to do so. And of course on some level it must be true that Congress has powers over aliens that states do not, beginning with the power to decide when and whether to admit them. (The origin of this power is slightly obscure, for there is no express power over immigration as such. In my view, and I think also my grandfather's based on the passage above, it comes from the power to regulate "Commerce with foreign nations," for commerce includes the movement of persons as well as of goods. See Gibbons v. Ogden (1824) (commerce includes navigation); Caminetti v. United States (1917) (upholding a rather creative application of the Mann Act). Of course Clarence Thomas cannot say that the federal power over immigrants comes from the Commerce Clause, of which he generally wants to take an extremely restrictive view.)

But while Congress necessarily has some power to act upon aliens as such, those powers are not arbitrary or unlimited. They are, as my grandfather says, subject to constitutional restrictions as Congress is in all things. The First Amendment's Religion Clauses, by their terms, apply to congressional action. Thus Congress should no more be able to prohibit the admission as immigrants of, say, Baptists, than it is able to prohibit the travel of Baptist citizens across state lines. (From this it follows that Trump v. Hawaii (2018) is wrongly decided, and monstrously so.) But nothing expressly forbids the federal government from discriminating on the basis of race. If that principle is rooted in the Citizenship Clause, as Thomas would have it, then how exactly do we avoid the conclusion that Congress can exclude aliens because they have dark skin?

The answer, I think, lies in the ethical modality. This, recall, means argument from constitutional ethos, or character. The basic point, then, is that while the Equal Protection Clause itself only limits the states, it tells us something about the character of our entire system of government. The Clause is nothing less than a rejection of the principle of white supremacy. Hell, the whole Fourteenth Amendment, and for that matter the whole trilogy of Reconstruction Amendments, is a rejection of white supremacy, and an embrace of the principle of natural human equality as expressed in the Declaration of Independence. "Yes," these amendments can be read to say, "we really did mean that, and if we didn't back then, we do now."

And I think it simply must be understood, in virtue of those three amendments, and of the struggle that produced them, that our entire system of government has this egalitarian character. That spirit is not limited to the specific provisions of the Reconstruction Amendments; rather, it suffuses the entire thing, and must be read back into the earlier provisions as well. That they did not have this character when they were first written is no obstacle, except as to a handful of specific provisions (like the Fugitive Slave Clause) that are therefore understood to have been annihilated by the abolition of slavery. As Frederick Douglass told us in the days before the Civil War, there was very little in the actual text of the antebellum Constitution that precluded reading it as an egalitarian document, a GLORIOUS CHARTER OF LIBERTY as Douglass would put it. Whether or not it was correct to read it that way before the War, it is certainly correct now, in the wake of Reconstruction. To the extent that the original understanding of provisions written in 1789 or 1791 is in conflict with this spirit of liberty, that earlier understanding has simply been supplanted.

What provision of the Constitution, then, is offended when the federal government discriminates against aliens on the basis of race? Wrong question! What is offended is not any specific provision, but the Constitution itself, its essential character. Argument from ethos is simply not rooted in specific provisions: if it were, it would be textual argument. Of course it is the text that tells us what the spirit of the Constitution is. But the entire premise of ethical argument is that this character has legal consequence even beyond those specific provisions. The Reconstruction Amendments express an ethos of equality. For all their majesty, however, they are only a partial expression of that ethos, just as the Bill of Rights was only a partial expression of the ethos of limited government.

This is why, as Bolling said, it is "unthinkable" that the federal government would not labor under the same obligation of nondiscrimination as the states. Thomas correctly observes, citing Michael McConnell, that there are plenty of restrictions in our Constitution that apply only to the states and not to the national government, or vice versa; the limits on the states' power over aliens is a nice example. But the rejection of white supremacy is not like this. It is not about the way that different powers have been divvied up among the different organs of government: it is, rather, a defining quality of the entire system of government. What is truly unthinkable is that the very same instrument – the Constitution – that rejects white supremacy in the Reconstruction Amendments could also create a national government that is, or could be, white supremacist.