The Attractive Non-Sequitur of Democracy and Distrust

by JC Martinez

When it comes to interpreting the Constitution, there is a critical and possibly irresolvable dilemma which lies at the crux of countless arguments: should justices remain rigidly faithful to the original intent of the document’s writers at the risk of being anachronistic, or should they make substantive value choices at the risk of encroaching upon the legislature’s right and duty to represent the will of the people? John Hart Ely, the late, pathbreaking scholar of constitutional law, famously rejected this stubborn question as a false dichotomy. In his pivotal work Democracy and Distrust: A Theory of Judicial Review, Ely posits a third, middle approach to judicial review oriented toward reinforcing representative democracy, advancing a thesis so original that when the sentient student of constitutional law first grasps its thrust, their heart skips a beat in response to what seems like the light of an escape route from the foregoing dichotomy between two undesirable jurisprudences: first, what Ely calls clause-bound interpretivism, the strict strand of originalism woefully unable to make neither heads nor tails of the document’s open-ended provisions, and, second, what Ely calls non-interpretivism (and what might crudely be termed ‘living constitutionalism’), unsatisfactory in its rank inability to explain why one collection of substantive values should be given preference over any other. (These terms will be further clarified shortly.)

Although Ely’s theory is initially attractive, once the impression of the ‘golden mean’ fallacy fades, reservations about his argument arise, and along multiple fronts. These include the legitimacy of his conception of the Constitution, whether his theory of judicial review validly or necessarily follows from his conception of the Constitution as he establishes, and whether the theory ultimately escapes the substantive value judgments he seeks to avoid. With respect to the power it affords justices, Ely’s approach has simultaneously been criticized as too broad and too narrow. I will end by evaluating these arguments and making a closing note on the nature of Ely’s theory. 

First, an explanation of Ely’s argument and terms is needed. The most natural way to start such an account, in accordance with the ordering of the chapters in Democracy and Distrust, is to begin with Ely’s critical analysis of the two alternatives to his middle approach and the reasons for which he argues they ultimately fail. The more general dichotomy is that of interpretivism versus non-interpretivism. The former espouses the credo that “judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution,” while the latter holds “the contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document” (1). The appeal of interpretivism is that it simultaneously supports judicial review but is not vulnerable to the criticism of being undemocratic. Clause-bound interpretivism, a more restrictive subset of interpretivism, contends that “the various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language,” and by an unwillingness to insert significant “content from outside the provision,” only allowing for “whatever interpretive help the legislative history can provide” (12-13).

Things get trickier, however, when one considers that provisions in the Constitution run the gamut from precise to incredibly open-ended. Ely compares, for instance, the specific requirement that the President be at least thirty-five years old with the Eighth Amendment’s prohibition of cruel and unusual punishments, whose imprecise language (consider that it did not specifically ban, say, flogging) seems written with the intention of providing at least some degree of interpretive breathing room. Even more jarring would be to consider the utter generalities of the Ninth Amendment. 

The problem, therefore, is that the clause-bound interpretivist is caught in a stalemate. They are unable to refer exclusively to the text, for the text’s open-ended provisions point to objects external to the document itself, and yet are unwilling, by definition, to grapple with what those objects may be. The mildly clever clause-bound interpretivist, if unsatisfied with this internal tension, might submit in defense that the tension evaporates if the open-ended text of, say, the Ninth Amendment is simply assumed to protect rights without which the enumerated Bill of Rights’ guarantees cannot accurately be said to exist. But what in the text justifies that interpretive move, which is arguably as arbitrary and substantive as any, and could not, again, find clear justification in the text (outside of question-begging arguments)?

The incompleteness of the clause-bound interpretivist’s account then provides the motivation to consider extratextual sources from which a prudent judge might draw appropriately fundamental values, consistent with the non-interpretivist’s approach. In Ely’s third chapter, he analyzes leading contenders, including the judge’s own values, Natural Law, neutral principles, reason, tradition, consensus, and predicting progress. His analysis levels a brutal attack on their legitimacy, showing all seemingly plausible sources to be so grossly insufficient that the reader feels like a sailor whose ship has been smashed on the rocks and is grasping for the wooden plank of Ely’s novel theory as a final saving grace.  

Having shown both clause-bound interpretivism and non-interpretivism to be both severely lacking, Ely advances his middle theory of judicial review, which importantly, is necessarily contingent upon a conceptualization of the Constitution as a fundamentally procedural document, and not as meant to protect particular substantive values. Ely writes “that the original Constitution was principally, indeed [he] would say overwhelmingly, dedicated to concerns of process and structure and not to the identification and preservation of specific substantive values” (92). Ely encourages the skeptical reader to read a few pages of the Constitution, as it would become clear that it was fundamentally procedural. 

Accordingly, Ely suggests that the judiciary adopt a role akin to that of a referee. Such a judge would leave substantive value judgments to the legislative branch and merely attend to the proper functioning of the process of representative democracy, guarding against two key threats: one, those in power blocking the channels of political change, and two, representatives denying protection to politically weak minorities that groups have it, especially for reasons of hostility. Ely thus bypasses the problem of non-interpretivism by leaving substantive value choices to the legislature, and he plausibly but perhaps not conclusively ties the open-ended clauses to the theme of reinforcing democracy, getting around the problem of the clause-bound interpretivist. 

To the extent that the measure of what a document primarily concerns is to be graded by the number of words or clauses written in the document about that object, so far so good. To debate that point would simply be a linguistic distraction that focuses on what it means for a document to be “primarily concerned” with one thing. However, Ely’s argument is precisely that because the Constitution is a fundamentally procedural document, judges should, when deciding how to interpret the Constitution’s open-ended provisions, be led predominantly by procedural considerations—namely, participation-oriented, representation-reinforcing tenets core to representative democracy.  

So, there is an immediate soft spot here. Though I conceded that the Constitution can be said to be primarily concerned with procedure, depending upon how one wishes to define what it means for a document to be ‘primarily concerned’ with something, an unjustified leap appears to have been made; why should judges interpret open-ended provisions predominantly looking to the procedures of representative democracy? This conclusion relies on a conception of the Constitution as primarily concerned with procedure not just in the conceded sense that more clauses were written about procedure, but in the more expansive sense that the document’s interpreters should look first and foremost to procedure. But this second, larger sense of what it means to be ‘primarily concerned’ with something has not been demonstrated or conceded, and so should be read as asserted. 

To illustrate what I mean, consider a brief counterfactual. Imagine that, growing up, my brother and I sketched a paper outlining who does which chores around the house. Is the document primarily concerned with chores—about which more words are written—or with the unmentioned fairness as a substantive value which the document’s procedures seek to protect? (Or, if I had more chores around the house, the substantive value may not be fairness but the responsibility that should—‘should’ implies a value choice—come along with growing older.) That’s a semantic point, as I have said. If my brother and I had a dispute, however, and my mother stepped in, would her mediation be primarily concerned with the underlying substantive value or with chores? Clearly, it is not chores simply because more words were written about them. 

Moreover, it hardly seems as though Ely’s approach eliminates substantive value judgments by counseling a judge to only concern themself with reinforcing representative democracy. How might a judge decide on voter identification laws without making substantive value choices? Why, without appealing to substantive value, is it not the case, as John Stuart Mill notoriously advocated, that highly-educated individuals receive disproportionately weighted votes? It hardly seems plausible that such a question could be answered without appealing to substantive values like fairness. 

Such considerations give credence to the concern that, under Ely’s theory, judges are given too much power. The way in which justices are empowered involves giving them a mandate to strike down the products of an electorally accountable legislature, ironically, in the name of representing democracy. Also, considering that these decisions, as I have submitted, are often difficult to disentangle from substantive value judgments, the result of adopting Ely’s approach may simply be to produce a further emboldened judiciary who, under the guise of advancing democracy, would then be freed from having to justify—by way of appealing to an (at least semi-legitimate) extra-Constitutional source—the substantive value judgments they inevitably must make but have claimed to forego. It is not hard to see how this could serve as a Trojan horse for judges’ personal predilections.  

Those who criticize Ely’s theory as one that renders justices unable to check the tyranny of the majority, on the other hand, miss something key to the theory, the discussion of which leads to the appropriately final remarks of an article of this scope. Tyranny of the majority occurs when the majority exclusively pursues its own goals at the expense of politically weak minority groups. Ely’s theory expressly prohibits tyranny of the majority by assigning to the judiciary the role of guarding against acts of law which make it clear that the minority’s interests are not being taken seriously, in large part by prohibiting laws motivated by prejudice, which fall disproportionately heavily on minorities or decrease their prospects for meaningful political participation. An invidious law can be passed, but it will be an invidious law passed of, for, and by the people as a whole, and not apply disproportionately to minorities. And it is telling that, for Ely, the judiciary carries out this role in the name of representative democracy. This can only be implied to mean that Ely’s conception of representative democracy, as an ideal worth striving for, is not one of rank majoritarianism or of one faction oppressing another, but of a system in which equality of political opportunity and the dignity of its citizens are endogenous to the theory.

And this is revealing. It is generally thought that the American political system is a confluence of two great forms of government: representative democracy, which prioritizes the self-rule of the people via elected representatives, and constitutionalism, which emphasizes the necessity of protecting fundamental substantive rights (even if an electoral majority votes the other way). I suspect that Ely is not, as it might ostensibly seem, rejecting this characterizing framework, but rather precisely applying it insofar as the constitutional principles are internal to his conception of representative democracy to begin with. Ely’s theory, then, is not just that of a pure representative democrat, but also that of a constitutional democrat. The presence of this duality reinforces the inevitability of substantive value choices justices must make, again demonstrating that Ely’s argument, while intuitively attractive and useful to understand, is ultimately ineffective in its main aim of resolving the crucial dilemma initially posed.

The U.S. Criminal Justice System Needs to Start Treating Children Like Children

by Bianca Ortiz

On any given day, tens of thousands of incarcerated children are forced to eat, sleep, and learn in  juvenile detention centers and adult prisons across the United States. 

News stories of children being charged for harmless behaviors have become increasingly publicized, with examples ranging from not completing homework and participating in cafeteria food fights to stealing 25-cent candy. While there are child offenders who commit more serious crimes, they all deserve fair trials and sentences that take into account their young age.  

Research from Stanford University shows that children have difficulty understanding the long-term consequences of their decisions and lack cognitive control during emotional situations. Experts also link moral conscience to the prefrontal cortex, which does not fully develop until adulthood and is often delayed in children who experience trauma as a result of being victimized early in life.

When a child is charged with a crime, a court will decide whether they will be tried as a child or an adult based largely on the severity of the crime. Those with less serious offenses are treated as children and have their cases heard by juvenile judges that have the power to remand them to a juvenile detention center while those treated as adults may be remanded to an adult prison with protective custody.

Meanwhile, parents of child offenders are forced to foot the bill for nightly housing in juvenile detention centers. Laws requiring these parental payments were meant to avoid burdening taxpayers and to encourage parents to keep their children out of trouble. However, the reality is that most of these parents are low-income and incapable of paying. Although some states have decided to end this practice, laws about charging parents are highly decentralized and can vary from county to county, creating large disparities.

To combat the stress of incarceration on young children and their parents, both New York and New Jersey have recently passed legislation to raise the age at which children may be tried in court as adults. However, the fact remains that in 22 states, there are no minimum age requirements for transferring a child into adult criminal courts, meaning that a child of any age in those states could end up in an adult prison for the rest of their life.

The U.S. Supreme Court has acknowledged the issue of excessive sentencing for child offenders in landmark cases Roper v. Simmons (2005) and Graham v. Florida (2009), in which the Court reversed decisions to impose the death penalty on a juvenile offender and to sentence a minor to life without parole for a non-homicidal offense, respectively. The Supreme Court opinions to reverse these prior holdings were made on the grounds that the childrens’ original sentences violated the U.S. Constitution’s Eighth Amendment prohibition on “cruel and unusual punishment.”

Rights for juvenile offenders were expanded further by the Supreme Court in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016). In Miller v. Alabama, Miller appealed his sentence of life in prison without parole for a homicidal offense on the grounds that punishing a 14-year-old for the rest of his life was cruel and unusual. In a 5-4 decision, the Supreme Court reversed his sentence, with the majority opinion concluding that life without parole is a disproportionate punishment for a juvenile, thus affirming that sentencing for child offenders must be treated as constitutionally different from adult offenders.

This decision was reaffirmed in Montgomery v. Louisiana, in which Miller v. Alabama was used as precedent to assert that sentencing schemes that impose mandatory life sentences onto juvenile offenders are unconstitutional. The Court held a 6-3 decision in favor of Montgomery, stating that the Miller decision applied retroactively to Montgomery’s case. 

In the majority opinion, Justice Kennedy wrote, “In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, […] prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”

Montgomery, who is 73 years old but was just 17 years old at the time of his crime, is now eligible to be considered for parole. His case has also opened the door for other cases of child offender sentencing decisions to be re-evaluated based on this new standard. Thus far, Montgomery v. Louisiana has allowed more than 500 offenders to be released on parole. 

However, the Supreme Court ought to recognize the capacity for rehabilitation of child offenders beyond the scope of life sentences. Even short stays in juvenile centers can have a profound negative impact on children due to harsh living conditions. For example, two juvenile correctional facilities in Wisconsin were recently hit with a class-action lawsuit in J.J. v. Litscher (2017) for keeping children in solitary confinement, spraying them with mace, and denying them therapeutic programs. 

Confinement in juvenile centers has become particularly harmful during the COVID-19 pandemic, which has caused centers to cut visits from families and friends to prevent the spread of the virus, leaving thousands of incarcerated young people feeling extremely isolated.

Despite clear issues, some have argued that punishing minors will serve a positive long-term function by teaching children at a young age that their actions have consequences. The problem is that not all children are subject to the same punishments. 

While white children make up the largest share of juvenile detainees in 45 of 50 states in the U.S. as of 2019, children of color — particularly African American children — are disproportionately represented in juvenile detention centers and are referred to juvenile courts at a higher rate than their white peers. This can be attributed to a number of factors, the most troubling of which include racial bias from judges and prosecutors.

In 2018, the Senate reauthorized the Juvenile Justice and Delinquency Protection Act to update national standards on the judicial treatment of minors. The bill, introduced by Senators Chuck Grassley (R-IO) and Sheldon Whitehouse (D-RI) aims to create restrictions on locking children up for statute offenses (eg. skipping school or running away from home), reduce racial disparities in the juvenile justice system, and support alternatives to incarceration for nonviolent offenders. Proposed alternatives include behavior management programs, problem-solving courts, street and home-based services, and drug abuse prevention and education services.

Experts in the fields of psychology and constitutional law have made steps towards affirming that children are not as capable as adults of understanding the consequences of their actions. Now, federal, state, and local laws must reflect this truth and discontinue practices that are overly punitive and insufficiently rehabilitative towards child offenders who cannot yet fully appreciate the weight of their transgressions.

Tyranny of the Minority: The Unconstitutionality of the Filibuster

by Madeleine Polubinski

In recent years, congressional gridlock has focused national attention on the Senate’s filibuster. The filibuster is the process by which a minority of senators delay or prevent a vote on legislation by speaking as long as possible on the Senate floor, until three-fifths of the Senate invoke cloture, which moves the chamber to a vote. While the debate over the filibuster typically centers on its impact on governance, a different debate has been simmering among legal scholars for years: is the filibuster even constitutional? After all, the filibuster is not authorized in the Constitution, nor is it expressly prohibited. I argue that the filibuster in its original, purest sense is constitutional, but that is not the filibuster we have today. In its current form, the filibuster is unconstitutional because it disrupts the Senate’s legislative process as outlined in the Constitution and has feeble historical support.

The text of the Constitution and the history of Congress suggest that the filibuster as a debate-enhancing mechanism is constitutional. As legal scholar Michael Gerhardt argues, “the filibuster derives its principle authority from the Senate’s express power to design its own procedural rules to govern its internal affairs.” At its core, the filibuster regulates internal procedure, and thus the supermajority requirement for cloture is well within the Senate’s power. 

Many scholars argue that cloture requirements reflect many of the principles underlying the Senate. Despite its potential for abuse, the filibuster, fundamentally a mechanism to continue debate, embodies the Senate’s deliberative nature. Although the Constitution makes no mention of a filibuster, the process has a long history dating back to 1806, which some argue proves its legitimacy. Furthermore, the filibuster may enhance protections of minority interests and promote consensus, producing more agreeable and thorough legislation.

However, the filibusters’ debate-promoting potential is inextricable from, and ultimately overshadowed by, its obstructionist implementation. For more than a century, senators have exploited cloture rules to stall Congress or block legislation altogether. Filibusters have become less about debate and more about grandstanding for media attention or simply killing time to stall a bill. After exhausting relevant topics, which are rarely genuine efforts for further deliberation, speeches often devolve into unrelated topics that range from discussions of salad dressing recipes to recitations of each states’ voting laws. 

At best, today’s filibuster sees senators belaboring well-known objections to bills. At worst, it shuts down debate and stalls the Senate, delaying or blocking legislation. In an even more flagrant deviation from the filibusters’ supposed deliberative function, filibustering today usually does not even require debate. “Silent filibusters” allow senators to block legislation without debate by merely voicing their intent to filibuster. Silent filibusters are a complete perversion of the filibusters’ deliberative potential and prove that the process functions as nothing more than a three-fifths majority requirement for regular legislation.

When considering the filibuster as a supermajority requirement for regular legislation, it is clearly unconstitutional.2 As a textual matter, the Constitution appoints the Vice President as the tie-breaking vote in the Senate, providing that they “shall have no Vote unless [the Senators] be equally divided.” This provision implies that the Senate must pass regular legislation by a majority vote. The Framers of the Constitution, while concerned with tyranny of the majority, generally favored majority rule except for certain cases. In fact, the specification of supermajority requirements in the Senate elsewhere in the Constitution, like for the ratification of treaties, indicates that the Framers never envisioned a supermajority rule for regular legislation.1

The Framers, famously wary of tyranny of the majority, devised a system of governance to protect minority rights and promote deliberation without a filibuster. The Federalist Papers outline how checks and balances, federalism, and other structural mechanisms prevent abuses of power, suppression of minority interests, and rash government action. The Framers clearly feared tyrannical majorities and an overly powerful legislature. However, even they deemed a supermajority cloture requirement unnecessary, undermining the argument that the filibuster enhances the Senate’s intended function.

Furthermore, the filibuster lacks a firm historical foundation to support its constitutionality.3 A high-minded commitment to debate did not motivate the filibuster. Rather, the Senate accidentally opened the door for it in 1806 because they deemed the original debate-ending mechanism unnecessary. Even then, no Senator exploited this mistake until 1837, when rising partisanship fostered more obstructionist tactics. 

Proponents of the filibuster claim that the Senate effectively affirmed the constitutionality of its cloture rules during every filibuster or cloture motion since the 1800s. However, the persistence of a practice does not legitimize it. This is especially true for a practice like the filibuster, which inherently impedes revision, violating “anti-entrenchment,” a principle that forbids a past legislature from binding a current legislature to a rule or practice it would otherwise reject.4 Because a supermajority is necessary to eliminate the supermajority requirement for cloture, a formal change to Senate rules is virtually impossible because minority senators have no incentive to cede their power.

While the filibuster is theoretically constitutional, its current usage violates the Constitution because its obstructionist function has overtaken its debate-enhancing potential. Rather than promoting debate, it effectively imposes an unconstitutional supermajority requirement on the Senate to pass virtually any piece of legislation. Ultimately, the filibuster’s problems have arisen out of its implementation. As political parties solidified and polarization increased, so did the incentives for politically motivated obstruction. If senators genuinely used the filibuster to continue productive debate and moved to a vote after sufficient discussion, it may pass constitutional muster. However, today’s divisive political climate and the long-standing violation of those standards make it impossible to return to old norms. Unless the Senate reforms the filibuster to curb its obstructionist implementation and restore its deliberative function, it must be abandoned on constitutional grounds.


1 The three-fifths majority requirement only applies to regular legislation. The Senate can pass bills related to government spending and fiscal policy through the budget reconciliation process, which allows bills to pass with a simple majority. However, all legislation unrelated to the budget requires a supermajority because of the threat of a filibuster.

2 More issues of constitutionality arise when the filibuster is used to prevent presidents from appointing officials and judges to certain positions. Because the Constitution grants this power of appointment to the President with “the Advice and Consent of the Senate” without specifying a supermajority requirement (as it does in other provisions), a filibuster that effectively imposes a supermajority requirement and hinders the President’s constitutionally defined power is likely unconstitutional. However, the filibuster for presidential nominees has already been eliminated, so this issue is moot.

3 While not central to the question of constitutionality, the filibuster’s history is ugly. Southern Senators repeatedly exploited the filibuster to preserve Jim Crow laws and block civil rights legislation. Far from protecting minority rights, the filibuster enabled a congressional minority to preserve a brutally racist system and prevent the mitigation of racial minorities’ oppression.

4 While the anti-entrenchment principle is not explicit in America’s founding documents, it impedes governance and is commonly invoked when discussing legislative procedure.

Affirmative Action Admissions Regimes are Unconstitutional: Strict Scrutiny Should Mean Something

by Myles McKnight and Benjamin Edelson

Harvard’s affirmative action saga continues, or so we hope. After losses in the Federal District Court and the First Circuit Court of Appeals, the non-profit group seeking to do away with Harvard’s race-obsessed admissions regime has filed a Petition for Writ of Certiorari in our Nation’s highest tribunal. Students for Fair Admissions petitions the Court to consider overruling Grutter v. Bollinger, the narrow 2003 decision which held that the University of Michigan Law School’s race-conscious admissions program was constitutional because it satisfied strict scrutiny. Grutter’s loose reasoning leads us to think that the Court should overrule, so we’ll canvass just one reason for believing so here.

Whatever you make of the merits of Harvard’s affirmative action program, there are constitutional questions that lurk beneath the operation of any state-sponsored policy which prescribes differential treatment on the basis of race. No one denies this. Policy is one thing, constitutionality another. And when government policy (or the policy of institutions that receive government funding, like Harvard) makes racial classifications, reviewing courts must apply the test of strict scrutiny to determine whether or not those policies meet constitutional muster.1 For the unfamiliar: A race-conscious policy satisfies strict scrutiny if it 1) furthers a compelling (i.e. necessary) state interest, and 2) is “narrowly tailored” such that the policy minimizes, to the extent possible, differential treatment on the basis of race. If a policy discriminates on the basis of race only to the degree necessary to meet a compelling interest, it stands the test of strict scrutiny. 

Harvard argues that its policy meets this standard. We think that’s wrong. In fact, we don’t think an affirmative action regime like Harvard’s can ever satisfy strict scrutiny for reasons we’ll present below. But first, some preliminaries. 

The compelling interest claimed by the law school in Grutter was the procurement of the educational benefits that stem from having adequately diverse classrooms (what Justice Thomas calls “classroom aesthetics”).2 In fact, of the interests historically offered as justifications for affirmative action admissions practices, the Court has held that this is the only one that can be compelling.3 Before turning to whether or not this interest actually is compelling, we should point out that there is serious reason to doubt that this interest is truly the one that animates affirmative action policies like Harvard’s. 

Let’s grant, for a moment, that the end to which the policy is tailored is the procurement of the educational benefits that stem from classroom diversity. (The alleged compelling interest is not racial diversity qua racial diversity, but rather the educational benefits that stem from that diversity). 

Why limit the diversity to racial diversity? If the interest in the educational benefits that stem from racial diversity is indeed compelling, presumably there are other forms of diversity that would produce similarly significant, and similarly valuable, educational benefits. And those would be compelling too, right?4 

We can, in fact, think of other diversity domains wherein composition shifts would shock the academic status quo at elite universities just as much as or even more than adjustments in racial composition, thereby providing educational benefits at least as tangible and significant. Here are a few: political, ideological, and religious diversity among professors and students. Nevertheless, it is no secret that evangelical Christians and conservatives go dramatically underrepresented at institutions like Harvard or, say, Princeton. Can it really be that the educational benefits that stem from racial diversity are compelling interests while the educational benefits that stem from political, ideological, and religious diversity are not? Indeed, in the context of academe, where the cause of truth-seeking through academic discourse is advanced, one would think that the most prized form of diversity would be ideological. There can be little doubt that healthy ideological diversity would have at least as tangible an impact on the ability of students to navigate an ideologically, racially, and religiously diverse world as racial diversity would.

All of this should give us real pause before buying into the notion that the educational benefits that stem from racial diversity are the real interests at play. To us, it seems more plausible that the interest is something akin to the following: the rectification of societal ills and tragedies of minority underrepresentation. We think that this is a laudable interest, but it is not the one once alleged by the University of Michigan Law School or the one alleged by Harvard today. Moreover, the fulfillment of this specific interest by affirmative action was explicitly thrown away by Justice Powell in Bakke.

If you disagree with us so far, you might be tempted to respond: “Ah, well, conservatives and evangelicals are not historically marginalized groups. It’s wrong to analogize intellectual and religious diversity to racial diversity in this way!” Well, you’ve proved our point: Your interest lies in the rectification of historic societal ills.  

Let’s leave this aside. As a matter of fact, we do have reason to conclude that the asserted interest of procuring educational benefits is not the one that the Court should evaluate here. This is because the phrase “educational benefits that flow from racial diversity” is actually a gross misstatement of the more precise interest motivating Harvard’s scheme. We construe it as follows: the procurement of the educational benefits that stem from racial diversity, consistent with the maintenance of prestige and the general standards of the institution.

In our view, that second clause (“…prestige and general standards of the institution”) is a necessary component of the true interest to be weighed. Before explaining why this is the case, we should first take care to note that the maintenance of institutional prestige couldn’t possibly be a compelling interest. The compelling interest doctrine, as applied to race-conscious policies, provides the courts with a mechanism to smoke out illegitimate racial differentiation in all but situations of total necessity; “compelling” does not mean “preferable” or “laudable.” As historically applied to race-conscious policies, strict scrutiny has rejected interests even as important as the “best interests” of children. Race-conscious policies have otherwise typically stood only when they serve interests of such immense necessity as national security, the functionality of government, and safety from violence.5 In any case, should you prefer a looser conception of “compelling interest” than we do, it’s still immensely difficult to see how the maintenance of institutional prestige could ever rise to the qualification of compulsory. To quote Justice Scalia: “If that is a compelling state interest, everything is.”

So, if we’re correct in construing the relevant interest as we do, an affirmative action scheme like Harvard’s cannot pass the test of strict scrutiny. And if that is the case, it is unconstitutional. So, why are we correct?

Suppose you were devising an admissions scheme designed to secure the educational benefits that stem from classroom diversity. You’re not interested in prestige or maintaining the “high standards” for admission that make your university so elite – you know that those interests couldn’t be compelling. So, how do you do it? Your policy will need to be narrowly tailored, meaning it will have to be as race-neutral as possible while still increasing the diversity of your classrooms. If your interest lies only in the educational benefits that flow from increased racial diversity, perhaps you’ll come up with a lottery system so that your admitted class will be more reflective of a diverse applicant pool. Or, maybe you’ll adopt an approach to evaluating applications that gives less weight across the board to factors that, on average, tend to cut against the admissions chances of disadvantaged minority students (e.g. SAT scores). This would substantially reduce the disadvantage faced by applicants from historically marginalized communities. Because reduced consideration of such factors would apply to all applicants, you might not have to consider racial background at all.

But instead, you opt for a scheme that deliberately favors applicants from some minority groups by applying different standards of admission to students on the basis of their racial identities.6 Anyone can see that that scheme is not narrowly tailored to the interest in the way that the aforementioned alternatives might be; there are more race-neutral ways to attain sufficient classroom diversity than this scheme. Indeed, such a race-conscious admissions scheme can only be narrowly tailored if the interest itself is adjusted to accommodate the claim of narrow tailoring. Thus, an affirmative action admissions regime like Harvard’s, which applies different standards to different races in order to produce classroom diversity without sacrificing any degree of prestige, is only narrowly tailored in the context of an interest which includes the maintenance of the prestige secured by exclusive admission standards. And the interest in prestige and exclusivity, as we have suggested, cannot be compelling.

Importantly, we haven’t passed judgment on the policy merits of affirmative action. We believe that the rectification of societal ills and tragedies of minority underrepresentation are important and laudable interests. They are, moreover, perfectly constitutional interests. However, this does not mean that the Constitution gives wide latitude to policymakers who wish to realize these aspirations by devising policies that prescribe differential treatment between races. Rather, our Nation’s reckoning with its painful history of racial discrimination has led to the application of a rigorous legal safeguard designed to smoke out all but the most indispensable considerations of race. That safeguard is strict scrutiny. For a policy that discriminates between individuals on the basis of race to survive a constitutional challenge, it must do battle with strict scrutiny. The sort of policy we address here loses that battle.


1 Adarand v. Peña, 515 U.S. 200 (1995)

2 Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325 (2003)

3 See Justice Powell’s opinion in Bakke. Bakke, 438 U.S. 265 (1978)

4 It’s true that many schools, including Harvard, consider certain other forms of diversity during the admissions process (Harvard also considers geographic diversity, for example). 

5 From Justice Thomas in Grutter: “Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity.’ Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra, at 521 (Scalia, J., concurring in judgment).”

6 That this is the mechanism by which affirmative action policies achieve their ends is not a subject of debate.

This article was edited on April 27, 2021.

Making the Case for Trump’s January 6th Speech as Incitement

by Beck Reiferson

On January 12th, Alan Dershowitz, Professor Emeritus at Harvard Law School and one of the nation’s most prominent attorneys, published an op-ed in the publication Newsweek in which he argued against the second impeachment of President Donald Trump on constitutional grounds. He reasoned that Trump’s false statements about the legitimacy of the 2020 election, though “deeply upsetting,” did not meet the standard the Supreme Court set for “incitement” in Brandenburg v. Ohio (1969). He wrote that instead of constituting incitement, Trump’s “volatile words fell plainly on the side of political ‘advocacy,’ which is protected speech.” Dershowitz then claimed that since Trump’s statements were constitutionally protected, they could not be sufficient grounds for impeachment, since First Amendment-protected speech does not constitute “Treason, Bribery, or other high Crimes and Misdemeanors”—the grounds for impeachment enumerated in Article II, Section IV of the Constitution. I will argue that, though Dershowitz is right about constitutionally permissible speech being insufficient grounds for impeachment, Trump’s statements on the morning of January 6th do meet the standard for incitement as laid out in Brandenburg.

In Brandenburg, the Supreme Court held that “freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” As the word “imminent” indicates, the only statements Trump made that could potentially constitute incitement of the insurrection at the Capitol are those he made in a speech on January 6th, just before some of his followers stormed the building. The claims he repeated for months about widespread election fraud are irrelevant to the current discussion. Reformulating the Court’s words in Brandenburg makes clear what criteria Trump’s statements in this speech must meet in order to rise to incitement: they must have advocated for people to break the law, they must have been likely to cause illegal action, and Trump’s goal in uttering them must have been to provoke this illegal action. Let us examine each of these criteria in turn. 

Though it is true that Trump did not explicitly ask his followers to raid the Capitol in his January 6th speech, that does not preclude the possibility that he still advocated for the use of force; indeed, a close examination of his speech reveals several instances in which he employed coded, implicit appeals for those in the audience to take matters into their own hands to reverse the results of the election. He asserted, for example, that “We will never give up, we will never concede… You don’t concede when there’s theft involved,” implying that taking “no” for an answer was out of the question. He also thanked the audience after they broke out into the chant, “Fight for Trump!” and then immediately brought up the military and the Secret Service—two organizations closely connected with the use of force. Taken in conjunction with one another, these statements, along with many other similar ones that pervade the rest of the speech, express the sentiment that the ends of delivering the election victory to its ‘rightful’ winner justify whatever means are necessary to secure that end.

Next we turn to whether or not Trump’s rhetoric was “likely to incite or produce such [illegal] action.” A consideration of the makeup of the crowd in attendance and the contents of Trump’s speech points to a clear affirmative response to this question. Those in attendance in Washington D.C. on January 6th had traveled from all across the country in order to protest the certification of the Electoral College; just by virtue of having arrived in the capital, they had already demonstrated a profound willingness to—and even a commitment to—engage in extreme action in order to keep Trump in office for another four years. Their presence in Washington D.C. indicates that they felt deeply aggrieved by false claims of election fraud and that they strongly believed in the righteousness of their cause. They were, put simply, the individuals most likely to resort to violence to achieve their desired ends. So when Trump set out to “lay out just some of the evidence proving that we won this election,” he lit a rhetorical match before the most flammable of audiences. And when he urged those in attendance to “fight like hell, [since if you don’t] you’re not going to have a country anymore,” framing the consequences of inaction as destroying “the integrity of our glorious republic,” he further convinced an already aggrieved crowd of the necessity of taking up extreme measures in order to prevent the certification of the Electoral College. He gave those listening an ultimatum: do whatever you can to keep me in power or live in an undemocratic country with an illegitimate leader who will do profound damage to many things you hold dear. By emphasizing to those most inclined to violence the importance of fighting the certification, Trump increased the likelihood of violence occurring.

Lastly, we must determine if Trump’s words were “directed to inciting or producing imminent lawless action”—that is, if incitement to violence was his goal. Questions of intent are always difficult to answer, and that is especially the case here given the absence of explicit calls to violence. There still, however, exists evidence that Trump wanted January 6th to unfold along the lines that it did. First, in an interview with radio host Hugh Hewitt, Republican Senator Ben Sasse said multiple White House officials had told him that “as this [the storming of the Capitol] was unfolding on television, Donald Trump was walking around the White House confused about why other people on his team weren’t as excited as he was… He was delighted.” If it is true that Trump was happy with the insurrection, this suggests that that was his desired outcome from the outset; it seems unlikely that he went from being opposed to violent insurrection in the morning then delighted by violent insurrection later in the afternoon. Trump hoping for violence all along would also explain his initial inaction when his followers broke into the Capitol: hours after the protests had devolved into violence, Trump still had not condemned his followers, instead doubling down and further encouraging the mob by tweeting that Mike Pence had “failed to protect our Country and our Constitution.” Such language demonstrates a lack of displeasure with the events that were transpiring.

It may thus plausibly be argued that Trump’s speech on the morning of January 6th meets the high standard for incitement that the Supreme Court set in Brandenburg. This renders moot Dershowitz’s point about constitutionally permissible speech being insufficient grounds for impeachment.