Insurrection and Black Political Participation
The Reconstruction Congress envisioned a comprehensive set of rights and structural protections in the Fourteenth Amendment to establish and preserve a multiracial democracy. The Fourteenth Amendment’s third section, the Insurrection Clause, may seldom have been enforced in recent memory, but it remains a vital part of the Amendment’s framework. The Insurrection Clause bars any state or federal government official who participates in a rebellion or insurrection after taking an oath to support the Constitution from serving in such a position again. In Trump v. Anderson, the Supreme Court was given a choice to either enforce the Insurrection Clause’s protection of Black political participation or condone insurrection. In keeping with its long tradition of anti-Black jurisprudence, the Court chose the latter.
The slave went free; stood a brief moment in the sun; then moved back again toward slavery.
- W.E.B. Du Bois
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Introduction
Consider, if you will, a nightmare world that never was—a trip into the Twilight Zone. In this world, on January 6th, 2021, Donald Trump’s insurrectionist mob was not stymied at the Capitol[1] but instead succeeded in capturing not only Congress’s chambers but its members, too. With hastily erected gallows,[2] the mob shifted the majority of both chambers to the extremist Right. Given the choice to join the dead or acquiesce to the mob’s demands, Mike Pence agreed to conduct proceedings to reject the electoral votes of Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, and Nevada, which would nullify their affirmative, democratic votes for Biden. Instead, they approved fake, insurrectionist electors’ votes for Trump.[3] The Supreme Court— asked to intervene by surviving Democratic members of Congress, refused to do so, citing the political questions doctrine over the blistering dissents of the Court’s liberal minority.[4] No one had time to say the quiet part out loud, though: America’s reactionaries once again violently deprived Black voters of their voice without meaningful resistance or examination.[5]
We have the luxury of living in a timeline where American democracy did not fall in a bloody autogolpe in January of 2021. Yet our accounts of the legal significance of the January 6th attack too often obfuscate the mob’s racist motivations.[6] Trump’s claims of voter fraud that stoked the mob were a blatant attack on the legitimacy of votes from Black population centers.[7] If only they had not counted those votes, he insinuated, the election would have gone the other way. Surely, his supporters should have taken that as a sign something was wrong.[8] We must take the white supremacy in Trump’s insurrection seriously. The suppression of Black political power was central to the January 6th attack, just as it was a central concern for the drafters of the Fourteenth Amendment.[9] If we are to seriously discuss the application of the Fourteenth Amendment, we must talk about race.
This Essay proceeds in three parts. Part I addresses the historical context of the Fourteenth Amendment. It examines the Amendment’s rights and structural and congressional power provisions as a coherent whole to illustrate their interrelatedness. Part II briefly addresses the legal flaws in the Supreme Court’s ruling in Trump v. Anderson,[10] which have already been covered in great detail elsewhere. Part III places this flawed opinion within a pattern of Supreme Court jurisprudence that undermines the Constitution’s protections for Black political power. That pattern runs contrary to the clear intention and plain meaning of the Reconstruction Amendments and their abolitionist drafters.
I. Historical Context of the Fourteenth Amendment
The Fourteenth Amendment arose out of American society’s failure to reconstruct itself in the wake of emancipation. The first incarnation of the Ku Klux Klan, which manifested as a rejection of Reconstruction, terrorized newly freed Black Americans.[11] Southern legislatures rushed through new laws designed to curtail the independence of formerly enslaved people by restricting homelessness (i.e., vagrancy), trespassing, and subsistence hunting and fishing.[12] These laws provided Southern police with tools to oppress, incarcerate, and harass newly free Black people. Former Confederates served in state governments and were even sent to represent their states in Congress.[13] Where the Radical Republicans saw the Thirteenth Amendment’s abolition of slavery as the beginning of Black participation in American society as free and equal citizens, the white establishment of the South resisted and sought to retain its supply of cheap and subservient labor.[14] Troublingly, moderates began to question the Thirteenth Amendment as the constitutional basis for congressional legislation meant to remedy these issues.[15] To quiet these doubts and preserve the legislative majority for Reconstruction, Congress adopted the Fourteenth Amendment.
The Fourteenth Amendment’s structure reflects Congress’s aim of addressing potential constitutional roadblocks to the Reconstruction project. Section One constitutionalized an abolitionist vision of citizenship and rights. It required the states to protect the lives and liberty of Black Americans.[16] Section Two ensured that any state seeking to disenfranchise its Black citizens would suffer a dramatic reduction in its political power within the federal government.[17] Section Three excluded men who had taken up arms to preserve slavery in violation of their oaths to the United States from any further official position in government.[18] Section Four undercut the Confederacy’s creditors and the slaver elite by barring any official action to compensate them for the financial losses they incurred in the service of white supremacy.[19] And Section Five gave Congress expansive powers to enforce these provisions.[20]
With its new powers, the Reconstruction Congress proceeded to enact the potent Enforcement Acts, such as the Enforcement Act of 1870 and the Ku Klux Klan Act of 1871,[21] to protect Black civic and political participation. The criminal penalties for election interference and conspiring to deprive citizens of their constitutional rights all but broke the first Ku Klux Klan.[22] The reactionary Waite Court[23] of the 1870s and 1880s undermined the Enforcement Acts,[24] beginning a long tradition of judicial refusal to defer to the permissive standard Congress chose for legislation under its Fourteenth Amendment powers.[25] Still, Congress’s view of the breadth of its powers and the scope of the Fourteenth Amendment was clear, as were the ends to which those powers applied. The Fourteenth Amendment established that law was meant to protect the people, whether against state action or private violence and predation.[26] The empowerment of Congress’s power and duty to enact and enforce these laws was necessary to establish Reconstruction’s inclusive model of citizenship and political participation and to protect this new order against white supremacy.
II. The Legal Flaws of Trump v. Anderson
The legal flaws of the unsigned majority opinion in Trump v. Anderson are many, and this Essay only addresses them briefly. The most significant flaw being its neutralization of the Fourteenth Amendment’s Insurrection Clause that epitomizes Professor Leah Litman’s concept of “No laws, just vibes.”[27] A majority of the Court wanted to disregard the Insurrection Clause and did so with only a cursory explanation. The Court’s failure to adhere to this provision in the Fourteenth Amendment harkens back to its analogous reasoning in The Civil Rights Cases,[28] Plessy v. Ferguson,[29] Regents of the University of California v. Bakke,[30] and so many others.[31] The opinion ignores this noble provision while simultaneously paying it lip service, at least in terms of word count.
The majority employs a convoluted rationale that ignores the bulk of historical precedent to reach a convoluted conclusion. The necessary scope of the ruling was significantly exceeded in this majority opinion, seemingly working out of bounds in an attempt to justify their weak conclusion.[32] The Court’s purportedly originalist wing once again[33] proclaimed that history demanded their ruling while ignoring the bulk of the historical evidence available to them.[34] All of this acrobatic jurisprudence—ostensibly done in the interest of national stability in a contentious election season—is unlikely to achieve that end.[35]
The Trump majority mischaracterizes the Fourteenth Amendment’s restructuring of the federal-state relationship as merely “expand[ing] federal power at the expense of state autonomy. . . .”[36] The Fourteenth Amendment certainly limited states’ ability to use their power to engage in discriminatory lawmaking and to bolster the old white supremacist order. However, it also created new duties for the states—to ensure that the law protects all of their citizens, to recognize the citizenship of nearly anyone born within the United States, and to exclude insurrectionist oath breakers from any role in its state government. The Court acknowledges the exclusion of insurrectionists as within the power of the states and a self-executing provision, but only for state government offices.[37]
But confusingly, while a state can exclude an insurrectionist from its own ballot, the Court denies the states the power to exclude insurrectionists from their ballots for any federal elected office.[38] Even further, the Court infers a prerequisite of legislative action for enforcement of Section Three.[39] With the exclusion of former Confederates from Congress among Section Three’s chief motivating concerns,[40] a state’s inability to shape its voters’ electoral options to comply with Section Three hardly seems deliberate. Hypothetically, a state could lose its representation in Congress if it found itself unable to shape its voters’ options to comply with the Insurrection Clause’s requirements. There would be no remedy besides holding another election in which precisely the same outcome could emerge. Surely, the drafters of the Fourteenth Amendment would prefer that Virginia tell Robert E. Lee to keep his name off the ballot rather than repeatedly send him to Washington to be turned away from a seat in the House of Representatives.
Another example of this Court’s divergence from legal precedent, this time from that of judicial restraint, is exemplified in its preemptive ruling on the legislation that Congress could use to enforce the Insurrection Clause in federal elections.[41] Both concurring opinions note that the discussion of federal enabling legislation was unnecessary, while the liberal Justices provide harsher criticism. It is tempting to view this as five unelected politicians advancing a partisan cause. Yet a more sinister and accurate explanation places this decision firmly within one of the Court’s most shameful traditions: eviscerating any statute or constitutional provision that might support full and equal political and civic participation for Black Americans. Part III explores this tradition and its strange fruit.
III. The Cost of the Supreme Court’s Failure to Protect Black People
The Supreme Court has a long tradition of eroding Constitutional rights when doing so would harm Black people.[42] These cases span constitutional law across policing, criminal procedure, protection against violence, and voting rights.[43] This Part briefly examines the Court’s racial failings in these areas of constitutional law to contextualize the January 6th insurrection and the Court’s decision in Trump v. Anderson.
The effects of the Supreme Court’s anti-Black jurisprudence are frequently catastrophic in the fields of policing and criminal law.[44] The War on Drugs, which began in June 1971 with Nixon declaring drug use to be a “national emergency,” drove the mass incarceration of Black people. Policies during this time were largely supported by purportedly color-blind judicial decision-making.[45] This jurisprudence has effectively eroded another Constitutional Amendment, the Fourth Amendment, as a substantive right against police intrusion into Black people’s lives and property.[46] Worse yet, the Court’s nonchalance toward systemic racism allows the criminal legal system to execute Black people at a disproportionate rate.[47] The Court’s anti-Black jurisprudence affirms the white supremacy at the heart of carceral violence in America.[48]
Yet violence from police and the carceral system at large is not the only threat the Court’s white supremacist tendencies pose to Black people in America. The Supreme Court’s misreading of the Fourteenth Amendment as only operating to restrict deliberate government discrimination turns a blind eye to private violence that is just as problematic and festering. This practice of strategic misinterpretation began before Reconstruction ended.[49] In its 1876 case United States v. Cruikshank, the Court read protection out of the Equal Protection Clause:
The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another.[50]
The Reconstruction Congress deliberately chose to enshrine the abolitionist concept that governments owed protection to their citizens within the Fourteenth Amendment. The Cruickshank Court refused to acknowledge a general right to protection from racist mobs, the intimidation tactics of non-government actors, or economic discrimination, as any of these could be characterized as the acts of one citizen against another. This lack of concern for the protection of citizens against private abuses continues to this day.[51] While the Reconstruction Congress aimed the Fourteenth Amendment at protecting the rights of Black Americans against both government and private violence, the lack of any substantive enforcement of these protections allows generations of white supremacists to use violence with impunity.[52] Those very same white supremacist attitudes fueled the mob that Donald Trump incited to insurrection on January 6, 2021.[53] The flavor of white supremacist ideology that was blatantly fueling the January 6th insurrectionists was visible in their views on which presidential electoral votes were legitimate.[54]
The Supreme Court also bears some measure of the blame for delegitimizing Black political participation through its refusal to defer to Congress’s enforcement powers. Congress belatedly attempted to remedy a century of Black disenfranchisement through the Voting Rights Act of 1965.[55] Yet the Court has neutralized many of the Voting Rights Act’s protections. In Shelby County v. Holder, the Court struck down the Act’s preclearance formula,[56] opening the floodgates for formerly restrained jurisdictions to enact new experiments in discrimination.[57] In Brnovich v. Democratic National Committee, the Court erected significant barriers to disparate impact claims regarding voting regulations.[58] The Court also abdicated any oversight of partisan gerrymandering in Rucho v. Common Cause,[59] despite partisan gerrymandering having a significant racial component in modern politics.[60] These decisions have enabled legislatures to systematically target minority voters with a death of a thousand cuts.[61] By further marginalizing minority voters, reactionary legislatures further fuel white supremacists’ perception that such voters and their preferred candidates are illegitimate.
The Supreme Court has enabled these reactionary attitudes through its long history of anti-Black jurisprudence. But white supremacists too often are ill-content to limit their resentment to a casual disrespect for Black people; they demand corrective measures or take matters into their own hands. Confronted with demagogues who would direct their anti-Black sentiment into concerted action, they are all too willing to engage in insurrection.[62] The Court’s permissive approach to the Insurrection Clause will only embolden the ideological heirs of the very people it was meant to exclude from government.
Conclusion
When we examine constitutional law’s consistent failure to protect Black people, we must acknowledge the agency of the Supreme Court rather than view that failure as inherent to the Constitution.[63] The Court’s anti-Black jurisprudence has further marginalized Black Americans and emboldened white supremacists. Trump v. Anderson fits squarely within that tradition by disregarding the text and historical context of Section Three of the Fourteenth Amendment. Where the Court might paint that decision as an effort to promote domestic tranquility,[64] it comes once again at the expense of the core protection of our multi-racial democracy. Given the opportunity to enforce the Constitution’s protections for Black political participation, the Court has instead chosen to protect insurrection.
Copyright © 2025 Brandon Hasbrouck, Professor of Law and Director, Frances Lewis Law Center, Washington and Lee University School of Law. I want to thank my research assistants, Warren Buff and Jack Perryman, whose outstanding work made this project better. I am grateful for the extraordinary support of the Frances Lewis Law Center at the Washington and Lee University School of Law. Much love to the amazing editors at the California Law Review Online—specifically Alexandra E. Gonzalez, Rebecca McCord, and Tiffaney Boyd, and to all the many first-year editors for their diligence in cite-checking and proofing. For my daughters. Black Lives Matter.
[1]. See generally H.R. Rep. No. 117-663 (2022) (detailing the findings of the House January 6th Committee).
[2]. See Catie Edmondson, “So the Traitors Know the Stakes”: The Meaning of the Jan. 6 Gallows, N.Y. Times (June 16, 2022), https://www.nytimes.com/2022/06/16/us/politics/jan-6-gallows.html.
[3]. Cf. Martin Pengelly, Pence Was 40ft from Mob on January 6: ‘Vice-President’s Life Was in Danger’, Guardian (June 16, 2022), https://www.theguardian.com/us-news/2022/jun/16/mike-pence-40ft-from-mob-january-6 (“Pence issued a letter saying he would not [stop the certification of electoral votes].”).
[4]. The political questions doctrine is a judicial restraint principle to prevent courts from interfering in decisions explicitly assigned to other branches of government. See also Rucho v. Common Cause, 588 U.S. 684, 721 (2019) (“We have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.”); Luther v. Borden, 48 U.S. (7 How.) 1, 47 (1849) (holding that courts are bound to the political branches’ decisions regarding the establishment of government).
[5]. See also Jhacova A. Williams, Trevon Logan & Bradley Hardy, The Persistence of Historical Racial Violence and Political Suppression: Implications for Contemporary Regional Inequality, 694:1 Annals Am. Acad. Pol. & Soc. Sci. 92, 100–01 (2021) (showing a correlation between historical lynchings and decreases in Black voter registration rates, even after the passage of the Voting Rights Act).
[6]. See, e.g., John Nichols, The Only Way Trump Stays on the Ballot Is if the Supreme Court Rejects the Constitution, Nation (Feb. 8, 2024), https://www.thenation.com/article/politics/supreme-court-trump-14th-amendment-hearing-preview/; Neil Baron, The law is Clear: The Supreme Court must not allow Trump on the 2024 ballot, Hill (Feb. 16, 2024, 7:50 a.m.), https://thehill.com/opinion/judiciary/4472073-the-law-is-clear-the-supreme-court-must-not-allow-trump-on-the-2024-ballot/ (discussing the January 6th insurrectionists and their Confederate predecessors without once mentioning the racist ideologies of either); Mark A. Graber, Trump’s Supreme Court Ballot Argument Posits That Jefferson Davis Wasn’t an Insurrectionist, Either, Slate (Feb. 8, 2024, 5:45 a.m.), https://slate.com/news-and-politics/2024/02/trump-supreme-court-argument-jefferson-davis-insurrectionist.html (presenting critical accounts of Confederate leaders without mentioning those figures’ white supremacist motivations); but see Trump v. Anderson, 601 U.S. __ (2024) (reversing Colorado’s decision to remove Trump from the ballot under the 14th Amendment but declining to decide whether his actions amounted to insurrection, regarding that as a political decision).
[7]. See Juana Summers, Trump Push to Invalidate Votes in Heavily Black Cities Alarms Civil Rights Groups, NPR: All Things Considered (Nov. 24, 2020, 6:26 a.m.), https://www.npr.org/2020/11/24/938187233/trump-push-to-invalidate-votes-in-heavily-black-cities-alarms-civil-rights-group (“It also comes at the end of the year where many voters, particularly voters of color, faced unprecedented obstacles to cast ballots due to the coronavirus pandemic.”).
[8]. See Glenn Kessler & Salvador Rizzo, President Trump’s False Claims of Vote Fraud: A Chronology, Wash. Post (Nov. 5, 2020, 5:59 p.m.), https://www.washingtonpost.com/politics/2020/11/05/president-trumps-false-claims-vote-fraud-chronology/ (quoting Trump as stating “a very sad group of people is trying to disenfranchise that group of people, and we won’t stand for it”).
[9]. See Howard Jay Graham, Our Declaratory Fourteenth Amendment, 7 Stan. L. Rev. 3, 17 (1954). (“Race discrimination, broadly conceived, was the framers’ target, but their natural rights‑declaratory theory led them to use broad, sweeping language to accomplish specific, historically defined ends.”). Howard Graham “is surely the greatest authority on the history of the amendment. He is its Maitland, and perhaps our foremost living historian of American constitutional law as well.” Leonard W. Levy, Foreword to Howard Jay Graham, Everyman’s Constitution, at vii (1968).
[10]. 601 U.S. ___ (2024).
[11]. Eric Foner, A Short History of Reconstruction 1863‑1877, 425–26 (1990) (describing the Klan’s efforts “to undermine Reconstruction, reestablish control of the black labor force and restore racial subordination in every aspect of Southern life”).
[12]. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 28 (rev. ed. 2012) (explaining how southern states’ social and economic pressures resulted in black codes).
[13]. See Kelsey Snell, Confederate Speaker Portraits to be Removed from the U.S. Capitol on Juneteenth, NPR (June 18, 2020, 1:51 p.m.), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/06/18/880253813/confederate-speaker-portraits-to-be-removed-from-the-capitol-on-juneteenth [https://perma.cc/S39X-VS8Z] (discussing the removal of statues and portraits of former Confederates who served as Speakers of the House).
[14]. See Alexander, supra note 13, at 28 (“Clearly, the purpose of the black codes generally and the vagrancy laws in particular was to establish another system of forced labor.”).
[15]. See Robert J. Kaczorowski, Congress’s Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted, 42 Harv. J. Legis. 187, 271 (2005) (describing the opposition of Representative Henry J. Raymond to the Civil Rights Act of 1866 as unconstitutional, followed by his support for the Fourteenth Amendment’s grant of Congressional power to enforce such legislation). See also Jamal Greene, Fourteenth Amendment Originalism, 71 Md. L. Rev. 978, 1009 (2012) (“For southerners and for those educated within the Lost Cause tradition, the [Freedmen’s] Bureau evokes illegality.”).
[16]. See U.S. Const. amend. XIV, § 1. See generally Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. Rev. 87, 135–38 (2022) (discussing the Reconstruction Congress’s understanding of protection as the operative concept in the Equal Protection Clause).
[17]. See U.S. Const. amend. XIV, §2; See also Arthur Earl Bonfield, Right to Vote and Judicial Enforcement of Section Two of the Fourteenth Amendment, 46 Cornell L. Rev. 108, 111 (1960) (indicating the purpose of the section was “directed at preventing any political advantage from accruing to the old southern leadership by virtue of the emancipation of the slaves [and] aimed at insuring that ‘the rights of these persons by whom the basis of representation had been increased should be recognized by the general government.’”).
[18]. See U.S. Const. amend. XIV, §3. See also William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Penn. L. Rev. 605, 701–02 (2024) (locating the motivation behind the Insurrection Clause, but not its definitional limit, in “the specific circumstances of secession and civil war . . . “).
[19]. See U.S. Const. amend. XIV, §4 (“But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”).
[20]. See U.S. Const. amend. XIV, §5. See also Graham, supra note 10, at 33 (describing Senator Trumbull’s insistence that Section 5 include the same expansive powers as the Necessary and Proper Clause in protecting the Fourteenth Amendment’s guarantees).
[21]. See Enforcement Act of 1870, ch. 114, § 23, 16 Stat. 140, 146 (1870) (codified as amended at 28 U.S.C. § 1344 (2018); Klux Klan Act of 1871, ch. 22, § 1, 17 Stat. 13 (1871) (codified as amended at 42 U.S.C. § 1983 (1996)).
[22]. See Michael T. Morley, The Enforcement Act of 1870, Federal Jurisdiction over Election Contests, and the Political Question Doctrine, 72 Fla. L. Rev. 1153, 1178 (2020) (explaining the Acts’ frequent use in election interference cases on behalf of disenfranchised Black southerners).
[23]. See generally Morrison R. Waite, 1874–1888, Supreme Court Historical Society (accessed Sept. 22, 2024), https://supremecourthistory.org/chief-justices/morrison-waite-1874-1888/ [https://perma.cc/F9Q6-EEB3].
[24]. See United States v. Cruikshank, 92 U.S. 542 (1876).
[25]. But see Jones v. Alfred H. Meyer Co., 392 U.S. 409, 439 (1968) (reading the enabling clause of the Thirteenth Amendment to grant Congress the power to redress the “badges and incidents of slavery”). “The Reconstruction Congress understood the enforcement clauses of all three Reconstruction Amendments to grant Congress power subject to the relatively lax test of McCulloch v. Maryland.” Hasbrouck, supra note 17, at 134.
[26]. See Robin L. West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment 30 (1994) (“[T]he state must and should promise each citizen protection against the violence of others if it is truly to be a constitutional state under the rule of law . . . .”).
[27]. See generally Strict Scrutiny, No Laws, Just Vibes, Crooked Media (Jan. 7, 2022), https://crooked.com/podcast-series/strict-scrutiny/.
[28]. United States v. Stanley, 109 U.S. 3, 11 (1883) (“It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.”).
[29]. 163 U.S. 537, 544 (1896) (“The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”).
[30]. 438 U.S. 235, 299 (1978) (“When [political judgments] touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.”).
[31]. See generally, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023); The Slaughter-House Cases, 83 U.S. 36 (1872). See generally Hasbrouck, supra note 17, at 109–126.
[32]. See Trump v. Anderson (Barrett, J., concurring in part and concurring in the judgment), slip opinion at 1 (“It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”). There was also no need to reach the question of Section Three’s operation in elections for state offices to rule on the question of whether states could enforce it in elections for federal offices.
[33]. See, e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 117 (2022) (Breyer, J., dissenting) (criticizing the majority’s exclusion of applicable historical gun regulation in their originalist analysis); Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 363 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting) (“Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure.”).
[34]. See Anderson v. Griswold, 2023 CO 63, 132 (Colo. 2023) (concluding that the history of the enactment of the Fourteenth Amendment supports State’s rights to disqualify candidates); see also, e.g., Brief of Amicus Curiae Professor Sherrilyn Ifill in Support of Respondents & Affirmance at 2, Trump v. Anderson, 601 U.S. 100 (2024) (No. 23-719) (“Section 3 is designed to protect our multiracial constitutional democracy. To abandon [it] now would destabilize the balance struck by the 14th Amendment’s framers—a balance between guaranteed rights and structural tools that would allow those rights to withstand resistance to the vision and scope of the Amendment’s core promises.”); Brief of Amici Curiae American Historians in Support of Respondents at 32–33, Trump v. Anderson, 601 U.S. 100 (2024) (No. 23-719) (“As late as 1896, Jefferson Davis’s nephew, John Taylor Wood, who had been a U.S. Naval officer before serving in the Confederate Navy, and who was never convicted of any crime, petitioned Congress for the removal of his Section 3 disabilities.”); Brief of Amici Curiae Professor David M. Driesen, Malcom M. Feeley, Gábor Halmai, Andrea Scoseria Katz, Karl Manheim & Rogers M. Smith in Support of Respondents at 12–16, Trump v. Anderson, 601 U.S. 100 (2024) (No. 23-719) (comparing provisions in the original Constitution and Fourteenth Amendment intended to ensure that the President would be loyal to the Constitution and democracy).
[35]. See Mark Joseph Stern, The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5-4 Disaster, Slate (Mar. 4, 2024, 11:56 a.m.), https://slate.com/news-and-politics/2024/03/supreme-court-trump-colorado-ballot-disaster.html (“But the rest of it serves as an unwarranted gift to Donald Trump and the oathbreakers who violently assisted his efforts to overturn a free and fair election.”).
[36]. Anderson, slip op. at 4 (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996)).
[37]. See Anderson, slip op. at 6.
[38]. See id.
[39]. See id. at 10–11; id. at 2 (Sotomayor, Kagan & Jackson, JJ., concurring) (“The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment.”).
[40]. See id. at 4 (citing Cong. Globe, 39th Cong., 1st Sess., 2544 (1866) (statement of Rep. Stevens)).
[41]. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”); Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 581 (1985)) (“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and long-standing principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”); Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 348 (2022) (Roberts, C. J., concurring in judgment) (“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”).
[42]. See, e.g., Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 148–49 (2017) (discussing how police authority under the Fourth Amendment is largely constructed from cases involving police interactions with Black people that never seriously examine how Black Americans “perceive and experience the police”); Elie Mystal, Allow Me to Retort: A Black Guy’s Guide to the Constitution 129 (2022) (“Which is why the entire conservative legal project, since ratification of [the Thirteenth, Fourteenth, and Fifteenth A]mendments during Reconstruction to the present day, has been to limit the scope and effectiveness of this ‘new’ Constitution.”); United States v. Stanley (The Civil Rights Cases), 109 U.S. 3, 24–25 (1883) (“It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.”); Slaughter-House Cases, 83 U.S. 36, 75 (1872) (declining to give the Fourteenth Amendment’s Privileges or Immunities Clause any effect regarding legal rights under state law); Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority.”); City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (limiting Congress’s enforcement power under the Fourteenth Amendment by means of a congruence and proportionality test).
[43]. The Court has proven plenty willing to engage in anti-Black jurisprudence in other areas of law, too. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1978) (“Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent . . . .”); Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 143 S. Ct. 2141, 2168 (2023) (“The race-based admissions systems that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a ‘negative’ and that it may not operate as a stereotype.”); Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009, 1019 (2020) (“To prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.”) (emphasis added); Vance v. Ball State Univ., 570 U.S. 421, 431 (2013) (“We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment action against the victim….”)
[44]. See Carbado, supra note 43, at 148–49; Hasbrouck, supra note 17, at 116–20 (discussing the criminalization of Blackness following Reconstruction).
[45]. See generally Alexander, supra note 13.
[46]. See Sam Kamin & Justin Marceau, Double Reasonableness and the Fourth Amendment, 68 U. Miami L. Rev. 589, 622 (2014) (“[T]he Court has engaged in a very selective application of baseline reasonableness that, in many instances, serves as a one-way ratchet that limits, but never expands, Fourth Amendment rights.”); cf. Jamison v. McClendon, 476 F. Supp. 3d 386, 422–23 (S.D. Miss. 2020) (“We read § 1983 against a background of robust immunity instead of the background of a robust Seventh Amendment. Then we added one judge-made barrier after another.”).
[47]. See McClesky v. Kemp, 481 U.S. 279, 313 (1987) (“In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.”). But see State v. Ramseur, 374 N.C. 658, 673 (2020) (“[The North Carolina Racial Justice Act’s] allowance of the use of statistical evidence must be seen as deliberate, as it comes after the Supreme Court’s decision in McCleskey v. Kemp.”).
[48]. See Brandon Hasbrouck, Abolishing Racist Policing with the Thirteenth Amendment, 67 UCLA L. Rev. 1108, 1113–21 (2020) (discussing the through-line of white supremacy from the slave patrols to mass incarceration).
[49]. Cf. Hasbrouck, supra note 17, at 137–38 (discussing the scope the Reconstruction Congress envisioned for the Equal Protection Clause).
[50]. United States v. Cruikshank, 92 U.S. 542, 554–55 (1875).
[51]. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 768–69 (2005) (“[T]he framers of the Fourteenth Amendment and the Civil Rights Act of 1871 . . . did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented. . . .”); Deshaney v. Winnebago County Dep’t of Soc. Services, 489 U.S. 189, 203 (1989) (refusing to extend Due Process Clause protections to an abused child whose case was neglected by a government agency tasked with protecting children); Warren v. District of Columbia, 444 A.2d 1, 6 (D.C. 1981) (“A government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.”); Terri Langford, “If There’s Kids in There, We Need to Go in”: Officers in Uvalde Were Ready With Guns, Shields and Tools—But Not Clear Orders, Tex. Trib. (June 20, 2022, 9:00 p.m.), https://www.texastribune.org/2022/06/20/uvalde-police-shooting-response-records/ [https://perma.cc/A7AM-TLQG].
[52]. See, e.g., Erica Chenoweth & Jeremy Pressman, This summer’s Black Lives Matter protestors were overwhelmingly peaceful, our research finds, Wash. Post (Oct. 16, 2020, 6:00 a.m.), https://www.washingtonpost.com/politics/2020/10/16/this-summers-black-lives-matter-protesters-were-overwhelming-peaceful-our-research-finds/ [https://perma.cc/GW4H-37VL] (“Black Lives Matter uprisings were remarkably nonviolent. When there was violence, very often police or counter protesters were reportedly directing it at the protesters.”); Art Harris, “Agonizing” Verdict in Greensboro, Wash. Post (Nov. 20, 1980, 7:00 p.m.), https://www.washingtonpost.com/archive/politics/1980/11/21/agonizing-verdict-in-greensboro/88dd3c6b-71af-460d-8ef2-4c6a85c6ac3d/ [https://perma.cc/X2LV-ZD8R] (“Greensboro NAACP Director George Simkins interprets the [Klan-Nazi Trial] verdict as ‘tantamount to a license for Klan and Nazis to kill anyone they want,’ including [B]lacks.”); Yuliya Parshina-Kottas, Anjali Singhvi, Audra D.S. Burch, Troy Griggs, Mika Gröndahl, Lingdong Huang, Tim Wallace, Jeremy White & Josh Williams, What the Tulsa Race Massacre Destroyed, N.Y. Times (May 24, 2021), https://www.nytimes.com/interactive/2021/05/24/us/tulsa-race-massacre.html [https://perma.cc/6GY2-DTML] (“They were casualties of a furious and heavily armed white mob of looters and arsonists. One factor that drove the violence: resentment toward the Black prosperity found in block after block of Greenwood.”); Reconstruction in America: Racial Violence After the Civil War, 1865–1876, Equal Justice Initiative (2020), https://eji.org/report/reconstruction-in-america/ [https://perma.cc/MF4K-7GVD] (“During Reconstruction, Louisiana was the site of repeated massacres in places like Colfax, Opelousas, New Orleans, St. Bernard Parish, Orleans Parish, and West Feliciana Parish that killed hundreds of Black people and traumatized countless more in order to suppress Black voting rights.”).
[53]. See Sandhya Dirks, The Unspoken Role of Race in the Jan. 6 Riot, NPR: All Things Considered (Aug. 16, 2022, 4:50 p.m.), https://www.npr.org/2022/08/16/1117762232/the-unspoken-role-of-race-in-the-jan-6-riot [https://perma.cc/85L9-YQMR] (“And it is a central part of their case that rioters showed up precisely because they believed Trump’s lie about a stolen election. But who believed that lie and why they believed it has everything to do with race. . . .”).
[54]. See Summers, supra note 8.
[55]. See Voting Rights Act of 1965, Pub. L. No. 89–110, 79 Stat. 437.
[56]. See Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013) (holding that the Voting Rights Act’s preclearance formula could no longer be used to subject historically discriminatory jurisdictions to federal scrutiny of their elections laws). Prior to Shelby Cnty., states and local jurisdictions that, in 1964, 1968, or 1972, explicitly restricted electoral participation or saw registration or voter turnout below 50% were required to pre-clear any changes to their voting laws with the Department of Justice.
[57]. See New Voting Restrictions in America, Brennan Ctr. for Just. (Nov. 19, 2019), https:// www.brennancenter.org/new-voting-restrictions-america (documenting the wave of new voting restrictions since 2010).
[58]. See Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 649–51 (2021) (dismissing disparate impact as an insignificant factor in a totality of the circumstances analysis due to its “small size”).
[59]. See Rucho v. Common Cause, 588 U.S. 684, 718 (2019) (“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”).
[60]. See Olga Pierce & Kate Rabinowitz, ‘Partisan’ Gerrymandering Is Still About Race, ProPublica (Oct. 9, 2017, 6:48 p.m.), https://www.propublica.org/article/partisan-gerrymandering-is-still-about-race.
[61]. See Sam Levine, ‘Death by a Thousand Cuts’: Georgia’s New Voting Restrictions Threaten Midterm Election, Guardian (Oct. 5, 2022, 11:22 a.m.), https://www.theguardian.com/us-news/2022/oct/05/georgia-voter-suppression-registration-challenges.
[62]. See Heather Alaniz, Kimberly D. Dodson & Jared R. Dmello, Race, Rallies, and Rhetoric: How Trump’s Political Discourse Contributed to the Capitol Riot, 5 J. Crim. Just. & L. 22, 31 (2021) (“Specifically, in Trump’s address to the crowd rallying south of the White House, he instructed his supporters to ‘walk down to the Capitol,’ adding, ‘you will never take back our country with weakness.’”); Toby Luckhurst, Wilmington 1898: When White Supremacists Overthrew a US Government, BBC News (Jan. 16, 2021), https://www.bbc.com/news/world-us-canada-55648011 (describing the white supremacist newspaper campaign leading up to the coup against Black institutions in Wilmington, North Carolina, and their political allies); Amicus Curiae Br. of Akhil Reed Amar & Vikram David Amar in Supp. of Neither Party., Trump v. Anderson, 601 U.S. 100 (2024) (No. 23-719), at *7 (“In the weeks after Lincoln’s election in early November 1860, Floyd used the great powers of his office, through a devious combination of affirmative acts and strategic failures to act, to try to thwart a proper transition of power.”).
[63]. See Jonathan Feingold, The Problem is the Court, Not the Constitution, JOTWELL (Apr. 27, 2023) (reviewing Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. Rev. 87 (2022)), https://conlaw.jotwell.com/the-problem-is-the-court-not-the-constitution/ (“Constitutional law continues to impede racial justice in America. But the problem is not the Constitution. The problem is a Supreme Court whose hostility to civil rights comes in spite of, not because of, the Constitution.”).
[64]. See Trump, 601 U.S. at 117 (“Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”).
