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Civic Nationalism’s Last Gasp?

The Dying Citizen: How Progressive Elites, Tribalism, and Globalization Are Destroying the Idea of America
Victor Davis Hanson
Basic Books, 2021

Reviewed by Nelson Rosit

Is Victor Davis Hanson Donald Trump with a Ph.D. in classics? There are certain parallels between the author of The Dying Citizen and the forty-fifth president. While Professor Hanson uses the rubric “citizenship,” Mr. Trump uses the acronym MAGA to describe a renewed civic nationalism that might provide enough centripetal force to hold together this multi-ethnic entity called the United States for a while longer.

Hanson (b. 1953), grew up in the San Joaquin Valley and pursued an academic career. He is now a professor emeritus of classics at Fresno State and a senior fellow at the Hoover Institution, a conservative-leaning think tank. Hanson’s latest book is a cogent articulation of the present policy positions of the establishment Right. It can be used to gauge the policy departure from the McCain-Romney Republicanism of the recent past. The important question, however, is: Can “true citizenship”/MAGA/civic nationalism provide any utility for the cause of White America?

VDH realizes that the United States is in crisis. He terms 2020 a revolutionary year, and believes only shock therapy can save the country. His quick assessment of ailments includes growing economic inequality, open borders, the rise of tribalism, the increasing power of a bureaucratic Deep State, and expanding globalism, all of which threaten to undermine American society. Of course, such a diagnosis begs the question: What is the treatment regimen? No nostrum is prescribed.

In his Introduction Hanson makes some common-sense observations: Self-governance is not an easy task, and to have rights people must assume responsibilities. I think the Founders made the point succinctly when they stressed the need for civic virtue to make a representative republic succeed.

Being a classicist, Hanson gives the reader some ancient history. Athens is usually identified as the first democracy. “Consensual government did not appear until about twenty-seven hundred years ago, most prominently in Athens, twenty-five hundred years after the beginning of large urban settlement in the Near East” (6). At least with VDH you do not get theories such as the African origins of Greek civilization as found in Black Athena,[1] or the Iroquois League being the model for American federalism.

The first chapter deals largely with economics, and, from a conventional-Right perspective, Hanson is pretty solid in this area. A strong middle class is essential for political and social stability. Judging from the context of his remarks Hanson includes the more established blue-collar workers in this middle class. The present economic system features stagnant wages and a raising cost of living that squeezes the middle. Massive immigration at home and outsourcing abroad has contributed to economic insecurity, and Hanson believes this has played a role in the decline of marriage. The author notes that most economic experts—men such as Paul Krugman and Larry Summers—state that high-paying production jobs are leaving America, and not coming back. Hanson does not buy that argument, and neither did former president Trump.

De-emphasizing Race

Chapters Two and Three discuss immigration and ethnicity (tribes), and here Hanson shows his respectable conservative stripes. He is against massive immigration, especially when many enter illegally, because it makes assimilation more difficult. Though he knows better, VDH still proclaims American exceptionalism and the magic dirt theory. He admits: “The few unusual countries, ancient and modern, that have tried to unite diverse tribes without imperial coercion have usually fared poorly” (106). The author does not identify those countries that have not “fared poorly,” but in any case, I would remove the modifier ‘usually’ from the above quote. I would also add that the American empire is definitely willing to use coercion to make its multi-ethnic state work. But if one has faith that the United States will be the exception the laws of history then you believe everything will work out in the end. The magic dirt corollary posits that when natives from dysfunctional societies such as Somalia and El Salvador reach the U.S., they will not replicate the cultural characteristics of their homelands, but will instead become model Americans. So far, all the data are against the magic dirt theory.

Due to the author’s belief in assimilation, he differentiates between multiracialism which he approves and multiculturalism which he opposes. A racialist would counter that culture is, in part, a racial construct. Large numbers of migrants who are genetically distant from the majority population make assimilation impossible. But VDH sees tribalism as “reactionary to the core” while clinging to his utopian hopes for these genetically distant migrants: the answer to growing tribalism in the United States is “true citizenship . . . that diminishes the power of ethnic identification and race” (112).

Hanson rightly criticizes the Left for trying to rewrite American history. Yet he indulges in the same practice to support his assimilationist project. He claims: “The United States has always cherished its universally applicable melting-pot ethos of e pluribus unum” (107). Of course, the U.S. has not always had a universalist ethos (e.g., the 1924 immigration restriction law), and the phrase e pluribus unum originally referred to uniting the several former colonies into one nation.

Later in the chapter VDH to “talks the talk” by castigating cultural Marxism and social justice warriors, but he misses the main point. He asks, “So why has twenty-first-century American race and gender victimization supplanted doctrinaire Marxist class oppression in the culture of resistance against established norms?” The reality is that it’s all about destroying White political and cultural hegemony, but Hanson, as a mainstream conservative, can’t accept that. He notes that “Today’s social justice warrior apparently would not wish to empathize with a West Virginia coal miner but prefers instead CNN anchor Don Lemon or billionaire rapper Jay-Z” (115)—implicitly referring to the White working class, but not discussing the obvious racial dynamic of a multi-racial left-liberal elite opposed to the White working class.  In fact, it is racial. Is the man being willfully blind? A little further on Hanson almost stumbles upon the answers his own question, but again the obvious conclusion eludes him. He notes that “old Marxism had once sought to transcend race” (117). Yes, it tried, but it failed to transcend race, and a similar fate will befall the author’s solution of “true citizenship,” because race is an essential human characteristic.

VDH realizes the purpose of the Left’s “assaults on traditional commemoration—from holidays to statues to eponymous street names—is to redefine the past as a way of recalibrating the future” (119)—George Orwell said it best in Nineteen-Eighty-Four: “Who controls the past controls the future: who controls the present controls the past.” But he fails to note these assaults are part of the war on White America The denigration of traditional heroes is, in effect, a psyop against White America.

In keeping with his non-racial civic nationalism Hanson believes “the worst thing about identity politics as currently practiced by the left is that it has stimulated the rise of identity politics on the right” (125). Okay, the Right is always responding to developments on the Left. I would call this a law of political science: The Right is always reactive, though not necessary reactionary. So Edmund Burke, father of modern conservatism, was reacting to the French Revolution, Mussolini was reacting to Lenin, and the January 6th rioters were reacting to the George Floyd riots of 2020. VDH claiming that White self-defense against attacks is worse than the attacks themselves! But race does not really exist, so what is the fuss about? Ignoring all the population genetic studies showing clear genetic clusters corresponding to traditional racial categories, he resorts to simply asserting that “it is difficult to agree upon a definition of what ‘white’ actually is, given that it is not necessarily aligned with superficial appearance” (127). I guess that if it cannot be defined to VDH’s satisfaction, it doesn’t actually exist.

The Deep State

Once Hanson gets away from the issue of race, he begins to make more sense, and in Chapter Four he deals with the Deep State. For decades mainstream political science textbooks have discussed the vast discretionary authority wielded by unelected, upper-level bureaucrats, not to mention the power of the military-industrial complex. However, when the Right began to criticize these entities as the Deep State, it was immediately labeled nothing but a conspiracy theory. Likewise, one can celebrate the growing ethnic diversity of America, but if it is termed “The Great Replacement,” it is a conspiratorial hoax. In his opposition to powerful centralized bureaucracy and other unelected institutions, I detect some libertarian leanings in his attitude toward government. My own view is that government is simply a vehicle; who is behind the wheel is what matters. There’s nothing inherently wrong with centralized government. Government is a vehicle that can take you where you want to go, or it can careen off a cliff.


Hanson is generally pro Trump in a nuanced way. In 2019 he published The Case for Trump in which he wrote that, although a flawed character, the president had a coherent agenda and had implemented much of it.[2] By 2019 almost everyone on the Dissident Right was very disappointed with Trump, some bitterly so. There were several reasons why Trump failed to meet expectations, and certainly opposition from the Deep State was one. In 2016–17 Trump, the tough guy New York real estate mogul, was a babe in the woods.

As a political novice who ran against both the Democrats and the GOP establishment Trump struggled to find talented and loyal administrators to fill top executive branch positions. His newly appointed National Security Advisor Ret. General Michael Flynn was the victim of a “government ambush” (171). The legitimacy of Trump’s 2016 election was questioned by the Russian Collusion Hoax. Robert Mueller put together “perhaps the most high-powered and experienced team of investigators even assembled by the Department of Justice” (174). After 22 months and 40 million dollars no Russian collusion with members of the Trump campaign was found.

After the failure of the Mueller investigation, impeachment was the next tactic used to hamstring the Trump presidency and render him un-reelectable.  During the Trump administration members of the executive branch exhibited “an unabashed audacity” in resisting the authority of the president. For example, former FBI Director James Comey wrote a book, A Higher Loyalty, which “publicized the deep state’s sanctimonious notion that violating laws and protocols in service of its own purported higher ethical agendas . . . was more than justified” (184).

The Constitution

Hanson shares with American conservatives a reverence for the U.S. Constitution. It is almost a fetish. I certainly hold the Founding Fathers in the highest esteem, but if the Constitution is our salvation, we would not be in the predicament we are in now. The Constitution is open to differing interpretations, and it can be and has been amended. Nevertheless, the document does act as an impediment to radical change from the Left. Hanson sums up the Left’s position: “[W]hy let old white men of a bygone age continue, from their graves, to impose their ossified values on a far more enlightened, ethnically and racial diverse, and knowledgeable twenty-first century nation?” (217).

According to Hanson several parts of the Constitution are vulnerable to being dismantled or circumvented. The Electoral College, an integral component of our federalist system, is one example, and the erosion of the First Amendment through “hate speech” restrictions is another. The technique used in the latter case is “freedom of speech, not reach.” The First Amendment prohibits government interference with free speech, but the Left believes that “the media, publishing, and especially Big Tech . . . have the right—and sometimes the responsibility—to apply codes of conduct and censorship in their own domains” (243). The Left also believes in the legitimacy of applying pressure on media companies to censor speech by government actor, as indicated in the recent revelations on the role of the FBI in getting Twitter and other media companies to censor the Hunter Biden laptop story, and the role of the Biden administration in getting Twitter to censor Covid-related opinions. Abridgment of the Second Amendment is also a concern of the author who believes that “the Founders in some sense saw the Second Amendment as the most important of the Bill of Rights” (251).

Another legal issue worrying Hanson is what he calls the new nullification, or what could simply be termed selective law enforcement. There are sanctuary cities that “seek to render elements of federal immigration law null and void” (254). Then there is the “de facto nullification” of giving rioters “space” for violent protests involving assaults, looting, and arson. The practice became official policy in April 2015 during the Freddie Gray riots in Baltimore when than mayor Stephanie Rawlings-Blake ordered city police to stand down in the face of mayhem. This approach became widespread in late spring and summer of 2020 during the Floyd riots when virtue-signaling mayors in cities such as Minneapolis, Portland, and Seattle refused to enforce laws protecting lives and property. In the case of Minneapolis, the pronouncements of Mayor Jacob Frey actually helped to incite violence in his city.


Chapter Six deals with globalism. Here is, perhaps, one of the big changes that has occurred within the conventional Right since the McCain-Romney days. (Of course, Mitt Romney is still a Republican senator, so obviously the transformation was only partial). Under true citizenship/MAGA, the globalist policies of free trade, open borders, and offshoring have been replaced, at least in theory, with America First. Hanson defines globalism as simply “putting global concerns above national interests” (269). Globalism, championed by Western elites, dilutes VDH’s concept of true citizenship. Globalists are “post-citizens” who wish to transcend the boundaries of race, sex, and nationality. According to the author, organizing international relations around nation states is not ideal, but it “is the least pernicious system compared to the alternatives” (272).

It is not just that globalism has hurt the US with “lost jobs, investments, control over borders, and national cohesiveness,” it has resulted in “eroded indigenous customs and traditions the world over” (281). Hanson continues: “the global creed has destroyed the ancient idea of localism and regionalism as central to the human experience.” Globalists do not value the “unique traditions, ancestries, local histories—and differences” of particular locales (302).

The hubris of the globalists is particularly galling to VDH. They see themselves as the new elite whose education, training, and values entitle them to guide world affairs. Despite their lofty opinions of themselves, the author observes that the globalists of WHO failed completely to contain Covid-19. VDH considers NATO as part of, and perhaps a principal enforcer of, the globalist project. He quotes NATO’s first Secretary-General Lord Hastings Ismay who described the organization’s mission as “to keep the Russians out, the Americans in, and the Germans down” (297). No mention of containing communism. The Great Replacement is one of the results of globalism. Hanson does not use the term, but he relates how Bill Kristol, the Jewish neo-conservative pundit, declared that there was “a need to replace an increasingly pathological American white working class” with immigrants (291).


The book ends with an epilogue obviously written sometime after the main text. Here Hanson again discusses Trump, along with the 2020 election, January 6th, and the Biden administration. Though generally supportive, VDH expresses mixed feelings about the former president who could be “an idealistic populist, a rank cynic, a canny pragmatist, neither, or a combination of the three” (324). Once more, Trump was a bit naive, he “under-appreciated” and at times “seemed oblivious” to the political forces arrayed against him (326). Being a political outsider, he had no cadre of experienced and knowledgeable people to fill key administrative positions. Plus his “mercurial persona” and “often off-putting behavior” made him difficult to work with.

Hanson expresses doubts regarding the legitimacy of the 2020 election. Tens of millions of people voted by mail “with far less audit of signatures, addresses, and deadlines” than in the past. Voting by mail is “fraught with dangers of fraud and a general inability to authenticate voter eligibility and identification” (336).

As for the January 6th capitol protests, Hanson points to an obvious factor that the mainstream media and the political establishment refuse to acknowledge. By justifying the violence during the so-called “racial reckoning” of 2020, the Left created the climate for the assault on the capitol in January 2021. The protesters that day were poorly led, if indeed there was any real leadership at all. Some thought that violence was the way to be heard, that this was the way it is done now, this is how you do it. They did not realize that those rules only applied to the other side. As VDH puts it: “[T]he Left had for months contextualized the mayhem of Antifa and BLM and therefore should not have been surprised when others were emboldened to follow their violent example. The public was left with the general impression that, for political reasons, violence in the streets was being condoned and perpetrators not held to account for their illegal actions” (340).


So, having considered Hanson’s “true citizenship,” which I have equated with MAGA/civic nationalism, we return to the question posed at the start:  Is this movement an on ramp to explicit White advocacy? Or is it a dead end? As Yogi Berra opined: “It’s tough to make predictions, especially about the future,” but I believe Trumpism will fade and will prove to be the last gasp for civic nationalism.

There are several reasons for this prediction: It will be difficult to have Trumpism without Trump, and his future is uncertain at best. For all his faults Trump is an authentic personality and seemed to have a unique ability to incite the Left. Meanwhile possible successors, such as Ron DeSantis, smack of opportunism. Of course, the Romney wing of the Republican Party never went away and they are working day and night to return to the pre-2016 business-as-usual approach. But the main reason that civic nationalism will fail to deliver is its refusal to face the reality of race and the importance of racial differences in human affairs.

Whatever happens, politics will not return to pre-2016 status quo ante. There are long-term trends, such as political and social polarization, that appear to be accelerating. Political violence, practiced by the Left since the “long hot summers” of the 1960s and more recently taken up by Antifa and BLM, has spread to elements of the political Right and could intensify. Due to selective law enforcement, however, violence, other than in self- defense, is likely to be counterproductive for the Right. Is there a role for the Republican Party to move a White agenda forward? As alluded to above, the neo-conservatives are working hard to regain full control of the party, and they hold the purse strings. But do they have the votes? American political parties are subject to change—a century ago, the Democrats were the White man’s party, and the Republicans, the party of Lincoln, received the Black vote. In any case, voting is without risk or cost and takes very little time or effort so any return on such a small investment is a plus.

In the final analysis electoral politics will only go so far in bringing about fundamental societal change. As Andrew Breitbart wrote: “Politics is downstream from culture.” People need to live the change they want. One encouraging trend sees White Americans moving to areas of the country that they find more politically and socially congenial, hopefully creating supportive networks. Liberal journalist Bill Bishop has termed this The Big Sort.[3] While others call it an ingathering.[4] This is where Hanson’s true citizenship might be most applicable, becoming civically engaged at the local level to build healthy White communities.

[1] Martin Bernal, Black Athena: The Afroasiatic Roots of Classical Civilization, Rutgers University Press, 1987.

[2] Victor Davis Hanson, The Case for Trump Basic Books, 2019.

[3] Bill Bishop, The Big Sort: Why the Clustering of Like-Minded America is Tearing Us Apart, Mariner Books (2009).

[4] See for example: Eric Paulson, “Nine Reasons for an Ingathering,The Occidental Observer (November 3, 2010).

Life Without Jews: The Amazing Adventures of Israeli Trans-Pedophile and Tampon-Fetishist Jonathan Yaniv

Does Clown World issue secret (and separate) awards for Jewiest Jew and Polymorphousest Pervert? If so, then I think one man may well have been bagging both awards for years: the polymorphous Israeli pervert Jonathan Yaniv (born 1986/7), who came to the fascinated and disgusted attention of millions of people around the world when he sued female beauticians in Canada for refusing to wax his testicles.

Transgender splendor

I’m sorry: that should be “her testicles.” Indeed, it should be “her lesbian testicles.” Yaniv claimed to be transgender and in mainstream modern leftism that claim instantly converted him into a completely authentic woman, despite the male genitalia he still possessed. It also lifted him to the top of the leftist tree. Although leftists say they believe in equality, in fact they operate a strict hierarchy of victimhood that grants victim-groups, like Blacks or gays or women, special privilege and power over villain-groups, like Whites or straights or men. As I pointed out in “Power to the Perverts,” under normal circumstances Black lesbians are as far above straight White men in the leftist hierarchy as a bar-headed goose flying over Mt Everest, at 29,000 feet above sea-level, is above a sea-cucumber grubbing in the slime at the bottom of the Marianas Trench, at 36,000 feet below sea-level. But some straight White male perverts came up with a clever way of subverting the leftist hierarchy and turning leftism against itself. These perverts have a sexual fetish known as autogynephilia, in which they fantasize about being women, wearing women’s clothes, and entering all-female spaces like dressing-rooms and toilets.

“Who is Jessica Yaniv Simpson?” A fascinating question answered at MeowMix.org

But if they’d been honest and told leftists that they were straight White men with a sexual fetish, they would have sunk even lower in the leftist hierarchy. Instead, the perverts cleverly aligned themselves with the sanctified lesbian-and-gay community. They weren’t straight White men with a fetish, not at all. No, they were a persecuted and misunderstood sexual minority – the most persecuted and misunderstood of all. Et voilà! By calling themselves “transgender,” the straight White men were able to leap above Black lesbians in the leftist hierarchy. In Britain, a Black-Jewish lesbian feminist called Linda Bellos (born 1950) didn’t get rapt attention when she pointed out what the straight White male perverts were up to. She didn’t get instant obedience when she said that they shouldn’t be allowed to invade female territory. On the contrary, she was called a bigot and a hater for denying that these straight White men were both fully authentic women and fully authentic lesbians. As I said at the Occidental Observer back in 2019:

[Bellos] isn’t superior to all stale pale males. Some of them are armed with a superpower that allows them to bound above Bellos in the victimhood hierarchy. Astonishingly, they’ve managed to brand Bellos as a hater from whom they need protection. Just let that sink in: some stale pale males have successfully claimed to be the victims of an elderly Black-Jewish lesbian. In 2017 they got Bellos banned from making a speech to a feminist society at Cambridge University, one of England’s biggest cult-centres of minority worship. Even more impressively, they set the police on her the following year: she was “interviewed under caution” after being accused of committing a hate-crime against them. (“Power to the Perverts,” The Occidental Observer, 6th March 2019)

Bellos is a TERF, a Trans-Exclusionary Radical Feminist, and in mainstream leftism that’s a very bad thing to be. The TERF wars are about territory and who can legitimately maintain borders against whom. Whites can’t maintain literal or cultural borders against Blacks, because Whites are lower in the leftist hierarchy than Blacks. And so Blacks can take any White role in acting, but Whites are now banned from taking any Black role. Similarly, women can take on male roles, but men are banned from taking female roles – unless those men claim to be “transgender.” However, by denying that men can become women, lesbian TERFs like Bellos haven’t embraced biological realism. They’re still leftists and they still believe in hierarchy, not in reality. They just want to keep lesbians like themselves higher in the hierarchy than straight men and don’t want to accept such concepts as “the female penis” and “lesbian testicles.” Alas for Bellos, boring lesbians like her aren’t entertaining like exhibitionist trannies, as I pointed out in “Dykes Are Dull.” That’s part of why trannies have been winning the TERF wars.

A persecuted and misunderstood trans-lesbian

But Jonathan Yaniv didn’t win his legal war on the female cosmeticians who refused to wax his “lesbian testicles.” Instead, he was utterly defeated (see the Wikipedia article for “Jessica Yaniv”). After that, you might have expected him to retire instantly and entirely from public life, particularly when you look at what was exposed to a world-wide audience about his polymorphous perversions. From pedophilia to tampon-fetishism, Yaniv could keep a large team of psychiatrists busy for years trying to turn him from a predatory pervert into a productive member of society. But I don’t think the psychiatrists would ever succeed. Yaniv doesn’t seem capable of embarrassment or self-reform. “Shame” isn’t a concept that he recognizes. No matter how badly he misbehaves and no matter how many court-cases he loses, he still sees himself as the victim and fights on against the bigots and haters who refuse to accept that he is a persecuted and misunderstood trans-lesbian with “special needs.” He’s now had “bottom surgery,” lost his lesbian testicles, and is working for a “Gender Studies Masters” at Simon Fraster University (SFU) in Canada. There’s an entire website, MeowMix.org, dedicated to recording his misbehavior, cataloguing his perversions, and predicting his eventual incarceration. Yaniv plows on regardless, a “proud lesbian” in a cruel world.

But amid all the commentary on and condemnation of Yaniv, one central and highly significant fact has generally been overlooked. Yaniv is an Israeli Jew. He looks like a Jew and has what sounds like an Israeli accent. MeowMix.org claims that “Yaniv was raised Jewish,” says that “the whole family emigrated from Israel”, and has documented how his mother, Miriam Yaniv (née Miriam Altman, born 1954), tried to destroy proof of her Jewish ancestry on an “Israeli family history site.” Like his mother, he has a Jewish forename and, like the Israel singer Idan Yaniv (born 1986), he has a Hebrew surname that means “he will prosper.” Yaniv also behaves like a quintessential Jewish stereotype, with a mixture of brazen perversity, unblushing shamelessness, and self-righteous aggression. Indeed, Yaniv seems to provide a paradigmatic example of three of the most important background traits for Jewish activism identified by Kevin MacDonald: intelligence, aggressiveness, and psychological intensity. But the most common claim about Yaniv’s race is that he is “white.” This would normally be called Jewish erasure, because ignorant people are erasing someone’s precious and unique Jewish identity. In Yaniv’s case, other Jews have not been anxious to claim him as one of their own. It’s another example of Jews as Schrödinger’s Tribe, switching between a Jewish identity and a generic White identity according to whatever best suits Jewish interests.

White standards don’t apply

Plainly, it doesn’t suit Jewish interests for Jonathan Yaniv to be identified as a Jew. However, it does suit the interests of truth and science. Most or even all of the commentary on Yaniv loses its salience when he is correctly recognized as a Jew. By White standards, his psychology is indeed warped and his behavior is indeed obnoxious. But White standards don’t apply to him, because he isn’t White. Yaniv’s White critics, like the Canadian feminist Meghan Murphy, have tried to shame or ridicule him as though he were susceptible to genetically mediated techniques of social control developed by Whites amongst themselves. But he isn’t susceptible, because he isn’t White. He’s not simply Jewish but Israeli Jewish, the product of a majority-Jewish culture where White standards don’t apply. For example, why is Yaniv shameless? Well, you can’t embarrass an Israeli.

And why is Yaniv such a polymorphous pervert? That is surely related to the higher rate of psychopathology found among Ashkenazi Jews, as described by the Danish researcher Emil O. W. Kirkegaard in a recent paper called “A theory of Ashkenazi genius: intelligence and mental illness.” Kirkegaard argues that the contributions of Ashkenazim to cognitively demanding fields are even greater than one would expect from their higher average IQ. The extra factor, in his opinion, is the higher rate of Ashkenazi psychopathology, which facilitates their ability to generate new ideas and make unexpected connections. Meanwhile, their higher intelligence mitigates the severity of the symptoms and behavior they exhibit, and allows them to remain productive. It’s an interesting theory, but, as is characteristic of Kirkegaard, it assumes a more positive view of Jewish contributions to intellectual life than I think is warranted by the facts. Marx, Freud and Boas surely count as “Jewish geniuses,” but they have harmed the cause of true science rather than advanced it.

Other Jewish geniuses have been central to the creation and promotion of the translunatic cult, as described by Scott Howard in The Transgender-Industrial Complex (2020). Jonathan Yaniv is not a genius, but he has been diagnosed with “depression, anxiety, and attention-deficit hyperactivity disorder.” And the outsize disruption he has caused, as a single Jewish individual in a gentile society, is a clear example of how the West would be better off without Jews and their genius. We don’t live in a more beautiful and truthful world thanks to Jews. On the contrary, we live in a much uglier and much more mendacious one. In his uniquely repulsive way, the Jewish trans-pedo and tampon-fetishist Jonathan Yaniv is just as much proof of that as the Jewish Marx, Freud and Boas.

The American Political System and White Racial Discourse

In the recent mid-term elections (this is being written in December of 2022), Democrats, apparently with a good amount of success, charged Republicans with being no less than a threat to American democracy.   My goodness—I guess hyperbole goes over big in this text-and-Twitter-depth age.  Whatever its success as a campaign tactic, a great deal has been said and written about democracy these past few months.  For instance, this in The New York Times, which naturally finds that the threats to democracy come from conservatives:

[The] United States today finds itself in a situation with little historical precedent.  American democracy is facing two distinct threats, which together represent the most serious challenge to the country’s governing ideals in decades.

The first threat is acute: a growing movement inside one of the country’s two major parties — the Republican Party — to refuse to accept defeat in an election. . . .

The second threat to democracy is chronic but also growing: The power to set government policy is becoming increasingly disconnected from public opinion.  The run of recent Supreme Court decisions—both sweeping and, according to polls, unpopular—highlight this disconnect. Although the Democratic Party has won the popular vote in seven of the past eight presidential elections, a Supreme Court dominated by Republican appointees seems poised to shape American politics for years if not decades.  And the court is only one of the means through which policy outcomes are becoming less closely tied to the popular will.

“We are far and away the most countermajoritarian democracy in the world,” said Steven Levitsky, a professor of government at Harvard University and a co-author of the book “How Democracies Die,” with Daniel Ziblatt. .  .  . In a recent poll by Quinnipiac University, 69 percent of Democrats and 69 percent of Republicans said that democracy was “in danger of collapse.”1

I’ll use the democracy-under-siege talk so prominent lately as a springboard to a consideration of the America’s political system from the perspective of White racial advocacy.   This writing can be viewed as a follow-up to an article of mine in 2020 called “A Suggestion to American White Advocates: Root Your Arguments in This Country’s Core Political and Cultural Ideals.”2   You might want to check out that article to put this one in better context, although it’s really not necessary; this piece stands on its own.   To give you an organizer for what’s coming up, my basic take is that from the perspective of Whites’ wellbeing, rather than democracy being under threat, democracy is the threat.

To begin, as a matter of fact, we don’t have a democracy in this country.  Our form of government is a republic.  We pledge allegiance to the flag of the United States of America, and to the republic for which it stands.  Our political system is grounded in the Roman republican form more than many realize. President, congress, and senate are all Roman terms.3  Unlike in a democracy—say a Greek democracy, Athens—citizens seldom vote on matters themselves.   Instead, they select individuals to take on that task.  In the Federalist Papers which justified the political system the Founders had created, James Madison underscored this key distinction between a republic and a democracy: “In a democracy the people meet and exercise the government in person; in a republic they assemble and administer it by their representatives and agents.”4

It is important to note that these representatives are not merely doing the electorate’s bidding.   The Founders of the American nation wanted decisions of state guided by the wisdom of those who held positions in government and not by the immediate impulses of the citizenry.  In Madison’s words, “The public views should be refined and enlarged by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interests of their country, and whose patriotism and love of justice will be the least likely to sacrifice it to temporary or partial considerations”5

Within our republican political system, there are many departures from simple majority rule.  In the beginning, senators weren’t directly elected but rather chosen by state legislators, and the President still isn’t (the Electoral College).  States with small populations like Wyoming have as many senators as New York and California.   The Supreme Court is appointed.  The President can veto legislation.  Indeed, in the early years of this country, the distinction between a republic and a democracy was an important one.  John Adams declared, “There is no good government but what is republican.”6

And more than simply a republic, America is a constitutional republic.  The federal constitution puts a brake on what can legitimately be a matter of collective determination.  The Constitution sets up a separation of powers and checks and balances that prevent majorities in one branch of government—perhaps dominated by powerful factions (the old term for interest groups)—from wielding control.  The Constitution’s first ten amendments, called the Bill of Rights, spell out protections of individuals from the totality as represented by the federal government.  They give explicit acknowledgment of the view that individual citizens have inalienable rights — the term used in the Declaration of Independence. These are rights possessed by all humans, and they can’t be taken away.  These rights are not up for a vote.

To be sure, our form of government reflects democratic principles and includes democratic practices.  The government does not have arbitrary power over people and operates at their consent.  Citizens have the opportunity to participate in the political process.  There are open and free elections and referenda.  All this is democratic.   But still, while the people are heard and wield power, the republic does not require, in the words of the Federalist Papers, the “unqualified compliance to every sudden breeze of passion of a popular majority.”7

In the last century and as it continues now, democracy has taken on the quality of a religious law worth killing and dying for.  World War II was portrayed as a war for democracy.  In recent decades, the Americans talking loudest and slickest at harnessing power have beaten the drums for a crusade to convert other countries to democracy by blowing them up and exterminating their citizens.  In earlier times, however, that justification for conquest and bloodshed wouldn’t have played, because democracy wasn’t sacred.   Major figures in the first century of this country’s existence were not sanguineous about it:

  • James Madison noted democracies “have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”8
  • Alexander Hamilton: “The ancient democracies in which the people themselves deliberated never possessed one feature of good government. Their very character was tyranny; their figure deformity. When they assembled, the field of debate presented an ungovernable mob, not only incapable of deliberation, but prepared for every enormity.”9
  • The writer James Fennimore Cooper saw democracies as tending “to press against their proper limits, to convert political equality into economic leveling, to insist that equal opportunity become mediocrity, [and] to invade every personal right and privacy; they set themselves above the law; they substitute mass opinion for justice. 10
  • Highly respected French observer Alexis de Tocqueville as early as the 1830s foresaw democracy was inevitable, but he expressed reservations about that prospect. He worried about a perversion of society “into a sea of anonymous beings, social droplets, deprived of true purpose.”11  He noted that democracy promotes antipathy toward eccentricity or any manifestation of defiant individuality.12  “Democracy,” de Toqueville wrote, “encourages a taste for physical gratification; this taste, if it becomes excessive, soon disposes men to believe that all is matter only; and materialism, in its turn, hurries them on with mad impatience to these same delights; such is the final circle within which democratic nations are driven round.  It were well that they see the danger and hold back.” 13

The American republic was conceived as being comprised of individuals not groups.  The Bill of Rights, for instance, protects individuals not groups.  This is important to keep this in mind in a time preoccupied with group identities.  In our time, the idea of individualism, this mindset, carries a negative connotation, including within White racial discourse, as it is linked to selfishness and lack of concern for others and the common welfare.  However, this wasn’t the case at this country’s beginning.  Back then, it was assumed that individuals would, and should, focus on serving their private wants and needs and it wasn’t assumed that this would run counter to a concern for, and service to, the needs of the whole.  The ideal earlier in our history—let’s say prior to WWII–was that individuals would conduct themselves in a way that the more they served themselves the more they were capable of, and motivated to, serve others.

Republican citizenship was not a matter of always looking out for oneself, nor was it deferring to the common good in every instance.   Rather, it was striking a balance between the private and public dimensions of one’s life.  That balance was central to the concept of a true individualist, and it was the predominant view in the beginning that the American political experiment depended on true individualists to make it work.

Benjamin Rush, a physician and signer of the Declaration of Independence, wrote an essay entitled “Thoughts Upon the Mode of Education Proper in a Republic” that relates to this consideration.”14

While Rush used the word republic or some variant of it seven times in his essay, including in the title, the word “democracy” appears not once.

Also striking about the Rush essay is his stress on liberty, referring to it as “the object and life of all republican governments.”  Time and again, Rush writes about freedom, along with his worry that government tyranny will rob people of it.   At its core, the American republic is a test to see what will result if individual people, free from governmental dictates, are given the opportunity and the charge to make a good life for themselves and theirs and at the same time be good for other people and look out for the political arrangement.  The inherent tension between democracy and personal freedom and self-determination did not escape the Founders.  At heart, democracy is a method of social coercion, a way to direct and limit the actions of individuals, since those who aren’t on the side of the majority have to do things the victors’ way.

Throughout his essay, Rush wrote about virtue, linking it to the preservation of freedom — “without virtue there can be no liberty.”  To Rush, virtue meant the personal traits of self-denial, brotherly kindness, character, honor, and physical discipline.  In the beginning, it was assumed that the welfare of the republic depended on the virtue of its individual citizens.  Virtue referred to such qualities as a strong work ethic, self-sufficiency, love of country, an austere style of living, strict observance of a moral code, and willingness to sacrifice private profit for the public good.15 In his farewell address, George Washington declared virtue to be “a necessary spring of popular government.”16

Rush’s essay emphasized the importance of strong loyalty to state and nation.  About the education of a child: “He must be taught to love his fellow creatures in every part of the world, but he must cherish with a more intense and peculiar affection the citizens of Pennsylvania and the United States.”17 Allegiance to a geographic entity was considered vitally important for the success of the American political experiment.

More to be said, but you get the basic idea.

*   *   *

The big contention in this context is that Whites have fared very nicely under the American constitutional republican arrangement and the ideals and ways inherent in it—personal freedom and responsibility, virtue, and so on.   A republic is particularly suited to White people, and while those involved in setting up the American political system didn’t go to any great length to punch up that fact, I have the sense that they were well aware of it; they knew what they were doing.

Similarly, those currently engaged in pulling the props out from under the Founders and this country’s political heritage — including referring to it as a democracy — know what they are doing.  Unhindered by constitutional restraints—the notion of a “living constitution,” etc.—democracy serves the interests of Whites’ adversaries.   It takes power away from individuals and puts it in the hands of the collective, which is increasingly non-White — or better, those who can control the collective by managing the information and idea flow and throwing money around and making people pay who get in their way.  Democracy politicizes everything:  whatever it is, anything and everything, is put up for a vote and the majority (or again, whoever controls the majority, and in this day and age it is increasingly people surreptitiously and openly hostile to Whites, males in particular) wins the day.  Ironically given how it is pitched as putting the masses in charge of their fate, democracy paves the way for minority control (among the possibilities: resentful, revengeful, and exploitive anti-White ethnic and racial elements; self-anointed media elites: kowtow-to-me gripers and grievers; I’ll-handle-it managers and bureaucrats; paid-off and intimidated politicians; and bullshitters).  Bottom line, a republic serves White interests; a democracy works against them.

With that being the case, what follows for White racial discourse—its content, topics?  These six things come to mind:

  1. Give consideration to the connection between the republican political form and White interests. How does a republican system measure up against authoritarian, democratic, aristocratic, elite-managed, and Big Boss (Trump’s image just popped into my head) arrangements?
  2. Make room for American voices — Thomas Jefferson and James Madison, and (I’m thinking out loud) Emerson and Thoreau and Mark Twain and Edgar Rice Burroughs (the Tarzan author) and Teddy Roosevelt and H.L. Mencken and . . . oh, I don’t know, just somebody besides Julius Evola, you know? American thinkers, Nathaniel Hawthorne, Walt Whitman, Teddy Roosevelt, Ernest Hemingway, somebody.
  3. Ease up on badmouthing individualism; look for its positive aspects, and there are some. And generally, be conscious of the downside of dichotomous, either-or thinking — there’s this thing and that thing and this thing is better than that thing, universalism is better than individualism, etc.  Libertarianism, ugh.  Carl Jung’s concept of enantiodromia comes to mind: the idea of positive development and the achievement of wholeness resulting from the integration of opposites (the example above: citizenship in a republic involving both selfishness and selflessness).
  4. Do a word count in White racial dialogue and debate: how often do the words “freedom,” “liberty,” and “self-determination” appear? How about if it is more often?
  5. Pay more attention to the relationship between what individuals are made of and what goes on collectively? I’m reminded of Madison Grant’s observation over a century ago that Nordics, as he called them — Americans of northern European heritage — were becoming characterized by “base desires, passions, and behaviors, and becoming less dignified and honorable.”18  The Founders had it pegged: virtue, character, personal worth, however you want to talk about it, matters greatly; it’s not just about large forces and systems.
  6. Give more attention to the connection between nationalism—identification with, affinity for, commitment to, a particular country—and White wellbeing. Do Whites tend to do better within the context of strong nation states?  A non-American example, would Whites living today in Hungary be better off if they saw themselves in the first instance as White Hungarians or as White nationalists?  Would White Americans be better off focusing their energies on getting their country back, or would they be better off if they viewed themselves as White nationalists and seceded from the U.S.?  Do current-day American White advocates— representative of, by far, the largest segment in this country, whose ancestors created and developed it — see themselves as part of us in the U.S.?  Or have they internalized the notion from their adversaries that they are them here: fringe, right wing, dissidents?  Looking into American nationalism could surface the need for those who argue for Whites to examine presumptions and ideas that limit them.

  1. David Leonhardt, “‘The Crisis Coming’: The Twin Threats to American Democracy,” The New York Times, September 17, 2022.
  2. Robert S. Griffin, “A Suggestion to American White Advocates: Root Your Arguments in This Country’s Core Political and Cultural Ideals,” The Occidental Observer, online, posted June 13, 2020.
  3. Richard Brookhiser makes this point in his book, Founding Father: Rediscovering George Washington (Free Press, 1996) p.122.
  4. James Madison, “An Objection Drawn from the Extent of Country Answered,” Federalist Paper Number 14, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New American Library, 1961), p. 100.
  5. As quoted in Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Cornell University Press, 1995) p. 203.
  6. As quoted in Nathan Tarcov, “The Meanings of Democracy.” In Roger Soder, ed., Democracy, Education, and the Schools (Jossey-Bass, 1996) p.25.
  7. Tarcov, p.28.
  8. See Robert Westbrook, “Public Schooling and American Democracy,” in Soder, p. 128.
  9. Ibid.
  10. Russell Kirk, The Conservative Mind, seventh revised edition (Regnery, 1986) p.200.
  11. Kirk, p. 12.
  12. Ibid., 155.
  13. Ibid., p. 211.
  14. Benjamin Rush, “Thoughts Upon the Mode of Education in a Republic,” in Steven Tozer, Paul Violas, and Guy Senese, School and Society: Historical and Contemporary Perspectives, Second Edition (McGraw-Hill, Inc., 1995) pp. 40.
  15. Ibid, p. 24.
  16. George Washington, George Washington’s Farewell Address (Applewood Books, 1999).
  17. Tozer, Violas, and Senese, p. 42.
  18. Grant’s observation comes up in my article, “‘What If?’ Thinking: Imagining Alternative Histories as a Way to Know,” The Occidental Observer, online, posted December 3, 2021.


To Vote or Not to Vote?

Our once great nation seems to be coming apart right before our eyes. Americans are perhaps more divided on social and political matters than at any other time throughout its history. Not only are we experiencing a recession and a proxy war against Russia on behalf of Ukraine that’s costing taxpayers billions each month, but crime throughout the country has skyrocketed (at least in every Blue state and major city). Anti-White rhetoric in the public sphere is not only viewed as perfectly tolerable, but it’s increasing as well. Jewish activist groups such as the ADL are on the constant warpath to stamp out even the slightest whiff of any perceived “anti-Semitism.”

The federal government lies openly to the American people, and a complicit media makes certain to obfuscate any information that might place the Biden administration in a poor light—right now they’re gearing up to intimidate witnesses who might shed light on the Biden family influence pedaling scams. Gay marriage, Transgender acceptance, Critical Race Theory and drag queen story hour are unashamedly promoted by our public-school systems. District Attorney Office’s throughout many U.S. states are intentionally lenient in terms of sentencing Black and Hispanic criminals as a means of eradicating “systemic racism” from the justice system. This not only perverts justice, but it exacerbates the nation’s widespread crime problem since offenders are continuously released back into the same communities they’ve victimized.

The 2020 presidential election was fraught with fraud, and the recent mid-term elections seemed to have had its fair share as well. All of this and more has led some to decry that the entire system is “rigged,” and that voting is “useless.” Whether it’s Democrats or Republicans, the entire Congress is corrupt (save a select few members). Congressional treason becomes even more evident when one realizes that commitment to Israel’s security is their top priority, including giving billions annually to the nation for their military defense. Putting “America first” is evidently the farthest thought from our Congress.

Claiming that America’s two-party political system is nothing more than a “uniparty” seems at times to have some validity. Both Democrats and Republicans, for example, support illegal immigration, although for different reasons. The Democrats see illegals as their new and growing voter base, whereas Republicans see them as cheap labor for corporations and small businesses. Everyone seems to win except the average White American whose country is slipping away right before them.

Republicans and Democrats largely agree that racial ‘diversity’ is a good thing for the country. Both parties also support “gay and LGBTQ+ rights.” Both Republicans and Democrats maintain unwavering support for Israel and are committed to stamping out every vestige of “anti-Semitism.”

None of this is good for Heritage Americans who wish to maintain an authentic connection to the vision of their nation’s Founders.

Along with these discouraging realities comes the chorus to abandon voting altogether, to disengage from the corrupt political system, especially when one recalls the level of obeisance Trump gave to Jews and Israel. Governor Ron DeSantis, if ever elected to the highest office in the land, will prove to be no better than Trump in this regard. Neither will Gov. Glenn Youngkin of Virginia. GOP leadership has a long record of not providing their party with a true reformer, a fighter who’s willing to get dirty with the Democrats. The closest we’ve had was Donald Trump, and he was despised from the very outset by establishment Republicans. He managed, unfortunately, to also discredit his own efforts by appointing persons to his administration that undermined him at every step. Trump also failed to stay on target and to fulfill his campaign promises.

One writer, Richard Solomon, has expressed in clear terms the futility of voting and playing the Republican-versus-Democrat election charade:

What makes voting such a destructive psyop is that we’re in a never-ending election cycle. A lot of people exert much of their emotional energy on the Red vs. Blue puppet show. I think it would be psychologically healthier to accept that voting in a dictatorship is as much a waste of time as fitting Janet Yellen with a chastity belt. I understand why some cling to the “we live in a democracy” fantasy. Reality can be harsher than sandpaper underwear. (“Breaking the Voting Psyop Addiction,” The Unz Review, November 23, 2022)

It’s hard not to empathize with Solomon’s article; he makes some valid points. It’s easy to get so disgusted with the current situation of the country and just throw up one’s hands and give up. I seriously doubt, however, that such an approach will prove fruitful in the end. Oh sure, it sounds good in theory. As Joseph Stalin once said, “It’s not the vote that counts, but who counts the votes.” Of what value, then, is voting in such a corrupt and rigged system? If you try to engage the system by voting or accept its validity, you only prove what a gullible sheep you are, right? But what it amounts to is nothing more than an emotional temper tantrum declaring that it’s all pointless, that the situation is hopeless and there’s not anything we can do about it.

Reading through Solomon’s article one finds no remedy or alternative to not voting. Perhaps he will provide one in a later article, but I couldn’t find anything that might give us some direction on these matters. Yet that seems to be the crux of the problem when declaring that voting is futile — namely, the absence of plausible alternatives and solutions. If dissidents on the right were to stop voting, then what? What would be our next course of action if any?

Even if one is convinced that voting is foolish, deeper and more practical questions still need to be addressed. If millions of sane, politically conservative people throughout the U.S. suddenly declined to vote, what would this lead to? Would the Democrats stop voting too just because we withheld our vote? Their inevitable landslide victory would surely be interpreted as a “mandate” to fulfill the entirety of their cultural Marxist agenda. That’s how they’d see it, and that’s precisely how it would be reported in the mainstream media. And once their candidates win by such a massive margin, what’s to stop them from creating legislation that would place all of us “dissenters,” “racists,” “anti-Semites,” and MAGA folks into concentration camps? You think the Democrats wouldn’t do it if they knew they would face little political resistance or consequences? Think again.

And how would refusing to vote impact our Second Amendment rights? Democrats would make certain to pass laws that would completely eradicate such rights. It would turn every right-leaning gun owner into an enemy of the state. Gun confiscation, then, would not be only a possibility but an undeniable reality. Our people would fall prey to marauding groups of Black criminals, especially among those who are unable to escape our major cities.

If we all refused to vote, then should we also refuse to hold our elected representatives to account for how they vote on our behalf? Does anyone seriously believe that those in office will more faithfully represent their voter base when we abandon any effort to participate in the election process?

Perhaps the Democrats would sympathize with our plight? Get real. Our political opponents don’t play by the same set of rules, nor will they be inclined to have mercy on us when they literally view all conservative White Americans as “racist, Hitler-loving, White supremacists.” Yes, this is how incredibly stupid and evil Leftists are. There is no balance or nuance in their thinking. If anything, history has proven how easy it is to get seemingly “nice people” to engage in the worse kinds of atrocities.

Perhaps large numbers of Democrats would see our point in refusing to play the game of voting? Maybe then they will listen to our message and see the utter futility of it all? Nope, none of this would happen. They would not seriously ponder anything we’ve said nor any political protests we might engage in, no matter how empirically sound and data-driven our ideas (Is diversity really a strength?). They would not come to their collective senses once we declared that we have abandoned the voting charade. They will only see themselves as winners and all of us as losers. And then comes their great payback in which they would seek to punish every one of us. They would not be persuaded by reason, nor would their wrath be assuaged.

Our non-voting amounts to non-resistance in the public sphere, an admission of sorts that the Democrats have better ideas and better solutions to our nation’s problems. And that’s exactly how the media would spin it and how the average American simpleton would interpret our complete abdication of our voting rights.

Jewish elites, of course, would get everything they wanted as a result — even more than what they have now! By not voting and forming a political resistance, we will essentially hand them all they want from us. And they will make sure to “reward” us nicely for it too. Whatever resistance we might have on social media now would be cut off as they’re certain to censor and de-platform all dissenters.

You think the next pandemic is going to be harder for our elites to implement when they know full well that more than half the country has given up their voting responsibilities? They will proudly declare that we have surrendered and have discovered the wisdom of submitting to their great plans for all Americans.

Perhaps someone’s going to suggest that all of us non-voters will unite and fight off the government. Oh sure, that’s going to be a marvelous success! And a whole lot of our people will be killed as a result. Why should we expect that a military conflict with the federal government would prove successful when half of the American population can’t even agree on what constitutes a marriage or gender. Most Americans have been dumbed down too badly to even understand what we’re trying to say to them. Racially conscious Whites are also too busy with constant infighting among themselves, so the likelihood of them uniting in any significant way is slim at best. Most Whites are unwilling and unprepared to fight government tyranny with arms despite what some “second amendment patriots” claim. They’re much too comfortable and well-fed.

Granted, the Republicans are nothing to praise, but by them filling seats in both the House and Senate, we at least maintain a congressional gridlock until the situation improves. And there are good reasons to believe things might improve.

There has been a growing resistance to the old guard within the Republican Party, and some headway has been made in reforming or at least improving it. Granted, it’s not where I want it to be, but to simply throw up our hands and declare “Don’t Vote!” will place us on a pathway full of even greater troubles than we’re currently experiencing. The Democrats will make sure to exploit every ounce of it too.

Despite his many faults, Trump at least awakened millions concerning the Washington Swamp, illegal immigration, and even made statements opposed to our current high levels of legal immigration based on nothing but family connections and a desire to come to the US. Racial issues that Republicans refused to even entertain just seven years ago, are now openly discussed. Whites in America are becoming more politically informed, and a growing number of them have a great distrust in their government. There is talk openly of secession by White Americans, an idea that was laughable a decade earlier. A growing number of patriotic Americans speak freely about how evil their government is. They are also disgusted by increasing levels of Black crime throughout the nation. Black Lives Matter, Antifa, and ‘woke’ ideology are reviled by these same patriotic Americans. More Whites are becoming “red-pilled” on race and politics. Elon Musk’s takeover of Twitter may well prove to be a watershed moment.

All of this is working well for us despite setbacks now and then.

Conservative and evangelical Christians are also opposed to ‘woke’ propaganda. The only ‘Christians’ who support such ideas are liberal Christians and, contrary to what many think, their numbers are dwindling. Their churches are largely empty. Those “Bible-believing” Christians, on the other hand, would agree with many things we believe, much more so than the average liberal Democrat. Thus, rather than viewing them as enemies with all the accompanying epithets (e.g., “Christ-cucks”), we would be wise to view them as potential allies in resisting the Leftist matrix that has been imposed on all of us. This doesn’t mean we have to agree with their religious views (especially those pertaining to Israel), but simply an acknowledgement that there is more socially and politically that unites us than divides us.

It’s important to also recall that it’s not Christians who are calling for atheists or race-realists to be de-platformed and censored. Christians are not brutally attacking those who differ from them on social or political issues. No, this is what the Left does. Whatever one may think of evangelical, Protestant, or Orthodox Christians, they are not leading the charge to take away freedom of expression nor to persecute political dissidents.

Another thing to consider is how swiftly the Democrats have worked to destroy and make unlivable much of the country. They are their own worst enemies, and in some respects, they are driving many Americans to our camp. Democrats don’t seem to be able to temper their insanity — it’s on a feed-forward cycle that gets ever more insane. This will inevitably result in our favor. Americans can put up with a lot, but take away their comforts, their freedoms, tax them at even higher rates than currently, or endlessly propagandize their children to be freaks and degenerates — an ideological agenda that Democrats are unwilling to part with — and there is going to be hell to pay. Most people just want to be left alone. They want societal peace and stability — the very thing that the Democrat Party can never give them. Eventually, our national insanity will subside once enough people are forced to see what a cesspool a Democrat-run nation amounts to.

What about all the voter fraud on the part of Democrats? What use is there in voting when there are so many ways to manipulate and cheat the system? This is not easy to answer, and I don’t pretend to know how to fix the system. In person voting with a valid ID would be a great idea that would be pilloried as “Jim Crow 2.0” by the left. I’m certain that problems associated with voter fraud will not be rectified any time soon. Yet should any of that compel us to abandon all hope and stop voting? Of course not.

Part of the answer, it seems to me, is to push for greater accountability among those who oversee the process, including scrutiny over how the votes are tabulated. This places a mandate on conservative voters to make certain their elected officials are both hearing and doing something about any potential voter fraud. It’s simply an issue we will have to continuously address and ferret out.

Some have suggested that non-woke Americans break from the GOP and create a third party that would more align with our political beliefs. As enticing as such an idea may be, I doubt it would work. It would only serve to deeply divide Republicans and guarantee Democrat victories in every race. As flawed as the GOP may be, it seems better to work within the Republican party in reforming it.

With due respect to those who would differ with me on the matter of voting, I seriously doubt that a complete abandonment of our voting rights is the answer to our problems. Throwing up our hands and refusing to participate sounds good in theory when one is deeply frustrated, but it will hardly do any useful service to our people and future generations of White Americans.

Jan. 6 Trial Dismantles Jeffersonian Democracy, Corrupts Rule of Law

Vestiges of Jeffersonian principles in our present out-of-touch and out-of-control federal government are rapidly being obliterated. No events signal their demise more dramatically than the recent shameful seditious conspiracy prosecutions of the Jan. 6 defendants.

In the first of these, brought against five members of the Oath Keepers including its founder Stewart Rhodes III, a District of Columbia jury on Nov. 29 found Rhodes and another Oath Keeper guilty of seditious conspiracy and acquitted three others. All five were also found guilty of other offenses, e.g., Conspiracy to Impede an Officer from Discharging His Duties.

Rhodes and the other convicted defendant now face up to 20 years in prison on the seditious conspiracy charge, plus additional time for the other offenses. Two other seditious conspiracy trials are scheduled, one against other members of the Oath Keepers and a second against the Proud Boys.

These prosecutions should never have been brought and would not have been brought if men such as Thomas Jefferson still held sway in our government.

The seditious conspiracy statute at the core of these prosecutions traces its origins to a law passed in 1861 during the Civil War but is similar to the seditious conspiracy section of the 1798 Alien and Sedition laws that caused such bitter discord between John Adams, who advocated them, and Thomas Jefferson, who vehemently opposed them, that the two Founding Fathers did not speak to each other for nearly 12 years until 1812 when they reconciled in a profound and remarkable series of letters.

When Jefferson became president in 1801, he allowed the Alien and Sedition laws to expire and pardoned those who had been convicted under them. Although Jefferson and Adams were locked in cold silence, Adams’s wife, Abigail, in 1804 sent Jefferson a letter chastising him for pardoning a man convicted under the law who had make scurrilous statements about Adams.

Here is Jefferson’s response:

I discharged every person under punishment or prosecution under the Sedition law, because I considered and now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution in every stage as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship their image.

Jefferson also condemned the sedition law as “palpably unconstitutional” in his Kentucky Resolutions, which he published anonymously in 1798, apparently fearing he himself might be prosecuted for sedition.

We can, accordingly, state with confidence that Jefferson would never have approved the prosecution under the Seditious Conspiracy Act of the Jan. 6 defendants. Jefferson knew all too well that linking the amorphous concept of sedition with the equally unbounded concept of conspiracy and then putting this combination into the hands of an intrusive and politically biased government was inimical to civil liberties.

The Biden administration, by contrast, through its Department of Justice (DOJ)—a title that has become as ironical as Orwell’s Ministry of Truth—and with massive assistance from the FBI, which is becoming more and more like a Praetorian Guard, devoted enormous resources to deploying the rarely used Seditious Conspiracy Act against the hapless and overwhelmed Jan. 6 defendants. To add insult to injury, the DOJ has employed numerous illicit and unfair tactics to justify its indictments and obtain convictions. Prominent among these improper tactics were the following:

FBI Informants

Credible reports indicate that several Oath Keepers were not indicted even though they were as involved in the Jan. 6 events as the Oath Keepers who were indicted. This supports an inference that many of the Oath Keepers were colluding with the government as informants or agents. Several docket entries in the Rhodes trial bolster this inference, including a Sept. 23 order from Judge Amit Mehta, granting the government’s ex parte motion to conceal from discovery “undisclosed civilian witness information.” Most tellingly is a Nov. 8 “Notice Regarding Potential Violation of Protective Order” that the government filed under seal (to prevent the public from reading it) but which, apparently by clerical error, was placed on the public access docket. In this notice, the government bitterly complains that information had been leaked (and picked up by The New York Times) about one of the FBI’s confidential human sources, one Greg McWhirter.

McWhirter, a black Montana deputy sheriff, had risen in the Oath Keepers organization to the rank of vice president. Rhodes often mentioned him as evidence that the Oath Keepers was not a racist organization. During all this time, however, it appears McWhirter was an FBI informant or agent. To add yet another layer of nefarious FBI conduct, and this a bizarre one,  Rhodes defense counsel were planning to call McWhirter as a witness, apparently  to expose his role as an agitator. Yet, as the FBI informant boarded the plane for his scheduled court appearance, he suffered heart trouble and could not testify. He is only 40 years old.

Intimidation of Defense Witnesses

It is undisputed that the FBI visited certain defense witnesses shortly before they were to testify, supposedly to apprise the witnesses of the consequences of testifying in certain ways, i.e., that the witnesses themselves might be prosecuted. The defense rightly objected to these FBI visits, but Judge Mehta seemed untroubled by them. But who among us would not be intimidated if before we were to testify in a highly charged political trial we were visited by the FBI, who warned us we could become targets for prosecution if we testified in certain ways?

Coerced Plea Agreements

Numerous reports from The Epoch Times, the Patriot Freedom Project, and other sources catalogue a long list of serious abuses inflicted on the Jan. 6 defendants while they were held without bail in pretrial detention. Physical beatings, deprivation of medical care, long periods in solitary confinement, deprivation of contact with family and the outside world, repeated verbal attacks—these are only some on the list of abuses.

In addition to these instances of misconduct by the DOJ and FBI, there is another important issue that hopefully the defense will raise on appeal, namely the court’s refusal to transfer venue out of the District of Columbia. The defense presented evidence showing that 71% of D.C. residents were predisposed to find the Jan. 6 defendants guilty, a number that actually seems an underestimate.

Moreover, the defense pointed out that the potential jurors were found qualified despite manifest indications of bias, including one who said they were so afraid of Jan. 6 protesters that he “cried all night, like watching 9/11 on TV” and another who had worked for Congress and was a lobbyist.

In his Kentucky Resolutions, Jefferson, a man often invoked by the Jan. 6 defendants, stated his reasons for opposing the 1798 Sedition law. Political freedom, he said, is founded not in confidence in government but in vigilant distrust of it, and therefore constitutions are necessary to bind down those we are obliged to trust with power.

The shameful Jan. 6 defendant seditious conspiracy prosecutions show how right we are to distrust our government and insist that it be bound down by our laws and Constitution.

Reprinted with the permission of American Free Press.

Glen Allen is an attorney and founder of the FREE EXPRESSION FOUNDATION, a 501(c)(3) charitable foundation dedicated to the defense of citizens denied their Constitutional right to free expression See more at Free Expression Foundation,org,  or write FEF, PO Box 65242, Baltimore, MD 21209-9998

Review: Jews and Crime in Medieval Europe

Jews and Crime in Medieval Europe
Ephraim Shoham-Steiner
Wayne State University Press, 2020.

“Jewish scholars have deliberately disregarded some of the source materials I mine in this book, out of fear of its implications for the image of the Jews, and as part of a long tradition of apologetics. Indeed, I was advised by some colleagues not to pursue the subject.”
Ephraim Shoham-Steiner, 2021. 

Thus begins Ephraim Shoham-Steiner’s Jews and Crime in Medieval Europe— a clear and remarkable enunciation of the sanitized, curated, and paranoid nature of Jewish historiography. The above statement illustrates that, while Europeans and their history have long been open to every group libel and accusation, the writing of Jewish history has always been a careful, censored, self-conscious process, designed in large part to portray Jews in a positive light or, at the very least, in such a way as to bleach out all transgressions. Arguably, Jews also engage in such activity as a form of self-deception, leading to a commonplace self-image of innocence and high self-esteem—which in turn fuels higher levels of ethnocentrism. David Sclar, in reviewing Shoham-Steiner’s text for the Jewish Book Council, comments that “con­tem­po­rary Jews do not gen­er­al­ly view their ances­tors as crim­i­nals. Jew­ish mem­o­ry, shaped by images of East­ern Euro­pean shtetls and the wounds of the Holo­caust, con­jures a past filled with meek Jews sur­viv­ing vile accu­sa­tions, cru­saders, and expul­sions.” Jewish historiography is thus less a relating of some historical truths than the presentation of a doctored image of the past. In other words, it is propaganda. Only in rare exceptions, such as Shoham-Steiner’s interesting text, do we get to see behind the curtain, and what we find there is generally disruptive to the image of the Jews we are used to.

Overturning the Lachrymose Narrative of the Jewish Past

The starting point of Jews and Medieval Crime is that Jewish historiography has been painstakingly focused on apologetic responses to historical accusations and indictments against the Jews. This isn’t an entirely new position, and Miri Rubin, in her introduction to Gentile Tales (Yale, 1999), made a rather memorable comment on the ubiquitous “tedious type of prose littered with disclaimers such as ‘it was alleged’ or ‘the Jews were unjustly accused.’” The expulsion of the Jews from England in 1290, for example, was in large part linked to their activity in coin-clipping (shaving the circumference of coins made of precious metals), and thus fraud and the debasement of the currency. In Jewish historiographical treatments of the expulsion, however, one often finds one of two tedious, disclaimer-filled explanatory strategies. The first is to suggest that Jews were not involved in coin-clipping and that this malicious accusation was manufactured for reasons of politics and bigotry. The second is to admit that Jews were indeed coin-clipping, but to argue that they did it only on a small scale and were forced into this criminal activity through prejudicial taxes and economic distress. Both strategies deny Jewish agency, and deny a “Jewish criminality” as such. Shoham-Steiner, however, points out that there were certainly cases in Europe where Jews engaged in coin-clipping in the absence of economic pressures, pointing out references to the felony in the Lemberg (Lviv) edition of the responsa of the thirteenth-century decisor Rabbi Meir of Rothenburg.

As Shoham-Steiner states, “Jewish crime was not just a figment of the medieval mind and its anti-Jewish biases. As such, it is a social phenomenon that needs to be addressed by historians.” One of the main obstacles to acknowledging Jewish agency is what Salo Baron called the “lachrymose conception of Jewish history.” Shoham-Steiner points out that this involved a

widespread way of writing Jewish history that paints the medieval Jewish experience in bleak colors, focusing on legal, economic, and social discrimination against the Jews and highlighting the persecution, pogroms, and blood libels they suffered from. Baron argued that the template used by Jewish historians was that of “the history of suffering and scholarship,” a phrase coined by his teacher, Heinrich Zvi Graetz. Acknowledging the existence of Jewish crime and a Jewish underworld would undercut the lachrymose agenda. Crime exemplifies empowerment and vitality, contradicting the bleak picture of a subdued and disempowered minority.

One of the more important observations found in Shoham-Steiner’s text is that Jews constituted a privileged elite, and these privileges extended to the area of crime and punishment. A common punishment for thieves in medieval Europe was trial by ordeal, most often involving the passing of the hand through flames. Shoham-Steiner points out that “immunity from trial by ordeal was one of the most important privileges obtained by Jews from the Carolingian regime in the ninth century.” Shoham-Steiner discusses one case in which a gentile thief acted at the behest of a Jewish crime lord named Shimon, but declined to name Shimon when he was caught and legal proceedings began. Shoham-Steiner comments that

when it came to the law of the land and the long arm of the authorities, the Jewish instigators and the gentile thieves did not stand on equal ground. … The gentile thief’s capitulation to Shimon’s intimidation was probably a product of his understanding that Jews with Shimon’s affluence and social standing would be favoured by authorities and their illegal activity ignored or overlooked, while [the gentile’s] illegal actions would cause him harm.


It seems a commonplace of Jewish history and contemporary life that Jews tend to be over-represented in financial crime. Despite lackluster Jewish apologetics on this issue (Abraham Foxman’s Jews and Money: Story of a Stereotype being a particularly risible example) white-collar crime and a drive for wealth accumulation has been well-established by empirical academic studies as the most prominent feature of the Jewish criminal profile. In 1971 A. Menachem of the Berkeley School of Criminology published a study in Issues in Criminology titled “Criminality Among Jews: An Overview.”[1] Menachem argued that “the Jewish crime rate tends to be higher than that of non-Jews and other religious groups for white-collar offenses, that is, commercial or commercially related crimes, such as fraud, fraudulent bankruptcy, and embezzlement.” In 1988, Yale University’s Stanton Wheeler published “White-Collar Crimes and Criminals” for the Yale Law School Legal Scholarship Repository. Among Wheeler’s findings were that while Protestants and Catholics were under-represented among white-collar criminals relative to their share of the population, Jews were over-represented to a very large degree (2% of the population, 15.2% of white-collar convictions). Wheeler states that “It would be a fair summary of our data to say that, demographically speaking, white-collar offenders are predominantly middle-aged white males with an over-representation of Jews.” While Stanton’s statistics are enlightening in themselves, a more detailed picture emerges in David Weisburd’s Yale-published Crimes of the Middle Classes: White-Collar Offenders in the Federal Courts (1991). Here Weisburd informs us that although Jews comprise only around 2% of the United States population, they contribute at least 9% of lower category white-collar crimes (bank embezzlement, tax fraud and bank fraud), at least 15% of moderate category white-collar crimes (mail fraud, false claims, and bribery), and at least 33% of high category white-collar crimes (antitrust and securities fraud).[2]

It’s really not all that surprising then that Shoham-Steiner finds fraud to be one of the most prominent Jewish criminal categories of the medieval period. Shoham-Steiner relies heavily on rabbinic responsa (case law) in order to flesh out his analysis of Jewish criminal activity, and this often involves “reading between the lines” of rabbinic injunctions. He points out that many of the regulations contained within Sefer Hasidim, a thirteenth-century collection of ethical, ascetic, and mystical teachings of the Ashkenazi Jews, take “as a given that Jews habitually dealt in stolen goods and traded in them regularly; implicitly, it permitted Jews to buy, sell, or accept as collateral goods without reference to their provenance, as long as they were not objects of religious significance.” This last proviso was included not as a form of deference to the sensibilities of the host population, but as a matter of Jewish communal security. Shoham-Steiner argues that it was thought “extremely dangerous” for Jews to trade in such items because “gentiles were likely to believe that the objects were obtained not for commercial purposes but for acts of religious desecration, mockery or sorcery. Such dealings thus put not only the trafficker but the entire community in danger.”

Aside from the trade in stolen goods, there are examples in the text also of common fraud, such as the selling by Jews of “silver” objects to gentiles that were later discovered to be composed primarily of copper. Shoham-Steiner refers to the late-fifteenth-century ethical codes and communal regulations of the Jews of Candia (modern Heraklion in Crete), arguing that “the language suggests that Candian Jews were indeed stealing from, defrauding, and lying to gentiles, creating animosity towards the community.” As David Sclar points out, the text “erad­i­cates any notion that the Jew­ish minor­i­ty had nei­ther the where­with­al nor the incli­na­tion to engage in illic­it activ­i­ties.”

A particularly interesting section of the book contains some information on Jewish involvement in occultism during the period. One of the common accusations of the medieval period against the Jews was that of ritual murder, as well as host desecration and other crimes of a specifically anti-Christian or quasi-demonic character. The common rejoinder is to rely on a notion of Jewish piety, and to stress there is no place in the Judaism for such dark machinations. Shoham-Steiner, however, makes interesting reference to Hebrew books of spells, including one from early fifteenth-century Italy. One spell in the book instructs thieves on how to use body parts and magic in order to carry out a successful theft:

And the thieves that go from one house to another take the hand of the dead with them. Once they enter a house they can place it in the middle of the room, and this way it causes everyone in the house to shiver and to fall asleep. And they take four burning candles and they throw diamond dust on the candles. Then they place the candles in the four corners of the house and it seems to the house dwellers that the house is rolling and moving. And when the thieves wish, they take the hand of the dead and place it on the heart of the owner of the house and they ask him where he has hidden the keys to the gold and the silver hidden in the house and he tells them about all his belongings.

Sex Crime 

Shoham-Steiner includes a substantial chapter on Jewish sex crime, especially prostitution. In one case, a Jewish cantor was accused of stalking a woman he apparently claimed to believe was a prostitute. In any case, there have been a number of significant historical incidents where anti-Jewish attacks by gentile populations have been provoked by Jewish sex crimes, illicit behavior, and a general tendency among Jews to cause a deterioration in the sexual morals of the surrounding culture. In his Cornell-published The Sephardic Frontier: The Reconquista and the Jewish Community in Medieval Iberia Jonathan Ray comments that “sexual permissiveness in general, and relations with non-Jews in particular, were often cited by Jewish reformers as the cause for communal instability and anti-Jewish attacks by Christians.”[3] Ray also cites cases where Jewish religious figures were proven to have engaged in sexual activities with prostitutes and young boys.

Many of the ritual murder stories from the period, of course, have sex crime subtexts, since many of the young boys alleged to have been murdered by Jews were found naked as well as wounded. There were indeed cases during the period where Jews had violently attacked Christians in acts of genital mutilation. Paola Tartakoff in Conversion, Circumcision, and Ritual Murder in Medieval Europe points out that in England in 1202 “a Christian named Robert of Sutton accused a Jew from Bedford named Bonefand of having ‘wickedly had [Robert’s nephew Richard] emasculated,’ and thereby caused him to die.”[4] The case may have been an act of punitive castration, which was common in the period, but it nevertheless illustrates Jewish agency in committing acts of violence.

Jews are well-documented in the contemporary record as having been users of gentile prostitutes, pimps, and as brothel owners. However, as with other categories of crime, Jews enjoyed privileged and protected status. Shoham-Steiner is forced once more to rely on interpretations of the unmentioned in rabbinic responsa, rather than the direct archival record, but what he infers is a broad swathe of Jewish sex crime, both inside the Jewish communities of medieval Europe and also Jewish criminal activity directed against Europeans. This is broadly in keeping with the findings of Trevor Dean in his Cambridge-published Crime and Justice in Late Medieval Italy, in which he states that, “the prosecution of Jews for sexual offences was was quite rare — fewer than a dozen cases have been found across two hundred years of Perugia’s history — though it is claimed that the statements of rabbis, preachers, and moralists of both religions suggest much greater frequency.”[5]


As suggested by my references to earlier published works, Ephraim Shoham-Steiner’s text is not entirely original in its pointing to historical Jewish criminality, but it is certainly noteworthy for the directness of its focus. Texts like these are important for a number of reasons. First, books published in the academic mainstream by respected publishing houses carry some weight, and it is a rare and welcome event that a book focusing on negative aspects of the Jewish past should see the light of day under their imprint. Second, the content of such books is crucial to a developed understanding of Jewish influence in the past and present. Key themes such as the privileged and protected status of the Jews, the censored nature of discussions about Jews and their past, and empirically proven instances of negative Jewish behaviors are invaluable in terms of overturning entrenched concepts of Jewish innocence and Jewish victimhood. Third, they are important in crystallizing our understanding of Jewish behavior in the present. The Jewish relationship to financial crime, for example, is not a matter of stereotypes but a trajectory of significant historical pedigree. Jewish financial crime is not a figment of a bigoted imagination, but runs deep into the earliest origins of the Jewish community in Europe.

As Shoham-Steiner makes clear, Jews “were indeed stealing from, defrauding, and lying to gentiles.”

[1] A. Menachem, “Criminality Among Jews: An Overview,” Issues in Criminality, Volume 6, Issue 2, (Summer 1971), pp.1-39.

[2] D. Weisburg, Crimes of the Middle Classes: White-Collar Offenders in the Federal Courts (Yale University Press, 1991), p.72

[3] J. Ray, The Sephardic Frontier: The Reconquista and the Jewish Community in Medieval Iberia, (Ithaca: Cornell University Press, 2006), 172.

[4] P. Tartakoff, Conversion, Circumcision, and Ritual Murder in Medieval Europe (Philadelphia: University of Pennsylvania Press, 2020), 55.

[5] T. Dean Crime and Justice in Late Medieval Italy (Cambridge: Cambridge University Press, 2007), 149.

Is Affirmative Action Constitutional?

No. 20-1199.

Argued Oct. 31, 2022.

Decided Dec. 2, 2022.



No. 21-707.

Argued Oct. 31, 2022.

Decided Dec. 2, 2022.  

Justice KUMAR delivered the opinion of the Court.

In two cases now jointly before us, the Court is asked once again to consider whether the use of race in the admissions programs of institutions of higher education is constitutionally permissible against the Equal Protection Clause of the Fourteenth Amendment, and whether such race-conscious admissions violate Title VI of the Civil Rights Act of 1964. Specifically, the Court is asked to examine the constitutionality of our own precedent on this matter, namely our holding in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325 (2003), and to investigate whether the admissions programs of Harvard College (or Harvard) and the University of North Carolina (or UNC) are respectively violative of Title VI and the Equal Protection Clause.

Students for Fair Admissions, Inc., (SFFA) filed suit against Harvard in the District of Massachusetts. The District Court ruled in favor of Harvard, holding that its race-conscious admissions policies did not violate Title VI. On appeal, the United States Court of Appeals for the First Circuit affirmed that ruling. We then granted certiorari. SFFA filed suit against UNC in the Middle District of North Carolina. The District Court ruled in favor of UNC, holding that its race-conscious admissions policies violated neither the Equal Protection Clause nor Title VI. SFFA appealed to the United States Court of Appeals for the Fourth Circuit, from which we granted certiorari prior to judgment in that appeal.

We hold that: (1) our precedent concerning race-conscious admissions is both self-contradictory and failed to apply a sufficiently rigorous strict scrutiny analysis, under which race-conscious admissions policies must fail; (2) strict scrutiny is not the proper test to determine constitutionality under the Equal Protection Clause; (3) the Equal Protection Clause as it was originally intended presents no barrier to affirmative action and only a limited barrier to narrow categories of racial discrimination not implicated in this case or in most of our other discrimination cases; (4) the Equal Protection Clause presents no barrier to racial preferences or discrimination of any kind because the Fourteenth Amendment itself was neither properly proposed, ratified, nor adopted, and is thus not a part of the United States Constitution; and (5) Title VI presents no barrier to racial preferences or discrimination of any kind because the Civil Rights Act of 1964 is unconstitutional.


We begin our analysis with a review of our own precedent on the constitutionality of the use of race in admissions programs. This precedent is defined primarily by Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325 (2003), but also necessarily implicates an entire line of cases, including: Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733 (1978); Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411 (2003); Fisher v. University of Texas at Austin, 133 S.Ct. 2411 (2013) (or Fisher I); and Fisher v. University of Texas at Austin, 136 S.Ct. 2198 (2016) (or Fisher II). In studying our precedent, we find that: (1) this Court has subverted the very notion of strict scrutiny review by granting improper deference to institutions of higher education, and (2) race-conscious admissions programs do not survive the application of proper strict scrutiny analysis.


This Court first considered the issue of race in higher education admissions in Regents of the University of California v. Bakke. 438 U.S. 265, 98 S.Ct. 2733 (1978). While none of the opinions generated in that case commanded a majority, Justice Powell’s is considered to be controlling. In that opinion, relevant to the case at hand, we held that: (1) racial preferences are suspect classifications and thus, under the Equal Protection Clause, must survive the application of a strict scrutiny test whereby the State must show that it has a compelling and substantial interest, the achievement of which necessitates and thus justifies the challenged classification; (2) Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State; and (3) a university’s asserted goal of achieving a diverse student body, also asserted as and used interchangeably with “obtaining the educational benefits that flow from an ethnically diverse student body,” is a sufficiently compelling and thus constitutionally permissible interest to justify the use of race as a factor in admissions decisions, so long as race is used as a “plus factor” rather than the sole determinative factor in said decisions, i.e., with the use of a numerical racial quota system. Bakke, 438 U.S. 265 at 265, 267, 284-87, 305-06, 311-12, 313, 315-18, 98 S.Ct. 2733 at 2733, 2737, 2745-46, 2756-57, 2759-62.

This Court next considered the issue of race-conscious admissions in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325 (2003). In Grutter, we affirmed our holding in Bakke while also attempting to further clarify that holding; specifically, we held that: (1) student body diversity, again used interchangeably with “obtaining the educational benefits that flow from a diverse student body,” is a compelling State interest; (2) a university’s race-conscious admissions program will be deemed to be sufficiently narrowly tailored to serve that compelling interest in diversity, and thus survive a strict scrutiny test, where such a program uses race as a “plus factor” in a multifactor, holistic admissions process; and (3) race-conscious admissions programs must be limited in time, with an expectation that, by 2027, “the use of racial preferences will no longer be necessary to further the interest approved today.” 539 U.S. 306 at 306-10, 328-29, 123 S.Ct. 2325 at 2325-30, 2339.

In Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411 (2003), decided alongside Grutter, we reaffirmed both the validity of student body diversity as a compelling State interest and the application of a strict scrutiny test to racial preferences in admissions as suspect classifications. Gratz, 539 U.S. 244 at 244-47, 123 S.Ct. 2411 at 2411-16. In Fisher v. University of Texas at Austin, 133 S.Ct. 2411 (2013), or Fisher I, we held that the application of strict scrutiny “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice.” Id. at 2411-14. In Fisher v. University of Texas at Austin, 136 S.Ct. 2198 (2016), or Fisher II, we elucidated three controlling principles drawn from Fisher I: (1) a university may not consider race unless the admissions process can withstand strict scrutiny; (2) the decision to pursue “the educational benefits that flow from student body diversity” is an “academic judgment” to which some judicial deference is proper; and (3) in determining whether the use of race is sufficiently narrowly tailored, the school bears the burden of demonstrating that “available” and “workable” race-neutral alternatives are insufficient for the achievement of its asserted “diversity interest.” Fisher II, 136 S.Ct. 2198 at 2198-2204.

From this body of precedent, the following principles can be distilled: (1) race-conscious admissions are necessarily racial preferences and thus racial classifications; (2) as racial classifications, race-conscious admissions policies must be subjected to strict scrutiny review, whereby the institution must assert a sufficiently compelling interest to justify its use of racial preferences and show that its use of racial preferences is sufficiently narrowly tailored to achieve its permissible interest; (3) a university’s asserted interest in “student body diversity” or “obtaining the educational benefits that flow from student body diversity” is a legitimately compelling interest that survives the application of strict scrutiny; (4) a race-conscious admissions program will be deemed to be sufficiently narrowly tailored to survive the application of strict scrutiny where race is used as one “plus factor” among many factors and where a university shows that race-neutral alternatives are insufficient for the achievement of its interest; and (5) a race-conscious admissions program will be deemed violative of the Equal Protection Clause and Title VI where it fails the application of strict scrutiny.


Ordinarily, the next step in our inquiry would be applying our precedent to the race-conscious admissions programs employed by Harvard and UNC. However, the rote application of our precedent would require us to endorse said precedent, something that we decline to do for the simple reason that it is self-contradictory. We have failed to abide by our own controlling principles in the very cases in which we promulgated them. Put simply, although this Court has claimed to apply strict scrutiny in our previous considerations of racial preferences in college admissions, we have done no such thing. Instead, we have granted extreme deference to universities in their articulation of a compelling interest. Race-conscious admissions programs do not and cannot survive either prong of the application of strict scrutiny review, because institutions of higher education possess no compelling interest in diversity.

In Bakke, Justice Powell—in a part of the opinion not joined by any other Justices—declared that “the attainment of a diverse student body,” also referred to as “obtaining the educational benefits that flow from student body diversity,” is both “clearly a constitutionally permissible goal for an institution of higher education” and “of paramount importance in the fulfillment of [the university’s] mission.” 438 U.S. 265 at 305-06, 311-13, 98 S.Ct. 2733 at 2756-57, 2759-60. In Grutter, we held that “attaining a diverse student body is at the heart of [a university’s] educational mission,” deferring to a university’s “educational judgment that diversity is essential to its educational mission” and said that our scrutiny “is no less strict for taking into account complex educational judgments in an area that lies primarily within the university’s expertise.” 539 U.S. 306 at 308, 328-29, 123 S.Ct. 2325 at 2329, 2339. A university’s “good faith” in articulating its supposed interest in diversity is “presumed.” Bakke at 318-19, 2762-63; Grutter at 308, 328-29, 2329, 2339.

Before we discuss the uncompelling nature of this supposed interest in diversity, we must first note that the extreme deference that this Court has granted universities is “an approach inconsistent with the very concept of strict scrutiny.” Grutter, 539 U.S. 306 at 350-78, 123 S.Ct. 2325 at 2350-65 (Thomas, J., concurring and dissenting). In granting this deference, Justice Powell provided only a vague reference to the notion of “academic freedom,” which he defined as “the freedom of a university to make its own judgments as to education includes the selection of its student body.” Bakke, 438 U.S. 265 at 311-12, 98 S.Ct. 2733 at 2759. We do not dispute the right of an educational institution to select its student body, but we reject the unenumerated concept of “academic freedom,” speciously injected into the First Amendment by Justice Frankfurter in Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203 (1957). This is the weak foundation upon which this Court has time and again provided universities a wide latitude not accorded in the application of strict scrutiny in any other context.

In our unwarranted provision of broad deference to universities, we have failed time and again to undertake a proper strict scrutiny analysis of race-conscious admissions programs. We do so now, and find that universities do not and cannot possess a supposed interest in diversity. In the first place, this interest has never actually been defined, and rather oscillates between two different phrases, “attaining diversity” and “obtaining the educational benefits that flow from diversity,” which are inexplicably used interchangeably to refer to the same asserted interest. Grutter, 539 U.S. 306 at 350-78, 123 S.Ct. 2325 at 2350-65 (Thomas, J., concurring and dissenting). Because neither of these phrases has been specifically defined and both are used synonymously, it is clear that the interest this Court has repeatedly deemed sufficiently compelling to survive the application of strict scrutiny is simply diversity for the sake of diversity, “whatever [‘diversity’] means.” Id. Any distinction between a “compelling interest in attaining a diverse student body” and a “compelling interest in securing the educational benefits of a diverse student body” is “purely sophistic.” Id.

Indeed, if “educational benefits” are the interest this Court has deemed to be sufficiently compelling to justify racial preferences, what precisely are these benefits? In Bakke, none whatsoever were provided. In Grutter, we accepted the so-called “educational benefits” of cross-racial understanding and the breaking down of racial stereotypes.” 539 U.S. 306 at 308, 328-29, 123 S.Ct. 2325 at 2329, 2339. In Fisher II, we accepted the so-called “educational benefits” of “ending stereotypes, promoting cross-racial understanding, preparing students for an increasingly diverse workforce and society, and cultivating leaders with legitimacy in the eyes of the citizenry.” 136 S.Ct. 2198 at 2198-2204.

In the case at hand, Harvard argues that “diversity” is “vital to preparing individuals to work and participate as citizens in our pluralistic democracy” and “integral to learning,” leads to “greater knowledge” and “the tolerance and mutual respect that are so essential to the maintenance of our civil society,” and helps students to “challenge [their] assumptions” and “learn to listen to difference.” UNC argues that “diversity” is “a fundamental American value” and our nation’s “greatest strength,” and is thus “essential to harnessing that strength and preparing students for success in modern society,” citing the further “benefits” of “promoting the robust exchange of ideas,” “fostering innovation,” “preparing effective leaders,” preventing “groupthink,” and readying students “to navigate in a complex multicultural world.”

These are amorphous, meaningless platitudes unsupported by any evidence that is not purely anecdotal and emotional. These goals are neither concrete, precise, nor even defined at all without reference to themselves. Fisher II, 136 S.Ct. 2198 at 2215-43 (Thomas, J., dissenting). If these are to be collectively deemed a compelling State interest, then “everything is” a compelling State interest. Grutter, 539 U.S. 306 at 346-49, 123 S.Ct. 2325 at 2348-50 (Scalia, J., concurring and dissenting). This Court has never done anything approximating legal work in our determinations that “diversity” is a compelling interest, instead using the circular and conclusory argument that universities have a compelling interest in achieving diversity because of the educational benefits of diversity, which are the achievement of diversity. Grutter, 539 U.S. 306 at 350-78, 123 S.Ct. 2325 at 2350-65 (Thomas, J., concurring and dissenting). If universities can survive so-called strict scrutiny review “simply by having a few employees opine that racial preferences are necessary to accomplish these nebulous goals, then…[c]ourts will be required to defer to the judgment of university administrators, and affirmative-action policies will be completely insulated from judicial review.” Fisher II, 136 S.Ct. 2198 at 2215-43 (Thomas, J., dissenting).

Even more concerningly, none of these “educational benefits” is even tangentially related to education. Grutter, 539 U.S. 306 at 346-49, 123 S.Ct. 2325 at 2348-50 (Scalia, J., concurring and dissenting). In fact, no tangible, substantial, or objectively measurable educational benefits have ever been shown to be caused by or even connected with racial diversity.  Education is understood as the impartation of knowledge and skills to students, rather than a debased, “communal, rubber-stamp, credentialing process” of ritual social compliance. Grutter, 539 U.S. 306 at 350-78, 123 S.Ct. 2325 at 2350-65 (Thomas, J., concurring and dissenting). How then is “diversity” an educational benefit? Universities using race in their admissions programs are not interested in educating their students. They seek “only a façade—it is sufficient that the class looks right, even if it does not perform right.” Id.

We neither consider “the attainment of diversity” nor “obtaining the educational benefits of diversity” to be compelling State interests that would justify the use of race in admissions programs. As such, race-conscious admissions programs cannot survive the application of strict scrutiny. There is no need to enter the second prong, “narrow tailoring,” if the first, “compelling interest,” cannot be satisfied. Were we to end our inquiry here, we would overturn our entire body of precedent on this issue and hold, as SFFA argues, that race cannot be used as a factor in admissions decisions. However, our inquiry is incomplete.


We must next ask whether this Court has properly interpreted the Equal Protection Clause of the Fourteenth Amendment in our prior cases dealing with race-conscious admissions. Although we have established that race-conscious admissions programs do not satisfy strict scrutiny review, we have not conclusively established that strict scrutiny review is the proper method of analyzing challenges brought under the Equal Protection Clause. We believe it is not. After investigating the circumstances surrounding the drafting and passage of the Fourteenth Amendment, we find that: (1) strict scrutiny review has no constitutional or historical basis and is thus not the proper interpretive framework with which to analyze Equal Protection Clause claims; (2) the Fourteenth Amendment was neither constitutionally proposed nor ratified and is thus unconstitutional; (3) even if we were to grant the legitimacy of the Amendment, the Equal Protection Clause had a strictly limited meaning in service of a strictly limited purpose; and (4) as such, the Equal Protection Clause is not a constitutional barrier to the use of race in admissions decisions.


Before delving into the sordid history of the Fourteenth Amendment and the intentions of its framers, a brief investigation of strict scrutiny review is due. On matters implicating the Equal Protection Clause, this Court has for decades now unthinkingly applied a strict scrutiny test in order to determine whether or not the Clause, and thus the Amendment, has been violated. We find no basis, either in the Amendment or elsewhere in the Constitution, for doing so. The words “strict scrutiny,” along with the two prongs of its test, under which legislation will be upheld against constitutional challenge only if “necessary” or “narrowly tailored” to promote a “compelling” governmental interest, appear nowhere in the Constitution. “Neither is there any textual basis, nor any foundation in the Constitution’s original understanding,” for strict judicial scrutiny. Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1268 (2007).

While the origins of strict scrutiny review and its modern two-prong test are relatively opaque and difficult to trace, this Court’s first explicit contemplation of “a more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” was made in a footnote to a New Deal opinion. United States v. Carolene Products Co., 58 S.Ct. 778, 783-84 n.4 (1938). Although this Court first used the term “strict scrutiny” in Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), albeit passingly, and again spoke of applying “the most rigid scrutiny” to racial classifications in Korematsu v. United States, 323 U.S. 214, 216 (1944), the modern “compelling interest” and “narrow tailoring” test did not emerge until the 1960s with several Warren Court decisions. Fallon at 1270, 1274. Although strict scrutiny as we know it today did not spontaneously materialize from the ether as Athena from the head of Zeus, it was gradually cobbled together from a patchwork of this Court’s opinions with neither reference to nor basis in the Constitution.

In a number of First Amendment cases, this Court began to develop “both a vocabulary and a set of doctrinal ideas that would shortly coalesce into the modem strict scrutiny test,” anticipating both the “compelling interest” prong[1] and the “necessity” or “narrow tailoring” prong[2]. Id. at 1278-79. We developed even more similar precursors to the modern “compelling interest” requirement in several freedom of association cases[3]. Id. at 1279-81. In Bolling v. Sharpe, we further approached the modern formulation, declaring that racial classifications are “constitutionally suspect” and “must be scrutinized with particular care.” 347 U.S. 497, 499 (1954). In McLaughlin v. Florida, involving a challenge under the Equal Protection Clause to a Florida statute prohibiting the cohabitation of unmarried interracial couples, this Court cited Bolling and Korematsu and held that racial classifications could only be upheld if “necessary, and not merely rationally related, to the accomplishment of a permissible State policy.” 379 U.S. 184, 196 (1964).

Although the demand for a “compelling governmental interest” made its first explicit appearance in the context of racial discrimination in Palmore v. Sidoti, 466 U.S. 429, 432-33 (1984), the first real application of strict scrutiny in a racial discrimination case was in Bakke, where Justice Powell’s controlling opinion, much of which was joined by no other Justice, applied “strict” or “the most exacting” scrutiny to determine whether the challenged race-conscious admissions policy was violative of the Equal Protection Clause. Fallon at 1277-78; Bakke at 290, 300. So, while embryonic precursors to our modern conception of strict scrutiny review have existed since the New Deal, the two-prong test associated with such review did not fully come into being until the 1960s and was not applied in the context here at issue until 1978. The Fourteenth Amendment was nominally adopted in 1868, over a century prior. By applying a test that has no basis, textual or otherwise, in the very Amendment said test is supposedly to interpret against, this Court has practically rewritten and done violence to the Amendment and will do so no more.


The adoption of the Fourteenth Amendment was so rife with irregularities that the Amendment cannot be said to be a part of the United States Constitution. Central to the issue of its legitimacy is the question of whether the secession of the Southern States had been legal, and what the consequent legal status of those States were after the surrender of the Confederate States of America. Presidents Abraham Lincoln and Andrew Johnson, as well as this Court, disagreed on the issue with the Radical Republicans in Congress. This issue was of paramount importance, determining whether the approval of three-quarters of 25 States or of 36 States would be necessary. Inexplicably, rather than settle the issue, Congress followed an inconsistent course. Forrest McDonald, Was the Fourteenth Amendment Constitutionally Adopted? 1 Ga. J. South. Leg. Hist. 1-20 (1991).

Irregularities marred each stage of the Amendment’s spurious adoption. It was proposed by an incomplete Congress that only represented 25 of the 36 States, with the Southern States denied representation. Every Southern State, aside from Tennessee, initially rejected the Amendment and only changed their positions under duress, coerced by the threat that their readmission into the Union as States was conditioned upon ratification. Three of the Northern States that initially ratified the Amendment later rescinded their votes. This is not an exhaustive list, as additional irregularities further complicate the question of the Amendment’s constitutionality. Id.


Article V provides that “Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments.” U.S. Const., Art. V. There is a question as to whether the aforementioned “two-thirds” is to be applied to the total membership or to those members present. McDonald at 1-20. Article V defines a quorum as a simple majority and authorizes each house to judge the qualifications of its members and make its own rules. U.S. Const., Art. V, §5. The First Congress clearly understood “two thirds of both Houses” to mean two-thirds of a quorum, and, when the issue arose during the proposal of the Twelfth Amendment, the same understanding carried the day. McDonald at 1-20. We should note that, though this reasoning was rejected during the debates over the Twelfth Amendment, the Constitution requires “two-thirds” majorities in two other circumstances, impeachment and treaty ratification, both of which refer to the members present; from this, one could reasonably infer that the different phrasing of the “two-thirds” requirement in proposing Amendments referred instead to the total membership. U.S. Const., Art. I, § 3; Art. II, § 2; McDonald at 1-20.

The final vote on the proposal of the Fourteenth Amendment in the House of Representatives was 120 to 32, with 32 abstentions, a tally that surpasses the requisite “two-thirds” of the members present. However, the eleven States of the Confederacy were entitled to and had elected 61 representatives who had been denied seats, all of whom would have voted in the negative. Had their votes been cast, the “two-thirds” majority would have been reduced to a mere 56 percent. Furthermore, the majority included representatives from the newly-admitted States of Nevada and West Virginia even though the statehood of both of them was doubtful. In the Senate, the final vote was 33 to 11, with 5 abstentions. If the 22 votes of the former Confederate States were tallied in the negative, the vote would have been a tie. If the four votes of Nevada and West Virginia were removed from the equation, those in favor of the Amendment would not have had even a simple majority. McDonald at 1-20.

There was another wrinkle. There were fifty non-Southern Senators, while the final tally in the Senate only included 49. The missing Senator was John Stockton of New Jersey, who had been formally seated when the Thirty-Ninth Congress convened on December 5, 1865. When an internal poll revealed that only 33 of the members supported the Amendment, one short of the requisite “two-thirds,” a motion was made not to seat Stockton, a vocal opponent of the Amendment. The motion not to seat was resorted to, despite the fact that Stockton had already been seated, because the Constitution requires a “two-thirds” vote to expel a member. Id.; U.S. Const., Art. V, § 5. The proponents of the Amendment did not have that majority. The motion not to seat initially failed, 22 to 21; overnight, one member was persuaded to change his vote, and the motion carried the next day. Leaving aside the fact that the Southern States were denied representation, this was an unconstitutional expulsion. Thus, the 33 votes in the Senate did not actually constitute a “two-thirds” majority. McDonald at 1-20.


Radical Senator Charles Sumner of Massachusetts advocated his “State suicide” theory, according to which the act of secession destroyed a State and dissolved its government. In the House, the Radical Thaddeus Stevens of Pennsylvania proposed a different theory whereby the Southern States were conquered provinces stripped of political rights. Under either theory, Congress would possess exclusive authority to govern the Southern States under its power to govern territories. Under this conception, 19 of the 25 “loyal” States would constitute the requisite three-fourths majority to ratify the Amendment, not 27 of the 36 States including the South. Had Congress chosen to act under the theories advanced by Sumner or Stevens, it almost certainly would not have encountered any constitutional barriers. It could then have constitutionally required the Southern States to ratify the Amendment as a condition to statehood, just as it could impose such requirements upon any territories contemplating statehood. Interestingly, however, Congress rejected both theories and took a strange path. On June 16, 1866, when the proposed Amendment was submitted to the States for ratification, Congress sent it to all 36 States, “a tacit endorsement of the position that the Southern States were still full-fledged members of the Union.” Id.

Five States ratified the Amendment within the first three months. The ratifications by Connecticut, New Hampshire, and New Jersey were unexceptional, though New Jersey would later rescind its ratification, but the ratifications by Tennessee and Oregon were highly irregular. In Tennessee, opponents of the Amendment in the House absented themselves in order to prevent quorum. Two of those absent were arrested and held in an anteroom, despite the issue of a writ of habeas corpus ordering their release. The speaker declared them absent and was overruled by the members present, whereupon this rump House voted for ratification. In Oregon, proponents of the Amendment had a majority of only one in the House, but two of their seats were challenged. The two were temporarily seated for the purpose of ratifying the Amendment, but the Republicans occupying both seats were determined to have been illegally elected later in the session and were awarded to Democrats who opposed the Amendment. Oregon then rescinded its ratification. Id.

In October, Vermont ratified the Amendment while Texas overwhelmingly rejected it. Georgia followed suit, rejecting the Amendment almost unanimously. In December, Florida unanimously rejected it, while Arkansas, North Carolina, and South Carolina rejected it by similarly overwhelming majorities. The Republican Governor of California refused to call a special session to consider the Amendment, and California would later reject it. In January, Virginia, Alabama, and Mississippi rejected it, with Louisiana doing likewise in February. The “loyal” Border States of Kentucky and Delaware also rejected the Amendment. With the Thirty-Ninth Congress set to expire on March 4, 1867, eleven States had rejected it. Later in the month, Maryland would make twelve. The admission of Nebraska to statehood on March 1 brought the total number of States to 37, meaning that 28 States would be required for ratification. Id.

Again, had Congress opted to take either of the paths advanced by the Radicals Sumner or Stevens, it could have reduced the requisite number of States for ratification to twenty of 26 “loyal” States, including Nebraska, and it could have required the States of the erstwhile Confederacy to ratify the Amendment as a condition for statehood. Even under this scenario, however, there would have been serious complications. Kentucky, Delaware, and Maryland had already rejected the Amendment, and California would follow. Ohio, New Jersey, and Oregon rescinded their ratifications. If these rescissions were allowed, only nineteen of the requisite twenty States would have ratified. Congress refused to accept the rescissions, despite the argument that legislative ratification only became a contract upon ultimate adoption into the Constitution and could therefore be canceled. Id. Though this Court has never addressed the question directly, we have, in later cases, ruled that, as a political question, Congress is the final arbiter of the matter. Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972 (1939).


Congress used the Reconstruction Act of March 2, 1867, passed over President Johnson’s veto just before the expiration of the Thirty-Ninth Congress, to force the Southern States to ratify the Amendment. The Act declared that no legal governments existed in the ten Southern States that had rejected ratification, divided the South into five military districts, and placed the entire region under martial law. The Act required the Southern States to hold elections for delegates to constitutional conventions, adopt new constitutions, and hold elections for the organization of entirely new State governments. In these elections, newly-emancipated Blacks could vote, while the overwhelming majority of Whites were disfranchised. Only after a State’s new constitution had been approved by Congress and a State’s new rump government had ratified the Amendment would Congress consider ending military rule in said State, recognizing its government, and readmitting it to congressional representation. McDonald at 1-20.

The Act was patently unconstitutional, even leaving aside its coercive nature. In the first place, this Court had ruled less than a year prior that martial law could not constitutionally be imposed, absent war or rebellion, in areas where civilian courts were still functioning. Ex parte Milligan, 71 U.S. 2 (1866). Second, in declaring that the States had continued to exist without legal governments, the Act “entangled itself in contradictions.” McDonald at 1-20. All of the targeted States except Mississippi, which had substantially rewritten its 1832 constitution, had already drafted new constitutions approved by the Federal Government, including by President Lincoln himself. Furthermore, Congress had sent the Thirteenth Amendment to the legislatures elected under those constitutions for ratification. The votes of six of them—Alabama, Arkansas, Georgia, North Carolina, South Carolina, and Tennessee—were counted among the three-fourths majority. So, “in 1865 Congress had recognized the legitimacy of the Southern State governments for purposes of ratifying the Thirteenth Amendment, but, though nothing about those governments had changed by 1867, Congress denied their legitimacy when they voted to reject the Fourteenth Amendment.” Id.

The Act “deprived most White Southerners of their political and civil rights on a wholesale basis, without due process of law, in violation of the Fifth Amendment,” and effectively served as “a bill of attainder against nine million people at once.” Id.; U.S. Const., Art. I, § 9, cl. 3. By precluding Southern representation in Congress, the Act “distorted one feature of the Constitution to annul two other features.” McDonald at 1-20. While Congress has the authority to “be the Judge of the Elections, Returns and Qualifications of its own members,” this power is necessarily exercised on an individual basis through evidentiary hearings. U.S. Const., Art. I, § 5. By arbitrarily excluding members based upon their State, Congress was not judging, but rather “refusing to judge.” McDonald at 1-20. In doing so, Congress deprived the Southern States of their constitutionally guaranteed right to representation. U.S. Const., Art. I, § 2-3; Art. V.


Ratification in the Southern States proceeded under military occupation. Yet, even assuming that the Amendment had been constitutionally proposed, that each ratification prior to the Reconstruction Act of March 2, 1867, was proper, that each rescission was illegal, that the Reconstruction Act of March 2, 1867, was constitutional, and ratification by the governments of the reconstituted Southern States—assuming the legality of those rump governments—would count toward the necessary total, two facts still remained: (1) As of April 1, 1868, the ratification by six more States was necessary, and (2) the Southern State governments could only ratify the Amendment if they were duly recognized as governments at the time of ratification, a status which Congress—legally or not—gave itself the power to award. Id.

Arkansas was the first State to comply with the Act. Though it had voted for ratification by April 6, no resolution to recognize the “loyalty” or legality of Arkansas’s government was proposed in Congress until May 7, and said resolution was not adopted until June. Thus, by Congress’s own terms, Arkansas still had “no legal State government” at the time it voted to ratify the Fourteenth Amendment. Florida was next, ratifying the Amendment on June 9. While Congress debated the State’s readmission, a problem arose: “it turned out that the wording of the Amendment as adopted by Florida differed in several particulars from the phraseology proposed by Congress.” Senator Frederick Frelinghuysen of New Jersey checked the ratifications of four States chosen at randomNew York, Pennsylvania, Michigan, and Wisconsin—and found that none had ratified the Amendment exactly as proposed by Congress, with multiple substantive errors in each certificate. Anticipating the same in each of the other States that had voted for ratification, Congress simply decided that ratification “in any form” was acceptable. Id.

Until this point, ratification of the Amendment had been a necessary qualification for readmission to statehood, but not a sufficient one. In late June, Congress altered the procedure yet again by an act declaring that, automatically upon ratification, the ratifying State “shall be entitled and admitted to representation in Congress as a State of the Union.” This did not solve any ambiguities, however, for this still meant that States were not States at the time of ratification. If they were, “they would already have been entitled to representation.” Clearly, then, none of the Southern States were considered States at the time of ratification and therefore had no ability to ratify the very Amendment they were required to ratify in order to regain statehood and this have the ability to ratify. In any case, these are the terms under which, after ratification by North Carolina, South Carolina, Louisiana, and Alabama, Secretary of State William Seward proclaimed the Amendment ratified and Congress confirmed its adoption. Id.


The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amdt. 14, § 1. The meaning and scope of the Clause cannot be understood without first understanding the meaning and scope of the Fourteenth Amendment. The Amendment, particularly its first section, was designed to “constitutionalize” the Civil Rights Act of 1866, that is, to “embody” the Act in the Constitution; indeed, throughout the debates on the Amendment, virtually all of its framers treated the provisions of the one “as though they were essentially identical with those of the other.” Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 32-33, 48, 50-51 (2nd ed. 1997).

The first section of the Civil Rights Bill provided: “That there shall be no discrimination in civil rights or immunities…on account of race…but the inhabitants of every race…shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment…and no other.” Cong. Globe, 39th Cong., 1st Sess. 474 (1866).  Freedmen were to “have the same enumerated rights (as White men), be subject to like punishment, suffer no discrimination with respect to civil rights, and have the equal benefit of all laws for the security of person and property.” Berger at 34.

The “civil rights” implicated in the Bill were specifically enumerated in order to make clear its strictly limited objectives. Id. In their explanations of the Bill, the respective committee chairmen further explained these limited objectives. House Judiciary Chairman James Wilson, for example, emphasized that the rights enumerated were “no greater than the rights which are included in the general terms ‘life, liberty, and property.’” Id. at 36-37. Wilson asked, “What do these terms mean? Do they mean that in all things, civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. …Nor do they mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights… Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as ‘The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.’” Id.

The sponsor of the Act, Senate Judiciary Chairman Lyman Trumbull, likewise described the implicated “civil rights” as the “right to acquire property, the right to come and go at pleasure, the right to enforce rights, to make contracts.” Id. at 49. Again, the Civil Rights Act of 1866 is central to understanding the intent behind the Fourteenth Amendment because there is voluminous, “unequivocal and uncontroverted” evidence that the Amendment’s framers deemed the Act and the Amendment “identical.” Id. at 48, 50-51. On the ratification trail in 1866, the statements of dozens of congressmen before their constituents explain the Amendment as identical to and “a reiteration of the rights as set forth in” the Act. Id. at 50-51. This Court has recognized that “the legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights.” Georgia v. Rachel, 384 U.S. 780, 791 (1966). It thus follows that, if the Act and the Amendment are identical, the Amendment too protects only “a limited category of rights.” Berger at 48-49.

With this limited character of the Amendment in mind, we now turn to the meaning of “equal protection of the laws.” The principle that laws of general applicability should be nondiscriminatory in their application is well-established in the Anglo-American legal tradition. Id. at 200. The Amendment’s framers interchangeably referred to “equality,” “equality before the law,” and “equal protection,” such that the terms can be understood as synonymous. Id. at 201. These terms were always used only to refer to the rights enumerated in the Act, securing to Blacks “the same right to contract, to hold property, and to sue, as Whites enjoyed,” and the “equal benefit of all laws for security of person and property,” with “political rights” purposely excluded. Id.

By “equal protection,” the framers were clear in their intention to prohibit laws that discriminated against Blacks with respect to those rights specifically enumerated in the Act. The framers “chose words which aptly expressed, and throughout were wedded to, their limited purposes; that there is virtually no evidence that the framers meant by resort to those words to open goals beyond those specified in the Civil Rights Act and constitutionalized in the Amendment.” Id. at 124, 199, 206. House Judiciary Chairman Wilson explained “equal protection” thus: “It merely secures to citizens of the United States equality in the exemptions of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains and penalties from which other citizens are exempted… One race shall not be favored in this respect more than another… This is the spirit and scope of the bill, and it does not go one step beyond.” Id. at 209-10. The framers repeatedly stated that their intention in securing “equal protection” was to prevent “one law for Blacks, another for Whites,” ensuring that with respect to the rights specifically enumerated in the Act, laws would treat Blacks no differently than Whites. Where a statute is impartially and uniformly applied to all within a State, it is “equal.” Id. at 207, 209-10, 219.

We must conclude that nearly all of our opinions dealing with the Equal Protection Clause for at least the past eight decades have been wrongly decided. This includes much of what is considered our “landmark” civil rights and discrimination precedent, a point we will return to. Certainly, in the case at hand, we can find no scenario under which the Equal Protection Clause would bar universities from considering race in their admissions decisions. What is the “right” implicated in race-conscious admissions? The right to attend an institution of higher education? No such right exists. The right to be admitted to such an institution on grounds of purely academic merit? If the right to attend a university or a graduate school does not itself exist, no further rights involved in admissions processes can be said to exist. Nor can university admissions be considered to fit into any of the categories of rights enumerated in the Civil Rights Act of 1866, which, again, are the sole rights protected by the Equal Protection Clause. Finally, there are no statutes involved in universities’ individual decisions, whether public or private, to use race in their admissions programs.

We need not list each and every opinion in which we departed from the original intent of the Equal Protection Clause and entered incorrect judgments, for, as aforementioned, we hold that the Fourteenth Amendment itself is unconstitutional because it was neither properly proposed nor ratified and thus was never adopted into the United States Constitution. This necessarily means the invalidation of every ruling we have made that hinged upon that Amendment, including most of the body of precedent hailed and idolized as “landmark” social justice achievements, such as: United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456 (1898); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836 (1948); Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686 (1954), along with the line of companion and subsequent desegregation cases; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691 (1962); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817 (1967); Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382 (1982); United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264 (1996); Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (2003); and Obergefell v. Hodges, 576 U.S. 644, 135 S.Ct. 2584 (2015).

This is by no means an exhaustive list, as the Amendment has served as the basis for a massive constellation of our precedent. For example, the judicial doctrine of “incorporation,” which in any case was intended by the framers and arose long after the spurious adoption of the Amendment, is now lacking even a nominally constitutional basis. We could go on. Deviations from the Constitution are no less deviant by virtue of the length of time during which they were falsely normalized. When this Court overturned Swift v. Tyson, 41 U.S. 1 (1842), and with it nearly a century of precedent, we recognized that our duty to right a constitutional wrong far outweighed our normal course of rubber-stamping precedent for its own sake. Erie R. Co. v. Tompkins, 304 U.S. 64, 79-80, 58 S.Ct. 817, 823 (1938). “No lapse of time or respectable array of opinion should make us hesitate to correct” terminally faulty precedent that has subverted our Constitution. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 532-33, 48 S.Ct. 404, 408-09 (1928) (Holmes, J., dissenting).


Our invalidation of the Fourteenth Amendment disposes of the Equal Protection Clause challenges against Harvard and UNC’s race-conscious admissions programs, but said programs are also challenged under Title VI of the Civil Rights Act of 1964. Thus, we must still ask whether the use of race in admissions decisions violates Title VI. In Bakke, this Court held that Title VI proscribes only those racial classifications that would violate the Equal Protection Clause and resolved both challenges with one strict scrutiny analysis. 438 U.S. 265 at 265. While the Civil Rights Act of 1964 is often understood as a “constitutionalization” of the Fourteenth Amendment, it is something wholly different. Even if we were to assume the validity of the Amendment, its scope was framed in strictly limited terms that pale in comparison to the expansive provisions of the 1964 Act. Therefore, a separate analysis is required. But before we delve into Title VI, we must ask whether the 1964 Act itself is constitutional. We hold that it is not, because Congress exceeded its authority under the Commerce Clause and thus had no constitutional basis to enact the 1964 Act.

Before we address our precedent on the constitutionality of the 1964 Act, a brief history of this Court’s interpretation of the Commerce Clause is due. The Constitution delegates to Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, § 8, cl. 3. We first defined the nature of this power in Gibbons v. Ogden, 22 U.S. 1, 189-90 (1824): “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse…the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” This definition explicitly excluded commerce “which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.” Id.

This Court did not revisit this definition until over a century later. In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548 (1935), we created a distinction between direct and indirect effects of intrastate transactions upon interstate commerce, holding that activities that affected interstate commerce directly were within the reach of Congress, while those that affected interstate commerce indirectly were not. While we rooted this new distinction in the fear that otherwise “there would be virtually no limit to the Federal power and for all practical purposes we should have a completely centralized government,” the novel conception of “interstate commerce” as that which directly affects interstate commerce opened the door for several decades of misinterpretation. Id.

In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937), we departed from the distinction between direct and indirect effects, holding that intrastate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions” are regulable by Congress. Again, while warning that the Commerce Clause “may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them…would effectually obliterate the distinction between what is national and what is local and create a completely centralized government,” our holding invited that very eventuality in further extending Congress’s power.  Id. In two subsequent cases, this Court married the “effects” test of A.L.A. Schechter to the “close and substantial” principle of Jones & Laughlin Steel, holding that the Commerce Clause extends to intrastate activities which substantially affect interstate commerce or interfere with the exercise of the power of Congress over it. United States v. Darby, 312 U.S. 100, 118 (1941); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942).

In Wickard v. Filburn, the most extreme and abstract application of the increasingly maximalist interpretation of the Commerce Clause until our cases dealing with the 1964 Act, we held that the production of homegrown wheat, even for personal consumption, was regulable by Congress. Even where activity is local “and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce…irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’” 317 U.S. 111, 125, 127-28 (1942). Even if the activity “may be trivial,” this Court determined that in the aggregate, “taken together with…many others similarly situated,” activities that might be local and trivial are in fact neither and thus present no barrier to the exercise of congressional regulation. Id.

After Wickard, one would be “hard pressed to posit any activity by an individual that Congress is without power to regulate.” United States v. Lopez, 514 U.S. 549, 564, 115 S.Ct. 1624, 1632 (1995). Indeed, this construction of the Commerce Clause essentially provides the Federal Government carte blanche and makes “mere breathing in and out the basis for Federal proscription.” National Federation of Independent Business v. Sebelius, 567 U.S. 519, 646-61, 132 S.Ct. 2566, 2642-51 (2012) (Scalia, J., dissenting). In United States v. Lopez, this Court declined to extend the logic of Wickard any further. Disturbed by the implications of our precedent, we rejected the Government’s argument that firearms possession in school zones substantially affects interstate commerce through the costs of potential violent crime. 514 U.S. 549 at 549-50, 560-61, 563-65, 567-68, 115 S.Ct. 1624 at 1624-25, 1630, 1632-34.

Under the Government’s logic, indistinguishable from this Court’s own pre-Lopez precedent, Congress could regulate “not only all violent crime, but all activities that might lead to violent crime,” along with “any activity that it found was related to the economic productivity of individual citizens.” Id. at 564, 1632. In rejecting this argument, and, implicitly, more than half a century of our precedent, we noted that, “[t]o uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would…convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States,” and “would require us to conclude… that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.” Id. at 567-68, 1634.

Our ruling in Lopez did not, however, put an end to the circular logic of unlimited power that our Commerce Clause interpretation had become. Synthesizing our precedent, this Court identified three broad categories that we have deemed regulable under the congressional commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, of persons and things in interstate commerce, even though the threat may come only from intrastate activities; and (3) those activities having a substantial relation to interstate commerce. Id. at 552-59, 1626-31. Regarding the third category, we concluded that “the proper test is whether the activity sought to be regulated ‘substantially affects’ interstate commerce.” Id. In ruling that the Commerce Clause did not provide Congress with the authority to enact its firearms, we made no change to this test, leaving the status quo intact.

It is that very “substantial effects” test that “has encouraged the Federal Government to persist in the view that the Commerce Clause has virtually no limits.” Sebelius at 707-08, 2677 (Thomas, J., dissenting). This Court has practically rewritten the Clause to state that Congress may “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Had the Framers wished to draft a “substantially affects interstate commerce” clause, they could have. Lopez at 584-602, 1642-51 (Thomas, J., concurring). And yet they did not. Our Constitution specifically enumerates those powers delegated to the Federal Government, yet our post-New Deal Commerce Clause precedent could instead be read “to reserve to the United States all powers not expressly prohibited by the Constitution,” annihilating the Tenth Amendment. Id. “Indeed, if a ‘substantial effects’ test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment.” Id.

By redefining “commerce” as “anything that affects commerce,” we have drifted far astray from the Framers’ intent. When the Constitution was drafted, debated, and ratified, “commerce” consisted simply of “selling, buying, and bartering, as well as transporting for these purposes.” Id. This is a necessarily narrow, common-sense use of the word “commerce,” rather than a surreptitious grant of unlimited power by implication. Surely, the Framers did not intend to abolish the government of limited powers that the Constitution meant to establish.

Though Wickard is most commonly identified as “the ne plus ultra of expansive Commerce Clause jurisprudence,” this Court’s cases upholding the constitutionality of the Civil Rights Act of 1964 took the abstraction of “commerce” to even greater heights. Sebelius at 646-61, 2642-51 (Scalia, J., dissenting). In Heart of Atlanta Motel, Inc., v. United States, this Court held that the 1964 Act was a constitutional exercise of the Commerce Clause because “the unavailability to Negroes of adequate accommodations interferes significantly with interstate travel.” 379 U.S. 241, 243-44, 85 S.Ct. 348, 351 (1964). In other words, this Court accepted the argument that racial discrimination discouraged Blacks from traveling, which in turn impeded interstate travel, which in turn impeded interstate commerce because “the volume of interstate traffic” would give “give discriminatory practices which inhibit travel” a substantial impact upon interstate commerce. Id. at 250-53, 354-55.

This Court also emphasized the fact that appellant Heart of Atlanta Motel was “readily accessible to” interstate and State highways, “solicit[ed] patronage from outside the State of Georgia through various national advertising media, including magazines of national circulation,” maintained billboards and highway signs within the State, accepted convention trade from outside Georgia, and that a large percentage of its guests were from out of State. Id. at 243, 261, 350-51, 359-60. Citing Darby, we declared that “the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.” Darby at 118, 459.

No number of appeals to precedent suffice to justify the conclusion that, because a motel advertises and has guests from out of State who use interstate highways to travel, that motel is now at the mercy of the Federal Government to compel it to open its doors to people whom it does not wish to do business with. Similarly, this Court accepted the argument that racial discrimination impedes travel based upon evidence that was almost entirely anecdotal. Indeed, evidence could neither possibly be offered to measure such an effect, nor to measure the effect of that immeasurable effect on travel on interstate commerce. Granting this logic forces us to “pile inference upon inference” in the very manner that we rejected thirty years later. Lopez at 567-68, 1634.

In Katzenbach v. McClung, a companion to Heart of Atlanta, this Court similarly held that Congress “had ample basis upon which to find that racial discrimination at restaurants which received from out of State a substantial portion of food served had direct and adverse effect on interstate commerce.” 379 U.S. 294, 294, 298-99, 305, 85 S.Ct. 377, 377, 381, 384 (1964). Here, this Court found it relevant that appellee Ollie’s Barbecue restaurant was located on a State highway eleven blocks from an interstate highway and “a somewhat greater distance from railroad and bus stations,” along with the fact that, in the year prior to the passage of the 1964 Act, 46% of the meat the restaurant purchased, amounting to less than $70,000, was from a local supplier who had procured it from outside the State. Id. at 296-97, 300-01, 380, 382.

The District Court ruled in favor of the restaurant, concluding that Congress had, rather than finding facts sufficient to show the requisite nexus between local activity and interstate commerce, “legislated a conclusive presumption that a restaurant affects interstate commerce if it serves or offers to serve interstate travelers or if a substantial portion of the food which it serves has moved in [interstate] commerce.” Id. Contrary to that legislative assumption, the District Court held that “there was no demonstrable connection between food purchased in interstate commerce and sold in a restaurant and the conclusion of Congress that discrimination in the restaurant would affect that commerce.” Id.

Yet again, this Court accepted primarily anecdotal testimony and ruled against the restaurant, declaring that Congress had “ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new businesses refrained from establishing there as a result of it.” Id. at 299-300, 381-82. Specifically, this Court relied on the immeasurable assumptions that racial discrimination: (1) resulted in lower spending by Blacks, which has, “regardless of the absence of direct evidence, a close connection to interstate commerce” because “the fewer customers a restaurant enjoys the less goods it sells and consequently the less it buys,” imposing “an artificial restriction on the market”; (2) impeded travel, because “discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions,” which “obviously discourages travel and obstructs interstate commerce for one can hardly travel without eating”; and (3) deterred industry, because “professional and skilled people” would be less likely to move “into areas where such practices occurred and thereby caused industry to be reluctant to establish there.” Id.

The only question that this Court found relevant in our Commerce Clause analysis, “answered in the affirmative,” was “whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce.” Id. at 303-04, 383-84. We further declared that “the absence of direct evidence connecting discriminatory restaurant service with the flow of interstate food” is “not a crucial matter.” Id. at 304-05, 384. It bears repeating that it is exactly this sort of abstraction which we deemed to verge on the ridiculous only thirty years later in Lopez. By rejecting this logic without explicitly overturning the precedent or the “substantial effects” test that serves as its foundation, we have delayed reckoning with the fact that the 1964 Act was and is not a constitutional exercise of Congress’s power to regulate interstate commerce.

Title VI of the 1964 Act prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. Title VI, 42 U.S.C. § 2000d et seq. This cannot be taken in isolation from the entirety of the 1964 Act; if the 1964 Act itself is unconstitutional, so too is this portion of it. Racial discrimination is private conduct that simply cannot be prohibited by Federal statute or judicial fiat. The 1964 Act endowed Congress with then-unprecedented powers to intrude into the private affairs of citizens and their businesses, verging even on the criminalization of unpopular thought. Fundamentally, the 1964 Act vitiated the freedom of association and can be traced to no power enumerated in the Constitution.

Plainly, the arguments that racial discrimination potentially impacts human behavior in ways that potentially impact the national economy in the aggregate is tenuous at best and nonsensical at worst. The argument that a business can be forced to serve customers whom it does not wish to transact with simply because it advertises out of State, has customers from out of State, is accessible by roadways that connect to interstate highways, or uses ingredients from out of State, is so abstract a justification of congressional power as to be tyrannical. Under this logic, Federal power may be extended “to virtually all human activity.” Sebelius at 646-61, 2642-51 (Scalia, J., dissenting).


We turn finally to a discussion of the practical considerations that we must take into account. We conclude at the outset that, either under our current precedent or a hypothetical scenario in which we ruled that the use of race in admissions decisions is unconstitutional, any limitations imposed on affirmative action practices are unenforceable. For example, although we held in Bakke that straightforward racial quotas are unconstitutional, by allowing the use of race as an admissions factor at all simply allowed universities to continue operating racial quota systems disguised as sophisticated quasi-meritocratic weighted scoring schemes considering a multitude of objective and subjective factors. Bakke at 315-18, 2761-62. There is no way to inquire into these admissions practices, and the broad deference that we have granted universities allows every opportunity for them to continue operating racial quota systems under the cloak of an opaque and vague “holistic review” process.

The distinction between race as the sole determinative factor and race as a weighted “plus factor” is practically meaningless and exists on paper only. Interestingly, this Court anticipated that very criticism and immediately dismissed it by declaring that “good faith would be presumed.” Id. at 318-19, 2762-63. This sham “challenges even the most gullible mind.” Grutter at 346-49, 2348-50 (Scalia, J., concurring and dissenting). We acknowledged this criticism again in Fisher II, effectively conceding that this is exactly what universities are engaged in: Because universities are “prohibited from seeking a particular number or quota of minority students,” they “cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.” Fisher II at 2198-2204.

In other words, we stated that universities are justified in their opaque and undefined “diversity” goals precisely because they are constitutionally barred from admitting to exactly those goals. Moreover, the very premise of affirmative action policies—a faulty premise, a point we will return to—is the notion that certain racial groups are proportionally “underrepresented,” i.e., represented to a lesser degree in a given field than their general percentage of the population; to the extent that affirmative action policies seek demographic parity based on population statistics, they are nothing more than prohibited racial balancing policies. Id. at 2215-43 (Thomas, J., dissenting).

Further still, even if we were to disallow the use of race in admissions decisions, there are innumerable methods by which universities could still operate de facto racial quota systems by artificially ensuring higher enrollment of desired racial groups. The example of the University of California system is instructive. In 1996, California amended its state constitution to prohibit State institutions from considering race, sex, or ethnicity in the areas of public employment, public contracting, and public education. In response, the University of California adopted a series of strategies to increase diversity, including: eliminating standardized testing; increasing socioeconomic preferences; increasing financial aid; increasing total enrollment numbers; using targeted recruitment drives, zip codes, percentage plans, and partnerships with disadvantaged high schools to increase enrollment from “diverse” communities populated by desired racial groups; eliminating legacy preferences and early action; and increasing community college transfer admissions.

SFFA concedes that these strategies promote the admission of designated racial groups and even endorses these as “race-neutral alternatives” to affirmative action. Clearly, though, these are merely substitutes for the very affirmative action policies that SFFA asks us to find unconstitutional. Indeed, SFFA celebrates the fact that both California and Michigan’s affirmative action bans actually harmed White university enrollment, with both the University of California and the University of Michigan boasting just last year that they have admitted their “most diverse” classes ever. Again, the percentage of “underrepresented minority” students enrolled in both systems increased after race-conscious admissions were forbidden. There is thus no way to prevent universities from promoting the enrollment of favored racial groups and suppressing the enrollment of disfavored racial groups.

Given that the premise of affirmative action is the concept of a racial group’s “representation” relative to its demographic distribution, it is worth exploring the present reality of university admissions to find exactly which racial groups are “overrepresented,” along with what racial group is singularly “underrepresented.” In the first place, the notion that a racial group is underrepresented based solely upon the existence of a disparity between their university admissions and their distribution in the general population is a false premise, one which at minimum fails to take into account biological race differences in intelligence. Demographic parity in university admissions will never occur organically, simply because racial groups are endowed with different mean levels of intellectual ability. The quest for equal representation at universities thus becomes quixotic and infinite, the horizon of “diversity” forever receding into an unreachable distance.

The theory of “representation” is also marred by misconceptions concerning the identities of the true victims and beneficiaries of affirmative action policies. Harvard’s demographics are illuminating. Using National Merit Scholarship semifinalists as a proxy for the high-ability college-age population, approximately 65 to 70 percent of America’s highest-ability students are White Gentiles, while roughly 6 percent are Jewish. Ron Unz, The Myth of American Meritocracy, The American Conservative (Nov. 28, 2012), available at https://www.unz.com/runz/the-myth-of-american-meritocracy/. Taking the 2007-11 enrollment of Asian students at Harvard relative to their estimated share of America’s National Merit Scholarship semifinalists, we find a ratio of 63 percent. Id. The corresponding ratio for Jewish students, meanwhile, is 435 percent, with the residual ratio for White Gentiles dropping to just 28 percent. Id. So, while Asians are underrepresented relative to Jews by a factor of seven, White Gentiles are the most underrepresented group of all. Id.

Indeed, over a period of three decades, as the percentage of Asian, Black, Hispanic, and foreign students burgeoned at Harvard, the percentage of Jewish students has increased while that of White Gentiles has declined by as much as 70 percent. Id. Harvard isn’t alone, as the Ivy League generally follows the same pattern, with the overall ratio for Jews at 381 percent, Asians at 62 percent, and White Gentiles at 35 percent. Id. Based on these figures, Jewish students are roughly 1000 percent more likely to be enrolled at Harvard and the rest of the Ivy League than White Gentiles of similar ability. Id. These figures, it should be noted, are one decade old. They have since grown even worse.

From 2015-21, the percentage of Black students at Harvard tripled, from 6.3 to 18 percent. Ron Unz, Challenging Racial Discrimination at Harvard, The Unz Review (Oct. 31, 2022), available at https://www.unz.com/runz/challenging-racial-discrimination-at-harvard/. During this same period, White Gentile enrollment has precipitously fallen into the single digits, less than 10 percent, despite White Gentiles representing approximately 60 percent of the American population and 65 percent of our highest-ability students. Id. The Jewish population at Harvard is now at around 25 percent, roughly five times the Jewish percentage of high-ability students. Id. Thus, while university administrators “might publicly fret that Blacks or Hispanics were not enrolled proportional to their national numbers,” these groups are actually overrepresented relative to their share of high-ability students while White Gentiles were severely underrepresented relative both to their share of high-ability students and of the college-age population, especially given their far higher test scores. Id.

Herein lies the reality that affirmative action policies, rather than being motivated by a desire to uplift certain racial groups deemed underrepresented, is motivated primarily by anti-White racial animus. Indeed, universities revel in the increasing numbers of nonwhites they admit; the designation of White students as “overrepresented,” far from corresponding to reality, is merely a smokescreen for racial hostility. The vague interest that universities assert in “diversity” is really an interest in ensuring that their student bodies are not unfashionably White.

College admissions decisions, just like hiring decisions, are a zero-sum game; when a coveted slot is awarded to one student, another necessarily loses it. Although the American system of higher education has largely lost its educational character and devolved into a process of credentialing students on the basis of ritual social compliance, elite universities continue to serve as “a direct funnel to the commanding heights of American academics, law, business, and finance.” Unz 2012. Because the student bodies of our top universities “constitute the next generation of our national elites in embryonic form,” the systematic exclusion of White Gentiles from these schools is of enormous consequence. Unz 2022.

When affirmative action policies first came into practice in the aftermath of the 1964 Act, America was a biracial nation with a White supermajority and a Black minority, with other racial groups demographically insignificant. Again, biological race differences in intelligence guaranteed that under a purely meritocratic admissions regime, demographic parity would not be possible. Racial preferences benefiting Blacks and thus harming Whites were the only method by which Black enrollment could be boosted. This was originally justified on the basis of the unique historical situation of Blacks in America, which, correct or not, was at least coherent.

America’s demographics have dramatically shifted since 1964, primarily as a result of the 1965 Hart-Celler Immigration Act. The White proportion of the population has suffered an exponential decline, from 90 to less than 60 percent, while that of every other racial group has rapidly increased. Whites are quickly becoming an absolute minority in the United States, and are already a minority of children, and yet affirmative action policies discriminating against Whites more than against any other racial group have continued. Nearly sixty years later, the original justification for these policies is no longer applicable to reality. The only explanation for the continued use of affirmative action in admissions is anti-White racial animus.

This motivation is further belied by the behavior of “those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses—through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.” Grutter at 346-49, 2348-50 (Scalia, J., concurring and dissenting). This Court would surely not have upheld racial preferences in college admissions that were designed to benefit White students. The unprecedented deference that this Court awarded to universities in our consideration of their racially discriminatory admissions schemes would never have been granted had the victims of these policies not been White students.


Surely, the Founders of this Nation and the Framers of our Constitution did not intend for White Americans to be discriminated against as second-class citizens in the country explicitly established “to promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” and as the birthright of their descendants. Make no mistake: We do conclude that affirmative action is racial discrimination, the primary victims of which are White Gentiles. Although we find no extant constitutional barriers to the practice of racial preferences or any other form of discrimination, neither do we find any constitutional barrier for the States to take action against it.

We hold that: (1) our precedent concerning race-conscious admissions is both self-contradictory and failed to apply a sufficiently rigorous strict scrutiny analysis, under which race-conscious admissions policies must fail; (2) strict scrutiny is not the proper test to determine constitutionality under the Equal Protection Clause; (3) the Equal Protection Clause as it was originally intended presents no barrier to affirmative action and only a limited barrier to narrow categories of racial discrimination not implicated in this case or in most of our other discrimination cases; (4) the Equal Protection Clause presents no barrier to racial preferences or discrimination of any kind because the Fourteenth Amendment itself was neither properly proposed, ratified, nor adopted, and is thus not a part of the United States Constitution; and (5) Title VI presents no barrier to racial preferences or discrimination of any kind because the Civil Rights Act of 1964 is unconstitutional.

The judgments of the lower courts in the cases of both Harvard and UNC are affirmed insofar as we rule that all race-conscious admissions policies, including those of Harvard and UNC, are not unconstitutional, but reversed with respect to the reasoning relied upon by the lower courts.

It is so ordered.

Neil Kumar ran for Congress in Arkansas’ Third District. He is a law student who at the University of Arkansas and lives in the Arkansas Ozarks. He is a member of the Sons of Confederate Veterans and Sons of the American Revolution, with blood that has been Southern since the seventeenth century. His work can also be found at the Abbeville Institute, American Renaissance, Clyde Wilson’s Reckonin’, Identity Dixie, and Truth to Power and VDARE.

[1] Speiser v. Randall, 357 U.S. 513, 529 (1958); NAACP v. Button, 371 U.S. 415, 438 (1963)

[2] NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307-08 (1964); McGowan v. Maryland, 366 U.S. 420, 466-67 (1961) (Frankfurter, J., concurring); Saia v, New York, 334 U.S. 558, 562 (1948); Martin v. City of Struthers, 319 U.S. 141, 147 (1943); Thornhill v. Alabama, 310 U.S. 88, 96 (1940); Schneider v. New Jersey, 308 U.S. 147, 161-62, 164 (1939).

[3] NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); Barenblatt v. United States, 360 U.S. 109, 127 (1959) (citing Sweezy at 265 (Frankfurter, J., concurring)); Uphaus v. Wyman, 360 U.S. 72, 81 (1959); Bates v. City of Little Rock, 361 U.S. 516, 525 (1960); Shelton v. Tucker, 364 U.S. 479 (1960).