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

STUDENTS FOR FAIR ADMISSIONS, INC.
v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
No. 20-1199.

Argued Oct. 31, 2022.

Decided Dec. 2, 2022.

& 

STUDENTS FOR FAIR ADMISSIONS, INC.
v.

UNIVERSITY OF NORTH CAROLINA et al.
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.

I

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.

A

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.

B

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.

II

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.

A

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.

B

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.

1

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.

2

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).

3

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.

4

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 random—New 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.

C

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).

III

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).

IV

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.

V

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.

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[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).

This essay serves as the Introduction to a book which has just appeared, entitled Reinventing Aristocracy in the Age of Woke Capital (London: Arktos, 2022); it is available at Arktos and Amazon.

The proudest boast of the transnational corporate welfare state is that it has rendered obsolete the political hegemony of traditional ruling classes. Achievement, not ascribed or hereditary status, is said to be the key to material success and political influence. The open society promoted by transnational corporate capitalism has become the template of social progress. Accordingly, in the USA, only a few decades ago, a complacent WASP establishment was sidelined by a new class of brash outsiders. At the highest levels of American society, WASPs simply ceased to dominate.[i] In the media and entertainment industries, in banking, the law and academia, they were replaced, most visibly and dramatically, by Jewish parvenus.

Harvard University, America’s oldest university and long-time gateway to the ruling class, is emblematic of that transformation. Founded as ‘a schoale or colledge’ in 1636 by the first wave of Puritan settlers in New England, Harvard received its corporate charter from the Massachusetts General Court in 1650. By the nineteenth century, the college had become the intellectual bastion of an increasingly secularized, or, perhaps more precisely, deracinated, WASP Ascendancy.[ii] To all appearances, it remained a predominantly WASP institution until the mid-twentieth century.

Since then, however, Harvard has been almost completely detached from its ancestral ethno-religious identity. The once Anglocentric college was rebranded by cosmopolitan managers and well-connected overseers as a globalist multiversity. As a consequence, American ‘whites’ (a statistical category which includes Jews and non-WASP, European-descended, ethnicities) presently account for only about 42% of the entering class each year. In a striking sign of the times, there are now more Jews than WASPs among Harvard undergraduates.[iii]

In the received narrative of capitalist modernization, the rags-to-riches story of American Jewry is not about ethnic rivalry. Rather, the astonishing upward social mobility enjoyed, inter alia, by American Jews is typically attributed to the economic dynamism, technological prowess, and managerial and professional opportunities created by the modern American business corporation. In industry, education, the law and government, the rise of the managerial class was grounded in the progressive principle of careers open to the talents.

Orthodox Marxist historians emphasized the revolutionary role played by the bourgeoisie in undercutting the authority of established aristocracies.[iv] But the social character of the bourgeoisie was very different from the professional and managerial class spawned by the expansion of corporate capitalism. The eighteenth and nineteenth century bourgeoisie was, formally or informally, an estate of the realm. Unlike the relentlessly materialistic, performance-driven, goal-oriented managerial class, the bourgeoisie remained grounded in the status hierarchy of traditionally, and still predominantly Christian societies. In late nineteenth century, England, its Empire, and Europe, generally, authority could be justified credibly, if not exclusively, by reference to its origins. The genetic legitimacy of traditional ruling classes was based upon custom and social convention or in a presumptive divine right. Apart from any other justification, the right of conquest could be invoked. Like slaves captured in war, conquered peoples were fortunate to be allowed to live under the thumb of a victorious ruler.

The old, landed nobilities of Europe did not simply fade into the background amidst the satanic mills of bourgeois capitalist society. They continued to play a prominent role in social and political life until the Great War of the early twentieth century. In fact, ‘it was the rising national bourgeoisies that were obliged to adapt themselves to the nobilities.’ Even the most successful bourgeois merchants, bankers, and industrialists aspired to positions on ‘the high social, cultural, and political terrain’ occupied and controlled by the nobility.[v]

Even so, Anglo-American society provided fertile soil for the growth of a free market society. The English jurisprudence of liberty had deep roots. Britons had long vowed that they never, never, would be slaves. The ancient British constitution married the authority of both the king and patrician parliamentarians to primordial notions of popular consent. The Protestant Reformation rocked the foundations of ecclesiastical authority by licensing the freedom of every individual conscience. Then, in the mid-seventeenth century, the simmering resentment of English commoners towards their aristocratic and ecclesiastical rulers boiled over as Puritan revolutionaries executed the king in the name of parliament and the people. The Puritan struggle for religious liberty not only produced a civil war which upset the traditional balance of the ancient constitution; it also gave great impetus to the rise of capitalism in both England and colonial America.[vi]

By the 19th century, Anglo-American political authority was no longer justified primarily by reference to its origins. Leading legal thinkers came to scorn the Lockean obsession with social contract no less than the common lawyer’s veneration of musty precedents. A new ruling class appeared, basing its title to political power on its ability to achieve results. From then on, the source of constitutional legitimacy ceased to be genetic; it became goal-oriented or telic instead. Utilitarianism became the political leitmotif of an erstwhile bourgeois, now professionally managed corporate capitalist regime promising to promote the greatest good for the greatest number.

Corporations in the Early American Republic

Just as the rise of the bourgeoisie did not entirely eliminate aristocratic élites, the mental shift toward a goal-oriented view of politics overshadowed but did not entirely eviscerate traditional forms of genetic legitimacy. Indeed, in England, the aristocracy and landed gentry actually performed the economic role of the bourgeoisie as they pioneered new forms of agrarian capitalism. By the early nineteenth century, the result was ‘an open aristocracy based on property and patronage.’[vii] While the aristocracy and gentry classes were open to new forms of enterprise and political organization, the English bourgeoisie tempered its progressive ethos with a respect for traditional social, political, and legal institutions. The culmination of every truly successful business career was the acquisition of a substantial landed estate and, ideally, a hereditary title of nobility, both of which were then passed on to heirs expected to carry on the erstwhile bourgeois, family’s newly-invented traditions.

In both England and the American republic of the early national period, a patrician ruling class emerged which owed its wealth and social standing to the productive use of property. English common law had developed uniquely extensive and concentrated forms of individual proprietorship over land, which facilitated private, purely economic, ‘capitalist’ modes of appropriation. Elsewhere, in France for example, the state was much more important as a means of appropriating surplus labour from direct producers, as were other forms of politically constituted property, such as corporate privileges. Agrarian capitalism on the Anglo-American model helped to consolidate the distinctively bourgeois hegemony of civil society over the state. It came as no surprise, therefore, when foreign observers characterized the early American republic—sometimes even England—as ‘stateless societies.’[viii]

As a matter of constitutional form, early nineteenth century England was a monarchy. In reality, however, like the newly independent USA, it was a patrician republic in which a rising bourgeoisie made up of merchants, professionals and manufacturers constituted a natural aristocracy. By comparison with the continental regimes familiar to Alexis de Tocqueville, the patrician élites in Anglo-American societies favoured a minimalist state, confident that they could deliver the greatest good for the greatest number through the productive use of their private property. This view presumed that the people-at-large would continue to defer to their betters among a natural aristocracy, respecting the constitutional liberty of the latter to do as they chose with their property.

Tocqueville was among the first to warn that radical democratic disdain for aristocratic privilege was bound to give greater weight to popular demands for equality than to inherited traditions of constitutional liberty, much less the political prerogatives of property ownership.[ix] It was not long before the rising tide of democratic politics in America displaced the patrician Standing Order that had ruled colonial New England. In Britain and the American South, where the aristocratic ethos of the gentry was more solidly rooted than in New England, the process took longer, but there, too, the writing was on the wall.

The democratic radicalism spawned by the American Revolution trans- formed American society and politics, extending the principle of equality into every aspect of public, and eventually even into private life. Every branch of government now owed its existence to ‘the people.’[x] As they began to lose control over the newly constituted state and federal governments, patrician élites, especially in New England, began to experiment with new forms of politically constituted property intended to restore their traditional hegemony. They sought and obtained a massive expansion in the number of special corporate charters granted by state legislatures, not just to business enterprises, but to schools, colleges, hospitals, and churches.

For a time, the creative deployment of chartered corporations helped to shore up the sagging social prestige of the old patriciate. But that defensive strategy could be sustained only so long as corporations retained their traditional legal identity as ‘civil bodies politic.’ This concept seems altogether alien to the modern mind, accustomed as it is to think of the corporation as little more than a legal and organizational form designed to facilitate the pursuit of private profit. We take for granted the separation of ownership and control. But, for a patrician élite, the classical republican concept of property was understood as the material foundation of civic virtue. It applied not just to landed property but was embodied as well in the personal rights and responsibilities of the corporate shareholder.

At common law, property, especially landed property, had been conceived as ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual.’[xi] Possession of a landed estate ensured not only the economic autonomy of the household but its political independence as well. With the property owner as its head, every household became a little school of self-government. Property was thus directly linked to the responsibilities of rulership. Something like the same result was achieved by the special charter regime that effectively constituted the corporation as a ‘little republic.’

Corporate charters were granted by state legislatures, on a case-by-case basis, to achieve both public and private purposes. The constitutional principle of ultra vires operated to prevent any corporate enterprise from acting to achieve objects not authorized by its charter. Moreover, shareholders were responsible for the uses to which their common property was put. Consequently, limited liability was not an automatic and universal corporate privilege. Shares in a joint-stock enterprise therefore carried an associational element along with a proprietary interest. Shareowners were members of the corporate body politic; in effect, they were citizens of their own little republic. If the corporate charter did not specify the voting rights attached to share ownership, judges sometimes held that, prima facie, the rule should be: ‘one voice, one vote’ (i.e., not ‘one share, one vote’). Such civic concern for the integrity of the corporate body politic also led many to take a dim view of proxy voting. The practice was widely condemned as an abdication of shareholders’ political responsibilities.

It was not long, however, before the corporation as a civil body politic came under sustained attack as a bastion of ‘aristocratic privilege.’ A radical anti-charter movement arose, most notably in New York and Pennsylvania, to demand general incorporation laws and the extension of limited liability to all shareholders. The ‘democratization’ of the corporation did widen investment opportunities for small shareholders, encouraging widespread use of the corporate device as a means of securing firm central direction over the enterprising use of assets.

But precisely because small investors were least likely to value the associational element of share ownership, corporations ceased to be conceived as bodies politic. Soon the law began to treat corporations as private, economic instruments of capital accumulation. Republican resistance to the ‘one share, one vote’ rule became pointless. For the same reason, from being a sign of civic corruption within the corporate body politic, proxy voting became a simple convenience. Both developments may have owed their origins to the democratic rhetoric of the anti-charter movement, but their most important consequence was to entrench the plutocratic principle in corporate governance.

The Managerial Revolution and Corporate Plutocracy

Ironically but logically, the rise of corporate plutocracy signalled the imminent decline of the bourgeoisie. By the end of the American Civil War, the collapse of the corporation as a civil body politic was pretty much complete. Consequently, the patrician bourgeoisie could no longer function as an informal third estate within the civil constitution of Anglo-American society; it was displaced by an increasingly impersonal system of corporate capitalism. Membership in the body corporate became little more than a legal fossil, altogether divorced from patrician norms of honour and responsibility.

Such a change implied a fundamental transformation in property ownership. Marx was among the first to realize that the joint-stock company effectively abolished private property. Share ownership created a novel form of collective or social capital. From being a form of absolute dominion exercised over an autonomous landed household, proprietary interests were disaggregated into a variable bundle of claims to a share of the wealth or income generated within a complex, interdependent process of production, distribution, and exchange. Property ownership lost its civic significance; it no longer served as a school of self-government. Stripped of its patrician role within the body politic, the civic role of the corporate bourgeoisie was replaced by the self-interested avarice of fickle investors, ever on the lookout for the chance to buy on the dip and sell at the peak.

The moral decline and civic irrelevance of corporate shareholders as a class was a consequence of both the democratic and the managerial revolutions. Even a putatively natural aristocracy was ill-placed to compete with organized political machines employing the rhetoric of egalitarian democracy to license the growth of an impersonal public administration. Nor could wealth alone provide its owners with the managerial skills necessary to run a complex, multi-unit, modern business enterprise.

But the haute bourgeoisie in America and elsewhere in the Western world was not forcibly deprived of decision-making authority in the corporate realm. Rather, given the opportunity, moneyed interests were more than willing to abandon the notion that property ownership should carry with it the sort of public responsibility and civic obligation associated with the aristocratic ideal of noblesse oblige. By and large, the bourgeoisie simply abdicated the responsibilities of rulership.

The public burdens of property ownership came to count for much less than its private benefits, nowhere more obviously than in the sphere of corporate governance. Once the ‘one voice, one vote’ principle was replaced by the ‘one share, one vote’ rule, share ownership became a means of systematically negating the civic significance of property ownership. All shares, not all persons, were created equal. Not surprisingly, wealthy investors soon became quite comfortable with that interpretation of democratic equality. The voice of a shareholder with one hundred or one million shares now carried one hundred or one million times the weight of a member holding but one share in a common corporate enterprise. Votes came to be valued, not as an incident of membership in a corporate body politic, but rather for their tactical importance in securing effective control over a valuable bundle of economic and financial assets.

So long as their business was organized as a family firm, a partnership or a close corporation, an entrepreneurial capitalist could remain in control of his own enterprise. But, having chosen homo economicus as their role model, capitalist entrepreneurs became hostages to fortune in the public realm, where a new class of professional politicians and bureaucrats was expanding the state’s administrative capacities. Indeed, even in the economic sphere, the spectacular success of entrepreneurial capitalism spawned a vast network of hugely complex business enterprises organized and run by professional managers with highly specialized technical and administrative skills. More often than not, the most successful enterprises became public corporations whose shares and bonds were traded in national financial markets. Before long, entrepreneurial capitalists lost control over the corporate sector to a rising class of professional managers. By the early twentieth century, the separation of ownership and control had become the default position in the modern business corporation.

Managerial élites are now in the driver’s seat, not just the corporate sector, but in the state as well. Democracy no longer implies that the government will be ‘owned,’ much less ‘controlled,’ by the people of any given nation. The only legitimate form of democracy, according to the multiculturalist mullahs of the managerial state, is cosmopolitan democracy. The state may still claim to act in the name of the people, but the demos has expanded to include the whole of humanity. By virtue of their presumptive enlightenment, the managerial and professional classes now present themselves, or, rather, the global system which they administer, as the virtual representatives of humanity at large.

Corporate capitalism has expanded to become a global system of organized irresponsibility. Precisely because it is a system, it has become a form of no-man rule. No-one can be held responsible for the operation of the system; it has a life and logic of its own. At most, individuals can be held accountable for a failure to behave in accordance with the norms governing the effective management and orderly administration of sub-systems. Entrepreneurial activity, capital investment and managerial oversight have all become specialized functions, no longer united in a single figure responsible for the uses to which property is put. Those who variously own, manage, or regulate the corporate economy generally escape political responsibility for its social costs, much less for the moral hazards and spiritual emptiness that are among its most obvious by-products. Within a global economy detached from and destructive of local communities, the ruling class has disappeared behind the corporate veil.

In these circumstances, the restoration of a ruling class prepared to accept responsibility for the fate of the common world would be a welcome relief. Unfortunately, political, economic, and cultural élites throughout the Anglosphere are steeped in dishonour; they have privatised the privileges of high social status while socialising the public burdens of responsible rulership. The ideology of ‘democratic capitalism’ allows them to dissimulate their actual role as a ruling class, thereby evading personal liability for the adverse consequences (described antiseptically as ‘negative externalities’) of their corporate decisions. Political imagination is surplus to requirements in a bureaucratic corporate hierarchy. Behind the corporate veil, the civic virtues of honourable conduct and personal responsibility have been translated into impersonal standards of accountability for results achieved. The managerial overclass presents, successfully so far, its globalist program of perpetual economic growth as humanity’s highest achievement. In the absence of a noble ruling class, old-fashioned notions of noblesse oblige lose their functional significance.

Resurrecting the Corporation as a Civil Body Politic

Denunciation of the managerial regime serves no useful purpose unless it arises out of a movement aiming to create a new ruling class. This is not an impossible dream. Indeed, given the accelerating crisis of confidence in the corporate sector, it is becoming an urgent practical necessity. In principle, the goal of such a movement is clear: those who nominally own the corporate sector must recover a measure of control over the uses to which their property is put. To make that possible, the public corporation must be reconstituted as a civil body politic. The best citizens among substantial shareholders in public corporations must be allowed, indeed encouraged to become a civic élite within those corporate bodies politic. Reinventing the aristocratic principle of rule by the best and applying it to the governance of the public corporation could help to cope with the multiplying risks generated by a global society of perpetual growth.

When the major task of capitalist development was the conquest of scarcity, it made good sense to privilege the private benefits of corporate share ownership over the public burdens and civic challenges associated with membership in a corporate body politic. It is now high time to tilt the constitutional balance within the corporation away from civic privatism by creating a political role for the active investor. A new emphasis on the political character of membership in the corporate body politic would re-attach civic responsibilities to the proprietary rights of share ownership.

This would mean an end to the plutocratic principle of ‘one share, one vote,’ which did so much to hollow out the civic significance of corporate governance. Only under conditions of political equality can any significant number of share- holders hope to overcome the formidable collective action problems facing activists within the realm of corporate governance. For that reason, all shareholders who hold a substantial threshold stake in an enterprise should be entitled to participate in a process of deliberative decision-making based on one voice, one vote. Property ownership could, once again, serve as a school of self-government.

It may well be that only a relatively few individuals among millions of widely dispersed investors in thousands of firms are ever likely to enrol in such a course in practical civics. Not everyone is moved by the joys of public happiness. But all those who do take up that civic challenge should stand on an equal footing in the corporate body politic. Those who demonstrate by their actions that they value the privileges of membership should bear final responsibility for the good governance of their joint enterprise.

The problem with the governance of corporations as they are presently constituted is that only money talks. At a general meeting, those who hold a majority of the (voting or proxy) shares, even if they are only a small minority of those present, have no need to either to speak or to listen to their fellow members. Even the best corporate citizen is bound to be discouraged by a voting regime that systematically devalues the power of reasoned speech in favour of the sheer dumb weight of proprietary interest. This would not amount to a constitutional issue if corporate decision-making affected only private economic interests. But corporations now exercise powers that are governmental and political in nature.

The constitution of the public corporation must be reconceived as a novel sort of mixed polity in which private ownership interests are balanced against the public responsibilities of governing a body corporate that creates both economic wealth and political power. Corporate governance should be reconstituted to provide a political theatre in which bourgeois investors keeping a sharp eye on their financial interests can also take on the role of citizens striving to distinguish themselves in the service of the common good (and vice versa).

By treating a senatorial élite of shareholders as political equals in fundamental corporate decisions, a reformed constitutional law enables the bourgeois and the citizen to learn the art of corporate governance from each other. If the public corporation is to survive and prosper while doing business in an enlightened and responsible manner, a coalition of interests must learn to balance the economic imperatives which call the business corporation into being against the responsible exercise of its inherent governmental powers. The consequence would be the re-emergence of a patrician bourgeoisie, the very model of a modern natural aristocracy.

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[i] See, e.g., E.Digby Baltzell, The Protestant Establishment: Aristocracy & Caste in America (New Haven, CN: Yale University Press, 1987); and Eric P. Kaufmann, The Rise and Fall of Anglo-America (Cambridge, MA: Harvard University Press, 2004).

[ii] Ronald Story, The Forging of an Aristocracy: Harvard & the Boston Upper Class (Middletown, CN: Wesleyan University Press, 1980)

[iii] https://datausa.io/profile/university/harvarduniversity/#enrollment_race; see also, Ron Unz, ‘The Myth of American Meritocracy,’ at: https://www.unz.com/runz/meritocracy-appendices/#3 .

[iv] Eric Hobsbawm, Age of Revolution:1789-1848 (London: Weidenfeld & Nicolson, 1962).

[v] Arno J. Mayer, The Persistence of the Old Regime: Europe to the Great War (New York: Pantheon, 1981), 80-81.

[vi] R.H. Tawney, Religion and the Rise of Capitalism: A Historical Study (New York: Mentor, 1946 [orig pub. 1926]), 164.

[vii] Harold Perkin, The Origins of Modern English Society, 1780-1880 (London: Routledge & Kegan Paul, 1969), 17.

[viii] See, especially, Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University Press, 1981), 3-8.

[ix] Alexis de Tocqueville, Democracy in America 2 Vols [original edition, 1835 and 1840] (New York: Alfred A. Knopf, 1945).

[x] Gordon S. Wood, The Radicalism of the American Revolution (New York: Vintage, 1993).

[xi] William Blackstone, Commentaries on the Law of England, Vol II (Chicago: University of Chicago Press, 1979 [orig. pub. 1766]), 2.