RUTHFULLY YOURS

The Supreme Court decided an easy case this morning — a case so easy that only Justice Sonia Sotomayor could get it wrong. Nevertheless, it still had Justices Clarence Thomas and Neil Gorsuch in the mood to raise long-standing questions about race and American citizenship.

The question in United States v. Vaello Madero was whether Congress is permitted to exclude residents of Puerto Rico from the Supplemental Security Income (SSI) program and other federal benefits programs — just as it exempts Puerto Ricans from most federal taxes. Justice Brett Kavanaugh’s majority opinion easily concluded, in a brisk six-page 8–1 decision joined by every justice but Sotomayor, that long-standing law allowed Congress to treat Puerto Rico and other territories differently:

The Territory Clause of the Constitution states that Congress may “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.” Art. IV, §3, cl. 2. The text of the Clause affords Congress broad authority to legislate with respect to the U. S. Territories. Exercising that authority, Congress sometimes legislates differently with respect to the Territories, including Puerto Rico, than it does with respect to the States.

The territory clause was likewise the basis for the Court’s decision in 2020 in Financial Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, which held that the appointments clause does not require Senate approval for territorial officials exercising the sorts of local powers that, in a state, would be exercised by the state. In today’s case, Kavanaugh observed that, if Congress were constitutionally mandated to provide federal benefits in Puerto Rico, there would be political pressure to apply federal taxes there as well — “with serious implications for the Puerto Rican people and the Puerto Rican economy. The Constitution does not require that extreme outcome.”

The Dissenter

Sotomayor, a daughter of Puerto Rican immigrants to New York and a longtime board member of the Puerto Rican Legal Defense and Education Fund, wrote separately in Financial Oversight & Mgmt. Bd. v. Aurelius on Puerto Rico–specific grounds. In today’s decision, paying no attention to the constitutional text or the history of territorial regulation, Sotomayor argued that “there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others” because the program “establishes a direct relationship between the recipient and the Federal Government. . . . Under the current system, the jurisdiction in which an SSI recipient resides has no bearing at all on the purposes or requirements of the SSI program. For this reason alone, it is irrational to tie an individual’s entitlement to SSI to that individual’s place of residency.” She then relied on a left-wing blog talking point that completely ignored the majority’s argument:

If Congress can exclude citizens from safety-net programs on the ground that they reside in jurisdictions that do not pay sufficient taxes, Congress could exclude needy residents of Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska from benefits programs on the basis that residents of those States pay less into the Federal Treasury than residents of other States.

Of course, federal income and other taxes apply equally to residents of every state. The point of passing the 16th Amendment was to allow Congress to tax incomes at the level of the individual, in contrast to the pre-1913 regime of requiring taxes to be evenly apportioned among the states. The reason why Puerto Rico pays less in federal taxes is that its residents are exempted from the same tax rates, not because — as is true of some states — they have fewer residents or residents with lower average incomes.

Thomas and Citizenship

Thomas agreed with Kavanaugh that the case was an easy one under the governing standards, but he used his concurring opinion to lay out a new and somewhat tentative wrinkle on the arguments he has been developing for some time now: that the whole structure of modern due-process and equal-protection law is divorced from the original 1787 understanding of Article IV’s privileges-and-immunities clause, the original 1791 understanding of the Fifth Amendment, and the original 1866–68 understanding of the 14th Amendment.

The new part of Thomas’s argument: the equal-protection clause does not apply to the federal government, but the 14th Amendment’s citizenship clause may do at least some of the same work, in protecting all American citizens, regardless of race, from legal discriminations on the basis of race. Making this argument exposes Thomas to rhetorical brickbats from the sorts of people who claim that originalism would overturn Brown v. Board of Education and lead to all manner of other horrible results, but Thomas has done his homework, and he is not easily deterred from insisting that constitutional law should be based on the Constitution.

The legal challenge in Vaello Madero was brought under the Fifth Amendment’s due-process clause, under which “no person” may be “deprived of life, liberty, or property without due process of law” by the federal government. Thomas began with his well-known view, shared by many originalists, that there is no such thing as “substantive due process”: the due-process clauses of the Fifth and 14th Amendments are guarantees of a fair legal process (hence the name) that exist mainly to restrain arbitrary executive action, rather than barriers to the writing of laws that deprive people of particular liberties even if those deprivations are carried out with due process of law. The oxymoronic notion of “substantive due process” dates originally to Dred Scott v. Sandford, in which Chief Justice Roger Taney argued that the property rights of slaveholders to carry slaves into the territories was beyond the power of Congress to restrict by any means:

The rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

The same basic logic underlay the Court’s now-discredited limits on economic regulation beginning with Lochner v. New York in 1905, and its rulings on abortion and same-sex marriage in Roe v. Wade and Obergefell v. Hodges.

Applying the equal-protection clause to the federal government has an additional, glaring problem in the text. The Court, since the 1954 decision in Bolling v. Sharpe, has treated this clause as also applying the equal-protection clause of the 14th Amendment to bar the federal government from denying equal protection of the law. Bolling, which ordered the desegregation of D.C. schools, was handed down the same day as Brown but has historically been given less attention — in part, because it has been understood to rest on legally dubious grounds, and in part because it was easier for originalists to pair their criticisms of Brown’s reasoning with arguments that reached the same outcome by other avenues.

The problem with Bolling is obvious: The equal-protection clause explicitly applies only to the states and is textually accompanied by a state-specific due-process clause. Congress cannot reasonably have intended to incorporate the equal-protection clause into the Fifth Amendment in 1791, because the equal-protection clause hadn’t been written yet. If the Fifth Amendment banned all racial discrimination, the early Congresses would not have been able to pass laws permitting racial slavery in the District of Columbia — laws that stood unchallenged until Congress repealed them in 1862. As Thomas noted, the Court in Bolling relied mainly on a “this cannot be!” argument not so dissimilar in tone to Taney’s treatment of due process:

Bolling asserted that because the Constitution prohibits States from racially segregating public schools, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” . . . . For one, such moral judgments lie beyond the commission of the federal courts. For another, the assertion is debatable at best. “The Constitution contains many limitations that apply only to the states, or only to the federal government, and this Court is not free to disregard those aspects of the constitutional design.” (Quoting Michael McConnell)

If the lack of an equal-protection clause in the Fifth Amendment changed, it changed only with the passage of the 14th Amendment (passed by the Radical Republican Congress in 1866 and ratified by the states by 1868). There are competing theories about what the 1866 Congress did with regard to restricting federal power. On the one hand, the Radical Republican Congress that adopted the 14th Amendment plainly saw the (Southern) states as the main threat to individual rights and liberties, and the federal government as the protector of those rights. Thus, the second sentence of Section 1 of the 14th Amendment talks only about what the states may not do: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

On the other hand, focusing on what the Radical Republicans were thinking about in 1866 should not prevent us from considering the broader question — on which there has been a lot of scholarship in the past decade or two — of the abolitionist legal tradition and the development of the terms used in Section 1. For Thomas, a crucial cornerstone of Section 1 is the citizenship clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” American citizenship appears in only one of the three restrictions on the states — they may neither make nor enforce any law that abridges its privileges and immunities. By contrast, the guarantees of due process and equal protection are provided to “any person,” not just to citizens. That would seem to suggest that “privileges and immunities” are something distinct from due process, including substantive rights, and distinct from “equal protection.” But how?

The most obvious reason for Congress’s writing the citizenship clause was to repudiate Dred Scott. The first and central ruling in Dred Scott was that federal-court jurisdiction over suits “between Citizens of different States” could not extend to suits brought by black Americans, because they were never understood to be American citizens within the meaning of the Constitution. Taney’s reasoning for this led to a great debate at the time over what we would now recognize as originalism. Taney marshaled historical evidence from the Founding era of numerous legal discriminations against black Americans in various states, to argue that they were nowhere seen as full citizens. Justice Benjamin Curtis’s dissent argued that free black Americans had the right to vote in five states in 1787 and were therefore part of the citizenry that made the Constitution itself. As Thomas notes, the Taney–Curtis argument about the meaning of citizenship was extensively argued in the post–Dred Scott political debates: Stephen Douglas took up Taney’s argument, and Abraham Lincoln took up that of Curtis.

After the war, Southern governments adopted “Black Codes” grounded in Taney’s view, and Congress responded with the Civil Rights Act of 1866. There were other long-standing debates over birthright citizenship. What everybody recognized was that the power of Congress and the rights of black Americans would both be on firmer legal ground if the 14th Amendment did what the Constitution had previously failed to do: provide a uniform, textual federal definition of American citizenship that did not vary from one state to the next. What Thomas argues, grounded in the newer scholarship into the arguments of the late 1860s and their antecedents, is that the citizenship clause and its partner, the privileges-and-immunities clause, were understood and intended to do more than definitional work; they were intended to provide a substantive grant of the rights inherent in American citizenship: “By conferring citizenship, the Citizenship Clause guarantees citizens equal treatment by the Federal Government with respect to civil rights.” Thomas quotes Republican congressman Henry Jarvis Raymond, the founder of the New York Times: “Raymond . . . wanted Congress to declare that free blacks were citizens, ‘and thus secure to them whatever rights, immunities, privileges, and powers belong as of right to all citizens of the United States.’”

Thomas goes on to argue that even Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, which declared that “our Constitution is color-blind,” and that “in this country there is no superior, dominant ruling class of citizens,” was not grounded in the equal-protection clause, but in the citizenship clause (an argument he supports with quotes from both Plessy and another Harlan opinion the same year that refer to these guarantees as applying to the federal as well as state governments).

If Thomas is right, his theory also resolves one of the long-standing originalist questions about Brown itself: whether “equal protection of the laws” was supposed to extend to all discriminations in law, or only to require states to provide the “protection of the laws” (e.g., protection from crime) to everyone, regardless of race. If color-blind guarantees of citizenship extend more broadly to topics not reached under the rubric of “protection of the laws,” then Section 1’s protections form a more coherent whole.

For some time now, the other justices have tended to treat Thomas’s engagement with constitutional scholarship on these points as irrelevant: The case law has long since gone in a different direction. But Thomas continues to insist on getting it right.

Gorsuch and the Islands

Thomas was not the only justice listening to Harlan today and floating trial balloons for future cases. Gorsuch also joined the majority opinion, but he advanced a different argument: The Court should overrule a century-old line of cases (the Insular Cases) that limit the constitutional rights of residents of “unincorporated” territories such as Puerto Rico, and instead rule going forward that those residents — whether or not granted American citizenship by Congress, as has been done by statute — have the same constitutional rights as any other American. Gorsuch quoted a Harlan line on dissenting from the Insular Cases that we will likely see repeated later this term in the big abortion case: “No question can be settled until settled right.”

As Gorsuch explained, up to the Spanish-American War, it was understood that the Constitution applied in the territories. That contention was uncontroversial, though, because American territories were mostly expected to be settled with Americans advancing to statehood. That changed when we acquired an overseas empire. Leading legal scholars developed theories, adopted by the Court, that treated “unincorporated” territories — those filled with non-white foreigners such as the Philippines or Puerto Rico — as unsuited to “Anglo-Saxon” principles of government: democracy, citizenship, rights, and liberties. Gorsuch quotes Harvard Law School dean Christopher Columbus Langdell arguing that the Bill of Rights was “so peculiarly . . . English that an immediate and compulsory application of [those rights] to ancient and thickly settled Spanish colonies would furnish . . . proof of our unfitness to govern dependencies, or deal with alien races.”

As Gorsuch notes, today every remaining U.S. territory is designated as “unincorporated” except for the tiny, uninhabited Palmyra Atoll in the Pacific Ocean. “So today our bureaucracies endow that Territory alone a capital ‘T’ in their official lists while the others, Puerto Rico included, earn only a lowercase ‘t.’”

“The Insular Cases’ departure from the Constitution’s original meaning has never been much of a secret,” Gorsuch wrote. “Even commentators at the time understood that the notion of territorial incorporation was a thoroughly modern invention.” Like Thomas, Gorsuch prefers to dispense with old pretenses: “It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” Sotomayor indicated that she would also welcome a re-examination of those cases, although in her case, this seems driven more by an extension of the pro–Puerto Rico partisanship of her opinions in Vaello Madero and Financial Oversight & Mgmt. Bd. v. Aurelius than by any sort of principled interest in anchoring constitutional law to the text.

We can see at work here two related strains in Gorsuch’s jurisprudence. One, which marks him more as a man of the American West (where he served as an appellate judge) than as a creature of his D.C. upbringing, is his well-known punctiliousness about Native-American rights and desire to purge from the law old injustices done in the laws of the frontier. The other is his impatience with racial paternalism: Not only did he attack old, racist ideas about the cultural unfitness of islanders for the Anglo-Saxon legal tradition, he included a footnote going after modern efforts to argue the same thing under the guise of woke anti-colonialism:

In the last few years, some have attempted a revisionist account of the Insular Cases. On this view, this Court’s decision to withhold full constitutional protection from “unincorporated” Territories (now) serves the beneficial end of safeguarding traditional cultures. . . . Put aside . . . the uncomfortable truth that recent attempts to repurpose the Insular Cases merely drape the worst of their logic in new garb. At bottom, the Constitution’s restraints on federal power do not turn on a court’s unschooled assessment of a Territory’s local customs or contemporary currents in public opinion or academic theory. Our government may not deny constitutionally protected individual rights out of (purportedly) benign neglect any more than it may out of animus.

Gorsuch’s view, if accepted, would not change the outcomes in Vaello Madero or Financial Oversight & Mgmt. Bd. v. Aurelius. Congress could still adopt different forms of administration in the territories than in states, and that includes different tax and benefit policies. In fact, embarrassed by the reasoning of the Insular Cases, the Court has over time rendered them ever-less relevant by ruling that certain rights were so “fundamental” that they apply even to unincorporated territories. But, as with the theory of substantive due process, this gets the Court into the business of deciding, on an ad hoc basis, which rights are “fundamental” — an inquiry with no basis in the text of a Constitution that never uses the word nor makes any distinction between different types of rights — except, perhaps, those that were specifically understood as the privileges and immunities of American citizenship.