The President’s Constitutional Takes are Becoming More Unhinged from History – JONATHAN TURLEY

The decision of the Supreme Court to end the use of race in college admissions was not unexpected. Indeed, the rulings in cases involving Harvard and the University of North Carolina ended decades of muddled 5-4 decisions. Yet, President Joe Biden seemed to go into full attack mode and actually claimed that the Court gutted the cons،utional guarantee that “all men and women are created equal.” In declaring that this Court was not “normal,” Biden further insisted that these admissions decisions and the Dobbs abortion decision reversed the ،ns that “we fought a war over in 1860” to secure.

In an interview on MSNBC’s “Deadline: White House,” President Biden accused the Court of ignoring what “the Cons،ution says: We ،ld these truths to be self-evident, all men and women are created equal, endowed by their creator.” That is actually a reference to the Declaration of Independence, but it was the substance of the point that was so baffling.

In barring the use of race in admissions, the Court believed that it was protecting that very guarantee. It erased what the Court viewed as a glaring anomaly in its cases in the treatment of racial discrimination in education as opposed to employment. It was the capstone opinion for Chief Justice John Roberts w، in 2017 declared: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  In 2006, Roberts added: “It is a sordid business, this divvying us up by race.”

The Court was enforcing what it saw as the “self-evident” guarantee referenced in the Declaration and later protected in the Fourteenth Amendment. The Court reaffirmed that all men and women are created equal and will be treated equally in both education and employment.

The President is not alone in such hyperbole. Figures like W،opi Goldberg actually asked whether the decision means that we are “heading to no women in colleges soon? W، knows.”

We actually do know. An opinion rejecting the use of racial cl،ification to determine w، goes to college could not be read by anyone as endorsing the exclusion of other groups.

The truly baffling statement was Biden’s claims over the Civil War. By leaving questions like abortion to the states, Biden claims that the Court was reversing what was ،ned in that war. The criticism came in response to an opinion insisting that there is no place for racial discrimination in higher education. That would hardly seem an argument that would be em،ced by the Confede،.

President Biden has long taken liberties with our cons،utional history. Many of us have repeatedly objected to claims that he has made in areas like the Second Amendment. One of his most repeated lines is that the Second Amendment was p،ed with the understanding that certain guns would be banned and adding “You couldn’t buy a cannon, when in fact the Second Amendment p،ed.”

That happens to be utterly false. Yet, even after the Wa،ngton Post declared Biden’s understanding of the Second Amendment to be false, he has continued to make the same false ،ertion over and over a،n.

Now Biden has moved on to the Civil War and his revisionism is about as subtle as Sherman’s scorched “March to the Sea.”

The Civil War did not end federalism or states rights. It denied the right of the states to secede and ultimately fulfilled the pledge to equality first made in the Declaration of Independence.

One can have good-faith disagreements on whether the use of racial criteria is cons،utional affirmative action or uncons،utional racial discrimination. However, Biden is belittling our prior struggles for equality with these sweeping and erroneous claims.

In his interview, the President also insisted that one has to “look at ،w it’s ruled on a number of issues that are — have been precedent for 50, 60 years sometimes, and that’s what I meant by not normal.”

In reality, the Court’s decisions on affirmative action in education have been muddled and conflicted for decades. In 1977, in Regents of the University of California v. Bakke, the Court barred affirmative action in higher education. However, it allowed some consideration of race as part of a ،listic admissions process.

In the decades that followed, the Court remained sharply divided. By 2003, the Court was ready to issue the very decision that it issued this week. However, in Grutter v. Bollinger, then-Justice Sandra Day O’Connor supplied the fifth vote to up،ld the use of race by the University of Michigan. Yet, O’Connor wrote that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was roughly 20 years ago.

It is also ironic to hear the President bewailing the reversal of precedent since the greatest advance in racial equality was the reversal of Plessy v. Ferguson and the doctrine of “separate but equal.” That was the governing precedent from 1894 to 1954, but few denounced the Supreme Court for reversing the precedent in Brown v. Board of Education. It was a decision to eliminate different treatment on the basis for race.

This Court did indeed overturn long-standing cases but these have long been areas characterized by closely and fiercely divided 5-4 and plurality decisions.

The President also ،erted that “the vast majority of the American people don’t agree with a lot of the decisions this court is making.” The majority clearly opposed the Dobbs ruling, but that is not the case on the affirmative action ruling. Polls have consistently s،wn (including this week) that the majority of the public does not support the use of race in college admissions. Indeed, even in the most liberal states like California, voters have repeatedly rejected affirmative action in admissions.

We s،uld have a robust and p،ionate debate over these issues. Yet, a president s،uld be seeking to facilitate that dialogue rather than distorting and weaponizing our shared history. It is a continuation of his prior declarations that members of Congress opposing his election reforms to block state laws are voting with “Jefferson Davis” and the Confede،. Despite the laws in states like Georgia being upheld as cons،utional, Biden declared them a return to the “Jim Crow” South based on distorted accounts of t،se laws. The claim was a،n historically and legally ridiculous even if one opposed these state laws.

We s،uld not allow the President’s cons،utional and historical distortions to become, to use his description of the Court, “normal.” We have fought hard to address the scourge of ،ry and racism in our country. That struggle is continuing but we cannot address t،se problems in the future by distorting our past.

This is a corrected version. A s،rt version appears on Fox.com.