A Return to Black Codes: How the Dobbs Decision Debilitated the 14th Amendment

Round 1

Reviewer 1 Report

Comments and Suggestions for Authors

see attached

Comments for author File: Comments.pdf

Author Response

Please see the attachment for a Revise & Resubmit Memo containing my responses to comments and critiques from both reviewers. 

Author Response File: Author Response.pdf

Reviewer 2 Report

Comments and Suggestions for Authors

General Comments:

This is going to be a blunt review. This article is not publishable as is. The argument is unclear. This draft does not rest on adequate research. The author displays shortcomings in understanding of the Fourteenth Amendment, constitutional standards, and approaches to Constitutional interpretation.

I think this author’s argument is this:

The Supreme Court has dismantled the Fourteenth Amend’s Equal Protection clause, leaving both vulnerable individuals and minority communities who lack the voting power to institute protections at the mercy of repressive state legislatures. This leaves those who are politically disempowered just as disempowered as Blacks were in the South under the Black Codes.

If I’m correct on this, then that argument has already been made—clearly and coherently—by Kenji Yoshino’s piece in the Washington Post published on November 30, 2023, titled “After the Supreme Court’s Abortion Ruling, What Could Happen to Other Unwritten Rights?”

The article displays a lack of understanding of the Equal Protection doctrine. For example, the author (lines 299-301) writes that the equal protection doctrine “prohibits the state’s denial of certain rights without rational cause.” That is the wrong legal standard. The Equal Protection doctrine doesn’t require states to provide “rational cause” for violating equal protection rights; it requires government to show a compelling state interest and evidence that the infringement is narrowly tailored to address that state interest.

The list of citations is meager, and the article does not engage with the vast literature on the topic of this article.  I did a Google Scholar search on “Fourteenth Amendment Equal Protection abortion Black Codes.” That query pulled up 23,000 sources. I encourage the author to engage with those sources. It isn’t clear what the author’s intended contribution to existing bodies of literature is. The author offers an article on federalism that does not explicitly discuss federalism. The author offers an article about textualism/originalism vs. pragmatism that nowhere addresses those issues explicitly.

This article misses some fundamental issues in the Dobbs decision. The Justices who are textualists (now all of the conservative Justices) generally don’t want to recognize any unenumerated rights. (See, e.g., Clarence Thomas’ concurrence in Dobbs where he rejects the right to marry recognized in Loving v. Virginia.)  The Supreme Court majority does not reject the right to abortion because it is too novel; they reject the right to abortion because they are Originalists, because abortion was not a right that the drafters of the Fourteenth Amendment (as men) saw citizens (all men) has having at the time of the drafting of the Fourteenth Amendment.

 

 

 

Specific Comments

·         Line 1: The title contains a typo

·         Throughout: “Fourteenth Amendment” is usually spelled out.

·         Line 31: “rescission” (rather than “rescinsion”)

·         Lines50-145.  This section is not a historiography. It is a summary of an existing publication.

·         Footnote 1: this footnote is unnecessary

·         Line 128-129: The sentence needs a citation.

·         Lines 129-131: The sentence needs a citation.

·         Lines 170-171: I don’t understand this sentence.

·         Lines 177-179: References multipole authors but only cites Chemerinsky. (Note: It is Erwin [male], not Erin, Chemerinsky. Also, this sources is not listed in the reference list.)

·         Line 238: The author references “further restriction on abortions” without explaining what they are.

·         Line 244: The article references “the final attempt” without making clear who was making an attempt or what they were attempting to do.

·         Lines 254-259: The article states “the Court chose to use judicial review on itself.” I don’t know what this means.

·         Lines 271-275: If the author thinks that this opinion is really about the “novelty” of abortion as a right, then I would suggest reading more about Constitutional interpretation.

·         Lines 314-316: The article states “affirmative action was an unenumerated right initially decided and defended by the Supreme Court.” My only response is “Huh?!?” In Bakke, the Supreme Court held that the White med school applicant who challenged race-conscious admissions policy could not succeed because the government offered a compelling state interest for race-based decisions and that the program was narrowly tailored to achieve that state interest.  There is nothing about unenumerated individual rights.

Comments on the Quality of English Language

There are a number of awkward sentences--with the first sentence in the introduction serving as a prime example. The author might find George Gopen's suggestions for streamlining sentences useful: George Gopen - Writing Transformed - George Gopen home 

There were some verbs ("informs" and "instructs') there were used repeatedly and that made some of the sentences seem stiff.

I was less concerned about the writing (which can be addressed during editing) than the substance of the submission.

Author Response

Please see the attachment for a Revise & Resubmit Memo containing my responses to comments and critiques from both reviewers. 

Author Response File: Author Response.pdf

Round 2

Reviewer 1 Report

Comments and Suggestions for Authors

see attached

Comments for author File: Comments.pdf

Author Response

I thank Reviewer #1 for the ethical and respectful way they have addressed the shortcomings and questions arising from the initial draft and Round #1 revision of this manuscript. It was evident that the Reviewer wanted to improve the manuscript as they thought it was a meritorious addition to the special issue. As a result, I have made an attempt to address every issue presented by Reviewer #1 in this round of requested revisions. Specifically, I expanded and clarified the anti-Black realities that emerged from the Dobbs decision and added a concluding summary. This is noted by highlighted text in the revised manuscript. 

Reviewer 2 Report

Comments and Suggestions for Authors

The author states that the Brown and Loving decisions were based on substantive due process. I'm not clear how the author reaches this conclusion.  The Brown opinion specifically states:

"We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment." Brown v. Board of Education. 347 US 483, 495.

The Brown decision did not find a right to education. Nor did later Supreme Court decisions (see Plyler v. Doe, 457 US 202, 223 (1982), ("Nor is education a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population." (citing San Antonio Indep. Sch. Dist v. Rodriguez, 411 U.S. 1 (1973).))

Loving v. Virginia didn't first articulate a right to marry. The Supreme Court did that in Skinner v. Oklahoma, 316 U. S. 535, 541 (1942). While the Loving opinion referenced Skinner's articulation of a right to marry, the decision in Loving centers around the Equal Protection doctrine, not substantive due process.

 

I cannot make any sense of the conflated discussion of the Dobbs ruling and rulings on affirmative action. (lines 361-379). The author seems to have some sense of the connection but does not communicate that in any clear way for the reader. Dobbs is a substantive due process case; the affirmative action cases involve equal protection analysis.

The author writes: “The second parameter is that unenumerated rights should be decided by the vote of the state’s citizenry.” (lines 310-312) This sentence signals that the author is unclear on the concept of constitutional rights. The Justices who approach Constitutional interpretation as textualists do not believe that unenumerated rights exist. Period. Unenumerated federal constitutional rights certainly don’t come from state statutes.

The author states: “similar to abortion, affirmative action was an unenumerated right initially decided and defended by the Supreme Court beginning with Bakke v. Regents of the University of California (1978), the Court upheld affirmative action with the 14th Amendment” (lines 349-352).  As I mentioned in my prior review, I have no idea how the author reaches the conclusion that “affirmative action was an unenumerated right.” The author does not—and cannot—cite text in the Bakke case that states that. The substantive due process claim--a right to be evaluated without racial classification--was brought by the White plaintiff and the Supreme Court rejected that claim.

Footnote 8 is puzzling and seems to involve reliance not on a secondary source, but a tertiary source (Sander citing Jeffries discussing Powell). I would expect a discussion of the Bakke decision to reference the primary source: the Bakke decision.

The things that stand out: 1) the connections the author makes between the Dobbs and Bakke decision are incomprehensible; 2) it isn’t clear the author has read the Bakke decision; 3) the author’s discussion of colorblindness at the end of the article seems to have no connection to the analysis in the rest of the article.

Comments on the Quality of English Language

The quality of the English is fine.

Author Response

Ethics are important in the academy, especially in the peer-review process, as publishing impacts areas from scholar career advancement to validation within the academy. However, throughout this peer-review process, I do not believe Reviewer #2 has acted ethically or remained constructive in their review of the manuscript, at least according to published standards for reviewer behavior. The Reviewer’s tone had been consistently condescending, and the diction has not been constructive towards improving the article but disparaging the author. Seung-Kee Min (2021) discusses ethical considerations for the peer-review process for medical journals that I believe are applicable to the peer-review process across disciplines, particularly in light of Sara Rockwell’s paper published by The Office of Research Integrity. Min notes that the reviewer is to act in an ethical way by remaining objective and constructive. Min specifically says,

“Reviewers must read the manuscript thoroughly and provide constructive feedback with a respectful tone… The reviewer should avoid disparaging personal remarks. Do not blame, but criticize the authors to strengthen their manuscript” (para. 8-9).

Reviewer #2 violated these ethics in Round One by attacking my understanding of the 14^th Amendment, even though my legal perspective was cited. Additionally, the Reviewer did not critique the manuscript but the author, stating, “the author displays shortcomings in understanding of the Fourteenth Amendment.” The Reviewer went on to insinuate academic theft on my part, stating the presented historiography “is not a historiography. It is a summary of an existing publication.” However, I respectfully responded to these and more issues, either in the revision or the revision memo.

 

Nevertheless, the attacks launched by the Reviewer in Round Two exceed the gravity from Round One and clearly violate the ethical standards referenced above. It is almost as if the Reviewer dismisses the section “Understanding Substantive Due Process,” which informs “equal protection and due process as one concept of citizenship,” at least as originally intended by the drafters of the 14^th Amendment. This allows the Reviewer to attack the author with a tone that is in no way respectful. The Reviewer goes on to callously state I did not cite and “cannot” cite my legal perspective on Bakke and further insults me by questioning if I have ever read the Bakke decision. Bakke is admittedly foundational to understanding affirmative action, but Reveiwer #2 discredits Footnote #8, which cites and contextualizes my legal perspective. This is the type of disparaging attack launched against the author that Min says is unethical. For reference, I have performed research on affirmative action since 2014 (see the paper “Affirmative Action Opposition: A Personification of Modern Racism”), and I can assure you I have read Bakke. In Round Two, Reviewer #2 does not evoke one positive towards the author, even regarding those areas addressed from Round One; however, the Reviewer spends more time articulating their own legal theories.

 

I have every right not to engage in unethical processes. Therefore, I made what I believe is a proper decision not to engage with a review that disparages me as a scholar and violates acceptable ethical standards. I have not addressed the comments from Reviewer #2 and I am requesting to the Editor that Reviewer #2’s review from Round Two not be taken in consideration for the decision to accept/reject this manuscript.