Breitbart News has discovered previously unknown handwritten notes from Elena Kagan to radical professor Derrick Bell, sent to Bell as Kagan worked on his seminal 1985 article on Critical Race Theory in the Harvard Law Review (99 Harv. L. Rev. 4).
The notes, which were not among materials presented to the Senate during Justice Kagan’s confirmation hearings, are preserved among Bell’s papers at the New York University archives.
Kagan’s work on Bell’s article was revealed in 2010 by Harvard Law School professor Charles Ogletree, after President Barack Obama nominated her to the Supreme Court. Ogletree cited her “phenomenal edits” on Bell’s “classic” article.
Bell’s article, “The Civil Rights Chronicles,” combined exposition and fiction to argue that the Constitution was–and remains–tainted by white supremacy, and that the United States awaited “a common crisis that will overcome racism” through radical constitutional reform.
Unlike then-Harvard Law Review president Carol Steiker, who corresponded with Bell via typed letter (apparently on a 1980s-vintage dot matrix printer), Kagan chose to write to Bell exclusively on yellow notepad paper. She did not explain her choice to write by hand, save to suggest in one note on Aug. 30, 1985 that she was pressed for time.
Most of Kagan’s notes to Bell concern minor editorial comments on the “Chronicles,” as she and the other editors prepared his article for publication. One interesting passage concerns a legal question that Kagan and Steiker posed about Bell’s attempt to argue for a new constitutional right–a “substantive due process right” to “racial healing”:
As Carol and I told you on the phone, we’re a little bit concerned at the focus on this part of the piece. The doctrinal section centers on the idea of creating a substantive due process right to racial healing. But the reader is left wondering: why wouldn’t the Court strike these laws down on first amendment grounds? It strikes me that the Court would indeed strike these laws down on the ground of free speech or free association.
The section of the article to which Kagan was referring was entitled “The Chronicle of the Slave Scrolls.” In it, the main character, Geneva Crenshaw (who would recur in many of Bell’s writings) tells a fable about finding parchment scrolls on the west coast of Africa inside a model of a slave ship.
The scrolls “simply taught the readily available but seldom read history of slavery in America” as related by those who had lived through it. Crenshaw relates that the discovery of the scrolls inspired black Americans to meet in “healing groups” that inspired them to compete more fiercely for achievement and respect–until a “television minister” warned that the scrolls were inciting racial hatred by teaching about old evils. States then passed “Racial Toleration Laws” that prohibited any teaching about the history of racial conflict, and blacks eventually acquiesced.
The lesson, Crenshaw says, is that “[t]he Constitution protects the efforts of black people only when those efforts leave vested interests undistured [sic].”
Bell, through the narrator, provides the solution in the form of “a substantive due process right that barred government interference with the racial healing sessions,” based on the same right to privacy recognized in Roe v. Wade as part of a “penumbra” of constitutional protections. Bell’s narrator says a right to “racial healing” would give special protection to the idea that “the racism of whites rather than the deficiencies of blacks causes our lowly position in this society.”
Crenshaw–perhaps echoing Kagan’s note–is skeptical that the Court would grant such a right. Bell’s answer is “skillful lawyering” and “a more liberal Court”; Crenshaw later replies that only a “common crisis” will bring the needed change.
As Solicitor General, Kagan cheered when Obama seized a national “crisis” to pass unrelated legislation whose goal is to create an effective right to health care. She has not recused herself from the subsequent Obamacare case, as she has from today’s suit over Arizona’s immigration law, in which her “skillful lawyering” played an important role.
If Obama is re-elected, Kagan could be part of the “more liberal court” Bell envisioned–and great changes in constitutional jurisprudence could be the result.