Kermit Roosevelt III* & Kellen McCoy** | 26.6 | Citation: Kermit Roosevelt III & Kellen McCoy, Second Founding, Second Redemption, 26 U. Pa. J. Const. L. 1369 (2024).

Read Full Article

They finally did it. Forty-five years after the Supreme Court’s splintered decision in Regents of the University of California v. Bakke, repeated challenges to race-based preferences in university admissions broke through in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA). A six-Justice majority held that the processes followed by Harvard and the University of North Carolina, Chapel Hill, violated the Equal Protection Clause of the Fourteenth Amendment and federal antidiscrimination law, Title VI.

This Article locates the SFFA decision in the larger context of American constitutional history. We were inspired to do so by a novel feature of the decision. For the first time ever, the Supreme Court referred to Reconstruction as the “Second Founding”—and, as if to make up for lost time, did so repeatedly, in multiple opinions. The majority opinion by Chief Justice Roberts, the concurrence by Justice Thomas, and the dissent by Justice Jackson all used the phrase. But though the Justices used the same phrase, that’s where their agreement about the “Second Founding”—and the legal theories espoused by Congress during Reconstruction—ends.

***

*Professor of Law and Political Science (by courtesy), UCLA. David A. Berger Professor for the Administration of Justice, University of Pennsylvania Carey Law School.

** JD 2021, University of Pennsylvania Carey Law School.