The substantive Fifth Amendment ideal of preventing the federal government from aiding systemic discrimination receded because of increasing challenges to its substance, judicial fatigue with institutional oversight, and the sweeping scope of the problem—along with collective amnesia regarding the prior decades of constitutional struggle. This Article reveals that forgotten constitutional history. After excavating the Fifth Amendment struggles, I argue that the no-aid norm, and the underlying reality of long-term federal participation in racial apartheid, should be remembered and debated once again.
March
2024