Joy Milligan

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Volume 89.1
Remembering: The Constitution and Federally Funded Apartheid
Joy Milligan
Professor, the University of Virginia School of Law.

For helpful feedback, I thank Abhay Aneja, Darby Aono, Abbye Atkinson, Emily Bruce, Guy-Uriel Charles, Erwin Chemerinsky, Gabriel Chin, David Engstrom, Jonathan Glater, Michele Gilman, Becca Goldstein, Jon Gould, Kristen Holmquist, Olatunde Johnson, Daryl Levinson, Melissa Murray, Saira Mohamed, Tejas Narechania, Manisha Padi, Michael Pinard, Richard Primus, Bertrall Ross, Erik Stallman, Aaron Tang, Karen Tani, Rebecca Wexler, and participants in the Northern California Junior Faculty Workshop, Loyola Constitutional Law Colloquium, Poverty Law Mini-Workshop, AALS Civil Rights Section Works-in-Progress, NYU Constitutional Theory Colloquium, and the law faculty workshops at Duke, UCLA, the University of Miami, the University of Michigan, and the University of Virginia. I am grateful to the University of Chicago Law Review staff for their exceptional editing, and to Maya Campbell, Toni Mendicino, Talia Stender, and Graham Wyatt for their excellent research assistance.

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.