Vox looks at what the Constitution says about race
Ian Millhiser examines the fly Justice Ketanji Brown Jackson threw into Chief Justice John Roberts’s colorblind soup. That theory is at odds with the constitutional history the court’s “originalists” revere, Jackson pointed out in just her third case:
Roberts and his ideological allies derive the colorblindness principle from the 14th Amendment’s guarantee that all individuals will receive “the equal protection of the laws.” But Jackson explained that the framers of this amendment did not strive for colorblindness. Instead, they were “trying to ensure that people who had been discriminated against” — that is, formerly enslaved Black people — “were actually brought equal to everyone else in the society.”
And Jackson brought receipts. Among other things, she cited the Civil Rights Act of 1866, a law enacted by the very same Congress that wrote the 14th Amendment, which provides that all Americans shall have the same contracting and property rights as “white citizens,” and that any non-white person convicted of a crime shall be punished the same way as “white persons.”
The Congress that wrote the 14th Amendment, in other words, rejected the “colorblind” theory, and instead wrote a landmark civil rights statute that explicitly requires the government to consider race when deciding whether a non-white individual’s rights were fully respected. And the Civil Rights Act of 1866 is only one of many such laws enacted by Reconstruction-era lawmakers.
Millhiser adds that “the overwhelming weight of historical evidence suggests that Jackson is correct.” But Jackson’s receipts won’t change any minds on the court’s right (admitting mistakes being against conservative religion), but it will taint their further efforts to sell colorblindness to history. Justice Clarence Thomas, the court’s most outspoken opponent of affirmative action has made no effort to argue that colorblindness is consistent with the Constitution’s original meaning. Nor has Justice Antonin Scalia.
Several cases the court takes up this session involve the colorblindness question.
I want to be clear that the full story of how the generation that framed the 14th Amendment understood racial equality is far more nuanced than “they thought affirmative action was fine.” Many of their views on questions of race — and especially on public school segregation — are so wildly out of step with modern values that no justice embraces those views. And some prominent conservative originalists have poked holes in some of the originalist evidence supporting affirmative action.
But these same conservatives have barely even attempted to show that the Constitution, as originally understood, forbids affirmative action. In a world where Supreme Court justices decide cases based on their previously stated views about how the Constitution must be interpreted, the lawsuits challenging affirmative action should be doomed.
Even so, argues Millhiser, “no sensible person would want to live under the original understanding of the 14th Amendment.”
Equal treatment under law remains a contested concept all these years later, both in theory and in practice, as nationwide protests in 2020 illustrated.
Watch that space.