Weren’t Color Blind

The Framers of the 14th Amendment Weren’t Color Blind

Supreme Court conservatives can’t ignore the origins of the 14th Amendment.

Opinion by SHERYLL CASHIN

Sheryll Cashin is a law professor at Georgetown University where she teaches Constitutional Law and a survey course on Supreme Court cases involving racial justice.

At bottom, the Supreme Court’s two pending affirmative action cases pose the same, important question: Does the Constitution’s 14th Amendment guarantee of “equal protection of the laws” demand color blindness?

Over four decades, moderate conservatives and liberals on the court have answered that question, repeatedly, in the negative. In a series of cases, a center-left majority established and reaffirmed that universities have a compelling interest in pursuing the educational benefits of diversity for all their students. To that end, they may consider race as a modest plus factor but may not engage in racial balancing or use rigid quotas.

The only thing that has changed since the last time the court reaffirmed this precedent in 2016 is its personnel.

The new 6-3 conservative majority on the Roberts Court is emboldened. The court overturned Roe v. Wade, jettisoning women’s reproductive freedom, for example, while constitutionalizing gun owners’ prerogative to carry concealed weapons in public spaces. In these and other cases, archconservatives like Justices Clarence Thomas and Samuel Alito wield originalism — the conservative-favored theory that constitutional meaning should be determined by what the Constitution’s original drafters or ratifying generation would have understood particular words to mean. Tethering constitutional interpretation to founding historical understanding is a highly debatable proposition that imposes the views of enslavers and the few, white, land-owning males who were allowed to participate fully as citizens then on “We the People,” now.

But when conservatives seek to impose color blindness on the 14th Amendment, they are tossing aside their beloved originalism and ignoring the original intent of the Radical Republicans who championed it. Led by Congressman Thaddeus Stevens, these avowed radicals were committed to the immediate, permanent end of slavery and rendering Black Americans full and equal citizens, a necessarily race-conscious project.

At today’s oral argument, Justice Amy Coney Barrett conceded that there was some original evidence of race-consciousness by the framers of the 14th Amendment. Other conservative justices focused on contemporary arguments about whether race-conscious admissions constituted racial discrimination and whether a temporal limit on such affirmative action is legally required. Oddly, the petitioners that brought these cases against Harvard and the University of North Carolina rely on the pro-integration Brown v. Board of Education case to press their demand of color blindness.

But a sincere originalist inquiry shows that petitioners have not met their burden of showing why multiple precedents should be overturned and race never be allowed to be considered.

Ever since the court’s ruling in the Bakke case in 1978, Harvard had been a poster child for how institutions of higher education may achieve robust diversity without discriminating against individuals. Bakke made it clear that no university may use rigid racial quotas as did the University of California Davis medical school when it set aside 16 places in a class of 100 for racial minorities. Justice Lewis Powell, the crucial swing vote in the case, voted against quotas, but cited “the Harvard College Admissions Program” as a model of moderation that would survive the strict scrutiny applied to policies that consider race. In ensuing decades, Harvard and other institutions constantly experimented, trying a range of tactics to achieve diversity without too much emphasis on race, while liberals and conservatives on the court battled over the meaning of equal protection as applied to university admissions.

Justices Sandra Day O’Connor and, later, Anthony Kennedy refused to accept the argument of conservatives to the right of them that the Equal Protection Clause required color blindness. The court upheld programs from the University of Michigan School of Law and University of Texas that emulated the flexibility of the Harvard model. But it struck down a Michigan undergraduate admissions program that assigned an extra 20 points to minority applicants as too rigid.

It makes sense that some consideration of race is constitutional. The framers of the 14th Amendment designed it to overrule the Dred Scott decision in which African Americans, free and enslaved, were deemed unworthy of American citizenship. The majority in Dred Scott tried to freeze in place a racial order, white supremacy, and the “peculiar institution” it justified, slavery, for all time — judicial despotism that accelerated civil war.

The Radical Republican architects of Reconstruction were trying to end a system of racial caste — slavery — and reconstruct American society so that Blacks and other non-whites were placed on a plane of civil and political equality with whites. Eighteen Civil War and Reconstruction historians submitted a “friend of the court” brief in the pending affirmative action case to underscore the 14th Amendment framers’ race-conscious intentions. They pointed to the Civil Rights Act of 1866, which declared that all persons would have the same rights “enjoyed by white persons,” including the power to own property and enter and enforce contracts. And the Freedmen’s Bureau Act, they noted, offered a phalanx of goods and services to Black Americans in order to facilitate the transition from slavery to full citizenship but gave white Civil War refugees more limited assistance. None of this legislation was color blind — it was expressly designed to treat the races differently in the service of making them more equal and adopted over President Andrew Johnson’s vetoes and cries of reverse-racism against whites.

Southern white supremacists and the Supreme Court itself viewed these efforts in zero-sum terms. An effort to confer equal civil rights on violently suppressed Black Americans unfairly made them the “special favorite” of the laws the court stated when it refused to uphold the Civil Rights Act of 1875. It took nearly another century, after Black Americans mounted a civil rights revolution, to gain the right to sit and eat where they wanted and to not be discriminated against in employment and housing and have those rights enforced by the courts.

Before then, the Supreme Court largely rendered the 14th Amendment a nullity for Black people, with formalistic ideas like “separate-but-equal,” refusing to see and name the real meaning of Jim Crow segregation for decades. Judicial hostility and a willed blindness to Black subordination ensured that the 14th Amendment, ratified in 1868, did not begin to broadly enforce racial equality against massive white resistance until the Warren Court, in a series of cases from Brown v. Board to Loving v. Virginia, breathed life into its words. The 14th Amendment became a well of rights and equality not only for Black Americans but also women seeking gender equality and reproductive freedom, and interracial couples and LGBTQ people seeking marriage equality, among other aspirants for fairness. In sum, the 14th Amendment framers contemplated and tried to deliver pluralistic, universal equality rather than white patriarchal dominance.

Since then, a political movement to reshape the judiciary in a conservative mold has borne fruit and normalized judicial doctrines like originalism, textualism and color blindness on behalf of people who seem uncomfortable with American social and cultural change. A new hostility to the project of racial reckoning has taken hold. Led by Chief Justice John Roberts, the court has undermined school integration, gutted the Voting Rights Act, refused to reign in extreme partisan gerrymandering which is de facto racial gerrymandering, and now seems poised to end affirmative action in college admissions and continue undermining American democracy. This, too, is contrary to the radical vision, embodied in the 15th Amendment, of conferring voting rights on non-whites in order to enable them to protect their equal status through politics.

When Kennedy was on the court, he straddled these tensions. He was a judicial conservative. He disliked and voted against public policies that, in his view, placed too much emphasis on the race of individuals. But he acknowledged our nation’s legacy of segregation in education and housing, the racial inequality that resulted, and the need for state actors to continue through race-conscious means to redress racial isolation. He preferred to apply the Equal Protection Clause with strict scrutiny in individual cases rather than impose a complete prophylactic ban on any consideration of race. Perhaps Barrett, an adoptive mother of Black children, is inclined toward this middle position.

Kennedy’s former law clerk, Justice Brett Kavanaugh, engages in race and gender conscious affirmative action in hiring law clerks. It would be ironic and unfortunate if he and Kennedy’s other former law clerk, Justice Neil Gorsuch, undermined the legacy of their former boss.

The lower court in the Harvard case applied four decades of settled precedent to the copious evidence in this case and concluded that Asian applicants to Harvard had not been discriminated against, nor had constitutional principles been violated. It found that Harvard “valued all types of diversity, not just racial diversity, it considered race as part of holistic review process and, without considering race, its share of students of particular races would significantly decrease.”

The willingness of the Roberts Court to overturn long established precedent undermines its legitimacy. Before the Civil War, the court enabled and protected the interests of enslavers. After the war, the court was hostile to the first Reconstruction; the Roberts Court is hostile to the second one, which began with the civil rights revolution.

The 14th Amendment, by definition, was a race-conscious effort to end structures of white supremacy, as an honest, originalist inquiry reveals. If judicial originalists want to stay true to their originalist values, they should be supporting rather than undermining that reckoning.