When, if ever, should government use race as a criterion for law or policy?
This question is a perennial one in American politics, of course, because of the unique history of African Americans. Many ethnic groups have come to America, both before and after the founding of the United States, but none did so under circumstances comparable to those of the Africans. No other group was originally brought here involuntarily as slaves. The exploration of America and Africa by Europeans in the sixteenth century, led to a thriving slave trade. First the Portuguese, then the Spanish, then the English brought black people from Africa for slave labor in the sugarcane fields of the Cape Verde Islands, in the mines and on the haciendas of Central and South America, and on the plantations of what is now the southern United States. Slavery was not unknown in many of the northern states, but it lost its economic viability there before the turn of the nineteenth century, and might have done so in the South as well but for the invention of the cotton "gin," or engine, which made vast cotton plantations viable as long as there were slaves to work them.
Antislavery preaching by William Wilberforce in Britain and by many of the Puritan divines of the northern United States convinced hearers of the moral inadmissibility of slavery. But in the South, economic necessity (or the perception thereof) blocked the path to moral awakening on this issue.
The Civil War and the Thirteenth Amendment settled the slavery question forever as a matter of American law, but they did not settle the problem of a large black population with a very legitimate grievance living in the midst of low-income white people who saw them as competition for low-skilled jobs. The Ku Klux Klan and the "Jim Crow" legal system, which developed as responses to this perceived threat, kept the "badges and incidents" of slavery alive as late as the 1960s.
THE VICE OF RACIAL DIFFERENTIATION
The general history of mankind suggests, unfortunately, that treating people differently based on their race is a pandemic vice. The civil rights movement of the 1950s and '60s was a true revolution in American public thinking. To move an entire society in just a few years toward a systematic rejection of such practices and toward a principled affirmation of human equity regardless of race required a systematic appeal to natural law. Martin Luther King Jr. provided just that in his Letter From the Birmingham Jail and in his many classic speeches. Human dignity, he maintained, inheres in the human person as such; this is a truth of natural law that cannot be altered by human institutions' attempts to deny it.
The civil rights movement consists of a great many marches, manifestos, acts of resistance, court decisions, and state and federal statutes. But its legal "twin peaks," if one may put it that way, are the Supreme Court's. 1954 decision in Brown v. Board of Education and the Civil Rights Act of 1964.
In the Brown decision, the Court held that the notion of "separate but equal," which had been the hallmark of segregated schooling, fell short of the equality promised by the equal protection clause of the Fourteenth Amendment. The 1964 Civil Rights Act banned racial, religious, gender, and national origin discrimination in the workplace and in public accommodations.
But writing laws is easier than implementing them. American society had almost no sooner accepted the teaching of King and his movement than it faced a disturbing paradox: Implementing the principle that race should be a nullity in human relations seemed to require frequent recourse to methods that violated that very principle. White people who, ten years earlier, would have treated black people as second-class citizens now made a conscientious effort to treat them as equals; but, not being used to it, this very effort made them painfully aware of …