As the Constitution Color-Blind? "... Class Remedies, Such as Affirmative Action and Racial Set-Asides, Assume That All Members of the 'Monolithic White Majority' Are Guilty of Racial Class Injuries and All Members of 'Discrete and Insular' Minorities Are Victims of Such Injuries."

Article excerpt

THE 14th Amendment cannot be understood properly except in terms of the principles of the Declaration of Independence. The Constitution itself was written to denote those principles. Yet. insofar as it allowed slavery to continue, the Constitution is an incomplete expression. Slavery was a manifest violation of the central tenet of the Declaration that "all men are created equal," and of" the injunction that just role must therefore proceed from the consent of the governed. The Founding Fathers went as far as they could in this direction, given the political circumstances of the time. They could not go all the way, though. Understanding this, the drafters described the 14th Amendment as a completion of the Constitution. For instance, Thaddeus Stevens, a prominent member of the Joint Committee on Reconstruction, remarked that the framers were compelled by political necessity to post-pone the "full establishment" of the principles of the Declaration "till a more propitious time. That time ought to be present now."

The formal completion of the Constitution actually was achieved with the passage of three amendments following the Civil War: the 13th, which abolished slavery; the 14th, which extended citizenship and civil rights to the newly freed slaves; and the 15th, which protected the right to vote against racial discrimination. However, this had to be translated into constitutional practice, a task that, in some sense, was the most difficult of all.

The 14th Amendment, ratified in 1868, is the most important of the post-Civil War amendments. It established the first definition of citizenship in the Constitution, making Federal citizenship primary and state citizenship derivative, thereby securing the citizenship of newly freed slaves and nullifying the Supreme Court's 1857 Dred Scott decision that they were property. It also prohibited any state from abridging "the privileges or immunities" of Federal citizenship; from depriving "any person of life, liberty, or property without due process of law"; and from denying "to any person within its jurisdiction the equal protection of the laws." Each of these clauses has been, at one time or another, the center of fierce constitutional controversy, hi the context of recent affirmative action cases, the equal protection clause is most relevant.

Equal protection means first and foremost that every individual is guaranteed the equal protection of equal rights. These rights belong to individuals because they are inherent in human nature. In this sense, "all men are created equal" and no person has a fight to rule another without his consent. Rights--both natural and civil--belong to individuals, not groups, and any attempt to condition the possession and enjoyment of rights on race or other class characteristics is a violation of equal protection. Race is an accidental, not an essential, feature of human nature, and the rule of law prohibits arbitrariness in its classification. Since race is an arbitrary category, it is excluded ipso facto by the rule of law. This is the principle behind Justice John Harlan's famous dissent in the 1896 case of Plessy v. Ferguson. The majority in that case--which concerned segregated railway cars--held that the law could treat people separately according to their race, as long as it treated them equally. Harlan disagreed, arguing that the Constitution is "color-blind." It is color-blind because the role of law is color-blind, and because the idea of man himself--as reflected in the principles of the Declaration--is color-blind.

The pivotal ease in modern equal protection jurisprudence is the 1954 school desegregation case, Brown v. Board of Education. Contrary to what most constitutional experts claim today. Brown was one of the worst opinions ever written. Of course, the result was eminently correct. There is no doubt that racially segregated public schools violate the Constitution's equal protection clause. Yet, the reasoning of the opinion was unsound in that it utterly ignored the Constitution. …


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