The Fourteenth Amendment and Race:
Segregation and Affirmative Action
The most important initiative undertaken by the Supreme Court of the United States in the period since the end of World War II was its effort, most famously in the seminal case of Brown v. Board of Education ( 1954), 1 to abolish governmental racism: racist laws and other kinds of racist governmental action, including policies aimed at creating and/or maintaining racial segregation. ( Charles Black described Brown as "the decision that opened our era of judicial activity." 2) Was the Supreme Court's effort to abolish governmental racism justified by any constitutional norm (or norms) established by "We the people of the United States"? If some aspects of constitutional doctrine forbidding governmental racism are not justified by any such norm, are they justified nonetheless -- that is, justified as constitutional doctrine -- on some other basis? Or was the Court's effort to abolish governmental racism an instance of "the judicial usurpation of politics"?
One of the most controversial initiatives undertaken by the Supreme Court in the contemporary period is its effort to restrict the extent to which government may rely on policies of race-based "affirmative action": policies that, to ameliorate the present effects of past racist acts and/or for some other, nonracist reason (e.g., to increase the racial diversity and hence overall effectiveness of an urban police department), give a preference -- in hiring, for example, or in admission to a state university -- to members of a racial minority. Is the Court's effort to restrict reliance by government on race-based affirmative action -- is the Court's erecting high barriers to such reliance -- justified by any constitutional norm established by "We the people of the United States"? If not, is contemporary constitutional doctrine restricting government reliance on affirmative action justified nonetheless -- justified as a constitutional doctrine -- on some other basis? Or is its effort to restrict government reliance on affirmative action an instance of the Court's usurpation of our politics?
To forestall misunderstanding, two clarifications are in order. First, I do not mean to suggest that the Court's effort to abolish governmental racism has been as thoroughgoing as it could have been. Undeniably, the