Color Blindness, Originalism, and the Equal Protection Clause
Jonathan Rowe on Jun 28th 2007
In, Parents Involved in Community Schools v. Seattle School District, the Court, with minor qualifications, upholds the “color blind” ideal approach to the 14th Amendment’s Equal Protection Clause. Good for them. Some lefty-liberals criticize such “originalist” approach, while signaling out “color-blind originalists” Scalia and Thomas, noting that, under the original expected application of the EPC’s text, “the ‘race neutral’ interpretation…has no basis whatsoever in originalism.”
Well, not exactly. The original expected application of the EPC’s text permitted some, arguably many forms of racial discrimination against blacks (and logic therefore suggests against whites). However, at the very least, the original meaning of the Clause required equal application of whatever general rules of law happened to be on the books, be they statutes against murder or theft, the legal ability to enter contracts, give evidence, sue or be sued, or even take advantage of substantive legal rules that come from court decisions.
If constitutional law holds that all purposeful government discrimination against blacks violates the EPC (something perhaps not within the original meaning but that all liberals and conservatives and everyone on the Court now agrees on), then the original meaning of the EPC likewise requires such expanded meaning of the text equally protect whites and other races.
In other words, whatever degree of protection “the law” decides to give, the original meaning of the EPC requires it be given equally to all persons without regard to race. When the EPC was originally ratified, “the law” simply granted a lower level of protection. It didn’t grant blacks (or whites) rights against government policies which took race into account; but now “the law” does, at least for blacks, it does. Government must, therefore, protect all races within this general rule against racial discrimination. Otherwise, the way the leftists would have it, we end up with a norm where blacks receive greater constitutional protection under the EPC than whites or other races, which is impossible to square with the original meaning of the EPC’s text.
No one wants to “go back” to the original expected application of the EPC’s text, which arguably permitted racial segregation and without question permitted bans on miscegenation. But given that is out of the realm of possibilities, the “color blind” interpretation of the EPC requiring race neutrality is the next closest thing to an originalist outcome. Such outcome also avoids constitutional double standards on racial grounds which ought to be unacceptable in modern liberal democratic societies.
Filed in The Bench, The Bureau
The fallacy of originalism aside, the Court is merely addressing its own screw-ups. It held Plessy until Board of Education. It mandated its own remedies for its bad decisions, including such preposterous remedies as Calvinistic “pawn brokers of busing.”
The Court’s own Plessy brought about Segregation, and so its “remedies” to its own Segregation might be self-servingly disengenuous, except that serious harms to those of African descent were committed under “separate, but equal.”
Remedies to centuries of slavery and court-sanctioned segregation to those of African descent have my complete commitment, but for more resources, not “moving pawns around on a checkerboard” of the Court’s remedies for its own screw-up. Addressing the court’s sanction’s of institutional poverty and segregation has to be by legislative merit, by political wisdom, not by more Court divinations again, to unscrew their prior screw-ups, screwing-up the remedies, too.
Every liberal/libertarian should embrace the Court’s confused ruling this week. Get the BLACK/WHITE robbed out of the remedy business it CREATED. Now, to the serious business of remedy the Court’s Segregationism, which it obviously cannot be trusted to divine much of anything. Dred Scott, Plessy, Roe, Kelo, etc. It’s not what Courts are for!
Jonathan,
“Government must, therefore, protect all races within this general rule against racial discrimination.”
Since I haven’t followed the Justice Department cases, could you tell me please, where it has gone after racial discrimination without someone starting a complaint?
It was perfectly alright for lynchings to go unprosecuted. Somebody had to do something. The so call law and the constitution were not protecting us. So why would a black person be upset about Brown vs. Board of Education after Plessey vs. Ferguson and not be upset now. Cannot some institution of government, do the ethical thing when it comes to race? If the constitution can not live up to its purpose, if it is held up to such piety, then it cannot be an instrument of government?
I would ask:
1) Why exactly are you upset now?
2) Was the government, when it engage in racial categorizations in the above mentioned case, truly doing the “ethical” thing?
3) Isn’t John Roberts’ ruling perfectly consistent with the dissent in Plessy which mandated color-blindness under the law?
And no, it was not okay for those lynchings to go unprosecuted.
Slavery was presumptively ended with the Emancipation Proclamation and the 13th and 14th Amendments. It was the Court in Plessy, substantiating Segregation as “constitutional,” that facilitated the South’s Segregationists, by “separate, but equal,” for “equal protection under the laws.”
Fortunately, the Court got smarter in Brown v. Board. But since the Court was the Problem, since the Court created Segregation, for the Court to determine its own Remedies (which turn out to be ludicrous in many cases) only justifies another branch of government, not the Courts, from remedying the Court’s errors.
Are we a “color blind” society? In theory, not until 1954 at the earliest, or 1964 possibly. So, for 75 years after the Emancipation, the Court sanctioned Segregation. The Remedy should not be left to the Culprit. It may mandate a Remedy (ies) be Taken, but not specify them. It cannot even read a simple sentence right.
To which our Executive and Legislature, with the Court’s approval I trust, will engage in a Remedy, that includes Affirmative Action, financial resources to those of African descent, including improved education, housing, job training, etc. “lost” while the Court sanctioned Segregation over and beyond Slavery. Justice requires those Remedies, not indefinitely, but certainly correctively.
I am second-to-none in my admiration for the Founder’s accomplishment, and addressing slavery was not one of them, given the exigencies of the times. But no sooner is Slavery abolished, than the Court sanctions Segregation. That’s an Injustice on top of another Injustice. Reversing itself had to occur. Then deferral to the people’s representatives for solutions, not the Court-ordered ones which only worsened matters. School Busing? Using kids as pawns in Adult Guilt?
Consequently, “we the people” own these screw-ups, not that we did them ourselves, but they were done in our name, by those whose very purpose it is to prevent harms, not inflict them. Let’s WE the People Remedy the Court’s errors, since it cannot even read an 18th C. text, or a 19th C. amendment without equivocation, or appealing to fallacious reasoning, or imaginary “intentions,” originalism, and all the other nonsense.
Our politicians may be no less screwy, but at least they are accountable to recall. They’ll have to negotiate some pretty draconian measure to offset (i) slavery, then (ii) segregation. The Court can mandate that the politicians “remedy” the problem the Court itself created, subject to its approval (like all remedial actions), and then let a political solution be negotiated.
Just pray your arbitration does not come before these “justices,” who now insist “we’re colorblind,” until we weren’t in 1954, before we saw the errors of our ways. When “equal protection” = “separate, but equal” or “public use” means “anything anybody says” who needs courts. They’re the problem they were designed to solve. Someone forgot to tell them to “read the words.” What? Has the Court become Postmodernist, too? All that Rhetoric of Indeterminacy? With this Court, the case could be made for either (i) indeterminacy, (ii) incoherence. Frankly, it’s the latter.
I am upset because the tone of the language can move all progress backward. The conservatives that use language “I am not a racist” and “it should be a colorblind society” to promote racist ideas.
The dissent of Plessey is a “what if.” Truly had no effect on black people lives.
Yes the government can engage in racial categorization, because the constitution does. When I heard the Declaration of Independence and the preamble as a child, even though I lived in the south; I didn’t think that you had to have laws, amendments to make us citizens and real people. But it did, it had to be spelled out who we were. With no acknowledgment, how can you write laws against discrimination. How can we prove it? Blacks would have to have several organizations constantly running dual experiments, in housing. employment and school admissions. It would also allow for unreasonable qualifications to be put forth in admittance in public institutions employment.
It is not a leap of my imagination seeing this happened, especially after I have heard a white person bitch about them not being able to get into their college of choice, because their SAT score being 50 points higher than a black student and they were discriminated against.
Maybe I misunderstand the gist of Roberts et alia, but my redaction is simply: The use of race in a colorblind society is unconstitutional, ergo, remedies for prior use of race in court-sanction segregated and for unabolished slavery is just an unfortunate consequence of the times: slate wiped clean, and any injustices, offenses, or harms caused can only be applied if “skin color” is not a factor (although that was “our” court’s basis all along).
Appealing to a “colorblind” society is fine, provided it’s true. It wasn’t. And the Court bears significant responsibility for that fact. Wiping slates or “remedies without regard to race,” pretty much ignore the injustices.
In theory, a possible solution would be to use “poverty,” rather than “race.” the only problem with substituted classes, is that those in “poverty” are not the same class as those harmed because of “race,” at least not coextensively. The only means of addressing the “race problem” is to admit “race must be a factor in the remedy.” When the remedy is complete, no more color-distinctions. Then we can profess to be colorblind. But we cannot profess it now, after we have not remedied the problem. To suggest otherwise, leaves (i) no remedy to the class, or (ii) substitution of the class by another class. Great. More avoidance, more casuistry, more everything but solutions.
Justice requires remedy, and racial injustices will require explicitly racial remedies. Only for those of African descent. Only for a period specified as the Remedial Period. In various ways and manners, to be determined best by the people’s representatives, so that it is equitable to the most number of people, while still accomplishing the remedies, however varied and sundry determined. And when the Remedy is complete, by consent of all the parties, we will all agree we are a colorblind society. Otherwise, we’re just yanking each other’s chains. We got “otherwise.”