Is the Constitution Colorblind?

Notes

1. No state shall…deny to any person within its jurisdiction the equal protection of the laws.

   US Constitution, Amendment XIV, Section 1.

   Above is the Equal Protection Clause of the 14th amendment. In June 2023, the Supreme Court ruled that Harvard and UNC violated the Equal Protection Clause through their use of race in admissions. Affirmative action in college admissions—that is, the deliberate use of race as a basis for choosing between applicants—is unconstitutional (except at military academies). Conservatives hailed the ruling as a win for the colorblind Constitution. For example, see:

   • A Landmark Victory for the Colorblind Constitution
   • The Supreme Court ruled that the Constitution is colorblind: John Yoo
   • The Supreme Court Fulfills the Constitution’s Color-Blind Promise

2. [P]roponents [of the 14th amendment] repeatedly affirmed their view of equal citizenship and the racial equality that flows from it. In fact, they held this principle so deeply that [the amendment] ensures racial equality with no textual reference to race whatsoever. [emphasis in the original]

   Justice Clarence Thomas. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA v. Harvard, for short), Concurrence

3. The Equal Protection Clause applies to any person. However, the 14th amendment also defines and protect citizens. In doing so, it nullified Dred Scott, the Supreme Court decision that denied citizenship to African-Americans. As noted above, Justice Thomas maintains that the Congress that passed the 14th amendment considered equal citizenship to be foundational to racial equality before the law.

4. In his concurrence in SFFA v. Harvard, the 2023 Supreme Court decision forbidding affirmative action in college admissions, Justice Thomas gives an originalist defense of the colorblind Constitution. According to Thomas, the original public meaning of the 14th amendment prohibits all race-conscious laws and policies. Although he admits the historical record…is sparse, Thomas says:

   [S]ubstantial evidence suggests that the Fourteenth Amendment was passed to establis[h] the broad constitutional principle of full and complete equality of all persons under the law, forbidding all legal distinctions based on race or color.

   Justice Clarence Thomas. SFFA v. Harvard, Concurrence

   Thomas is quoting from a Justice Department brief used in the reargument of Brown v Board of Education. A central question taken up during reargument, and addressed in the brief, was whether the framers of the 14th amendment meant to prohibit segregation (which makes legal distinctions based on race) in public schools. The Court found the historical evidence inconclusive, though it still ruled that segregation violated the Equal Protection Clause on the grounds that [s]eparate educational facilities are inherently unequal.

   Thomas also cites the 2013 law-review article Originalism and the Colorblind Constitution, a contemporary touchstone for originalist arguments against affirmative action.

5. In 1896, the Supreme Court ruled in Plessy v. Ferguson that the 14th amendment permits separate but equal treatment of whites and African-Americans. The ruling gave sanction to segregation. It was overturned in 1954 by Brown v. Board of Education.

6. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

   Justice John Harlan. Plessy v. Ferguson, Dissenting

7. What Justice Harlan’s famous statement meant is that, under the Fourteenth Amendment, states were constitutionally forbidden to enact measures to humiliat[e] citizens of a particular race and thereby place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States.

   Constitutional Accountability CenterConstitutional Accountability Center. Amicus Brief – SFFA v. Harvard. (Justice Harlan in internal quotes)

   The above alludes to an anti-subordination theory of the 14th amendment’s Equal Protection Clause. Put simply, laws that discriminate against racial minorities are strictly prohibited, but laws that discriminate in favor of them are not. By contrast, an anti-classification theory treats any racial classification in the law as suspect under the 14th amendment. (See Two Theories of Equal Protection.)

8. Dissenting in SFFA v. Harvard, Justice Sonia Sotomayor gives an example of colorblind language proposed and rejected by the framers of the 14th amendment: no State…shall…recognize any distinction between citizens…on account of race or color. (For more examples, see this amicus brief, pp.7–8.) A series of such proposals were shot down, according to scholar Andrew Kull, whom Sotomayor cites. Kull concludes:

   Congress…preferred the more malleable notions of equality and equal protection to an unyielding rule of nondiscrimination.

   Andrew Kull, Law ProfessorAndrew Kull. The Color-Blind Constitution

9. Around the time of the 14th amendment, Congress passed several race-conscious laws, argues Justices Sotomayor (SFFA dissent) and Ketanji Brown Jackson (oral arguments for Merrill, a voting rights case):

   • The Freedmen’s Bureau Acts of 1865, 1866 (see next note)
   • The Civil Rights Acts of 1866, passed to counteract the Black Codes:
     • Asserted every race and color…shall have the same right[s]…enjoyed by white citizens
     • Forbid different punishment…by reason of…color or race, than is prescribed for the punishment of white persons
   • Relief legislation in 1866, 1867 that appropriated funds for the relief of…
     • destitute colored women and children, former slaves or not
     • freedmen or destitute colored people in the District of Columbia
   • Special appropriations and protections in 1866, 1869, 1873 for colored soldiers and sailors

   Sotomayor cites the law-review article Affirmative Action and the Legislative History of the Fourteenth Amendment, a seminal paper, per Vox, that offers an originalist defense of affirmative action.

10. Created in 1865, the Freedmen’s Bureau provided aid to freed slaves and refugees of the Civil War. African-Americans were the targeted beneficiaries of the Bureau’s programs, says Sotomayor, especially its education benefits, which were open to all Black people, not just the newly emancipated. Supporters and opponents alike saw the Bureau bills as race-conscious, argues Sotomayor. Here are two quotes (among others) she cites:

    • Rep. Moulton, in favor: [T]he true object of this bill is the amelioration of the condition of the colored people.
    • Sen. Wiley, opposed: [The Act] makes a distinction on account of color between the two races.

11. America’s Second Founding refers to the passage of the 13th, 14th, and 15th amendments. (The 13th abolished slavery, and the 15th established voting rights.) The Second Founders include Rep. John Bingham, author of Section 1 of the 14th Amendment, which contains the Equal Protection Clause.

12. [T]he [Freedmen’s Bureau] Acts applied to freedmen…a formally race-neutral category, not blacks writ large. And, because not all blacks in the United States were former slaves, ‘freedman’ was a decidedly underinclusive proxy for race … Moreover, the Freedmen’s Bureau served…white refugees. [internal quotation marks omitted]

    Justice Clarence Thomas. SFFA v. Harvard, Concurrence

    Freedmen versus blacks sounds like a distinction without a difference, but it bears on precedent for racial preferences in the law, argues scholar David Bernstein:

    Imagine an Allied policy in 1946 to help former inmates of Nazi camps, 95% of whom were Jews … [T]his is about race … [yet] the policy does not single out Jews for assistance based on them being Jews … Such would be a clear precedent for…giv[ing] assistance to a group that suffered horrific discrimination … It’s a much weaker precedent for…160 years in the future, singl[ing] out Jews…for special treatment, regardless of whether their ancestors were ever persecuted by the Nazis.

    David Bernstein, Law ProfessorDavid Bernstein. The Freedmen’s Bureau as a Precedent for Racial Classifications

13. These laws—even if targeting race as such—likely were also constitutionally permissible…The government can plainly remedy a race-based injury that it has inflicted…In that way, race-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were not inconsistent with the colorblind Constitution. [emphasis in original, internal quotation marks omitted]

    Justice Clarence Thomas. SFFA v. Harvard, Concurrence

14. Strict scrutiny is the highest standard of review courts apply in cases of government discrimination. Such discrimination is constitutional only if it both furthers a compelling government interest and is narrowly tailored to achieve that interest. Regarding an 1866 law that benefited only colored soldiers and sailors, the compelling government interest was to prohibit race-based exploitation, argues Thomas:

    [The law] adopted special rules and procedures for the payment of “colored” servicemen in the Union Army to agents who helped them secure…payments that they were due. Congress believed that many black servicemen were significantly overpaying for these agents’ services… [internal quotation marks omitted]

    Justice Clarence Thomas. SFFA v. Harvard, Concurrence

    Achieving that interest without discriminating by race may not have been possible, says Thomas. He concludes that the law may well have survived strict scrutiny.

15. [T]he Civil Rights Act of 1866…mandated that all citizens have the same rights as those enjoyed by white citizens … The Act did not single out a group of citizens for special treatment—rather, all citizens were meant to be treated the same as those who, at the time, had the full rights of citizenship. Other provisions … stated that the basic civil rights of citizenship shall be secured without respect to race or color.

    Justice Clarence Thomas. SFFA v. Harvard, Concurrence

16. [A] wide range of federal and state statutes enacted at the time of the Fourteenth Amendment’s adoption and during the period there after…explicitly sought to discriminate against blacks on the basis of race or a proxy for race. [emphasis in original]

    Justice Clarence Thomas. SFFA v. Harvard, Concurrence

    To support his claim about laws that harmed blacks, Thomas cites Originalism and the Colorblind Constitution. That article gives three examples. First, congress passed laws that allowed racial segregation in DC schools. Second, it did the same for the US military. Third, it passed the Naturalization Act of 1870, which permitted aliens of African nativity and…persons of African descent to become naturalized citizens but purposefully excluded other non-whites, particularly Chinese immigrants.

17. Some critics of a colorblind reading of the 14th amendment apply the interpretative methods of originalists like Thomas. That is, they look for the original public meaning of the amendment in the historical record. In this case, the critics, including Jackson and Sotomayor, surveyed federal laws. Scholar Michael Rappaport (cited by Thomas) challenges their approach:

    The Congresses that passed the laws that benefited blacks also passed laws that harmed minorities … These three pieces of legislation would appear to have significant implications for the meaning of the Fourteenth Amendment under the critics’ approach. After all, if the federal laws benefiting blacks inform the meaning of the Amendment, then so should the federal laws that harmed blacks and other minorities.

    Michael Rappaport, Law ProfessorMichael Rappaport. Originalism and the Colorblind Constitution

    Thomas echos this challenge in his SFFA concurrence. So do some conservative publications, such as the National Review.

18. In 1954, The Supreme Court ruled unaninamously in Brown v. Board of Education of Topeka that the 14th amendment prohibits school segregation.

19. Reargument [of Brown] was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then-existing practices in racial segregation, and the views of proponents and opponents of the Amendment … [A]lthough these sources cast some light, it is not enough … At best, they are inconclusive.

    Chief Justice Earl Warren. Brown v. Board of Education of Topeka (1954)

    The phrasing [a]t best…inconclusive strongly suggests the Court believed that in the cold, hard eye of objective historical examination, the sources point the other way, says scholar Michael McConnell in Originalism and the Desegregation Decisions. In other words, the Justices probably thought the authors of the 14th amendment may well have intended to allow school segregation.

20. For decades after Brown, the consensus among legal scholars was that the Court did not rely on the historical understanding [of the 14th amendment] because it could not, says McConnell in his 1995 article challenging that consensus. Writing in 2016, Amy Coney Barrett (now Justice Barrett) acknowledged that sticking to the 14th amendment’s original public meaning remains controversial:

    Adherence to originalism arguably requires…the reversal of Brown v. Board of Education.

    Amy Coney Barrett, John Copeland Nagle. Congressional Originalism

21. [There] is powerful evidence that the 14th Amendment, as originally understood, permitted the very kind of school segregation declared unconstitutional in Brown … An originalist approach to racial equality, then, would most likely lead to results that few Americans would find acceptable.

    Ian Milhiser, JournalistIan Millhiser. What the Constitution actually says about race, explained

22. Neither [the laws discriminating against blacks], nor a small number of laws that appear to target blacks for preferred treatment, displace the equality vision reflected in the history of the Fourteenth Amendment’s enactment. This is particularly true in light of the clear equality requirements present in the Fourteenth Amendment’s text.

    Justice Clarence Thomas. SFFA v. Harvard, Concurrence

    The history of…enactment includes the drafting and debating of the amendment, as discussed in Thomas’ concurrence. On deference to the amendment’s text, Thomas cites:

    [T]o the extent later history contradicts what the text says, the text controls … Thus, postratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text. [internal quotation marks omitted]

    Justice Clarence Thomas. New York State Rifle & Pistol Association Inc. v. Bruen

23. As the plaintiffs [in Brown] had argued, no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

    Chief Justice John Roberts. SFFA v. Harvard

    Roberts and Thomas also cite a brief submitted in Brown by lawyers from the NAACP. The lawyers wrote: That the Constitution is color blind is our dedicated belief.

    For discussion, see In Clash Over Affirmative Action, Both Sides Invoke Brown v. Board of Education.

24. [T]he opportunity of an education…where the state has undertaken to provide it, is a right which must be made available to all on equal terms.¹ … The opinions [Brown v. Board of Education and Bolling v. Sharpe] declar[ed] the fundamental principle that racial discrimination in public education is unconstitutional.²

    Chief Justice Earl Warren. 1 Brown v. Board of Education of Topeka (1954), 2 Brown v. Board of Education of Topeka (1955)

    Bolling outlaws public school segregation in DC.

25. Before serving on this Court, Justice Thurgood Marshall led the litigation campaign to overturn Plessy v. Ferguson … He explained that [t]he obligation to furnish equal protection of the laws does not establish an abstract uniformity applicable alike to all persons without regard to circumstances or conditions … Later, when applying the lessons of Brown…in Regents of the University of California v. Bakke, Justice Marshall … declared it inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures. [internal citations omitted]

    NAACP Legal Defense FundNAACP Legal Defense and Education Fund. Amicus Brief – SFFA v. Harvard

26. The desegregation cases that followed Brown confirm that the ultimate goal of that seminal decision was to achieve a system of integrated schools that ensured racial equality of opportunity, not to impose a formalistic rule of race-blindness.

    Justice Sonia Sotomayor. SFFA v. Harvard, Dissenting

    Sotomayor cites various cases in which school boards failed to integrate students in an active, race-conscious fashion. For example, in Green v. School Bd. of New Kent Cty. the board allowed students to choose schools. Segregation persisted. The board argued that Brown didn’t allow it to use race to place students. The Court disagreed.

27. In Green v. School Bd. of New Kent Cty., the Court ruled that, under Brown, segregated schools had the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. Sotomayor remarks:

    Affirmative steps, this Court held, are constitutionally necessary when mere formal neutrality cannot achieve Brown’s promise of racial equality.

    Justice Sonia Sotomayor. SFFA v. Harvard, Dissenting

28. Citing Green (discussed above), Sotomayor says:

    [The Court] made clear that indifference to race is not an end in itself under [Brown]. The ultimate goal is racial equality of opportunity. [internal citation omitted]

    Justice Sonia Sotomayor. SFFA v. Harvard, Dissenting

29. Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry. [internal citation omitted]

    Justice Ketanji Brown Jackson. SFFA v. Harvard, Dissenting