United States Constitution
United States Constitution
A constitution is a formal statement of the central governing principles of a nation. Generally, a constitution will set forth the structure, powers and duties of the government and state the rights of the government’s citizens. The United States Constitution is considered the first modern constitution produced by the European Enlightenment and a model for virtually all subsequently written constitutions. However, the Constitution was written by men who were deeply influenced by the racial ideology of the day and who were also committed to protecting the significant economic benefits that were provided by the enslavement of African people. As a result, the United States inherited a political system that, due to its compromises over slavery, would allow race to remain a divisive political issue for much of the country’s existence.
In the seventeenth and eighteenth centuries, when the American colonies were established and a new nation was beginning to develop, notions of white supremacy and the inherent inferiority of Africans were widely held. The framers of the Constitution were no different in this respect from their fellow colonists. Thomas Jefferson, in his Notes on the State of Virginia (1787), mused that blacks “are inferior to whites in the endowments of both body and mind,” and viewed Africans as less capable than whites in reason, imagination, and emotional capacity. Benjamin Franklin, admitting in Observations Concerning the Increase of Mankind (1755) that he was “partial to the Complexion” of his own race, wondered, “Why increase the Sons of Africa, by Planting them in America, where we have so fair an Opportunity, by excluding all Blacks and Tawneys [by which he meant Indians], of increasing the lovely White and Red [by which he meant only “Saxons” and “English”]?”
The United States Constitution, as originally framed and ratified, made no overt textual reference to race. Several provisions had direct or indirect racial significance, however, insofar as they accommodated the institution of slavery. The Constitutional Convention in 1787 represented an effort to overcome the perceived shortcomings of the earlier Articles of Confederation and form a more viable union. The primary impediment to this process was slavery. In his notes, James Madison described slavery as the principal source of division at the convention, eclipsing even the conflict between large and small states over political representation.
Although the slavery question was not part of the Convention’s agenda, it lurked in the background of almost every major issue decided at the Convention and occasionally burst out into the open. The desire on the part of large states to replace the uniform representation of the Confederation Congress with proportional representation could not be resolved without considering the slavery issue. Although the enslaved could not vote, Southerners viewed them as a kind of property that deserved protection in the allocation of government power. Furthermore, the sparsely populated South was reluctant to join a governmental scheme that would leave them as the junior partner to the more populated North. Slavery also figured largely in the debate over Congress’s power to tax and regulate commerce. Southern delegates sought to protect slavery by restricting Congress’s ability to use its commerce and taxing powers to eliminate slavery or make it less profitable.
The interest in a more viable political and economic union was dispensable to some Southern delegates if it did not accommodate slavery. Opposition to slavery among Northern delegates melted when confronted with the intensity of this agenda. As Thurgood Marshall put it in a 1987 speech: “The record of the framers’ debates on the slave question is especially clear: the Southern states acceded to the demands of New England states for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade” (1987, p. 2).
The new union was predicated on federal acquiescence in slavery and the reservation of self-determination for each state. The document itself was drafted in terms that did not use the words slavery or Negroes or Africans, whether out of embarrassment or political expediency. But the concerns of the slaveholding regions were addressed in various ways. Proportionate representation in the House of Representatives and factoring of direct taxes was based on a population count that recognized a slave as three-fifths of a person. Congressional regulation of American participation in the international slave trade was prohibited until 1808. A fugitive slave clause was adopted as the basis for federal legislation that enabled slave owners to recapture runaway slaves without any legal process.
Other provisions in the Constitution accommodated slavery indirectly. Sections of the Constitution requiring the federal government to put down rebellions or to protect states from “domestic violence” clearly contemplated federal aid in event of a slave rebellion. Article I, Section 9, prohibiting federal taxes on exports, prevented an indirect tax on slavery through the taxation of exports produced by slaves. Article I, Section 10, likewise prevented states from taxing exports or imports. The establishment of an electoral college incorporating the slavestate weighted scheme of proportional representation in Congress meant that Southern states had greater influence on the selection of a president than they would have had with direct popular elections. Finally, the amendment process was cast in the South’s favor. The threefourths majority requirement for amendments made it difficult to amend the constitution without the agreement of slaveholding states, and those provisions of the Constitution permitting the slave trade and requiring direct taxes on slaves at a reduced three-fifths rate could not be amended at all until 1808.
The accommodation of slavery was a key to brokering the union’s founding. It was a model of political resolution that continued through the first half of the nineteenth century, but with diminishing returns. Northern concessions to the slavery agenda were inspired in part by Southern acquiescence in the nation’s first stage of territorial expansion. The Northwest Ordinance, which created the territories of Illinois, Indiana, Michigan, and Ohio, explicitly prohibited slavery. Southern delegates also fostered the sense that slavery was a dying system.
Far from being terminal, slavery grew during the nation’s early years. Congress in 1808 prohibited American participation in the international slave trade. The impact of this action was limited by the federal government’s inability to patrol the nation’s shores effectively and the continuing demand for slaves. Territorial expansion and fugitive slave controversies ultimately undid original expectations that the union could accommodate slave and nonslave states. The creation of each new territory and admission of each new state generated increasingly acrimonious debate and sectional antagonism. Congress responded to these episodes by recycling the methods of resolution first used by the nation’s founders. Among the most notable of these efforts was the Missouri Compromise, which in 1820 established a permanent geographical boundary between slave and nonslave states and territories.
Each new resolution of the slavery issue, however, merely prefaced an escalation of the controversy. Westward expansion increased each side’s fear that the other would gain the upper hand. Adding to the volatile mix was the abolitionist movement, which emerged in the 1830s and antagonized the South to the point that the movement was criminalized.
By the 1840s the failure to address slavery at the founding was bearing threatening consequences. In Prigg v. Pennsylvania (1842), the Court invalidated a state enactment that prohibited a slave owner from capturing a fugitive slave without due process of law. It found specifically that the antikidnapping law conflicted with federal law permitting slave owners to enter a free state, capture, and remove runaway slaves. This decision sensitized the North to its complicity in slavery. For the South, the federal government’s exclusive interest in fugitive slave matters suggested the potential for slavery to become a matter of national rather than state resolution.
As sectional antagonism and distrust mounted, the political system became increasingly challenged in its ability to manage the slavery issue. The creation of new territories and states by the 1850s had become a particularly high-stakes venture, as evidenced by the chicanery and violence in connection with the admissions of Kansas and Nebraska into the union. With the political process gridlocked on the issue of slavery, it eventually turned to the Supreme Court for a resolution. The Court responded with a decision that proved to be disastrous.
In Dred Scott v. Sandford (1856), the Court found that no person of African descent (slave or otherwise) could be a citizen of the United States or the beneficiary of rights under the federal Constitution. This determination was grounded in the notion that African Americans were inferior, had “no rights that white men are bound to respect,” and could be justly and lawfully reduced to slavery. Chief Justice Roger B. Taney maintained further that Congress had no power to regulate slavery in the territories and that the right to own slaves was constitutionally protected.
Northern reaction to the Court’s ruling was profoundly negative but generally did not reflect any premise of racial equality. To the contrary, racial segregation and discrimination were common aspects of the Northern cultural landscape. These sentiments were shared by President Lincoln, who observed that “when you cease to be slaves, you are far removed from being placed on an equality with the white man. … I cannot alter it if I could. It is a fact” (quoted in Fehrenbacher 1978, Introduction).
Lincoln ignored the Court’s decision and midway through the Civil War issued the Emancipation Proclamation. Congress repealed fugitive slave legislation in 1862, and the Thirteenth Amendment (1865) formally prohibited slavery. The scholar Derrick Bell describes Dred Scott as “the most frequently overturned decision in history” (1973, p. 21). This observation reflects the reality that, although repudiating the Dred Scott ruling, the Thirteenth Amendment did not foreclose racist ideology as a driver of policy. Slavery, once outlawed, was superseded by the Black Codes, which established a comprehensive set of race-based burdens on opportunity, residence, travel, assembly, voting, and other activities.
With the end of the Civil War, the issues dividing North and South returned to the political process. President Andrew Johnson, who took office upon Lincoln’s assassination, adopted the position that the Thirteenth Amendment only abolished slavery. Despite Johnson’s narrow view of the Thirteenth Amendment, Congress used it as authority to adopt the nation’s first civil rights legislation. The Civil Rights Act of 1866 prohibited racial discrimination in civil rights or immunities and guaranteed that all persons, regardless of race, would have the same rights to make and enforce contracts, sue or be sued, inherit, purchase, lease, sell, and hold property, and be subject to like punishment.
President Johnson’s veto of the law was overridden but evidenced the legislation’s fragile foundation. To secure the enactment’s long-term vitality, and consistent with concern that the Thirteenth Amendment was a limited source of authority, the Reconstruction Congress framed the Fourteenth Amendment, proposed in 1866 and ratified in 1868. This provision established that state citizenship derives from federal citizenship, not the reverse as the Dred Scott Court had indicated. It provided that the states could not abridge the privileges and immunities of federal citizenship, deprive a person of life, liberty, or property without due process of law, or deny a person equal protection of the laws. The amendment also empowered Congress to enforce its terms by appropriate legislation.
Missing from the Fourteenth Amendment, as initially framed, was any protection for the right to vote. Despite initial resistance to including this right in its postwar agenda, Congress eventually saw it as a means of accelerating movement toward reconstruction. The Fifteenth Amendment thus was framed and ratified, in 1870, with the expectation that the right to vote would provide the ultimate protection against political hostility toward former slaves.
The Court’s ruling in Strauder v. West Virginia (1879) represented the first use of the Fourteenth Amendment to invalidate a racially discriminatory state law. The Court in this case found the exclusion of
African Americans from juries unconstitutional. In striking down the enactment, the Court described the Fourteenth Amendment as prohibiting laws that singled out a group for legal discrimination, implied inferiority in civil society, lessened their enjoyment of rights others enjoy, or reduced persons to the condition of a subject race. The equal protection clause, as the Court saw it, ensured that state law would be the same for all persons regardless of their race. But the Court quickly narrowed this expansive view of the Fourteenth Amendment’s scope.
Four years later, in the Civil Rights Cases (1883), the Court invalidated the Civil Rights Act of 1875 on grounds it exceeded Congress’s regulatory authority under the Fourteenth Amendment. This legislation prohibited discrimination in public accommodations. The Court, however, determined that racial distinctions in this context were customary, and the legal system could not be used to reach “mere discriminations.”
The Civil Rights Cases and the Supreme Court’s subsequent jurisprudence created a constitutional environment accommodating toward racial discrimination. The key to enacting laws that differentiated on the basis of race was to present them (and have them accepted) as enactments that did not imply inferiority and were consistent with societal norms. Laws designed to establish and maintain separation on the basis of race emerged throughout the South in the late 1880s. These enactments candidly aimed to segregate, protect racial integrity, preserve white supremacy, and minimize cross-racial interaction. Such legislation actually was modeled on enactments in the North that traditionally had mandated racial segregation in education and other contexts. In Plessy v. Ferguson (1896), the Court noted these historical realities in determining that prescriptive racial segregation was constitutional.
The Plessy decision concerned a state law mandating separate but equal accommodations on passenger trains. Although acknowledging that the Fourteenth Amendment established absolute equality of the races under the law, the Court found that the amendment did not eliminate distinctions on the basis of color, enforce social (as opposed to political) equality, or require commingling of the races on terms that were unsatisfactory to either. It viewed official segregation as a reasonable exercise of the state’s police power that accounted for the public’s comfort, peace, and good order. The Court also determined that segregation did not constitute oppression of a particular group but an accommodation of custom and tradition. Responding to arguments that segregation implied inferiority in civil society, the Court attributed any such understanding to a misplaced interpretation by “the colored race.” Justice Marshall Harlan, in a dissenting opinion, criticized the Court for denying segregation’s true nature. He maintained that the Constitution forbids any “caste” system and is “color-blind.”
Prescriptive segregation became a dominant system of racial management that defined opportunity and advantage comprehensively on the basis of group status. For several decades after Plessy, the separate but equal doctrine maintained a formal concern for equality but in reality drove a system of racial advantage (and disadvantage). In Cumming v. Richmond County Board of Education (1899), the Court upheld a school board’s closure of an all-black high school on grounds its financial resources were limited. This outcome previewed a legacy of extreme funding disparities in public education. South Carolina in 1915, for instance, spent ten times more money on educating white students than black students. In Gong Lum v. Lee (1927), the Court rejected arguments that a child of Chinese descent could attend a school reserved for whites.
During the 1930s, federal and state courts began to take a harder look at segregation. This development arose out of the litigation strategy of the National Association for the Advancement of Colored People (NAACP), which challenged obvious inequalities such as funding or lack of higher education opportunities altogether. In these cases, states operating single-race graduate and professional schools typically were given the choice of establishing parallel institutions for nonwhites or allowing nonwhites to matriculate.
The constitutional foundation for segregation also was weakened by evolving standards of judicial review. The Court in United States v. Carolene Products Co. (1938) found that prejudice against discrete and insular minorities impaired the political system’s ability to protect minorities from hostile legislation. It thus signaled a readiness to evaluate laws enacted against groups that were excluded from the political process. In Korematsu v. United States (1944), the Court officially embraced a strict standard of review for laws that differentiated on the basis of race. The Korematsu case concerned the relocation of persons of Japanese descent from the West Coast during World War II. In the face of scant evidence of Japanese-American disloyalty, the Court deferred to alleged national security concerns in upholding the federal government’s action. It observed, however, that any legal restriction burdening the civil rights of a particular racial group are “immediately suspect” and must be subjected “to the most rigid scrutiny.” The Korematsu case was sharply criticized after the war and led to an official apology and reparations for internment camp survivors and their families in 1988.
In the years between the Korematsu ruling and the invalidation of segregated public education in Brown v. Board of Education (1954), states operating racially identifiable schools poured substantial resources into equalization. Even if equality of funding could be hypothetically demonstrated, however, the Court was willing to identify inequality with respect to intangible factors such as a school’s reputation. In Sweatt v. Painter (1950), it determined that segregated legal education would remain unequal even if tangible differences were eliminated. The Court accordingly ordered desegregation of the University of Texas School of Law. It reached a similar conclusion in McLaurin v. Oklahoma State Regents for Higher Education (1950), when it found degrading restrictions on an African American admitted to an all-white graduate program—such as being forced to observe lectures from the hallway—unacceptable.
The constitutional death knell for racially segregated schools was struck in Brown v. Board of Education (1954). Key to the outcome in this case was the Court’s sense that it could not correlate modern law or understandings to the period in which the Fourteenth Amendment was adopted or segregation initially was upheld. It noted that public education had become a primary determinant of personal development and success and referenced psychological data showing that segregation had a detrimental effect on African-American children. The Court concluded that racial segregation in public education inherently was unequal.
Because the equal protection guarantee by its terms applied to the states but did not apply to the federal government itself, the Court turned to the Fifth Amendment due process clause as the basis for invalidating segregated schools in the District of Columbia. In Bolling v. Sharpe (1954) the Court determined that school segregation had no reasonable relationship to a legitimate government objective and thus constituted an arbitrary deprivation of liberty under the due process clause.
Having declared segregation unconstitutional, the Court faced the challenge of framing a remedy that would dismantle it. Knowing that resistance was likely, the Court in Brown v. Board of Education II (1955) announced that desegregation should take place “with all deliberate speed.” This Court solicited input from the states that would be most affected by this ruling. Reaction to the desegregation mandate, however, generally was characterized as resistance, delay, evasion, and hostility.
Although the Brown decision technically governed segregation in public education, its logic extended to the entire public sector. In short order, segregation was invalidated in a variety of public settings. Even as desegregation became the law of the land, many states maintained their laws prohibiting interracial marriage. In Loving v. Virginia (1967), the Court reviewed an antimiscegenation law that the state justified on the grounds of applying it even-handedly. Despite this purported symmetry, the Court concluded that the law was grounded in racist ideology that conflicted with the central meaning of the Fourteenth Amendment.
The elimination of laws that formally classified on the basis of race did not account for all causes or conditions of racial disadvantage. Against this backdrop, a key issue of the 1970s was whether an equal protection claim could be established on the basis of disparate impact alone. In Washington v. Davis, the Court determined that a plaintiff must provide evidence of discriminatory purpose to establish an equal protection claim. This requirement reflected the Court’s concern that a focus on effect alone would put a broad range of legitimate laws at risk.
Discerning a discriminatory purpose was simple when racial segregation was officially prescribed. When not manifest, illegal motive is difficult to prove. Dating back to Yick Wo v. Hopkins (1887), the Court has recognized that laws that are racially neutral on their face also must be assessed with respect to their application. In Arlington Heights v. Metropolitan Housing Development Corp (1978) the Court identified several other factors that may be relevant to determining discriminatory motive. Potential cues include statistical disparities, patterns, or effects that are inexplicable except on grounds of race, legislative history, and departures from normal procedures.
The Court seldom has found discriminatory purpose on the basis of circumstantial evidence. In McCleskey v. Kemp (1987) the Court upheld the Georgia death penalty despite a showing of significant disparities in its application to whites and nonwhites. This case arose against the backdrop of a dual system of criminal justice in Georgia. As Justice Brennan noted in a dissenting opinion, defense lawyers invariably would factor race into the advice they gave clients with respect to accepting or rejecting a plea agreement. The Court was unmoved by statistical disparities that, in its words, “[appear] to correlate to race.” However, in a voting rights case, Shaw v. Reno (1993), the Court found that an oddly configured congressional district could not be understood as anything but racially motivated. The white plaintiffs in Shaw had alleged that the majority black district had been created in violation of the equal protection rights of white voters.
The Court’s embrace of a discriminatory motive requirement represented a critical juncture in equal protection doctrine. Discriminatory intent is difficult to prove when not evidenced on the face of the law. The net result is that judicial relief other than for the most egregious forms of racial discrimination is difficult to find, and racial discrimination motivated by unconscious racism cannot be remedied at all.
The Court’s first substantive ruling on affirmative action, Regents of the University of California v. Bakke (1978), concerned a preferential admissions program at the University of California at Davis Medical School that set aside sixteen of one hundred spots for minority applicants. There was no majority opinion in the case and the justices split on whether the admissions plan passed constitutional muster. Justice Powell provided the deciding vote. He found that the program violated Title VI of the Civil Rights Act of 1964, but maintained that race could be a limited factor in the admission process.
Powell’s opinion proved to be particularly influential on the eventual contours of affirmative action jurisprudence. Key points that he articulated, and that the Court eventually embraced, were that racial preferences should be strictly scrutinized and cannot be justified on the basis of societal (as opposed to particularized and proven) discrimination. Powell introduced the notions that affirmative action must be scrutinized for its potential to stereotype or stigmatize, and quotas are impermissible except in extraordinary circumstances. He also maintained that diversification of a student body represents a compelling interest that may justify the factoring of race as one of several considerations in the admission process.
A decade after Bakke, the Court remained divided on affirmative action and, in particular, the standard of review that should govern its analysis. A strict scrutiny standard measures whether the government regulatory interest is “compelling” and the regulatory means are “narrowly tailored” toward the regulatory objective. An intermediate standard of review assesses whether the regulatory interest is “important” and the regulatory means are “substantially related” to the regulatory objective. In Richmond v. J. A. Croson Co. a majority of the Court for the first time embraced strict scrutiny as the appropriate standard of review. At issue in Croson was a municipal program that set aside 30 percent of construction contracts to minority business enterprises. Justice Sandra Day O’Connor, writing for a plurality of four justices, maintained that “searching inquiry” was necessary to determine the true purpose of a racial classification and “smoke out” illegitimate uses of race. Strict scrutiny further ensured that the regulatory means closely fit the regulatory goal and guarded against motives based on illegitimate prejudice or stereotype.
Even if a government’s intentions were good, O’Connor contended, racial classifications carried the risk of stigmatic harm and potential for promoting notions of racial inferiority and racial politics. Although acknowledging the nation’s history of discrimination, she saw a greater risk in maintaining the relevance of race and opportunity for competing and immeasurable claims to relief from every disadvantaged group. Justice Antonin Scalia, in a concurring opinion, provided the fifth vote for strict scrutiny. He urged an even more rigorous analytical model that would allow race to be factored only when necessary to eliminate systems of unlawful discrimination.
The strict scrutiny standard announced in Croson applied to affirmative action programs adopted by states. Left open was the possibility that, given Congress’s power to enforce the Fourteenth Amendment through appropriate legislation, a different standard might govern federal affirmative action programs. Despite some conflicting cases before and after Croson, the Court in Adarand Constructors, Inc. v. Pena (1995) concluded that federal affirmative action programs should be reviewed pursuant to the same strict scrutiny criterion governing state programs. The federal government, like the states, must demonstrate some instance of racial discrimination (for which it is responsible) as a basis for race-conscious remedial action.
The uniform application of strict scrutiny to governmental actions, whether they were intended to improve the condition of historically subjugated groups (and thus incidentally harmed the white majority), or intended to subjugate a particular group, is referred to as “formal equality” or “colorblindness.” Following Croson and Adarand, color-blindness has become the centerpiece of the Supreme Court’s constitutional jurisprudence of race. Using color-blind analysis, federal courts treat all governmental racial classifications in the same way—courts will evaluate a rule attempting to integrate a housing project in the same manner that they would a rule seeking housing segregation. On the surface, this even-handedness appears fair. However, critics of color-blindness have pointed out that failing to distinguish between oppressive acts and remedial ones when applying strict scrutiny makes it difficult for governments to take affirmative steps to advance racial justice. Consequently, existing racial disparities become locked in as the constitutional status quo. Critics of color-blindness seek to erode this roadblock, as they see it, in constitutional development by focusing judicial attention on result-determined measures of equality and away from process-based ones like formal equality. Other scholars have expressed interest in moving away from the Fourteenth Amendment as a measure of constitutionality and reinvigorating the Thirteenth Amendment’s prohibition against the “badges and incidents of slavery” as a way to legitimate a government’s efforts at racial remediation.
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Donald E. Lively
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