Civil Rights and Civil Liberties – Race and the American Constitution
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Civil Rights and Civil Liberties – Race and the American Constitution

October 9, 2019

>>In a 2003 affirmative action case, Justice
Sandra Day O’Connor proclaimed that “The Court expects that 25 years from now, the use of
racial preferences will no longer be necessary.” And in a 2007 case overturning a school integration
program, Chief Justice John Roberts argued that “The way to stop discrimination on the
basis of race is to stop discriminating on the basis of race.” These two statements,
one in the case of affirmative action and one in the case of school desegregation, raise
important but potentially diametrically opposed questions. In one the use of race is seen
as legitimate, though temporary. But in the other, the use of race is seen as illegitimate. To make sense of school desegregation and
affirmative action cases, though, it’s important for us to frame them in light of race in American
political development more generally. It is only i since the 1950’s that we have
seen any fundamental progress in race relations in the United States. Since then, we have
arguably made tremendous progress: we have passed Civil Rights acts, voting rights acts,
overturned school segregation, and elected our first African-American president. But
it wasn’t always so. We can’t forget that the Constitution originally
sanctioned slavery. Though it never specifically mentioned the term, the institution was protected
most conspicuously in the three-fifths compromise and the fugitive slave clause. Of course the
Civil War brought emancipation and the 13th, 14th, and 15th Amendments, which obliterated
the formal institution of slavery and at least on paper guaranteed some fundamental legal
and political rights for African-Americans. But we also know that these gains were soon
lost after Reconstruction, as Jim Crow and its attendant laws that legalized discrimination
reared its ugly head beginning in the 1880’s. The Court in Plessy v Ferguson in 1896 formally
gave Jim Crow its stamp of approval with its affirmation of the doctrine of “Separate but
equal.” Over the next fifty years, many fought to undo this doctrine, finally achieving success
in overturning it in Brown v. Board of Education in 1954. The next two sections of the course take up
cases and controversies that have arisen in the wake of these relative successes. In the
case of school desegregation, we see the Court slowly dismantle the formal and informal laws
of segregation in public education in the United States. In Brown v Board of Education
in 1954 the Court effectively overturns its ruling in Plessy that separate but equal is
constitutional. In subsequent school cases, though, the Court initially extends and upholds
this ruling but starting in 2007, it begins to place limits on plans that use a numerical
quota in order to achieve desegregated schools. In affirmative action, we see the Court — and
the country as a whole — debate the merits of race conscious public policy. How can we
take race into account in the areas of college admissions, employment, and the awarding of
government contracts, if we have believe that race shouldn’t matter? Although the Court
will uphold the use of affirmative action as a means to achieve diversity in the cases
that you’ll read, it’s still suspect of affirmative action policies in general, especially those
that would set quotas. In fact, some on the Court would like to see affirmative action
ended completely, especially the Court’s second black justice, Clarence Thomas.
In school desegregation, then, we see the advancement of a colorblind theory of constitutional
interpretation — policies that differentiate between people based on race are inherently
suspect and almost always unconstitutional. But in the affirmative action cases, distinctions
based on race are upheld. In other words, it might be the case that in order to end
racial discrimination in all of its forms and achieve a colorblind constitution, we
must first take race into account to undo past discrimination or, as the Court has argued,
to foster the necessary level of diversity to achieve those ends. We have made tremendous progress in race relations
in the United States over the last 50 years, but there still remains work to be done. So
as you read these cases this week, consider the following: Is there really a paradox in our race cases?
Is it really a choice between taking race into account OR having a colorblind approach
to constitutional law? Considering our less than stellar history
of racial discrimination in the United States, how do we make sure that democratic majorities
do not discriminate based on race? Is affirmative action the answer? If it is, how do we know,
if at all, when we’ve achieved the right balance? Is there even a correct balance in schools
and employment? Should race-conscious policies be viewed as
temporary or permanent parts of our constitutional system? Should we limit these policies solely to African-Americans,
considering our history, or should these policies be extended to other minorities? There are no easy answers to these questions,
and the Court is still working them out. Nevertheless, its safe to say that issues of race will continue
to challenge the Court and the country and the constitution for years to come.

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