Constitution Day Examines Race and Equality in the United States Constitution
Posted Sep 18, 2020
Last night, Dr. Evans spoke on “Equal Justice Under Law” for Union University’s annual Constitution Day lecture. This lecture discussed the role of race in law and the constitution over the course of our nation’s history.
He began by providing the general definition of equality accepted throughout American history that government should treat people equally or uniformly. In particular, equality has been seen as not providing special privileges or rights to distinct groups. However, the nation has not always treated people equally and these differences have been based on “real differences.” Sometimes these differences were based on incorrect assumptions of women or races but other times were based on differences such as age, maturity, residence, and other factors. The advances in equality in the U.S. over time is based on changes in the scope of what equality applies to and how we make distinctions of “real differences.”
At our nation’s Founding, most all white Americans considered whites superior to black Americans and used the alleged differences in character, intelligence, education, etc. as the “real difference” to justify unequal treatment. These differences can be seen at the Constitutional Convention. Most Northerners largely thought slavery was evil and should be abolished. Slaveholders from the South, particularly GA and SC, aggressively defended the practice while slaveholders in NC and VA, like George Washington, thought slavery was a necessary evil that would die out. Because of these views and their dedication to founding a new nation, the Founders compromised on slavery by counting each slave as 3/5 of a person when determining how many seats each state received in the House, allowing the importation of slaves until 1808, and the fugitive slave clause provision.
While Americans over the 70 years changed their views on slavery, Northerners becoming more opposed and Southerners more supportive, both sides though blacks were inferior which explained why proposals to free slaves were usually couples with plans to repatriate them to Africa. Eventually, the population growth of the North and the expansion of the country made the issue of slavery key to the admission of each state and compromise became difficult leading to the Civil War.
After the Civil War, Americans recognized that some of their previous ideas of equality had changed. The 13th Amendment banned slavery, the 14th Amendment made freed slaves citizens and guaranteed rights of citizenship, and the 15th Amendment granted black males the right to vote. However, Americans were less clear on the new racial practices that they were adopting. There were two major views. First, the Radical Republican view was that a new racial regime required both courts and elected officials to guarantee freed slaves a wide array of political, economic, and civil rights. This view expanded equality beyond legal equality and also suggested that the “real differences” of freed slaves meant that they needed aggressive action to bring them up to the level of whites.
Northern Democrats believed that the abolition of slavery meant that persons of color were free to forge their own lives under whatever laws and discriminations localities believed promoted the public welfare. This view eventually prevailed due to the North’s unpreparedness to undertake something as unprecedented as a political reconstruction of a third of its territory, the insurgent resistance of the defeated South, a Northern public tired of Reconstruction, the deaths of leading Radical Republicans and splits within the GOP, and short-sighted court cases such as the Civil Rights Cases (1883) which ruled that Congress could not ban private discrimination via the 14th Amendment.
Accordingly, Jim Crow laws developed in the South after Reconstruction. Jim Crow laws were strict local and state laws that detailed when, where and how formerly enslaved people could work, and for how much compensation. These laws led to segregation in education, public facilities, transportation, and more. Jim Crow laws institutionalized economic, educational, and social disadvantages for African Americans living in the South and other parts of the country. Bourbon (conservative) Democrats supported Jim Crow laws after Populists made gains in the 1880s. When the Bourbons regained power, they disenfranchised blacks and many poor whites and promoted Jim Crow to prevent poor whites and blacks interacting so they could not form a political alliance against them. Unfortunately, the Supreme Court upheld Jim Crow laws as separate but equal in Plessy v Ferguson (1898). However, Justice Harlan in his famous dissent made the uniformity argument that still guides constitutional conservatives today: “While whites are the dominant group in the nation, in the view of the constitution, there is “no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
During the New Deal and Great Society eras, constitutional liberals emphasized rights to democratic processes rather than freedoms from government regulation. Free speech, voting rights, and other rights became “preferred freedoms” because they would allow citizens to protect and create more substantive rights. This led to a two-tiered scheme of constitutional rights as economic legislation was subject to minimal scrutiny if the law served a legitimate public purpose. Strict scrutiny would be applied to laws that restricted preferred freedoms or burdened “discrete and insular minorities.”
Because of these views, liberals oversaw the end of Jim Crow during this period with the aid and pressure of the NAACP. The NAACP was founded in the early part of the 20th Century by W.E.B. DuBois and William Monroe Trotter, among others. They had some early legal victories in the first half of the century but under the leadership of Charles Houston and Thurgood Marshall, the NAACP Legal Defense Fund developed the litigation strategy for undermining and then over-ruling Plessy. The LDF had their first major success when the Supreme Court ruled that separate was inherently unequal in Brown v Board of Education (1954) and Bolling v Sharpe (1954). The following year, the Court rules integration of schools must begin with all deliberate speed. However, most Southern jurisdictions were more deliberate than speedy which forced the political branches to act.
The president and Congress began to respond to an increasingly powerful civil rights movement which pressured them and raised the public’s attention to racial injustices. As a result of pressure from black union leader A. Phillip Randloph, FDR banned discrimination in defense industries and Truman integrated the military. Presidents of both parties also nominated pro-civil rights judges, supported civil rights legislation, used the military to ensure integration, and sided with the NAACP in courts. However, the most important moves to end Jim Crow came under Lyndon Baines Johnson who help push through the Civil Rights Act which banned private discrimination in public accommodations and federally funded programs, the Voting Rights Act that banned discrimination in voting, the Elementary and Secondary Education Act that provided money to poor school districts as long as they integrated, and the Fair Housing Act that banned discrimination in housing. LBJ also enacted Medicare, Medicaid, and the Great Society welfare programs to improve the economic situation of all poor people but which helped poor blacks most of all.
In the 1970s, conservatives supported a uniform definition of equality while liberals began to adopt the Radical Republican position that “real differences” necessitated action to raise minorities to the same level of whites. Yet, the civil rights movement stalled at this time when the NAACP pushed busing to integrate schools and sought to end de facto segregation in areas outside the South. These moves split the political coalition supporting civil rights as Southern whites and white ethnics in the North began to become more Republican.
Today, the race issue tends to relate to four issues. First, the courts and political branches have ended de jure discrimination but there are greater challenges to ending de facto discrimination which result due to tradition and custom. Second, liberals and conservatives disagree on the meaning of Brown. Conservatives argue that Brown opposed all racial classifications as odious while liberals argue that Brown rested on the principle that no group of persons should have a subordinate status in the US. Third, the issue of affirmative action has raised the issue of whether discrimination meant to aid a disadvantaged groups as benign or invidious. Constitutionally, conservatives have largely won this argument up to this point as courts use strict scrutiny to end these programs. However, state and localities have found ways around these bans to continue to aid minorities in ways that do not raise constitutional questions. Fourth, Americans disagree over disparate impact or practices that adversely affect one group of people of a protected class more than another, even though rules applied are formally neutral. Liberals believe the differences demonstrate a history of racism that need to be rectified while conservatives argue that the differences only require constitutional remediation if the intent was to discriminate.
In conclusion, Dr. Evans concluded that African-Americans have endured 350 years of intentional discrimination and to think that the last 50 years have overcome these disadvantages is incorrect. However, we should be hopeful because of the advances that we have made and can continue to make. Dr. Evans then ended by providing some lessons for today’s racial reformers based on his reading of history.