By James D. Agresti
October 19, 2022
During a recent hearing of the United States Supreme Court, Justice Ketanji Brown Jackson claimed that the Constitution doesn’t require government to act in a “race-neutral” manner. Instead, she declared that government is constitutionally authorized to make people “equal” by taking “race-conscious” actions.
The facts of this matter, which cut to the core of whether government is allowed to discriminate based on race, show that Jackson is wrong. Moreover, history illuminates the harms that occur when governments treat people differently because of their race.
In an October 4th hearing for a case called Merrill v. Milligan, an attorney for the State of Alabama argued before the Supreme Court that it would be unconstitutional to draw U.S. congressional district boundaries based on race. This is because the 14th Amendment to the U.S. Constitution forbids states from denying “to any person within its jurisdiction the equal protection of the laws.”
Challenging the attorney, Jackson insisted that Alabama should be forced to draw its congressional districts in a way that will give black people more voting power. In support of this position, she asserted:
- “I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem” because the framers of the 14th Amendment adopted it “in a race conscious way.”
- The framers were “trying to ensure” that former slaves “were actually brought equal to everyone else in the society.”
- “That’s not a race-neutral or race-blind idea in terms of the remedy. And even more than that, I don’t think that the historical record” shows the framers “believed that race neutrality or race blindness was required, right?”
- The framers passed “the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens.”
- The Civil Rights Act of 1866 was enacted so that “other citizens have to be made equal to white citizens, and people were concerned that that didn’t have a constitutional basis, so they enacted the Fourteenth Amendment.”
The fatal flaw in Jackson’s argument is her counterfactual leap from the framers’ reasons for enacting for the 14th Amendment to their “remedy.” The facts, detailed below, show that the framers witnessed governments treating people differently based on race, and their remedy was to ban them from doing that.
Origins of the 14th Amendment
- “we hold this to be a Government of white people, made and to be perpetuated for the exclusive benefit of” whites.
- “people of African descent cannot be considered” citizens of the United States.
- “there can, in no event, nor under any circumstances, be any equality between the white and other races.”
In response to this and other racist measures adopted by Southern Democrats, a bloc of Congressmen called the “Radical Republicans” passed a federal civil rights law in 1866 over the veto of Democratic President Andrew Johnson. This law required that people “of every race and color” be given “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens….”
To guarantee that this civil rights law was constitutional, the Radical Republicans fought for and secured passage of the 14th Amendment in 1868. Among other provisions, the amendment changed the Constitution to forbid states from depriving “any person of life, liberty, or property, without due process of law” or denying “to any person within its jurisdiction the equal protection of the laws.”
Counter to Jackson, when Republican Senator Jacob Howard introduced the 14th Amendment, he explained that it “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Driving that point home, he stated:
It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the [human] race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just government. Without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government and none that is really worth maintaining.
Unlike a pure democracy which operates under majority rule, a republican government is one that is designed to protect the rights of all people. Thus, it has constitutional provisions to prevent majorities from trampling the rights of minorities. Howard’s words, along with the very text of the 14th Amendment, show that it added such a provision to the Constitution by banning government from racial discrimination.
Contrary to Jackson’s claim that the 14th Amendment doesn’t require “race neutrality,” it plainly does.
Equality v. Equity
When pressing her point, Jackson twisted the 14th Amendment’s guarantee of “equal protection of the laws” into the notion that people should be “brought equal” or “made equal.” This is the leftist view of “equity,” which demands that people be treated unequally so they have equal outcomes.
In the words of Kamala Harris, “there’s a big difference between equality and equity,” and “equitable treatment means we all end up at the same place.” This often entails unequal treatment under the law, which is explicitly forbidden by the 14th Amendment.
Flouting the 14th
The dangers of usurping the 14th Amendment to allow for unequal treatment of people based on their race are graphically illustrated by history.
Within a few years of enacting the Civil Rights Act of 1866 and the 14th Amendment, Republicans passed several other civil rights laws and the 15th Amendment, which bans governments from denying citizens the right to vote “on account of race, color, or previous condition of servitude.” To enforce these laws, Republican President Ulysses S. Grant sent federal troops into the South.
Republicans enacted those measures in response to the actions of elected Democrats and the Ku Klux Klan, who were oppressing and killing black people and their white Republican supporters. In the words of the 1971 academic book White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction:
- “The Klan became in effect a terrorist arm of the Democratic party, whether the party leaders as a whole liked it or not.”
- The “Klan itself was universally regarded as a Democratic political device.”
- The Klan “systematically” terrorized “Republicans of both races.”
With Republicans’ legal and police protections in place, 16 African Americans became members of the U.S. Congress, and 600 were elected to state legislatures. However, these outcomes of banning racial discrimination didn’t last for long because the U.S. Supreme Court effectively gutted the 14th Amendment by distorting its words.
Less than a decade after the 14th Amendment was passed, the Supreme Court ruled (5 to 4) in the 1875 case of United States v. Cruikshank that neither the 14th Amendment, nor any other part of the Constitution requires states to protect the individual rights in the Constitution’s Bill of Rights. This includes fundamental rights like life, liberty, assembly, and several others. The Court also forbid the federal government from protecting any of these rights unless they were “an attribute of national citizenship,” such as assembling for the purpose of petitioning the U.S. Congress.
That ruling was a clear violation of the 14th Amendment, as proven by the facts above and the following statements made by Senator Howard when he introduced it. Explaining that the Constitution didn’t require states to honor the “great fundamental guarantees” in the Bill of Rights, Howard stated that this amendment will change the Constitution to:
- “restrain the power of the States and compel them at all times to respect” the “personal rights guaranteed and secured by” the Bill of Rights, such as “freedom of speech,” “the right of the people peaceably to assemble,” “the right to keep and to bear arms,” the “right to be tried by an impartial jury,” and more.
- prevent States “from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.”
- give the U.S. Congress the “authority to pass laws which are appropriate to the attainment of the great object of the amendment.”
Likewise, Congressman John Bingham (R–OH)—who drafted the 14th Amendment and introduced it in the House of Representatives—repeatedly stated that it will require state governments to provide “equal protection” to every person’s “life, liberty, and property.” He also affirmed that it will “arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the Bill of Rights as it stands in the Constitution today.”
The Court’s Cruikshank decision to flout the 14th Amendment unleashed white militias and mobs to subjugate black people through violence and intimidation. Because states were not forced to treat people equally under the law, many governments looked the other way and facilitated plots to lynch more than 1,200 African Americans, prevent blacks from voting, and otherwise oppress them.
Similarly, the Supreme Court ruled (6–3) in the 1944 case of Korematsu v. United States that Democratic President Franklin Delano Roosevelt could place U.S. citizens of Japanese descent into detention camps during World War II without any evidence of “individual disloyalty” to the United States. In the words of a dissenting justice, this deprived citizens “of the equal protection of the laws as guaranteed by the Fifth Amendment.” In conjunction with the 14th Amendment, the 5th Amendment prohibits the federal government (not merely the states) from denying equal protection of the laws to any person.
In Korematsu, all six justices who ruled that the federal government could detain people for nothing more than their race were appointed by Roosevelt. As a result, 110,000 people of Japanese descent were held in camps with barbed wire fences and armed guards. They were allowed to take limited belongings with them, and some lost everything they owned.
Had a majority of the Supreme Court upheld the Constitution’s promise of equal protection of the law, the injustices and atrocities perpetrated through Korematsu and Cruikshank would not have happened.
Justice Ketanji Brown Jackson claims that the “equal protection clause” of the 14th Amendment allows government to treat people unequally based on their race. She does this by ignoring the plain words of the amendment and by confusing the motives of the people who enacted it with the provisions they enacted. The record vividly shows that these lawmakers objected to the “injustice” of governments treating people of different races differently, and their solution was to ban them from doing this.
If Jackson or any other justice perpetuates her fiction in a formal decision or dissent, they will violate their oath of office to “support and defend the Constitution” against “all enemies, foreign and domestic.” The perils of this are amply demonstrated by the events of history and by this warning of George Washington in his farewell address to the nation:
If in the opinion of the People the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.