Is Our Constitution Color-Blind?
Hillsdale College, a private school that prides itself on not accepting a penny of government support, has a mission to provide an education for those “who wish to learn about the Declaration of Independence, the Constitution, free-market economics, the Western and American Heritage, the Great Books, and more.” So when I saw recently that it was hosting an online symposium called “Race in America: History and Controversies,” I was intrigued because I don’t remember seeing Hillsdale host this kind of discussion before.
The opening lecture by Professor Lucas Morel was called “Race in America: Colorblind Constitution.” Morel, a professor of politics at Washington & Lee University, provides a very useful summary of how the Constitution has been interpreted with respect to race-based policies or programs. He begins by discussing Frederick Douglass’ views of the Constitution, which matured over time. Douglass, a former slave, thought the Constitution was color-blind and that no one racial group should ever be an exception under the law. I have a poster of Frederick Douglass with this quote: “The problem is whether the American people have honesty enough, loyalty enough, honor enough, patriotism enough to live up to their own Constitution.” If he could view the Constitution as color-blind given his experiences, couldn’t the U.S. Supreme Court?
Morel answers this question by tracing the history of Supreme Court cases where race-based government actions were put to the test. He shares how the “separate but equal” doctrine under the 14th Amendment served as a starting point for fighting segregation. He explains what the “rational basis test” was and how the Court applied it. It was fascinating to be reminded of the “logic” the Court used to uphold segregation, and the lone dissenting voice of Justice John Marshall Harlan in the 1896 case Plessy v. Ferguson. Eventually that dissenting voice was heard, and the law changed.
If Frederick Douglass could view the Constitution as color-blind given his experiences, couldn’t the U.S. Supreme Court?
From there, Morel shares the story of how American case law has now evolved into a “strict scrutiny test” where government actions taken on the basis of race are assumed to be problematic unless: (1) a compelling state interest can be demonstrated and (2) the action is narrowly tailored to meet that interest. He explains how the Court applied that test in two critical 2003 cases stemming from the University of Michigan, which created parameters for how this test is to be applied. For example, if the government decides that race should be a factor in law school admissions, it can do so only to address a compelling state interest. In one, the Supreme Court determined that the state has a compelling state interest in remedying the effects of past discrimination by, for instance, obtaining the educational benefits that flow from having racially diverse student bodies at elite colleges.
This history is important to know for those who are concerned about new efforts in other states, such as one in California seeking to force certain corporate boards to include “underrepresented communities.” These efforts build on the previous case law and seek to expand what qualifies as meeting the strict scrutiny test. We wrote about current litigation underway on this front. The Roundtable is monitoring these and similar efforts carefully.
As Morel concluded, the Constitution has never been interpreted as a color-blind document, even though giants such as Frederick Douglass believed it could be. As new cases are taken up in the courts, justices will have a choice: Do we move toward that color-blind ideal of Frederick Douglass, or away from it?