Bench Memos

EPC and Colorblindness

To the very useful exchange in progress between Anthony and Ramesh I would add an invitation to anyone who considers the question to un-learn their constitutional law. I mean that it is very hard for us to assimilate to our thinking to the fact — and I think it is indeed the historical fact — that Congress and not the courts was meant to be the principal expositor of the Amendment. One reason it is so hard for us to get it is that even judicial conservatives have yoked Congressional power under section five to the judicially declared meaning of section one. See, e.g., City of Beorne v. Flores.

But the historical evidence supports the conclusion of constitutional historian William Nelson, in his very fine 1988 book, The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Nelson wrote, for example (at p. 110) that the Amendment “was understood less as a legal instrument to be elaborated in the courts than as a peace treaty to be administered by Congress in order to secure the fruits of the North’s victory in the Civil War.”  And at p. 112: Republicans “assumed that Congress, acting pursuant to section five, would possess primary jurisdiction to enforce the amendment . . .”

If we really hold tight to this fact, we can come to a different appreciation of the indeterminacy of the equality norm — such as it was — in section one. That vagueness may seem to us to be a case of irresponsible drafting, because we see it as a black hole into which today’s judges will — even, are obliged — to pour their own value choices. But whatever else one might say about the Amendment’s drafters, this queasiness should ease once we accept that the drafters put such value choices where they belong — in the nationally representative body we call Congress.

As to the precise question about colorblindness, I think the legislative history of the 1875 civil-rights act shows that a solid majority believed that section five authorized Congress to command color-blindness as a norm of state action. It is, however, a different question whether section one itself required the same.