Bench Memos

Re: The Colorblind Constitution

Ramesh, Judge McConnell’s article doesn’t explicitly say that the Fourteenth Amendment commands colorblindness, but I think the clear implication of his argument is that the Amendment does lay down a broad principle against racial discrimination. He notes that there were heated debates about the meaning of equality under the law even in the years directly following the passage of the Fourteenth Amendment — so perhaps the original meaning is not unitary, but rather fractured among the several different understandings that prevailed at the time of ratification. But the color-blind interpretation was at least in the original mix. Discussing the five-year debate leading up to the controversial Civil Rights Act of 1875, which was understood partially as an effort to enforce the provisions of the new Fourteenth Amendment, McConnell writes:

Although the term “color-blind,” later made famous by the first Justice Harlan in his dissenting opinion in Plessy v. Ferguson, was not uttered during the debate, proponents of the bill used synonymous formulations. Representative John Lynch stated that “[t]he duty of the law-maker is to know no race, no color, no religion, no nationality, except to prevent distinctions on any of these grounds, so far as the law is concerned.” Sumner quoted from Smith v. Gould, that “[t]he common law takes no notice of negroes being different from other men,” which he then paraphrased as “[the law] makes no discrimination on account of color.”  Sherman said that the way to restore peace in the South was to “[w]ipe out all legal discriminations between white and black, . . . make no distinction between black and white.” Representative Richard Cain, a black congressman from South Carolina, stated that “my understanding of human rights, of democracy if you please, is all rights to all men, . . . without regard to sections, complexions, or anything else.”

You quote Gerard Bradley to suggest that the Equal Protection Clause might require nothing more than an equal application of the physical protections of state law against crimes like rape and murder. This extremely narrow reading of the text would require only that no person be left “outside of the legal community in a virtual state of nature.” I grant that this is a possible reading, but it strikes me as a stretch, and I haven’t seen any independent evidence to support it. There are all kinds of judicially cognizable injuries and impairments of legal rights that a state can impose and distribute unequally among its citizens; so why would the ratifiers have been concerned only with physical harms?

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