Strengthening Constitutional Self-Government

Programs for Citizens

Letters from an Ohio Farmer

Our Constitution is Color-Blind

June 13, 2012

To My Fellow Citizens:

A prominent theme of these letters is that—to inherit and pass on to the next generation the legacy of freedom bequeathed to us—Americans must understand and take to heart the idea of political freedom that has been at stake in all the great episodes of American history. Today is a fitting time to reflect on one of those episodes.

On June 7, 1892, Homer Plessy boarded a train in New Orleans bound for Covington, Louisiana. When the conductor saw his ticket, he demanded that he move. When Plessy wouldn’t, he was arrested, tried, convicted, and fined $25. His offense? Violating Louisiana’s “Separate Car Act” by sitting in a “whites only” railroad car. Plessy and his supporters appealed the case all the way to the U.S. Supreme Court, claiming that Louisiana’s “Jim Crow” law violated the 14th Amendment to the Constitution, which prohibits a state from denying “equal protection of the laws” to any person within its jurisdiction.  Congress had sent the 14th Amendment to the states for ratification on June 13, 1866,146 years ago today.

Unfortunately, the Supreme Court didn’t agree with Mr. Plessy, and voted by a 7-1 margin that racially segregated facilities were permissible under the Constitution, as long as the facilities were “separate but equal.” It was one of the worst decisions the Court ever made. But it did raise a question that Americans – and the Supreme Court – are still asking: What does it mean to be equal under the law?

The meaning of equality had been the central question for Americans ever since our Founders first declared in 1776 the self-evident truth that “all men are created equal.” In previous letters, I have noted that the Founders understood equality to mean that everyone has the same natural rights – that is, everyone has the same God-given rights to life, liberty, and property. We should all be free from violence to our life and health, be free to run our own lives, and be free to enjoy the fruits of our labor. Obviously, slavery violated all of those principles and had to be abolished if America was fully to live up to them. In 1865, as a result of the Union victory in the Civil War, it was abolished by the 13th Amendment. But the submission of the 14th Amendment to the states in 1866 raised a different question: once slavery is abolished, how does our basic natural equality translate into law and the Constitution? What does it mean to have “equal protection of the laws,” as the 14th Amendment says?

It’s not just a historical question. The meaning of constitutional equality is being debated again by the current Supreme Court, which is going to decide soon whether state universities can consider race in the application process, especially by giving a “plus” to certain people because of their race. Does that violate “equal protection of the laws”? It does, and to understand why, we need look no further than the dissent of the one Justice who voted in favor of Mr. Plessy so many years ago.

In his great dissent, Justice John Marshall Harlan argued that “separate but equal” could never be justified under the Constitution. For one thing, “the statute… interferes with the personal freedom of citizens…. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.”

In response, however, Louisiana claimed that states can interfere with personal freedom if necessary for public safety. For example, in order to keep the roads safe, speed limits restrict how fast we can drive. Or more to the point, the law prevents some people from driving (for example, 14 year olds) whether or not they are actually qualified. No one says that those laws are unreasonable, unequal, or unconstitutional. Louisiana claimed the same for its segregation law: it was designed to maintain public order by keeping the races separate. Justice Harlan pointed out, however, that “every one knows that … [t]he thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.”

But Harlan knew that as a matter of constitutional principle, it was not enough to lay bare Louisiana’s racist motives. He had to show that even if the legislature had good intentions, it simply did not have the power to make a law that segregates by race in this way. “In respect of civil rights, common to all citizens,” Harlan wrote, “the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.” Why not? Because, he said,

in view of the constitution, in the eye of the law, there is in this country 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. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

We must understand Harlan’s words. “Our Constitution is color-blind” because, speaking generally, the law – government – does not even have the power to see a person’s race; for the purposes of government (the main purpose being to secure the rights of the governed), race is irrelevant. As the Declaration of Independence says, “Governments are instituted among men” to secure individuals’ natural rights, which are part of every person as a human being and have nothing to do with race. In order to protect people’s rights, therefore, government does not need the power to “know” anyone’s race, as Harlan says. So it does not have such power.

So when the 14th Amendment declares that every person should have “equal protection of the laws,” it means that the law must treat everyone the same without regard to race. The only exceptions would be the commonsensical ones, when it is necessary for government to consider race in order to protect citizens’ natural rights, as, for example, when police departments must hire an undercover officer of a specific race to infiltrate an ethnic gang. But these are practical exceptions that do not apply to Homer Plessy’s case in 1896 or to college admissions today.

It’s been 146 years since Congress sent the 14th Amendment to the states for ratification. It was designed to complete the work of the Founders and translate the principle of equality of natural rights into the fact of “equal protection of the laws.” Since 1866, that full equality has become more and more part of the character of the American people themselves. Now it is up to the Supreme Court – more importantly, up to us – to live up to our color-blind Constitution, rid the law of race, and finally, fully vindicate the courage of Homer Plessy and the wisdom of John Marshall Harlan.

Ohio Farmer