By Ben Lenhart
Every month this column explores how the Constitution impacts the daily lives of all Americans. What can the Constitution add to the current discussion about racial justice following the recent killing of Georgy Floyd and the resulting nationwide protests?
Certainly, no law by itself, not even the Constitution, can address all of the many issues involved in this complex and enduring problem. But the Constitution has long played a key role in the struggle for racial equality—often for better, sometimes for worse.
As America tries to chart the path forward toward “a more perfect union,” history provides invaluable guideposts. Knowing the key events from the racial struggles of our past better equips us to fight for a more just future. This article first provides a quick recap of key Constitutional events dealing with race and equality in America, and then looks to the future.
All Men Are Created Equal Versus Slavery
In 1776, the Patriots set out a radical new conception for society, one where the people themselves held the power, and where “all men were created equal.” But this beautiful vision was shunned by the original Constitution. When drafted in 1787, the Constitution referred to slavery four times: (1) the “three-fifths” compromise in Article I, where only 60 percent of slaves were counted for determining representation in Congress, (2) the fugitive slave clause, in Article IV, (3) the ban on any attempt to outlaw the slave trade prior to 1808, in Article I, and (4) the ban on amending the Constitution to alter the slave trade timeline, in Article V.
The references to slavery in 1787 echoed the tragic reality that slavery had existed in the English North American colonies since at least 1619. At birth, the young American nation held these two polar opposites—liberty and slavery—together in its founding document, and this irreconcilable conflict set the stage for centuries of struggle.
Abolition and Dred Scott
American abolitionists seeking to outlaw slavery were vocal even before the 1787 Constitution, but their numbers grew in the early 1800s, especially in the Northern states. Many states had banned slavery during the first decades of our new nation, but many others had not, and the battle between the two opposing sides grew more intense. In the 1850s, violence between the two sides was growing, including in what became known as “Bleeding Kansas,” where pitched battles between pro- and anti-slavery forces led to many deaths. In campaigning for the 1860 presidency, Abraham Lincoln talked about “the ultimate extinction” of slavery, and the Southern states took note. In this tense tinderbox, the Supreme Court threw a spark with its infamous Dred Scott ruling. Dred Scott, a former slave, had traveled from a slave state to a free one, and believed he was a free man. The Court ruled against Scott, holding that current or former slaves were not citizens under the Constitution and that slaves could not gain freedom by entering free territory. With this ruling, war seemed inevitable.
Civil War and Equal Protection
More than 600,000 people died in the Civil War, and slavery died with them. A guarantee of equal protection of the law for all Americans was not included in the original Constitution, but was borne from the ashes of the Civil War. The 13th Amendment banned slavery (1866), the 14th Amendment guaranteed due process and equal protection (1868), and the 15th Amendment ensured that the right to vote could not be denied based on race (1870).
Here is the key language of the 14th Amendment: “. . . nor shall any State deprive any person of life, liberty, or property, with due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This bedrock guarantee of equal protection is enormous and powerful and has produced many court rulings striking down government actions that violated this promise of equality. It means that no government law or action—whether by a federal, state or local government—can treat people differently based on race. Applying this to current times, if the police officer who killed George Floyd treated Mr. Floyd differently because of his race, then this is unequal protection of the law. And since that officer was acting not as a private citizen, but under the authority of the State, the officer’s conduct would violate the Equal Protection clause itself (along with violating many other laws).
Plessy to Brown,
Following the Civil War, Jim Crow was a broad and deadly effort to deny former slaves their legal rights, including the right to equal protection under the law. In 1896, Homer Plessy, an African American, was arrested for demanding sit in a “white only” rail car. The Supreme Court, in Plessey v. Ferguson, ruled against Plessy and introduced the idea of “separate but equal” holding that segregation by race—called “apartheid” in other lands—was constitutional. Plessy and Dred Scott are now considered among the Supreme Court’s gravest mistakes. The Civil War effectively reversed Dred Scott in short order, but Plessey took longer to reject. The NAACP and other civil rights organizations, led by Charles Houston and Thurgood Marshall among others, filed court many cases that chipped away at separate-but-equal. But in 1954, the Supreme Court finally and resoundingly rejected it in one of the most famous cases of all time: Brown v. Board of Education, where a unanimous court held that racial segregation in schools was “inherently unequal” and violated the core principal of Equal Protection. Many similar rulings followed, and today any law that facially discriminates based on race would virtually automatically be considered unconstitutional and struck down.
Martin Luther King to President Obama
Perhaps no person furthered the cause of racial equality in America more than Martin Luther King. He fought against bough “public” racism (racism encoded in laws or government actions) and “private” racism” (racial discrimination in private businesses). Using non-violent civil disobedience—such as sit-ins by African Americans and “white only” lunch counters—King was victorious on many fronts. His work led to landmark civil rights legislation, such as the 1964 Civil Rights Act banning racial discrimination in employment, voting, restaurants and hotels, and in many other areas. (An interesting side note: the ability to strike down racial discrimination by the government arises under the 14th Amendment and the Equal Protection clause, while the ability to ban private discrimination, such as by hotels or restaurants, is based on Congress’s power under the Commerce Clause of Article 1.) The decades following the 1964 Civil Rights Act were filled with struggles to enforce its promise of equal civil rights for all regardless of race. The 2008 election of President Obama, our first African American president, was another landmark in the history of racial equality in America.
Today: the Unmet Promise of Equal Justice.
As this briefest of history shows, great progress has been made, but the promises of equal justice and racial equality under law remain distant. Dr. King fought to eliminate both public and private racial discrimination in America, but both persist today. While there are no easy solutions, two cases highlight possible paths to get closer to racial justice. In Washington v. Davis, African American police officers sued claiming a police entrance exam discriminated against them by producing much higher failure rates for African Americans than for non-minorities. The Court’s majority rejected their claim, finding that racially disparate impact alone was not enough to show a Constitutional violation. But the dissent sided with the African Americans, and proposed a different legal test that would strike down employment practices that discriminate against minorities unless the employer can meet a high burden to show the test is necessary for the job. In Yick Wo v. Hopkins, no racially discriminatory law was “on the books,” but San Francisco had denied laundry permits for 100% of the applications from Chinese nationals, while approving nearly 100% for non-Chinese. The Court inferred racial discrimination from these statistics, and ruled the city’s actions unconstitutional. Yick Wo and the dissent in Washington v. Davis provide tools for the courts, if they have the will to use them, to help push toward racial equality.
Dr. King said that “the arc of the moral universe is long but bends toward justice.” But as one civil rights leader recently said: “the arc does not bend by itself.” In other words, everyone has a role to play in pushing the nation closer to achieving its promise of equal justice for all.
[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]