The Constitution has survived two World Wars, a Civil War, and even slavery. This piece of paper was written to limit government in our lives and proclaim our rights as individuals. Through the course of time, Amendments have been added to aid in current events that were not foreseen when the Constitution was originally written. Sixteen presidents after the Constitution was written, slavery was abolished and the Thirteenth Amendment was passed.. Three years later came the Equal Protection clause in the Fourteenth Amendment and two years after that, the Supreme Court addressed voting rights in the Fifteenth Amendment.
The decisions in Plessy and Brown are similar because of how the decisions affect the group instead of the individuals. The Court is continually ruling in regard to race instead of the individual. If the Constitution is truly color blind, then we would not have these distinctions between classes when the rulings are made. Each ruling by the Court should be done on an individual basis and by the merits of that particular individual instead of the color of ones skin.
The only reason the court rules in favor of Brown is because the implications go beyond just the individual affected, the ruling will affect the entire black race. The effects of the Brown case go a lot further than the immediate case. After the states had failed to integrate blacks and whites in society, the Federal Government stepped up to end this atrocity. For years and years citizens in each state have attempted to forgo the three Amendments mentioned previously. In each case the Courts have attempted to use Harlan’s dissenting opinion in Plessy as their guide to uphold this “color blind Constitution.
In recent cases concerning racial preferences, the Supreme Court, largely under the leadership of Justice O’Connor, has articulated a new doctrine concerning the constitutionality of governmental racial classifications under the equal protection clause of the Fourteenth Amendment. The Court has determined, after twenty five years of debate, that the most stringent standard of review applies to all such classifications, even those intended to benefit rather than to burden historically disadvantaged minorities.
This standard has been applied to racial preference programs in employment, state and federal government contracting, and voting. The Court has yet to revisit affirmative action programs in higher education. Does the new standard mean that the Court has adopted a color-blind theory of equal protection, holding in effect that any racial classification by the government is unconstitutional, that no governmental unit may take race into account except to cure a plain constitutional violation of equal protection? Has the Court overruled Regents v.
Bakke, the charter for affirmative action in higher education? In Bakke v Regents of the University of California, we have a landmark reverse discrimination case that influenced education as a whole. Bakke was rejected from graduate school even though he had superior scores than many of the African-American applicants who were admitted. Bakke challenged the University of California and overturned the quota system that had been established in public universities across the nation. The University of California held on to the belief that black people should have access to black doctors.
However, if the University were to go on a sole merit system then the number of special admittees would diminish along with the aforementioned belief. This belief was quickly altered by the Supreme Court with their decision against the University. While the approach the Courts use is meant to be color blind, the outcome is anything but color blind. This can be seen through an examination of the equal protection jurisprudence of Justice O’Connor, the pivotal swing vote on these issues in the last decade and author of the crucial opinions in Richmond v. J. A. Croson Co. , Adarand Constructors v. Pena, and Shaw v.
Reno. After reviewing many of the cases that O’Connor was involved in, it seems as though she is the key voice on the Supreme Court in affirmative action cases. O’Connor continues her excellence when she delivers the opinion of Shaw v. Reno. In 1993 North Carolina had voting districts revised to create two Black majority districts. One of these districts was no wider than an interstate highway and some towns had as many as three districts. This created a 14th Amendment issue under the Equal Protection Clause. Less than ten years ago the Court was having to correct the states on 14th Amendment grounds.
The Supreme Court continues to attempt to fix past wrongs with hopes to create a color blind Constitution. O’Connor is leading this charge to right the wrongs of our past in hopes to swing the pendulum in favor of the oppressed. These views do not support a color-blind interpretation of current doctrine. Her newest equal protection jurisprudence means that the strict scrutiny applied in racial preferences is not exact in theory, disastrous in fact, but rather lowers the demands of strict scrutiny to allow some government flexibility in view of the persistence of racial discrimination and its effects.
For instance, Justice O’Connor would allow some racial preference as a remedial measure even where a governmental actor has not discriminated in the past and probably, at least in higher education, as a forward-looking non-remedial measure to attain goals such as diversity, vindicating Bakke. On the other hand, the application of even a lowered strict scrutiny standard involves a departure from the Burger and early Rehnquist Courts’ fairly permissive approach towards remedial and other non-threatening racial preferences, especially federal ones. Her new standard is especially rigorous in the way she votes.
Looming over the public and judicial debate over racial preference is the legacy of slavery and racism. Segregation, institutionalized in the Jim Crow policies authorized under Plessy v. Ferguson, was overturned only in 1954 by Brown v. Board of Education. From 1954 to 1969, when the Nixon administration firmly established affirmative action as national policy, Blacks were largely confined to the lowest rungs of the economic ladder and to a great though somewhat lesser extent they still are. They remain severely under-represented in professions. Comparatively few Blacks owned or own businesses of any size.
In higher education, Blacks do worse on the measures used by universities to assess applicants and so, before affirmative action, were largely excluded especially from the better programs in higher education. Color blind admissions would mean, for example, that Black enrollment at law schools would drop from between 60 percent to 80 percent. The most plausible explanation for these grim facts is historical and continuing racism, much of it governmentally authorized or sanctioned at least through the end of the 1960s. There is no reason to suppose that Blacks are innately less able than whites to excel in employment, business, or education.
Blacks have also been disproportionately excluded from political representation. Before the Voting Rights Act of 1965, Blacks were effectively denied the right to vote in many states. Making voting districts, racial bloc voting, and winner-take all elections ensure that Blacks are still less able than whites to gain public office. The Grandfather clause was instituted in many of the Southern states in a response to the Fifteenth Amendment. This clause restricted anyone from voting if their grandfather had not voted. Since most of the Blacks’ grandfathers were not allowed to vote, they in turn were not allowed to vote.
Against this unhappy background, it was recognized early in the civil rights revolution that strict color-blind policies were inadequate to remedy the effects of racial discrimination. In President Johnson’s famous words: “You do not take a person hobbled with chains and liberate him, bring him up to the starting line of a race and say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair. ” Once systematically disfavored in law and practice, minorities had to be systematically favored to gain redress and attain the equality guaranteed by the Constitution.
As race-conscious remedies like busing and minority infusion into the schools were developed in the late 1960s to enforce school desegregation and the violations of minority voting rights, businesses, universities, and government turned towards racial preference programs. These have varied in form from minority quotas, hiring targets and timetables, and set-aside to treating race as a “plus” factor among others or designing voting districts so that minority votes had greater weight.
All were designed to redress past and ongoing inequities, to afford minorities opportunities previously denied them and which would be generally unavailable under color-blind policies and individualized enforcement of anti-discrimination law, and in some cases, such as university admissions policies, to foster non-correctional goals such as diversity. From the perspective of minorities and government, the alternatives to color-conscious policies were impracticable. Individual civil rights lawsuits are expensive and involve long delays.
Claims of discrimination are difficult to prove even when justified. Federal enforcement in individual cases, given the level of resources committed by Congress, has been extremely slow. From the perspective of business, racial preferences have been a way to pacify widespread minority discontent and avoid the threat of lawsuits. From the perspective of universities, affirmative action allowed the enhancement of racial diversity. Color-consciousness thus combined economic efficiency, prudent use of government resources, and justice for minorities, as well as furthering important non-corrective goals.
These are some of the programs that were looked favorably upon by the Burger and early Rehnquist Courts in a series of important cases in the 1970s and 1980s. These policies and decisions were and remain quite controversial. Many people view such race-conscious policies as reverse discrimination, no better than, or in their own way as harmful as, the racism they aim to combat. Some legal scholars, accepting this characterization, have argued that racial preference policies, whatever their purpose, are unconstitutional, breaching the equal protection clause, which, they say, requires a color-blind reading of the Constitution.
This is not Justice Harlan’s view. Neither is it consistent with the history of equal protection clause jurisprudence. His view, allowing racial preferences that pass the strict scrutiny test, is more consistent with traditional doctrine, although not fully so. Within the last fifteen years we have had cases like Richmond v. Croson Company, the Pena case previously mentioned, and of course Bakke v. Regents of the University of California also previously mentioned.
In each case we are dealing with issues that supposedly were put to a halt with the 13th, 14th, and 15th Amendments. The Constitution continues to help some people and hinder others. Still over a hundred years later, we are still having conflicting results and are still referring to Harlan’s dissenting opinion about a color blind Constitution. Every time the Supreme Court rules in favor of one thing the equal protection pendulum swings the other way just enough to inflict color on this color blind Constitution. Will the Constitution ever be color blind?
One day when every race is mixed together and no one can claim that they are solely of one particular ethnic origin is when this color blind Constitution will occur. There are too many prejudice groups in society to say that the Constitution will soon be clearly color blind. I think the Supreme Court has an intent to make color blind decisions without understanding the inevitable outcome. The pendulum has to be in the middle for a color blind decision to be made. Any time you make an exception for one group, there is another group being affected.