Racial Discrimination

Author:Owen M. Fiss

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The nation was founded with the enslavement of blacks as an established and ongoing institution, and though we were not particularly proud of the institution, we were prepared to live with it. The Constitution did not mention the word "slave," and contemplated the eventual closing of the slave trade (referred to simply as the "importation of persons"), but, through similar circumlocutions, also created obligations to return fugitive slaves, and included a proportion of the slaves within the population base to be used for the apportionment of representatives and taxes. In DRED SCOTT V. SANDFORD (1857) the Supreme Court viewed slaves as property and declared that the right of slaveholders to take their slaves to the territories was protected by the DUE PROCESS CLAUSE of the Fifth Amendment.

The CIVIL WAR brought SLAVERY to an end and reversed the basic commitment of the Constitution toward blacks. The law sought equality rather than enslavement, and it was through the elaboration of this egalitarian commitment that the concept of racial discrimination emerged. Prohibiting racial discrimination became the principal strategy of the American legal system for achieving equality for blacks. The laws against racial discrimination typically protect all racial minorities, not just blacks, and yet, for purely historical reasons, the development of those laws would be unimaginable apart from the struggle of blacks for equality in America. That struggle has been the source both of the achievements of antidiscrimination law and of its recurrent dilemmas.

The three amendments adopted following the CIVIL WAR constitute the groundwork of this branch of the law, although only one?the FIFTEENTH AMENDMENT?a ctually speaks of racial discrimination. It provides that "the right? to vote shall not be denied or abridged ? on account of race, color, or previous condition of servitude." The other Civil War amendments are not cast in terms of racial discrimination. The THIRTEENTH AMENDMENT prohibits slavery and involuntary servitude, and the FOURTEENTH AMENDMENT, in relevant aspect, prohibits states from denying "the EQUAL PROTECTION OF THE LAWS." But the Supreme Court has interpreted both these amendments to prohibit racial discrimination. With respect to the Thirteenth Amendment, the Court reasoned in JONES V. ALFRED H. MAYER CO. (1968) that racial discrimination is a badge or incident of slavery. (See BADGES OF SERVITUDE.) Similarly, in interpreting the Fourteenth Amendment, the Court, as early as STRAUDER V. WEST VIRGINIA (1880), declared racial discrimination to be the kind of unequal treatment that constitutes a denial of equal protection of the laws. Indeed, over the years, racial discrimination came to be seen as the paradigmatic denial of equal protection, and supplied the standard against which all other equal protection claims came to be measured, even when pressed by nonracial groups such as the poor or women. They too had to show that they were discriminated against on the basis of some impermissible criterion such as their wealth or sex. The promise of equal protection was thus transformed into a promise not to discriminate.

It was, moreover, through the enforcement of the Fourteenth Amendment that the prohibition against racial discrimination achieved its greatest prominence. Antidiscrimination was the instrument that finally put to an end the system of white supremacy that emerged in the late nineteenth and early twentieth centuries and that worked by separating whites and blacks?Jim Crow. The discrimination appeared on the very face of Jim Crow laws and a principle that condemned racial discrimination easily brought those laws within the sweep of the Fourteenth Amendment. All that was needed was an understanding of how the separatism of Jim Crow worked to the disadvantage of blacks; that was the burden of BROWN V. BOARD OF EDUCATION (1954) and the cases that followed. As the principle controlling the interpretation of the Fourteenth Amendment, antidiscrimination was a limitation only upon the actions of states, but once the step entailed in Brown was taken, the federal government was, in BOLLING V. SHARPE (1954), made subject to an identical prohibition by a construction of the due process clause of the Fifth Amendment. Racial discrimination was deemed as inconsistent with the constitutional guarantee of liberty as it was with equal protection.

Statutes, too, have been concerned with racial equality. In the years immediately following the Civil War, Congress passed a comprehensive program to protect the newly freed slaves, and defined the conduct it sought to

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prohibit in a variety of ways. In the CIVIL RIGHTS ACT OF 1866 Congress promised that blacks would enjoy the same rights as whites; in the FORCE ACTS (1870, 1871) it guaranteed all citizens the rights and privileges arising from the Constitution or laws of the United States. In the decades following Brown v. Board of Education, however, when the antidiscrimination principle of the Fourteenth Amendment received its most strenuous affirmation and the nation embarked on its Second Reconstruction, Congress cast the substantive standard in terms of a single idiom?do not discriminate. (See CIVIL RIGHTS ACT OF 1964; CIVIL RIGHTS ACT OF 1968; VOTING RIGHTS ACT OF 1965.)

During this period, Congress introduced new mechanisms to enforce the equal protection clause; for example, it authorized the attorney general to bring injunctive school desegregation suits, required federal administrative agencies to terminate financial assistance to segregated school systems, and provided for criminal prosecutions against those who forcibly interfered with desegregation. Congress also broadened the reach of federal antidiscrimination law beyond the scope of the Fourteenth Amendment by regulating, in the name of racial equality, activities of private agencies (for example, restaurants, employers, or landlords), which otherwise would not have been covered by that amendment because of its "state action" requirement. In each of these measures, Congress used the language of antidiscrimination. So did the President in promulgating EXECUTIVE ORDER 11246 (1965), which regulates government contractors. Many state legislatures also intervened on behalf of racial equality during the Second Reconstruction, and these enactments were also couched in terms of prohibiting discrimination.

Sometimes Congress and the state legislatures exempted certain discriminatory practices from the laws they enacted. One instance is the federal open housing law, which exempts discrimination by small residences ("Mrs. Murphy's roominghouse"); another is the federal fair employment statute, which exempts from its coverage small businesses (at first businesses with fewer than twenty-five employees, later reduced to fifteen). Apparently Congress viewed the interest in associational liberty present in these settings as sufficiently strong to justify limited exemptions to the ban on racial discrimination. Yet, putting these exemptions and a handful of others to one side, it is fair to say that today, primarily as a result of the Second Reconstruction, the prohibition against racial discrimination is all-encompassing. It has both constitutional and statutory bases and is the subject of an executive order. It is a pervasive feature of both federal and state law and calls forth a broad array of civil and criminal remedies. It almost has the status of a moral imperative, like the norm against theft or killing. The issue that divides Americans today is thus not whether the law should prohibit racial discrimination but what, precisely, doing so entails.

The antidiscrimination norm, as already noted, was largely fashioned at a time when the nation was swept by the SEPARATE BUT EQUAL DOCTRINE of Jim Crow and when blacks were disadvantaged in a rather open and crude manner. In such a context, the principle of antidiscrimination invites a color blindness: When allocating a scarce opportunity, such as a job or a place in a professional school, the decision maker should not prefer a white candidate over a black one on the basis of the individual's color or race. Here antidiscrimination requires that individuals be judged independently of race. This much is settled. Interpretive problems arise, however, when the social context changes?when we have moved beyond Jim Crow and blacks have come to be disadvantaged primarily in ways that are hidden and systematically entrenched. Then we confront two issues. One arises from the exclusion of blacks on the basis of a seemingly innocent criterion such as performance on a standardized test; the other from the preference given to blacks to correct for longstanding...

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