The Color-Blind Constitution.

• Author: Harrison, John (British inventor)

Although both groups produce a great many words, students of the Fourteenth Amendment are at a disadvantage compared to the infinitely large collection of monkeys who set out to produce Hamlet by typing random keystrokes. The monkeys are bound to produce their tragedy. But despite splendid contributions like Andrew Kull's The Color-Blind Constitution,(1) Fourteenth Amendment scholars are unlikely to come up with a canonical account of either the original meaning of the amendment or its subsequent adventures as a doctrine of the Supreme Court.

Lacking the word-crunching capacity of the infinite monkeys, Kull uses a technique more suited to finite but intelligent creatures. He has taken as his organizing theme the idea that the Constitution is or should be color-blind - that it should flatly forbid governments from considering race or color in making decisions. The story he develops on that theme is something like Hamlet, in that the protagonist is ultimately undone. According to Kull, although the idea of color blindness has been in play throughout the history of American race law in general and the Fourteenth Amendment in particular, it has consistently been rejected. The framers of the amendment, he says, considered a ban on the consideration of race in government decisionmaking (what we usually call classification by race), and instead adopted the Equal Protection Clause, which forbids, not racial classifications per se, but arbitrary or unreasonable classifications. The Supreme Court, in applying the amendment, has flirted with color blindness but has instead repeatedly endorsed various forms of the ban on unreasonable classifications.

Kull's subject matter is rich enough that a reviewer is tempted to set his own collection of monkeys loose on the book, saying everything that comes to mind on the theory that some of it will be interesting. Instead, because readers have finite time and patience, I will discuss in detail two of the most significant aspects of Kull's story. The first concerns his account of the framing of the Fourteenth Amendment, in which he concludes that the Reconstruction Republicans deliberately adopted an amendment that contained not the rule of color blindness, but a ban on unreasonable classifications. Kull's conclusion is more debatable than he supposes because the Republicans may not have thought that Section 1 of the Fourteenth Amendment means what we now take it to mean. They may have thought that they had banned the use of race in certain defined areas of government activity, even though their amendment does not mention race.

Second, I will try to use Kull's story of Supreme Court equality doctrine to make a point about the way constitutional provisions operate. As Kull describes it, the struggle between color blindness and reasonable classification is the struggle over whether to remove questions of race from politics because a reasonable classifications regime requires that political choices still be made, albeit by the courts. My observation is that Kull, without saying so, has made the case for formalism in constitution drafting: his narrative presents an instance in which an issue was not removed from politics, but instead simply transferred from legislatures to courts, because the constitutional provision was insufficiently rigid - was not enough a rule and too much a principle.

At the end, after discussing some history and some theory, I will present one last thought about the monkeys.

1. Kull's Story

   Kull's story begins in earnest with a case that arose under a state constitution which, unlike the original federal Constitution, explicitly mentioned equality, although not race or color. The Commonwealth of Massachusetts proclaimed that "[a]ll men are born free and equal,"(2) but in the 1840s Boston operated separate schools for white and non-white children. In 1848 Sarah Roberts, denied admission to the white school nearest her home, brought suit against the city of Boston.(3) Her attorney was Charles Sumner, antislavery firebrand and future U.S. senator. Sumner argued that the constitution made all people equal before the law, and that equality before the law was inconsistent with race discrimination (pp. 41-48).

   Sumner urged a rule of color blindness, but he had to wring it out of general language of equality that made no mention of race or color. The Supreme Judicial Court of Massachusetts, per Chief Justice Lemuel Shaw, rejected Sumner's claim. As Kull describes it, Shaw's analysis is an eerie preview of the next 150 years of American race law. His approach is by now familiar to everyone who has survived an introductory course in American constitutional law. Shaw conceded that under the Massachusetts Constitution all were equal before the law, but thought the very universality of that principle kept it from forbidding racial classifications per se. After all, said Kull's Shaw, "government must classify in order to legislate" (p. 50). Some classifications, such as those according to age, are clearly permissible (p. 50). The principle of equality before the law, then, requires that "the classifications by which the individual's rights are |settled and regulated'...be reasonable ones" (p. 50). The court then decided that the racial classification, whether or not desirable policy from the judges' point of view, was a reasonable one in light of the prejudices of the community (pp. 50-51). Boston's schools remained segregated.

   From Roberts, Kull derives the leading figures of his Manichean universe. On one side is the rule of color blindness, espoused by Sumner. On the other is Shaw's doctrine that reasonable classifications are permissible. Shaw's approach is equal protection orthodoxy as we know it.(4) Thus, when Kull refers to the requirement of reasonable classification, he means to contrast it with a requirement of color blindness. Reasonableness includes all the current "levels of scrutiny," from minimum rationality to strict scrutiny. The term reasonable classification as Kull uses it means anything that is not strict color blindness; it does not merely mean minimum rationality.

   The next, and far more important, encounter between color blindness and reasonableness took place during the drafting of the Fourteenth Amendment by the Thirty-ninth Congress, which convened in December 1865. Almost immediately, arch-Radical Representative Thaddeus Stevens proposed a constitutional amendment that would require total color blindness: "All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color."(5) The next day, a more moderate Republican, Representative John Bingham of Ohio, introduced a forerunner to Section (1) of the Fourteenth Amendment; his proposal would have empowered Congress "to pass all necessary and proper laws to secure to all persons in every State of the Union equal protection in their rights [of] life, liberty, and property."(6) As Kull tells the story, the first session of the Thirty-ninth Congress, which adopted the Civil Rights Act of 1866 and proposed the Fourteenth Amendment, was a struggle between Stevens' color blindness rule and Bingham's language of general equality. Repeatedly, according to Kull, color blindness lost and general equality won.

   This happened, he says, in the drafting of the pivotal Civil Rights Act of 1866.(7) The Act was designed to eliminate the Black Codes, under which provisionally reconstructed southern states had limited the basic rights of freed slaves, qualifying their capacity to make contracts, own property, and use the court system.(8) As originally proposed, the 1866 Act included a general ban on race discrimination with respect to "civil rights or immunities" as well as a specific list of rights with respect to which discrimination was forbidden.(9) After the Senate passed the bill, Republicans in the House expressed the fear that the general language might be thought to include political rights, especially suffrage (pp. 77-79). The bill was amended to eliminate the offending phrase and passed over President Johnson's veto (p. 79). As adopted, it provided that citizens of "every race and color, without regard to any previous condition of slavery or involuntary servitude" would have, with respect to specified subjects, "the same right[s]" as white citizens.(10) Says Kull, "When the issue was joined, an unqualified rule of nondiscrimination mustered no measurable support in the Thirty-ninth Congress."(11)

   Then we come to the main event, the Fourteenth Amendment. In February 1866, the House of Representatives debated but ultimately postponed a precursor amendment, drafted by Bingham, that would have given Congress power to eliminate the Black Codes.(12) Kull gives credit for Shavian prescience to Representative Robert Hale, Republican of New York, who during the debate on Bingham's draft foresaw (Kull says) the modern doctrine of equal protection. According to Kull, Hale argued that because "the entire legal system is necessarily a fabric of inequalities and discriminations, of categories and classifications," an equal protection provision "if it is not to destroy altogether the possibility of government, can mean only |equal treatment for those who should be treated equally'" (p. 8 1).

   Kull then describes how the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, rejected explicit bans on race discrimination in favor of more general language, including the second sentence of Section 1.(13) The Republicans were unwilling to mention race explicitly, Kull suspects, because they feared political disaster should their proposal "hold out the prospect of Negro suffrage, immediate or prospective" (p. 86). Instead, they declined to mention race.

   The effective way to secure the equality of the races before the law was to impose a rule of nondiscrimination. Contemplating the consequences of such a rule in 1866...