Fourteenth Amendment & colorblindness

[Stephen Siegel]

I would like to hear more about Eugene's claim about some of the
literature on the original meaning of the 14th amendment.  Eugene
say that, in the view of some scholars, the 14th amendment applied only in
a limited area (civil rights) but in that area imposed an absolute bar to
color-conscious laws.  It follows from this that such laws as Reconstruction
era spending programs benefiting blacks were permissible because they were
not within the limited ambit of the 14th amendment.

But Congressional debate in the 39th Congress makes clear, I think, that
Florida's system of taxing all citizens but excluding blacks from schools
would be a 14th amendment violation.  In other words, after the 14th
amendment, government might segregate schools, but not exclude
African-Americans.

This suggests that the Fourteenth amendment applied a rule of
reasonableness across the board.  With regard to civil rights, no
color-consciousness was reasonable; with regard to other areas
color-consciousness might be.

Justice Brown's comment in Plessy, explaining why a law requiring
segregated sidewalks would not be permitted while a law requiring
segregated street railways was permissible, exemplifies this
understanding.

It does not strike me as likely that in the Reconstruction and
Gilded Age eras, government spending programs that were facially limited
to benefiting whites would have been upheld as beyond the scope of the 14th
amendment?

My sense is that most would have been voided.  Not all, of
course, as Cumming v. Richmond County School Bd (1899) case, allowing
spending on white high schools when there were no black high schools,
illustrates.  But this illustrates the rule of reasonableness, not the
limited scope of the 14th amendment.

Stephen Siegel
DePaul University College of Law