Fourteenth Amendment & colorblindness

Sanford Levinson SLevinson at law.utexas.edu
Mon Jun 4 14:33:36 PDT 2007


In addition to Steve's own fine work on this issue, I had thought that
Andrew Kull's excellent book has been accepted as a fairly definitive
rejection of the "colorblindness" historical reading of the Fourteenth
Amendment (and, of course, there is not the slightest textual basis for
such a reading, unless one rejects any and all classifications).  And I
note, for the record, that Michael McConnell's valiant effort to defend
Brown on originalist grounds presumes that Congress has authority to
regulate "social rights," i.e., schools, and not merely "civil rights,"
which would presumably run afoul of more recent judicial imperialism a
la Boerne.  

sandy

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Stephen Siegel
Sent: Monday, June 04, 2007 4:17 PM
To: Conlawprof
Subject: Fourteenth Amendment & colorblindness

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

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