Fourteenth Amendment & colorblindness
VOLOKH at law.ucla.edu
Mon Jun 4 23:05:13 PDT 2007
Very interesting, thanks -- but surely the Fourteenth Amendment
did not apply a rule of reasonableness prohibition to political rights
such as voting, right? I understood this to reflect the notion that the
Equal Protection Clause had a narrow scope, being limited to civil
rights, not political rights or (and I realize that here I depart from
the voting example, which is the clearest) at least some classes of
Did people of the era take the view, for instance, that a
government agency's discrimination against black employees or black
contracts was an Equal Protection Clause violation? I genuinely don't
know -- it may well be that the theory I've heard is incorrect, but I'd
like to hear what others say. Thanks,
> -----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 2:17 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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