Justice Jackson’s ‘Race Conscious’ History

“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” Justice Jackson said. “The framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment, in a race-conscious way.” She added: “I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the 14th Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves.”

This argument doesn’t go as far as she seems to believe. The lawmakers who passed the 14th Amendment in the year after the Civil War were clearly “conscious,” to use her term, of the need to protect the emancipated former slaves. But they did it in the 14th Amendment by guaranteeing “the equal protection of the laws,” regardless of race. It’s a stain on American history that black citizens living under Jim Crow in the South continued to be denied that promised protection for another century.

But the principle is sound. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” Justice John Marshall Harlan argued in his famous lone dissent in Plessy v. Ferguson. “All citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

Though Harlan didn’t persuade his colleagues in 1896, he was ultimately vindicated. This week the left is cheering Justice Jackson’s forceful justification for “race conscious” policies like affirmative action. But it doesn’t take a Harvard Juris Doctor to understand the phrase “equal protection of the laws,” and to know that treating citizens differently based on race is the opposite.