Vol. 3 No. 1 (January, 1993) pp. 4-6
EVEN THE CHILDREN OF STRANGERS: EQUALITY UNDER THE CONSTITUTION
by Donald Jackson. Lawrence: University of Kansas Press, 1992.
282 pp. Paper.
THE COLOR-BLIND CONSTITUTION by Andrew Kull. Cambridge: Harvard
University Press, 1992. 301 pp. Cloth $35.00.
Reviewed by Susan Gluck Mezey, Department of Political Science,
Loyola University Chicago.
Donald Jackson's EVEN THE CHILDREN OF STRANGERS: EQUALITY UNDER
THE U.S. CONSTITUTION and Andrew Kull's THE COLOR-BLIND
CONSTITUTION, both published in 1992, do an admirable job of
adding to our knowledge of the past, present, and likely future
of the Equal Protection clause of the 14th Amendment. While both
books pay exhaustive attention to the debates surrounding the
ratification of the 14th Amendment and to the subsequent case law
that determined the course of legal equality in the U.S., the
Jackson book makes a more conscious effort to deal with the
present controversy over the legal conundrum presented by the use
of race conscious remedies in the light of the Constitution's
prohibition against a denial of equal protection to all persons.
Moreover, while Jackson ponders the implications of equal
protection for discrimination on the basis of a variety of
characteristics only one of which is race, Kull remains solely
concerned with the nation's battle over racial discrimination. In
the end, although both represent impressive scholarly endeavors,
each leaves the reader wishing for more.
Jackson sets the theoretical stage for his analysis of the 14th
Amendment with the concepts borrowed from Douglas Rae's (1981)
edited work entitled, EQUALITIES. In this book, Rae and his co-
authors posit the difference between "individual-regarding
equality" and "group" (or
"bloc")-"regarding equality." The former is a
device in which all members of the class are treated equally,
subject to inequalities in skills and talents. The latter is a
concept requiring equality between subclasses of individuals and
leading to proportional equality of these classes, in this case,
of course, meaning racial groups. Within this framework, Jackson
proceeds to explain the history of the 14th Amendment and its
subsequent interpretation by the courts of the United States.
Jackson is concerned with how the open-ended and potentially
inclusive language of the 14th came to be selected by the 39th
Congress. He concludes that its Framers intended only to
establish civil and legal equality, that is, citizenship, for the
former slaves despite the fact that Section 1 contains the phrase
"all persons" with no reference to race at all. He
notes the incongruity between this narrow construction of the
Amendment and the array of rights and the classes of persons that
were ultimately included within the protection of the 14th:
women, aliens, illegitimate children. The bulk of Jackson's
analysis of the equal protection cases is presented in categories
divided by PLESSY V. FERGUSON, BROWN V. BOARD OF EDUCATION, and
post-BROWN V. BOARD OF EDUCATION. Ironically, PLESSY and the
"separate but equal" doctrine represented
group-regarding equality because the two racial groups were
subjected to at least nominal equality. Similarly, he points out
that at one level, if one ignores the purpose of the legislation,
the anti-miscegenation laws could be seen as a form of
group-regarding equality because similar treatment was accorded
to members of each group that violated the law. In the cases
following PLESSY, the Court diverted from the original meaning of
equality (although there is a view that suggests this was
actually foreseen and, in fact, intended by the Framers) to
protect corporate entities from state regulation. During this
era, the Court conveniently lost sight of the fact that racial
equality was the principal motive for passage of the 14th
Amendment.
BROWN highlighted the Court's commitment to individual- regarding
equality when
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it announced that race cannot be the basis of school assignments.
What BROWN made clear, however, was that individual-regarding
equality was an ineffective device for bringing about the racial
equality that was the ultimate goal of the plaintiffs in BROWN.
According to Jackson, the "most appropriate inference from
BROWN I is that some sort of affirmative policy of integration is
required -- at least where there previously has been DE JURE
segregation. Otherwise, the evils that BROWN I described would,
in large part, continue untouched by the Court's decision"
(p. 93). Thus was born affirmative action.
The underlying meaning of BROWN, according to Jackson, was that
bloc-regarding equality -- measured by outcomes in percentages --
was the only course to take, and that in 1969 the Supreme Court
appeared ready to adopt this formula for equality. In allowing
busing (in SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION),
the Court appeared to accept the necessity of the group-regarding
view but then in MILLIKEN V. BRADLEY, it reneged on its promise
by limiting the "domain" of equality and restricting
the race conscious remedy of busing to within the city limits
where it would not serve as a remedy at all. Jackson then
chronicles the continuing battle over affirmative action, that
is, the decision to adopt group-regarding equality, in employment
and education and effectively illustrates the Court's growing
reluctance to allow the use of race conscious remedies to
compensate for past racial discrimination in American society.
After presenting these competing concepts of racial equality,
Jackson goes on to discuss other types of equality. In two
chapters, he attempts the almost impossible task of analyzing the
current multi-faceted equality provided by the equal protection
clause. The attempt is not successful for two reasons. First, he
loses the continuity of equal protection analysis by considering
cases that are doctrinally diverse: from privacy, to the First
Amendment, to the due process clause, to statutory
interpretation. Second, his analysis of discrimination based on
sex, age, residency, marriage, poverty, mental retardation, and
alienage tends to lose sight of the bloc- and
individual-regarding dichotomy that formed the basis of his
analysis in the first nine chapters. Much more successful is his
chapter focusing on the different views of equality in other
countries, namely India and Canada. In this he convincingly
demonstrates that the constitutions of both countries contain a
commitment to achieving more egalitarian group outcomes.
Finally, Jackson concludes by showing the basic contradiction in
American society that makes affirmative action policy so
difficult for so many Americans: a belief in individualism and
meritocracy that is incompatible with a commitment to group
remedies that are necessary to achieve a condition of equality in
the U.S. Although, as he points out, the commitment to
meritocracy is so often mythical, it is nevertheless a powerful
one.
He proposes instead a "distance-travelled" concept,
designed to reconcile affirmative action policies with the
principle of individual-regarding equality. This approach
substitutes socio- economic conditions for race and gender
considerations in selecting among applicants in the employment or
education arenas. Thus, he argues, his plan avoids the conflict
over affirmative action because it does not challenge the belief
system of the American people and offend their political
sensibilities. As a principle, his "distance-travelled"
concept appears plausible. As a practical matter, it appears
unlikely to escape a negative political reaction and the judicial
pitfalls that doom affirmative action in the Reagan-Bush Supreme
Court. His "distance-travelled" concept relies on
socio-economic conditions, which he admits are correlated with
race and would therefore be unlikely to fool anyone as being
based on non-racial criteria; it requires intensive analysis of
the background characteristics of applicants in employment and
education, which in most circumstances would be impracticable if
not impossible; and while it would appear to reduce
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the emphasis on numbers, it seems unlikely that the effectiveness
of the remedy can be measured unless numbers are used to evaluate
the results.
While Jackson takes on the task of applying equal protection
theory to the affirmative action debate, Kull makes it clear that
his book is not about affirmative action. Kull seeks "to
locate the sources of the constitutional argument for radical
nondiscrimination, 'color-blindness,' and to trace its subsequent
manifestations" (p. 2). He does not claim that this
historical odyssey will settle the dispute over affirmative
action, rather that it will illuminate it.
Kull convincingly demonstrates that the principle of color-
blindness was at issue before the ratification of the 14th
Amendment -- as evidenced by arguments presented in the 1850
ROBERTS V. CITY OF BOSTON case -- and took on renewed importance
after 1868 as well. And while the argument for color-blindness
has existed since at least the early 1800s and was articulated
during the antislavery struggle, the legal principle of
nondiscrimination on the basis of race has never been explicitly
accepted by the courts of the U.S.
Kull presents two possible interpretations of the legal equality
principle: a flat-out prohibition against racially determined
public policy or an allowance of reasonable racial
classifications with the courts the ultimate arbiters of
reasonableness. Beginning with the rejection of Charles Sumner's
argument for the plaintiff in ROBERTS, the courts have always
opted for the latter view of racial equality. When the 39th
Congress had an opportunity to correct this interpretation of
equality with the passage of the 14th Amendment, it embraced John
Bingham's vague "equal protection" language over
Thaddeus Stevens' more radical anti-discrimination (that is,
color-blind) view. Kull notes that "Congress consistently
preferred the more malleable notions of equality and `equal
protection' to an unyielding rule of nondiscrimination" (p.
69).
Thus, it was not surprising the Court accepted the separate but
equal view of equality in PLESSY, promoting the belief that the
14th Amendment should only be interpreted as a prohibition
against laws that imposed explicit legal inequality and that
states could treat citizens of different races differently as
long as the basis of the different treatment was reasonable.
Justice John Marshall Harlan's dissent, incorporating the phrase
"color-blind" endorsed the flat prohibitory principle
because he did not trust judges with the task of distinguishing a
good racial classification from a bad one.
After PLESSY, Kull tells us, the Court seemed to move toward an
implicit adoption of the ban on racial classifications but never
did so explicitly. It continued to strike laws on the basis of
unequal treatment rather than on the anti-discrimination
principle advocated by Harlan in PLESSY. Then when it announced
that segregation per se was unconstitutional, it had no legal
rationale for doing so. Kull's analysis of BROWN strikes just the
right note: he admires the Court for its "courageous"
act in taking the lead on racial discrimination in the U.S. and
criticizes it for its failure to take the forthright position of
announcing that henceforth color-blindness was national policy.
As he explains it, the color- blind principle was implicit in
BROWN (as well as in later rulings), but politics prevented the
Court from acknowledging it. Instead, the Court relied on social
science data (the accuracy of which has since been called into
question) to show that separate was inherently unequal in
education. According to Kull, the Court wanted to disguise its
decision by deciding it within the bounds of the separate but
equal doctrine. Then, in its post-BROWN opinions, the Court
appeared to have adopted the anti-discrimination principle but
refused to acknowledge it, and struck laws -- even those
prescribing equality of treatment -- without providing any
explanation.
In the 1960s, the civil rights community abandoned its support of
color-blindness as it
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realized that it was inconsistent with the race conscious
remedies civil rights leaders were advocating to redress
imbalances in employment, school attendance, and voting. The
courts and the federal government at first acquiesced in this
shift by allowing affirmative use of racial criteria.
Kull concludes by criticizing the principle and practices of
affirmative action policies. As a practice, he claims they
"spend political capital," without committing the
resources necessary to solve the social and economic inequalities
in the U.S. In other words, he implies, unless the government
commits itself to massive expenditures (unlikely in today's
economic environment), all attempts at equalizing racial status
are bogus.
Legally, he maintains, the Court is adrift and has no doctrine to
guide its judgments of affirmative action policy; he
characterizes Justice Brennan's attempts to impose guidelines as
"utter banality" (p. 220). And although recognizing a
kind of "rough justice" in having discrimination work
to expand the rights of African Americans, Kull nevertheless
opposes affirmative action in favor of a policy of
color-blindness.
In the end, Kull's analysis leaves one unsatisfied. While
criticizing affirmative action policy today, he says nothing of
the alternatives. Color-blindness was an excellent guiding
principle in the past; had it been adopted at the outset of
constitutional policy-making, the need for affirmative action
policy may not have evolved. Moreover, had today's opponents of
affirmative action taken a stand in support of color-blindness
during the 50's and 60's, their hands would be cleaner. Calls for
color-blindness today tend to sound suspiciously like arguments
against BROWN in 1954 for ostensibly nondiscriminatory reasons.
The major flaw in the book is that Kull does not explain how
reliance on color-blindness in today's racial environment will
lead to a just society. His caveat at the beginning of the book
that he does not intend to resolve the affirmative action debate
but rather intends to trace the origins of color-blindness does
not save him from the need to show that a color-blind society is
an anachronism in present-day U.S. society. He has a
responsibility to point out these contradictions and he fails to
do so; this mars his otherwise insightful analysis.
References
Rae, Douglas, et al. (1981) EQUALITIES. Cambridge: Harvard
University Press.
Copyright 1993