The 14th Amendment of the Constitution declares that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The language is plain and simple—a conscious choice for a country still reeling from a bloody civil war fought over slavery. In 1868, there was no question who the Equal Protection Clause’s intended beneficiaries were: Black Americans, particularly people just freed from slavery in the South. Introducing the amendment to Congress, Senator Jacob Howard stated its purpose as protecting “the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.”
Supreme Court justices and constitutional scholars alike have argued that the Constitution does not see racial distinctions, often employing the phrase “color-blind.” The omission of race in the 14th Amendment, despite its intended purpose, raises the question of whether the US Constitution’s statutory color blindness is its greatest strength or most overlooked failure in solving modern issues of racial equality post-Civil War.
Before the color-blind reading asserted itself in over a century of precedent, the NAACP points to several instances in which reparatory “color-conscious” laws either took root or gained political momentum just before and after the 14th Amendment was ratified. Union General William Tecumseh Sherman’s Special Field Order No. 15 granted some recently freed Black Americans in 1865 the right to claim 40 acres of land off the coast of South Carolina, Georgia, and Florida. While President Andrew Johnson overturned this order shortly after assuming the presidency, another reparatory movement gained momentum in 1894, when several bills were introduced to the Senate to provide compensation to former slaves.
However, two years later, a new ideology would begin to take root: one beneficial to the cause of desegregation and broader protections for minority groups beyond Black Americans, yet inadvertently detrimental to the cause of reparatory law. In Justice John Marshall Harlan’s famous lone dissent in Plessy v. Ferguson, he wrote: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Frederick Douglass, along the same lines, noted that the language of the Constitution “is ‘We the People,’ not we the white people.” The color-blind interpretation was likewise employed by Thurgood Marshall when he argued Brown v. Board of Education before an all-white court in 1954. Marshall asserted that the key issue with Plessy was that it was, in fact, color-conscious and that our Constitution is incompatible with a segregated society. The neutrality of the 14th Amendment, as understood by Harlan, Douglass, and Marshall, has served as one of its assets: Despite its race-specific intentions, equal protection has prevented government discrimination on the basis of all racial and ethnic backgrounds, genders, and sexual orientations.
The color-blind argument, though effective, has limited reach in the fight for equality beyond ending segregation. Undeniably, our society has long been, and continues to be, “color-conscious,” and a Constitution that fails to recognize this cannot rectify it. As we strive toward realizing a multiracial representative democracy, the Equal Protection Clause’s omission of race has presented a grave challenge for constitutional lawyers to navigate. No longer a tool for liberation, today’s biggest fans of the “color-blind” reading of the Equal Protection Clause are conservative justices like Clarence Thomas and Samuel Alito. They argue that equal protection addressed vaguely to all “persons” under the law renders any reparatory law that accounts for race—such as affirmative action—unconstitutional.
Under this constitutional theory, the pursuit of lived equality has reached an impasse. While a “color-blind” constitution succeeds in creating procedural equality under the law, it fails to penetrate the social realm, where collective disparate treatment of minority communities can maintain historical inequalities just as effectively as if they were endorsed by law. This is not the reality that civil rights champions like Thurgood Marshall sought to create; rather, conservative judges have co-opted their arguments to maintain the status quo under the guise of procedural fairness. The Constitution enshrines the Equal Protection Clause as both a law and a principle that extends to the substantive domain: A diverse democracy cannot exist without lived equality, equal opportunity, and respect between all of its citizens. Today, “color-blind” constitutional readings have been weaponized against solving modern issues of racial inequality, thus undermining democracy altogether.
While no sitting justice denies the outcome of the Brown decision, its color-blind reasoning has been taken out of context by the conservative majority of the court. Legally, they have a powerful argument. Because the 14th Amendment states that “no person” can be denied equal protection, and the words of the Constitution do not detail how histories of discrimination may be redressed, the purely textualist case against weighing race in university admissions practically builds itself. Yet decisions like 2023’s Students for Fair Admissions v. President and Fellows of Harvard College, which effectively killed affirmative action, expose the limitations of this reasoning. Universities across the country have since seen minority enrollment plummet, signaling that color-blind equal protection under the law does not produce the equality that is necessary for the pursuit of the Constitution’s broader democratic ideals. Thus, while the color-blind argument may once have been an effective appeal to both civil rights leaders and the public at large, today there is an evident struggle to reverse course back to the original principle of the 14th Amendment: Substantive equality.
Within the Equal Protection Clause, it is clear throughout American legal history that there is both a statute and a principle at work. When the lived experiences of communities produce obvious disparities in our society, the principle of equality enshrined in the 14th Amendment must expand to lift those individuals up. In a hypothetical, Justice Ketanji Brown Jackson illustrated this gap between legal and lived equality by presenting the Court with two in-state applicants to the University of North Carolina. One is white and a fifth-generation legacy of the school, while the other is Black and, due to legacies of legal discrimination and slavery, had no such advantage. A color-blind, conservative legal interpretation of the 14th Amendment would deny the Black applicant any affirmative action, while the lived phenomenon of legacy admissions would grant the white applicant an active preference. Guided by a substantive doctrine of equal protection, this is blatantly unjust. Policies such as affirmative action that seek to remedy racial inequalities brought about by earlier discrimination should be seen as constitutional extensions of the original intent of the Equal Protection Clause—providing reparatory equal protection in the substantive domain.
Perhaps it would have been better for mid-20th-century constitutional lawyers to ascribe the language of the 14th Amendment Equal Protection Clause not to the notion of color blindness but rather to inclusivity. While the notion of our Constitution being both color-blind and color-conscious seems an oxymoron, coupling the latter with a principle of inclusivity appears to make more argumentative sense. The truth is that the Constitution is both a legal document and a declaration of our principles. While mentions of race might be absent in the raw text, the American principle of equality must be contextualized by the original intention of the clause and the systemic racial disparities in our current society. Equal protection is not a one-size-fits-all solution. The Supreme Court, as a counter-majoritarian feature of our democracy, exists in part to protect the rights of the minority, and it is failing to do so. Equality must exist beyond words in a statute or an argument. If the conservative justices of the Court looked up from the trivialities of their textual debates, they would witness the millions of Americans now suffering from their decisions.