Justice Jackson Is Wrong – the U.S. Constitution Does Forbid Government From Racial Discrimination

By James D. Agresti
October 19, 2022

Ketanji Brown Jackson, February 24, 2020. Credit: Lloyd DeGrane, Wikicago, CC BY-SA 4.0, via Wikimedia Commons

During a recent hearing of the United States Supreme Court, Justice Ketanji Brown Jackson claimed that the Constitution doesn’t require government to act in a “race-neutral” manner. Instead, she declared that government is constitutionally authorized to make people “equal” by taking “race-conscious” actions.

The facts of this matter, which cut to the core of whether government is allowed to discriminate based on race, show that Jackson is wrong. Moreover, history illuminates the harms that occur when governments treat people differently because of their race.

Jackson’s Reasoning

In an October 4th hearing for a case called Merrill v. Milligan, an attorney for the State of Alabama argued before the Supreme Court that it would be unconstitutional to draw U.S. congressional district boundaries based on race. This is because the 14th Amendment to the U.S. Constitution forbids states from denying “to any person within its jurisdiction the equal protection of the laws.”

Challenging the attorney, Jackson insisted that Alabama should be forced to draw its congressional districts in a way that will give black people more voting power. In support of this position, she asserted:

“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem” because the framers of the 14th Amendment adopted it “in a race conscious way.” The framers were “trying to ensure” that former slaves “were actually brought equal to everyone else in the society.” “That’s not a race-neutral or race-blind idea in terms of the remedy. And even more than that, I don’t think that the historical record” shows the framers “believed that race neutrality or race blindness was required, right?” The framers passed “the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens.” The Civil Rights Act of 1866 was enacted so that “other citizens have to be made equal to white citizens, and people were concerned that that didn’t have a constitutional basis, so they enacted the Fourteenth Amendment.”

The fatal flaw in Jackson’s argument is her counterfactual leap from the framers’ reasons for enacting for the 14th Amendment to their “remedy.” The facts, detailed below, show that the framers witnessed governments treating people differently based on race, and their remedy was to ban them from doing that.

Origins of the 14th Amendment

Less than a year after the Civil War ended in 1865, the Louisiana Democratic Party passed a resolution stating:

“we hold this to be a Government of white people, made and to be perpetuated for the exclusive benefit of” whites. “people of African descent cannot be considered” citizens of the United States. “there can, in no event, nor under any