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To change the world

GJ Boris Allan
2008-06-01 (Revised)

When the Tennessee legislature ratified the 19th amendment to the US constitution (18 August 1920), women were soon to have the right to vote throughout the USA. The amendment had been ratified by enough US states (36) to make it law (certified on 26 August 1920 by the US Secretary of State):

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

— Amendment XIX, US Constitution (1920)

The granting of suffrage to women is now seen as part of a process which made the “people” mentioned in the US constitution more like the people who lived in the USA. Male legislators in eight states had rejected the vote for women before Tennessee’s ratification, and rejection by the legislatures of only 13 states was needed to block the amendment. All eight states voting to continue discrimination against women were segregationist in some way or other, with Jim Crow laws to suppress blacks – all had segregated school systems. If the Tennessee legislature had rejected the amendment, then ratification would have been delayed or even stalled completely (one amendment, the 27th, took from 1789 to 1992 to be ratified).

[Georgia, Alabama, South Carolina, Virginia, Maryland, Mississippi, Delaware, and Louisiana – Delaware had a Republican governor, and the other seven governors were Democratic.]

The Tennessee vote

So how close was the Tennessee vote?

VOTES FOR WOMEN

On August 18th, 1920, Tennessee became the 36th state to ratify the 19th Amendment to the U.S. Constitution, thereby giving women the right to vote. After weeks of intense lobbying by national leaders, Tennessee passed the measure by one vote...

Historical marker, Hermitage Hotel, Nashville, Tennessee.

When the vote was called in the Tennessee general assembly, those in favour of ratification knew they had 48 votes, and they needed 49 votes to have a majority. When the votes were cast, the 49th vote came from a member (Harry T Burn) who explained that his mother had left him a letter: “I know that a mother's advice is always safest for her boy to follow, and my mother wanted me to vote for ratification”. The motion passed 49 to 47. If Burn had voted against ratification, then woman suffrage would have certainly been postponed – my guess is that the amendment would have ultimately been ratified, but who knows when? All the eight states who rejected the vote for women later ratified the amendment (under pressure from women voters?), the last being Mississippi in 1984.

Suffragists had been making cogent arguments about the validity of their case for many years:

WHEREAS, The men of 1776 rebelled against a government which did not claim to be of the people, but, on the contrary, upheld the “divine right of kings”; and
WHEREAS, The women of this nation to-day, under a government which claims to be based upon individual rights, to be “of the people, by the people, and for the people,” in an infinitely greater degree are suffering all the wrongs which led to the war of the revolution; and
WHEREAS, The oppression is all the more keenly felt because our masters, instead of dwelling in a foreign land, are our husbands, our fathers, our brothers and our sons; therefore,
Resolved, That the women of this nation, in 1876, have greater cause for discontent, rebellion and revolution, than the men of 1776.

The National Woman Suffrage Association, Ninth Annual Convention (1876) [My emphasis]

In the end, however, philosophical arguments seemed to have less effect than practical action – or a mother’s letter that said “Hurrah and vote for suffrage! Don't keep them in doubt! I notice some of the speeches against. They were bitter. ... Don't forget to be a good boy...” The people of the state of Tennessee did not ratify the 19th amendment (many did not want woman suffrage, “They were bitter”), it was the state legislature, by a very small margin (“They were bitter”) but enough under the rules to make the result binding.

Burn was not alone in having adventitious influences such as his mother, and it has been so throughout US history. When we look at the early days of the USA perhaps we pay too much attention to the philosophical interpretations given by a Madison or a Jefferson, and perhaps we should pay more attention to ordinary people in those revolutionary times, people who agreed or disagreed with proposals from the more intellectually-inclined social engineers such as Madison, Franklin, or Hamilton. In the 1780s, people in the USA were talking about changing their world (they had just finished a war) and “Philosophers have only interpreted the world differently; [however] it is necessary to change it.” The US constitution was riddled with compromises, especially those around the contentious issue of slavery (which has no explicit mention), because the document was written by a committee.

[My translation of Karl Marx’s 11th thesis from Feuerbach: “Die Philosophen haben die Welt nur verschieden interpretiert, es kömmt drauf an, sie zu verändern” (Thesen über Feuerbach, 1845) – Friedrich Engels (in 1888) changed the second clause to “es kömmt aber darauf an”, so that the implied “however ” (aber) was then explicit.]

Confronting the compromise

After the committee had come to its compromise, supporters of the new constitution put all kinds of quasi-philosophical rationalizations to work to justify the most obscene provisions (such as treating slaves as worth three-fifths of a person). The people in the new states (the ex-colonies) needed an agreement that was not too objectionable to too many white men. Because it was necessary to change their world, practical considerations took precedence over moral, ethical, or other abstract considerations. Many of those who were against slavery considered the unity of the USA as being more important in the short term than their distaste of slavery, an institution which many saw as withering away in the longer term.

Even after the compromise passed, people were not satisfied. Too many people worried that their newly found freedom from Britain and their individual rights might be curtailed by the new centralized (federal) government. Twelve amendments were proposed, ten of which became the US Bill of Rights. Consider the sixth amendment to the US constitution, and wonder if “him” and “his” meant only the male gender:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

— Amendment VI, US Constitution (1791)

What does “confront” mean in this context? As the meanings given to words change over time, it would help to have some idea of how the word was used in that era. Fortunately, Samuel Johnson compiled his Dictionary of the English Language in 1755, which was not that many years before US independence, so his entry might be relevant:

[Though Johnson had a low opinion of the Scots, I am not aware he had a similarly low opinion of the colonists in North America.]

To CONFRONT ...

1. To stand against another in full view; to face. ...
2. To stand face to face, in opposition to another. ...
3. To oppose one evidence against another in open court.
4. To compare one thing with another. ...

Definition 3 mentions legal processes (“in open court”) and so ratifiers might have interpreted that part of the amendment to mean that the accused could dispute witnesses’ evidence, and not have the evidence accepted without question – or that the evidence could not be secret. Of course, some might have thought to confront meant a face-to-face meeting, a “confrontation”.

The legal system of the USA was based mainly on the system of English Common Law, and though there were certain differences in English language usages between the colonies (later, the USA) and England, it seems reasonable to say that Johnson’s dictionary is probably relevant for usage in both countries for some time after its publication. More likely than not, other amendments were deemed more important than the sixth, and the right of trial by jury was seen as the crucial clause in the portmanteau sixth amendment (“an impartial jury of the State and district” – where the jury was composed of white men). How many mothers had a hand we do not know.

An originalist interpretation

How does this amendment apply to children? Not at all, one might think, but one would be wrong. In a case involving the sexual abuse of a child, US Supreme Court justice Antonin Scalia has written an illuminating piece on interpreting history in which he asserts the primacy of the written word over the humane treatment of people. In the abuse case the original trial court judge decided that the child claiming abuse should only testify in the presence of the two counsel (with the accused person, the judge, and the jury watching over closed-circuit television). The case was appealed, reaching the US Supreme Court (Maryland v Craig, 1990) which found the original trial constitutional even though the sixth amendment says the accused has the right to be confronted with witnesses against him – though we have seen that the meaning is not clear, and the child was “her”. Scalia dissented.

Scalia's argument was:

And there is no doubt what one of the major purposes of that provision was: to induce precisely that pressure upon the witnesses which the little girl found it difficult to endure. ... Now no extrinsic factors have changed since that provision was adopted in 1791. Sexual abuse existed then, as it does now; little children were more easily upset than adults, then as now; a means of placing the defendant out of sight existed then as now ... But the Sixth Amendment nonetheless gave all criminal defendants the right to confront the witnesses against them. [My emphasis]

— Antonin Scalia, A matter of interpretation: Federal courts and the law (1997)

Scalia is imputing to an aggregate a single mind. I think that the provision was designed to make all evidence open, and thus for Scalia to think that the reason was to apply pressure is to read into the amendment something that is not there. Scalia obviously disagrees with my reading of the amendment, so we take different philosophical positions. Who is correct in the philosophy is less important than how the world was changed, and why. Not only is there no clear way to decide on the designers’ intents, because no single person made the decision, but also the ratifiers might not be at one with designers’ intents (whatever they were). Those ratifying the amendments for the Bill of Rights had been presented with twelve possible amendments, of which the first two were not ratified (eventually the second of the original twelve became law as the 27th amendment). The ten that were ratified were taken as a block by each state, and some amendments were, no doubt, considered more important than others. In most cases, for the majority in states voting on ratification, we cannot know who thought what. So who – when ratifying the ten amendments – thought about the implications of children having to confront adults in trials? Not many.

It is true that “sexual abuse existed then”, but much of the abuse was by white males, and most of the abused were slaves or indentured servants. Slaves had no rights under the Bill of Rights, and they rarely if ever were able to prosecute white people. Even if the sixth amendment gave criminal defendants the right to confront witnesses against them, it did not guarantee all persons the right to accuse white wrongdoers – the amendment only protected white people when they were accused by other white people. In 1791, most who had a hand in ratification regarded slaves as property, and therefore without intrinsic rights. Children had no rights themselves, they had no separate standing in law, and any rights they had came through their father (or their parents’ owner) – child labour was the norm for poorer families.

[“And does not the slave system, by denying the slave all legal right of testimony, make every individual owner an irresponsible despot?” (Harriet Beecher Stowe, Uncle Tom’s Cabin, 1852)]

Scalia gives a wonderful example of how a sensible interpretation can be overcome by an ideology or philosophy of reading the words as they are written (without a practical analysis of what happened). Scalia claims the only significant things that have changed from 1791 to the present are: one, society's sensitivity to protect children from trauma (he writes, disparagingly, of “so-called” psychic trauma); and, two, society’s need to have a proper balance between those who have been falsely accused of abuse, and those who have been abused. Think about it. Scalia does not mention significant practical changes to US society such as the end of slavery, the onset of woman suffrage, or other humane extensions to those who are the “people” of the USA – and thus those who can prosecute and can be prosecuted. To talk of a humane society is to differ from Scalia, who believes words and rules overrule compassion. Indeed he thinks words and rules supersede truth and morality, philosophy superseding reality: for example, when talking about a death-penalty case he said “Mere factual innocence is no reason not to carry out a death sentence properly reached.”

[This is a well-known quote that has not been disputed by Scalia, but nobody seems sure where or when it was first made. I guess Scalia knows.]

Truth and morality are superseded under the George W Bush administration’s radical change to jurisprudence, because they have been supplanted by the administration’s interpretation of words and rules. Not only are prosecution witnesses in “enemy combatant” cases often anonymous, but also the evidence is often not available to the accused because of a “State Secrets” claim. The enemy-combatant tribunal process assures little: neither a speedy and public trial by an impartial jury (or any jury), nor being informed of the nature and cause of the accusation. Of course – as the accused are not citizens – some Bush fellow-travellers argue the constitution does not apply to foreigners (including the sixth amendment). They depend on reading of “the people” to mean US citizens, just as at one time it meant white men or (perhaps) white people, so that rights in the constitution are only applicable to US citizens and not to foreigners (or, as they like to emphasize, “aliens”).

Equal before the law

Making such distinctions has a long tradition in US jurisprudence. US Supreme Court justice John M Harlan was morally appalled when Louisiana segregated accommodation in trains by race (Plessy v Ferguson, 1896) though his fellow justices considered the segregation to be acceptable as long as there were “separate but equal accommodations”. He interpreted part of the world in one way (the US constitution), because he wanted to change another part of the world (the situation of those of African descent). In Harlan’s outraged dissent from the majority decision he did not look at realities when he said:

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. [My emphasis]

Harlan’s sentiments were worthy, but he described an idealized constitution, at variance with reality – in 1896, the US constitution did not say all citizens were equal before the law, or there would have been no need for Burn’s mother. Johnson’s definitions of citizen include “1. A freeman of city; not a foreigner; not a slave;” so, by extension, citizens of the USA were freemen, not foreigners or slaves. Furthermore, in the original version of the constitution, a class of people (not of citizens) was clearly defined in an adverse way:

[Article. IV. Section. 2.]

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
...
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

US Constitution (1787)

This class of people was removed from the US constitution by the post-civil-war 13th amendment (6 December 1865) which said “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Automatic US citizenship for those who had been in this class of persons had to wait until the 14th amendment (9 July 1868) “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The original US constitution was not colour-blind but colour-sighted and colour-aware, because a major component was the preservation of slavery to preserve the unity of the states – and slaves were not pale-skinned, they were dark-skinned. Following the path trod by the US’s declaration of independence, the 1787 constitution made distinctions on the basis of colour and race (though never using the words “colour/color” or “race”). These inhumane distinctions were such a basic part of the constitution that they provoked a civil war. The United States had the US constitution, and the Confederate States had their own constitution, based on their reading of the original US version, making explicit in its drafting many distinctions that were implicit in the 1787 original – there were no New England sensibilities to consider. So, we read:

[Article I, Section 2(3)]

Representatives and direct taxes shall be apportioned among the several States which may be included within this Confederacy, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all slaves. ...

Confederate Constitution (1861) [My emphasis]

The US constitution says “three fifths of all other Persons” and those persons were dark-skinned, not pale-skinned. James Madison (in Federalist 54) noted that “our Southern brethren” (and ratifiers) might maintain that slaves were sometimes regarded as persons and sometimes as property. Slaves were not whites and were not on a par with whites, so to consider individual slaves as part (three-fifths?) person and part (two-fifths?) property did not seem so strange. Harlan was wrong in his interpretation not only of what was written in the US constitution but also of what was intended by a majority of designers and ratifiers, though his aims were commendable – his was a humane approach and he wanted to change things.

Classes of persons

In an earlier US Supreme Court case, Chief Justice Roger B Taney was probably closer to the original intentions of designers and to the original understandings of a majority of ratifiers, though his aims were not so commendable. He wrote (Scott v Sandford, 1856):

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

And “The legislation of the different colonies furnishes positive and indisputable proof of this fact.” The generally correct – though reprehensible – arguments in this decision sufficiently aroused people’s feelings of fairness in non-slave states that the Dred Scott case became part of the groundswell against slavery – resulting in a civil war.

There were dissents by others on the court to the majority opinion in Scott v Sandford, and often distinctions were made between circumstances in the United States as a whole and circumstances in the individual states, reinforcing the colour-awareness of the time of adoption. For example, Justice McLean:

In the formation of the Federal Constitution, care was taken to confer no power on the Federal Government to interfere with this institution [slavery] in the States. In the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered in the Constitution. [My emphasis]

Justice Curtis:

The conclusions at which I have arrived on this part of the case are:
First. That the free native-born citizens of each State are citizens of the United States.
Second. That as free colored persons born within some of the States are citizens of those States, such persons are also citizens of the United States. [My emphasis]

In addition, Curtis pointed out that “... in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established”. We will never know just how many “colored” persons voted for the proposed constitution, or whether they thought the constitution was unfair to those who were not white. It is doubtful if many in the slave states were considering “free colored persons” when they voted on ratification, because they lived in the remaining eight of the thirteen original states.

Apart from colour and race, the US constitution established many distinct classes amongst citizens. For example, only the class of people who were born in the USA, and who were at least “the Age of thirty-five Years ” could be president (thus barring Arnold Schwarzenegger, even though he is old enough). John Jay, president of the Continental Congress, had written to George Washington, presiding officer of the Constitutional Convention engineering the US constitution (25 July 1787): “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

This expression of nationalist paranoia was added to the document without discussion, and was subsequently ratified as part of the complete package. Like the letter from Burn’s mother, Jay’s letter changed US constitutional history. Jay was an important social engineer who wrote some of the Federalist Papers, and in his first contribution (2: “Concerning Dangers From Foreign Force and Influence”) we can read a very clear exposition of what many ex-colonists believed, and something that has many contemporary overtones:

I have often taken notice that providence has been pleased to give this one connected country to one united people - a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs,

— John Jay, Federalist 2 (31 October1787)

Papers 2-5 were all written by Jay, and all were on the topic “Concerning Dangers From Foreign Force and Influence”, so it would seem that such considerations were held to be very important – quite rightly, after a war of independence. To those from outside the USA, modern arguments in support of the “natural-born” provision seem somewhat strained, because surely voters can take the place of a person’s birth (and age) into account in making their decisions.6 Incidentally, William Pitt (the younger) was 24 years old when he became British Prime Minister in 1783 – Pitt was sponsored by George III, who was not very popular in the ex-colonies.

[Bill Clinton sold his birthplace in his presidential campaign: there was the film The Man from Hope (Democratic National Convention, 1992) – Clinton was from a place called Hope, Arkansas.]

Only thirty years before Harlan’s morally convenient claim of constitutional colour-blindness, an explicit class was added to the US constitution (after the US civil war) to try to stop the vote being withheld from ex-slaves or the descendents of slaves – males were not only implicitly preferred, but also they were the only people who could be explicitly counted:

... But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

— Amendment XIV, US Constitution (1868) [My emphasis]

And fifty-two years later the distinction, privileging the class of male persons, was finally removed from the US constitution.

Originalist interpretations

We have been looking at what might have been the varying original intentions of those who designed the constitution, and the even more varying original intentions of those who voted on ratification – and the unknown disconnections between the two sets of intentions. There are many varieties of beliefs about how one should unearth these original intentions, with emphasis varying from a strict analysis of the text without appealing to other texts, to a thorough analysis of the text in its historical context – some try to claim that their beliefs or approaches constitute theories, but I think not. Those who hold that original intentions should be paramount in constitutional interpretation are known as “originalists”, and the approach is “originalism”, but there are many approaches and thus many originalisms. Ultimately, choosing between one originalist interpretation (say Harlan versus Taney) often comes down to one’s ideological preference.

A leading contemporary originalist, Justice Clarence Thomas wants to remove all approaches based on reverse discrimination (for example, affirmative action) from US law – his ideological preference – and he uses the Harlan “color-blind” statement to give his preference some form of legitimacy. Unfortunately for Thomas’s case, the original intentions were very much colour-aware, but fortunately for Thomas, to contradict Harlan seems almost racist and so that part of his argument is not examined closely – originalist Thomas does not follow originalist Taney rather he follows Harlan who said what he thought should be the case.

In the US Supreme Court case of Parents involved in community schools v Seattle School District no. 1 (28 June 2007) the arguments were political – for example, Justice Stephen Breyer wrote in his dissent:

The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time. Hence it is important to consider the potential consequences of the plurality’s [majority’s] approach, as measured against the Constitution’s objectives. To do so provides further reason to believe that the plurality’s approach is legally unsound. ... Until today, this Court understood the Constitution as affording the people, acting through their elected representatives, freedom to select the use of “race-conscious” criteria from among their available options. ... Today, however, the Court restricts (and some Members would eliminate) that leeway. I fear the consequences of doing so for the law, for the schools, for the democratic process, and for America’s efforts to create, out of its diversity, one Nation.

[Which then leaves open the question: which “basic values”?]

This an interesting amalgam of ideology (“to create, out of its diversity, one Nation”), and of a form of originalism.(“a practical document that would transmit its basic values to future generations”). Breyer is not usually considered “originalist”, and the court had those who classed themselves as “originalist” (including Thomas and Scalia) but it could be that Breyer’s version of originalism was purer than Thomas’s for this case. As Thomas wrote, concurring with the majority: “Most of the dissent’s criticisms of today’s result can be traced to its rejection of the color-blind Constitution. ... But I am quite comfortable in the company I keep”. To re-state the obvious: neither was the US constitution designed to treat people independently of their colour, nor was it ever considered to be so by those who ratified it.

At the end of his concurrence, Thomas wrote “Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow.” Thomas is talking of practical politics, not of jurisprudence or any theory of a constitution. I have yet to find anything in the US constitution that does not allow racial theories, and in fact the three-fifths rule is a consequence of a racial theory. The US constitution gambled with a racial theory that slaves were property, and the USA as a nation lost its way in the 1860s. Breyer also talks of practical politics, but from a totally different position. Conservative/regressive supporters of the decision were ecstatic:

Clarence Thomas ended by proudly lining up with Justice John Marshall Harlan, who famously dissented from the unjust Plessy v Ferguson decision, declaring, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan is considered a civil rights hero. And Thomas? His greatness is not recognized by his own generation, but history will appreciate him.

— Mona Charen, “SCOTUS Sparks: Reading Thomas”, National Review Online (29 June 2007)

In his concurrence, Thomas claimed that the colour-blind constitution “was the rallying cry for the lawyers who litigated Brown” (Brown v Board of Education, 17 May 1954) but this does not seem to be accurate. The unanimous opinion by the court in the Brown case did not mention colour blindness, and Thurgood Marshall – one of “the lawyers who litigated Brown” – was party to a US Supreme Court opinion (University of California Regents v Bakke, 28 June 1978)9 that said:

Our Nation was founded on the principle that “all Men are created equal.” Yet candor requires acknowledgment that the Framers of our Constitution, to forge the 13 Colonies into one Nation, openly compromised this principle of equality with its antithesis: slavery. ...
...
Against this background, claims that law must be “color-blind” or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot ... let color blindness become myopia which masks the reality that many “created equal” have been treated within our lifetimes as inferior both by the law and by their fellow citizens.

Opinion of Justices Brennan, White, Marshall, and Blackmun, concurring in part and dissenting in part.

[Race could be one of the factors considered in choosing a diverse student body in university admissions but, however, the use of race-based quotas in such affirmative action programs was not permissible.]

Contrary to Thomas’s assertion, Marshall did not believe in a colour-blind constitution and he did not believe in a colour-blind solution. In a separate individual opinion for the Bakke case, Marshall wrote “it is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible” and:

We must remember, however, that the principle that the “Constitution is color-blind” appeared only in the opinion of the lone dissenter. The majority of the Court rejected the principle of color blindness, and for the next 60 years, from Plessy to Brown v. Board of Education, ours was a Nation where, by law, an individual could be given “special” treatment based on the color of his skin.

In the 1954 Brown unanimous opinion, Chief Justice Earl Warren pointed out some problems with an originalist approach:

The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. [My emphasis]

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