At NRO Bench Memos, Kurt Lash: The State-Citizenship Clause and the Colorblind Constitution. From the introduction:
The Supreme Court is currently considering whether racial-preference admissions programs at the University of North Carolina violate the equal-protection clause of the 14th Amendment. Students for Fair Admissions v. University of North Carolina is one of two cases before the Court this term that will decide whether publicly administered or funded colleges and universities may continue to use an applicant’s race as a factor in deciding to grant or deny an offer of admission.
Although the Supreme Court is right to consider whether the 14th Amendment established a colorblind Constitution, past decisions in this area have based their rulings on a reading of the equal-protection clause. A close reading of the historical materials, however, suggests that it is the state-citizenship clause that forbids race-based categorizing of American citizens.
The state-citizenship clause has long been ignored by courts and commentators. But the people who ratified the Fourteenth Amendment in 1868 understood it as constitutionalizing the bedrock principle of race-neutrality in matters involving local civil rights, including any state-secured local right to a public education. Race-based advantages or disadvantages in the distribution of such benefits is the definition of “caste based” discrimination forbidden by the original understanding of both the national- and state-citizenship clauses. In this way, Brown v. Board of Education is better understood as a case involving the equal rights of state citizenship and Bolling v. Sharpe is better understood as involving the equal rights of national citizenship.
Below is a brief sketch of the history and original understanding of the state-citizenship clause. The full argument and historical sources are presented in my forthcoming article, “The State Citizenship Clause,” to be published by the Pennsylvania Journal of Constitutional Law. The bottom line is simple: The state of North Carolina may not advantage or disadvantage state or national citizen applicants to the University of North Carolina on the basis of race….
(Thanks to Andrew Hyman for the pointer.)
A related argument on the national citizenship clause is in this article by Ryan Williams, discussed by Justice Thomas in U.S. v. Vaello-Madero.
Posted at 6:09 AM