Mike Ramsey recently blogged about Eric Segall’s op-ed in the LA Times defending affirmative action, in which Professor Segall pointed out that “the Equal Protection Clause does not even mention race.” I would like to point out that even though the EPC does not explicitly address race, federal statutes certainly do. In particular, check out 42 USC 1981:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
As someone committed to actual legal texts, I don’t really much care whether the framers of this federal statute were taking aim at race-based affirmative action, or even whether they practiced race-based affirmative action (or instead practiced affirmative action based upon other factors such as previous condition of servitude). Justice Robert Jackson once made a very pertinent observation: “even the North never fully conformed its racial practices to its professions,” and it is very clear that 42 USC 1981 professes to ban a great deal of race-based discrimination.
I anticipate that readers may object like this: Hyman, don’t you know that federal statutes are irrelevant here because Congress only has an enforcement power under the Fourteenth Amendment via Section 5, and so Congress lacks power to decide or expand what Section 1 means? To which my response is this: not so fast. In some places, the Fourteenth Amendment specifically refers to things within congressional control quite apart from Section 5, such as naturalization in Section 1, and removal of disabilities in Section 3, for example. Similarly, the Equal Protection Clause (EPC) refers to the equal protection “of the laws” which very deliberately includes both state and federal statutes. I am not saying that 42 USC 1981 is self-executing, or even that it establishes a presumptive meaning of the EPC, but it does authorize the U.S. Supreme Court to identify and extract principles of equal protection applicable against the states.
Neither the EPC alone, nor 42 USC 1981 alone, requires the U.S. Supreme Court to ban race-based affirmative action by the states, but together they do exactly that. Congress has a meaningful role here, and I hope some day the Supreme Court will recognize that Congress has more than a menial and subservient enforcement role under the EPC. Professor Segall is right that the EPC does not mention race, but the EPC is not the complete legal text at issue here.
Posted at 9:52 AM