October 17, 2013
The Declaration of Independence declared that “all men are created equal,” but the U.S. Constitution as originally ratified did not live up to that principle. By political necessity it permitted the continued enslavement of blacks and the attendant oppressive system of racial discrimination. Only after the Civil War, with the ratification of the 13th, 14th and 15th amendments, was this defect remedied, and the last two of those amendments were not meaningfully enforced until the culmination of the civil rights movement nearly a century thereafter.
That, at least, is the common understanding. A different view was expressed at the Supreme Court yesterday by Shanta Driver, lawyer for the unwieldily named Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, or BAMN. In Schuette v. BAMN, the organization is challenging a provision of Amendment 2, a Michigan ballot initiative, that bans racial discrimination at the University of Michigan and other public institutions of higher education. . . .
Driver’s view of the 14th Amendment is a highly eccentric one–one that, as she acknowledges at the end, is without support in the court’s precedents. Even if the justices were to rule in BAMN’s favor–an outcome we think unlikely, for reasons we explained in a July 2011 column–they would not need to adopt Driver’s view that “equal protection of the laws” applies only to members of certain favored races.
Yet while Driver’s position is far outside the legal mainstream, it is well accepted within academia.
That’s true. The Insta-Wife and Insta-Daughter went to a panel at one of my law conferences a few years ago and were surprised to hear someone say that the Fourteenth Amendment doesn’t protect white people, and in fact to go on to say that the entire Bill of Rights shouldn’t apply to white people because they were already privileged. I was unsurprised.