Historical Nonsense in Schuette

In a pending case, Schuette v. Coalition to Defend Affirmative Action, the Supreme Court faces the claim that the Fourteenth Amendment prohibits Michigan and every other state from including, within its constitution, a prohibition on any state racial discrimination, even if such discrimination might favor a racial minority. Several briefs, including a brief filed by 76 professional historians, present evidence allegedly supporting this contention. To my knowledge, no participant in the case has discussed the historical evidence most relevant to this claim: the 1868 constitutions of South Carolina and Louisiana. In both of those states, the majority of the citizens were African Americans. In both states, a majority of the delegates to the constitutional conventions were African Americans. And both conventions adopted prohibitions on racial discrimination– even (and especially) discrimination that might favor the white minority in those states. Both these constitutions were approved by a largely Republican, African-American electorate.

Louisiana’s constitution, like Michigan’s today, expressly banned every “distinction of race, color, or previous condition” in its public education system. More on point, South Carolina adopted a comprehensive ban: “Distinction on account of race or color, in any case whatever, shall be prohibited.”

To my knowledge, there is no evidence that anyone contended that such provisions would deny to the white minority in those states the equal protection of the laws, abridge any privilege or immunity of citizenship, or violate the Constitution in any other way. Rather, the congressional drafters of the Amendment tacitly approved these constitutions, for they voted overwhelmingly to readmit these states with these new constitutions.
This evidence, by itself, is perhaps not decisive, but it weighs heavily against the contention that the Fourteenth Amendment was intended to prohibit the states from adopting color-blind constitutions.

David Upham

David Upham is associate professor of politics at the University of Dallas.

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  1. gabe says

    great piece.
    I looked up the “76” – some names seemed unsurprising – but i was surprised to see James Oakes on the list.
    Is this unexpected for him? Just curious.
    anyway, thanks for the link – will need for the entertainment value.

    take care

  2. David Upham says

    Gabe–thanks very much! I don’t know much of James Oakes’s work. I bet a lot of folks sign these things somewhat casually.

  3. Gary H says

    The Constitution of 1866, as adopted by the joint resolution of the Council and House of Representatives of the Territory of Nebraska, expressly provided for “whites only” suffrage. In the act of the 39th Congress admitting Nebraska as a state (14 Stat. 391-2), section 3 provided in pertinent part: “That this act shall not take effect except upon the fundamental condition that within the State of Nebraska there shall be no denial of the elective franchise, or of any other right, to any person by reason of race or color, excepting Indians not taxed.” During its first session, that same 39th Congress had proposed by resolution an amendment to the US Constitution that we know as the 14th Amendment. 14 Stat. 358-9.

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