BY MARK A. GRABER2
The law of race equality has evolved in the United States in ways that provide greater context for contemporary claims that Supreme Court justices are responsible for implementing a “color-blind” Constitution with an equal protection clause that requires strict scrutiny for all racial classifications. That the equal protection clause provides the textual hook for evaluating the constitutionality of race conscious measures, the Supreme Court of the United States is the institution primarily responsible for implementing the equal protection clause, and strict scrutiny is the test or standard the Supreme Court uses to determine whether race conscious measures pass constitutional muster are staples of contemporary constitutional law.
These practices date from the Supreme Court’s decision in Korematsu v. United States.3 The law of racial equality before Korematsu was structured by different textual hooks, alternative conceptions of institutional authority and other tests or standards for evaluating race conscious measures. The Republicans who framed the post-Civil War Amendments initially regarded the Thirteenth Amendment as the foundation for the constitutional law of racial equality. Constitutional authorities for most of the late nineteenth century thought Congress was responsible for determining how to implement the constitutional obligation to end the slave system and make persons of color full citizens. The constitutional law of the early twentieth century distinguished between race discriminations, which were per se unconstitutional, and race distinctions, which were constitutional when reasonable.
These practices belie Whiggish histories that regard the contemporary constitutional law as an unequivocal improvement on past practice, even as many believe greater improvements are still necessary. A constitutional law of racial equality rooted in the Thirteenth Amendment is more open to race conscious measures designed to benefit persons of color and has no state action limit on federal laws that mandate racial equality. Making Congress the first mover is more conducive to racial equality whenever the national legislature is more supportive of racial equality than the national judiciary. Justices in the early twentieth century, at least according to their announced principles, would have declared unconstitutional the military order sustained in Korematsu because they were committed to prohibiting all race discriminations.
This essay explores the constitutional law of explicit race conscious measures, a myopia that exaggerates the egalitarian commitments of the practice before Korematsu. Racial hierarchies in the United States in the past and at present are as often structured by the refusal to acknowledge race as by what Americans do when they explicitly acknowledge race. Americans have often shamefully justified their willingness to use race conscious measures that discriminate against persons of color. Americans have even more shamefully refused to see race discrimination when government employs ostensibly neutral measures in ways that oppress, often by intention, Black Americans and other persons of color.
Five cases or sets of cases capture the law of explicit race classifications at different times in American history. Judge William Cranch’s opinion in Costin v. Corporation of Washington (1821)4 articulated the principles that structured the status of citizens of color under antebellum constitutional law. Chief Justice Salmon Chase’s brief opinion on circuit in In re Turner5 captured the constitutional law of race equality during Reconstruction. The Strauder v. West Virginia/6 Ex parte Virginia/7 Commonwealth of Virginia v. Rives8 trilogy provided the framework for thinking about race equality in the late nineteenth century. Plessy v. Ferguson9 inaugurated early twentieth century practice. Korematsu was the first step in contemporary practice. Each regime had a distinctive understanding of the textual hook for the law of race equality, the institution responsible for securing race equality, and the standard for judging whether race discriminations passed constitutional scrutiny.
Costin v. Corporation of Washington (1821) sustained the onerous restrictions that the corporation governing Washington D.C. placed on persons of color. Persons of color were required to register, provide bonds for good behavior, and obtain certificates from three white persons vouching for their character and employment. In sharp contrast to Dred Scott v. Sandford,10 Costin assumed that persons of color were citizens of the United States entitled to the rights of citizens of the United States.11 Governing officials could nevertheless make legal distinctions among citizens. Race was one important basis for legal distinctions. Judge Cranch stated, “if there be a class of people more likely than others to disturb the public peace, or corrupt the public morals, and if that class can be clearly designated, [society] has a right to impose upon that class, such reasonable terms and conditions of residence, as will guard the state from the evils which it has reason to apprehend.”12
Costin emphasized arbitrary laws rather than suspect classifications.13 No legal distinction was inherently more suspect than another or required legislators to meet a higher standard of proof either as the end to be achieved or the relationship between the discrimination and that end. The constitutionality of legal distinctions and discriminations depended on whether they were based on real differences between the regulated and unregulated classes and whether the distinction or discrimination served the public interest. Judges enforced the constitutional law of equality. By the Civil War, a well-developed state jurisprudence existed establishing the basic parameters of constitutional equality. An examination of race cases only would barely detect this commitment to judicial power. Courts sustained almost all race conscious measures that were adjudicated before the Civil War.
No consensus developed in the antebellum United States on the best textual hook to hang constitutional commitments to equality. Judge Cranch did not point to any provision in any constitution when claiming, “the constitution gives equal rights to all the citizens of the United States.”14 State courts were promiscuous when providing the constitutional underpinnings for equal rights. State decisions were rooted in general equality provisions, in “due process” or “law of the land” provisions, on constitutional provisions prohibiting exclusively privileges or special laws, on separation of powers grounds or on general constitutional principles.
In re Turner held that the Maryland indenture law requiring employers to educate only white apprentices violated the Civil Rights Act of 1866, which was a constitutional exercise of congressional power under Section Two of the Thirteenth Amendment.15 The Thirteenth Amendment supplied the textual hook for this decision. Congress was the institution primarily responsible for implementing the constitutional ban on slavery. Congress was empowered under the Thirteenth Amendment to take pass any legislation that helped transform former slaves into full citizens.
The logic of Thirteenth Amendment foundations for the constitutional law of racial equality supported race conscious programs that benefitted persons of color as well as anti-discrimination measures.16 The fundamental question in the Turner regime was whether the law undermined slavery, the slave power or the slave system. Laws that prevented discrimination against persons of color and laws that provided specific benefits to persons of color were both constitutional means for undermining the slave system and making former slaves full citizens of the United States.
The Thirteenth Amendment law of racial equality did not have a state action limitation. Chase in Turner declared the indenture unconstitutional, not the state law mandating different treatment for white apprentices and apprentices of color. “The alleged apprenticeship in the present case is involuntary servitude,” he maintained, “within the meaning of the words in the amendment.”17 Chase then observed “the indenture” violated the Civil Rights Act because that private bargain “did not contain important provisions for the security and benefit of the white apprentices, which are required by the laws of Maryland in indentures of white apprentices.”18
The Supreme Court in Strauder officially made the Fourteenth Amendment the constitutional foundation for the law of racial equality when striking down a West Virginia law that banned persons of color from sitting on juries. Justice William Strong’s majority opinion, after quoting the text of Section One, declared, “What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons?”19 Strauder broke from the Turner regime by adopting what later became known as a “banned categories” approach20 rather than a ban on discrimination against persons of color. Congress, when implementing the
Thirteenth Amendment’s mandate for racial equality, had passed race conscious measures that favored former slaves, while insisting that persons of color enjoy the civil rights of white persons.21 Strauder and subsequent cases ruled out legislation making African Americans the “special favorites of the law.”22 A constitutional law of racial equality rooted in the equal protection clause of the Fourteenth Amendment was designed to secure a “perfect equality of civil rights” rather than provide former slaves and persons of color with the rights and resources necessary to become full American citizens.
The late Strauder regime introduced the state action doctrine to American law.
The Fourteenth Amendment that provided the foundation for the Strauder regime declared, “No State shall . . . deny
to any person within its jurisdiction the equal protection of the laws.” The majority opinion in The Civil Rights Cases emphasized the insertion of “No State” in Section One. Justice Joseph Bradley insisted, “It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.”23
Ex parte Virginia, decided on the same day as Strauder, introduced legislative primacy to the constitution law of
the United States when declaring, “It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. . . . It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation.”24 The constitutional law of race equality under legislative primacy requires that Congress be the first mover. Litigants may assert rights under the equal protection clause only after Congress passes a statute implementing the equal protection clause.
Plessy further entrenched the Fourteenth Amendment as the textual hook for the constitutional law of racial equality. Justice Henry Billings Brown’s majority opinion cast aside arguments that race discrimination was an aspect of slavery or a slave system. “Slavery,” he said when rejected
a Thirteenth Amendment attack on a Louisiana law mandating race segregation in street cars, “implies involuntary servitude,—a state of bondage, the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for be benefit of another, and the absence of a legal right to the disposal of his own person, property, and services.”25 The Fourteenth Amendment was Brown’s source for the constitutional commitment to “the absolute equality of the two races before the law.”26
The Plessy regime divided the law of racial equality into the law of race discriminations and race distinctions. Race discriminations were per se unconstitutional. Such a law, the influential Race Distinctions in American Law declared, “necessarily implies partiality and favoritism.”27 Race distinctions were constitutional if they were based on real differences between the races and promoted the good of both races. Race Distinctions explained, “There is no discrimination so long as there is equality of opportunity, and this equality may often be attained only by a difference in methods.28 Brown’s opinion in Plessy anticipated this distinction between race discriminations and race distinctions. He declared, “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”29
The Plessy regime abandoned the Strauder regime’s eroding institutional commitment to legislative primacy in race cases. Plessy v. Ferguson was the first case discussing the constitutional law of racial equality in which the justices discussed only the meaning of Section One of the Fourteenth Amendment. Justice John Marshall Harlan’s dissent in Plessy assumed that federal courts had independent authority to implement Section One of the Fourteenth Amendment.30
Justice Henry Billings Brown’s majority opinion assumed, with Harlan, that the sole issue in Plessy was whether segregation was consistent with the post-Civil War Constitution and not whether the judiciary rather than Congress was empowered to make that determination.31
Korematsu introduced the strict scrutiny test to American constitutional law. The first substantive paragraph of Justice Hugo Black’s majority opinion declared:
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. . . . Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.32
This strict scrutiny test, as applied in Korematsu, was arguably less protective of Japanese Americans than the standards laid down during the Strauder and Plessy regimes. The Japanese exclusion order was a race discrimination rather than a race distinction. The Korematsu regime was the first to interpret the post-Civil War Constitution as permitting constitutional authorities to engage in race discrimination when that race discrimination served a public interest, albeit a very pressing public interest.
Korematsu improved upon standards the Plessy regime employed when considering race classifications, but that improvement was limited and may have been more theoretical than real. Black’s opinion suggests that only race discriminations that advance vital social purposes pass constitutional muster. Preventing racial mixing on street cars might not meet that standard. Still, Korematsu did not overrule Plessy. A racist southern constitutional decision maker during the first half of the twentieth century would have little difficulty finding that preventing racial amalgamation or fights between the races was a “pressing public necessity.”
The resulting Fourteenth Amendment law of racial equality was not as friendly to affirmative action programs as Thirteenth Amendment law had been during Reconstruction. In sharp contrast to the Turner regime, which maintained race conscious programs were a legitimate means for implemented the Thirteenth Amendment’s commitment to ending both slavery and the slave system, the Korematsu regime insisted on a race neutral interpretation of the race neutral phrase “equal protection.” Justice Lewis Powell’s crucial opinion in Regents of University of California v. Bakke stated, “[t]he guarantees of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”33
All the judges on the Korematsu court took for granted that federal courts were responsible for determining the constitutional law of racial equality. The majority opinions and dissents quarreled over whether justices should defer to the military judgment that excluding Japanese from the West Coast was necessary to prevent a possible Japanese invasion. None suggested that implementing the constitutional lawof racial equality was primarily a legislative task. Ironically, the Plessy regime’s abandonment of legislative primacy made possible the Supreme Court’s decision in Brown v. Board of Education.34 Under the Turner and Strauder regimes, Congress had to be the first mover when the constitutional law of racial equality was established. No congressional legislation was on the books when Brown was decided. Justice Robert Jackson’s comment in oral argument, “I suppose
that realistically the reason this case is here was that action couldn’t be obtained from Congress,”35 reflected the Plessy and Korematsu regimes’s commitment to permitting federal courts to be the first mover in determining the constitutional law of racial equality.
COMPARED TO WHAT
Whether Korematsu or the Korematsu regime should be celebrated depends on what the Korematsu regime is being compared to. Korematsu fares well when compared to the Costin regime, which permitted states to make race discriminations on the grounds that persons of color were racially inferior to white people. The comparison between the Korematsu regime and the Turner, Strauder, and Plessy regimes is more complicated. Each of the latter three regimes has at least one element that arguably better promotes racial equality than the Korematsu regime. The Plessy and Strauder regimes treat race as a banned category. The Strauder and Turner regimes require Congress to be the first mover in implementing the post-Civil War Amendments. The Turner regime treats the Thirteenth Amendment as the textual hook for the constitutional law of racial equality. These differences make a difference, particularly with respect to the law of affirmative action and the state action doctrine. Whether the Korematsu regime improved upon these past regimes depends on whether one thinks affirmative action promotes racial equality, whether some version of the state action doctrine is an appropriate limit on the constitutional commitment to race equality, and what institution in general at present is most likely to best implement the constitutional commitment to race equality.
- The following is excerpted from Mark A. Graber, “Korematsu’s Ancestors,” 74 Arkansas Law Review 425 (2021).
- Regents Professor, University of Maryland Carey School of Law.
- 323 U.S. 314 (1944).
- F. Cas. 612 (C.C.D.C. 1821)
- 1 Abb. U.S. 84 (C.C.D. Mary., 1867)
- 100 U.S.303 (1879).
- 100 U.S. 339 (1879).
- 100 U.S. 313 (1879).
- 163 U.S. 537 (1896).
- 60 U.S. 393 (1856)
- Costin at 613. Compare Dred Scott, at 403–27 (1856).
- Costin at 613
- See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Duke University Press: Durham, NC, 1993), pp. 19–55
- Costin at 613. Compare Dred Scott, at 403–27 (1856)
- Turner at 339.
- This paragraph relies heavily on Eric Schnapper, “Affirmative Action and the Legislative History of the Fourteenth Amendment,” 71 Virginia Law Review 753 (1985).
- Turner at 339.
- Turner at 339.
- Strauder v. West Virginia, 100 U.S. 303, 307–08 (1879).
- See Ronald Dworkin, Law’s Empire (Harvard University Press: Cambridge, MA 1986), pp. 383–84.
- See notes ___, above, and the relevant text.
- Civil Rights Cases, 109 U.S. 3, 25 (1883).
- Civil Rights Cases, at 11.
- Ex parte Virginia, at 345–46.
- Plessy at 542.
- Plessy at 543.
- Gilbert Thomas Stephenson, Race Distinctions in American Law (D. Appleton and Company: New York, 1910), p. 4.
- Stephenson, Race Distinctions, p. 3.
- Plessy at 544.
- Plessy at 553 (Harlan, J., dissenting).
- Plessy at 542.
- Korematsu at 216. See Hirabayshi at 111 (Murphy, J., concurring) (“Except under conditions of great emergency a regulation of this kind applicable solely to citizens of a particular racial extraction would not be regarded as in accord with the requirement of due process of law contained in the Fifth Amendment”)
- 438 U.S. 265, 289–90 (1978).
- 347 U.S. 483 (1954).
- Schmidt, “Section 5’s Forgotten Years,” p. 65 (quoting Robert Jackson). Jackson repeated this claim in his unpublished draft concurrence in Brown. He declared, “We are urged . . . to supply means to supervise transition of the country from segregated to nonsegregated schools upon the basis that Congress may or probably will refuse to act. That assumes nothing less than that we must act because our representative system has failed.” Schmidt, “Section 5’s Forgotten Years,” p. 65.