The crisis of American constitutionalism today turns on the interpretation of the equal protection clause of the 14th Amendment. Since Brown v. Board of Education in 1954, the jurisprudence of something called the "living constitution" has largely replaced the traditional jurisprudence of "original intent." What has ruled the judicial process or the last half century is not what the framers and ratifiers of the original Constitution, as modified by the framers and ratifiers of the amendments, understood their words to mean, but what justices (and litigators) think those words ought to mean. In the Brown case, Chief Justice Warren, speaking for a unanimous Court, declared public school segregation to be in violation of the equal protection clause of the 14th Amendment, because of the irreparable damage it inflicted on the "minds and hearts" of black school children. This damage was asserted on the basis of modern psychology, which was not available to those who framed and ratified the Amendment. Hence it was not asserted on the basis of what the equal protection clause had meant when it was ratified. Warren's opinion in Brown thus cut the jurisprudence of the 14th Amendment—and with it the jurisprudence of the Constitution as a whole—loose from any anchor in the historic meaning of the Constitution. There is no longer any constructive relationship between the Constitution and constitutional law.
In 1896, in Plessy v. Ferguson, the Court decided that "separate but equal" did not violate the equal protection clause, and the South (and not only the South) relied upon this decision in building their systems of racially segregated public schools. The Court's 1896 decision can be explained in part by reason of the fact that the country—and the Western World generally—was then nearly submerged by the "evolutionary" enlightenment. This movement, which dominated the intellectual elites in the universities, the law schools, and the media, denied the story of Creation in the Bible, and rejected the hitherto received idea that "God hath made of one blood all nations of men for to dwell on all the face of the earth." It entertained instead the idea that the races of mankind did not all emerge at the same time from the subhumanity which preceded their humanity. Evolutionary doctrine encouraged the idea that there was a fundamental inequality among the aforesaid races, and this idea virtually relegated to the "dustbin of history" the contrary idea, enshrined in the Declaration of Independence and the Gettysburg Address, "that all men are created equal."
Mr. Justic Harlan's dissenting opinion in Plessy, that the Constitution was colorblind, and that it did not countenance different and unequal classes of citizens, was based upon a belief in the truth of the principle of equality in which the founders and Lincoln had so profoundly believed. But this belief had been buried by progressivism, and has not been resurrected, except by the intellectual heirs of Leo Strauss. On intellectual grounds, it has never been refuted, and ought never to have been abandoned. There is not now, and never has been any such difference between one human being and another human being, or whatever race or color, such that one is by nature the ruler of the other, as any human being is by nature the ruler of any dog or any horse. For this reason, legitimate political authority can arise only by the consent of the governed, and consent can never be given for any reason other than the equal protection of the rights of the governed. Hence equal protection is the foundation of all constitutionalism, even apart from its specific inclusion in the Constitution itself. For more reasons than one, Justice Harlan's dissenting opinion ought to have been the opinion of the Court in 1896; even more ought it to have been the opinion of the Court in 1954. As Professor Edward J. Erler has demonstrated in the pages of the Claremont Review of Books (Summer 2004), the principle of equal protection has never become the opinion of the Supreme Court of the United States, nor has it been favored in the writings of conservative jurists.
Professor Michael M. Uhlmann has defended this non-recognition of the colorblind Constitution ("Correspondence," CRB, Fall 2004) on the ground that there was no political consensus in its favor:
Justice Harlan's differences with his colleagues on the Supreme Court in the 1880s and 1890s mirror the earlier differences within Congress about the nature and scope of federal authority under the 14th Amendment. His dissents in Plessy and the Civil Rights Cases eloquently state the latitudinarian position on legislative intent, but that view cannot easily be ascribed to a majority of the 39th Congress.
I believe the original intent of the 14th Amendment, and of the Congress and the American people who ratified it, can best be understood in the light of the change it effected in antecedent constitutional law. Taney's opinion in Dred Scott was still in effect as the Civil War came to an end. By it Negroes, whether free or slave, could not be citizens of the United States. Although the 13th Amendment abolished slavery, it did not settle the question of Negro citizenship. This was however decided by the opening sentence of the 14th Amendment. "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The intent of this sentence could however be frustrated if it were possible to make distinctions within citizenship, by which some citizens would have more rights, and others less. It was to prevent this that the Amendment went on to declare that "No State shall...deny to any person within its jurisdiction the equal protection of the laws."
The 14th Amendment was intended to drive a stake through the heart of Dred Scott. The heart of that opinion consisted in the assertion that Negroes were so far inferior that they had no rights which white men were bound to respect. This meant that as far as the Constitution was concerned, the distance between whites and blacks was no less than the distance between whites and any other inferior species. A white man had the same right to rule a Negro as he had to rule dog or a horse. Hence according to Taney blacks were not and could not have been included in the proposition "that all men are created equal." Whether or not they were intended to be so included was among the questions most fiercely debated by Lincoln and Douglas. No result of the Civil war was more fundamental than the authoritative assertion of the inclusion of human beings of any color and any ethnicity in the proposition of human equality. A consensus in favor of the colorblind Constitution is provided by the logic of reality and the logic of history.