My Nikole Hannah-Jones Problem — and Ours

By Andre Archie

Thursday, April 04, 2024

 

Nikole Hannah-Jones in her recent New York Times Magazine essay, “The ‘Colorblindness’ Trap,” laments the Supreme Court’s ruling, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, that race-conscious admissions programs at Harvard and the University of North Carolina at Chapel Hill are unconstitutional. The nearly five-decade-old policy of affirmative action is now unconstitutional. And rightly so. It took a majority of the justices on the Court much too long to understand what Justice John Marshall Harlan understood in 1896 in his lone dissent in Plessy v. Ferguson. In the dissent, Harlan clearly explained the relationship between color-blind principles and the 14th Amendment of the United States Constitution:

 

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

 

Hannah-Jones goes to great lengths to show that the jurisprudence of transition to a color-blind approach to the application of law is detrimental to race relations, and especially to the descendants of American slavery — black Americans. She does this by giving a rather quick and highly selective reading of the 14th Amendment and its equal-protection clause. Her ultimate position is that the use of race-conscious policies for addressing the negative social and material effects of slavery suffered by black Americans is consistent with the spirit and letter of the 14th Amendment.

 

Hannah-Jones’s color-conscious approach to the Constitution commences with a question that frames her entire argument: “How does a white-majority nation, which for nearly its entire history wielded race-conscious policies and laws that oppressed and excluded Black Americans, create a society in which race no longer matters? Do we ignore race in order to eliminate its power, or de we consciously use race to undo its harms?”

 

She decidedly answers that, yes, race should be used in public policy and in the application of law to correct for past discrimination against black Americans:

 

Racial progress in the United States has resulted from rare moments of national clarity, often following violent upheavals like the Civil War and the civil rights movement. At those times, enough white people in power embraced the idea that racial subordination is antidemocratic and so the United States must counter its legacy of racial caste not with a mandated racial neutrality or colorblindness but with sweeping race-specific laws and policies to help bring about Black equality. [Italics mine]

 

One of the examples she uses to illustrate just how opposed the 19th-century Radical Republicans were to a color-blind or neutral approach to the amelioration of the condition of the newly freed black slaves is the Freedmen’s Bureau Act of 1865. According to her reading of the historical record, the bureau was established by Congress as a race-conscious agency specifically to provide material, educational, and legal support to ex-slaves. She cites other examples as well to illustrate how race-conscious policies have been wielded in our nation’s past to achieve equality guaranteed by the 14th Amendment.

 

Given her reading of the Constitution, one might be led to believe that the ratifiers of the amendment intended to codify two opposing conceptions of equality. On one hand, Hannah-Jones claims that the equal-protection clause of the 14th Amendment prohibits laws that subordinate blacks through any classification to harm or burden on the basis of race. On the other hand, she claims that the amendment permits laws designed to undo the effects of past discrimination and thereby help blacks. Accordingly, the 14th Amendment “permits consideration of race to achieve its goals” of equal protection. Which is to say that law that discriminates on the basis of race is considered lawful as long as it discriminates for the sake of equality.

 

What all of this amounts to is a “positive” type of discrimination. This bifurcated reading of the 14th Amendment is referred to as the “antisubordination” view. There is no factual basis to it in the text of the 14th Amendment, but it informs Hannah-Jones’s reading of the Constitution and her racialized worldview. Most disheartening, the antisubordination view is widely embraced by anti-color-blind advocates in academia and by legal progressives such as Justice Ketanji Brown Jackson and Justice Sonia Sotomayor.

 

Hannah-Jones cites the Freedmen Bureau’s Act to show that, after the end of slavery, Congress promoted race-conscious policies to end racial inequality, but that interpretation isn’t consistent with the historical facts. The Freedmen’s Bureau Act applied to white refugees as well as to newly freed men and their children, so the material support that the act stipulated wasn’t exclusive to blacks. As Professor Michael B. Rappaport has pointed out in “Originalism and the Colorblind Constitution” in the Notre Dame Law Review, and as Justice Clarence Thomas cites in his concurring opinion in Students for Fair Admissions, some blacks when the act was passed were not former slaves, rendering the designation “freedmen” a not sufficiently inclusive stand-in for race. More importantly, the congressional debates in favor of the Freedmen’s Bureau Act showed no such understanding of equality as the one imparted to them by Hannah-Jones. This is made clear in the following exchange in the first session of the 39th Congress:

 

The honorable Senator from Massachusetts says that all men in this country must be equal. What does he mean by equal? Does he mean that all men in this country are to be six feet high, and that they shall all weigh two hundred pounds, and that they shall all have fair hair and red cheeks? . . . Is it that they shall be equally rich and equally jovial, equally humorous and equally happy? . . . What is meant by equality, as I understand it, in the language of the Declaration of Independence, is that each man shall have the right to pursue in his own way life, liberty, and happiness. . . . It is not that he shall receive the especial favors of the community in any way.

 

In other words, some people are not more equal than other people when it comes to the law.

 

Contrary to Hannah-Jones’s claim, the Freedmen’s Bureau Act was clearly in line with the color-blind view. Put simply, the equal-protection clause of the 14th Amendment means what it has always meant, that “all citizens are equal before the law.” In the wake of the Supreme Court’s ruling that affirmative action is unconstitutional, it’s now a matter of embracing the color-blind view wholeheartedly in all sectors of American society.

 

Hannah-Jones is having none of it. She wants America to redouble its efforts for black Americans along the lines laid out by President Lyndon Johnson in his 1965 commencement address at Howard University — before affirmative action got mired in diversity at the expense of the black descendants of slavery. As Hannah-Jones puts it:

 

So we, too, must shift our language and, in light of the latest affirmative action ruling, focus on the specific redress for descendants of slavery. If Yale, for instance, can apologize for its participation in slavery, as it did last month, then why can’t it create special admissions programs for slavery’s descendants?

 

With the demise of affirmative action, it’s understandable why Hannah-Jones would try to argue that she, in fact, is on the right side of history when it comes to the constitutional justification of color-conscious public policy in our nation’s efforts to correct for past discrimination, as the four liberal justices argued in Bakke v. California in 1978 (and never mind the fact that Title 6 of the Civil Rights Act of 1964 prohibits race-conscious admission policies at schools receiving federal funds). Ultimately, Hannah-Jones’s argument falls on deaf ears for most Americans who strive to be color-blind and no longer see black Americans as exceptional for having had ancestors who were enslaved. That’s not to say that most Americans are indifferent to our racial past. Quite the opposite. It’s to say that black Americans as a group have done an astonishing job within the circumstances in which they initially found themselves — but so have many other ethnic groups.

 

With this in mind, it’s imperative that we not forget that American principles are exceptional, not ethnic or racial groups. Perhaps Hannah-Jones should be reminded that what made the 13th Amendment in particular exceptional among the Civil War amendments was that, in abolishing slavery, it gave Congress new powers to “enforce” the amendment “by appropriate legislation.” What the amendment’s “appropriate” clause amounted to, according to constitutional scholar Akhil Reed Amar in his book America’s Constitution: A Biography, is that it “allowed Congress to legislate not merely against slavery itself, but against all the ‘badges’ and relics of a slave system.”

 

In my estimation, Hannah-Jones and those who sympathize with her efforts to cast black Americans as forever in need of various types of racial remediation are wanting to pin anew those very badges and relics on successive generations of black Americans. Thankfully, the Supreme Court in Students for Fair Admissions has finally acknowledged the unexceptional idea that black Americans are equal before the law, like every other American.

 

Those of us on the side of color-blindness understand that race as an ascriptive quality isn’t meritorious. Character, culture, and effort are meritorious. The scales of success or opportunity should not be tipped in favor of black Americans at the expense of other Americans merely because some of us descend from slaves. The scales of success should be tipped in favor of merit. This approach to merit, like color-blindness itself, is aspirational, but it’s certainly a worthy goal to keep in mind constantly and to strive toward in a country as diverse as the United States of America. There is no other option.