Thread by @AlsoACarpenter

I’d like to say a bit more on this point, viz., different ways of understanding the equal protection clause throughout legal history. Some CRT in practice here.

Thread (long):

https://twitter.com/AlsoACarpenter/status/1405577916310687744

2/ The 14th Amendment, the ostensible basis of the Court’s holding in Brown v Board of Education as well as the basis for most subsequent civil rights legislation, includes the following clause:

"No State shall make or enforce any law which shall abridge the privileges or

3/ "immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the *equal protection of the laws*."

4/ This “Equal Protection Clause” would be interpreted in multiple ways, including what Alan Freeman calls (1) the “means-oriented” interpretation—an entirely valueless, technical, and procedural understanding of the clause, meant only to check legislators from making irrational

5/ (e.g., racial) allocations, (2) the “fundamental right” approach, wherein the court finds within the application of the Amendment a guarantee to every individual of some constitutionally implied right, and (3) a “substantive equal protection” understanding, which includes

6/ color-consciousness, historical context, and remediation. As an example of the last, the Supreme Court declared in 1873 that the purpose of the 14th Amendment was to secure

"the freedom of the slave race, the security and firm establishment of that freedom, and the

7/ "protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” (Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 71 (1873))

And according to the Stauder v. West Virginia decision in 1880,

8/ "The words of the amendment … contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored,—exemption from legal discriminations, implying

9/ "inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." (100 U.S. 303, 307-08)

Jumping forward to the Title VII provisions in the 1964 Civil Rights Act, Congress made clear that the purpose of the act was “to make the victims of unlawful discrimination whole” and,

"requires that persons aggrieved by the consequences and effects of the unlawful employment

11/ "practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination." (118 cong. rec. 7168)

A principle which, if applied consistently, would demand change not only of the formal subordination of African Americans,

12/ but a substantial change in circumstances. The Supreme Court confirmed this substantive intent in Griggs v. Duke Power Co., concluding that

“Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.”

13/ The same is true of the Voting Rights Act of 1965 (and accompanying legal cases) which outlawed poll taxes, literacy tests, and grandfather clauses, all of which effectively disenfranchised African Americans without even mentioning color or race, thus clearly exhibiting

14/ the legislators' and jurists' intentions to substantially re-enfranchise African American voters, not just seek a “neutral,” formal standard. (See also the SCOTUS decisions in Swann v. Charlotte-Mecklenberg Board of Education, Wright v. Council of City of Emporia, and Keys

15/ v. School District no. 1.)

Thus, we see a long history of understanding civil rights and antidiscrimination law as race-conscious, centered on the historical context of past racial injustices, with the intention to not only change people of colors’ subordinated legal status,

16/16 but to redress their subordinated living circumstances—that is, to fix by law what had been broken by law.

But the racial retrenchment following the Civil Rights Movement all but entirely erased this remedial legal thread, just as it had after Reconstruction.