Constitutional Law — Do Black Lives Matter to the Constitution?

40 Pages Posted: 20 Nov 2018

See all articles by Bruce K. Miller

Bruce K. Miller

Western New England University School of Law

Date Written: 2018

Abstract

Do Black lives matter to the Constitution? To the original Constitution, premised as it is on white supremacy, they plainly do not. But do the post-Civil War Amendments, sometimes characterized as a "Second Founding," provide a basis for a more optimistic reading? The Supreme Court's application of the Fourteenth Amendment's Equal Protection guarantee, shaped by the long discredited (and now formally overruled) decision in Korematsu v. U.S., has seriously diminished the likelihood that our basic law can redeem the promise of racial equality. Korematsu's embrace of a purely formal account of racial discrimination, its blindness to the history and present reality of societal discrimination against racial minorities and its identification of racial antagonism (or animus), as opposed to racial subordination, as the primary evil evidenced by discriminatory laws together assure a very limited reach for the Equal Protection guarantee as it applies to race. By contrast, Justice Ginsburg's approach to sex inequality (set out in her opinion in U.S. v. Virginia), by distinguishing measures which enforce the political, economic, or social inferiority of women from those which dissipate such inferiority, offers a more promising account of Equal Protection. Application of her approach to the Constitutional law of race discrimination would markedly improve the prospects for achieving the Second Founding's aspiration to end racial subordination in our country.

Keywords: blacklivesmatter, black lives matter movement, constitutional law, second founding, fourteenth amendment, racial equality, race relations, african americans

Suggested Citation

Miller, Bruce K., Constitutional Law — Do Black Lives Matter to the Constitution? (2018). Western New England Law Review, Vol. 40, p. 459, 2018. Available at SSRN: https://ssrn.com/abstract=3269892

Bruce K. Miller (Contact Author)

Western New England University School of Law ( email )

1215 Wilbraham Road
Springfield, MA 01119
United States

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