The Future of the Fourteenth Amendment and International Human Rights Law: The Black Heritage Trail

Abstract

This paper focuses on the Due Process Clause of the Fourteenth Amendment, through which certain guarantees of the Bill of Rights have been applied to the states, and the Equal Protection Clause, through which certain forms of discrimination have been held unconstitutional, from the perspective of the Black Americans who were the Amendment's original intended beneficiaries. My thesis is that while it was a good idea to subject the states to at least some federal standard and to require at least a modicum of formal equality, the history of the Amendment's jurisprudence remains a story of too little, too late. It has never righted the wrongs it promised to address, and it is unlikely, without more, that it will ever do so. Blacks remain economically disadvantaged; the overwhelming majority of Americans live in segregated neighborhoods; and, as Justice Ginsburg noted in her concurring opinion in Grutter v. Bollinger, racial bias remains pervasive. There are nice markers now, but the Black Heritage Trail has not led to equality.

Therefore, for the same reason it was a good idea to subject the states to a federal standard, it would be a good idea to subject the United States to an international standard. For the same reason it was a good idea to require a base line of formal equality, it would be a good idea to require courts to apply a contextualized and historicized conception of "equality" in a globalized world. Drawing on international human rights treaties already ratified by the United States, such a conception of equality would recognize racism not only as a factor in colonialism (and neo-colonialism) but also in the ongoing economic subordination of Black Americans.

Keywords: human rights, race, economic rights, equal protection