Equal Protection II – Race

I.     Racial Equality – Lonang Perspective. “One race, many nations.”

A.     The nature of race. All people are descended from Adam and Eve, through Noah and his family, thus, are of “one blood,” and one race. There is no such thing as race, except for the human race. See, Genesis 5:1-2; Acts 17:26. In modern usage, what is normally referred to as “race” is really a person’s national origin, or ethnic heritage. Thus, there is one human race, with many nations. See also, Genesis 1:27; Genesis 10:1-32; and Deut. 32:8.

B.     The nature of nations. Genesis chapter 10, often called the table of nations, records the names of Noah’s descendants. The genealogies recorded in that chapter account for the origin of every nation on the earth today. They also indicate that the first nations were groups of people descended from a common ancestor.

1.     The first nations were composed of people who were members of the same family line following the Noahic flood. Babel account (Genesis 11) – people were scattered by family groups. Individual families were kept intact.

2.     The first nations had a unity of biological and political nationality. That is, all the political participants of each nation shared a common ancestry.

3.     Modern nations, for the most part, no longer have a unity of national origin and citizenship. People with different ethnic heritages may be citizens of the same nation.

C.     National distinctions. There is still a place for legitimate lonang distinction among nations. America’s affairs with other nations and with citizens of other nations have always been governed by rules that protect the political integrity of the national and state governments. Some discrimination is permissible to the extent it respects God’s order of the nations. Legal equality does not eliminate national distinctions for all purposes, because God instituted nations, not men.

1.     No distinctions based on national origin. No civil ruler may be a respecter of persons based on national origin for any purpose whatsoever. No person may be denied any inalienable (God-given) or civil (man-created) rights based on national origin. As God is no respecter of persons, so nations must administer the law without respect to national origin. See, Num. 15:13-16,27-31; Col 3:11; Gal 3:28; Lev 24:17-22.

2.     No distinctions as to inalienable rights. Non-citizens who reside in the nation cannot be denied the inalienable rights available to all citizens. See, Leviticus 19:33-34; Numbers 15:16. Historically, such rights were referred to as “ordinary” legal rights, or legal “privileges and immunities.”

3.     Some distinctions as to civil rights. A nation may deny non-citizens the civil rights to participate in the political process which belong to citizens. See, Deuteronomy 17:15. Thus, non-citizens (or, aliens) may be denied the rights to vote or hold political office. Similarly, nations may normally bar aliens from entry into that nation.

II.     Historical slavery in America.

A.     Rationale. The most widely accepted basis for American slavery rested on the claim that Negroes were an inferior or subservient “race.” By classifying the slaves as something less than human (i.e., refusing to view a slave as a legal “person”), the ordinary legal rights enjoyed by “white men” could be denied to them without violating the principle of equality contained in the Declaration of Independence. Thus, slavery was based on an incorrect understanding of
race.

B.     English precedent. This happened even though Blackstone had already written that slavery as practiced in England violated the English common law, because to hold absolute power over another’s life or fortune was “repugnant to reason and principles of natural law.”

C.     Remedy. The Fourteenth Amendment’s “equal protection” clause confirms the equality principle that all men are created equally human, and that no distinctions between one group of men or another can legitimately be made if those distinctions rest upon “race,” “color of skin,” or “national origin.”

III.     Modern Rules of Racial Equality. “Many races, not one.”

A.     Strict Scrutiny (Maximum Scrutiny). The law is upheld if it is: 1) necessary to achieve a compelling government purpose; and 2) is narrowly tailored to achieve that purpose. This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated – especially when there is a less burdensome alternative to achieve the government’s goal.

1.     Application. Regulations affecting “fundamental rights” (interstate travel, privacy, voting, and first amendment rights) or involving “suspect classifications” (i.e., race, national origin, and alienage) are reviewed under the strict scrutiny standard.

a.     Burden of Proof. The government has the burden of proof.

B.     Proving discriminatory classification. For strict or intermediate scrutiny to be applied, there must be intent by the government to discriminate. Intent may be shown by:

1.     A law that is discriminatory on its face;

2.     A discriminatory application of a facially neutral law; or

3.     A discriminatory motive behind the law. Note: This third way to show intentional discrimination is the most difficult to prove. A discriminatory effect alone is not enough. The legislature’s discriminatory motive must be shown (e.g., by evidence of a history of discrimination).

C.     Key case studies.

1.     Plessy v. Ferguson. S.Ct. (1896) upholds Louisiana statute providing for separate railway carriages for the white and colored races.

a.     Majority:

(1)     Statute is within state police power.

(2)     This decision is the origin of the “separate but equal” doctrine.

(3)     Q: How many races exist, according to the majority?

b.     Dissent (Harlan):

(1)     “Our constitution is color-blind.”

(2)     Q: How many races does Harlan believe exist?

2.     Brown v. Bd. of Ed. of Topeka. S.Ct. (1954) overturns state statutes requiring racial segregation in public schools.

a.     The doctrine of separate but equal “has no place in public education.”

b.     Segregation viewed as unlawful because it has a detrimental psychological impact on colored children.

c.     Did the Court hold that state racial classifications are inherently unconstitutional? No. Did it hold that the Constitution is color-blind? No.

3.     Loving v. Virginia. Court strikes down state anti-miscegenation statute.

a.     Majority: Purpose of 14th Amend. was to eliminate state sources of “invidious racial discrimination.” “Invidious” = arbitrary or unreasonable.

b.     Stewart (concurring): Criminal laws should be race neutral.

4.     Hirabayashi, Korematsu, Ex Parte Endo. Racial discrimination may be constitutional when exercised as a part of the war powers, but even then, upon a showing of loyalty, an individual cannot be treated as though they were disloyal.

5.     North Carolina State Bd. of Ed. v. Swann. Race must be considered in formulating judicial remedies to segregation.