Reinterpreting the 14th Amendment


By Alex Swanson

A professor of mine recently reminded me that we belong to one of the first few American generations to exist separately from either slavery or mandated segregation. The struggle for civil rights is not at all far-removed from our time.

Here is where I should suggest that while racial groups are declared equal by law, they do not enjoy equal treatment. But I cannot even cling to whatever miniscule amount of equality may have been suggested from such a statement. A recent paper co-authored by University Law Professor Robin Kar makes that apparent.

Kar illuminates a glaring issue regarding the manner in which the Supreme Court currently interprets the Equal Protection Clause. As it stands, it does not protect against governmental acts that unintentionally lead to discrimination. Yet, we well know that a vast amount of discriminatory acts are completed totally unaware of the prejudice that propels them.

Kar’s paper, co-authored with John Lindo of the University of Chicago and titled, “Race and the Law in the Genomic Age: A Problem for Equal Treatment Under the Law,” asserts that an acceptance of folk biology far too frequently seeps under our consciousness. This process results in our categorization of a person’s race based on sight and subsequent assumption they must hold heritable characteristics specific to that race.

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This unconscious classification generates devastating disparities, the most relevant of which is perhaps the “Black Lives Matter” movement. “When people say that ‘Black Lives Matter,’ they are speaking out against deaths caused by law enforcement officers (of all races) who often accept folk biological categories [such as] race and are systematically inclined to show through their actions that black lives matter less than other lives,” Kar wrote in an email. “This is not a conscious belief, but the psychological and behavioral facts that cause this problem cannot merely be wished away.”

Regardless of intent, it is impossible to justify an interpretation of the Constitution that cannot protect against a pattern of racially charged murders committed by government authorities.

For just a moment, setting aside the issue of Constitutional intent, the disconcerting and minute degree at which discrimination can creep into our judgement extends beyond the basis of race.

Unintentional bias exists even at the lexical level, and therefore pervades our most basic forms of communication. This is supported by the Sapir-Whorf hypothesis, a theory that states that our language use affects the way we interpret our world. For example, in English, we have no gender-neutral pronoun, and therefore must utilize the dominant masculine pronoun.

Correspondingly, women are classified in accordance with marital status as “Mrs.,” “Ms.,” or “Miss” while men are referred to as “Mr.” These societal habits are likely doubly unconscious and prejudicial.

While unintentional bias certainly stretches beyond the boundaries of racial relations to issues of religion, gender, sexuality, etc., the debate in regard to the Equal Protection Clause is intimately tied to race at this particular historical moment.

At this time, we are grappling with a revolving case of police officers, to whom the state has entrusted authority, killing black citizens. This is not the time in which the interpretation of the Equal Protection Clause, which is designed to protect citizens from that same state authority, can afford to be mediocre. Kar and Lindo are correct in their advocacy for a better-serving interpretation of the Clause, one that affords legitimate equal protection.

They further rightly recommend an increased integration effort through affirmative action. The paper reviews the multitude of strategies our society has attempted to employ regarding race relations; including celebrating diversity; lessening poverty; investing in schools, color-blindness, etc.

However, Kar and Lindo assert that all these solutions are “limited, however, insofar as they can coexist with de facto racial segregation.” Though we may reside a generation or two away from de jure segregation, we have not removed ourselves from segregation entirely.

And so, this all funnels into the question of what can be done to lessen the existence and potency of these unconscious biases. The solution may lie, in part, in developing acute personal awareness and the steady evaluation of our individual decisions.

Yet, on a macro scale, the government must play a larger role, as controversial as that sentence may be, in regulating equality. That effort could be expressed through public-opinion campaigns, redistribution of funds, increased affirmative action or a reinterpretation of the Constitution.

We need to be moving faster; America has spent over three centuries entrenched in a state of discrimination-related turbulence; heightened governmental support is essential to advance beyond it.

Alex is a senior in LAS.
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