A Color-Conscious Constitution: The One Pervading Purpose Redux

Abstract

ly and theoretically, most reasonable and enlightened people of goodwill incline to the view that color or race should not be a factor in either conferring or withholding benefits by the state. However, such a view can only be indulged by ignoring the Black experience, particularly the history of the institution of slavery and of the segregation and oppression of Blacks in the United States. This article will urge (1) the view expressed by Justice Miller in the United States Supreme Court's first major opinion interpreting the Reconstruction Amendments, the Slaughter-House Cases,8 that the one pervading purpose of those amendments was to secure the rights of Blacks against whites and (2) that that view was displaced and virtually strangled by what Justice Powell called judicial reactionism.9 Thus, we will argue that the one pervading purpose of the Reconstruction Amendments was not only to secure and firmly establish Blacks' freedom but also to take color or race into account in remedying societal discriminations in violation of the spirit, if not the letter, of those amendments. ONE PERVADING PURPOSE: DISPLACED AND VIRTUALLY