Chief Justice's Opinion Is Another Racist Lie About Our 'Constitutional History'

You knew it was going to be him, didn’t you? To write yet another Supreme Court decision basically saying, this whole race thing – we’re finished with it, and racism is over. He wrote the last decision saying the same thing, Shelby County v. Holder, when he declared, essentially, that racism was a thing of the past, so we don’t need the enforcement provision in Article Five of the Voting Rights Act because it is “based on 40-year-old facts having no logical relationship to the present day,” and “our country has changed.”

That’s what Chief Justice John Roberts said again in the decision he wrote ending affirmative action in college admissions: “The student must be treated based on his or her experiences as an individual—not on the basis of race,” he wrote. Taking into consideration “the color of their skin” when deciding who to admit into college is wrong because, in words I hope he’ll be remembered for after he is long in the grave, “Our constitutional history does not tolerate that choice.”

This is, to put it simply, a bald-faced lie. Our entire history as a country from the day arguments began at the Constitutional Convention in 1787 has been about race. The Constitution that was ratified in 1788 and put into force in 1789 dodged the issue of slavery with the infamous three-fifths clause, that not only permitted white people to own Black people in the Southern states but allowed slavery to spread west with the expansion of the country, directly leading to the Civil War in 1861.

That brutal conflict, which caused the deaths of more than 600,000 American citizens, led directly to the passage of the 13^th and 14^th Amendments, by which this country tried to make amends and deal with the original sin of slavery. The South fought back with resistance to Reconstruction, leading to the years of the Jim Crow laws, which essentially stripped Black people in the South of rights granted to them as citizens, including the right to vote.

Segregation not only in public accommodations but in education was imposed by law in the South, leading to Brown v Board of Education, which declared that segregating students on the basis of race was illegal. So-called massive resistance to integration followed in the South, leading directly to the passage of the Civil Rights Laws of 1957 and 1964 and the Voting Rights Act of 1965, which Roberts dismissed so handily in 2013, which led to the nearly immediate imposition of restrictions on the right to vote in multiple states, the legacy of which we are still dealing with in every election since.

Is that enough “constitutional history” and just plain old history for you, Mr. Chief Justice? I would just like to point out that you can dismiss the history of race in this country and declare racism over only if you are a white man and you have power.

The decision of the Supreme Court had all six Republican justices voting to end affirmative action and all three justices appointed by Democratic presidents voting against and signing a dissent. The court’s decision and Robert’s blinkered opinion reflects an ongoing, yes historical, problem we have as citizens of the United States: an abiding unwillingness or inability to put on the cloak of our brothers and imagine ourselves walking in their shoes. That is all affirmative action is or ever has been – an attempt by colleges to imagine what it is like to be black or brown and do something about it.

What we did about race for the first 175 years of our history was to use it against those whose skin color was not white. The color of one’s skin was the one thing that many states, most of them but not all in the former Confederacy, considered when making decisions not only about college admissions, but about who to educate and how they should be educated: white schools get this amount of money and new school books; Black schools get that amount of money and hand-me-down school books from the white schools.

Before that, during the years of slavery – part of our “constitutional history” as well, in case the Chief Justice hadn’t noticed – laws were written in the South making it illegal to educate the Black people who were enslaved by white people. There were laws against integrating schools by race, allowing people to discriminate on the basis of race in renting or selling houses and apartments, allowing businesses to ban Black people from coming inside a restaurant, for example, and requiring them to order and pick up food from a window on the side or back of the restaurant’s building.

I could go on for the benefit of the Chief Justice, who seems to have forgotten our history of organized and legal discrimination on the basis of the color of one’s skin, but I know you get the picture.

The court’s decision and Roberts’ opinion is a lie, but worse than that, it violates what we might call the Constitution’s first commandment, found in its preamble: We the people of the United States, in order to form a more perfect Union…”

This Supreme Court’s entire jurisprudence is an outright rejection of that commandment and an assertion that the Union is perfect enough for them, thank you very much, and if the rest of you don’t believe the way we do, then to hell with you. Our Union is not perfect, and this decision intentionally and purposefully turns back the clock to a time in our history when discrimination on the basis of skin color was not only allowed, but in many cases, written into the laws of our states and tolerated by our courts, including the Supreme Court.

Race in this country started out as our crime, and then it became our burden. If you don’t believe that, ask any person whose skin is not white. Ask Black people in the South who went to schools that did not have central heating systems and cafeterias while white schools just a short distance away had both of those things. Ask Black people who applied to colleges, or applied for jobs, or applied for a loan at a bank, or applied to rent or buy an apartment or a house.

I’m talking to you, Chief Justice Roberts. Take off your robes and get off your ass and go out on the streets of Washington D.C. and ask any Black person you encounter how the color of their skin has affected them. Then go back and read your own opinion and ask yourself if “our constitutional history” has tolerated what happened to them during their lives.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

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