|Fullilove v. Klutznick
[ Burger ]
[ Powell ]
[ Marshall ]
[ Stewart ]
[ Stevens ]
Fullilove v. Klutznick
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins, dissenting.
Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. . . . The law regards man [p523] as man, and takes no account of his surroundings or of his color. . . .
Those words were written by a Member of this Court 84 years ago. Plessy v. Ferguson, 163 U.S. 537, 559 (Harlan, J., dissenting). His colleagues disagreed with him, and held that a statute that required the separation of people on the basis of their race was constitutionally valid because it was a "reasonable" exercise of legislative power, and had been "enacted in good faith for the promotion [of] the public good. . . ." Id. at 550. Today, the Court upholds a statute that accords a preference to citizens who are "Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts," for much the same reasons. I think today's decision is wrong for the same reason that Plessy v. Ferguson was wrong, and I respectfully dissent.
The equal protection standard of the Constitution has one clear and central meaning -- it absolutely prohibits invidious discrimination by government. That standard must be met by every State under the Equal Protection Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 10; Hill v. Texas, 316 U.S. 400; Strauder v. West Virginia, 100 U.S. 303, 307-308; Slaughter-House Cases, 16 Wall. 36, 71-72. And that standard must be met by the United States itself under the Due Process Clause of the Fifth Amendment. Washington v. Davis, 426 U.S. 229, 239; Bolling v. Sharpe, 347 U.S. 497. [n1] Under our Constitution, any official action that treats a person differently on account of his race or ethnic origin is inherently suspect, and presumptively invalid. McLaughlin v. Florida, 379 U.S. 184, 192; Bolling v. Sharpe, supra at 499; Korematsu v. United States, 323 U.S. 214, 216. [n2] [p524]
The hostility of the Constitution to racial classifications by government has been manifested in many cases decided by this Court. See e.g., Loving v. Virginia, supra; McLaughlin v. Florida, supra; Brown v. Board of Education, 347 U.S. 483; Missouri ex rel. Gaines v. Canada, 305 U.S. 337. And our cases have made clear that the Constitution is wholly neutral in forbidding such racial discrimination, whatever the race may be of those who are its victims. In Anderson v. Martin, 375 U.S. 399, for instance, the Court dealt with a state law that required that the race of each candidate for election to public office be designated on the nomination papers and ballots. Although the law applied equally to candidates of whatever race, the Court held that it nonetheless violated the constitutional standard of equal protection. "We see no relevance," the Court said, "in the State's pointing up the race of the candidate as bearing upon his qualifications for office." Id. at 403 (emphasis added). Similarly, in Loving v. Virginia, supra, and McLaughlin v. Florida, supra, the Court held that statutes outlawing miscegenation and interracial cohabitation were constitutionally invalid, even though the laws penalized all violators equally. The laws were unconstitutional for the simple reason that they penalized individuals solely because of their race, whatever their race might be. See also Goss v. Board of Education, 373 U.S. 683; Buchanan v. Warley, 245 U.S. 60. [n3] [p525]
This history contains one clear lesson. Under our Constitution, the government may never act to the detriment of a person solely because of that person's race. [n4] The color of a person's skin and the country of his origin are immutable facts that bear no relation to ability, disadvantage, moral culpability, or any other characteristics of constitutionally permissible interest to government.
Distinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality.
The rule cannot be any different when the persons injured by a racially biased law are not members of a racial minority. The guarantee of equal protection is "universal in [its] application, to all persons . . . without regard to any differences of race, of color, or of nationality." Yick Wo v. Hopkins, 118 U.S. 356, 369. See In re Griffiths, 413 U.S. 717; Hernandez v. Texas, 347 U.S. 475; Truax v. Raich, 239 U.S. 33, 39-43; Strauder v. West Virginia, 100 U.S. at 308. The command of the equal protection guarantee is simple, but unequivocal: in the words of the Fourteenth Amendment: "No State shall . . . deny to any person . . . the equal protection of the laws." Nothing in this language singles out some "persons" for more "equal" treatment than others. Rather, as the Court made clear in Shelley v. Kraemer, 334 U.S. 1, 22, the benefits afforded by the Equal Protection Clause "are, by its terms, guaranteed to the individual. [They] are personal rights." From the perspective of a person detrimentally affected by a racially discriminatory law, the arbitrariness and unfairness is entirely the same, whatever his skin color and whatever the law's purpose, be it purportedly "for the promotion of the public good" or otherwise.
No one disputes the self-evident proposition that Congress has broad discretion under its spending power to disburse the revenues of the United States as it deems best, and to set conditions on the receipt of the funds disbursed. No one disputes that Congress has the authority under the Commerce Clause to regulate contracting practices on federally funded public works projects, or that it enjoys broad powers under § 5 of the Fourteenth Amendment "to enforce by appropriate legislation" the provisions of that Amendment. But these self-evident truisms do not begin to answer the question before us in this case. For, in the exercise of its powers, Congress must obey the Constitution, just as the legislatures of all the States must obey the Constitution in the exercise of their [p527] powers. If a law is unconstitutional, it is no less unconstitutional just because it is a product of the Congress of the United States.
On its face, the minority business enterprise (MBE) provision at issue in this case denies the equal protection of the law. The Public Works Employment Act of 1977 directs that all project construction shall be performed by those private contractors who submit the lowest competitive bids and who meet established criteria of responsibility. 42 U.S.C. § 6705(e)(1) (1976 ed., Supp. II). One class of contracting firms -- defined solely according to the racial and ethnic attributes of their owners -- is, however, excepted from the full rigor of these requirements with respect to a percentage of each federal grant. The statute, on its face and in effect, thus bars a class to which the petitioners belong from having the opportunity to receive a government benefit, and bars the members of that class solely on the basis of their race or ethnic background. This is precisely the kind of law that the guarantee of equal protection forbids.
The Court's attempt to characterize the law as a proper remedial measure to counteract the effects of past or present racial discrimination is remarkably unconvincing. The Legislative Branch of government is not a court of equity. It has neither the dispassionate objectivity nor the flexibility that are needed to mold a race-conscious remedy around the single objective of eliminating the effects of past or present discrimination. [n6]
But even assuming that Congress has the power, under § 5 of the Fourteenth Amendment or some other constitutional provision, [p528] to remedy previous illegal racial discrimination, there is no evidence that Congress has, in the past, engaged in racial discrimination in its disbursement of federal contracting funds. The MBE provision thus pushes the limits of any such justification far beyond the equal protection standard of the Constitution. Certainly, nothing in the Constitution gives Congress any greater authority to impose detriments on the basis of race than is afforded the Judicial Branch. [n7] And a judicial decree that imposes burdens on the basis of race can be upheld only where its sole purpose is to eradicate the actual effects of illegal race discrimination. See Pasadena City Board of Education v. Spangler, 427 U.S. 424.
The provision at issue here does not satisfy this condition. Its legislative history suggests that it had at least two other objectives in addition to that of counteracting the effects of past or present racial discrimination in the public works construction industry. [n8] One such purpose appears to have been to assure [p529] to minority contractors a certain percentage of federally funded public works contracts. [n9] But, since the guarantee of equal protection immunizes from capricious governmental treatment "persons" -- not "races" -- it can never countenance laws that seek racial balance as a goal in and of itself.
Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.
University of California Regents v. Bakke, 438 U.S. 265, 307 (opinion of POWELL, J.). Second, there are indications that the MBE provision may have been enacted to compensate for the effects of social, educational, and economic "disadvantage." [n10] No race, however, has a monopoly on social, educational, or economic [p530] disadvantage, [n11] and any law that indulges in such a presumption clearly violates the constitutional guarantee of equal protection. Since the MBE provision was, in whole or in part, designed to effectuate objectives other than the elimination of the effects of racial discrimination, it cannot stand as a remedy that comports with the strictures of equal protection, even if it otherwise could. [n12] [p531]
The Fourteenth Amendment was adopted to ensure that every person must be treated equally by each State, regardless of the color of his skin. The Amendment promised to carry to its necessary conclusion a fundamental principle upon which this Nation had been founded -- that the law would honor no preference based on lineage. [n13] Tragically, the promise of 1868 was not immediately fulfilled, and decades passed before the States and the Federal Government were finally directed to eliminate detrimental classifications based on race. Today, the Court derails this achievement, and places its imprimatur on the creation once again by government of privileges based on birth.
The Court, moreover, takes this drastic step without, in my opinion, seriously considering the ramifications of its decision. Laws that operate on the basis of race require definitions of race. Because of the Court's decision today, our statute books will once again have to contain laws that reflect the odious practice of delineating the qualities that make one person a Negro and make another white. [n14] Moreover, racial discrimination, even "good faith" racial discrimination, is inevitably a two-edged sword.
[P]referential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.
University of California Regents v. Bakke, supra, at 298 (opinion [p532] of POWELL, J.). Most importantly, by making race a relevant criterion once again in its own affairs, the Government implicitly teaches the public that the apportionment of rewards and penalties can legitimately be made according to race -- rather than according to merit or ability -- and that people can, and perhaps should, view themselves and others in terms of their racial characteristics. Notions of "racial entitlement" will be fostered, and private discrimination will necessarily be encouraged. [n15] See Hughes v. Superior Court, 339 U.S. 460, 463-464; T. Eastland & W. Bennett, Counting by Race 139-170 (1979); Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U.Chi.L.Rev. 775 (1979).
There are those who think that we need a new Constitution, and their views may someday prevail. But under the Constitution we have, one practice in which government may never engage is the practice of racism -- not even "temporarily," and not even as an "experiment."
For these reasons, I would reverse the judgment of the Court of Appeals.
1. "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93.
2. By contrast, nothing in the Constitution prohibits a private person from discriminating on the basis of race in his personal or business affairs. See Steelworkers v. Weber, 443 U.S. 193. The Fourteenth Amendment limits only the actions of the States; the Fifth Amendment limits only the actions of the National Government.
3. University of California Regents v. Bakke, 438 U.S. 265, and United Jewish Organizations v. Carey, 430 U.S. 144, do not suggest a different rule. The Court in Bakke invalidated the racially preferential admissions program that had deprived Bakke of equal access to a place in the medical school of a state university. In United Jewish Organizations v. Carey, a state legislature had apportioned certain voting districts with an awareness of their racial composition. Since the plaintiffs there had "failed to show that the legislative reapportionment plan had either the purpose or the effect of discriminating against them on the basis of their race," no constitutional violation had occurred. 430 U.S. at 179-180 (concurring opinion). No person in that case was deprived of his electoral franchise.
More than 35 years ago, during the Second World War, this Court did find constitutional a governmental program imposing injury on the basis of race. See Korematsu v. United States, 323 U.S. 214; Hirabayashi v. United States, 320 U.S. 81. Significantly, those cases were decided not only in time of war, but also in an era before the Court had held that the Due Process Clause of the Fifth Amendment imposes the same equal protection standard upon the Federal Government that the Fourteenth Amendment imposes upon the States. See Bolling v. Sharpe, 347 U.S. 497.
4. A court of equity may, of course, take race into account in devising a remedial decree to undo a violation of a law prohibiting discrimination on the basis of race. See Teamsters v. United States, 431 U.S. 324; Franks v. Bowman Transportation Co., 424 U.S. 747; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18-32. But such a judicial decree, following litigation in which a violation of law has been determined, is wholly different from generalized legislation that awards benefits and imposes detriments dependent upon the race of the recipients. See text in Part B, infra.
5. As Mr. Justice Murphy wrote in dissenting from the Court's opinion and judgment in Korematsu v. United States, supra at 242:
Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.
See also DeFunis v. Odegaard, 416 U.S. 312, 331-344 (Douglas, J., dissenting); A. Bickel, The Morality of Consent 132-133 (1975).
6. See n. 4, supra. In McDaniel v. Barresi, 402 U.S. 39, the Court approved a county's voluntary race-conscious redrafting of its public school pupil assignment system in order to eliminate the effects of past unconstitutional racial segregation of the pupils. But no pupil was deprived of a public school education as a result.
7. Section 2 of the Thirteenth Amendment gives Congress the authority to "enforce" the provisions of § 1 of the same Amendment, and § 5 of the Fourteenth Amendment provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Neither section grants to Congress the authority to require the States to flout their obligation under § 1 of the Fourteenth Amendment to afford "the equal protection of the laws" or the power to enact legislation that itself violates the equal protection component of the Fifth Amendment.
8. The legislative history of the MBE provision itself contains not one mention of racial discrimination or the need to provide a mechanism to correct the effects of such discrimination. From the context of the Act, however, it is reasonable to infer that the program was enacted, at least in part, to remedy perceived past and present racial discrimination. In 1977, Congress knew that many minority business enterprises had historically suffered racial discrimination in the economy as a whole and in the construction industry in particular. See H.R.Rep. No. 94-1791, pp. 182-183 (1977); H.R.Rep. No. 94-468, pp. 1-2 (1975); To Amend and Extend the Local Public Works Capital Development and Investment Act: Hearings on H.R. 11 and Related Bills before the Subcommittee on Economic Development of the House Committee on Public Works and Transportation, 95th Cong., 1st Sess., 939 (1977) (statement of Rep. Conyers). Some of this discrimination may well, in fact, have violated one or more of the state and federal antidiscrimination laws.
9. See 123 Cong.Rec. 5327 (1977) (Rep. Mitchell) ("all [the MBE provision] attempts to do is to provide that those who are in minority businesses get a fair share of the action from this public works legislation") (emphasis supplied). Moreover, sponsors of the legislation repeatedly referred to the low participation rate of minority businesses in federal procurement programs. See id. at 5331 (Rep. Biaggi); id. at 5327-5328 (Rep. Mitchell); id. at 5097-5098 (Rep. Mitchell); id. at 7156 (Sen. Brooke).
10. See id. at 5330 (Rep. Conyers) ("minority contractors and businessmen who are trying to enter in on the bidding process . . . get the ‘works' almost every time. The bidding process is one whose intricacies defy the imaginations of most of us here"). That the elimination of "disadvantage" is one of the program's objectives is an inference that finds support in the agency's own interpretation of the statute. See U.S. Dept. of Commerce, Economic Development Administration, EDA Minority Business Enterprise Technical Bulletin (Additional Assistance and Information Available to Grantees and Their Contractors In Meeting The 10% MBE Requirement) 9-10 (1977) (Technical Bulletin) ("a [minority] subcontractor's price should not be considered unreasonable if he is merely trying to cover his costs because the price results from disadvantage which affect the MBE's costs of doing business or results from discrimination." (emphasis added)).
11. For instance, in 1978, 83.4% of persons over the age of 25 who had not completed high school were "white," see U.S. Dept. of Commerce Bureau of the Census, Statistical Abstract of the United States 145 (1979), and, in 1977, 79.0% of households with annual incomes of less than $ 5,000 were "white," see id. at 458.
12. Moreover, even a properly based judicial decree will be struck down if the scope of the remedy it provides is not carefully tailored to fit the nature and extent of the violation. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 419-40; Milliiken v. Bradley, 418 U.S. 717. Here, assuming that the MBE provision was intended solely as a remedy for past and present racial discrimination, it sweeps far too broadly. It directs every state and local government covered by the program to set aside 10% of its grant for minority business enterprises. Waivers from that requirement are permitted, but only where insufficient numbers of minority businesses capable of doing the work at nonexorbitant prices are located in the relevant contracting area. No waiver is provided for any governmental entity that can prove a history free of racial discrimination. Nor is any exemption permitted for nonminority contractors that are able to demonstrate that they have not engaged in racially discriminatory behavior. Finally, the statute makes no attempt to direct the aid it provides solely toward those minority contracting firms that arguably still suffer from the effects of past or present discrimination.
These are not the characteristics of a racially conscious remedial decree that is closely tailored to the evil to be corrected. In today's society, it constitutes far too gross an oversimplification to assume that every single Negro, Spanish-speaking citizen, Oriental, Indian, Eskimo, and Aleut potentially interested in construction contracting currently suffers from the effects of past or present racial discrimination. Since the MBE set-aside must be viewed as resting upon such an assumption, it necessarily paints with too broad a brush. Except to make whole the identified victims of racial discrimination, the guarantee of equal protection prohibits the government from taking detrimental action against innocent people on the basis of the sins of others of their own race.
13. The Framers of our Constitution lived at a time when the Old World still tolerated in the shadow of ancient feudal traditions. As products of the Age of Enlightenment, they set out to establish a society that recognized no distinctions among white men on account of their birth. See U.S.Const., Art. I, § 9, cl. 8 ("No Title of Nobility shall be granted by the United States"). The words Thomas Jefferson wrote in 1776 in the Declaration of Independence, however, contained the seeds of a far broader principle: "We hold these truths to be self-evident: that all men are created equal. . . ."
14. See Technical Bulletin, supra, n. 10, at 1. Cf. Ga.Code § 53-312 (1937); Tex.Penal Code, Art. 493 (Vernon 1938).
15. "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485 (Brandeis, J., dissenting).