Do Black lives matter to the Constitution? To the original Constitution, premised as it is on white supremacy, they plainly do not. But do the post-Civil War Amendments, sometimes characterized as a "Second Founding," provide a basis for a more optimistic reading? The Supreme Court's application of the Fourteenth Amendment's Equal Protection guarantee, shaped by the long discredited (and now formally overruled) decision in Korematsu v. U.S., has seriously diminished the likelihood that our basic law can redeem the promise of racial equality. Korematsu's embrace of a purely formal account of racial discrimination, its blindness to the history and present reality of societal discrimination against racial minorities and its identification of racial antagonism (or animus), as opposed to racial subordination, as the primary evil evidenced by discriminatory laws together assure a very limited reach for the Equal Protection guarantee as it applies to race. By contrast, Justice Ginsburg's approach to sex inequality (set out in her opinion in U.S. v. Virginia), by distinguishing measures which enforce the political, economic, or social inferiority of women from those which dissipate such inferiority, offers a more promising account of Equal Protection. Application of her approach to the Constitutional law of race discrimination would markedly improve the prospects for achieving the Second Founding's aspiration to end racial subordination in our country.
Bruce K. Miller, CONSTITUTIONAL LAW—DO BLACK LIVES MATTER TO THE CONSTITUTION?, 40 W. New Eng. L. Rev. 459 (2018), https://digitalcommons.law.wne.edu/lawreview/vol40/iss3/6