IN HER celebrated exchange with Alabama’s Solicitor General, the newest Supreme Court Justice, Ketanji Brown Jackson, eviscerated his argument that our Constitution is and should be “colorblind.”  Rather, she declared, the intent of those who framed the Fourteenth and Fifteenth Amendments was to be “color conscious” in safeguarding the civil liberties of the 4 million enslaved Blacks freed by the Civil War.
During arguments on October 4 in the case of Merrill v. Milligan, which could further weaken the Voting Rights Act of 1965, Jackson correctly noted that the goals of those who advanced “equal protection under the law” and promoted Black suffrage were anything but race neutral.
Those amendments were formulated by the Joint Committee on Reconstruction in the spring of 1866.  A family member of mine, George S. Boutwell, was a Massachusetts Congressman and a key member of that committee.  In early debates on giving Blacks the right to vote in the District of Columbia and Tennessee, Boutwell was “color conscious” in declaring that denying Black suffrage would “surrender the rights of 4 million people… and the cause of justice.”  Later, it was Boutwell’s leadership that helped enact the 15th Amendment and its “color conscious” prohibition on denying the vote because of “race, color, or previous condition of servitude.”  Interestingly, Boutwell represented the 7th Congressional District, the seat now held by Rep. Ayanna Pressley.
Similarly, Thaddeus Stevens of Pennsylvania introduced the 14th Amendment shortly before it was passed in the House of Representatives by emphasizing the need to guarantee “the enfranchisement of the colored race” and to prevent Whites in the South from excluding “loyal men of color from the ballot box.”
Tragically, of course, that is precisely what happened for the next 100  years prior to the Voting Rights Act of 1965.
For Alabama’s Solicitor General to now argue that taking color into account in shaping Alabama’s Congressional districts would violate the “equal protection clause” of the Fourteenth Amendment would mock the intent of Boutwell, Stevens, Congressman John Bingham of Ohio, and others who framed that amendment.
Moreover, so strong was Boutwell’s commitment to ensuring a Black voice in national affairs that he proposed creating majority Black electoral districts so that Black freedmen, when suffrage came, could concentrate their political power, and not have it diluted across a South still dominated by whites.  Well ahead of his time, he advocated something akin to the “reverse migration” now being proposed by Charles Blow of the New York Times in order to maximize Black voting power.
This is very much what Merrill v. Milligan is all about, seeking to create a second Black majority district that would more equitably represent those Blacks who make up 30 percent of Alabama’s population but who control only 14 percent of the state’s congressional districts.  Earlier this year, a district court with two Trump nominees agreed, ruling that Alabama’s new electoral map with only one Black district violated the Voting Rights Act.
With its new conservative majority, however, the US Supreme Court froze that lower court ruling and may well return us to a time when minority voting rights are indeed diluted “across a South still dominated by Whites.”  Doing so on the basis that the Constitution is “colorblind” would willfully ignore the stated intent, 150 years later, of those who framed the Fourteenth and Fifteenth Amendments.  It would also acknowledge that, for those seeking to weaken the Voting Rights Act, being “colorblind” means that only one color remains relevant in American

Jeffrey Boutwell has a Ph.D. in political science from the Massachusetts Institute of Technology and is former associate executive officer of the American Academy of Arts and Sciences in Cambridge.  He is the author of the forthcoming Redeeming America’s Promise: George S. Boutwell and the Politics of Race, Money, and Power, and lives in Columbia, Maryland.