Equality Rightly Understood

In his latest letter, the Ohio Farmer argues that the Constitution properly understood, is color-blind.  As Lincoln said, the central proposition of the United States from which all minor thoughts radiate is the principle that all men are created equal.  Therefore, the understanding of equality is paramount in order to understand the American Republic.  Here is the farmer on equality as the Founders understood it:

The meaning of equality had been the central question for Americans ever since our Founders first declared in 1776 the self-evident truth that "all men are created equal." In previous letters, I have noted that the Founders understood equality to mean that everyone has the same natural rights – that is, everyone has the same God-given rights to life, liberty, and property. We should all be free from violence to our life and health, be free to run our own lives, and be free to enjoy the fruits of our labor. Obviously, slavery violated all of those principles and had to be abolished if America was fully to live up to them. In 1865, as a result of the Union victory in the Civil War, it was abolished by the 13th Amendment.

But did the 14th Amendment to the Constitution have this principle enshrined at its core?  As Justice John Marshall Harlan (the sole dissenting vote in Plessy v. Ferguson, which constitutionalized segregation) wrote:

But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. 

I will let the farmer take it from here:

So when the 14th Amendment declares that every person should have "equal protection of the laws," it means that the law must treat everyone the same without regard to race. The only exceptions would be the commonsensical ones, when it is necessary for government to consider race in order to protect citizens' natural rights, as, for example, when police departments must hire an undercover officer of a specific race to infiltrate an ethnic gang. But these are practical exceptions that do not apply to Homer Plessy's case in 1896 or to college admissions today.

Plessy was later overruled in the Brown cases in the 50s, but as Edward Erler has argued, Brown did not actually overrule the principles established by Plessy because

[a]ccording to Brown, Plessy was only in error insofar as it was inconsistent with the authority of modern psychology, which had demonstrated that a "feeling of inferiority" is a fact of inferiority from the point of view of equal protection analysis. Modern psychology had proven that such feelings were generated in segregated grammar schools, but no evidence was adduced to show the same "feelings" were produced by other segregated settings. Shortly after the Brown decision, the Court invalidated segregation in a variety of public places, including golf courses, beaches, buses, and parks. These were per curiam decisions citing Brown as the authority. But where were the psychological studies that demonstrated that segregated golf courses and beaches generated "feelings of inferiority?" Was it merely assumed? Or had the Court seen the futility of relying on modern psychology? Brown was still the authority and the Brown opinion had, by a wholly unnecessary and tortured argument, replaced the authority of the Constitution with the authority of modern psychology. Equal protection rights—at least in the context of grammar school education—were now wholly subjective, depending upon a "feeling of inferiority."

A correct understanding of equality would have let the Court ground its argument on a much more solid philosophical footing -- namely, the natural law and natural right principles enunciated by the Founders in the Declaration, whose principles are universal and are true regardless of the time and place in history.  Thankfully, Justice Clarence Thomas understands this and interprets the Constitution in light of the principles of Declaration.