Modern civil rights policy is, as the late Justice Scalia warned, at “war.” On the one hand, some laws, like Title VII of the Civil Rights Act of 1964 (Title VII) and the Fair Housing Act, can impose liability for decisions due to their racial impacts rather than their racial motivation. Defendants in such cases can always respond that the challenged decision (a test, a criterion, an allocation) is necessary in some legally cognizable sense; but the courthouse doors open with the prima facie case of disparate impact. On the other hand, the Fourteenth Amendment’s Equal Protection Clause, ever since the ascent of the “color-blind” over the “antisubordination” reading of the Amendment, subjects even benign discrimination—that designed to help minorities—to searching constitutional scrutiny. As a result, race-conscious decisions intended to alleviate disparate impacts under laws designed to enforce Equal Protection norms may themselves violate Equal Protection. The Court has yet to defuse the conflict. This Article offers some thoughts on how to subtly reframe the debate by looking at the problem of disparate impacts as a Thirteenth Amendment issue, and not solely as a Fourteenth Amendment one. In this Article, I argue that modern systemic empathetic failures towards minorities, and those of African descent in particular, are legacies of an instrumentalist view of Black lives and Black labor. Once Blacks ceased to be useful as a source of property or service, there was a widespread desire to have them simply go away. These attitudes form an underappreciated historical “badge” or “relic” of slavery that Congress can address through its Section Two enforcement power. Even in the absence of such legislation, race-conscious policies designed to address systemic empathy deficits towards minorities, understood as a “badge” or “relic” of slavery, form a compelling governmental interest. This compelling government interest need not be subject to the most restrictive race- neutral and narrow-tailoring strictures of Equal Protection. The policies can be race-conscious because, unlike the commerce authority or the “colorblind” Equal Protection Clause, slavery was a race-conscious institution in America. One must be conscious of race to dismantle a race-conscious institution.
Darrell A.H. Miller, The Thirteenth Amendment, Disparate Impact, and Empathy Deficits, 39 SEATTLE U. L. REV. 847 (2016).