Barack Obama and Post-Equal Protection Equality

Written by Rebecca Zietlow on February 5th, 2009

Much has been said about the relationship between Barack Obama and former civil rights leaders.  On the one hand, the inauguration was full of parallels between Obama and Martin Luther King.  Obama was said to have realized tmpphpw3ebwl1.jpgthe dream that King spoke about in the 1963 March on Washington.  Without the efforts of Dr. King and the movement that he led, Barack Obama would probably not have had the opportunity to become President.  However, as Prof. Hank Chambers has pointed in an earlier post, there is a danger that the election of a Black man as President will cause many to believe that Blacks as a whole have achieved equality in our society.  There are many indicators that that is not the case.  The chief indicator is that Blacks are still significantly poorer than whites.  Hence, it is understandable that some in the older generation of civil rights leaders are uncomfortable with Obama’s emphasis on unity, downplaying the racial differences that still plague our society.

I have been thinking a lot about this issue as I consider the possibility of a post-Equal Protection vision of equality in constitutional law.  By its very nature, the Equal Protection Clause requires the comparison of groups of people, including racial groups, to determine whether they are being treated equally.  This vision of racial equality is the basis of most of our civil rights law, including both Court rulings and most civil rights statutes enacted by Congress during the Twentieth Century.  Equal Protection based civil rights have been the basis of significant accomplishments of minorities and women in our society.  However, our equal protection based equality law is flawed because it assumes that people start at the same place.  Women and members of racial and ethnic minority groups are entitled to nothing more than equal treatment, regardless of the fact that centuries of discrimination mean that we simply don’t start all at the same place.

A post-Equal Protection vision of equality focuses not on comparing groups of people, not on conflicts between racial groups, but on the substantive rights to which we are all entitled.  In a very real sense, this was the vision of equality of the Reconstruction Congress.  Their landmark 1866 Civil Rights Act, which preceded the Fourteenth Amendment, required that all people be entitled to the same rights as white citizens, and listed some of those rights, including the right to engage in the economy that slaves had lacked.  These members of Congress also empowered themselves to create more substantive rights which would enable freed slaves to live as fully integrated members of our society.  Future members of Congress could determine which substantive rights would be necessary to fulfill this vision.

Several generations later, during another time of crisis, the New Deal Congress relied on a substantive vision of equality as they enacted legislation creating economic rights such as the right to organize into a union, the right to unemployment benefits, and the right to economic security if one retired or became disabled.  Unfortunately, African Americans were largely excluded from this promise of economic security because the jobs that most of them performed at the time, domestic and agricultural labor, were not covered by these statutes.   Since then, many African Americans have benefited from the right to organize, and from the safety net that the New Deal Congress enacted.  However, the lack of New Deal economic rights also contributed significantly to the lack of economic progress of African Americans as, thanks to the Civil Rights movement, they emerged from the Jim Crow South’s system of racial apartheid.

We’ve come a long way towards realizing equality in our society, but wtmpphpp6uijs1.jpge still have a long way to go.  What we need now is a post-Equal Protection vision of equality, a vision based on substantive economic rights for all.  Which brings me back to President Obama.  There are early indications that Obama believes that equality, including racial equality, will come from economic empowerment.  Last week, the Obama administration announced a project to revive the middle class.  One of the President’s first economic measures was to revive the labor movement by rescinding restrictions on unions.  Obama has said that he believes that unions are part of the solution to our economic crisis.  His administration is also working to create new jobs that should be available to all.  Government employment has been a crucial path to economic security for African Americans since the New Deal Era.  These are promising indications that the Obama will pursue a post-Equal Protection model of equality.  Obama’s presidency itself is a symbol of the progress that we have achieved thanks to the Equal Protection based civil rights movement.  If he continues to champion substantive economic rights, I am hopeful that more people of all races may be enjoy a future of full participation in our society.


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