This book philosophically explores how changing conceptions of race and equality have affected Supreme Court interpretations of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution over the years. In the years since the 14th Amendment was ratified in 1868, in its decisions interpreting the Equal Protection Clause, the Supreme Court has switched from using a sociocultural concept of race to using a biological concept of race, and during the same time period has switched from using a social to a legal concept of equality. One result of these trends is the recent emergence of something called 'reverse discrimination.' Another result is that the Equal Protection Clause no longer specially protects racialized persons from racial discrimination, as it was originally intended to do. Using the tools of legal hermeneutics, critical philosophy of race, and critical race theory, key cases of racial discrimination in equal protection law are examined through a historical lens. The Supreme Court's switch, over the years, from interpreting the Equal Protection Clause as specially protecting racialized persons from continued racial discrimination after the end of the institution of chattel slavery, to interpreting the Clause as protecting everyone from racial discrimination, is tracked alongside changing conceptions of race and equality. As the concept of race became biological, the concept of equality became legal, and the result was the elimination of remedying the negative effects of chattel slavery on the equality status of racialized persons from the Supreme Court's list of priorities.
Introduction Chapter Summaries Chapter 1: Scholarly Backdrop Legal Hermeneutics Critical Philosophy of Race Critical Race Theory Origins: The Work of Derrick Bell Critical Race Theory and Equality Chapter 2: Equal Protection and Racialized Persons The Rise of Separate But Equal Doctrine What is Equal Protection? Racial Discrimination Per Se Begins: Japanese Americans after WWII Social Segregation Separate as Inferior Separate But Equal Overturned Racial Classifications and Marriage Discriminatory Intent vs. Discriminatory Impact Bakke: Racial Discrimination Per Se is Formalized Post-Bakke Fall-Out Concluding Reflections Chapter 3: The Concept of Race and Equal Protection Law The Supreme Court's Switch from Sociocultural/Sociohistorical Race to Biological Race The Academic Switch from Biological Race to Sociocultural/Sociohistorical Race A Change in Understanding of the Problem of Racial Discrimination Concluding Reflections Chapter 4: The Concept of Equality and Equal Protection Law Early Equal Protection Law: Social Equality Contemporary Equal Protection Law: Legal Equality Legal Equality is Out of Step with the Purpose of the Clause Historical Context Legislative History Legal Equality is Out of Step with the Contemporary Sociocultural Context Legal Equality Facilitates and Perpetuates the Problem of Racial Inequality Concluding Reflections Chapter 5: The Special Case of Multiracial Racialized Persons Historical Engagement Between Multiracial Racialized Persons and the Law Antimiscegenation Laws Jim Crow Laws and Segregation The "One Drop" Rule The Failure of Antidiscrimination Laws to Protect Multiracial Racialized Persons Biological Races Racial Discrimination Perpetuates Historically Situated Oppression Toward a Distinctive Multiracial Group Identity An Additional Modification to Antidiscrimination Law Concluding Reflections Chapter 6: Thoughts Moving Forward
