Playing With My Legal Food

This picture should not be offensive to any elected official in or from Indiana.

WE are Indiana, WE belong in Indiana. https://t.co/87ei3hYfc8 pic.twitter.com/Agjqoo240h

— Victoria Garcia Wilburn for Indiana House (@wilburn4IN) March 22, 2022

The Constitution does NOT "prohibit discrimination of any kind based on race." The Supreme Court has found that race based policies is a pernicious doctrine (well, kinda sorta; not where the Voting Rights Act is concerned, among other places). For example, government should not be in the position (through the courts) of enforcing racial covenants in deeds to real property. The Court didn't say such covenants violate the Constitution; it just refused to enforce them under the 14th Amendment equal protection clause. "Separate but equal" is unconstitutional, and the Court directed such schools could not continue to exist. Racial covenants in deeds still exist; they just can't be enforced in a court of law.  Yeah, I know, it's a fine point; but it's a critical one.

The Constitution does NOT "prohibit discrimination of any kind based on race."   Here's what the Court wrote in the Loving case about the laws in Virginia which made interracial marriage a crime:

In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.

The decision rests on the equal protection and due process clauses of the 14th Amendment.  But it does not find that those clauses "prohibit discrimination of any kind based on race."  And BONUS!  There was an "original intent" argument (not Scalia's, but near enough for dammit): 

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes, and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem that, although these historical sources "cast some light" they are not sufficient to resolve the problem;

"[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments, and wished them to have the most limited effect."

I'll just leave that there as illustrative of the problem of arguing from "original intent."  It's the legal equivalent of Biblical literalism, where the "literal" meaning of the scripture depends on how you interpret the words of the Scripture in question.  (I love to ask literalists if Jesus was "literally" born in Bethlehem because his parents lived there, or because the census forced them to leave Nazareth to go there.  Matthew says the former, Luke says the latter; which is "literally" true?)  So the Virginia statute fell because the law couldn't survive an encounter with an interpretation (!) of the 14th Amendment (just the idea of a "very heavy burden of justification which the Fourteenth Amendment has traditionally required" smacks of policy, n'est pas? I use the vernacular Sen. Kennedy might recognize.)

Sen. Braun, of course, wants to make this an absolute Constitutional issue with which no one could disagree; and in a sense, it is.  But there's nothing in the Constitution, in the "original" or in any of the 25 Amendments, which prohibits discrimination of any kind based on race.

Senator Braun’s statement does not walk back what he said.

He needs to go on the record to clarify whether he believes states should be allowed to reinstate anti-miscegenation laws, and whether it’s his belief SCOTUS should overturn Loving v. Virginia as he does w/ Roe v. Wade

— Alexandria Ocasio-Cortez (@AOC) March 22, 2022

AOC is right, though I don't think anybody is listening; especially the Supreme Court, which seems hell-bound to take us back at least to Lochner, if not all the way back to Plessy.

(And Ellie Mystal has a point, actually.)