1. United States Constitution
The constitutional protections against racial discrimination are contained in the Thirteenth, Fourteenth and Fifteenth Amendments, all of which were ratified in a five-year period following the conclusion of the Civil War in 1865, and in the Fifth Amendment, which since 1954 has been construed to forbid the federal government from engaging in racial discrimination.
Thirteenth Amendment. The Thirteenth Amendment abolished slavery. Section 2 of the Amendment authorizes Congress to enforce the prohibition of slavery through "appropriate legislation." The Amendment has been interpreted broadly, not only to abolish slavery, but also to permit Congress to eliminate the "badges and incidents of slavery," i.e., those vestiges of custom, practice and private action that were the legacy of slavery. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968). As set forth below, civil rights statutes have been enacted pursuant to this interpretation of Section 2 of the Thirteenth Amendment. The Thirteenth Amendment and legislation implementing its commands are fully consistent with the Convention and substantially further its goals.
Fifth and Fourteenth Amendments. The part of the Fourteenth Amendment that speaks to racial discrimination is the Equal Protection Clause, which provides that "[n]o State shall deny to any person within its jurisdiction the equal protection of the laws." Equal protection strictures apply to the federal government through the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954).
The Fourteenth Amendment was enacted in the period immediately after the end of the U.S. Civil War, a time at which federalism issues were much at the forefront of the nation's juridical consciousness. The drafters of the Fourteenth Amendment intended that its prohibition on States' making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States," would protect the fundamental rights of U.S. citizens, particularly civil rights, from state encroachment.
However, for almost one hundred years after the enactment of the Fourteenth Amendment, the federal courts refused to apply its principles to state-sponsored racial discrimination and de jure segregation. Thus, this kind of un-equal treatment was the rule, rather than the exception, all over the United States until the middle of the Twentieth Century. In 1954, the U.S. Supreme Court, for the first time, applied the Fourteenth Amendment's requirements of "equal protection under the law" against the states and ushered into U.S. law the idea that state-sponsored segregation was antithetical to the country's fundamental principles. See Brown v. Board of Education, 347 U.S. 483 (1954).
Since Brown, the U.S. Supreme Court has interpreted the Equal Protection Clause of the Fourteenth Amendment as a "direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). In essence, it precludes governments from adopting unjustifiable legal distinctions between groups of people. Plyler v. Doe, 457 U.S. 202, 2 16-219 (1982). Over time, the Supreme Court has made plain that distinctions based on race or national origin are inherently suspect, and thus are rarely justifiable. McLaughlin v. Florida, 379 U.S. 184, 192 (1964). When challenged in court, such distinctions are subject to "strict
scrutiny," the most exacting standard of constitutional review. Under strict scrutiny, a classification violates the Equal Protection Clause unless it is necessary to promote a "compelling state interest" and is "narrowly tailored" to achieve that interest. Palmore v. Sidotti, 466 U.S. 429, 432 (1984). In practice, most racial or ethnic classifications fail to satisfy those standards. Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984). Strict scrutiny applies not only to laws that specifically categorize individuals on the basis of race or ethnicity, but also to ostensibly neutral laws that are enforced only against certain racial or ethnic groups. Personnel Administrator v. Feeney, 442 U.S. 256, 277 (1979) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)).
Even where racial or ethnic classifications are not at issue, strict scrutiny applies to legal distinctions that the Supreme Court has determined interfere with the exercise of certain fundamental rights. Under this strand of equal protection doctrine, the Supreme Court has invalidated discriminatory measures in the areas of voting, Harper v. Virginia State Board of Education, 383 U.S. 663 (1966), inter-state and foreign travel, Aptheker v. Secretary of State, 378 U.S. 500 (1964), and access to the judiciary, Griffin v. Illinois, 351 U.S. 12 (1956).
In short, the Equal Protection Clause, as interpreted by the Supreme Court is consistent with the enumerated guarantees of Article 5 of the Convention.
(c) Fifteenth Amendment. The last of the post-Civil War era Amendments, the Fifteenth Amendment provides that the right to vote "shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." This Amendment, in conjunction with the Fourteenth Amendment, is the basis of some of the federal legislation protecting the right of individuals to vote and to participate in the political process free from discrimination based on race or ethnicity. For the first few years after the enactment of the Fifteenth Amendment, Blacks in the United States exercised their right to vote in strong numbers in the South. However, because of a combination of forces (e.g., the resurgence of the Ku Klux Klan, often acting with the complicity of local law enforcement) and the imposition of restrictive voting qualifications in many southern states (such as the poll tax and literacy tests, often administered in a discriminatory manner), Blacks in the South were once again locked out of the electoral process. In the years between 1876 and the mid-1960s, neither Congress nor the federal courts took action to combat the efforts by Southern states to prevent Blacks from participating in the political process. However, after years of struggle, lead by the efforts of Martin Luther King, Jr. and others, in 1964 the country ratified the Twenty-fourth Amendment to the Constitution prohibiting the requirement of payment of a poll tax as a qualification for voting for federal offices, and in 1965 the U.S. Congress enacted the Voting Rights Act which made real the Fifteenth Amendment's prohibition against discrimination in voting. This Constitutional and statutory framework is consistent with the voting guarantee among the rights recognized by Article 5 of the Convention.