The new Supreme Court term begins today, and this new, deeply conservative Court may be about to squelch the Constitution’s promise of true racial equality.

In the first month of the Court’s new term, the high Court is hearing Merrill v. Milligan, a challenge to racially gerrymandered maps enacted by the Alabama legislature in 2021, and Students for Fair Admissions v. Harvard and University of North Carolina, frontal assaults on race-conscious college admissions policies adopted to ensure a truly diverse student body and pathways to leadership to qualified individuals of every race and ethnicity.  The common thread between these cases is the argument that the Constitution mandates colorblindness—that any consideration of race by the government is constitutionally suspect.

The problem with this argument is simple: the colorblind reading of the Constitution is a historical fabrication.  Indeed, race-consciousness is baked into the text and history of the Fourteenth and Fifteenth Amendments.  For conservative justices who insist they follow the Constitution’s text and history where it leads, this should matter.

In writing the Fourteenth Amendment, the Framers recognized that, after centuries of enslavement and subjugation of Black Americans, the Constitution could not be colorblind.  They understood that the legacy of centuries of racial subjugation cannot be erased by simply declaring a person free and prohibiting future discrimination.  The Framers appreciated that race-conscious governmental measures were necessary to ensure that “the gulf which separates servitude from freedom is bridged over.”

That’s why the Framers of the Fourteenth Amendment were the originators of affirmative action.  The same members of Congress who wrote the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted many race-conscious measures designed to foster racial equality.  The most prominent of these federal race-conscious measures was the Freedmen’s Bureau Act, which established a federal bureaucracy whose explicit mission was to provide Black Americans with assistance, including food, clothing, health care, education, and employment.  Only with race-conscious efforts by the government could Black Americans actually enjoy the equal citizenship promised by the Fourteenth Amendment.

The Fifteenth Amendment, too, was premised on the idea that race matters.  Against the backdrop of a political system deeply polarized along racial lines, the Framers of the Fifteenth Amendment recognized that the guarantee of equal voting rights was necessary to neutralize the deep-rooted racial prejudice Black people faced and the threats posed by white-dominated state legislatures elected through racially polarized voting.  They recognized that the right to vote was an essential bulwark that would empower members of Black communities to “protect themselves in the southern reconstructed States” from attacks on their rights.

Notably, opposition to the nation’s Reconstruction-era affirmative action and voting rights legislation was phrased in terms of colorblindness, as are the challenges the Court will hear this month.  More than 150 years ago, opponents denounced the Freedman’s Bureau for making “a distinction on account of color between the two races” that made Black Americans “superior” rather than “equal before the law.”  The law, they insisted, was “in opposition to the plain spirit” of the Constitution.

Deriding the Freedmen’s Bureau for supporting “one class or color of our people more than one another,” President Andrew Johnson twice exercised his veto over Bureau bills.  In 1866, barely a month after sending the Fourteenth Amendment to the states for ratification, supermajorities in Congress overrode President Johnson’s veto of the Act.  In approving race-conscious measures to foster racial equality, the Framers recognized that “break[ing] down discrimination between whites and blacks” and ending racial subjugation—not ensuring colorblindness—was the true aim of the Fourteenth Amendment.

Colorblindness arguments were also invoked to oppose the Fifteenth Amendment and prevent congressional efforts to enforce it.  Some states opposed ratification of the Fifteenth Amendment on the ground that it “singl[ed] out the colored races as its special wards and favorites.”  After ratification, opponents of the Fifteenth Amendment claimed that federal voting rights legislation that sought to prevent efforts to intimidate and hinder Black citizens from voting was a form of “class legislation against the great white race to which we all belong.”  These arguments fared no better.  For the Reconstruction Framers, the Fifteenth Amendment’s touchstone was empowering Black voters to ensure equal political opportunities, not the notion that race could not be considered.

The Roberts Court has teed up what are likely to be landmark rulings on the constitutional soundness of affirmative action and race-conscious voting rights guarantees.  But that requires the justices to grapple with the fact that the race-consciousness is baked into the text and history of the Fourteenth and Fifteenth Amendments.  The Supreme Court does not respect the Constitution by ignoring its true history.