*This piece is part of the ACSblog symposium: “The Future of the U.S. Constitution”
Constitutional law is driven in part by public and judicial attitudes about the security of our core American values: liberty, equality, democracy and human dignity. Narratives about the extent to which government threatens, or does not threaten, these values can shape how easy or difficult the courts make it to enforce constitutional rights and how narrowly or expansively courts read those rights. This suggests that the Trump Administration — which has singled out certain minority groups and backed away from civil rights enforcement — might push courts to rethink current doctrine and make constitutional protections more robust.
With respect to civil rights, two of the most consequential narratives in recent years have been (1) that claims of racial discrimination are overblown and we are approaching a post-racial reality; and (2) that misconduct by law enforcement is limited to the acts of a few bad apples.
The post-racial narrative is familiar by now. Slavery ended 150 years ago. You will not find a “whites only” waiting room or drinking fountain in America. Minorities run Fortune 500 companies, appear in mainstream media, and serve in Congress. And of course, we elected — and reelected — our first black president.
This narrative has played a role in the Supreme Court’s contraction of protections against racial discrimination.