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On Tuesday, President Donald Trump issued an executive order rescinding President Lyndon Baines Johnson’s September 1965 Executive Order 11246 (and many other similar orders and memoranda over the decades since). Trump’s new order is faithful to the Civil Rights Act of 1964 and the 14th Amendment. Trump’s order can be read here.
The terrible turn Johnson took toward “counting by race” was profound, a turn extended by the Supreme Court of the United States (SCOTUS) in the 1978 Bakke decision and only finally and fully rejected by SCOTUS in recent years, is now federal policy enforceable by the Civil Rights Division at DOJ and the Office of Civil Rights at the Department of Education.
This is neither a ‘liberal’ nor a ‘conservative’ action. It is the Constitution speaking, as the Constitution was amended to eradicate the great stain of slavery after the long and bloody Civil War.
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The path to the original public meaning of the 14th Amendment runs from 1868, when the 14th Amendment was ratified, to completion Tuesday: Citizens of the United States shall not be punished or awarded rewards based on an immutable characteristic or religious belief . No institution, from Harvard College, founded long before the Constitution was ratified, to the local grocery store, may lawfully violate this first principle of the 14th Amendment.
Do not discriminate based on race, gender, ethnicity or religious beliefs. Period.
The 19th century SCOTUS took a terrible turn in the slaughterhouse cases, which garbled the interpretation of the 14th Amendment, only for the Plessy decision and the Supreme Court to right itself in 1954 in Brown v. Board of Education. Congress codified the above core principle in the Civil Rights Act of 1964.
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Johnson did not understand what he was launching, but over the past two decades “counting by race, gender and sexual orientation,” along with hardship and discrimination against people of faith, has taken deep root in government and elite institutions.
Chief Justice of the US Supreme Court John Roberts and Supreme Court Justice Brett Kavanaugh arrive for the inauguration ceremony before Donald Trump is sworn in as the 47th US President on January 20 at the US Capitol Rotunda in Washington, DC. (Saul Loeb//Pool via REUTERS)
The Supreme Court has hesitated for nearly fifty years to finally, and I hope irreversibly, agree on what Abraham Lincoln, Dr. Martin Luther King, and most recently Chief Justice John Roberts succinctly and eloquently stated in the Parents Involved in Community case Schools v. . Seattle School District No. 1 when he wrote, “The way to stop discrimination based on race is to stop discriminating based on race.”
The Chief Justice lacked enough original allies on the Supreme Court to infuse this fundamental principle of sound constitutional law into every fiber of government at every level of government until President Trump appointed three new justices and the U.S. Senate confirmed three new justices during Trump’s first term . Now the originalist majority stands at a solid six votes.
Trump’s executive order could be challenged. I hope it is.
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The Supreme Court, built in part by President Trump, has already reaffirmed the original meaning of the 14th Amendment and the Civil Rights Act of 1964 in recent years. Let any institution challenge this new EO and they will find it stands on the firmest constitutional grounds.
Bravo to the many hands that created it and especially to President Trump who signed it.
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Hugh Hewitt hosts “The Hugh Hewitt Show“, heard weekday mornings from 6:00 AM to 9:00 AM ET on the Salem Radio Network, and simulcast on the Salem News Channel. Hugh Wakes Up America on over 400 affiliates nationwide, and on all streaming platforms where SNC can be seen Hewitt is a frequent guest on the Fox News Channel roundtable hosted by Bret Baier weekdays at 6pm ET Harvard College and the University of Michigan Law School, has been a Professor of Law at Chapman University’s Fowler School of Law since 1996, where he teaches constitutional law. Hewitt launched his eponymous radio show from Los Angeles in 1990 appeared on every major national news television network and hosted television shows for PBS and MSNBC written for every major U.S. newspaper, has written a dozen books and moderated about two dozen Republican candidate debates, most recently. the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-2016 cycle Hewitt focuses his radio program and column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests during his four decades at the broadcaster, from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump. This column previews the main story that forms the basis of his radio/TV program today.
