On Tuesday, President Donald Trump issued an executive order revoking President Lyndon Baines Johnson’s Executive Order 11246 from September of 1965 (and many other similar orders and memoranda from over the decades since). Trump’s new order is true to the Civil Rights Act of 1964 and the 14th Amendment. Trump’s order can be read here.
The horrible turn taken by Johnson towards ‘counting by race,’ was a deep one, a turn extended by the Supreme Court of the United States (SCOTUS) in the 1978 Bakke decision and only finally and fully repudiated by SCOTUS in recent years is now federal policy that can be enforced by the Civil Rights Division at DOJ and the Office of Civil Rights at 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.
The path to the original public meaning of the 14th Amendment has taken from 1868, when the 14th Amendment was ratified, until Tuesday to complete: Citizens of the United States may not have penalties inflicted upon them or awards given them based on any immutable characteristic or religious belief. No institution, from Harvard College, founded long before the Constitution was ratified, or the local convenience store, may lawfully violate this first principle of the 14th Amendment.
Do not discriminate on the basis of race, gender, ethnicity or religious belief. Period.
The 19th century SCOTUS took a horrible turn in the Slaughterhouse Cases which mangled the interpretation of the 14th Amendment and then the Plessy decision and the Supreme Court righted itself in Brown v. Board of Education in 1954. The Congress enshrined the core principle above in the Civil Rights Act of 1964.
Johnson did not understand what he launched, but in the past 20 years, ‘counting by race, gender, sexual orientation,’ along with hardships and discrimination against people of faith have taken deep root in government and elite institutions.
The Supreme Court has flailed for almost 50 years to finally, and I hope irreversibly, settle on what Abraham Lincoln, Dr. Martin Luther King and most recently Chief Justice John Roberts has concisely and eloquently stated in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1 when he wrote, ‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’
The chief justice lacked sufficient originalist allies on the highest court to infuse this bedrock principal of sound constitutional law into every fiber of government at every level of government until President Trump nominated and the United States Senate confirmed three new justices during Trump’s first term. Now the originalist majority is a solid six votes.
Trump’s executive order may be challenged. I hope it is.
The Supreme Court, built in part by President Trump, has already affirmed 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 discover it is on the firmest of constitutional grounds.
Bravo to the many hands that crafted it and especially to President Trump who signed it.
Hugh Hewitt is host of ‘The Hugh Hewitt Show,’ heard weekday mornings from 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt 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. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcasting. This column previews the lead story that will drive his radio/TV show today.