MORNING GLORY: President Trump is putting the federal government back on the constitutional path
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on Tuesday, President Donald Trump issued an executive order revoking President Lyndon Baines Johnson’s Executive Order 11246 of September 1965 (and many other similar orders and memoranda in 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.
Johnson’s terrible turn toward “counting by race” was a deep, widening turn United States Supreme Court (SCOTUS) in the 1978 Bakke decision and only in recent years finally and completely rejected by SCOTUS is now federal policy that can be enforced by the DOJ’s Civil Rights Division and the Department of Education’s Office for Civil Rights.
This is neither a “liberal” nor a “conservative” action. It is about the Constitution, because the Constitution was amended to eradicate the great stain of slavery after a long and bloody civil war.
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The path to the original public meaning of the 14th Amendment went from 1868, when the 14th Amendment was ratified, to ending on Tuesday: Citizens of the United States may not receive punishments or rewards based on any immutable characteristic or religious belief. No institution, from Harvard College, established long before the Constitution was ratified, or a local store, may lawfully violate this first principle of the 14th Amendment.
Do not discriminate on the basis of race, gender, ethnicity or religious beliefs. Period.
The 19th-century SCOTUS made a terrible U-turn in the Slaughterhouse cases that corrupted the interpretation of the 14th Amendment and then the Plessy decision, and the Supreme Court corrected itself in Brown v. Board of Education in 1954. Congress incorporated the above fundamental principle into the Civil rights from 1964.
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Johnson did not understand what he had set in motion, but over the past 20 years, “counting by race, gender, sexual orientation,” along with hardship and discrimination against people of faith, had taken deep root in government and elite institutions.
US Supreme Court Chief Justice John Roberts and Supreme Court Justice Brett Kavanaugh arrive for the inauguration ceremony before Donald Trump is sworn in as the 47th US President in the US Capitol Rotunda in Washington, DC on January 20. (Saul Loeb//Pool via REUTERS)
The Supreme Court hesitated for almost 50 years to finally, and I hope irreversibly, decide on what Abraham Lincoln, Ph.D. Martin Luther King and recently Chief Justice John Roberts stated succinctly and eloquently in the case Parents Involved in Community Schools v. 2007. 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 enough original allies on the highest court to bring this fundamental principle of sound constitutional law to every part 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 could be challenged. I hope so.
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The Supreme Court, built in part by President Trump, has already upheld 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 that it is on the firmest constitutional footing.
Well done to the many hands that crafted it, and especially to President Trump who signed it.
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Hugh Hewitt hosts “The Hugh Hewitt Show,” is heard weekday mornings from 6 to 9 a.m. ET on the Salem Radio Network and simulcast on the Salem News Channel. Hugh wakes up America on more than 400 affiliates nationwide and on every streaming platform where SNC can be seen. He is a frequent guest on the Fox News Channel News Roundtable hosted by Bret Baier weekdays at 6:00 PM ET.A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt is a professor of law at Chapman University School of Law, where he has taught constitutional law in 1990. Hewitt has appeared frequently on. every major television news network, hosting television shows for PBS and MSNBC America’s largest newspaper, has authored a dozen books and moderated a number of Republican presidential debates, most recently the November 2023 Republican presidential debates in Miami and four Republican presidential debates in the cycle In 2015-16, Hewitt focuses his radio show and column on the Constitution, national security and 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 during his 40 years on the air. This column presents the main story that will lead his radio/TV show today.
