The Fourteenth Amendment says what it means. "No state shall...deny to any person within its jurisdiction the equal protection of the laws." Not equal protection for some people. Not equal protection distributed according to historical grievance schedules. Every person. The argument that diversity, equity, and inclusion programs administered by state-funded institutions are consistent with this language requires a level of definitional flexibility that would impress a seasoned financial engineer, and I've spent 30 years around those.

Ratified in 1868, three years after the Civil War ended, the amendment was the centerpiece of the Reconstruction package designed to secure citizenship and civil rights for formerly enslaved Americans. The debates in the 39th Congress contained conflicting interpretations, broad political rhetoric, and strategic compromises. Senator Lyman Trumbull, the principal drafter of the Civil Rights Act of 1866 that preceded the amendment, described the goal as "equality of civil rights among all classes of citizens." Not preferred classes. Not disadvantaged classes. All classes. The drafters had watched a government systematically classify people by race for centuries. Their response was to prohibit the practice, not to refine it.

Judicial history didn't hold that line. Plessy v. Ferguson (1896) upheld "separate but equal" as constitutionally sound, the interpretive low point of the clause's history. Brown v. Board of Education (1954) overturned Plessy and established that state-imposed separation by race is inherently unequal. That should have been the end of the matter. It wasn't. The Court's affirmative action decisions, Regents of the University of California v. Bakke (1978), then........

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