FULLILOVE v. KLUTZNICK 3 Id., at 403 (emphasis added). Similarly, in Loving v. Virginia, supra, and McLaughlin v. Florida, supra, the Court held that statutes outlawing miscegenation and interracial cohabitation were constitutionally invalid, even though the laws penalized all violators equally. The laws were unconstitutional for the simple reason that they penalized individuals solely because of their race, whatever their race might be. See also Goss v. Board of Education, 373 U. S. 683; Buchanan v. Warley, 245 U. S. 60.3 This history contains one clear lesson. Under our Constitution, the government may never act to the detriment of a person solely because of that person's race. The color of 3 University of California Regents v. Bakke, 438 U. S. 265, and United Jewish Organizations v. Carey, 430 U. S. 144, do not suggest a different rule. The Court in Bakke invalidated the racially preferential admissions program that had deprived Bakke of equal access to a place in the medical school of a state university. In United Jewish Organizations v. Carey, a state legislature had apportioned certain voting districts with an awareness of their racial composition. Since the plaintiffs there had "failed to show that the legislative reapportionment plan had either the purpose or the effect of discriminating against them on the basis of their race," no constitutional violation had occurred. 430 U. S., at 179-180 (concurring opinion). No person in that case was deprived of his electoral franchise. More than 35 years ago, during the Second World War, this Court did find constitutional a governmental program imposing injury on the basis of race. See Korematsu v. United States, 323 U. S. 214; Hirabayashi v. United States, 320 U. S. 81. Significantly, those cases were decided not only in time of war, but in an era before the Court had held that the Due Process Clause of the Fifth Amendment imposes the same equal protection standard upon the Federal Government that the Fourteenth Amendment imposes upon the States. See Bolling v. Sharpe, 347 U. S. 497. A court of equity may, of course, take race into account in devising a remedial decree to undo a violation of a law prohibiting discrimination on the basis of race. See Teamsters v. United States, 431 U. S. 324; Franks v. Bowman Transportation Co., 424 U. S. 747; Swann v. Charlotte-Mecklenberg Board of Education, 402 U. S. 1, 18-32. But such a judicial decree, following litigation in which a violation of law has been determined, 4 FULLILOVE v. KLUTZNICK a person's skin and the country of his origin are immutable The rule cannot be any different when the persons injured is wholly different from generalized legislation that awards benefits and 5 As Mr. Justice Murphy wrote in dissentiilg from the Court's opinion i FULLILOVE v. KLUTZNICK 5 the benefits afforded by the Equal Protection Clause "are, by its terms, guaranteed to the individual. [They] are personal rights." From the perspective of a person detrimentally affected by a racially discriminatory law, the arbitrariness and unfairness is entirely the same, whatever his skin color and whatever the law's purpose, be it purportedly "for the promotion of the public good" or otherwise. No one disputes the self-evident proposition that Congress has broad discretion under its Spending Power to disburse the revenues of the United States as it deems best and to set conditions on the receipt of the funds disbursed. No one disputes that Congress has the authority under the Commerce Clause to regulate contracting practices on federally funded public works projects, or that it enjoys broad powers under § 5 of the Fourteenth Amendment "to enforce by appropriate legislation" the provisions of that Amendment. But these selfevident truisms do not begin to answer the question before us in this case. For in the exercise of its powers, Congress must obey the Constitution just as the legislatures of all the States must obey the Constitution in the exercise of their powers. If a law is unconstitutional, it is no less unconstitutional just because it is a product of the Congress of the United States. B On its face, the minority business enterprise (MBE) provision at issue in this case denies the equal protection of the law. The Public Works Employment Act of 1977 directs that all project construction shall be performed by those private contractors who submit the lowest competitive bids and who meet established criteria of responsibility. 42 U. S. C. § 6705 (e) (1) (1976 ed. Supp. I). One class of contracting firmsdefined solely according to the racial and ethnic attributes of their owners-is, however, excepted from the full rigor of these requirements with respect to a percentage of each federal grant. The statute, on its face and in effect, thus bars a class 6 FULLILOVE v. KLUTZNICK to which the petitioners belong from having the opportunity to receive a government benefit, and bars the members of that class solely on the basis of their race or ethnic background. This is precisely the kind of law that the guarantee of equal protection forbids. The Court's attempt to characterize the law as a proper remedial measure to counteract the effects of past or present racial discrimination is remarkably unconvincing. The Legislative Branch of government is not a court of equity. It has neither the dispassionate objectivity nor the flexibility that are needed to mold a race-conscious remedy around the single objective of eliminating the effects of past or present discrimination." But even assuming that Congress has the power, under § 5 of the Fourteenth Amendment or some other constitutional provision, to remedy previous illegal racial discrimination, there is no evidence that Congress has in the past engaged in racial discrimination in its disbursement of federal contracting funds. The MBE provision thus pushes the limits of any such justification far beyond the equal protection standard of the Constitution. Certainly, nothing in the Constitution gives Congress any greater authority to impose detriments on the basis of race than is afforded the Judicial Branch. And a judicial decree that imposes burdens on the basis of race can be upheld • See n. 4, supra. In McDaniel v. Barresi, 402 U. S. 39, the Court approved a county's voluntary race-conscious redrafting of its public school pupil assignment system in order to eliminate the effects of past unconstitutional racial segregation of the pupils. But no pupil was deprived of a public school education as a result. 7 Section 2 of the Thirteenth Amendment gives Congress the authority to "enforce" the provisions of § 1 of the same Amendment, and § 5 of the Fourteenth Amendment provides that, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.". Neither section grants to Congress the authority to require the States to flout their obligation under § 1 of the Fourteenth Amendment to afford "the equal protection of the laws" or the power to enact legislation that itself violates the equal protection component of the Fifth Amendment. FULLILOVE v. KLUTZNICK 7 only where its sole purpose is to eradicate the actual effects of illegal race discrimination. See Pasadena City Board of Education v. Spangler, 427 U. S. 424. 8 The provision at issue here does not satisfy this condition. Its legislative history suggests that it had at least two other objectives in addition to that of counteracting the effects of past or present racial discrimination in the public works construction industry. One such purpose appears to have been to assure to minority contractors a certain percentage of federally funded public works contracts.9 But, since the guarantee of equal protection immunizes from capricious governmental treatment "persons"-not "races," it can never countenance laws that seek racial balance as a goal in and of itself. "Preferring members of any one group for no reason The legislative history of the MBE provision itself contains not one mention of racial discrimination or the need to provide a mechanism to correct the effects of such discrimination. From the context of the Act, however, it is reasonable to infer that the program was enacted, at least in part, to remedy perceived past and present racial discrimination. In 1977, Congress knew that many minority business enterprises had historically suffered racial discrimination in the economy as a whole and in the construction industry in particular. See H. R. Rep. No. 94-1791, pp. 182183 (1977); H. R. Rep. No. 94-468, pp. 1-2 (1975); To Amend and Extend the Local Public Works Capital Development and Investment Act: Hearings before the Subcommittee on Economic Development of the House Committee on Public Works and Transportation, 95th Cong., 1st Sess., 939 (1977) (statement of Rep. Conyers). Some of this discrimination may well, in fact, have violated one or more of the state and federal antidiscrimination laws. See 123 Cong. Rec. H1436 (Feb. 24, 1977) (Rep. Mitchell) ("all [the MBE provision] attempts to do is to provide that those who are in minority businesses get a fair share of the action from this public works legislation") (emphasis supplied). Moreover, sponsors of the legislation repeatedly referred to the low participation rate of minority businesses in federal procurement programs. See 123 Cong. Rec. H1440 (Feb. 24, 1977) (Rep. Biaggi); 123 Cong. Rec. H1436-H1437 (Feb. 24, 1977) (Rep. Mitchell); 123 Cong. Rec. H1388-H1389 (Feb. 23, 1977) (Rep. Mitchell); 123 Cong. Rec. S3910 (Mar. 10, 1977) (Sen. Brooke). |