Harlan statement that our constitution is colorblind?
A major throughline of the course is our “colorblind constitution.” Justice Harlan argues that the constitution is colorblind and that legislation must also be colorblind. Gotanda argues that there is no possible way for the constitution to be colorblind because race is a fundamental building block of the American legal system. Affirmative action cases are where the debate over a colorblind constitution is most apparent.
Do you agree with Harlan’s statement that our constitution is colorblind? Your paper should take a clear position, trace the use of colorblindness in civil rights litigation, and cover the major players in the colorblind debate. Attending to whether colorblindness helps or hinders the progress of civil rights is also important.
At the core of many of America’s most heated debates—affirmative action, voting rights, reparations—is an unsettled question the nation has wrestled with for nearly two centuries: Does the Constitution care about race? Or, put another way, is the Constitution color-blind?
Supreme Court justices have weighed in frequently, perhaps most famously in John Marshall Harlan’s renowned dissent in Plessy v. Ferguson (1896), in which he stated peremptorily in favor of desegregation, “There is no caste here. Our Constitution is color-blind.” More recently, Chief Justice John Roberts championed a color-blind reading of the Constitution in Parents Involved v. Seattle (2007), arguing against desegregation: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Those declarations bookended more than a century of American history. They reached very different conclusions on racial preferences but employed the same framework of constitutional color blindness in doing so. How exactly is this possible?
The answer lies in the changing faces of those who benefit most from racial preference. As the nation underwent a massive civil-rights transformation from the end of the Civil War to the dawn of the 21st century, color-blind constitutionalism evolved from an argument made by racial progressives to one championed by racial conservatives. What was once a legal framework for justifying the extension of citizenship and rights to oppressed black Americans is now an argument for the unconstitutionality of any measure intended to address the harms caused by the state-sanctioned denial of those rights. In its application today, color-blind means protecting white Americans from the discrimination that some conservatives perceive results from attempts to remediate historical wrongs.
At its inception, the Constitution was interpreted as quite explicitly color-conscious. Though it didn’t mention race until the passage of the Fifteenth Amendment, nearly a century after its creation, there is no disputing that the Framers drafted the three-fifths compromise as a means to delineate enslaved black Americans and Native Americans from the rest of the citizenry. In the same year that the last state ratified the Constitution, Congress passed and George Washington signed the Naturalization Act of 1790, which reserved citizenship exclusively for “free white persons” of good character—hardly color-blind.