The Allure Of 'Color Blindness'

Law is formal, not necessarily moral.

“Color blindness” is alluring. Race vexes us. It is volatile, potentially violent. All around us, whether here at home or abroad, blood ties and tribalism afflict us. Whatever our identity or our own opinions, we realize that these differences — skin color and other markers by which we divide ourselves — threaten to destroy democracy and civil society.

So color blindness appeals. Every time I give a speech about the changing face of our nation, an audience member asks whether I believe in it. 

My answer to the question is that it depends on what they mean by the term. The original intent is not quite what they likely think it is.

Color blindness was introduced to constitutional law not as an ideal but instead as a means to an end. It was a doctrine in the service of white supremacy. The point was clear. It requires no interpretation.

Here are the words of Justice John Marshall Harlan:

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. 

He could not have been more explicit. He stated not only that whites were “the dominant race” but also that he was confident that they would “continue to be for all time.” He then offered his idea of how the situation could be guaranteed. Verbatim:

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. 

Justice Harlan was doing what lawyers do. Law is formal, not necessarily moral. Many legal rules are only that: legal rules. They set limits for society. But they do not indicate how individuals should behave. The First Amendment, for example, protects speech we might well not approve of much less encourage. That is its purpose. It ensures that certain forms of expression are allowed, even if we ourselves would avoid it.

Because popular culture has taken his statement out of context, we celebrate Justice Harlan. The quoted passage is contained in his dissent from the 1896 decision of Plessy v. Ferguson. Homer Plessy, who was not incidentally an “octoroon” in the parlance of the day (seven of his eight grandparents were Caucasian), supported by leading citizens of New Orleans, challenged mandatory racial segregation in railroad cars. The other justices refused to strike down the statute, ushering in the so-called “separate but equal” regime that lasted more than half a century. Justice Harlan would have deemed the state law at issue improper, because such fidelity to an abstract principle of color blindness in law would reinforce the reality of white supremacy everywhere else. His objection was to the state requirement of racial separation, not the social norms of racial subordination 

Justice Harlan’s acute color sensitivity did not stop with his celebration of black inferiority. It extended to his antipathy toward Asian immigration. He preferred African Americans to Chinese new arrivals. That was another reason he was perplexed by his colleagues. He employed a fortiori reasoning: If Chinese immigrants could sit in a railway car next to whites, it should follow that African American citizens also have that right.

He wrote, consistent with his opinions against Chinese people for racial reasons in other cases:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States . . .

Other scholars have said that Harlan was no worse than his contemporaries and had other opinions on race more progressive than most of his peers. They have argued that he does not deserve criticism based on our present standards. Since humans are capable of contradictory attitudes, held in good faith, he cannot be reduced to a single set of words. Be that as it may, the felicitous phrase he coined can be invoked for less than it appears to celebrate.

Perhaps we yearn for what Justice Harlan did not, that somehow we could be rid of race. If we were unable to perceive it at all, we imagine our problems would vanish.

Yet there is another reason for our lack of awareness. Teachers misinform students. Many of the leading textbooks used to teach constitutional law have been edited to leave out the passages about Asian Americans despite it importance to the reasoning. A generation ago, my friend professor Gabriel “Jack” Chin wrote an academic article highlighting how this deliberate omission echoed Asian Exclusion ― a federal government policy repeatedly allowed by the Supreme Court. The relationship of types of bigotry, toward African Americans and Asian immigrants, is removed from our vision — along with the possibility for bridge building toward social justice.

I wonder how many people would be enthusiastic about “colorblindness” if they were exposed to its real meaning. Perhaps some still would. We should be aware of history though. The past reveals much more than its inhabitants wished for us to see. 

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