Abstract

Excerpted From: Robert S. Chang, Our Constitution Has Never Been Colorblind, 54 Seton Hall Law Review 1307 (2024) (269 Footnotes) (Full Document)

I intend my title as a provocation. It challenges the deployment of Justice John Marshall Harlan's talismanic phrase, “[o]ur Constitution is color-blind,” as a winning gambit in the language game of American constitutional interpretation on matters regarding race. By claiming that our Constitution has never been colorblind, I reject both the premise and promise of colorblind constitutionalism as it has been held aloft as a jurisprudential aspiration. In making this claim, I am saying something related to but different from what Justice Ketanji Brown Jackson said in her dissent in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), that “[o]ur country has never been colorblind.” Connecting this claim to her observation, our country has never been colorblind because our Constitution has never been colorblind.

First, it is important to say what is meant by “our Constitution.” As Joy Milligan and Bertrall L. Ross II observe, “The Constitution was not by us, nor was it for us.” And despite

[t]he Reconstruction Amendments and the Nineteenth Amendment, which provided something closer to full formal equality for people of color and women as a prospective matter, [they] did not rectify (and could not have rectified) the deficits in the rest of the Constitution, nor the legal and social consequences of prior exclusion. For much of this nation's history, and even now, because of the Court's interpretation of the Constitution, it has not been and continues to not be “our” Constitution.

With regard to non-White racial minorities, a critical barrier to redressing the legal and social consequences of prior exclusion is the Court's prevailing imposition of colorblindness, including the grand but ultimately empty rhetorical flourishes of the current chief justice who proclaimed in Parents Involved in Community Schools v. Seattle School District No. 1 that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” SFFA carried this sentiment forward: “Eliminating racial discrimination means eliminating all of it.”

But the Court, even after the Reconstruction Amendments as well as after the various 1960s Civil Rights Acts, had long ago given up on eliminating much of it--race discrimination--let alone all of it. Instead, the Court has instituted an impoverished reading of the Fourteenth Amendment that has made the Court not just complicit in, but as an abettor to, the race discrimination of public and private actors leading to severe, systemic inequality. Further, because the legal and social consequences of prior exclusion have not been redressed, the Constitution continues to not be “our” Constitution, despite attempts by some constitutional theorists to anchor legitimacy in thick and thin versions of “We the People.”

If it was not “our Constitution,” then whose was it? Despite attempts to revive the legitimacy through notions of republicanism, the original Constitution was by and for White men of property. But to understand fully the racial compact that is “our Constitution,” it is critical to understand what preceded the Constitution that carries forward the racial project that is “America.”

I develop my thesis that our Constitution has never been colorblind by examining, in Part II, the development of the racial ordering that preceded the 1789 Constitution, followed in Part III by how this constitution carried forward this prior racial ordering. In Part IV, I examine the attempt to create a new racial order following the Civil War and the Reconstruction Amendments, including how this attempt was thwarted. In Part V, I broaden the frame from the Black/White racial paradigm to show how non-Black racial minorities fit into the racial compact. Then, in Part VI, I jump to the Second Reconstruction as embodied in the 1960s Civil Rights Acts and how the Court thwarted this attempt to restructure the racial order. I close in Part VII by examining the current moment and the contestation over our nation's history before concluding that a more accurate understanding of our nation's history and the Court's persistent failure to acknowledge it demonstrate that our Constitution has never been colorblind.

[. . .]

In short, our country has never been colorblind because the Constitution, as interpreted by the Court, has never been colorblind.

Professor of Law and Executive Director, Fred T. Korematsu Center for Law and Equality, Seattle University School of Law.