Reader's View: Does the U.S. need a color-blind Constitution?

September 6, 2013 

America’s original sin was establishing a liberal democracy without abolishing chattel slavery. Penance for that original sin continues today.

Even the election of America’s first African-American president seems to coincide with a deterioration of race relations, in some sense.

Under what circumstances can America ever exit the purgatory of race? Closely connected to this question are pressing constitutional and policy questions. Does the U.S. Constitution require a “color-blind” Constitution? Would wise public policy be “color-blind,” even if color-blindness were not mandated by the Constitution?

The words “color-blind Constitution” enter the American lexicon via Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson (1896). Plessy’s majority allowed “separate but equal” Jim Crow laws to stand. Jim Crow laws had not been color-blind. They were remnants of slavery and the racial subordination freedmen suffered through in post-Reconstruction America. African-Americans were consigned separate train cars, public restrooms, sections of restaurants and so on.

At the very least, Harlan’s vision would find Jim Crow laws in violation of the Constitution. It is not clear, however, what his color-blind Constitution would demand. Would it accommodate corrective measures for racial injustices or for African-American self-protection?

Imagine a law requiring that certain jurisdictions must have at least 25 percent African-American jurors. In 1870 South Carolina, for instance, such a law might be essential to making sure that freedmen would not be railroaded. Jury selection processes could be rigged. Local judges might share the community’s commitment to racial subordination. Prosecutors might seek easy targets. Corrective measures that take race into account might be essential to protect freedmen in such cases.

How to distinguish legitimate “corrective measures” from those reflecting racial subordination? Harlan’s principle seems to rule out corrective or protective measures.

Brown v. Board of Education (1953), the famed desegregation case in which the Supreme Court held that “separate was inherently unequal,” does not seem to require a color-blind Constitution. Nor have the civil rights laws passed in the wake of Brown consistently applied the color-blind principle. Nor have the Supreme Court’s confusing affirmative action cases and voting rights cases required the color-blind principles.

There have been feints in the direction of an expiration date for the non-color-blind Constitution. Most famously, Justice Sandra Day O’Connor allowed affirmative action plans to survive, but said that she expected “that 25 years from now, the use of racial preferences will no longer be necessary” to further higher education’s interest in promoting diversity. This suggests that, perhaps, the Constitution requires color-blind principles, but that an exception to color-blind principles may be permissible under circumstances where self-protection or corrective justice require them.

Thus has Supreme Court jurisprudence on race given us the idea that the Constitution allows different things at different times — perhaps. In conjunction with the Jack Miller Center’s national Constitution Day Initiative, we at the American Founding Initiative are bringing professor Peter C. Myers from University of Wisconsin-Eau Claire, to campus on Constitution Day to address these difficult issues.

Myers will speak at 7 p.m. Sept. 17 in the Boise State Student Union Building. Parking in the Lincoln garage is free.

Scott Yenor is a professor of the political science department at Boise State University. He is a fellow of the Jack Miller Center for Teaching America’s Founding Principles and History.

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