Strengthening Constitutional Self-Government

No Left Turns

Can the Supreme Court Say That Our Law Must Be Colorblind?

It’s impossible to agree with all the details of this constitutionally confused article. But it’s true enough that the Court has never said that the Constitution is colorblind and that all racial distinctions in our law are unconstitutional, and in BROWN it passed up a perfect opportunity to do so. The author’s case, in a way, would be even stronger if he realized that the Court didn’t really reverse PLESSY in BROWN. For one thing: PLESSY concerned transportation, and the psychological argument of BROWN applies only to the function of primary and secondary education. (The effect of segregation on the heart and mind of the train passenger has no effect on whether or not the train gets into the station on time.) But the author’s distinction between remedial and stigmatizing racial classifications doesn’t appear in BROWN either. There’s no reason not to read BROWN to say that all educational classifications based solely on race are equally stigmatizing or psychologically damaging.
BROWN aside, I’m undecided on whether or not a Court decision declaring all racial distinctions in the law unconstitutional would be unreasonable judicial activism.

Discussions - 5 Comments

I’m enough of a cynic to believe that to require colorblindness in law would be good on paper but it would clash with our essential human need to be racist. Like prohibition, such a law would simply outlaw something that people can’t resist, and turn merely heinous behavior into criminal behavior.

A few thousand years of evolution should clear the problem up, if we live that long and if there is such a thing as evolution.

Sticking to the legal point, the Supreme Court relied on Brown to rule unconstitutional a number of rules and laws discriminating against blacks -- not just educational classifications. Municipal golf courses, among other non-educational entities, felt the wrath of the Supreme Court in the 50s and 60s, with a single citation to Brown v. Board as the justification. To say now that Brown did not rule all racial classifications unconstitutional simply misreads the intent of the Court, as evidenced by its subsequent application of the case.

David, I’m not familiar with the cases you cite, but why, why, why, then, did Congress feel obliged to pass at least two major Civil Rights acts after Brown? Why did the SCLC and the SNCC feel the need for all those protests? Why, in West Coast Hotel v. Parrish, was the basis of the decision the impediment segregation posed to inter-state commmerce?

I am familiar w/ Brown and Plessy, however, and Peter is right. Plessy’s doctrine of separate when really, demonstrably equal, a doctrine made irrelevant by the Civil Rights legislation , still stands by the reasoning of Brown as the official jurisprudential interpretation. Perhaps other, post-60s, cases have revisted the interp of the 14th on this issue, and thus in other ways made "separate but equal" officially unconstitutional...I don’t know.

And yes, I regard grammar and logic as more authoritative concerning what a decision really means than citations. The latter may explain intent, as you suggest, but intent that contradicts plain language has a tendency not to retain its official authority. Again, why did the Civil Rights movement have to occur if your interpretation is correct? The facts of Southern resistance and Federal timidity simply cannot carry the whole weight of that.

Going back to Plessy and the issue Peter wanted us to think about, I would draw attention to Justice Harlan’s dissent, in which he says segregation is a "badge of inferiority" that creates a two-grade system of citizenship, that is, creates castes. As such it violates the intent of the 14th and the clause of the Const that guarantees a repulican form of government for each state. He also might have referred to the intent of the Const clause that prohibits titles of nobility.

By such constituional logic, then, it seems one could have rendered a Brown decision that was not limited to education, and which required no proof of educational damage, i.e., that a differently reasoned Brown could have REALLY overturned separate but equal. However, such a decision would have allowed us to retain racial classifications for the fairly uncontroversial purposes of statistical studies, and for the very controversial purposes of police-work racial/cultural profiling.

The Harlan-ian reasoning on the latter issue would be that segregation laws create defacto grades of citizenship, but Muslims having a much higher chance of being searched/questioned at airports do not.

It’s true that Brown was used without explanation to declare segregated golf courses unconstitutional. But that really made no sense. A big issue is whether racial distinctions that don’t intend to create badges of inferiority--but to overcome legacies of past legally-based inferiority--are unconstitutional because they really do, despite their intention, create such badges.

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