How Conservatives Turned the ‘Color-Blind Constitution’ Against Racial Progress

Progressives used to argue that the Constitution doesn’t see race. Now conservatives have weaponized that same idea.

Supreme Court
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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.

In Dred Scott v. Sandford (1856), the Court’s opinion was that the Declaration of Independence never intended to include or acknowledge “the class of person who has been imported as slaves nor their descendants.” It further determined that the country adhered to a cultural belief that “the negro might justly and lawfully [be] reduced to slavery for his benefit.” In Plessy, the Court upheld the constitutionality of racial segregation. And even in the aforementioned dissent, Harlan caveated his assertion of constitutional color blindness by noting that the “Chinese race is so different from our own,” it is, “with few exceptions, absolutely excluded from our country.”

Opposing this interpretation, abolitionists and racial-equality advocates relied on color blindness to rebut these color-conscious readings of the Constitution during the slavery and Jim Crow eras. Because the Constitution did not explicitly mention race, they argued, how could the Court read racial hierarchy into it? In his Dred Scott dissent, Justice John McLean responded to the charge that black people could not access the rights of citizenship by noting this was “more a matter of taste than law,” adding that the Court “had not been very fastidious” on this issue.

Color-blind constitutionalism reached its high point in Brown v. Board of Education (1954). Thurgood Marshall, who argued the case, and his fellow appellants professed, “That the Constitution is color blind is our dedicated belief.” He made clear that a color-blind interpretation of the Constitution was necessary to “obtain full and complete integration of all students on all levels of public education without regard to race or color,” and that the “stumbling block” to this was the color-conscious doctrine of separate but equal.

Brown determined that segregated schools were unconstitutional because separating students by race was a discriminatory, color-conscious action that disadvantaged black Americans. The remedy was a color-blind reading of the Fourteenth Amendment’s equal-protection clause. This case was part of a 20-year period of transformational civil-rights reform carried out by each branch of the government. Harry Truman desegregated the military and federal workforce in 1948, and Dwight Eisenhower deployed the Army’s 101st Airborne Division and National Guard to enforce the desegregation of Little Rock Central High School three years after Brown. Congress passed civil-rights, voting-rights, and housing-rights laws that outlawed racial discrimination. And the Court continued outlawing racial discrimination in public transportation in Boynton v. Virginia (1960), electoral disenfranchisement in Gomillion v. Lightfoot (1960), and interracial marriage in Loving v. Virginia (1967).

This massive societal shift was met with backlash from some white citizens, who resented attempts at leveling the playing field through policies such as busing, racial quotas, affirmative action, and disparate-impact standards. They argued that these disruptive measures infringed on their personal liberties and had the effect of discriminating against them.

As desegregationist policies reached states and cities, white parents vacated public-school systems rather than integrate them, and the Supreme Court began hearing cases from white claimants who cited the unfairness of remedial policies governing hiring and promotion practices, university admissions, and government-contract allocations.

But the dynamics soon shifted. It wasn’t long before those groups that were once making color-conscious arguments in support of racial segregation began using the principles of color-blind constitutionalism to assert that racially progressive policies were discriminating against white Americans.

Meanwhile, Thurgood Marshall ascended to the Court and grew dismayed that color blindness was now the main thrust of the legal argument against practical measures seeking to establish a racially egalitarian society. He wrote in his Regents of the University of California v. Bakke dissent, “It is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.”

In Marshall’s formulation, color-blind constitutionalism was a wholly appropriate approach for obtaining the equal rights of a subjugated people, but an insufficient guide to unmaking the societal disadvantages that racism had wrought. That is, he considered it in the words of the old gospel hymn—It once was blind, but now it sees.

This view accords with what scholars have long known. The political theorist Iris Marion Young argued that when unequal societies throw off statutory constraints and declare all citizens equals henceforth, preexisting group hierarchies are perpetuated unless proactively addressed. The upshot is that color-blind constitutionalism in unequal societies compels the lifting of state-sanctioned discrimination, but the ensuing remediation must be color-conscious in the same way that the harms were.

More recent conservative-leaning Supreme Courts seem to disagree. In a series of cases that tackle racial preferences and attempts at racial redress, the Court has found that a color-blind reading of the Constitution complicates or outright rejects color-conscious policies, even if they are implemented with the intent of furthering racial equality. For example, in Adarand Constructors, Inc. v. Peña (1995), a case challenging affirmative action in government contracts, the Court established that race-based classifications must meet strict scrutiny, the highest standard of judicial review. In Shelby County v. Holder (2013), the Court ruled that a measure intended to protect voters of color in jurisdictions with a history of racial discrimination was unconstitutional, effectively gutting the Voting Rights Act of 1965. The Court determined that Michigan’s affirmative-action ban was constitutional in Schuette v. Coalition to Defend Affirmative Action (2014).

Some of the shift in ideology is explained by contemporary Americans’ polarized views of racial discrimination. More than 80 percent of black Americans believe that racial discrimination prevents them from getting ahead, and nearly 70 percent say being white provides advantages. Similarly, the majority of white Americans believe that discrimination against white people is a problem today, and nearly half of white Millennials think it’s as big of a problem as discrimination against black Americans. And more than three-quarters of Republicans believe that people see discrimination where it doesn’t exist, while the same number of Democrats think the real problem is a failure to recognize discrimination where it does exist.

The result is widely divergent views on how to address racial discrimination. The question of whether the Constitution sees color is really a debate about whether laws and policies can account for race and history in pursuit of a racially egalitarian society. But because Americans do not agree on what counts as racial discrimination or who is most subject to it, there is no consensus on whether the Constitution can or should see color.

So where does this leave us? In his Bakke dissent, Justice William Brennan asserted, “Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.” This position builds on the opinion written by Judge John Wisdom in the school-desegregation case United States v. Jefferson County Board of Education (1967): “The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose.”

Put simply, the Constitution does what the American people ask of it. When the nation accepted racial oppression, the Constitution allowed it. And when it determined that state-sanctioned racial discrimination was no longer tolerable, the Constitution nodded in agreement. If the Court now decides that policies attempting to right past wrongs are unconstitutional, they will be so until we the people compel it to say otherwise.

Americans will need to decide whether creating a nation that lives up to its founding principles is best achieved by a Constitution that sees race or one that ignores it. This determination is extraordinarily consequential because it will shape the contours of our democracy and the character of our nation in the decades ahead. And if history has taught us nothing else, it’s that ignoring race has not made the nation more equal.