an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This is the second of two posts on the history of the concept of colorblindness. In the first installment, I explained why colorblindness is inconsistent with the original understandings behind the Fourteenth Amendment. Although this is not a problem for me, it is a problem for originalists who support colorblindness. In today’s post, I discuss how the idea of a colorblind Constitution arose, and explain how it was actually premised on the continuing social inequality of the races.
As I noted previously, most of the Framers of the Fourteenth Amendment believed in a distinction between civil, political and social equality. Civil equality included the the right to make contracts, own property, sue and be sued, give evidence in courts, enjoy freedom of speech and religious liberty. Political equality included the right to vote, hold office, and serve on juries. Social equality meant equal status in society, and concerned social comingling and intermarriage. The Fourteenth Amendment was understood to guarantee blacks civil, but not political or social equality. It was not a guarantee of colorblindness. When people said that the Fourteenth Amendment made all races equal before the law, it meant only that they were civilly equally, not politically or socially. They were equal in their “civil rights,” that is, their right to make contracts and hold property, sue and be sued in court, but not in any other respect.
Furthermore by “civil rights” people in the nineteenth century did not mean that *private* parties could not discriminate on the basis of race, (that is a twentieth century conception of “civil rights”) but rather that the *state* could not limit the power of blacks to contract or hold property. When we read nineteenth century political and legal arguments we have to keep this special meaning of “civil rights” and “equal before the law” in mind.
II. Justice Harlan and the Origins of the “Colorblind Constitution.”
In fact, the rhetoric of colorblindness does not emerge in Supreme Court doctrines until Justice Harlan’s famous dissent in Plessy v. Ferguson. Plessy upheld a Louisiana law that required segregated railway carriages. The court conceded that the Fourteenth Amendment made blacks and whites equal before the law-- for that is what civil equality meant. The right to sit next to whites, however, was a matter of social equality, and was not guaranteed by the Fourteenth Amendment. Similarly, a decade before Plessy, in Pace v. Alabama, the Supreme Court upheld a ban on interracial marriage, arguing that blacks and whites were equally forbidden to marry each other. The point was that marriage, like social intermingling, was an issue of social, not political or civil equality. In this respect neither Pace v. Alabama nor Plessy v. Ferguson are inconsistent with the original understanding of the Fourteenth Amendment.
Justice Harlan’s dissent in Plessy has been championed by contemporary defenders of colorblindness, often without fully realizing what Harlan was saying. Justice Harlan’s objection to the majority in Plessy was not that the Fourteenth Amendment guaranteed social equality. He had, after all, joined in the opinion in Pace v. Alabama. Rather, he argued that the Louisiana law violated aspects of civil equality. Social equality was irrelevant. When blacks sat next to whites, this did not make them social equals, and they were unlikely ever to be so. All that colorblindness meant to Harlan was civil equality, which to him was the same thing as “equality before the law.” So civil equality and colorblindness were completely consistent with racism in social organization. Indeed, before Harlan makes his famous statement about colorblindness, he has this to say:
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.
Only after Harlan establishes his belief in white social supremacy and black social inferiority does he make his famous claim that the Constitution is colorblind. And in light of the distinction between civil, political, and social equality, this famous passage has a very different meaning to it than most people think it does:
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. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.
Remember that for Harlan being equal “in the eyes of the law” means only civil equality, not social equality. Blacks will be social inferiors for all time, and that’s perfectly fine, and is even to be expected, as long as they have equal rights to make contracts, sue and be sued, and so on. (Remember also that the equal right to make contracts does *not* mean that private persons may not discriminate on the basis of race in making contracts. It means only that the state may not put restrictions on blacks’ rights to contract that it does not also put on contracting by whites).
But what about the mingling of races in railway carriages? Isn’t that an attempt to enforce social equality? Harlan has a ready answer, which, once again, puts the notion of colorblindness in a very different light:
social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting.
That is, just because a black person gets to vote, or serve on a jury, or sit next to a white person in a railway carriage doesn’t make them social equals of whites. Colorblindness, Harlan insists, is perfectly consistent with blacks being social inferiors forever.
And to clinch the argument, Harlan notes that the Chinese, who in his view rank even lower than blacks, can sit in railway carriages with whites:
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, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.
What do we learn from all this? When the idea of colorblindness was first introduced into American constitutional discourse by Justice Harlan, it did not represent a full grant of equality to blacks. Rather, it was a grant of basic economic rights to blacks while preserving a sphere of private choice or discrimination in which blacks would remain socially inferior to whites. Colorblindness did not permit the state to deny blacks the right to earn a living or own property on terms different from whites, but neither did it permit interference in the private sphere of private association. Whatever social stratification resulted from purely private choices was not the law’s business. Regardless of what happened in the private sphere, black and white were still "equal before the law."
This vision of colorblindess was central to conservative opposition to the Civil Right Act of 1964. Both Strom Thurmond and Ronald Reagan opposed the Civil Rights Act of 1964 on the grounds that it interfered with private association, private property, and private contract. Both Thurmond and Reagan could claim that they believed in colorblindness in Harlan’s terms, for in many aspects of Jim Crow the state was not denying blacks the right to contract or hold property. Rather, private citizens were refusing blacks the right to sit at lunch counters or ride on privately owned busses.
The idea of colorblindness was reformulated in light of the victory of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Conservatives who previously opposed it now accepted it, and their ideological descendents reinterpreted colorblindness as now applying to (some) private action as well as public. Many conservatives assume that the Civil Rights Movement was just a call for colorblindness, but this is incorrect. Colorblindness is only one theme in the rhetoric of the Civil Rights Movement, and indeed, it may not have been the dominant one. Martin Luther King's famous “I Have a Dream” speech is remembered today for its line about colorblindness, but that was because it was most palatable to White America. What King actually said in that speech was this:
There are those who are asking the devotees of civil rights, "When will you be satisfied?" we can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.
In fact, the Civil Rights Movement had a much thicker, more substantive view of equality than the formal notion of equality generally associated with contemporary colorblindness rhetoric, which usually finds nothing constitutionally troubling about wide disparities in effects on blacks and whites unless there is overt racial classification or proof of deliberate intent to harm. In this way, colorblindness can actually be employed to preserve the racial status quo, and that is not what King was about. The Civil Rights Movement was about practical freedom, the right to adequate jobs and housing, among other things, not simply about formal equality between the races. We must remember that the full title of the March on Washington was the March on Washington for Jobs and Freedom. (Note which one comes first in the title).
It is no accident that the rhetoric of colorblindness was selected from the many strands of argument that the Civil Rights Movement made and was championed by whites who were deeply concerned about how far the movement might go. When conservatives insist on colorblindness today, they are picking out that portion of the rhetoric of the Civil Rights Movement that is most hospitable to their ideology, but their views are not identical to those of the Civil Rights Movement.
The notion of colorblindness championed by conservatives today insists that governments (and some private employers and landlords) may not make decisions on the basis of race. But that requirement plays out against the background of continuing socioeconomic disparities between blacks and whites. Nevertheless, according to the modern notion of colorblindness, the continued socioeconomc disparity between blacks and whites is completely consistent with blacks and whites being equal before the law, because such disparities are the result of a private sphere of individual choice and social interaction. By contrast, attempting to remedy the socioeconomic disadvantage of minorities through race conscious remedies is impermissible “social engineering,” which disturbs the natural outcome of impersonal market forces that reflect private choices.
Thus, if we examine how the rhetoric of colorblindness has actually been invoked by whites from Justice Harlan forward, we will see that it always has carried with it the acceptance of social inequalities between blacks and whites that are explained and justified as the result of a private sphere of social interaction. The boundaries of public and private shift over time, but the notion that blacks and whites are not socially equal and cannot be made so by law remains a constant theme. Put another way, those forms of social stratification that a colorblind system of law does not reach are by definition not law’s fault, for by definition a colorblind law treats everyone as an individual, and therefore as equal before the law. That statement that could have been made by Justice Harlan in 1896, or by advocates of colorblindness today.