Academic journal article Stanford Law Review

"A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness

Academic journal article Stanford Law Review

"A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness

Article excerpt

INTRODUCTION
I. COLORBLINDNESS: RADICAL, REACTIONARY, REJECTED
   A. The First Reconstruction
   B. Emerging Theories of Race, 1900-1950s
   C. The Liberal Argument for Colorblindness in Brown
   D. The Use and Rejection of Colorblindness as a Limit on Racial
      Reform
II. FROM RACE TO ETHNICITY
   A. Structural Racism
   B. Race as Ethnicity
   C. Ethnicity and Early Critiques of Affirmative Action
III. EARLY LEGAL ARGUMENTS FOR COLORBLINDNESS
   A. Incipient Critiques of Affirmative Action in the Legal Academy
   B. Alexander Bickel
   C. Richard Posner
IV. ETHNICITY AND REACTIONARY COLORBLINDNESS
   A. Ethnicity and Antidiscrimination Law
   B. Whites as Vulnerable Minorities
   C. Formal-Race and Culture-Race
V. BAKKE
   A. Statutory Colorblindness
   B. Against Colorblindness
   C. A Nation of Minorities
   D. Black Is White, White Is Black
   E. Integration, Societal Discrimination, and Diversity
   F. Powell, Glazer, and Ethnic Revival
VI. CONSTITUTIONAL COLORBLINDNESS
   A. Richmond v. Croson
VII. INEFFECTIVE LIBERAL OPPOSITION TO REACTIONARY
   COLORBLINDNESS
   A. William Brennan
   B. John Hart Ely and Paul Brest
CONCLUSION

I believe that there is a moral [and] constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.... In each instance, it is racial discrimination, plain and simple.

--Justice Clarence Thomas ([dagger])

INTRODUCTION

Justice Clarence Thomas's equation of laws designed to subjugate with those intended to foster equality is laughably absurd. "Laws designed to subjugate a race": surely this must include slave law, black codes, and Jim Crow regulations; the doctrine of discovery and the trail of broken treaties; the Chinese exclusion acts, naturalization limited to "white persons," alien land laws, and Japanese internment; and the legal instantiation of Manifest Destiny imposed on the northern half of Mexico, Puerto Rico, and Hawaii. Can Thomas really believe that the limited use of race-conscious means to promote integration constitutes instead another, equivalent instance of racial oppression? This claim merits only derision--but for the fact that it underlies contemporary constitutional antidiscrimination law.

Drawing on decisions and reasoning from the 1970s, the Supreme Court in the last three decades has moved ever closer to a full embrace of an anticlassification or colorblind conception of the Equal Protection Clause. (1) Under this approach, much criticized by legal scholars, the Fourteenth Amendment demands the highest level of justification whenever the state employs a racial distinction, irrespective of whether such race-conscious means are advanced to enforce or to ameliorate racial inequality. (2) Contemporary constitutional race law insists on a stark congruence between hostile racial practices on the one hand and efforts to respond to societal discrimination on the other. But when this risible equivalence is stated so baldly, the intellectual problem with contemporary colorblindness is immediately manifest: what justifies the strict moral and constitutional equation of affirmative action and Jim Crow?

This Article probes the conceptions of race and racism used to legitimize the rise of "reactionary colorblindness." By reactionary colorblindness I mean an anticlassification understanding of the Equal Protection Clause that accords race-conscious remedies and racial subjugation the same level of constitutional hostility. (3) I use this term to distinguish the current doctrine from colorblindness generally.

Given the long and sorry history of racial subordination in the United States, there is tremendous rhetorical appeal to Justice John Marshall Harlan's famous dissent in Plessy v. Ferguson that "[o]ur constitution is colorblind, and neither knows nor tolerates classes among citizens. …

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