From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality

Constitutional Commentary, Spring 2004 | Go to article overview

From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality


INTRODUCTION

None other than Alexis de Tocqueville, upon his travels around the young American republic, incisively remarked in 1835 that "[t]he most formidable evil threatening the future of the United States is the presence of the blacks on their soil. From whatever angle one sets out to inquire into the present embarrassments or future dangers facing the United States, one is almost always brought up against this basic fact." (1) More accurate and no less poignant is the famous assessment by DuBois that the "problem of the twentieth century is the problem of the colorline." (2) Few would dispute the accuracy of DuBois's prediction except to take issue with its suggested temporal limitation. While the "future of the United States" seems secure, its health and welfare are gravely affected by the divisiveness and rancor surrounding the mere public mention of racial categories, much less its use in public policy circles for classificatory purposes.

In contemporary America, and as partial proof of DuBois's and to some extent Tocqueville's dire predictions, racial matters occupy a great portion of our political and moral discourse. For a long-standing exemplar, few issues match the discursive potency of race conscious policy-making, which still claims, after more than thirty years in the deliberative limelight, the pejorative distinction of racial issue du jour. Everyone from the President and the courts to commentators, law professors, and the owner of the neighborhood grocery store has an opinion, held strongly, about affirmative action. …

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