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

By Haney Lopez, Ian F. | Stanford Law Review, February 2007 | Go to article overview

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


Haney Lopez, Ian F., Stanford Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.