The idea of the “color-blind” Constitution comes from Justice John Marshall Harlan’s lone dissent in the 1896 Supreme Court case, Plessy v. Ferguson, in which the Court upheld “separate but equal” racial segregation in public accommodations:
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 broader issue of race and the Constitution extends back to our nation’s founding, when delegates to the 1787 Constitutional Convention compromised on the issue of slavery.
It continued through the Civil War and Reconstruction Era, in which the 13th, 14th, and 15th Amendments were ratified. At Gettysburg, President Abraham Lincoln said the period brought a “new birth of freedom.”
And in the mid-20th century, the United States witnessed a “Second Reconstruction” in the civil rights movement. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed, and the Supreme Court handed its landmark ruling in Brown v. Board of Education.
Now, in the modern era, the idea of the “color-blind” Constitution is resurging with opposition to affirmative action. This year, the Supreme Court will rule again on the issue in the case of Fisher v. University of Texas.
Can skin color or race ever be a legitimate justification for legal or political distinctions? And should “color-conscious” policies be presumptively unconstitutional, regardless of their intent?
Theodore Shaw is the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Carolina School of Law at Chapel Hill.
Michael Rosman is general counsel at the Center for Individual Rights in Washington, DC.
This show was engineered and edited by Jason Gregory. It was produced by Nicandro Iannacci. Research was provided by Joshua Waimberg and Danieli Evans.
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