THE CONSTITUTION IS NOT "COLOR-BLIND"

AN ESSAY

Yesterday I used satire to illustrate the foolishness in typical conservative reasoning about race in American life. I especially targeted the conservative exasperation with “affirmative action programs” that allegedly “keep old questions alive” by focusing on “past discrimination” against disadvantaged groups in American society. According to conservative reasoning, the Fourteenth Amendment to the United States Constitution bars governmental distinctions based on race, no matter whether those distinctions aim to help or hinder minorities. My satire attacked this reasoning on a simple premise: When discrimination affects whites, they have nothing to complain about. While it may hurt a white person’s feelings to lose a job or university seat to a black man, the fact remains that African-Americans do not have the same practical opportunities in American society as whites. History shows that “real racial equality” in American life is at best a farce, no matter what the law says. History caused the problems; and it will perpetuate them. Contrary to conservative rhetoric about race, racial problems did not disappear when the Civil War ended, nor did they disappear when the Supreme Court abolished state-sponsored segregation in 1954. Legal fiat does not produce practical reality. Yet this is precisely what conservatives believe: They think that legal equality translates immediately into practical equality. And when they see blacks arguing that life is still unfair for them, they say: “Haven’t we given you enough? Get over it, will you?”

Telling black Americans to “get over the race problem” in America is like telling an incurable cancer victim to “get over” cancer. Racism and race-based prejudice are alive and well in America. This country was born in racism and has lived its life in racism. Racism sustained our economy before the Civil War and mutual recriminations about racism have dominated our outlook ever since. Contrary to every conservative assertion, history has everything to do with continued racial problems in America. Until 1865, African-Americans were not legally “people” under the Constitution. Killing a slave resulted in a property damage suit, not a murder prosecution. After Emancipation, blacks in the South achieved illusory “legal equality” but still faced summary lynchings and mob justice. And as a practical matter, they faced every imaginable disadvantage in society. They could not live where they wanted. They had no skills and no education to win favorable employment. In short, they "advanced" from slavery into a permanent economic and racial underclass. Although Congress and the States made determined efforts to equalize the playing field for African-Americans, it does not take a genius to see that an average black man’s life circumstances barely resemble an average white man’s life circumstances in America. Blacks occupy prisons in far greater proportions than whites. They live in generally much worse housing. They generally earn far less income. And they are generally homeless in greater proportions than whites, too. These problems are endemic; they are not going away, no matter what Congress does. Our law has apologized for “official” racism. But its legacy—and its evil, practical cousin, actual racism—lives on. Just walk into a “black neighborhood” in an American city. Why are the “black neighborhoods” so poor? Why do they breed so much more poverty, hopelessness, joblessness and crime? Why is virtually every homeless person in New York City and Chicago black? Why is virtually every violent crime suspect on television black? The eye does not lie. Legal equality has not solved the race problem in America. There is something much more pernicious going on here.

Yet conservatives think that legal apology is enough to right the historical wrongs of slavery and State-sponsored segregation. They think that problems experienced in past generations do not spill over into modern generations. This is fatally mistaken. Slavery and Jim Crow made indelible impressions on their subjects. Black people in the United States have come to expect bad treatment in life, as well as unfairness, poor opportunity and likely failure. The law used to “officially” brand them inferior. Now they are inferior “in effect” because they do not have the social capital to fully assimilate into a culture that rejects their values. White American society is profoundly judgmental. It expects certain values from its members; if they do not have these values, they can expect ostracism and condemnation. It expects deference, some education, politeness and a remotely “decent upbringing.” But these values represent generations of work and comfortable heritage; if an “outsider” does not meet the criteria, he can expect no sympathy from “mainstream” American culture. In essence, white American society institutionalizes racism on a subconscious level. Even if most white people consider themselves “progressive,” “liberal,” “open-minded” and even “solicitous about black problems,” they typically live in all-white circles and practice all-white values. They do not see black people in familiar settings, nor do they really understand what it is like to grow up in a society with no practical opportunity. If anything, they see black people as “foreign curiosities,” not social equals. They might even admire black Americans for some special talent. But they still live in a radically different culture. Most white Americans will never grasp just how much historical weight an average black American carries on his shoulders every day. After all, most white Americans grow up with a sense that “anything is possible” in life. Black Americans, on the other hand, generally grow up thinking that they are playing a rigged game. “Legal equality” sounds great. But when you grow up destitute, surrounded by crime, without an education or a stable home, achieving “proper success” according to dominant white bourgeois values is sheer fantasy.

Reminding black Americans that they are “legally equal” is something akin to opening a magic door suspended 1000 feet above the ground, then saying: “OK, now it’s up to you to get in there.” It just doesn’t happen absent a miracle.

But conservatives can’t escape their own perspectives. They think that as long as the law treats everyone the same, it doesn’t matter what historical burden you carry. They think everyone born in America is an “American” with exactly the same advantages and opportunities as everyone else. They think that our Constitution is “color-blind” and that “race does not matter anymore.” That is easy to think when you are born with all the real, practical social advantages that make success possible under the unforgiving white American bourgeois value regime, such as maintaining a stable family, getting an education and enjoying affluent living quarters. Against this background, they cannot evaluate the issues from an average black man’s social perspective. This is why they fundamentally misinterpret continuing racial ills in the United States. They do not think black people need help because they “law has already made them equal,” so there is “nothing more to discuss.”

Interestingly, this conservative myopia is not new. Since the Civil War, our Supreme Court has defined itself by grappling with the race problem in the United States. Most people know about Plessy v. Ferguson, 163 U.S. 537 (1896), the case in which the Supreme Court held that State-sponsored segregation was permissible despite the Fourteenth Amendment’s “equal protection” guarantee because the Constitution did not guarantee “social, as distinguished from political, equality…[nor was it intended] to abolish distinctions based upon color.” Id. at 543-544. In conclusion, the Court reasoned that States could lawfully segregate the races as long as the facilities were “legally equal.” Id. at 551-552. Further, such distinctions did not imply that blacks were “inferior” to whites. Id. Justice John Marshall Harlan famously dissented from the Court’s reasoning. He wrote: “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.” Id. at 559. Segregating the races, according to Harlan, stamped black Americans with a “badge of inferiority,” which in turn violated the “equal protection guarantee” under the Fourteenth Amendment.

Many scholars applaud Justice Harlan’s resistance to the majority in Plessy. In law school, our professors always voiced their support for his refusal to certify the “separate but equal doctrine.” Years ago, I agreed with them. But now, I see flaws even in Justice Harlan’s position. His arguments about a “color-blind Constitution” and “equality before the law” have been misappropriated and misunderstood in the century since Plessy. In recent Supreme Court cases, conservative justices have used Justice Harlan’s rhetoric to actually invalidate State efforts to help black people win employment in public contracting. See, e.g, Richmond v. J.A. Croson, 488 U.S. 469 (1989); Adarand Constructors v. Pena, 515 U.S. 200 (1995). In short, conservatives on the Supreme Court have used Justice Harlan’s language—which in Plessy expressed sympathy for blacks in America—in order to strike down legislation for discriminating against whites. For these conservative justices, a “color-blind” Constitution is a two-edged sword: It means that government cannot discriminate against anyone, even if it is trying to help the very groups that have traditionally suffered discrimination in American history.

This infuriates me. No one likes discrimination, but when discrimination falls upon whites—in order to remedy the gross historical wrongs inflicted on blacks—I see no problem. And I disagree wholeheartedly with the contention that the Constitution is “color-blind.” If the Constitution were color-blind, the Fourteenth Amendment would have been unnecessary. This country fought a Civil War over slavery because the racial problems it created stood in hypocritical contrast to the bold “equality principle” that supposedly defines us. By 1861, America could no longer argue in good faith that “all men were created equal” when it made some men property. The Civil War acknowledged that slavery represented an injustice in a country committed to justice—at least on paper. The Fourteenth Amendment represented an attempt to remedy past wrongs by helping black Americans find their way into American society. In essence, it was a discriminatory amendment; it assumed that Congress and the States would pass laws intended to help black Americans escape their historical disadvantages and make progress toward true equality. In that sense, Justice Harlan was wrong to suggest that the Constitution is “color-blind.” The Fourteenth Amendment implicitly required government to consider race to erase the entrenched legacy of racism in the United States. It implied that race was relevant in America. And it implied that government could not solve the problem without making some distinctions based upon race. The Fourteenth Amendment, then, is essentially remedial; it aims to remedy the legacy of slavery. More to the point, it even empowers Congress to enforce “the provisions of this Article…by appropriate legislation.” See U.S. Const. Amd. XIV, § 5. Such “appropriate legislation” includes favorable discrimination intended to carry out the Amendment’s remedial purpose.

For some reason, the conservatives do not understand this. Instead, they pry Justice Harlan’s mistaken “color-blind” language from its contextual moorings to argue that government can never consider race, even when it is attempting to fulfill the Fourteenth Amendment’s avowedly remedial purpose to help blacks. Justice Scalia often cites Justice Harlan’s “color-blind” shibboleth to support his position that “State and local governments” may never “discriminate on the basis of race in order (in a broad sense) ‘to ameliorate the effects of past discrimination.’” Richmond v. Croson, 488 U.S. 469, 520 (Scalia, J., concurring in the judgment). He thinks that any racial discrimination—even to advance the “benign purpose of compensating for social disadvantages,” and no matter whether it falls upon blacks or whites—is categorically impermissible. Id. Thus, if government believes that blacks need assistance in a social area in which they have suffered historical discrimination, government cannot adopt legislation intended to improve the situation, because that would “discriminate against whites.” And according to Justice Scalia, the Fourteenth Amendment does not tolerate discrimination against whites in just the same way it does not tolerate discrimination against blacks.

I think this reasoning fails to comprehend the Fourteenth Amendment. Congress and the States ratified the Amendment because they recognized that America had a one-way race problem: Whites dominated blacks and subjected them to every imaginable disadvantage. To correct that imbalance, the Amendment authorized government to adopt legislation intended to help blacks, even if that meant discriminating (in a literal sense) against whites. Despite all huffing and puffing to the contrary, whites have never lost their dominant position in American society. They never will. The fact that they must suffer some “abstract” discrimination once in a while will not change their dominant position. Yet Justice Scalia seems to think that any discrimination—even if it is abstract and has no bearing on white people’s unassailable dominance in American society—violates an Amendment that impliedly authorized “abstract” discrimination against whites so that blacks could stand at least a chance to achieve some practical equality in America. Considering the issue in this light, it may seem fantastic that Justice Scalia believes this. But he is not alone: At least three other Justices have expressly signed on to his deeply flawed belief that the Fourteenth Amendment is “color-blind.”

Neither our Constitution nor our society is “color-blind.” And contrary to Justice Harlan’s assertion, the United States does “tolerate classes between citizens.” Although the law does not make black Americans “property” anymore, it is evident that black Americans still do not enjoy the same average advantages as white Americans. Legal equality does not translate into practical equality. Worse, I believe that the United States has no interest in securing equality for all. This is why I believe that Justice Harlan’s rhetoric about “a classless, color-blind society” is totally unfounded. No one wants to be equal in America. Americans want to outdo one another. They want to be unequal in wealth, power and status. They want to be “better” and “more privileged” than their neighbor, not “the same.” Whether or not black people achieve equal advantages means absolutely nothing to an average white man who just wants to make money and go home at night. For most white Americans, the fact that blacks have “technical, legal equality” is more than enough. They can “sort through the rest” on their way to success. This, of course, completely overlooks the monumental social handicaps blacks still face in our country. White Americans might empathize with these handicaps, but they really don’t care all that much about them. After all, whether a black man suffers does not affect whether a white man keeps working at his career. White Americans simply say: “They do not live like us, and it makes no difference to me. I need to get to work.” That indifference allows them to turn a blind eye to continuing racial inequality in America. It just really does not matter to an average white American.

If equality were really a concern, black Americans and white Americans would all go to prison in the same proportion. Black Americans and white Americans would live in relatively comparable housing and there would be just as many “bad white neighborhoods” as “bad black neighborhoods.” Black Americans and white Americans would all score about the same on standardized tests, and both races would earn roughly comparable incomes. Yet blacks and whites are not equal in these practical realms. Legal equality has not translated into practical equality. Classes do break down along racial lines. America does tolerate “classes” and “castes.” Sadly, those “classes” and “castes” reflect a fundamental racial divide more than 140 years after a Civil War intended to mend it. No matter what Justice Scalia says, racism is alive and well in America. And it affects blacks in a way that no white American can ever imagine.