It was once widely believed that brown v. board of education (1954, 1955) had removed the last vestiges of race-consciousness from the Constitution. Many observers saw the Brown decision as a vindication of Justice john marshall harlan's lone dissent in plessy v. ferguson (1896). Harlan's critique of the majority's separate but equal doctrine was summarized in these famous words: "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." In the years between Plessy and Brown, the ideal of a "color-blind" Constitution served as one of the central tenets of liberal constitutionalism.
Today, however, some leading liberal constitutionalists argue that adherence to the ideal of a color-blind Constitution was a mistake. It has been only recently discovered that "color-blindness" was all along a "myth" or, at best, a "misleading metaphor." The principal reason for the volte-face on the part of liberal activists is summarized by Laurence H. Tribe, who writes that "judicial rejection of the "separate but equal' talisman seems to have been accompanied by a potentially troublesome lack of sympathy for racial separateness as a possible expression of group solidarity." Indeed, it seems to be true that the expression of racial or ethnic group solidarity does require something like the old—and once justly decried—"separate but equal doctrine." Tribe's tergiversations indicate, however, that it is not yet entirely fashionable to speak openly about the desirability of returning to separate but equal. Attacks on the idea of a color-blind Constitution, on the other hand, are legion.
A curious feature of the Brown decision is that it did not make a comprehensive condemnation of racial classifications or entirely overrule the Plessy decision. Only racial classifications that were said to produce "feelings of inferiority" were deemed to violate equal protection, and from the psychological evidence adduced by the Court, this was "proven" to be the case only in the context of grammar school education. Presumably, racial segregation that did not stigmatize one race or ethnic group as inferior would survive the test adumbrated in Brown. Thus, Brown did not overrule all racial classifications—or treat them as suspect classifications—but left open the possibility that under certain circumstances racial classifications could be "benign" if the classification were designed to produce racial class remedies rather than racial class injuries. Resort to the doctrine of strict scrutiny in the Brown case would probably have effectively fore-closed the future use of race as a legitimate classification.
Perhaps the best expression of the new understanding of "separate but equal" was made by Justice harry a. blackmun in his separate opinion in regents of university of california v. bakke (1977): "I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful.… In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently." Justice Blackmun could have used the word "separately" in lieu of "differently" without changing his meaning in the slightest. Indeed, it has been the advent of affirmative action that has generated the greatest controversy about race-consciousness and the Constitution. At its inception, the proponents of affirmative action assured a skeptical world that it was only a temporary measure to be employed in the service of equality of opportunity. But now, some twenty-odd years after its appearance, affirmative action is looked upon unabashedly by its supporters as a means of securing racial class entitlements.
Inevitably, the test of racial class entitlements—and racial discrimination—is the concept of racial proportionality. This idea assumes that, absent discrimination, the races will freely arrange themselves in the various aspects of political and private life in exact racial proportionality and that when they do not, there is a prima facie evidence of discrimination (or underrepresentation) that eventually must be rectified by any number of coercive remedies. This situtaion, of course, presents the alarming spectacle of a nation one day looking upon all civil rights as nothing more than racial class entitlements. But any nation with the slightest concern for the lessons of history would never self-consciously allow itself to regard the rights of individuals as nothing more that the by-product of racial class interests. Even though we may be assured that the ultimate ends of such programs as affirmative action are "to get beyond racism," those who advocate such policies simply have not thought out the likely consequences, believing, no doubt, that a means can never become the end itself.
The constitutional doctrine that most contributes to race-consciousness is that of discrete and insular minority. The underlying premise of this doctrine is that there are certain racial and ethnic minorities that are permanently isolated from the majoritarian political process and therefore cannot vindicate their racial class interests by merely exercising the vote. The concept of the discrete and insular minority assumes that American politics has always been dominated by a monolithic majority that seeks only to aggrandize its own racial class interests at the expense of the various discrete and insular minorities. Thus, the moral authority of the majority—indeed, of majoritarian politics itself—must be questioned, if not undermined. In fact, some legal scholars argue that the only way that the rights of discrete and insular minorities can be absolutely guaranteed is in those instances where legislation disadvantages or injures the majority. Thus, one could argue that the Constitution not only permits affirmative action but requires it. It is only where the majority suffers a positive disadvantage that one can be certain that discrete and insular minorities are not harmed by the operation of the majoritarian political process. Fortunately, the Supreme Court has never accepted this negative version of the categorical imperative.
A bare acquaintance with history shows the impossibility of such a simplistic view of American politics. Could such a monolithic majority bent on the exclusive aggrandizement of its own racial class interests approve the Declaration of Independence and the Constitution? Ratify the Bill of Rights? Fight the Civil War to overturn the dred scott v. sandford (1857) decision? Ratify the thirteenth amendment, fourteenth amendment, and fifteenth amendment ? Pass the civil rights act of 1964 and the voting rights act of 1965? These great events (and a host of others) in American constitutional history make it incredible that learned people—including the Justices of the Supreme Court—could believe that the concept of discrete and insular minorities was in any way an accurate reflection of American political life. American life is too subtle and complex to be understood exclusively in terms of racial class interests.
The Framers of the Constitution knew that class politics, in whatever guise it appeared, was incompatible with constitutional democracy. The whole thrust of james madison's belief in the "capacity of mankind for self-government" was his conviction that under a properly constructed constitution, majorities could be rendered capable of ruling in the interest of the whole of society rather than in the interest of the part (i.e., in the interest of the majority). The structure of society itself, with its multiplicity of interests and accompanied by a constitutional structure informed by the separation of powers, held the prospect that majorities could act in a manner consistent "with the rules of justice and the rights of the minor party." Madison called these majorities constitutional majorities as distinguished from numerical majorities. Many legal scholars today, however, simply proclaim that every majority is ipso facto a special-interest group and that majorities cannot therefore be trusted to rule in the interest of the whole. Some even conclude that courts should be cast in the role of virtual representatives of discrete and insular minorities, because judges are isolated from the majoritarian political process and can therefore "rule" in the interest of the whole of society. Others, however, have not forgotten such infamous decisions as Dred Scott, Plessy v. Ferguson,lochner v. new york (1905), and Korematsu v. United States (1944) and are quick to recognize this scheme as a form of judicial oligarchy. Virtual representation is an idea that is incompatible with republican government.
It has become something of an orthodoxy among legal scholars to ridicule the moral imperative of racial neutrality as the driving force of the Constitution. They retort that race has always been a factor in American political life and it is simply unrealistic to think that it will not be so for the foreseeable future. Because race-consciousness will inevitably be part and parcel of constitutional calculations, it is more honest to advocate them openly than to seek a deceptive refuge in the ideal of a color-blind Constitution. It is true that America's constitutional past is all too replete with race-consciousness. After all, the Constitution itself gave support to slavery. The toleration of slavery in the Constitution was a product of political necessity. The Constitution itself—and thereby any prospects of ending slavery—would never have been accepted without compromise on the issue of slavery. But most of the Framers of the Constitution looked upon that compromise as a necessary (but temporary) departure from the principles of the regime that had been enunciated in the Declaration of Independence. The best they could do under the circumstances was to fix those principles in the Constitution so that the Constitution could one day provide the basis for emancipation. The American founding was incomplete, but the Constitution looked forward to its completion by putting, in abraham lincoln's words, "slavery on the ultimate road to extinction." Lincoln always interpreted the Constitution in light of the principles of the Declaration. In doing this, he was following the lead of the Framers themselves.
In 1857, Lincoln gave an account of the aspirations of the American polity and the role the Declaration played in fixing constitutional aspirations. He noted that the authors of the Declaration "did not mean to assert the obvious untruth, that all were then actually enjoying equality, nor yet, that they were about to confer it immediately upon them." In fact, Lincoln noted, they had no power to "confer such a boon," had they been inclined to do so. Rather, "they meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all, constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere." With the Constitution viewed as the means of implementing the "standard maxims" of the Declaration, the nation has made tremendous progress since the Civil War and Reconstruction.
Yet, at almost the eleventh hour, liberal constitutionalists want to abandon those principles that have been the source of progress. Surely the progress came too slowly and advanced by fits and starts, according to the political circumstances of the day. But no one can deny that progress occurred and that it resulted directly from our "ancient faith" that the Constitution should be race-neutral. Now we are told that progress in race relations has not gone far enough or fast enough and it is time to return to a race-conscious Constitution to implement a newer, more certain view of racial progress. The return to race-consciousness also means that sooner or later we will have to pronounce the principle of equality "an empty idea." The reason is simple: equality is a principle that is incompatible with group rights and preferential treatment. One prominent author has argued that because it cannot comprehend the "rights of race," "equality is an idea that should be banished from moral and legal discourse." Indeed, group claims—including racial group claims—are not claims of equality, but claims of inequality, and they necessarily rest upon some notion of "separate but equal." Class claims deny the principle of equality because they ascribe to individuals class characteristics that are different—and necessarily unequal—from those of individuals occupying other classes. If there were no inequalities implicit in class distinctions, such distinctions would be superfluous and there would be no need to substitute group rights for individual rights.
Almost the whole of American constitutional history has been a history of the nation's attempt to confine the genie of race by powerful constitutional bonds; yet the most sophisticated constitutional scholars today advocate the release of the racial genie once again, this time to act as a benign, rather than destructive, force. This is dangerous advice because this time the genie will not be restrained by the moral principle that "all men are created equal."
Edward J. Erler
Erler, Edward J. 1989 Equal Protection and Regime Principles, Pages 243–283 in Robert L. Utley, Jr., ed., The Promise of American Politics. Lanham, Md.: University Press of America.
Strauss, David A. 1986 The Myth of Colorblindness. Supreme Court Review 1986:99–134.
Tribe, Laurence H. 1988 American Constitutional Law, 2nd ed. Pages 1474–1480. Mineola, N.Y.: Foundation Press.
Westen, Peter 1982 The Empty Idea of Equality. Harvard Law Review 95:537–596.