Affirmative Action and the Color-Blind Doctrine: Constitutional or Constructed by Race?
Introduction
Diversity, equal opportunity, and intergenerational mobility — these core benefits may be on the line as we await the Supreme Court’s decision on affirmative action, Students for Fair Admissions’ v. Harvard; Students for Fair Admissions v. University of North Carolina. Now that affirmative action’s legacy hangs on the Court’s interpretation, it is more urgent than ever to re-examine the principle underlying the Court's past jurisprudence on equity, race, and personhood — colorblindness. Though colorblindness as a social theory has recently been challenged in academic debates, colorblindness as the legal doctrine that law ought not make racial distinctions in the enjoyment of civil rights has been a stable mainstay of Constitutional law [1]. A simplified and conservative appeal to colorblindness threatens to strip affirmative action of its protected status and may gain greater power over other race-conscious policies. To understand how colorblindness might function as a doctrine in this possible future, we must ask how and why colorblindness gained its supremacy in the Court. Is the color-blind doctrine an inseparable and intrinsic part of Constitutional tradition that we are fated to forever wrestle against?
The doctrine of colorblindness was first introduced in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896). History remembers Justice Harlan as a patriotic visionary who redeemed the infamous “separate but equal” doctrine through a dissent, a seed for the upcoming era of civil rights jurisprudence which spoke clear, simple truth: “Our Constitution is color-blind” such that “all citizens are equal before the law.”[2] The foundational nature of this doctrine cannot be understated — Justice Marshall himself declared this dissent to be his “Bible” in landmark cases like Brown v. Board of Education (1954) [3]. And like religious doctrine, Harlan’s color-blind doctrine seems to have gained a near-sacred place in modern readings of the Constitution as a guarantee of liberal equality. In their dissent of Grutter v. Bollinger (2003)’s defense of affirmative action, contemporary Justices Clarence Thomas and Anthony Kennedy even cited Harlan’s phrase that “Our Constitution is color-blind,” considering colorblindness to be the very “principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.”[4] Colorblindness has appeared so integral to modern jurisprudence that, surely, the Constitution itself and the color-blind doctrine must share the same theoretical origin. If nearly every modern constitutional reading of race and equity has been framed by the color-blind doctrine, aren’t constitutionality and colorblindness effectively inseparable?
A careful analysis of Harlan’s dissent suggests differently. The above historicization omits a critical distinction in the conversation between Harlan and Plessy: though both agreed that racial discrimination constituted unequal treatment, they disagreed significantly on why equality was owed. Whereas Harlan protested racial discrimination as an unfair distribution of rights, Plessy protested discrimination as an unfair denial of his own claim to white privilege [5]. This article argues that this divergence is a product of Harlan and Plessy’s fundamentally different understandings of race and personhood. Harlan treats race as an inextricable part of one’s identity whereas Plessy conceives of race as a separable, external, and manipulatable that the individual owns and controls like property. It is ultimately Harlan’s unwillingness to compromise in his conception of race as an inextricable identity that motivates the color-blind account. In other words, our color-blind doctrine was not self-evidently manifested from the Constitution’s principles but rather constructed by a personal, subjective interpretation on the nature of race — a conclusion that casts doubt on the supposed immutability of colorblindness in our Constitution today.
Diverging Definitions: Race as Essential Identity or Property?
Whereas in case law the plaintiff’s reasoning is only secondary or supplementary to the more important final verdict, in the interest of constructing a deeper legal analysis, understanding Plessy’s original arguments is key to understanding how and why Harlan came to his specific judgment. Unearthing this conversation between Plessy and Harlan, therefore, first requires an analysis of their differing explanations for why Louisiana’s segregated railway carts are unconstitutional given the Fourteenth Amendment. Harlan makes the more familiar argument that segregation is a violation of equal protection under the law, specifically to the right of interstate transit, while Plessy considers segregation an abridgment of his right to property. In an unexpected move, Plessy claims a loss of “the reputation of belonging to the dominant [white race]” since “white race is property in the same sense that a right of action or of inheritance is property.”[6] Plessy’s argument should strike us as unfamiliar, yet perhaps only because our modern jurisprudence has already been primed by Harlan’s. What is more puzzling, then, is why Harlan diverged so much from the plaintiff’s own account with whom he claims to agree with — and, further, why Harlan makes no mention of Plessy’s argument in his judgment.
This stark divergence is best explained by Plessy and Harlan each holding fundamentally different conceptions of race. Harlan’s more familiar argument operates from an understanding of race as an intrinsic part of one’s identity — that is, race is a inseparable attribute that accurately describes a part of one’s identity. A modern understanding of colorblindness may seem to imply the opposite, that race is extrinsic, a separable label on or addition to the self. Harlan, on the other hand, wants to distinguish that race is extrinsic and extraneous race only legally, not generally. That “the law [should regard] man as man”[7] is only ever defended as a legal rule of thumb, not a true philosophical ideal or a real reflection on the nature of race. By comparing race to “a caste” or “class,” he acknowledges that race has a firm existence and social power in the “real world.”[8] As such, he carefully picks active verbs of perception such as “takes account of,” “regards,” and “tolerates”[9] in the negative to show that the race-blind doctrine requires active effort on the part of judges to escape the natural, human tendency to consider race and to deliberately shift their perception away from race. The color-blind doctrine, therefore, is not a statement that color does not exist but rather a plea to try dismissing color when practicing law — a feat that assumes that race is otherwise existing as a habituated, core part of our identities that we often consider intrinsic. While perhaps seemingly semantic, this analysis is crucial for establishing Harlan’s core beliefs on race as part of a tradition that is wholly different from Plessy’s.
In contrast to the familiar tradition of race-as-identity that Harlan operates under, Plessy presents a novel understanding of “race-as-property” that has three key characteristics: race is external to the person, carries a material value based on its social reputation, and is manipulatable by the individual. These three characteristics are inferred from a close reading on the only line from the text attributable to Plessy’s original argument:
“the reputation of belonging to the dominant[…] white race is property in the same sense that a right of action or of inheritance is property.”[10]
The first external nature of Plessy’s version of race is apparent upon comparison to other definitions which internalize race within one’s identity. One such definition extends further back to Dred Scott v. Sandford (1857), which conceived blackness as an inherent badge of servitude, a state of being “impressed [with] such deep and enduring marks of inferiority and degradation” that is measurable even by the preponderance of blood [11]. Whereas this definition of race affixes race as an integral feature, part, or label to the person, Plessy’s conception noticeably omits any mention of the self in direct relation to race. Instead he compares race — or rather, the reputation associated with it — to property which is an inert, inorganic, impersonal entity separate from the self.
This interpretation of property as impersonal and external is further reinforced through the second feature of Plessy’s conception of race: its material value. Plessy is noticeably unafraid of using the term “property '' in its full, literal sense as a valuable good. Property can both transfer ownership via intergenerational inheritance and grant material benefits — two features that Plessy associates with whiteness. Whiteness both carries a physical dimension as a marker that is inheritable across generations and grants material privileges to, say, free train car access or rights to land ownership. Though novel and jarring in some respects, this conception of race is highly sensitive to the fact that race produces material costs or benefits depending on its appreciated value or reputation in society.
Finally, Plessy’s conception of race as property is notable insofar as it enables the individual to practice agency. Whereas other definitions of race as an unfair burden of servitude or as a socially inextricable identifier put the individual under the subject of their racial identity, Plessy’s definition radically imagines an opposite case. By specifically listing “inheritance” and a “right of action” as the types of interactions a person can make with race, Plessy presents a dynamic understanding of race that preserves the centrality of the individual and which can be harnessed to serve the agent.
Distilling the Color-Blind Doctrine
Plessy’s above divergence with Harlan on race constitutes more than a disagreement of mere definitions — this between-the-lines disagreement shapes colorblindness into the doctrine seen on Harlan’s dissent, and by extension, the doctrine used today. Harlan’s underlying resistance to race-as-property informs his creation of an anti-racist doctrine that both requires and perpetuates his identity-based account of race. This is not to say that Harlan must have preferred this conception of race for the sole intention of crafting a bulletproof anti-racist doctrine. Regardless of whether Harlan strategically rejected race-as-property for his doctrine or simply believed in the intrinsic conception of race, there remains a close, effective, and necessary relationship the features of the color-blind legal doctrine and the underlying belief in the intrinsic conception of race. Evidence of this close relationship is seen in how the three features of race-as-property — externality, materiality, and manipulability — each respectively re-appear within and help in materializing three key structures of the color-blind doctrine.
The first key feature of colorblindness that is strengthened by Harlan’s rejection of race-as-property is its simple ease of application. Harlan’s norm that “law regards man as man”[12] is an argument for the consistent treatment of every person despite unique, inherent qualities such as race, gender, or class. Features inherently tied to the individual constitute an area that is off-limits for jurisprudence in the same way that attacks against individual features in ad hominem arguments are seen as irrational in discourse. This presents a strong case against making racial distinctions. If, however, race is no longer a trait inherent but rather external to the individual, racial distinctions in the law are no longer strictly off-limits since consideration of race would no longer be an invidious judgment of one’s identity. Determining the relative fairness of race-based judgments would then depend on the exact infringement or treatment of the person’s “access” to the property of race on a case-by-case basis. While not a conceivably impossible task, this resulting anti-racist model was certainly murkier from Harlan’s point of view — and murky enough, in Harlan’s judgment, to prefer his intuitive color-blind formula. Only through the reaffirmation of race as an integral part of one’s identity could Harlan preserve an anti-racist formula that is easily and widely applied.
Race-as-property threatens more than Harlan’s desire for a simple model — the second feature of race as an expression of material conditions contradicts Harlan’s desire to keep law concerned with normative obligations over socioeconomic conditions. Harlan’s legal preference for normativity likely originated in opposition to legal toleration of racism as an inherent, unsolvable feature of social beliefs and economic structures. Justice Henry Billings Brown’s majority argument exhibits this defeatism when arguing that “legislation is powerless to eradicate racial… distinctions” to which Harlan starkly refuses “race hate to be planted under the sanction of law.”[13] Just as Brown’s defeatism encourages Harlan to consecrate law as a set of ideals that does not stoop to the social agenda or the limits of material concerns, so too does Plessy’s invocation of the material side of race inflame and entrench Harlan’s legal hypersensitivity to avoiding socioeconomic considerations. Plessy’s use of race-as-property is inherently material, seeking to leverage the law to dispute the monetary and social value of whiteness he was denied. Such a legal system would necessarily need to evaluate and consider the social, economic, material conditions of race in society. Harlan, perhaps mistakenly, perceives the consideration of relative social conditions in jurisprudence as a threat to justice. If social conditions are given consideration in the law, then the weak-willed defeatism of the Brown majority could prevail, justifying present social resistance to anti-racism as an excuse for the law not to do its necessary work. As such, Plessy’s invocation of the social — while albeit different from Brown’s — strengthens Harlan’s anxieties, encouraging a color-blind doctrine that fixates on purely legal, normative obligations over socioeconomic conditions.
Lastly, race-as-property gives the individual extra agency in manipulating their race — an exercise of individual agency over the law that Harlan’s color-blind model protests. Initially, race-as-property carries a modern appeal of granting individuals the ability to own their own racial identities. However, within this case, Plessy’s own method of defining his race may be an example of a level of manipulability that creates a possible unfair legal advantage for a specific individual over the standard of the law. As opposed to identity-based definitions that would lock individuals into singular social or “biological” categories of race, Plessy’s conception of race grants him a sort of simultaneous dual-identity. Plessy operates fluidly across boundaries in the context of the law; he interacts with the law both as a Black man when announcing himself as such in purposeful, direct violation of the Louisiana statute and as a white man in his written claim to his denied white privilege. While Plessy may indeed be justified in claiming multiple racial identities for himself, to grant Plessy freedom to sit in the white coach and to strike down “separate but equal” on these grounds would be a conditional enforcement of equality, limited to hard-to-replicate, unfair, and non-universalizable cases. While Plessy can invoke the Fourteenth Amendment on the grounds of his specific racial pedigree, not all people who identify as Black have this same ability. Even if this were not an issue, in an ironic twist, accepting Plessy’s defense would necessitate further questions as to how much or little “preponderance” of white blood would qualify as sufficient grounds for somebody to invoke the claim to white privilege via the Fourteenth. As such, by rejecting the property-based definition of race and its aforementioned implications, Harlan crafts a color-blind doctrine that limits the degree of non-universalizable, individual autonomy over legal standards.
Implications for Today
These three disagreements on the nature of race shaped, strengthened, and produced three core features of the color blind doctrine — ease of application, prioritization of legal norms over material condition, and universalizability over conditionality. colorblindness was not a “natural” manifestation of evident Constitutional norms but rather an internal, sub-legal struggle of opposing beliefs of race and personhood. While the color blind doctrine undeniably maintains an effective internal logic and is consistent with much of the Constitution, the doctrine was ultimately the product of a subjective disagreement of race that operated beyond the lines of the Constitution. This poses implications that are critical not only for the origin and nature of colorblindness but also its application today. Whereas the Constitution’s words are effectively static, interpretation is always flexible — and this particular analysis of Plessy points out that the implicit conceptions of race, not even articulated clearly in interpretations, might be even more flexible. If race, the very root of the colorblind doctrine, is flexible and subject to reconsideration, then it follows that the application of colorblindness in the Constitution may be at least as flexible or revisable to new understandings of racial identity.
Even within these two conceptions of race, we can trace similarities and differences to conceptions of race popularly held today. In some areas, Harlan’s conception of race seemed to operate as a product of his time, unwilling to, say, accept that racial reputation incurs material, monetary harms — a view that is now much more widely accepted, especially in line with critical race theory. In other cases, however, Plessy’s own conception of race proved untenable beyond specific circumstances; Harlan seemed to legitimately identify an issue with Plessy’s conception of race in that it entertained a slippery slope of granting equality on, essentially, the “preponderance of white blood.” Rather than endorse any single definition of race or attempt to advocate for a “proper” reinterpretation of the color-blind doctrine, this analysis emphasizes that conceptions of race, and therefore colorblindness, can be recontextualized, reconceived, and reshaped.
When discourse often reveres the spirit of the Constitution and sanctifies the rule of law as rational and consistent, it can be easy to treat jurisprudence as monolithic or “objectively” posited by some top-down process of legal analysis. Arguments in favor of repealing affirmative action often appeal to this, citing the modern justifications race-conscious admissions as a departure, a straying from the “true,” static sense of Constitutional colorblindness. This analysis, however, argues that colorblindness — especially as a doctrine held by interpretation and not codified within the Constitution — is anything but static. The conception of the color-blind model as a product of Harlan and Plessy’s disagreement over the nature of race should remind us how artificial and malleable constitutional law can be in the realm of race. When logically applied, a subtle difference in the definition of race could necessitate and justify an anti-racist model that was totally blind to any racial differences, a progressive system of redress that arbitrated the material inequalities between races, or a “claims court” of racial privileges that could enforce even greater arbitrary racial distinctions.
Like any legal analysis, this article fails to promise a clear solution to the ongoing judicial attack on affirmative action — it does, however, relocate our discussion of and understanding of affirmative action’s constitutionality. Determining affirmative action’s constitutionality depends not necessarily on the proper application of colorblindness or even the constitutionality of the color-blind doctrine itself. Rather, it depends on the constitutionality of the subjective definition of race assumed by colorblindness. By this token, if the largely conservative Court is indeed seeking to properly evaluate constitutionality, affirmative action is not necessarily fated to be unconstitutional on the mere grounds that Harlan’s colorblindness would protest it.
However, in the very likely case that the Court rules against affirmative action, this analysis still gives us something to work with. Latent within the Court’s ruling will be some re-evaluated, re-conceptualized definition of the nature of race. It is this new definition of race that we will know motivates the Court’s judgments. If future judgments against race-conscious policies will rest on this definition, then proponents of race-conscious policies can arm themselves in counter-attempts to restore or reinvent race-conscious policies by framing test cases that appeal to this definition. Although the current fate of affirmative action is largely out of our hands, we do find a new playing field in the Court’s upcoming conception of race on which future reforms and countermeasures are still very much in our hands. What exactly this conception of race will be — whether it be a mere repetition of Harlan’s, a modern conservative reading, or an attempt at a more holistic, socially defined conception of race — remains to be seen.
Bibliography
Randall Kennedy, “Colorblind Constitutionalism,” Fordham Law Review 82 no. 1 (2013): 2-3.
2. Plessy v. Ferguson, 163 U.S. 537 (1896)
3. Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero. New York: Simon & Schuster, 2021.
4. Grutter v. Bollinger, 539 U.S. 306 (2003)
5. 163 U.S. 537 (1896)
6. Ibid.
7. Ibid.
8. Ibid.
9. Ibid.
10. Ibid.
11. Dred Scott v. Sandford, 60 U.S. 393 (1856)
12. 163 U.S. 537 (1896)
13. Ibid.