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  • Is Racial Equality Unconstitutional? by Mark Golub
  • Steven White
Is Racial Equality Unconstitutional?. By Mark Golub. (New York: Oxford University Press, 2018. Pp. xviii, 210. $65.00, ISBN 978-0-19-068360-3.)

This book intervenes in the legal debate between advocates of a “colorblind Constitution” and their critics by arguing for a rejection of certain [End Page 936] shared premises (p. x). In Mark Golub’s analysis, the conservative judicial project of colorblindness actually advocates for a particular type of racial consciousness: the protection of white rights against a range of proposed remedies for addressing persistent racial inequities. By accepting the framing preferred by color-blind constitutionalists, Golub argues, their critics neglect the “peculiar form of race-consciousness that is produced through demands for nonconsideration of race” (p. 167). To make his argument, Golub traces the notion of colorblindness through detailed examinations of Plessy v. Ferguson (1896) and Brown v. Board of Education (1954), before he discusses how conservative jurists used color-blind rhetoric in the late twentieth century to articulate a politically powerful defense against further efforts to combat lingering racial injustices that continue to the present day.

Golub’s primary contribution is theoretical rather than historical, but he uses historical scholarship to illustrate his theoretical argument. To connect his historical analysis to contemporary debates about the limits of the legal system for addressing racial injustice, Golub emphasizes the influence of white southern moderates in the aftermath of Brown. Their response to Brown, Golub argues, helped create a color-blind constitutionalist template designed to simultaneously oppose meaningful federal intervention into racial inequities while maintaining a rhetorical attack on Jim Crow discrimination. As Golub writes, white moderates “set the terms for an emergent national racial compromise reducible neither to the egalitarian demands of the civil rights movement, nor to the preservation of Jim Crow–era racial caste” (p. 102).

The model of color-blind constitutionalism that emerged from moderate responses to the Brown decision is not simply skeptical of color consciousness, as is often claimed. Rather, by equating white racism with the extremity of Jim Crow, color-blind constitutionalists are able to offer rhetorical support for racial equality while treating contemporary forms of racial discrimination as though they lay beyond the scope of proper redress. Golub traces this rhetoric from early rumblings (for example, Justice William Rehnquist’s dissent in Keyes v. School District No. 1, Denver Colorado [1973]) to more recent cases, like Parents Involved in Community Schools v. Seattle School District No. 1 (2007), where conservative jurists succeeded in limiting the capacity of a policy intervention to achieve school desegregation.

Some legal scholars might feel that Golub is picky at times (in describing work he is generally sympathetic to, he often notes that it “concedes too much” or “fails to appreciate” the particular interpretation he advocates [pp. 147, 80]). For historians, some of the narrative will seem familiar, as Golub relies on secondary sources for his historical analysis. On the whole, though, Is Racial Equality Unconstitutional? concisely ties together legal and historical scholarship to produce a clear intervention into a major debate in contemporary American politics. In doing so, it raises compelling (and disconcerting) questions about whether substantive racial equality is possible under the constraints of American constitutionalism. [End Page 937]

Steven White
Syracuse University
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