The Color Consciousness of Constitutional Color Blindness

In reading Mark Golub's quite thought-provoking book, Is Racial Equality Unconstitutional?, I found myself returning throughout to two canonical theorists not engaged in the text: Karl Marx and Alexis de Tocqueville. Golub's excellent exploration of white supremacy and constitutional politics is in many ways carrying forward Marx's critique of "rights" and the liberal constitutional state developed in "On the Jewish Question" and updating Tocqueville's observation in Democracy in America that formal legal equality and flourishing white supremacy are compatible political projects. Marx's critique was spurred, in small part, by a report from Tocqueville's travel companion Gustave de Beaumont: "'There is not, in the United States, either a state religion or a religion declared to be that of a majority, or a preponderance of one religion over another. The state remains aloof from all religions.'"¹ Marx zeroes in on the fact that a religion-blind constitutional state may exist harmoniously with, and indeed help reproduce and secure, a social condition where "religion not only continues to exist but is fresh and vigorous."² Echoing Marx, Golub criticizes a Supreme Court that "privatizes racial preferences as beyond the legitimate concern of a color-blind state" and argues that the col-or-blind project enables and ensures the continuity of a polity "fundamentally structured by relations of racial domination and subordination."³ Tocqueville directly addressed the social conditions of white supremacy in the United States. Although slavery still existed when Tocqueville toured the country, he noted the virulence, or perhaps vigorousness, of white supremacy in those areas where slavery had been formally abolished. Here is Tocqueville: "the prejudice rejecting the Negro appears to increase in proportion to their emancipation and that inequality cuts deep into social customs, as it is effaced from the law."⁴ Golub is following a similar path of inquiry when he states that he seeks to "understand the social processes through which racial subordination is rendered ordinary, legitimate, and just" in an era of formal legal equality articulated through both the constitutional doctrine and constitutional vision of "color blindness."⁵

Golub trains his fire on the fantasy of the "color-blind" Constitution. Entering into constitutional law with Justice Harlan's famous dissent in Plessy v. Ferguson (1896), today colorblindness is a pillar of constitutional faith on the political Right. It is a theoretical cudgel used to whack even the most mild and limited programs designed to address the legacies and contemporary practices of racial exclusion and domination. To illustrate, Golub cites Justice Clarence Thomas quoting Justice Harlan in a 2007 case striking down a democratically enacted (rather than judicially imposed) integration plan in Seattle's public schools: "I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy: 'Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.' And my view was the rallying cry for the lawyers who litigated Brown."⁶ Golub does a masterful job of exploding this smooth citational line linking Harlan's dissent in Plessy v. Ferguson, the Court's opinion in Brown v. Board of Education (1954), and today's right-wing majority on the Court. He offers a superbly rich and nuanced reading of both the facts and reasoning in Plessy v. Ferguson to demonstrate that even at its inception in Justice Harlan's dissent, "color blindness" was a confusing and contested concept that surely was not blind to race in either law or society. As well, he helpfully reminds us that the phrase "our Constitution is color-blind" never appears in Brown v. Board of Education. Moreover, in the hands of the current Court majority it functions as a paradoxical doctrine, relying on the very thing it claims to erase: color consciousness. That is, color blindness is a form of "white identity" politics on the Right.⁷ And, Golub contends, this project surprisingly constitutes the conceptual and political grounds of its would-be liberal critics.

The last point strikes...