"A nation of minorities": race, ethnicity, and reactionary colorblindness.

• Author: Haney Lopez, Ian F.

INTRODUCTION I. COLORBLINDNESS: RADICAL, REACTIONARY, REJECTED A. The First Reconstruction B. Emerging Theories of Race, 1900-1950s C. The Liberal Argument for Colorblindness in Brown D. The Use and Rejection of Colorblindness as a Limit on Racial Reform II. FROM RACE TO ETHNICITY A. Structural Racism B. Race as Ethnicity C. Ethnicity and Early Critiques of Affirmative Action III. EARLY LEGAL ARGUMENTS FOR COLORBLINDNESS A. Incipient Critiques of Affirmative Action in the Legal Academy B. Alexander Bickel C. Richard Posner IV. ETHNICITY AND REACTIONARY COLORBLINDNESS A. Ethnicity and Antidiscrimination Law B. Whites as Vulnerable Minorities C. Formal-Race and Culture-Race V. BAKKE A. Statutory Colorblindness B. Against Colorblindness C. A Nation of Minorities D. Black Is White, White Is Black E. Integration, Societal Discrimination, and Diversity F. Powell, Glazer, and Ethnic Revival VI. CONSTITUTIONAL COLORBLINDNESS A. Richmond v. Croson VII. INEFFECTIVE LIBERAL OPPOSITION TO REACTIONARY COLORBLINDNESS A. William Brennan B. John Hart Ely and Paul Brest CONCLUSION I believe that there is a moral [and] constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.... In each instance, it is racial discrimination, plain and simple.

--Justice Clarence Thomas ([dagger])

INTRODUCTION

Justice Clarence Thomas's equation of laws designed to subjugate with those intended to foster equality is laughably absurd. "Laws designed to subjugate a race": surely this must include slave law, black codes, and Jim Crow regulations; the doctrine of discovery and the trail of broken treaties; the Chinese exclusion acts, naturalization limited to "white persons," alien land laws, and Japanese internment; and the legal instantiation of Manifest Destiny imposed on the northern half of Mexico, Puerto Rico, and Hawaii. Can Thomas really believe that the limited use of race-conscious means to promote integration constitutes instead another, equivalent instance of racial oppression? This claim merits only derision--but for the fact that it underlies contemporary constitutional antidiscrimination law.

Drawing on decisions and reasoning from the 1970s, the Supreme Court in the last three decades has moved ever closer to a full embrace of an anticlassification or colorblind conception of the Equal Protection Clause. (1) Under this approach, much criticized by legal scholars, the Fourteenth Amendment demands the highest level of justification whenever the state employs a racial distinction, irrespective of whether such race-conscious means are advanced to enforce or to ameliorate racial inequality. (2) Contemporary constitutional race law insists on a stark congruence between hostile racial practices on the one hand and efforts to respond to societal discrimination on the other. But when this risible equivalence is stated so baldly, the intellectual problem with contemporary colorblindness is immediately manifest: what justifies the strict moral and constitutional equation of affirmative action and Jim Crow?

This Article probes the conceptions of race and racism used to legitimize the rise of "reactionary colorblindness." By reactionary colorblindness I mean an anticlassification understanding of the Equal Protection Clause that accords race-conscious remedies and racial subjugation the same level of constitutional hostility. (3) I use this term to distinguish the current doctrine from colorblindness generally.

Given the long and sorry history of racial subordination in the United States, there is tremendous rhetorical appeal to Justice John Marshall Harlan's famous dissent in Plessy v. Ferguson that "[o]ur constitution is colorblind, and neither knows nor tolerates classes among citizens." (4) At first blush, it seems difficult to argue against the insistence that the state should finally eschew all racial distinctions. But as it stands now, this appeal depends almost entirely on the conflation of colorblindness as an ideal vision of a future society, and as a means to achieve this end. (5) In evaluating colorblindness as an actual mechanism for racial change, even Justice Sandra Day O'Connor--herself the author of many of the decisions shifting the Court toward reactionary colorblindness--belatedly recognized that context matters. (6) With cursory attention to context, one can trace a general shift over the twentieth century from colorblindness as a progressive demand to a reactionary one.

This metamorphosis in the political register of colorblindness is reflected in the arguments made by Thurgood Marshall the lawyer and Thurgood Marshall the Supreme Court Justice. As counsel for the NAACP in the late 1940s and early 1950s, Marshall repeatedly encouraged his colleagues to cite Harlan's famous injunction, seeking thereby to wield colorblindness against the racial degradation given constitutional sanction by Plessy. (7) Yet as the Court struck down Jim Crow laws and Congress proscribed major forms of private discrimination over the course of the 1950s and 1960s, civil rights activists increasingly recognized the need for state and public actors to use race-conscious means to target the edifices of inequality. In this new context, the call for colorblindness came instead from those opposing racial integration: the language of colorblindness, enshrouded with the moral raiment of the civil rights movement, provided cover for reactionary opposition to race-conscious remedies. By 1978, Justice Marshall found himself urging the Court in its first full affirmative action case to reject colorblindness. "It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America," Marshall inveighed. (8) As the nation's racial commitments swung from defending to dismantling formal white supremacy, the practical import of colorblindness shifted from promoting to defeating integration, and its valence slipped from progressive to reactionary.

Marshall did not prevail in his colorblind arguments, either for it as a lawyer or against it as a Justice. Today, colorblindness as a presumptive bar on affirmative action--that is, reactionary colorblindness--has been firmly read into the Fourteenth Amendment. The most striking feature of contemporary colorblindness lies not in the mere fact of its opposition to race-conscious remedies, however, but in the strict doctrinal equation of affirmative action and Jim Crow racism. Supporters of affirmative action, such as Justice William Brennan, conceded that race-conscious preferences raise troubling issues, for instance undermining liberal notions of individual merit and potentially fueling racially divisive politics as well as stigmatic notions of minority inability. (9) Indeed, Brennan's concerns led him to favor heightened, though not strict, constitutional scrutiny of affirmative action. (10) Yet the underlying premise of reactionary colorblindness is not simply that race-conscious remedies raise moral and political and even constitutional problems, but that benign and invidious discrimination are indistinguishable and equally pernicious. This Article's purpose is to carefully historicize this foundational assertion of noxious congruence.

In the 1960s, a broad consensus began to emerge that racism reflected more than the prejudice of discrete individuals but represented instead a deeply entrenched aspect of U.S. society. (11) This conceptualization implied a national obligation to undertake sweeping structural reform. Simultaneously, however, a countervailing racial theory developed in the 1960s and early 1970s, drawing on notions of ethnicity elaborated early in the twentieth century to celebrate pluralism among whites. This competing narrative suggested that racial subordination was largely past and that social inequalities, if any, reflected the cultural failings of minorities themselves, while further postulating that there existed no dominant white race as such, but instead only a welter of competing cultural groups defined in national origin terms, for instance, Irish- or Italian-Americans. Under this conception, not only did the supposed absence of entrenched disadvantage strip affirmative action of its primary rationale, but preferential treatment for non-whites amounted to invidious discrimination against other "minorities"--that is, the discrete national origin groups into which whites had been disaggregated.

As arguments for reactionary colorblindness developed in the 1970s, its proponents confronted the task of explaining why the command of equality proscribed efforts to undo the legacy of centuries of racial oppression. These arguments could not be made solely in legal terms, but required as well the elaboration of a legitimating account regarding the nature of race and racism in the United States. Placing developments in equal protection law in the larger context of evolving racial ideas, my primary aim in this Article is to demonstrate that race-as-ethnicity provided the first coherent intellectual justification for reactionary colorblindness. My secondary aim is to critique this impoverished account of race, as well as reactionary colorblindness generally.

I start from the premise that race constitutes a socially and legally produced hierarchical system structurally embedded in U.S. society. (12) I insist on this irrefragable point not because my argument depends on a specific conception of racial subjugation, but because it requires the recognition that a general dynamic of systemic group subordination lies at the core of race in the United States. (13) Charles Black wrote in 1960 that the many forms of racial oppression were "matters of common notoriety, matters not so much for judicial notice as for the...