It is one of the many ironies in the strange career of racial equality that in order to defend racial preferences liberals today rely on purposefully ambiguous language resulting from the desire of the framers of the 14th Amendment to preserve segregation and states rights, while the critics of racial preferences, who are usually viewed as conservatives, echo the radicals who wanted to proscribe all racial distinctions. Today … these “conservatives” are much more likely than liberals to honor Justice John Marshall Harlan’s eloquent assertion in his Plessy v. Ferguson dissent that “our Constitution is colorblind.”
the legal theory underlying the Plessy decision is that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. The preferentialist argument today is an unwitting echo of Plessy.
Now comes Cass Sunstein, distinguished professor of law at the University of Chicago, to provide yet another example. He criticizes Justice Thomas (unfairly, I think) for not “seriously consulting history” in his opposition to affirmative action.
Harlan cannot contend that the text of the document “as it’s drafted” mandates his conclusion. From Harlan’s opinion, we learn essentially nothing about We the People’s original understanding of the relevant constitutional provisions. Worse, the modern consensus, among legal historians, is that as a matter of history, Harlan had it wrong!
Sunstein himself, however, can’t believe history is very important, since he agrees that “[o]f course segregation is unconstitutional, but the reason is complicated rather than simple, and it is not that justices can simply stare at the Constitution and declare it so.”
Arguing that Thomas and those who agree with him reach their conclusion about the unconstitutionality of racial discrimination “simply star[ing] at the Constitution and declar[ing] it so” is about as fair and accurate as saying that supporters of racial preferences don’t even look at the Constitution at all.