On Volokh, David Bernstein proposed a question for Sotomayor:
In his dissent in Plessy v. Ferguson, Justice John Marshall Harlan wrote, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Do you agree?
I sent him an email, which I reproduce below out of a conviction that the benefit of good emails should not be restricted to the lucky recipient (that, and his post didn’t allow comments):
Great question! I’ve been arguing for years that preferentialists actually agree with the principle underlying the holding in Plessy, not Harlan’s dissent, just as they agree with the racist “moderates” who successfully blocked the “radicals’” effort to include colorblind language in the 14th Amendment.
One example, from Preferentialists Prefer Plessy
On a number of occasions I’ve asked, Do Preferentialists Prefer Plessy? And my answer is always the same: yes. As I wrote here:
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.”
And here:
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….
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Another example, from Equal Protection And Original Intent
…. In the fight over the form the 14th Amendment would take, the Radical Republicans such as Wendell Philips who wanted a clear requirement of colorblindness were defeated by the “moderates’ who wanted to protect the states’ ability to engage in discrimination, such as segregating schools, that they thought reasonable. How ironic that the heirs of those dead moderates are today’s preferentialists, who must defend Plessy in order to justify preferences….
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I could have quoted (but did not) from this long post replying to a series of arguments made by Yale law professor Jack Balkin, who had argued that
[t]he original understanding of the Fourteenth Amendment specifically rejected colorblindness, and the same Congress that adopted the Fourteenth Amendment also adopted a number of race conscious remedial measures.
I replied:
This is true. Balkin is also correct when he says that one can’t consistently be a firm originalist and believe that the 14th Amendment requires colorblindness. We colorblinders can wish that our side in this debate, the old radicals and abolitionists, had carried the day when the 14th Amendment was being debated, but they didn’t. They favored language that would have barred the states and the national government from making distinctions based on race, but they lost out to conservatives and “moderates” who wanted to preserve the right to make many of those distinctions. I wouldn’t think many of today’s preferentialists would be proud of their lineage, but there it is.
Later on I pointed out that Balkin’s opposition to the clear colorblind standard embodied in the 1964 Civil Rights Act
ironically places his view of the meaning of colorblindness in the Civil Rights Act in a line that goes back not to its framers but to its Southern critics, and from there back to the majority view in Plessy that Harlan was wrong because the 14th Amendment did not make the Constitution colorblind even in his limited sense, and from there back to the conservative-moderate block of Reconstruction Republicans who rejected the stringent colorblindness advocated by the old radicals like Thaddeus Stevens and Charles Sumner. In rejecting colorblindness modern racial liberalism has adopted quite an odd set of historical ancestors.
Anyone interested in this issue should read my whole post that I quoted from above, but that’s enough for now.
I do wish, with David Bernstein, that someone would ask Judge Sotomayor whether she accepts or rejects the colorblind principle.
