I recently discussed (here and here) two initial posts on colorblindness on Yale law prof Jack Balkin’s fine new blog. It would be repetitive to summarize them here, but you’ll probably need to look at all four earlier posts (his two, which are linked in mine, and my two) to follow this latest round.
Yesterday Jack replied with a lengthy, thoughtful rejoinder that nicely reveals a number of the differences between preferentialists and colorblinders (which do not perfectly coincide with liberals and conservatives, although the fit is close).
Although I will here respond to some of his points, you should read his entire post. For example, I’m not even going to touch his dazzling discussion of the seemingly endless permutations and combinations of “symmetry,” asymmetry, intent, etc., or his attempted deconstruction of “on the basis of.” I’m sure it’s all relevant, and possibly profound.
As I read Jack (his writing is rich enough that your reading may vary), his fundamental point is that colorblindness/neutrality/symmetry is some combination of undesirable and impossible. In fact, speaking of deconstruction, it occurred to me that Jack regards neutrality about the same way that postmodernists regard objectivity.
Two of his central paragraphs begin as follows:
Existing Supreme Court doctrine insists on symmetry, in the sense that both discriminations against whites and against blacks are treated with strict scrutiny– narrowly tailored to promote a compelling state interest with no less restrictive alternatives….
But– and here’s the point– in practice, almost nobody really is in favor of symmetry, because everybody understands that being black or Latino puts you in a very different social situation than being white in the United States….
I submit that a hell of a lot more than “existing Supreme Court doctrine” insists on symmetry, which I prefer to call neutrality (which is at the core of colorblindness). It is not simply the current Supreme Court but the text of the Constitution that locates rights in individuals. The 14th Amendment’s guarantee is that no person can be denied equal protection of the laws. That means, or should mean, that every person — not simply every black person or every Latino person or every disadvantaged person, but every person — has an equal right not to suffer disadvantage because of race.
Jack argues that “our actual practices and our sense of what is fair just do not conform to the principle of symmetry,” but I think he is simply wrong about this. Not only do I myself think fairness requires barring the state from making racial distinctions among its citizens, but I believe most people believe that. Certainly people favor help to the disadvantaged, but they resist the racialist branding of some minorities as by definition disadvantaged, and so they resist aid being earmarked by race. As they should.
Indeed, Jack goes further and argues, as I read him, that neutrality is unfair because it protects pre-existing privilege. This explains why it is necessary for him and others of his persuasion to reject the not only the “facial” but the clearly and articulately proposed and defended neutrality of the 14th Amendment (“no person”) and the Civil Rights Act of 1964 and deconstruct their true meaning as one of “special rights” for minorities.
What about the Civil Rights Act of 1964, then? It’s a terrific question, and it cracks the case for colorblindness wide open, because it brings us to the issue of baselines. John argues that laws like the 1964 Civil Rights Act that guarantee blacks equal opportunity clearly are designed to help them, so doesn’t that make them race conscious? Well, if your baseline is a world in which everyone has the right to refuse service to anyone they don’t like, and the right to hire and fire anyone they don’t like, yes, it does. The law is altering common law rules of contract and property for the explicit purpose of benefiting black people.
Indeed, this *is* the argument (made in 1964) that the Civil Rights Act does not guarantee equal rights but rather creates ‘special rights’ for black people. It is the argument made in 1883 in the Civil Rights Cases that the Civil Rights Act of 1875, which outlawed public accommodation discrimination (an ancestor of Title II of the Civil Rights Act of 1964) was unconstitutional because it made blacks, in Justice Bradley’s words, ‘the special favorite of the laws.’ Today opponents of gay rights laws say they give gays and lesbians ‘special rights’ because these opponents work from a baseline in which its ok to refuse to deal with someone whose sexual practices they find morally offensive.
I used to think it odd and even inexplicable that, as discussed in my earlier discussion of Jack’s position, the ACLU went to court and actually argued that California’s Proposition 209 outlawing racial discrimination violated the 14th Amendment. Similarly, I thought it odd — and discussed the matter here and here — that preferentialists actually echo the argument of the majority opinion in Plessy v. Ferguson, which was based on the argument that the 14th Amendment does not require colorblindness and hence that racial discrimination in many circumstances can be reasonable and hence constitutional. The primary legal (not moral) difference between preferentialists and segregationists is not over principle — they both reject the non-discrimination principle favored by neutral colorblinders — but over which races it is reasonable and desirable to favor.
Jack’s argument quoted above, however, is the first I’ve seen where a modern liberal says the view of the Southern segregationists who opposed the Civil Rights Act because it provided “special rights” was more accurate than the heated, vociferous denials of the Act’s supporters. Indeed, he claims:
To reject the claim that antidiscrimination laws are ‘special rights,’ you have to start by rejecting the fairness of the common law rules of property and contract. You have to say that those rules are defective in some way, and that without antidiscrimination laws, you actually have an economic system that, although it looks nominally equal to all, is actually unfair to blacks. That view, I should point out, was not generally accepted until the Civil Rights Movement, and it still has not been generally accepted with respect to gays and lesbians. (One can always hope, however).
This strikes me as simply (if any of Jack’s arguments can be regarded as simple) wrong. Neither the majority who passed the Civil Rights Act nor those who today defend its attempt to legislate neutral colorblindness “reject the fairness of the common law rules of property and contract.”
Incidentally (or maybe not so incidentally), I think Jack could have added women’s rights, at least as embodied in the late Equal Rights Amendment, to the rights of gays and lesbians as crimped and thwarted by his lights. And I further believe that a good deal of the responsibility for that lies at the feet of the modern, preferentialist civil rights forces. The civil rights movement is widely viewed as having gone back on two of its commitments: it campaigned for civil rights for over a century on a platform of neutral colorblindness (simply read the archive of NAACP/LDF legal briefs for confirmation), and then began to demand preferences as soon as those rights were won. And then it promised that affirmative action was a temporary compromise during what would be a brief transition period, only now to demand that preferences be permanently enshrined. Thus, like the little boy who cried wolf, no one believed the advocates of the ERA or, later, gay rights activists when they claimed all they wanted was equal rights.
Let me close by saying that I do agree strongly with one of Jack’s points: that the debate over colorblindness vs. preferences is fundamentally “about what’s fair and what’s not fair in American society.” In that regard, I think that the clearest, most fundamental expression of the American idea of fairness is the widely revered principle that every American has a right to be treated “without regard to race, creed, or color.”
UPDATE [9/18/2003 9:30AM] – Another point or two that I think are worth noting:
Jack is disappointed about more in the 14th Amendment than its guarantee that “no person” can be deprived of equal protection of the laws. As he argued in a New York Times OpEd, he also would prefer to dispense with the “state action” requirement of the 14th Amendment. (“The Court Defers to a Racist Era,” May 17, 2000).
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, as I argued above, 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.” Jack now deepens and extends that irony by agreeing with Justice Bradley’s assertion in the Civil Rights Cases (1883) that facially neutral colorblind civil rights laws actually do make minorities “the special favorite of the laws.” The only difference is that, unlike Bradley, he thinks that a good thing.
Recently, however, even the operative phrase of the 14th Amendment — “No state shall make or enforce any law” — has also become controversial, for that “state action” restriction has forced Congress to rely on its Commerce Clause authority in passing civil rights laws.
Now that the Rehnquist Court has developed what liberals regard as the bad habit of requiring that activity regulated by Congress under this authority actually have some relationship to interstate commerce — as it did in striking down the Violence Against Women Act — there is a growing concern that the Constitutional foundation of many civil rights laws may be turning to sand. It is this concern that has led Jack and others to urge the Supreme Court to abandon the 14th Amendment’s “state action” requirement and allow Congress to proscribe private as well as state-sponsored discrimination. As he wrote in the NYT,
We should get rid of the racist precedents of the 1880’s. We should recognize what the framers of the 14th Amendment intended: Congress has an independent power and obligation to promote and protect equal citizenship and civil rights. If Congress believes that a law is necessary and proper to promote equal citizenship, it should have the power to pass it without using the fiction that inequality affects interstate commerce.
There are two problems with this proposal, in addition to reversing precedent back to 1883. First, there is the inconvenient matter of the Amendment’s clear language (“No state”) and the uncontroverted intent of its framers to limit its reach to state action. Indeed, even the radicals who wanted a more far-reaching Amendment would have still restricted its coverage to “All national and State laws.”
But the Court has long since demonstrated that neither clear language nor uncontroverted intent nor long-standing precedent pose insurmountable obstacles to creative interpretation. A more serious problem with unleashing Congress to enforce the opaque requirement of “equal protection” in the private sphere is our lack of agreement on what equality is and what it requires. Jack’s posts, with their support of discriminating on the basis of race (a useful phrase despite the offered deconstruction) not simply to promote “diversity” but to level the playing field wherever it is thought to be uneven, reinforce those reservations.