Over the past several days I’ve posted additional thoughts following my review of Randall Kennedy’s new book, FOR DISCRIMINATION: RACE, AFFIRMATIVE ACTION, AND THE LAW. More recently I’ve been carrying on an email discussion with an old law professor friend who defends Kennedy’s dumping the non-discrimination principle (because it has not eradicated racial disparities) and asserting that legal colorblindness is ahistorical and otherwise indefensible. Below is my latest reply, slightly edited.
I still think that there is no good reason for courts to impose an ahistorical and ultimately philosophically indefensible notion of “___-blindness” (in this case “color”)
Toleration developed not because it was valued but because it was necessary. “Freedom came to the Western world,” wrote Reinhold Niebuhr, one of our greatest theologians, “by the inadvertence of history. Toleration was an absolute necessity for a community which had lost its religio-cultural unity and could find peace only if toleration and freedom were accepted.”
America discovered, however, that toleration alone was not sufficient. Strict neutrality was also required, a prohibition against the state favoring any of the contending sects. As Justice Hugo Black wrote in Zorach v. Clauson (1952), “it is only by isolating the state from the religious sphere and compelling it to be completely neutral that the freedom of each and every denomination and of all nonbelievers can be maintained.” Or as the Court held in Abingdon School District v. Schempp(1963), “the government is neutral, and, while protecting all, it prefers none.”
But if the very structure of American society requires a principle of neutrality that in turn requires a separation of church and state … , should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time “ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history.” (POST-ETHNIC AMERICA, Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as “divisive” today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.
Could there be a “political-restructuring” objection to the First Amendment? Because it proscribes “establishment of religion,” people who favor an established church cannot simply lobby Congress to create this, they first must undertake the burdensome task of amending the Constitution. So, is the First Amendment a constitutionally dubious restructuring of the nation’s political process?
Or the Civil Rights Act, for that matter.