Written by Tucker Culbertson
If the Supreme Court ever does rightly decide that race may be considered by
government actors trying to solve social problems, which sorts of policies
will a postcolorblind Court uphold? Postcolorblind constitutional law —
as part of a system of racial governance — may indemnify some of the practices
that we opposing colorblindness want to prohibit.
These thoughts are from a forthcoming article of mine on civil rights and counterterrorism. I’m sharing them here, now, because I think they’re relevant both to an upcoming conference on civil rights law in the Obama era, and to our discussions about law and racial justice generally.
When we consider the present constitutional law of colorblindness, we who argue against colorblind constitutional law ought to also imagine and prepare for the possible jurisprudence of a postcolorblind Court. If the Supreme Court ever does rightly decide that race may be considered by government actors trying to solve social problems, which sorts of policies will a postcolorblind Court uphold?
Here’s one possibility: just as the victory of Brown v. Board of Education yielded the analytical framework later used to justify the obstructionist formalism of colorblindness, postcolorblindness might likewise produce new buttresses for structural racism. The forms of race-conscious government action deemed rational pursuits of legitimate interests by a postcolorblind Supreme Court could maintain or even expand present inequalities produced by racial governance. By racial “governance”, I mean: systems of public and private actors and acts which: (1) are interdependent, but which (2) are not always consistently structured or consciously intended, and which (3) either create, or prevent intervention against, social racial inequalities.
A postcolorblind Court could sound a lot like the majority in Plessy v. Ferguson, which in 1869 considered the legality of racial segregation on Louisiana trains. The majority declared that:
“We consider the underlying fallacy of the plaintiff’s argument to consist on the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.”
The Court upheld the law because the race-conscious government action was deemed to have served a legitimate interest — public safety — which had nothing to do with racism. Other government interests — like national security — might produce a similar opinion more than a hundred years later if heard by a postcolorblind Court. Governmental targeting of groups defined by race, nationality, ethnicity, religion, and sex — like Arab Muslim men from certain countries — could be deemed a rational way to legitimately pursue the government’s interest in preventing attacks on the United States.
I’m not arguing for colorblindness. Not in the least. I’m just saying that postcolorblind constitutional jurisprudence — as part of a system of racial governance — may indemnify some of the practices that we opposing colorblindness want to prohibit.