February 15, 2006
Don Herzog, Herzog: Constitutional Rights: February 15, 2006
"Our constitution is color-blind, and neither knows nor tolerates classes among citizens." So Justice Harlan wrote in his stirring dissent in Plessy v. Ferguson. Harlan added that the Reconstruction amendments "removed the race line from our governmental systems." That stirring language has been the mantra of those opposed to affirmative action.
There's other language in Harlan's dissent that suggests he worried not about any and all race-conscious legislation, but about legislation subordinating blacks. So for instance he referred to state laws "conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race." And so today's patrons of affirmative action too can claim Harlan as their own.
I've been thinking about these matters again because of the Michigan Civil Rights Initiative, on the ballot for this coming November after ridiculous skirmishing about the legality of the language and the petition signatures. (Here is the key court opinion.) The Initiative would ban the University of Michigan from using "race, sex, color, ethnicity, or national origin" (so, amusingly, not sexual orientation) in admissions. Since I'm a reluctant but firm supporter of affirmative action, I'm opposed.
Obviously, color-blindness has its appeal. And it's not (quite) enough to say that in a more just society, it would be the right way to go, because it has its appeal for us, here, now. Still, I think it's a bludgeon of sorts where we need scalpels. So I want to step back a moment and consider the recent race riots in a jail outside Los Angeles. In response, authorities are segregating prisoners by race. Not a moment too soon. So how awful is it for the state to do that? How important a justification do they need?
Last year, the Supreme Court ruled that California's "unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility" properly triggered strict scrutiny. That's the most demanding level of judicial scrutiny in constitutional law, and the old quip has it that it's strict in theory and fatal in fact, though some exceptions suggest the scrutiny isn't always all that strict anyway. The Court didn't decide whether California could meet that scrutiny. Instead they remanded the case to the Ninth Circuit to decide. The Circuit hasn't yet ruled.
I don't doubt that once there are race riots, the state can meet the burden of strict scrutiny. But I wonder whether that's the right burden. You can imagine facts on which California's "unwritten policy" would stamp blacks with a badge of inferiority, but that doesn't seem to be the actual case. So that policy isn't color-blind, but it isn't subordinating either. Is it properly a constitutional problem, a putative violation of the equal protection clause? I don't think so. That doesn't mean you'd have to be crazy to worry about it. But the relevant worries look to me like garden-variety policy worries, of the sort that legislatures and agencies sort out all the time.
Or try this: does it violate the Constitution when the police search for a criminal suspect described as "a young black male, around 5' 10" and 170 pounds"? Or for "a young white male, around 5' 10" and 170 pounds"? Check your intuition: if you're really devoted to color-blindness, you should think those two search descriptions are equally offensive. Does the government have to defend these routine police procedures by demonstrating they are narrowly tailored to realize a compelling state interest, the magic wand required to survive strict scrutiny? Do you think the Constitution requires that the police search for "a young male, around 5' 10" and 170 pounds"? Isn't the government bumbling enough already?
There may be domains in which color-blindness is a constitutional requirement. Or domains in which color-blindness is the right policy, even if it isn't constitutionally required. (The champions of MCRI lost the constitutional battle, after all.) And, for all I've said here, state university admissions policies may be one such domain. But I think the demand for color-blindness across the board, come what may, is a suffocating abstraction. We can do better.
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