Stanford Law Review Volume: 59 Issue: 4 Dated: February 2007 Pages: 985-1064
This article explains the intellectual history of reactionary colorblindness, the current form of race blindness targeting affirmative action.
Reactionary colorblindness rests on the ludicrous equation of racial subordination and racial remediation. More fundamentally, it rests on an intellectual sham: the depiction of race as ethnicity. As it currently stands, constitutional race law is a disaster. It approaches the problem of race in our society exactly backwards. It deploys a formal approach in which race is recognized as functioning only when explicitly invoked. An example of this is presented in Hernandez versus New York, a 1991 jury exclusion case. The prosecutor peremptorily struck every Latino, ostensibly because he believed these potential jurors could not defer to the court-appointed interpreter and instead rely on their familiarity with Spanish to evaluate the testimony of Spanish speaking witnesses. Justice Clarence Thomas insists upon a moral and constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. This article probes the conceptions of race and racism used to legitimize the rise of “reactionary colorblindness.” Reactionary colorblindness is an anticlassification understanding of the Equal Protection Clause that accords race-conscious remedies and racial subjugation the same level of constitutional hostility. The term is used to distinguish the current doctrine from colorblindness generally. This is a history of the ideas about race and racism in the United States used in the 1970s by legal elites, meaning leading constitutional scholars and Supreme Court Justices, to justify the claim that under our Constitution race-conscious remedies and racial subordination are equal evils. It is argued that the liberal legal defenders of affirmative action not only failed in the 1970s to respond effectively to the emergence of reactionary colorblindness but contributed to its intellectual legitimacy.
United States of America