Invoking ‘colorblindness at the opening of the opinion in Milligan was also meant as a kind of brushback pitch, designed to put to those of us ready to call out the Court’s dastardly project, on our back feet.
After all, who could be against a colorblind Constitution? To disagree with the Court on this is to invite that most odious of charges: Only someone who is themselves a racist — a reverse racist, if you will — would reject the principle of colorblindness as a constitutional imperative.
But I reject it. And I do so strenuously and unreservedly. I reject it for the simple reason that our Constitution is not colorblind. And never has been.
The majority borrows this phrase, of course, from Justice John Marshall Harlan’s dissent in Plessy v. Ferguson in 1896. In that case, Justice Harlan admirably refused to join the majority in its decision that state-mandated racial segregation does not violate the Equal Protection Clause of the 14th Amendment. The majority’s monstrous decision sanctioned Jim Crow legalized apartheid, under which most Black people would then live for well over 60 years, until the Court’s decision in Brown v. Board of Education in 1954, and the legislative victories of the Civil Rights Movement of the 1960s.
Since then, individual justices on the Supreme Court have cynically deployed “colorblindness” to oppose efforts to ameliorate or reverse racial exclusion and inequality.1
But our Constitution is not colorblind; for one, the word “colorblind” appears nowhere in the text of our Constitution. And the claim to a “colorblind Constitution” is belied by countless provisions in our founding charter, by the legislative history of the most consequential amendments that deal with equality, and by the principal case that overturned legal apartheid in this country.
Begin with the opening words of the Preamble to our first Constitution — "We the People" — which excluded vast swaths of “people” - namely millions of enslaved Black people who had been present in the colonies for over 200 years from our founding document’s protections and promises. Or consider the method set forth in Article I Section 2 for calculating the population for congressional representation. Or ponder the provision in Article I Section 9 to allow the continuation of our nation’s participation in the international slave trade. In all of these provisions, race is powerful, present, and significant.
The inherent conflict in forming a country based on principles of liberty and freedom, while remaining fully steeped in the buying, selling, and labor exploitation of millions of Black people, was not lost on this country’s constitutional drafters. It is precisely why the words slavery and Black people do not appear in the original document.