- - Friday, November 14, 2014

The civil rights movement celebrated color-blindness over racial discrimination.

It succeeded.

But color-blindness was soon displaced by race-based preferences in employment, education, contracting and districting, a surprise ending to the Rev. Martin Luther’s King “dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

Between color-blindness and racial preferences which do you think is more faithful to equal justice under law?

Supreme Court Justice John Marshall Harlan II penned an impassioned lonely dissent to the separate but equal racism of Plessy v. Ferguson (1896). He elaborated: “[I]n the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution in color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. …”



In Brown v. Board of Education (1954), which overruled Plessy, then-civil rights advocate Thurgood Marshall convincingly argued that “distinctions by race are so evil, so arbitrary and invidious that a state bound to defend the equal protection of the laws must not invoke them in any public sphere.” According to Brown, the equal protection clause of the 14th Amendment required race neutrality in public school pupil assignments.

A color-blind standard was applied to ballots in Anderson v. Martin (1964). There, the Supreme Court invalidated a Louisiana law designating candidates by race because the designation induced racial prejudice at the polls. It added: “We see no relevance in the State’s pointing up the race of the candidate as bearing upon his qualifications for office.”

In Shaw v. Reno (1993), the Supreme Court held that racially motivated district boundaries for the election of public officials violated the 15th Amendment. Justice Sandra Day O’Connor explained: “A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group - regardless of their age, education, economic status, or the community in which they live - think alike, share the same political interests, and will prefer the same candidates at the polls.

Justice Antonin Scalia sermonized in Adarand Constructors Co. v. Pena (1995): “To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”

In sum, color-blindness has been said to be imperative to achieve individual justice and to diminish racial divisions or race-based thinking.

Detractors insist that color-blindness is blind to the history of slavery in the United States that since 1619 traumatized blacks and impaired their ability to compete with whites. Although quantifying the competitive handicap is inexact or impossible to prove at all, all blacks should be crowned with preferences as a rough and ready remedy for the abomination of slavery. Group justice should trump individual justice.

The spirit of the argument was captured by Rep. William Lacy Clay Jr., Missouri Democrat, in explaining why Rep. Steve Cohen, who represented a black-majority district, in Memphis, Tennessee, was prohibited from membership in the Congressional Black Caucus: “Quite simply, Rep. Cohen will have to accept what the rest of the country will have to accept — there has been an unofficial Congressional White Caucus for over 200 years, and now it’s our turn to say who can join ‘the club.’ He does not, and cannot, meet the membership criteria, unless he can change his skin color. Primarily, we are concerned with the needs and concerns of the black population, and we will not allow white America to infringe on those objectives.”

Major Owens retired from Congress after two decades of representing a black majority district in New York. During the primary campaign to nominate a Democratic successor, the congressman maligned white challenger David Yassky as a “colonizer.”

I am not convinced.

True enough, life is unfair.

No two individuals begin at the same starting point.

An extra hand should be extended to all who are disadvantaged by economic or intellectual privation, child neglect, or worse.

But these handicaps are color-blind.

We can be faithful to individual justice and fairness without the polarization of racial preferences.

For more information about Bruce Fein, visit brucefeinlaw.

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