California Law Review
Volume 81 | Issue 4
Article 6
July 1993
Seeing Colors
James Lindgren
Follow this and additional works at: http://scholarship.law.berkeley.edu/californialawreview
Recommended Citation
James Lindgren, Seeing Colors, 81 Cal. L. Rev. 1059 (1993).
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol81/iss4/6
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REVIEW ESSAY
Seeing Colors
THE COLOR-BLIND CONSTITUTION. By Andrew Kull.t Cambridge,
Massachusetts: Harvard University Press, 1992. Pp. x, 301.
Cloth, $35.00.
Reviewed by James LindgrenI
It seems like such a long time ago. On August 26, 1963, in Anderson
v. Martin,I the NAACP Legal Defense Fund filed yet another brief with
the U.S. Supreme Court arguing that the U.S. Constitution was colorblind.2 As it had since the late 1940s, the Legal Defense Fund again
urged the Supreme Court to strike down racial classifications as per se
illegal (pp. 146-70).
Just two days after the Anderson brief was filed, Andrew Kull stood
in front of the Lincoln Memorial with hundreds of thousands of others.3
Together, they heard Martin Luther King's most famous speech, an
address expressing his dream of racial justice: "I have a dream my four
little children will one day live in a nation where they will not be judged
'4
by the color of their skin but by content of their character."
Thus, within days of each other, both the political and the legal
leaders of the civil rights movement had called on the nation to give up
its centuries-old practice of judging people by race. It was during this
period-marked by the 1963 March on Washington and the Civil Rights
t Professor of Law, Emory University. B.A. 1969, University of California; M.A. 1973,
Oxford University; J.D. 1977, University of Chicago.
$ Norman & Edna Freehling Scholar, Associate Dean for Faculty Development and
Professor of Law, Chicago-Kent College of Law. B.A. 1974, Yale University; J.D. 1977, University
of Chicago. Because work on this review was begun while I was a visiting scholar at the University
of Chicago Law School, I would like to thank Geoff Stone. For comments on an earlier draft, I
would like to thank Andrew Kull, Paul Finkelman, and Richard McAdams. This review was also
supported by a grant from the Marshall D. Ewell Fund of Chicago-Kent College of Law.
1. Anderson v. Martin, 375 U.S. 399 (1964) (finding a Louisiana law requiring the race of
candidates to be printed on ballot unconstitutional).
2. The color-blind nondiscrimination principle would prohibit government classifications on
the basis of race as per se unconstitutional because they are inherently offensive and subordinating.
An exception is typically made for record-keeping and for punishing discrimination.
3. In The Color-Blind Constitution, Kull makes no mention of his presence. For his account
of the march written for a high school newspaper, see Andy Kull, After-Thoughts on March on
Washington, THE FORUM (Sheffield, Mass.), Oct. 21, 1963, at 3.
4.
A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN
LUTHER KING, JR. 219 (James M. Washington ed., 1986).
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Act of the following year-that the color-blind ideal reached its high
water mark.
Now, nearly thirty years later, Andrew Kull has written The ColorBlind Constitution,the story behind that ideal. Kull's book is an account
of those who urged, demanded, or fought for a color-blind
Constitution-Caroline Augusta Chase, the Lynn Women's Anti-Slavery
Society, Richard Fletcher, Edmund Jackson, William Lloyd Garrison,
Charles Sumner, Thaddeus Stevens, Wendell Phillips, John Marshall
Harlan, James M. Nabrit, Martin Luther King, and Thurgood
Marshall.5
Kull's is the history of an idea-an intellectual legal history rather
than a social one. It's written in a readable, accessible style. In the preface to his book, Kull explains the point of his project with more subtlety
than I could manage in describing it:
My object in this book is to discover the history of the argument
that the United States Constitution prohibits (or should prohibit)
racial classification by the agencies of government. That history
inevitably implicates, in its most recent episodes, the modern
debate over government-sponsored racial preferences; indeed, the
perspective it affords on the affirmative-action dilemma accounts
in part for the story's compelling interest. But I will discuss
affirmative action in order to complete the account of color blindness, not the other way around. While I believe that the history
of the color-blind contention illuminates the affirmative-action
debate at a number of points, I make no claim that it decides that
issue. Short of a demonstration that the Fourteenth Amendment
was intended by its framers to require color blindness on the part
of government-and the evidence I adduce tends strongly to
refute any such contention-it is difficult to imagine how one
could hope, by an analysis of what was thought and argued in the
past, to conclude the profoundly political question of what we
should do now; and I shall not attempt to do so.
I offer this disclaimer because a number of people to whom I
described this project while working on it plainly assumed that
the only reason to write a history of the color-blind Constitution
would be to develop history-based arguments against affirmative
action. When I responded that my purpose was not so much to
advance a thesis as to tell a story, they were visibly skeptical. The
reader may share their skepticism (p. vii).
From this passage, one can get a good idea of the delicacy of Kull's
task and of the precision of his writing style. This is no polemical broadside in the manner of Allan Bloom or Susan Faludi-not that I have
5. Marshall expressed color-blindness chiefly before he was appointed to the Supreme Court.
1993]
SEEING COLORS
1061
anything against polemical broadsides.6
Nonetheless, at the end of his book, Kull does offer some tentative
arguments against affirmative action. But these arguments are completely unsupported by the kind of policy analysis that would be necessary to show that a color-blind approach would be better than the
current system of compensatory preferences.
For historians, the relevance of Kull's book is clear. Although parts
of the story have been told before, much of the book is new. Indeed,
there are some major historical discoveries here.
In Kull's most revealing chapters, for example, he shows that the
primary alternative to John Bingham's Fourteenth Amendment was
Wendell Phillips' color-blind version (pp. 53-87). That a more radical
alternative was discussed was known to some historians,7 but the import
of this alternative was not previously recognized.
Kull also discovered the earliest known court opinion striking down
segregated schools as violative of the Fourteenth Amendment, the previously unrecorded district court opinion in the 1881 Kansas Tinnon case
(pp. 100-07). And in one of the book's strongest chapters, Kull shows
that the first flowering of the color-blind ideal wasn't Sumner's famous
argument in the 1850 Boston school case,9 but rather the Lynn Women's
Anti-Slavery Society in the late 1830s (pp. 22-26).
Often Kull tells a side of the story not known or understood by
historians. Because his book is based largely on original sources, some
historians might criticize Kull for failing to engage the historiography
directly.
Political activists on both sides of the affirmative action debate will
likely be put off by Kull's failure to offer a full-fledged defense of-or
attack on-the color-blind ideal. Kull's work can be used by advocates
on both sides of the debate, a dispute that pits some libertarians, conservatives, and members of the Supreme Court against civil rights activists
and most of us in the universities and the law schools. Indeed, in Shaw v.
Reno, 10 both those advocating and those opposing racial redistricting
6. For my own contributions to the literature of polemical broadsides, see James Lindgren,
Fear of Writing, 78 CALIF. L. REV. 1677, 1678 (1990) (book review) (admitting in the second
paragraph: "By now it must be obvious that this is a polemic."); James Lindgren, Return to Sender,
78 CALIF. L. REv. 1719, 1719 (1990) ("Polemics have a long and honorable history: Cicero, Swift,
Paine, Carlyle, Twain, and Orwell.").
7. See, eg., MICHAEL K. CuRTIs, No STATE SHALL ABRIDGE: THE FOURTEENTH
AMENDMENT AND THE BILL OF RIGHTs 83 (1986); Earl M. Maltz, The FourteenthAmendment as
PoliticalCompromise-SectionOne in the Joint Committee on Reconstruction, 45 OHIo ST. L.J. 933,
947, 958-67 (1984).
8. Tinnon v. Wheeler, DAILY REPUBLICAN (Ottawa, Kan.), Jan. 19, 1881, at 2 (Dist. Ct.
Franklin County Jan. 18, 1881), affid sub nom. Board of Educ. v. Tinnon, 26 Kan. 1 (1881).
9. Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1850) (upholding segregated schools).
Sumner argued on behalf of the plaintiff for the unconstitutionality of segregated schools. Id. at 20104.
10. 61 U.S.L.W. 4818 (U.S. June 29, 1993). See infra notes 54, 56-59 and accompanying text.
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CALIFORNIA LAW REVIEW
[Vol. 81:1059
cited Kull to support their views.
Those of us on the affirmative action side of the national debate, for
example, can use Kull's proof that the idea that the Constitution is color
blind was rejected at almost every point where it was raised. Those conservatives today who want to read the Fourteenth Amendment as color
blind must thus deal with Kull's evidence that such an alternative was
considered and clearly rejected as too radical (pp. 53-87). As often as
Thurgood Marshall and the NAACP urged the Court to adopt a colorblind ideal, in Brown v. Board ofEducation I and other cases, the Court
was not willing to go that far (pp. 146-70). While the Court was committed to an incremental approach, accepting the color-blind ideal would
have required the Court to strike down all racially restrictive laws
immediately.
On the other hand, those who would portray the color-blind ideal as
racist must deal with what Kull shows is its long and honorable history.
Indeed, Kull's book stands as an implicit challenge to those of us on the
affirmative action side to shore up our justifications for affirmative action.
From the radical abolitionists through the heyday of the civil rights
movement, color blindness was the ultimate legal goal of many of the
most radical of those who fought for the rights of African-Americans.
Those who fought for this goal may have been misguided, judging by
current standards. But certainly not all were racists. That color blindness today may be professed by some racists as perhaps the least helpful
view of African-Americans that can be expressed in polite circles doesn't
automatically make the ideal itself racist. Indeed, most of those who
urged affirmative action in the late 1960s and 1970s did so by arguing
that racial preferences were a shortcut or a temporary way station on the
road to color blindness. Thus, although many viewed color blindness as
an ineffective means toward achieving racial justice, it remained the end
sought. For some contemporary theorists, however, the mixed success
(or failure) of affirmative action has led to a shift in the justifications for
race-conscious remedies and to the rejection of color blindness as an ideal
at any time in the future. 2
In this essay I recount some of the more interesting aspects of the
history of color blindness. Finally, by contrasting Kull's book with the
work of Neil Gotanda, I suggest that a major contribution of the book is
its tendency to stimulate one's own thinking about what remains the
American issue: race.
11. Brown v. Board of Educ., 347 U.S. 483 (1954).
12. See, e g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV.
1, 23 (1991) (arguing that the color-blind approach serves "to legitimate racial subordination").
SEEING COLORS
1993]
1063
I
A GLORIOUS LIBERTY DOCUMENT OR A SLAVEHOLDERS'
CONSTITUTION?
In his first chapter (pp. 7-21), Kull explores two historical consequences of the Constitution's apparently intentional omission of race.
First, he reconstructs some antebellum arguments that the Constitution's
facial omission of race left open the possibility of the end of slavery.
Second, he argues that this facial neutrality was enough of a challenge to
Justice Taney that Taney went out of his way in Dred Scott 3 to read
race into a document that originally contained no racial language.
On the first point-the failure to mention race or even slavery by
name-Kull emphasizes the other side of the argument from the
Garrisonian 4 interpretation that the Constitution was a slaveholders'
constitution (a contention asserted today most prominently by Paul
Finkelman 5 and William Wiecek 6 ). Here Kull does not tell the whole
story, but the side of the story less often told. He points out that
Frederick Douglass argued that the Constitution was a "'GLORIOUS
LIBERTY DOCUMENT'"
that mentions "'neither slavery, slaveholding,
nor slave'" (pp. 7-8), that this view was widely held in the North (p. 8),
that Garrison himself once argued that the Constitution "'knows nothing of white or black'" (p. 10), and that radicals in the Thirty-ninth
Congress objected to tainting the Constitution with the introduction of
the word "'male'" and the recognition of a "'distinction of color'" in
proposed drafts of the Fourteenth Amendment (pp. 8-9). Further, the
Articles of Confederation had granted privileges and immunities to" 'the
free inhabitants of each of these States'" (p. 9). Kull somewhat surprisingly concludes:
The framers had compromised with slavery but not with
racial discrimination: until the ratification of the Fifteenth
Amendment, the language of the Constitution did not even
acknowledge the existence of racial distinctions. The
Constitution of 1787 not only accommodated the institution of
slavery without naming it, but managed to describe a slavery having no necessary racial component, as if America were ancient
Rome (p. 20).
On Dred Scott, Kull argues that Justice Taney's bizarre views on
black citizenship are explainable in light of Taney's prior assertions. In
13. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (holding that federal courts have no
jurisdiction over a suit brought by a slave because slaves are not citizens under the Constitution).
14. William Lloyd Garrison was, of course, the country's leading abolitionist.
15. Paul Finkelman, Slavery and the Constitutional Convention: Making a Covenant With
Death, in BEYOND CONFEDERATION 188 (Richard Beeman et al. eds., 1987).
16. WILLIAM M. WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN
AMERICA,
1760-1848 (1977).
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[Vol. 81:1059
Dred Scott, Taney held that slaves and descendants of slaves could never
be citizens of the United States. As Andrew Jackson's attorney general
in 1832, Taney had argued that the Negro Seamen Acts 17 did not violate
existing treaties, in part because:
The African race in the United States even when free, are
every where a degraded class, and exercise no political influence.
The privileges they are allowed to enjoy, are accorded to them as
a matter of kindness and benevolence rather than of ight....
They were never regarded as a constituent portion of the sovereignty of any state (p. 19).
On the last two points at least, Taney was clearly wrong.
For Taney to reach the question whether free Blacks were citizens
under the privileges and immunities clause was doubly odd. First, Kull
points out that Dred Scott involved diversity jurisdiction under Article
III, rather than the Privileges and Immunities Clause. Second, lower
courts had already determined that Dred Scott was a slave, and hence,
not free (pp. 17-18). Kull asserts: "A color-blind interpretation of the
privileges and immunities clause was not even remotely at issue in Dred
Scott ....
Yet something in the idea was so threatening that Taney
would seize the opportunity presented by the case to attempt to deny
national citizenship to Negroes altogether" (p. 20).
Others, such as Don Fehrenbacher 8 and Harold Hyman and
William Wiecek, 9 have emphasized the importance of the diversity issue
to enforcing the Fugitive Slave Law of 1850. By contrast, Kull situates
this part of the opinion in the context of Taney's fear that the Privileges
and Immunities Clause might provide some basis for African-Americans
to assert citizenship.
At least one significant observer at the time, Abraham Lincoln,
seemed to view Dred Scott much as Kull does. In his "House Divided"
address in 1858, Lincoln described the Dred Scott decision in the following way:
The working points of that machinery are:
First, that no negro slave, imported as such from Africa, and
no descendant of such slave can ever be a citizen of any State, in
the sense of that term as used in the Constitution of the United
States.
This point is made in order to deprive the negro, in every
17. The Negro Seaman Acts allowed black seamen in southern ports to be captured and placed
in slavery (p. 11).
18.
DON E. FEHRENBACHER, THE DRED ScoTr CASE: ITS SIGNIFICANCE IN AMERICAN
LAW AND POLITICS 278-79, 287 (1978).
19. HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW:
CONSTITUTIONAL DEVELOPMENT, 1835-1875, at 176-90 (1982).
1993]
SEEING COLORS
1065
possible event, of the benefit of this provision of the United States
Constitution, which declares that"The citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States." (p. 19).
Dred Scott marked the Supreme Court's most aggressive effort to deny
Black rights, an effort both helped and hurt by the Constitution's failure
to mention race.
II
CAROLINE AUGUSTA CHASE AND THE LYNN WOMEN'S
ANTI-SLAVERY SOCIETY
Because of Gilbert Hobbs Barnes' classic account of the flood of
anti-slavery petitions directed at Congress in the late 1830s,2 0 historians
think that they already know all about the "Petition Flood" that led to
Congress' infamous gag rule. But Kull shows (what Barnes and most
others have barely mentioned) that the famous congressional petition
drive was part of a larger effort directed at both federal and state governments (p. 24). The petitions to be directed at state governments contained a color-blind provision asking the legislature "'to repeal all laws
in this State, which make any distinction among its inhabitants, on
account of COLOR'" (p. 22).
When this petition was circulated by Caroline Augusta Chase and
the Lynn Women's Anti-Slavery Society, they obtained 785 signatures
and presented the petition to the Massachusetts Legislature. They were
met with ridicule. It seems that, unlike most free states, Massachusetts
had only one significant set of laws that restricted the rights of AfricanAmericans-the laws prohibiting interracial marriage between a White
person and "'a negro, indian or mulatto'" (p. 22).
Mocking the women's motives, Samuel Curtis and 192 other male
residents of Lynn petitioned the legislature
[to] pass an act, granting a free and full privilege to the said
Caroline Augusta Chase, and the seven hundred and eighty five
other females of this town (excluding all those who are not of
lawful age,) to marry, intermarry, or associate with any Negro,
Indian, Hottentot, or any other being in human shape, at their
will and pleasure (p. 23).
The newspapers also ridiculed the women of Lynn. The Boston Morning
Post commented:
Caroline Augusta Chase, and [785] other ladies in Lynn,
have petitioned the Legislature for the privilege of marrying black
husbands. This is rather a cut at the white Lynn beaux-or, per20.
GILBERT H. BARNES, THE ANTISLAVERY IMPULSE, 1830-1844, at 133-45 (1933).
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[Vol. 81:1059
haps some of these ladies despair of having a white offer, and so
are willing to try de colored race (p. 23).
Similar petitions had been circulated by other groups in
Massachusetts and other states. And under the pressure and embarrassment of the sexist and racist attack on the petitioners, some members of
the Dorchester Female Anti-Slavery Society asked to have their names
removed from their petition.
But the Lynn Women's Anti-Slavery Society didn't buckle under.
Rather, they broadened their opposition to racial distinctions and offered
a rationale for their position, resolving in 1839:
That time and reflection have confirmed us in the belief, that all
laws making a distinction on account of color, are unnecessary
and unchristian, having a tendency to degrade a class of people
entitled to the common and equal rights of citizens, who have
been long and cruelly oppressed; and that petitions for the abolition of all such laws ought to be signed by all the women as well
as men of this Commonwealth, who are actuated by principles of
justice and humanity; and of course, we have never regretted that
such petitions from this and other towns have been presented to
our Legislature (p. 25).
That, clearly and courageously stated, is the color-blind version of the
nondiscrimination principle: when embodied in law, racial distinctions
by their very nature degrade a class of people.
III
THE
1850
BOSTON SEGREGATED SCHOOLS CASE-ROBERTS
V CITY OF BOSTON
Kull next turns to the abolitionist attack on the segregated
Massachusetts schools (pp. 30-52)-first in Salem and other small cities,
then the better known campaign in Boston, culminating in the famous
Boston Schools case, Roberts v. City of Boston.21 The pamphlet literature
produced by the desegregation forces during the late 1840s elaborated
the argument for the color-blind constitutional view in a form that was
almost fully developed. Two of these works are little known-Richard
Fletcher's legal opinion to the Salem school board and Edmund
Jackson's minority report to the Boston school committee. These views
were restated and epitomized in Charles Sumner's famous argument in
Roberts. Sumner argued for the nondiscrimination principle, but Chief
Justice Lemuel Shaw for the Massachusetts Court upheld segregated
schools essentially as separate but equal (pp. 48-52). Kull's account
gains from placing this discussion in the context of the Massachusetts
ferment over color blindness.
21.
59 Mass. (5 Cush.) 198 (1850).
SEEING COLORS
1993]
1067
What is perhaps most unusual about Kull's account of Roberts is his
conclusion that the legal principle enunciated in Chief Justice Lemuel
Shaw's 1850 opinion has changed very little from the Roberts case
through the current law. This interpretation is echoed in Kull's discussions of Plessy v. Ferguson22 (pp. 113-30) and Brown v. Board of
Education23 (pp. 151-63). As Kull sees it:
Roberts was an innovative decision, answering new questions with
an analysis that, in its broader implications, remains equally good
law today. The unacceptability of that analysis as applied to the
issue of racial segregation derives, not from any flaw in Shaw's
reasoning, but from the inadequacy of "equal protection" as a
standard for resolving the question.
... Whereas Sumner had made the novel assertion that racial
distinctions formed a special and impermissible category of government discretion, Shaw determined to treat them like other
instances of government classification: to be held valid where reasonable. While the requirements of "reasonableness" in this context have since been transfigured, the essential legitimacy of
reasonable racial classifications-a premise the U.S. Supreme
Court has yet to repudiate-is one of the rules traceable to Shaw's
opinion in Roberts....
... Its only flaw, by present-day constitutional standards, is
its failure to anticipate our political conviction that the racial classification at issue in Roberts is not a reasonable one. Our difference with Shaw on that point is paramount, but it is not a
difference of legal principle (pp. 48, 51).
Kull's analysis is either outrageous or brilliant-or both.
IV
THE RECONSTRUCTION AMENDMENTS AND THE THIRTYNINTH CONGRESS
The idea of an antislavery amendment to the Constitution got its
"definitive public introduction" in a speech by Wendell Phillips on
December 22, 1863 (p. 55). But Phillips didn't stop at proposing an antislavery amendment. In the same speech, he also proposed an amendment providing that" 'no State shall make any distinction among its citizens on account of race and color'" (p. 58). This was, of course, the
proposed solution to racial discrimination that the Garrisonian wing of
the abolitionist movement had worked out in Lynn, Salem, and Boston
over the prior twenty-five years.
22.
163 U.S. 537 (1896), overruled by Brown v. Board of Educ., 347 U.S. 483 (1954).
23. 347 U.S. 483 (1954).
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CALIFORNIA LAW REVIEW
[Vol. 81:1059
Kull shows that this proposal remained at the center of Wendell
Phillips' prominent fight for the rights of ex-slaves for the following three
years. In part, this proposal reflected a shift in the direction of the abolitionist movement. Garrison considered his life's work done when emancipation was achieved, but Phillips understood that civil rights needed to
be guaranteed. Thus, in 1865 when Garrison turned over the reins of the
American Anti-Slavery Society to the then more radical Phillips, the goal
of the nation's leading civil rights organization became the passage of a
constitutional amendment barring racial distinctions (p. 62).
The color-blind idea was not confined to the lecture platform. It
was adopted by Thaddeus Stevens-arch-radical and majority leader in
the House of Representatives-as his preferred basis for guaranteeing
civil rights. On December 5, 1866, Stevens put before the House of Representatives a version of the Phillips amendment that read: "'All
national and State laws shall be equally applicable to every citizen, and
no discrimination shall be made on account of race and color'" (p. 67).
The following day, John Bingham introduced a counterproposal: "'to
empower Congress to pass all necessary and proper laws to secure to all
persons in every State of the Union equal protection in their rights [of]
life, liberty, and property'" (p. 67).
Note that Bingham's proposal guaranteed African-Americans nothing. It was merely a grant of power to Congress to legislate on the issue
of equal protection. This was in part to provide the power, which
Bingham thought Congress lacked, to pass the Civil Rights Acts (which
Bingham opposed) (p. 79). As Kull puts it, "Bingham's preferenceshared by the Thirty-ninth Congress and by most of our government
authorities, most of the time since-was to retain the discretion to discriminate by race as appropriate" (p. 82).
In the Joint Committee of the Congress considering various proposals for the Fourteenth Amendment, a compromise color-blind amendment was proposed by Robert Dale Owen and supported by Thaddeus
Stevens. The proposed amendment would have delayed suffrage for
Blacks until July 4, 1876, at which time it would have prohibited discrimination on account of race or color. During the discussion of this
proposal on April 21, 1866, Bingham proposed his equal protection language as an amendment to the first section of Owen's proposal.
When that was defeated, Bingham redrafted his proposal significantly-while the meeting itself continued. He added the Due Process
Clause and the Privileges and Immunities Clause, and then offered his
proposal as a separate section, which passed. The resulting section was
in essence section one of the Fourteenth Amendment as we know it. As
Kull observes, "The most significant sentence of the most significant constitutional amendment in American history had apparently been drafted
1993]
SEEING COLORS
1069
by Bingham in the course of the meeting, while discussion droned on
about" other sections of Owen's color-blind amendment (p. 84).
But there were further reversals in committee to come, particularly
as Congressmen considered the political consequences of the amendment. Four days after its action, the Committee removed Bingham's
proposal. The Committee then voted to report the antidiscrimination
amendment to Congress. And just three days after that, on April 28,
1866, the Committee reversed itself again. They substituted Bingham's
proposal for the Phillips-Owen-Stevens nondiscrimination section (pp.
84-85).
The reason for the final switch, as Kull pieces it together, was oldfashioned politics: when Republicans caucused to consider the amendment, they feared that giving the vote to African-Americans would spell
disaster in the upcoming mid-term Congressional elections (pp. 85-86).
After all, only five states (all in New England-Maine, Massachusetts,
New Hampshire, Rhode Island, and Vermont) allowed Blacks and
Whites to vote on the same terms. In voter referendums in the Fall 1865
elections, Connecticut, Minnesota, and Wisconsin had rejected Black suffrage (p. 70). If the Republicans mandated Black suffrage by constitutional amendment, they may have been turned out in the Fall 1866
elections.
Some abolitionists deplored Bingham's version and even opposed it.
Phillips was so disappointed that Bingham's Fourteenth Amendment
failed to guarantee voting rights for African-Americans that he
denounced it as "'a fatal & total surrender,' " "' a flagrant, cruel
cheat,'" and "'a mean and cowardly abandonment of the negro'" (p.
64).
This account, which I have only briefly sketched, is mostly new.
The language of the color-blind version of the nondiscrimination proposal is mentioned in several modern sources.2 4 And one author, Earl
Maltz,2" has even analyzed the voting switches in Committee. But to my
knowledge, no historian has understood what the proposal meant, its
prominence, or where it came from. Maltz, for example, concludes that
the Bingham proposal was more moderate than Owen's because the
moderates more widely supported Bingham's version. 6 If there were
nothing else in Kull's book, his chapters on the color-blind alternative to
the Fourteenth Amendment would mark it as a significant contribution
to our knowledge of the Reconstruction Amendments. A color-blind
amendment was proposed, debated, clearly understood, and rejected as
too radical.
24. See Maltz, supra note 7, at 958; CURTIS, supra note 7, at 83.
25. See Maltz, supra note 7, at 958-67.
26. Id. at 963-67 (reporting that "the Bingham substitute must have been aimed at a narrower
class of rights than the Owen proposal").
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CALIFORNIA LAW REVIEW
[Vol. 81:1059
V
FROM RECONSTRUCTION THROUGH KOREMATSU
In the three chapters that follow those on Reconstruction, Kull discusses the nineteenth-century judicial response to the Fourteenth
Amendment (pp. 88-112), Plessy v. Ferguson 27 (pp. 113-30), Harlan's
opinion upholding Georgia's schools in Cumming v. Richmond County
Board of Education2 8 (pp. 124-29), and the twentieth-century development of the "separate but equal" doctrine (pp. 131-50). While at times
Kull's account is entirely conventional, at others it is unusual and
enlightening. I will focus on the book's more notable passages.
A major find in these chapters is the earliest known opinion striking
down segregated schools as violative of the Fourteenth Amendment, the
1881 Kansas case, Tinnon v. Wheeler 2 9 (pp. 100-07). The fact that the
Kansas Supreme Court ruled against segregated schools in 1881-on the
basis of state law-is well known to historians, since the decision was
widely cited. 30 Previous writers, however, have not explored either the
context or the effect of the Kansas litigation. Kull suggests that the segregation at issue-the maintenance of a separate black school in Ottawa,
Kansas-was probably a response to a great influx of AfricanAmericans. Called "Exodusters," they were lured to Kansas from
Mississippi and Louisiana by false stories of free land in 1879 and 1880.31
After this "Exodus," cities like Ottawa, Kansas resegregated their
schools, which they had integrated only a few years before. Ottawa's
separate schools were then successfully challenged by Elijah Tinnon, on
behalf of his son Leslie (pp. 100-05).
Kull adds some significant details to the legal history as well. While
others have noted that the Kansas Supreme Court expressly declined to
rely on the Fourteenth Amendment, Kull found the lower court's opinion, published in a local newspaper. This lower court opinion held for
the first time anywhere that segregated schools violated the Fourteenth
Amendment (pp. 101, 103-04). From examining Kansas agricultural
records, Kull also determined that the Tinnons were not in fact
Exodusters: the parents had been in Kansas since at least 1865 and all
the children had been born there (p. 261 n.51). Last, Kull's review of
school board records allows him to fill in many details, including the fact
that the order admitting Tinnon to the White school did not lead to the
27.
28.
29.
Franklin
30.
163 U.S. 537 (1896), overruled by Brown v. Board of Educ., 347 U.S. 483 (1954).
175 U.S. 528 (1899).
Tinnon v. Wheeler, DAILY REPUBLICAN (Ottawa, Kan.), Jan. 19, 1881, at 2 (Dist. Ct.
County Jan. 18, 1881), aff'd sub nom. Board of Educ. v. Tinnon, 26 Kan. 1 (1881).
See, e.g., J. MORGAN KOUSSER, DEAD END: THE DEVELOPMENT OF NINETEENTHCENTURY LITIGATION ON RACIAL DISCRIMINATION IN SCHOOLS 23 (1986).
31. See generally ROBERT G. ATHEARN, IN SEARCH OF CANAAN: BLACK MIGRATION TO
KANSAS, 1879-80 (1978).
19931
SEEING COLORS
immediate abolition of the Black school. Only years later were the Black
teacher's contract bought out and the schools merged (pp. 105-07).
Kull's Plessy analysis is also noteworthy for its outrageous claim
that Plessy's broad holding is still the law of the land:
[I]n its broad holding as opposed to its particular application,
Plessy has never been overruled, even by implication. On the contrary, it announced what has remained ever since the stated view
of a majority of the Supreme Court as to the constitutionality of
laws that classify by race.
...The only logically distinct alternative [to a reasonableness analysis] was that proposed in Justice Harlan's dissenting
opinion: that legal distinctions on the basis of race be altogether
prohibited. The broad holding of Plessy is its rejection of
Harlan's alternative in favor of Shaw's. Racial classifications,
announced Justice Brown, are like every other sort of classification, and those racial classifications will be constitutional that a
majority of the Supreme Court considers to be "reasonable."
That rule of constitutional law, and no other, will explain every
Supreme Court decision in the area of racial discrimination from
1896 to the present. The true holding of Plessy is not "separate
but equal" but the Supreme Court's refusal to deny to the state
the option of treating citizens differently according to race. The
whole development of the question since 1896 has been merely the
ebb and flow of the Court's idea of what constitutes reasonable
discrimination (pp. 113, 118).
Kull also challenges the conventional view of Justice Harlan's 1899
majority opinion in Cumming v. Richmond County Board of Education.3 2
In Cumming, the Court upheld Richmond County, Georgia's failure to
provide public high schools for African-Americans. The conventional
view is that this case shows that even Harlan eventually renounced color
blindness. For example, C. Vann Woodward has argued that Harlan
"saw nothing unconstitutional in segregated public schools."'3 3 Benno
Schmidt has expressed a similar interpretation.3 4
Kull, however, argues against that view. First, he emphasizes the
reason behind Harlan's advocacy of color blindness: Harlan's approach
stemmed from his belief that government could not be trusted to use
wisely the power to discriminate on the basis of race (pp. 121-25).
32. 175 U.S. 528 (1899).
33. C. VANN WOODWARD, AMERICAN COUNTERPOINT: SLAVERY AND RACISM IN THE
NORTH-SOUTH DIALOGUE 231-32 (Oxford Univ. Press 1983) (1971).
34.
ALEXANDER M. BICKEL & BENNO C. SCHMIDT, JR., THE JUDICIARY AND RESPONSIBLE
GOVERNMENT, 1910-21, at 759 (1984) ("[I]t was reasonably clear after Cumming that even Justice
Harlan took for granted the authority of the state to segregate public schools.").
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[Vol. 81:1059
Second, the case didn't raise the constitutionality of segregation by
color. As Harlan made clear in his opinion in Cumming-but which
most historians have either overlooked or discounted-the constitutionality of segregated schools was not itself at issue in the case. The plaintiffs distinctly stated that they had no objection to schools segregated by
race. They just wanted equal treatment. That is the claim that Harlan
examined in Cumming (p. 127). For Harlan, the treatment was equal.
Because the county didn't provide public schools and didn't pay subsidies for either urban White males or African-Americans (p. 128), the
treatment (by 1899 standards) was equal enough.3 5
It's easy to be skeptical about Harlan's sincerity-indeed it's too
easy. Perhaps such niceties of Supreme Court procedure as deciding the
specific question put to you by the litigants wouldn't have stopped
Justices Burger or Brennan. But, for Justice Harlan, judicial restraint
was a deeply-held belief. Just because Harlan was occasionally unable to
restrain himself doesn't mean that we should reject judicial restraint as
an explanation for Harlan's opinion in Cumming. Had segregation itself
been before the Court, Kull plausibly argues, there is every reason to
think that Harlan would have once again been in the minority, arguing
that segregated facilities were unconstitutional. Of course, such
counterfactual musings are not susceptible to proof.
Kull goes on to argue that the Plessy rule was never again applied by
the Supreme Court to uphold "separate but equal" segregation-being
transformed into a weapon against segregation as early as 1914 in
McCabe v. Atchison, Topeka & Santa Fe Railway Co.3 6 (pp. 134-38).
There Plessy was used to strike down segregated railroad cars in
Oklahoma. Plessy was ignored in the striking down of housing segregation laws in Buchanan v. Warley37 (pp. 138-41), and again ignored when
the Japanese internment was upheld in Hirabayashi v. United States3 8
and Korematsu v. United States.39 Both Buchanan and the Japanese
Internment cases contained considerable language pointing toward a general nondiscrimination principle (pp. 138-46).
35. 175 U.S. at 542-43. One private school was open to white males; three others were open to
African-Americans. Because there were no private schools for white females, a public one was
provided. Rural white children were provided with a private (but publicly funded) school, an
admitted anomaly (p. 128).
36. 235 U.S. 151 (1914).
37. 245 U.S. 60 (1917).
38. 320 U.S. 81 (1943) (upholding curfew orders for Japanese-Americans).
39. 323 U.S. 214 (1944) (upholding internment while establishing heightened or strict scrutiny
for racial classifications) (pp. 143-45).
1993]
SEEING COLORS
1073
VI
SCHOOL DESEGREGATION AND BROWN
Kull's account of Brown v. Board of Education and its aftermath
doesn't challenge any of the standard accounts.' And yet, by highlighting the influence of the idea of color blindness on the Court during
Brown, he puts a different spin on the proceedings. Once again, Kull
notes the similarities rather than the differences between Brown and
Plessy: "Taken at face value, the [Brown] opinion necessarily implied
that there was nothing wrong with racial segregation in and of itself:
'separate but equal' facilities, were they only attainable, would be as constitutional as ever" (p. 154). Kull suggests that the chief difference
between the majority opinions in Plessy and Brown was empirical
assumptions about the psychology of race. If the legality of segregation
turns on "the current state of psychological opinion, expert or homespun," Kull argues, "then it is probably an error to regard it as a constitutional question at all" (p. 155).
More significant for our current understanding of the era than
Kull's unusual reading of Brown is his demonstration that the gist of the
various briefs and arguments in Brown and its companion cases 4 1 was
that racial distinctions wereper se illegal. In Bolling v. Sharpe, James M.
Nabrit, Jr., counsel for the plaintiff, intentionally omitted any allegation
of inequality from his pleading, even though the District of Columbia
schools were grossly unequal. He hoped thereby to force the Court to
adopt the color-blind approach that he and the others were urging. As
just one of many examples in the book, the NAACP Legal Defense
Fund's consolidated brief on reargument stated as the first point of its
Summary of Argument: " 'Distinctions drawn by state authorities on the
basis of color or race violate the Fourteenth Amendment'" (p. 158).
The first sentence discussing this point argued that "'the Fourteenth
Amendment prohibits a state from making racial distinctions in the exercise of governmental power'" (p. 158).
The adoption of the color-blind ideal was so widely expected, and
the ground of the actual decision was so elusive, that some commentators
simply assumed that the Court in Brown had adopted Harlan's Plessy
argument. This view was held by some of the press (e.g., the New York
Times),4 2 by some judges (e.g., John Minor Wisdom),43 and by many
40. See, e.g., RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF
EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (Vintage Books 1977) (1976) (the
classic work on the desegregation cases).
41. Bolling v. Sharpe, 347 U.S. 497 (1954); Briggs v. Elliott, 103 F. Supp. 920 (E.D. S.C. 1952);
Davis v. County Sch. Bd., 103 F. Supp. 337 (E.D. Va. 1952); Gebhart v. Belton, 91 A.2d 137 (Del.
1952).
42. Justice Harlan Concurring,N.Y. TIMES, May 23, 1954, § 4, at 10B (Harlan's color-blind
words "have become in effect ... a part of the law of the land").
43. Dorsey v. State Athletic Comm'n, 168 F. Supp. 149, 151 (E.D. La. 1958) (Wisdom, J.) ("In
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[Vol. 81:1059
44
legal academics as well (e.g., Albert Blaustein and Clarence Ferguson).
But the Court wasn't willing to go that far. Striking down racial
classification per se would have struck down all types of racial restrictions at once. Instead, the Court was committed to an incremental
approach. Indeed, in 1956, the Court dismissed an appeal from a state
court judgment upholding the Virginia miscegenation statute (pp. 15960).4 ' They weren't ready to take up a miscegenation statute so soon
after Brown.
VII
BENIGN RACIAL SORTING
Kull's last two chapters-on the abandonment of the color-blind
version of the nondiscrimination principle just as it came within reach
and on the new era of what Justice Brennan calls "benign racial sorting,"4 6 -are the most controversial parts of the book. Kull's history in
these chapters is interesting, but it's clear that he has only scratched the
surface. The definitive history of this great switch in policy is yet to be
written. But from Kull's review, one can see that the ground is fertile.
For example, it turns out that, among federal judges, John Minor
Wisdom was the first to announce the view that Brown mandated color
blindness (in 195847 and 196248) and was among the first to reject it (in
1966) 49 (pp. 179-81).
Kull also continues the public rehabilitation of the Moynihan
Report (pp. 184-88)." 0 Despite its hostile reception from civil rights leadthe School Segregation Cases (citation omitted) the Supreme Court held that classification based on
race is inherently discriminatory and violative of the Equal Protection Clause of the Fourteenth
Amendment."), aft'd, 359 U.S. 533 (1959).
44.
ALBERT P. BLAUSTEIN & CLARENCE C. FERGUSON, JR., DESEGREGATION AND THE
LAW: THE MEANING AND EFFECT OF THE SCHOOL SEGREGATION CASES 145 (1957) ("What the
Supreme Court did on May 17, 1954, was to adopt a constitutional standard... declar[ing] that all
classification by race is unconstitutional per se ....
").
45. Naim v. Naim, 350 U.S. 985 (1956). For a fuller discussion of the Supreme Court's
treatment of this case, see Dennis J. Hutchinson, Unanimity and Desegregation:Decisionmaking in
the Supreme Court, 1948-1958, 68 GEO. L.J. 1, 62-67 (1979).
46. United Jewish Orgs. v. Carey, 430 U.S. 144, 175 (1977) (Brennan, J., concurring in part)
(stating that decisionmakers engaged in "benign racial sorting" must weigh costs and benefits).
47. Dorsey v. State Athletic Comm'n, 168 F. Supp. 149, 151 (E.D. La. 1958) (striking down
restrictions on interracial boxing based on the principle that "classification based on race is
inherently discriminatory"), aff'd, 359 U.S. 533 (1959).
48. Anderson v. Martin, 206 F. Supp. 700, 705 (D. La. 1962) (Wisdom, J., dissenting) (dissent
would find unconstitutional a Louisiana law requiring that a candidate's race be printed on the ballot
and stating that "[i]n the eyes of the Constitution a man is a man. He is not a white man. He is not
an Indian. He is not a Negro."), rev'd, 375 U.S. 399 (1964).
49. United States v. Jefferson County Bd. of Educ., 372 F.2d 336, 876 (5th Cir. 1966) ("[1]he
Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects
of past discrimination."), cert. denied sub nom. Caddo Parish Sch. Bd. v. United States, 389 U.S. 840
(1967).
50. See LEE RAINWATER & WILLIAM L. YANCEY, THE MOYNIHAN REPORT AND THE
POLITICS OF CONTROVERSY (1967) (reproducing the text of the Moynihan Report); Nicholas
1993]
SEEING COLORS
1075
ers in the 1960s,5 1 its analysis and predictions have been mostly borne
out by later developments. 52 As "the issuer of the direst warnings of the
trouble to come," 53 Moynihan argued that the country must focus on the
extraordinary damage that slavery and Jim Crow had caused, the pathology of the ghetto, and the state of the Black family. Today, even
African-American civil rights leaders have begun to echo its calls for
action to deal with the increasing disorganization of the families of poor
urban Blacks.
In separate parts, Kull also describes how desegregation turned into
a positive constitutional requirement of forced integration, how equal
access to jobs turned into a requirement of equal results in hiring and on
aptitude tests, and how voting rights turned into gerrymandering districts to guarantee the election of African-American officeholders. All
reflected a shift from guaranteeing rights to guaranteeing results. As
Kull explains the growing argument against color blindness:
If color-conscious measures are authorized to eliminate the effects
of past discrimination, and if those effects are defined . . .to
include an unequal allocation of social resources resulting from
the present-day application of race-neutral standards, then colorconscious government action is broadly authorized in the interest
of compensatory justice to racial groups (p. 181).
Of these three separate parts, I found the section on voting rights
the most interesting, in part because this year the Supreme Court heard
an important case challenging racial districting in North Carolina. Not
surprisingly, litigants on both sides cited Kull's book-for he illustrates
both the honorable history and the clear rejection of the color-blind
ideal. 4 Kull shows how the voting rights section of the Justice
Department became engaged in gerrymandering to increase the numbers
of African-American officeholders (pp. 210-20).
Securing safe seats for African-Americans has produced the first
Black members of Congress since Reconstruction in some areas-as well
as some more controversial results. Kull describes how the Justice
Department has used its power to rewrite boundaries to increase Black
voting power, sometimes at the expense of voting power for other groups,
such as Puerto Ricans or Hasidic Jews (pp. 216-19). In one case, the
Justice Department objected to some nonwhite majority districts with
Lemann, Slumlord: Pat Moynihan Has Done Some Great Things-But Betraying the Poverty
WarriorsIsn't One of Them, WASH. MONTHLY, May 1991, at 39 (describing the background of and
response to the report).
51. See Lemann, supra note 50 (describing hostile response in the Black community).
52. See id. at 42 ("[I]ts dire predictions about the poor black family all came true").
53. Id.
54. See Appellants' Reply Brief, Shaw v. Reno, 61 U.S.L.W. 4818 (U.S. June 29, 1993) (No.
92-357); State Appellee's Brief, Shaw (No. 92-357); Appellants' Brief on the Mertis, Shaw (No. 92-
357).
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CALIFORNIA LAW REVIEW
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only fifty-two to fifty-three percent nonwhite majorities, giving New
York officials the impression that sixty-five percent was the acceptable
minimum. When that minimum was met, the plan was approved (p.
216).
For Kull, the logic of this racial gerrymandering is hard to cabin.
He argues:
There is of course no reason in principle why a policy favoring
minority officeholding, recognized for what it is, should be limited
to particular areas of the country; nor why its most effective
enforcement mechanism should be triggered only when a jurisdiction seeks to alter some established practice (pp. 215-16).
Racial gerrymandering raises some interesting issues for the standard position that outcomes should mirror the underlying population. If
every district nationwide were gerrymandered so that the Black population exactly matched its makeup in the general population, then each
perfectly diverse district would be twelve percent African-American and
three percent Asian-American. 5 Of course, such perfect diversity would
have the effect of decreasing the number of African-Americans elected to
office. Only by creating districts that don't mirror the exact racial diversity of the population can we have a more diverse group of elected
officials.
Further, in a completely color-blind society, with no lingering
effects of slavery, African-Americans would be elected from perfectly
diverse districts on average twelve percent of the time. But because races
tend to vote for their own, and because the legacy of slavery and segregation has prepared fewer Blacks for high public office, African-Americans
would rarely be elected from such perfectly diverse districts. Yet the
very practice of racial bloc voting that prevents Blacks from gaining seats
from predominantly White districts is more frequently practiced by
minorities than by Whites-irony upon irony upon irony.
In Shaw v. Reno,' 6 Justice O'Connor, speaking for the Supreme
Court, compares racial gerrymandering to apartheid. Challenges to districts that "cannot be understood as anything other than an effort to separate voters into different districts on the basis of race" would state a
claim under the Equal Protection Clause. 7 Justice O'Connor's opinion
makes it clear that the goal sought is still "a political system in which
race no longer matters."5 " On its editorial page, The New York Times
called O'Connor's opinion "an extremely dangerous decision," "[a]
55. See James Lindgren, Defining Pornography, 141 U. PA. L. REV. 1153, 1178 (1993)
(describing 1990 census data reporting that the U.S. population is 80.3% White, 12.1% Black, and
2.9% Asian or Pacific Islander).
56. 61 U.S.L.W. 4818 (U.S. June 29, 1993).
57. Id. at 4824.
58. Id. at 4826.
1993]
SEEING COLORS
1077
[d]inosaur [r]uling," and a "disingenuous and ahistorical attack on the
Voting Rights Act."5 9
VIII
DROPPING THE VEIL
At the end of The Color-Blind Constitution, Kull finally drops his
increasingly transparent veil. To suggest that the color-blind idea has a
future as well as a past, Kull sketches a tentative argument against racial
preferences (pp. 220-24). His reserve in trying to tell his story without
preaching may be the right decision politically. But the policy question
whether racial preferences are a good idea can't be adequately handled in
Kull's scant five pages.
Kull makes the following claims:
(1) "The national habit of counting by race will be more difficult to
eradicate than it was to instill" (p. 221).
(2) If any part of the national government retains the political
power to "deflect ...the convenient and destructive practice of allocating social resources by racial and ethnic groups," it is the Supreme
Court, rather than the electoral branches (p. 221). And even the Court
may not be powerful enough.
(3) Racial preferences programs "do little or nothing to improve the
condition of those black Americans in whose name the modern civil
rights agenda is consistently advanced" (p. 221).
(4) Racial preference programs "spend the limited political capital
available for 'programs to help blacks'" (p. 221).
(5) By interpreting every disparate impact as the result of continuing discrimination, we are avoiding the alternative interpretation that the
poor conditions of" 'ethnic minorities must be attributable to some more
generalized failures in society, in the fields of basic education, housing,
family relations, and the like'" (pp. 221-22).'
(6) There is now "the threat that a theory of proportional entitlement by race and ethnicity will become the American political model"
(p. 222).
(7)
A scrupulous nondiscrimination may yet prove, because of the
limitations of human justice, to be the most effective contribution
that law (as distinct from political action) can make to the
achievement of racial equality in this country. No one will contend, however, that a strict legal equality can of itself settle the
score between the United States of America and the descendants
59. A DinosaurRuling, N.Y. TIMEs, June 30, 1993, at A10.
60. The quote is originally from ALFRED W. BLUMROSEN, BLACK EMPLOYMENT AND THE
LAW vii (1971). Kull's quote inadvertently omits reference to "racialand ethnic minorities."
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of her slaves. Where race-specific measures direct benefits to persons whose ancestors were brought to this country in slavery, the
sense that this discrimination works rough justice-unjust, but
less unjust than doing nothing--cannot easily be dismissed.
No other racial or ethnic group among America's immigrants has a comparable claim to special treatment, and the moral
awkwardness of asking black Americans to be content with nondiscrimination should not stop us from giving that answer to
everyone else (pp. 222-23).
(8) The Constitution doesn't provide the answer to every social
question, no matter how much we may need one (p. 223).
(9) The constitutional rule we have now-allowing reasonable discrimination and disallowing unreasonable discrimination-is not a rule
of law in the sense that it is "capable of constraining political results" (p.
223).
(10) "[T]ools of government we know to be capable of much harm,
and that we cannot confidently use for good, should be abjured altogether" (p. 224).
I strongly disagree with many of these arguments, agree with a few
of them, and am agnostic about the rest. Yet the larger problem is that
Kull's historical account doesn't equip him for the very different tasks of
arguing philosophy and policy. Kull gives absolutely no evidence that a
legally color-blind stance would work better than the system of compensatory preferences we have now. Although comparisons like these are
questions of policy, his book is largely devoid of the kind of analysis that
would support this sort of conclusion. Even as a history of ideas, the
book contains little on the history of our thinking about corrective and
distributive justice, capitalism, individual freedom vs. entitlements, or
critical race theory-all necessary as background to a philosophical
examination of the theory of racial preferences. As Kull himself explains
in his preface, The Color-Blind Constitution is a legal history, not a policy
tract or a philosophical examination of racial justice.
Ix
RACE TALK
Any good book about race, from whatever viewpoint, inevitably
stimulates a reader to re-examine his or her own thinking. In discussing
some of the issues that Kull's book raises in my own mind, I will contrast
The Color-Blind Constitution with a prominent attack on color blindness
in the literature of critical race theory, Neil Gotanda's A Critiqueof "Our
Constitution is Color-Blind."6 The styles of argumentation and the con61. Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991).
Other prominent works in the large legal literature opposing color-blindness include Owen M. Fiss,
1993]
SEEING COLORS
1079
clusions reached couldn't be more different.
A.
State Action
Kull is unclear on one point: the degree to which a color-blind
Constitution would bar individual racial discrimination, as opposed to
state action. Critical race theorists, such as Neil Gotanda, argue that a
color-blind state nondiscrimination policy masks a desire to allow private
racial discrimination against African-Americans.6 2
Yet if we moved to a color-blind Constitution that applied only to
state action, private individuals could discriminate not only against
African-Americans, but in favor of them as well.6 3 If the Supreme Court
were to adopt a color-blind approach limited to state action, for example,
I and the law school where I teach could and would continue affirmative
action in faculty hiring and student admissions. Indeed, the consensus
for affirmative action in many spheres of American public life is so strong
that open opposition to it can brand the opponent as a racist.
If, however, a color-blind version of the nondiscrimination principle
were extended to private as well as to state actions, I and many others
would be faced with the possibility of civil disobedience-or, more likely,
would think of ways to redefine merit. Such a redefinition of merit, of
course, has already taken place. The ability to mentor ethnic minorities
has already become part of the job description for hiring ethnic minorities for law school faculties. There is a strong presumption that someone
perceived by students as being of a particular minority will do a better
job at that task than someone who is perceived as White.
B. Allowing Race for Recordkeeping and to Monitor Discrimination
Kull suggests that even strict color blindness has necessary limits.
As the NAACP Legal Defense Fund recognized in its Anderson 14 brief,
keeping records and statistics about race-such as the Census-would
still be permissible. So would compiling data for enforcing the law
against discrimination: "'The national census, by taking note of race,
contributes information of considerable value to social research. The
constitutional ban on racially discriminatory state action could not be
A Theory ofFairEmployment Laws, 38 U. CHI. L. REV. 235 (1971); Randall Kennedy, Persuasion
and Distrust: A Comment on the Affirmative Action Debate, 99 HARV. L. REv. 1327 (1986); David
A. Strauss, The Myth of Colorblindness, 1986 Sup. Cr. REV. 99 (arguing that failure to engage in
affirmative action may sometimes be unconstitutional); J. Skelly Wright, Color-Blind Theories and
Color-ConsciousRemedies, 47 U. CHi. L. REv. 213 (1980).
62. Gotanda, supra note 61, at 15-16.
63. At one point Gotanda appears to recognize this, suggesting that, if the government were
restricted from racial sorting, "racial social change-remediation for centuries of subordinationmust take place outside of legal discourse and the sphere of government action." Id. at 55.
64. Anderson v. Martin, 375 U.S. 399 (1964) (finding a Louisana law requiring race of
candidates to be printed on ballot to be unconstitutional).
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enforced if courts were truly blind to racial groupings'" (p. 166). Kull
thinks that these two qualifications "are probably the minimum required
to save the idea from logical absurdity" (p. 167).6
Indeed, complete color blindness leads to bizarre results. Gotanda
retells the wonderfully absurd story of the attempt by law review editors
to take racial identifiers out of one of Pat Williams' stories of race dis-
crimination. This effort rendered the story incomprehensible.1 6 Those
who urged color blindness on the courts wouldn't have endorsed such a
silly attempt to obliterate race, recognizing that race is relevant in assessing, discussing, and punishing discrimination.
C. Nonrecognition
Gotanda's criticism raises another issue: the protection of African-
American culture. Some of Gotanda's attack on the idea of color blindness assumes that a color-blind legal policy would require a color-blind
society. He considers full assimilation "cultural genocide,"' 6 and argues:
"However utopian it appears, the color-blind assimilationist program
implies the hegemony of white culture."' 68 Further, Gotanda argues that
because, in the current color-conscious society, one must first notice or
recognize race before choosing to ignore it, color blindness is irrational.
Although some civil rights leaders, such as Martin Luther King, Jr.,
were working toward a color-blind society,69 in which race would carry
as little importance as eye color, this is not the view of most people who
currently argue for the nondiscrimination principle. Like Gotanda, they
probably believe that color consciousness is unavoidable. But, having
read many of King's published speeches, I find it hard to view him as
65. See, e-g., JAMES E. BOWMAN & ROBERT F. MURRAY, JR., GENETIC VARIATION AND
DISORDERS IN PEOPLES OF AFRICAN ORIGIN 9 (1990) ("Apparently, [in Canada] some black
groups are now attempting to introduce racial categories on census forms to facilitate the allocation
of funds for economic and social programs that would benefit blacks.").
66. Gotanda, supra note 61, at 19-20.
67. Id. at 60.
68. Id.
69. Beyond the more famous words quoted at the opening of this essay, consider these
statements of King:
(1) Thus I consider myself an extremist for that brotherhood of man which Paul so nobly
expressed: "There is neither Jew nor Greek, there is neither bond nor free, there is neither
male nor female: for ye are all one in Christ Jesus." A TESTAMENT OF HOPE, supra note 4,
at 356.
(2) The concept of supremacy is so imbedded in the white society that it will take many
years for color to cease to be a judgmental factor. But it is certainly my hope and dream.
Indeed, it is the keystone of my faith in the future that we will someday achieve a
thoroughly integrated society. I believe that before the turn of the century, if trends
continue to move and develop as presently, we will have moved a long, long way toward
such a society. Id. at 375.
(3) The fact is that we are tied together in an inescapable network of mutuality. Whether
we like it or not and whether the racist understands it or not, our music, our cultural
patterns, our poets, our material prosperity and even our food, are an amalgam of black
and white, and there can be no separate black path to power and fulfillment that does not
ultimately intersect white routes. Id. at 665-66.
SEEING COLORS
1993]
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even an unintentional advocate of cultural genocide. Of course, Gotanda
would never accuse King himself of cultural genocide, but he would
apparently brand as genocide some of the core views of King and those
who marched with King.
Gotanda's approach owes much to critical legal studies generally,
where because unbiased objectivity or the rule of law is impossible to
achieve, they are sometimes depicted as vain to strive for. Yet most people would prefer their judges to try to put aside their racial and ethnic
biases. It doesn't follow from the impossibility of eliminating race-consciousness from American life that a color-blind Constitution is a bad
idea. The case in favor of reasonable racial discrimination must logically
proceed on other grounds. Those who would prevent the state from discriminating on the basis of race don't urge that view because racial discrimination doesn't exist, but rather because racial discrimination is
usually a bad thing.
D.
CelebratingDiversity
Neil Gotanda ends his critique of color blindness on an odd note.
He advocates that we look to the religion clauses and cases as a model for
race jurisprudence.7" Because Gotanda ties Constitutional color blindness to the eradication of Black culture,7 1 he looks to religion as an area
where the law prevents the establishment of one religion and promotes
free exercise. He would like to prevent the establishment of one race and
promote the free exercise of others.
But there may be a fundamental problem in Gotanda's analogy.
The religion clauses and cases actually show how the government can
protect religious diversity without trying to compensate for disparate
wealth and opportunities. A government can promote religious diversity
merely by protecting individual choices rather than by mandating equal
results for different religions. A government program that tried to take
wealth or jobs away from Jews or Catholics and give them to Protestants,
because some surveys have found that Protestants are poorer than members of the other two religions, would be profoundly offensive and probably unconstitutional. Further, between these three religious groups, Jews
have been subject to the most religious discrimination, Catholics the next
most, and Protestants the least. When I look at religion, I draw a conclusion different from Gotanda's: (1) We can celebrate religious diversity
without religious preferences or the government taking sides to equalize
results; and (2) religious discrimination doesn't explain the disparate
wealth of religious adherents. Thus religion would seem to be a bad anal70. Gotanda, supra note 61, at 66.
71. Id. at 53-60.
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ogy to racial discrimination-both in terms of causes and in terms of
remedies.
E.
What's Wrong with Racial Discrimination?
The debate over color blindness raises another fundamental question: "What exactly is wrong with racial discrimination?" The old
answer was that racial discrimination treated individuals, not according
to their merits, but according to their race. Whites received unmerited
positive treatment while Blacks received unmerited negative treatment.
The problem is that this original view fits uneasily with affirmative
action, at least in its permanent forms.
One modem view finds discrimination unfair because it leads to different results for different groups. Accordingly, any distribution of
results that is unequal for any group is presumptively unfair. But again
there is a problem: this disparate impact analysis fits uneasily with the
continuing discrimination against ethnic and religious groups that are
more successful than the general population-for example, Jews and
Japanese-Americans.
Problems with a shift in principles can be seen with anti-Jewish discrimination. In the early part of this century, Harvard, like other IvyLeague colleges, instituted Jewish quotas--cutting the number of Jews at
Harvard from twenty-two percent to ten percent.72 Like most others, I
have always considered the Jewish quotas shameful discrimination. The
evil of this practice is comprehensible if one takes the anti-meritocratic
view of discrimination. But if one takes the disparate impact approach, a
ten percent Jewish student body still grossly overrepresents the number
of Jews in American society. According to recent surveys conducted at
my law school, eighteen to twenty-nine percent of the student body is
Jewish. Our faculty is probably closer to twice those percentages. If proportional representation were taken seriously, then most law schools
would be entitled to perhaps one Jewish faculty member (two to three
percent of the total). The larger faculties could have two.
Perhaps one might counter that Jews are White and thus can't be
meaningfully distinguished from the White majority. Yet, it is only by
ignoring and trivializing the continuing discrimination against Jews that
they can be counted as part of the White Christian 73 majority. The latter
group, by the way, is statistically underrepresented on many law school
faculties, including my own.
72. David B. Davis, The Other Zion: American Jews and the MeritocraticExperiment, THE
NEW REPUBLIC, Apr. 12, 1993, at 29.
73. Several national surveys of registered voters about a decade ago consistently found 87-90%
Christian and (with one exception) 2% Jewish. Yankelovich, Skelly & White, for TIME, available in
poll database of the Roper Ctr., Univ. of Conn., Oct. 1982, Dec. 1982, Mar. 1983, June 1983, Sept.
1983, & Dec. 1983 (question asked: "What is your religion?"). Although I was brought up
Christian, I am now an atheist.
1993]
SEEING COLORS
1083
Viewing discrimination as action motivated by hate, action that
harms disadvantaged minorities, or most other obvious formulations
runs into other problems. In general, the question of the nature of the
wrong of racial discrimination has received too little examination, especially since the rise of affirmative action.7 4
F. Faith in the State
One of the least appreciated parts of the history of the color-blind
ideal is its origin in a profound skepticism of the government's ability to
consistently do right by racial minorities. According to proponents of
color blindness-like Harlan and Kull-some kinds of racial distinctions
could be beneficial, if only the government could be trusted to use its
power to discriminate wisely.
This skepticism raises an interesting problem for critical race theorists. The Harlan-Kull position suggests that two beliefs of critical scholars may be inconsistent: (1) that minorities almost always lose when
governments or other powerful institutions get involved; and (2) that
government-mandated racial preferences will help African-Americans.
One may have to give up one of these beliefs-that African-Americans
almost always lose when the government acts-if one is to advocate government action in favor of Blacks. Unless the government can be trusted
to do good for African-Americans at some point in the foreseeable
future, then Kull and Harlan would argue that it's better that the government be denied the power to discriminate altogether.
G. Racial Definition Under Benign Racial Sorting
There is an additional problem that honest advocates of affirmative
action need to face: the problem of race definition. How do we tell
whether someone is of a particular race? The problem is compounded by
the sad history and ideology surrounding attempts to sort people by race.
In the middle decades of this century, it was common to ridicule the
attempt to define the race of individuals as pseudo-science. Only bigots
would try to determine the race of individuals. Race was a social concept
invented by racists to classify and subordinate "lesser" races.75
But affirmative action and the rise of arguments legitimating raceconsciousness have created a range of decisions where the race or ethnic
origins of individuals must be determined. Under programs of compensatory preferences, questions of who qualifies come up more often than
74. However, while this essay was in revision, an interesting examination appeared. Larry
Alexander, What Makes Wrongful Discrimination Wrong?: Biases, Preferences, Stereotypes, and
Proxies, 141 U. PA. L. REv. 149 (1992). See also the large literature against color blindness
mentioned supra note 61.
75. See, eg., ASHLEY MONTAGU, MAN'S MOST DANGEROUS MYTH: THE FALLACY OF RACE
(5th ed. 1974).
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one might expect. Any law professor who has served on a faculty
appointments committee or student admissions committee knows that
such questions arise with particular frequency. Although most individuals are easily classified into categories fitting society's conception of race,
there are usually a few persons each year who are difficult to classify.
To facilitate more accurate decisions, the Columbia Law School
requests student applicants for admission who wish to have their ethnic
background taken into account to submit ethnic statements. One
African-American applicant told me that she interpreted this as asking:
"How Black are you?" In some sense such questions are asking how
closely the applicants fit the stereotypes that society has fixed on particular ethnic groups. Although even to raise the issue openly makes many
people uncomfortable, the process of requesting ethnic statements allows
Columbia to do more accurately what other law schools do more
crudely.
But there are further complications with doing the sorting that
affirmative action requires. Over most of the last few centuries, racists
tended to assume that there first existed discrete and identifiable races,
which were then mixed after the Age of Exploration. An elaborate
example of such a scheme was the French colonial Code Noir for San
Domingo. Racial ancestry was divided into 128 parts-with various
groups receiving numerous different names.7 6
The distribution of racial characteristics is continuous across land
masses 77 and "boundaries between the races drawn on the basis of one
trait will not coincide with boundaries drawn on the basis of another
trait. ' 78 Even before 1500, there were always intermediate regions where
particular characteristics were present in part of the population or in partial degree. One has only to compare the peoples around the
Mediterranean to see the subtleties and gradualism in the differences
between ethnic groups. Although, for example, most Scandinavians are
readily distinguished from most Sub-Saharan Africans, the differences
with each step are slight, as one moves from Northern Europe through
Southern Europe and Northern Africa to Sub-Saharan Africa.7 9
According to most population geneticists, what we call "races" arise
when members of species become separated over a long enough period of
time to develop different distributions of characteristics. When those dif76.
C.L.R. JAMES,
THE BLACK
JACOBINS:
TOUSSAINT
L'OUVERTURE
AND
THE
SAN
DOMINGO REVOLUTION 38 (Allison & Busby 1983) (1938) (describing a racial classification system
based on seven generations of genealogy).
77. See, ag., W.F. BODMER & L.L. CAVALLI-SFORZA, GENETICS, EVOLUTION, AND MAN
562-64 (1976) (reporting that the level of migration prior to the fifteenth century was "hardly
compatible with clearcut, well-isolated geographical races-which in fact are not found," and that
genes vary gradually across geographic region).
78. Id. at 562.
79. Id. at 572.
1993]
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1085
ferences are substantial enough, races are said to have developed. The
point to keep in mind, however, is that "the level of differences used as a
threshold is entirely arbitrary.""0 Ultimately, if differentiation increases,
interfertility decreases between the various races of a species."1 Human
race differentiation has not proceeded to the point where interfertility has
decreased, 2 and, given current interaction between races, a decrease in
interfertility between human races is unlikely to develop. Race is therefore principally a social construct that gives meaning to certain characteristics of groups within a species.
Most societies that have sorted by race have used multiple ways to
determine whether an individual is a member of a particular racial or
ethnic group. Color of skin, facial features, hair, language, cultural affinities, country of origin, surname, religion, lineage from ancestors whose
race is supposedly known, and self-identification-all are ways that have
been used in the past. The unpleasant fact is that while they were and
are used by racist regimes, they are also used today by those practicing
benign racial sorting.
The indignity and arbitrariness of some of these practices are appar-
ent. Under the recently repealed South African Population Registration
Act, some close cases between Black and "coloured" were reportedly
determined by the pencil test. Officials would put a pencil in the subject's
hair. If it stayed in, the subject was Black. 3
Some modern theories use solidarity with the racial cause as part of
the very definition of race. This is exemplified by the statements of some
African-American leaders that Judge Clarence Thomas wasn't Black, 4
and by Steve Biko's theories of race, where actively opposing the South
African regime is part of the definition of being Black. 5
80. Id. at 562.
81. Id. at 560-61 (noting, however, that "[i]n general, among mammals, it may take on the
order of a million years for two isolated populations to evolve from genetic identity to a situation of
intersterility").
82. Id. at 561.
83. Caryle Murphy, From Birth to Grave, South Africans Live With Race Label, WASH. POST,
Sept. 10, 1978, at A31.
84. See, eg., Bill Sammon, Nominee Too FarRight[J NAACP Leader Opposes Thomas, CLEV.
PLAIN DEALER, Sept. 13, 1991, at 3C (quoting a local NAACP chapter head as saying about
Thomas that "any black who wants the status quo is not black"); Ronald Walters, Thomas:
Estrangedfrom His "Blackness," WASH. POST,July 15, 1991, at All (criticizing Thomas' record
and views, and noting that Thomas "will be found not to be the 'black' nominee to the Court,
because 'blackness' ultimately means more than color; it also means a set of values from which
Thomas is apparently estranged").
85.
See STEVE BIKo, BLACK CONSCIOUSNESS IN SOUTH AFRICA 120 (Millard Arnold ed.,
1978) ("anybody who does not identify with the struggle called the Black struggle towards
attainment of our total goals as Black people ... does not qualify to be called Black"); see also
STEVE BIKO, I WRITE WHAT I LIKE 48 (1978) ("Being black is not a matter of pigmentation-being
black is a reflection of a mental attitude."); id. at 48-49 ("Black people-real black people-are
those who can manage to hold their heads high in defiance rather than willingly surrender their souls
to the white man.").
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One obvious but insufficient answer to race definition is self-definition. This would work fine where associations are voluntary and
resources aren't too scarce. Self-definition works best where it isn't
troublesome to have extra people who consider themselves part of a
racial group (even if others don't). The crunch comes when significant
burdens or benefits are being parceled out. For example, disputes about
definitions of race have arisen over the right to sue for discrimination and
86
the right to benefits under affirmative action programs.
X
SEEING COLORS
In his mostly excellent new book, The Color-Blind Constitution,
Andrew Kull describes the long history of the idea that the Constitution
should prohibit the government from discriminating in any way on the
basis of race. From the 1830s until the 1960s, the color-blind nondiscrimination principle was urged by many of the most radical of those
who fought for equality for African-Americans. In its first flowering-in
the 1837-40 abolitionist petition drive-Caroline Augusta Chase and the
Lynn Women's Anti-Slavery Society were ridiculed as wanting to marry
Black husbands. Kull shows that in 1863 Wendell Phillips publicly proposed the color-blind version of the nondiscrimination principle as a
Constitutional amendment along with what was to become the
Thirteenth Amendment, but Phillips' version of the Fourteenth
Amendment ultimately failed because it would have given AfricanAmericans the full right to vote, which in 1866 all states but five in New
England abridged. John Bingham's much weaker and more flexible
Fourteenth Amendment, which didn't guarantee African-American suffrage, was chosen instead.
In the twentieth century, the leaders of both the political and the
legal wings of the civil rights movement argued for color blindness.
Martin Luther King looked forward to a day when race would have little
meaning 87 and (until the late 1960s) the NAACP Legal Defense Fund
was the most consistent advocate of legal color blindness (pp. 146-70).
In Brown v. Board of Education,8 a a color-blind Constitution was the
primary legal rule urged on the Court. But the Court, committed to a
policy of gradualism, wasn't willing to go that far.
When in the 1960s it became clear that the end of de jure segregation and racially restrictive laws wouldn't lead to Black-White equality,
the civil rights movement, the courts, and the federal government shifted
away from color blindness as the means of achieving equality. For a
86. Paul Finkelman (the slavery historian) and I are planning a history of race definition in
American law, a project that in part prompted me to write this review.
87. See supra note 69.
88. 347 U.S. 483 (1954).
1993]
SEEING COLORS
time, affirmative action would be needed to equalize real opportunities, a
view still widely held among the general public. Now, however, legal
color blindness itself is being rejected by theorists as an ultimate goal,
and the very idea of color blindness itself is being attacked as racist.
In the last pages of his book, Kull gives up the mantle of legal historian and tentatively argues for the color-blind principle. His short sermon leaves me unpersuaded, chiefly because he provides absolutely no
evidence that color blindness is a superior public policy to affirmative
action. Still, we who believe in affirmative action have not done enough
to address some of the difficult moral and theoretical issues it raises.
Like most legal principles, the color-blind principle is an abstraction. When one reads either Kull's history of the color-blind ideal or
Neil Gotanda's attack on it, one is struck by the degree to which both
works (and this review) usually speak at a level a step or two removed
from the slaves, ex-slaves, and descendants of slaves whose rights are
being argued over. This is unavoidable with an intellectual history.
Elites create and manipulate ideas, whether those ideas are racial subordination or the abolition of slavery.
Writing about race can be an overwhelming experience emotionally.
Anyone who works in this area must know that, if it doesn't cause you
pain, then it's not about race. I found myself turning late at night to the
oral histories of former slaves themselves to understand the human component of my subject a little better. One slave's story of skepticism and
defiance caught my mood. Beverly Jones, a former slave, told this story
to researchers who attempted to respect her dialect:
Uncle Silas was near 'bout a hundred, I reckon-too feeble to do
no work, but always got strength enough to hobble to church
when de slave-service gonna be. Ole Preacher was Reverend
Johnson-fergit rest of his name. He was a preachin' an' de
slaves was sittin' dere sleepin' an fannin' theyselves wid oak
branches, an' Uncle Silas got up in de front row of de slaves' pew
an' halted Reverend Johnson. "Is us slaves gonna be free in
Heaven?" Uncle Silas asked. De preacher stopped an' looked at
Uncle Silas like he wanta kill him 'cause no one ain't sposed to
say nothin' 'ceptin' "Amen" whilst he was preachin'. Waited a
minute he did, lookin' hard at Uncle Silas standin' there but
didn't give no answer.
"Is God gonna free us slaves when we git to Heaven?" Uncle
Silas yelled. Old white preacher pult out his handkerchief an'
wiped de sweat fum his face. "Jesus says come unto Me ye who
are free fum sin an' I will give you salvation." "Gonna give us
freedom 'long wid salvation?" ask Uncle Silas. "De Lawd gives
an' de Lawd takes away, an' he dat is widdout sin is gonna have
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life everlasin'," preached de preacher. Den he went ahead
preachin', fast-like, widdout payin' no 'tention to Uncle Silas.
But Uncle Silas wouldn't sit down; stood dere de res' of de
service, he did, an' dat was de las' time he come to church. Uncle
Silas died fo' nother preachin' time come roun'. Guess he foun'
out whuther he gonna be free sooner dan he calculated to. 89
I have heard Reverend Gotanda preach salvation and, like Uncle
Silas, I want to know whether there's going to be some freedom along
with that salvation. And I have heard Reverend Kull preach freedom,
and I want to know whether there's going to be salvation along with that
freedom. I hope that, unlike Uncle Silas, I know the answer before I die.
89.
Jones).
VIRGINIA WRITERS' PROJECT, THE NEGRO IN VIRGINIA 109 (1940) (quoting Beverly
IRA MICHAEL HEYMAN