Why We Still Need Affirmative Action

This legal scholar says that these policies are still needed to level the playing field.


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The adoption of discriminatory laws, and the Plessy decision, created a dichotomy between what has become known in legal parlance as “facial equality” and true equality. Facial equality refers to equality before the law, in the eyes of the Constitution. In that ideal textual realm, blacks and whites have been equal since 1870. On its face, a convincing argument could be made that the Constitution has treated black and white citizens the same since the passing of the Reconstruction amendments. But clearly, those amendments have not always translated into true equality.

The Color of the Law

In debating the constitutionality of rights given to, and taken from, African Americans throughout the history of our country, lawyers, legal scholars and historians have debated the concept of a “colorblind Constitution.” Most Americans know the term from Justice John Marshall Harlan’s famous one-man dissent in Plessy v. Ferguson, in which he stated: “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.” In fact, the term was used in a similar way in the decades before the Civil War by abolitionists such as William Lloyd Garrison, Wendell Phillips, Frederick Douglass and Sen. Charles Sumner.

The idea of constitutional colorblindness is still used in modern legal discourse, often in debates regarding affirmative action. Today individuals opposed to affirmative action argue, in part, that our Constitution does not allow for special assistance for minorities because the document makes no mention of color or distinction among races.

Of course, a careful reading of the original text can counter this view. The Three-Fifths Compromise and the Fugitive Slave Clause provide direct evidence that the original framers made conscious color distinctions. Yet according to anti-affirmative action thinkers, providing help to disadvantaged groups of people distinguished by their race is unconstitutional. This use of colorblindness is, ironically, the exact opposite of that employed by the 19th-century activists.

Advocates of affirmative action as a necessary step toward social equality in American society rightly see this contemporary embrace by those to the right of the colorblind argument as a clever but disingenuous endorsement of the facial-equality concept, as opposed to a sound and sincere argument for genuine social and racial equality. Making a colorblind argument of this sort implies that the rights of African Americans before the law are, in the so-called postracial era of Barack Obama, no different from their actual rights — and, thus, whites and blacks are completely equal. This idealistic vision of American society does not, unfortunately, accord with reality.

The colorblind-Constitution theory, at first glance, seems to provide a compelling argument for equality. But despite its historical roots in the abolition movement, it doesn’t actually work as a remedy for discrimination against African Americans. The key concept behind the original colorblind argument made by 19th-century abolitionists was equality before the law; their vision was of a country in which nobody saw color, so everyone, it would follow, would be inherently equal.