(Special to The Root) — Throughout the history of American law and the long struggle for civil rights, questions have consistently arisen regarding the meaning of individual rights, especially for minorities. Indeed, when the founding documents of our country were being crafted, the issues of slavery, individual freedom and property rights were widely debated.

Interestingly, while race relations have significantly improved over the course of American history, questions regarding the rights of minorities continue to play a considerable role in our society, as highlighted by the ongoing case of Fisher v. University of Texas, which the Supreme Court is set to hear in October of this year. Fisher challenges the constitutionality of the University of Texas' admissions policy, which considers race as a factor in student admissions. A decision in the case may help define the meaning of equality in America for the coming decades. Today, as we anxiously anticipate how the upcoming decision will affect America's future, it is important, as always, to look to our past.


The ongoing debate regarding the treatment and status of minorities in America can be traced back to the very founding of our country, which included an appalling history of slavery. However, despite the fact that slavery was tragically allowed to flourish during the first 80-something years of the Republic, the three Reconstruction amendments, passed between 1865 and 1870, finally provided rights that, in theory, made all American males equal.

And at first blush they appeared to be working. In the 1870 congressional election, the first election of any kind in which African-American males were allowed to vote, black voters turned out in huge numbers and elected the first three African Americans to Congress (pdf), and a total of 29 throughout the 1870s.

It seemed, finally, that black men, at least, had achieved equality in the United States. However, the hard-won freedom enjoyed by these new citizens did not last long. Southern white supremacists assumed a narrow interpretation of the rights given under the 13th, 14th and 15th amendments, which explicitly abolished slavery, provided citizenship rights and permitted black men the right to vote. But these amendments left the issue of public rights and fair treatment open to debate because of ambiguous language such as "privileges and immunities" and "equal protection."


White supremacists exploited these ambiguities by imposing local laws, such as the notoriously racist "Black Codes," which were constitutionally legal yet discriminatory toward black people, thus placing them back into a subordinated role in American society just a few years after they had ostensibly become "equal." This false version of equality was further enforced by the landmark decision of Plessy v. Ferguson (1896), in which the Supreme Court determined that blatant racial discrimination and separation under the Louisiana Separate Car Act were "equal" under the Constitution.

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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.


While this is certainly an ideal for which to strive, the problem with that view today is that African Americans were subjected to decades of discrimination and unfair treatment, even after the abolition of slavery, during the repeal of Reconstruction, through the birth of Jim Crow in the 1890s and continuing throughout much of the 20th century. Today the case can certainly be made that African Americans are "facially equal" to white Americans. But because they were so disadvantaged by decades of discrimination, simply removing race from our national discourse and providing no remedial help to people who were historically and systematically disadvantaged simply cannot lead to true equality.

Achieving True Progress

Interestingly, the great African-American intellectual W.E.B. Du Bois made that same argument in the late 19th century. In an 1897 article in the Atlantic Monthly entitled "Strivings of the Negro People," he wrote of the need for American society to go far beyond the simple elimination of color as a factor in the determination of rights. After decades of brutal and inhumane treatment, it was unreasonable to simply throw African Americans into a world that declared them legally "equal" but where, in reality, they were hated and degraded. If all they were awarded was equality under the law, he argued, blacks would never be given genuine opportunities to become significant contributors to American society as equals to their fellow white citizens.


In fact, Du Bois, a man who was ahead of his time in both his vision of African Americans' aspirations in U.S. society and his rights-remedies argument, made perhaps the earliest defense of affirmative action: Rather than ignoring color, we should recognize color, admit that centuries of unequal treatment have inevitably put African Americans at a significant socioeconomic disadvantage and then remedy that through legislated social change. He believed that providing facial equality could not possibly be enough.

Du Bois' cogent and persuasive argument applies directly to our contemporary debate over affirmative action. It was then, and remains today, the only way for black people to achieve the "true progress" of which he spoke.

Perhaps, at some point in America's future, such remedies won't be necessary. Maybe, in the years to come, facial equality and true equality will meld into one homogeneous idea that encompasses the rights of all Americans. As Supreme Court Justice Ruth Bader Ginsburg wrote in 2003: "From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action."


The colorblind Constitution remains the ideal that we can all strive for: a country in which there are truly equal opportunities for everyone, and where all Americans can, at last, be judged by "the content of their character," as Dr. King so memorably put it, and "not by the color of their skin." But the current status of race relations in America does not allow for a credible colorblind argument. The lingering effects of past discrimination have, inevitably, created the need for judicial remedies like affirmative action.

As we brace for what will be a landmark decision in Fisher v. University of Texas, we can only hope that the justices consider the full history of race relations in America and its effect on the current status of equality. If they do, it will be readily apparent that facial equality, at least at this point in American history, is not equality at all.

The Root aims to foster and advance conversations about issues affecting the black Diaspora by presenting a variety of opinions from all perspectives, whether or not those opinions are shared by our editorial staff.


Kiff Hamp is a graduate student at the University of Michigan Law School and the Gerald R. Ford School of Public Policy.

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