The Supreme Court's Invented Color-Blind Constitution is a National Tragedy
I do not know the best way to address the effects of centuries of legally sanctioned racist governmental policies. From slavery to Black Codes to segregation to red lining, our country imposed the opposite of color-blind policies on Black Americans for most of our history. These policies treated them first as property, then as indentured workers, then as people white folks did not want in their schools or their neighborhoods. Racist and oppressive government programs led directly to where we are today--a country where people are still judged by the color of their skin not the content of their character.
Black people represent about 13.5 percent of the population. Here are some alarming but not surprising data:
43% of Black people own their homes as compared to 72% of white people. In 1900, yes 1900, the gap was smaller. In that year, 48% of White people owned houses compared to 21% of Black people. The gap is larger now than when segregation was rampant and legal.
The median income of Black households is 36% less than white households.
In the first half of this year, Black unemployment went up while white unemployment stayed the same.
The Black student college graduation rate is 20 percentage points lower than the rate for white students.
There are currently only 5 Black Senators out of 100 possible seats in the Senate. In all of American history, there have been only 14 Black Senators.
21 states have never had a Black member of Congress.
There is currently only 1 Black Governor in the United States.
There are currently only 11 Black CEOs of Fortune 500 Companies.
There have been only 3 Black Supreme Court justices in all of American history.
I could go on and on, but I am confident you get the point. These statistics reveal how far away we are from a color-blind society. Black people simply do not get a fair share of our country's wealth, government/private sector jobs, and educational opportunities. In America, race still matters a lot.
Despite obvious racial disparities that still exist, the Roberts Court acts as if racism is a relic of the past. The Court has prohibited the use of all racial classifications by the government to try to address the effects of our racist past as if that past never happened.
In education and voting especially, the Roberts Court has prevented local, state, and national legislatures from choosing the tools they deem necessary to move us to a more racially just society. It would be one thing if the Constitution demanded that result, but it unequivocally does not. As I have written before, there is nothing in the Constitution's text or history that prevents the governmental use of racial classifications to bring races together or provide more economic opportunities for racial minorities:
The phrase color-blindness does not appear anywhere in the Constitution. One might think that for alleged textualists this void would be a problem. In fact, the word race does not even appear anywhere in the relevant texts the Court waves at in its cases imposing color blindness on every unit of government in America. There is simply no textual basis for the rule.
History fares no better. There is no persuasive account of the Reconstruction Amendments that suggests their original meaning was to prohibit the use of race to address longstanding legalized racial discrimination. The literature on that point is voluminous and persuasive, which probably explains why Justice Antonin Scalia, perhaps the loudest proponent of color blindness other than Justice Thomas, never addressed the question of the original meaning of the Reconstruction Amendments as it pertained to color blindness, even though he preached that rule in case after case.
The justices' insensitivity to current racial discrimination is reflected in the following quote from Justice Thomas, who wrote it in dissent in a voting rights case that just a few years later became the law of the land: "Perhaps an acceptable system is one in which the minority simply cannot elect its preferred candidates; it is, after all, a minority."
The people who drafted and ratified the Reconstruction Amendments would be shocked to hear that the Constitution must be interpreted in a manner in which "the minority simply cannot elect its preferred candidates." They would also be shocked to learn that the Supreme Court has outlawed the use by any governmental entity of all racial classifications to provide opportunities for the very people those Amendments were designed to help.
As I said at the outset, I do not know the best way to move to a more racially just society. Maybe as a matter of policy color-blindness is the best way to achieve that goal. But it is just as possible that we must use race to get beyond the centuries of legal racism the effects of which still haunt us today. But the Constitution's text and history do not answer that question, so it should be left up to the voters and their elected government representatives, not life-tenured judges who are imposing their own policy choices on all fifty states and the federal government.
Taking all racial tools out of the hands of local and national governments dominated by racial majorities is bad constitutional law and unjustifiable judicial aggression by a Court completely insensitive to the plight of Black people in America. It is not an overstatement to suggest that the Roberts Court is breathing new life into America's original sin. And that is a real tragedy.
-- Eric Segall