If nothing else, the Supreme Court’s decision in Students for Fair Admissions v. Harvard is a victory for the conservative vision of the so-called colorblind Constitution — a Constitution that does not see or recognize race in any capacity, for any reason.
As Chief Justice John Roberts wrote in his opinion for the court, “Eliminating racial discrimination means eliminating all of it.” Or as Justice Clarence Thomas put it in his concurrence, “Under our Constitution, race is irrelevant.”
The language of colorblindness that Roberts and Thomas use to make their argument comes directly from Justice John Marshall Harlan’s lonely dissent in Plessy v. Ferguson, the decision that upheld Jim Crow segregation. “There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens,” wrote Harlan, who would have struck down a Louisiana law establishing “equal but separate” accommodations on passenger railways.
But there’s more to Harlan’s dissent than his most frequently cited words would lead you to believe. When read in its entirety, the dissent gives a picture of Harlan not as a defender of equality, but as someone who thinks the Constitution can secure hierarchy and inequality without the assistance of state law. It’s not that segregation was wrong but that, in Harlan’s view, it was unnecessary.
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