The Myth of a US Colorblind Constitution
Hussein Ibish 6 July 2023

The US Supreme Court has issued another shocking but unsurprising ruling that arbitrarily dispenses with precedents and upends long-settled law at the expense of the historically disempowered. Last year, women were denied a 50-year-old individual right in America to early-term abortions. Now African American and Latino students will be deprived of “affirmative action” programmes considering race in university admissions.

The hypocrisy and absurdity were best illustrated by Justice Clarence Thomas’s passionate invocation of “our colorblind Constitution.” All six Republican-appointed Justices describe themselves as “originalists” or “textualists,” meaning that they seek to discover the “original” or the literal meaning of constitutional texts, respectively.

Originalism is unworkable not just because of radically transformed sociopolitical contexts, but because the framers of the Constitution frequently disagreed about the broader implications of their compromises. Each was willing to live with a passage based on their own interpretations. But the assumption there was a shared originary understanding of constitutional texts is demonstrably false.

Rigorous textual analysis is indispensable to jurisprudence, but “textualism” tends to reduce it to a crude game of definitions, etymologies, centuries of Anglo-American legal technicalities, and other questions having little to do with a decent outcome or rational interpretation of constitutional law under current circumstances. It often hints at the old BBC radio game My Word!, only without the charm and wit.

These methodologies are intended to transfix the meaning of constitutional law, insofar as possible, in bygone eras when black people were enslaved or excluded, women subordinated and disenfranchised, racism codified throughout society, and segregation, enforced by brutal lynching, the norm in many states.

The Constitution has had many anti-racist admirers, most notably Frederick Douglass and Martin Luther King, who saw in it potent correctives to such barbarism. But originalism and textualism are thinly-veiled efforts to slow, block, or now reverse much of the constitutional progress since 1954.

The ruling involved extraordinary colloquies between Mr. Thomas and two liberal justices, Sonia Sotomayor and newcomer Ketanji Brown Jackson.

Ms. Sotomayor outlined the undeniable endurance of structural and institutionalised racism and its profoundly negative effects for African Americans and Latinos. Mr. Thomas countered that discrimination based on race can never be tolerated in any context. He posed as a champion of highly qualified Asian-American student applicants, arguing that Harvard’s admissions policies come primarily at their expense. He accused Ms. Jackson of viewing all aspects of life through an irreducible racial framework. She denied this and countered that his insistence that race is, or should be, irrelevant to law is so divorced from the social realities shaped by the Constitution it is effectively delusional.

Mr. Thomas’s implacable hostility to affirmative action is especially noteworthy because he is arguably the greatest-ever beneficiary of these programmes and ethos, and concomitant expectations of inclusivity. He attended Holy Cross College and Yale Law School based on affirmative action. He enjoyed a meteoric rise on the political right, and, at the tender age of just 33, headed his own federal agency, the Equal Employment Opportunity Commission. A mere 10 years later, following a contentious Senate committee hearing chaired by current US President Joe Biden, he was confirmed to the Supreme Court.

His spectacular career, especially given his upbringing amid poverty and segregation, is undeniably impressive, even inspiring. But it’s equally undeniable that, at every stage, and precisely because it coincided with the institutionalisation of affirmative action and the imperative of greater racial diversity in universities, corporations and government, his race played a significant role in his cascading triumphs. Unfortunately, he now appears mortified by this appropriate corrective, as if it were a badge of shame.

He was one of few Black conservatives available to run Ronald Reagan’s Equal Employment Opportunity Commission (EEOC), and then replace the first Black Supreme Court Justice, Thurgood Marshall.

As EEOC Chairman in 1983, Mr. Thomas acknowledged: “God only knows where I would be today” without affirmative action policies, which he correctly called “critical to minorities and women in this society.” Now, he resembles a survivor in a lifeboat using an oar to beat back others attempting to clamber on.

Crucially, Mr. Thomas’s “colorblind Constitution” dogma is especially unworkable from originalist or textualist perspectives. The original Constitution didn’t explicitly mention slavery, but plainly allowed it, defining slaves as “3/5 of a person” for purposes of congressional representation. In 1857, the Supreme Court ruled that no Black residents could be considered citizens and “had no rights which the white man was bound to respect.”

After constitutional amendments outlawing slavery and ensuring citizenship for following the Civil War, and a brief period of greater equality in the South known as “Reconstruction,” by 1896 the Supreme Court had promptly endorsed the growing practice of abusive racial segregation. Unequal separation by assumed race was consistently endorsed by the Court until the first legal cracks appeared in 1954. But the attempt at real redress only began in the mid-to late 1960s when policies such as affirmative action were developed.

It is impossible to argue that this project is complete, given the ongoing socio-economic gaps between “African Americans” and others, particularly those currently considered “White.” Instead, Mr. Thomas and the court majority argue that any effort to redress centuries of rampant racial mistreatment with decades of limited succor is racist against everybody else.

The “colorblind Constitution” canard might just barely be plausible if US history began in 1965, although that would still involve a grossly unequal playing field. In fact, the Constitution has been aggressively color-conscious throughout its history, mainly at the expense of minority groups. Consequently, Mr. Thomas and his ilk are forced to rely on ahistorical myths to rationalise halting and reversing efforts to correct these monumental and profoundly lasting government-imposed wrongs. Many suggest income-based preferences instead, but that would probably intensify a troubling trend towards elite student bodies split mainly between the very rich and the very poor.

Meanwhile back at Harvard, over 40 per cent of “White” students were admitted because of family “legacies,” parental donations, ties to staff, or participation in, often boutique, sports teams rather than academic merit. Yet none will likely feel the neurotic sting of assumed inferiority that haunted Mr. Thomas at Yale and until today. White preferences are normalised and normative in US society.

As the country celebrated its 247th birthday on Tuesday, this radical Supreme Court, wrapping itself in the disingenuous twaddle like “our colorblind Constitution” that informs this privilege and inequality, appears determined to preserve and protect as much of it as possible.

Happy birthday, America.


This op-ed was originally published by the The National. Hussein Ibish is a senior resident scholar at the Arab Gulf States Institute.

Cover Photo: Proponents of affirmative action hold signs during a protest at Harvard University in Cambridge, Massachusetts, on July 1, 2023, after the US Supreme Court on June 27 banned the use of race and ethnicity in university admissions, dealing a major blow to a decades-old practice that boosted educational opportunities for African-Americans and other minorities (credits: Joseph Prezioso/AFP).



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