Racial and Sexual Paternalism

Abstract

In the voluminous literature on the Fourteenth Amendment's equal protection jurisprudence, scholars almost universally construe conservative justices as deploying a 'colorblind' or 'classification' principle to adjudicate race based cases. Progressive scholars have criticized the conservative position for two major failings. First, for ignoring the social reality of race, and second, for leaving minorities’ subordinate position in society intact.

In this article, I offer a new interpretation of the conservative justices' jurisprudence as outlawing the paternalism of blacks. By tracing the evolution of this principle in the legal doctrine, I show how the conservatives adopted this position directly from the progressives' equal protection jurisprudence banning the paternalism of women. This interpretation explains why the conservative justices do allow the state to 'see' race in certain cases, such as with peremptory jury strikes and specific remediation.

After detailing this anti-paternalism principle in the conservative doctrine, I highlight the history of racial paternalism as a tool of oppression, and correspondingly, demonstrate how this new interpretation is capable of responding to progressive concerns. This calls on progressives to defend their own jurisprudence as superior to an anti-paternalism principle.

Keywords: equal protection, Fourteenth Amendment, race, sex, gender, conservatives, progressives, constitutional law