52 Pages Posted: 22 Oct 2011
Date Written: January 1, 1994
In his book, The Color-Blind Constitution, Professor Andrew Kull asserts that the Constitution mandates "color blindness" on the part of government actors--that is, they cannot consider race as a factor in any decision-making process. Those who argue that government-sponsored affirmative action programs are based on unconstitutional race-based distinctions support the "color-blind" theory. In fact, litigants in the United States Supreme Court case of Shaw v. Reno, which concerned the state of North Carolina's efforts to use race as a factor in drawing legislative districts, relied on Professor Kull's book to uphold their arguments.
In this essay, Professor Garrett Epps challenges the legal, historical, and sociological bases on which Professor Kull rests his theories. Although Professor Kull's research is extensive, Professor Epps finds that he misinterpreted the arguments of many of the individuals whom he believed supported a color blind constitutional theory and that he ignored or too easily discounted evidence contrary to the color blind conclusion.
In the alternative, Professor Epps offers a theory that better reflects the Constitution's anti-racist meaning: the Constitution forbids any government action that creates or supports a "caste relationship." He concludes that "opposition to caste does offer a principled, workable alternative to color blindness on the one hand and unprincipled racial spoilsmanship on the other."
Keywords: constitutional law, constitutional interpretation, Andrew Kull, Color-Blind Constitution, race, Shaw v. Reno, caste relationship, Supreme Court, Fourteenth Amendment, Voting Rights Act of 1965, racial equality, Roberts v. City of Boston, Frederick Douglass, Comity Clause, Dred Scott v. Sandford
JEL Classification: J78, J79, K19, K39, K49
Suggested Citation: Suggested Citation
Epps, Garrett, Of Constitutional Seances and Color-Blind Ghosts (January 1, 1994). North Carolina Law Review, Vol. 72, No. 2, pp. 401-451, January 1994; University of Baltimore School of Law Legal Studies Research Paper . Available at SSRN: https://ssrn.com/abstract=1947014