Post-Racialism and the End of Strict Scrutiny
David H. Schraub
University of California, Berkeley - School of Law
May 31, 2016
92 Indiana Law Journal, 2017, Forthcoming
Illinois Public Law Research Paper No. 11-09
In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near-negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic - including hair or eye color - extant in our society.
This article examines both the emergence of post-racialism and the development of the strict scrutiny doctrine in an attempt to resolve the underlying conflict. It concludes that the motivator behind both post-racialism and strict scrutiny is to remove the fear that race carries with it as a concept - fear that it any time race appears in our society it necessarily is the harbinger of ethnic strife or the resurrection of Jim Crow. The model for race should follow that of religion or indigenous status. In both cases, the identity axis has been the subject of severe conflict and oppression. Yet the effort to get “beyond” religion or indigeneity does not focus on, or even countenance, permanent suppression of these identities. Rather it seeks to remove the fear that when we do use these elements of our identity, we are necessarily inviting catastrophe.
Number of Pages in PDF File: 63
Keywords: anti-discrimiantion, race, constitutional law, strict scrutiny
Date posted: November 15, 2011 ; Last revised: June 14, 2016