Plessy v. Ferguson, Fisher v. University of Texas, and the 'Color-Blind Constitution'

35 Pages Posted: 28 Mar 2013 Last revised: 12 Sep 2013

Date Written: March 26, 2013

Abstract

As the Supreme Court turns its attention once again to the Reconstruction Amendments, in Fisher v. University of Texas and Schuette v. Michigan Coalition to Defend Affirmative Action, the Justices should reconsider the common image of a "color-blind Constitution," a metaphor borrowed from Justice Harlan’s dissent in Plessy v. Ferguson. We usually consider Plessy an Equal-Protection case and Harlan’s dissent an early attempt at equal-protection jurisprudence. Those who brought the suit were not asking for equal protection, however. The perversely ingenious device Southern state used to circumvent the Reconstruction Amendments was a system of laws that created the legal categories "white" and "colored," and authorized private and public agents of government to apply the label "colored" to the people formerly enslaved. The aim was to authorize private discrimination, and was accomplished and maintained for decades by asserting the right of "white" citizens to separate themselves from the former slaves. Creation in this way of superior and subordinate castes violated the core aim of the Reconstruction Amendments, but the labels "white" and "colored" served the purpose for which they were intended, and are still deeply impressed upon civil society. Plessy’s lawyers argued in surprisingly modern terms that equal treatment of superior and subordinated castes was not a remedy, but the evil itself. Their argument should be heard today.

Keywords: Thirteenth Amendment, Fourteenth Amendment, Affirmative Action, Original meaning, race preference, equal protection, Schuette

Suggested Citation

Novick, Sheldon M., Plessy v. Ferguson, Fisher v. University of Texas, and the 'Color-Blind Constitution' (March 26, 2013). Vermont Law School Research Paper No. 10-13. Available at SSRN: https://ssrn.com/abstract=2239902 or http://dx.doi.org/10.2139/ssrn.2239902

Sheldon M. Novick (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

HOME PAGE: http://www.sheldonnovick.com

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