A Critique of 'Our Constitution is Color-Blind'

68 Pages Posted: 6 Aug 2013 Last revised: 24 Oct 2013

See all articles by Neil Gotanda

Neil Gotanda

Western State University - College of Law

Date Written: 1991


This article critically examines the United States Supreme Court’s legal doctrine of "color-blind constitutionalism." Professor Gotanda argues that the United States Supreme Court’s adherence to color-blind constitutionalism disregards the subtleties and nuances of race, ignores institutional racism and contributes to racial subjugation. Five themes related to color-blind constitutionalism are identified and discussed: (i) the distinction between private and public conduct, (ii) the nonrecognition of race (whereby a person’s race is identified but discounted or not considered), (iii) racial categories (race as a social construct), (iv) the Supreme Court's focus on "formal-race" and its unconnectedness to social reality and (v) racial social change (discussing assimilation versus diversity). This article concludes with a discussion on alternatives to color-blind constitutionalism.

Keywords: critical race theory, institutional racism, racial subordination, racial domination, racial inequality, racial classification, affirmative action, diversity, multiculturalism

Suggested Citation

Gotanda, Neil, A Critique of 'Our Constitution is Color-Blind' (1991). 44 Stanford Law Review 1 (1991), Available at SSRN: https://ssrn.com/abstract=2306297

Neil Gotanda (Contact Author)

Western State University - College of Law ( email )

1111 North State College Blvd.
Fullerton, CA 92831
United States

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