In the current issue of the George Mason Law Review, Aderson Bellegarde François (Howard University School of Law) has the article Borne Back Ceaselessly into the Past: Fisher v. University of Texas, the Freedmen’s Bureau Act, and the “Originalist” Meaning of Color Blindness (21 Geo. Mason L. Rev. 313). Here is the abstract:
The Supreme Court’s decision in Fisher v. University of Texas at Austin is the most recent iteration of the notion that the U.S. Constitution requires—and American society should aspire to—color blindness. This idea, which seems to be the only point upon which opponents and proponents of race-conscious affirmative action programs agree, is more ancient than we sometimes suppose. Between 1863 and 1868, Congress took up a series of social welfare legislation generally termed the Freedmen’s Bureau Act and mostly designed to ease assimilation of newly freed slaves into American society. In the course of congressional debates over these pieces of legislation, and long before Justice Harlan would declare in Plessy v. Ferguson that “[o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens,” there developed a basic narrative of color blindness that race-conscious remedies are per se unconstitutional; that they only serve to confer benefits upon a special class of citizens; that they are better apportioned on the basis of social class rather than race; that they inevitably breed dependency in blacks and resentment in whites; that they create the impression that blacks are unable to succeed through their own hard work; and that, once adopted, these remedies risk extending into perpetuity. Not much has changed in the intervening 150 years. The narrative of color blindness has remained remarkably consistent, as has the seemingly sincere belief on the part of some that it is—or ought to be—the answer to every race question, the solution to every race problem, and the cure to every race conflict.
Posted at 6:52 AM