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National Review: A Colorblind Constitution Is Not Just a Partisan Pet Project
“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” Supreme Court Justice John Marshall Harlan famously wrote in his dissent in the 1896 case Plessy v. Ferguson. It would take decades to dismantle the Jim Crow system of racial segregation challenged in that case. Through those years, Harlan’s vision of colorblindness shone as a moral North Star to the civil rights movement.
Yet recently, the Washington Post published a story titled, “How ‘colorblind Constitution’ went from conservative notion to legal pillar.” Its subheadline reads: “The once-obscure concept has been cited in recent landmark Supreme Court cases, but some liberals insist it has no basis in fact or history.”
While the Post deserves praise for trying to improve awareness of an important constitutional concept, its effort falls short. It understates the depth of history and precedent supporting colorblind approaches to constitutional interpretations. It also oddly casts constitutional colorblindness as something that only conservatives do, or should, support.
The 14th Amendment was enacted in 1868, in the wake of the bloodshed of the Civil War. The 13th had prohibited slavery, and the 14th was enacted to complete its work and realize the promise of full equality.
Many lawmakers of the generation that enacted the Reconstruction Amendments were powerful advocates for colorblindness. Senator Charles Sumner once said, “Any rule excluding a man on account of his color is an indignity, an insult, and a wrong.” The debates over the Civil Rights Act of 1875 are rich with statements like “Free government demands the abolition of all distinctions founded on color and race,” and “I insist that by the law of the land all persons without distinction of color shall be equal before the law.”
Although the 14th Amendment’s drafters primarily aimed to lift up recently freed black slaves, the amendment’s language was race-neutral. Even early in the young amendment’s history, the Supreme Court recognized that it protected other groups. Yick Wo v. Hopkins in 1886 was a constitutional challenge to a law restricting the operation of laundries out of wooden buildings in San Francisco. This law was on its face race-neutral. But it was widely seen as motivated by racial hostility against Chinese-American immigrants. The Supreme Court ruled that the law was unconstitutional.
Not long after, public opinion shifted against Reconstruction, and Supreme Court doctrine followed suit, reaching a nadir with the infamous Plessy. But slowly, civil rights advocates began to chip away at its “separate but equal” holding.
A case from this intermediate era — Buchanan v. Warley (1917), a constitutional challenge to a residential segregation ordinance in Louisville, Ky. — shows that constitutional colorblindness has a longer pedigree than some might think. Warley, a black man, bought a parcel of land located in a whites-only neighborhood from Buchanan, a white seller. Warley then refused to take title because the segregation ordinance made it impossible for him to live there lawfully. Buchanan, the white seller, then sued Warley for specific performance on their contract.
In other words, although the case struck at segregation’s evils, the person bringing the claim was white. The Supreme Court nonetheless ruled for Buchanan, writing that the “objection is made that this writ of error should be dismissed because of the alleged denial of constitutional rights involves only the rights of colored persons, and the plaintiff in error is a white person.” But the ordinance still fell because “this interdiction is based wholly upon color.”
From Reconstruction through the Civil Rights Era of the 1960s, civil rights advocates generally saw no contradiction between colorblind interpretations of the Constitution and efforts to free black Americans from slavery and discrimination. The two projects were one and the same. Only around the 1970s did the two begin to diverge, when universities began to offer race-preferential admissions, and contracting preferences became common across federal, state, and local governments.
The divergence was controversial. California Supreme Court Justice Stanley Mosk was widely regarded as a liberal lion with a sterling reputation on civil rights. Yet he lambasted the turn away from colorblindness. In an opinion holding that admissions preferences at the University of California–Davis medical school were unconstitutional, he stated that doing otherwise “would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.”
Even later cases that allowed race preferences often did so almost grudgingly. Though 2003’s Grutter v. Bollinger permitted race preferences in university admissions when narrowly tailored to achieve a compelling interest in student body diversity, Justice O’Connor’s opinion also required universities to use race absolutely no more than necessary. There is a shorter road than is sometimes supposed from there to Students for Fair Admissions’ more recent holding that “eliminating racial discrimination means eliminating all of it.”
In addition to its inattention to history, the Post piece also errs in suggesting that constitutional colorblindness is some idiosyncratic hobbyhorse of politically conservative intellectuals, with scant appeal outside their eccentric circles. Certainly, some champions of constitutional colorblindness are political conservatives. But constitutional colorblindness should not be treated as a left-versus-right issue.
Rather, colorblindness is better understood as preserving individual dignity against overreach by government bullies. In some contexts, that vision resonates more with conservatives. But in others, it will resound more with progressives. For example, if the president adopts a particular immigration policy because of animus toward a racial group, is that policy constitutional? This was one of the questions at stake in a major Supreme Court case this term (the majority avoided the question by finding a race-neutral justification for the policy). May ICE use racial profiling in immigration enforcement (a question in another case currently winding its way through the lower courts)? What about racial profiling by regular police officers? Constitutional colorblindness has something to offer progressives in all these areas.
Individuals should be treated as individuals and not on the basis of their membership in racial groups. The Constitution has an imperfect history. But a colorblind approach to the constitutional guarantee of equal protection is the one most consistent with text, history, and precedent. It should not be so cavalierly dismissed as the esoteric project of a partisan group and should be embraced as the best way to protect opportunity for all.
This op-ed was originally published in National Review on July 18, 2026.
The post <em>National Review</em>: A Colorblind Constitution Is Not Just a Partisan Pet Project appeared first on Pacific Legal Foundation.
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