IS RACIAL EQUALITY UNCONSTITUTIONAL? by Mark Golub. New York: Oxford University Press, 2018. 210pp. Cloth $65.00. ISBN: 978-0190683603.
Reviewed by Leslie F. Goldstein, Professor Emerita, Department of Political Science. University of Delaware. Email: lesl@udel.edu.
The preface of Mark Golub’s book IS RACIAL EQUALITY UNCONSTITUTIONAL? observes that a color-blindness requirement for US. law has a paradoxical “race-intensifying effect” (p. x). The author means this in two senses. First, the knowledge that decision-makers must refrain from considering race in their decisions has the effect of intensifying rather than diminishing their consciousness of race because race in the U.S. so deeply permeates our psycho-social reality (pp. 25-26). Secondly, if decisions about hiring for desirable jobs and college acceptances are made in a color blind fashion, such decisions would freeze into place existing disparities of income and other life advantages in the U.S. (which is the very reason that affirmative action programs developed in the first place.)
While the book offers a number of interesting and even eye-opening insights along with an impeccably accurate history of Supreme Court decisions on segregation, desegregation and affirmative action, on the whole it disappoints. Golub acknowledges that the term “constitutional” (as in the book’s title) is open to two meanings (p. xi). It can carry the normative meaning – constitutional according to the Constitution read in its best lights, as it ought to be interpreted; or, it can carry the empirical/predictive sense – constitutional according to how the U.S. Supreme Court justices have been recently interpreting, and are likely to be continuing to interpret, the Constitution. After laying out these options in the Preface, Golub by the end of the book has dropped the normative option, and ends with what reads to me as a descent into hopelessness. Because of its slavery and post-Reconstruction past, its present system of racial hierarchy in general distribution of benefits, and the Supreme Court’s current trajectory toward totally abolishing affirmative action, Golub concludes that the U.S. Constitution is irredeemably opposed to racial equality.
He comes to this conclusion after first tracing the views of legal scholars who defend and critique what he calls “color blind constitutionalism” (i.e., opposition to affirmative action) (chs. 1 and 2), in the process noting that both liberals and conservatives view a color-blind legal system as that to which the Constitution aspires (either immediately, per the conservatives, or, per liberals, eventually, once material racial equality is attained). Golub then in chs. 3-5 traced the Supreme Court’s path toward color-blind constitutionalism from its beginnings in PLESSY V. FERGUSON (1896) to its near-explicit enactment in the recent anti-affirmative action decisions such as PARENTS INVOLVED IN COMMUNITY SCHOOLS V. SEATTLE (2007) and RICCI V. DI STEFANO (2009). Golub treats this Supreme Court trajectory as though it were the only way to read the Constitution or somehow the way it will inevitably be read. Therefore, for Golub, the only path to racial justice would be to embrace “a decisive break from [American values]” (p. 168). With italicized emphasis, he urges readers to accept the belief that “racial equality may in fact be unachievable within the current American constitutional order” (p. 164).
To me, this reads as the counsel of despair. It is far less likely that Americans would scrap their Constitution in order to adopt a more racially just one, than that they might be persuaded someday to see that affirmative action carries out the best sense of the Equal Protection Clause. As long ago as 1886, the U.S. Supreme Court acknowledged unanimously that a law can be worded as racially neutral, or “color-blind,” but if it is administered “by the public authorities … with a mind so unequal and oppressive as to amount to a practical denial by the State of … equal protection of the laws [*85] … if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution” (YICK WO V. HOPKINS, 118 U.S. 356, 374-5)
This long-standing prohibition was directed at “color-blind” laws that permitted governmental bias proceeding from an “evil eye” and an “oppressive” hand. And it was this condemnation of hostile (or “invidious”) racial discrimination by government to which the Court returned in cases like KOREMATSU (labeling racial classifications as “suspect’), BROWN V. BOARD (condemning purposeful racial separation of children by school authorities), and GREEN V. NEW KENT COUNTY (condemning in 1968 in a previously de jure segregated system, a supposedly neutral freedom of school choice plan that had the intent and effect of maintaining one K-12 school as all black and the other as having only a small percentage of blacks among the still-mostly-white student body.)
As Golub notes correctly, the Court first analyzed affirmative or beneficent-intending racial discrimination in the REGENTS OF CALIF. V. BAKKE case of 1978. His focus, however, is on what the Court majority did (reject most justifications for affirmative action by universities except for non-quota affirmative action aimed at attaining educational diversity), rather than on what would have been the best reading of the Equal Protection Clause and the 1964 Civil Rights Act in that case. Dissenting Justices Brennan, White, Blackmun and Marshall (Bakke, 438 U.S., at 324-379) presented persuasive arguments for following the rule from precedents on gender equity under the Equal Protection Clause. These have the advantage of examining a long history of gender-discriminatory legislation, much of which was adopted ostensibly to benefit women (such as protective labor legislation) but which was later attacked in some quarters as having put women in a “gilded cage,” keeping them from higher paying, higher status, occupations on the assumption of their intrinsic weakness. Indeed one of the arguments put forth on behalf of color-blind rules (for instance by Justice Clarence Thomas, a black opponent of race-based affirmative action), is that race-based affirmative action can tend to substantiate in the public mind notions of black inferiority, of blacks as people unable to measure up on their own, as always need extra help from government. By the time of the BAKKE decision, the Supreme Court had already confronted the need to sort out which of the laws that classified on the basis of gender might actually be tailored enough to the laudable goal of compensating for past societal discrimination that they should be upheld as serving an important government interest. The four dissenting justices in BAKKE defended this standard for upholding gender discrimination when (and only when) the government could prove the discrimination was “substantially related to an important government interest” as therefore suitable to beneficent race-based affirmative action (as distinguished from the standard for hostile race-based discrimination of upholding the law only when it was proved “necessary for attaining a compelling government interest”). They also defended the idea that for government to attempt to correct inequities that were the residue of past societal discrimination was favored [*86] rather than frowned upon by the Equal Protection Clause. Had these four justices prevailed in BAKKE, rather than the four-plus-Powell who did prevail, our Constitution and our government policies would look quite different. Those four dissenting justices were not arguing against “American values”; on the contrary, they were following American constitutional values as properly understood. I found it disappointing that Golub gives in to the Supreme Court trend of accepting the idea that race-based affirmative action runs counter to the goals of the Equal Protection Clause. The Court from 1950 (SWEATT V. PAINTER and MCLAURIN V. OKALAHOMA, rejecting supposedly “separate but equal” law schools and graduate education) until 1989 (RICHMOND V. CROSON, rejecting a race-based affirmative action program for government contractors) saw things differently, and I see no good reason for abandoning that earlier and superior vision of constitutional justice.
While I was disappointed in the overall thrust of the book, it did contain some highly worthwhile nuggets, which make it worth a read. For instance, Chapter 3 on PLESSY V. FERGUSON includes fascinating arguments on the legal impact of racial (phenotype) ambiguity both from Homer Plessy’s attorney and from lower court cases cited in PLESSY that dealt with similar issues.
Golub presents a strong case for his claim that an effort to be “color-blind” intensifies racial consciousness by alluding (pp. 25-26) to the thought experiment suggested by Devon Carbado and Cheryl Harris (2008): imagine reading the personal statement in the application to law school from Barack Obama and Clarence Thomas while trying to stay “blind” to any reference in the statements about experiencing life as an African-American. It would require a strong distortion of the reality of their life as lived.
Golub is thus correct to perceive that a situation where college admission committees were to prohibit or redact all allusions to race in an applicant’s file would not display racial justice, and that the current socioeconomic pattern of distribution in the U.S. does not either. But he leaves me unpersuaded on his claim that rejection of the Constitution itself is needed for the situation to be fixed. Some justices, not terribly long ago, saw that there is a way to marshal the Constitution on behalf of, rather than against, racial justice.
REFERENCES:
Carbado, Devon W. and Cheryl I. Harris. 2008. “New Racial Preferences” CALIFORNIA LAW REVIEW 96 (5): 1139-1214.
CASES:
BROWN V. BOARD, 347 U.S. 483 (1954).
GREEN V. NEW KENT COUNTY, 391 U.S. 430 (1968).
KOREMATSU V. UNITED STATES, 323 U.S. 214 (1944).
MCLAURIN V. OKALAHOMA, 339 U.S. 637 (1950).
PLESSY V. FERGUSON, 163 U.S. 537 (1896).
REGENTS OF CALIFORNIA V. BAKKE, 438 U.S. 265 (1978).
RICHMOND V. CROSON, 488 U.S. 469 (1989). [*87]
SWEATT V. PAINTER, 339 U.S. 629 (1950).
YICK WO V. HOPKINS, 118 U.S. 356 (1886).
© Copyright 2018 by author, Leslie F. Goldstein.
