Blindspots : colorblindness & the [mis]conception of race
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"Our Constitution is Colorblind." -- Justice Marshall Harlan. This declaration from Justice Harlan's dissent in Plessy v. Ferguson has become the touchstone of the Court's jurisprudence on race. But how does the Court actually conceive of race? Is it with a colorblind lens, as Harlan's statement seems to suggest? Moreover, how does the Court's conception of race affect their analysis of affirmative action policies---programs which are, ostensibly, race conscious? In what follows, I argue that the Court's predominant conception of race tends to de-emphasize historical and contextual analysis, characterized by a colorblind reading of the Constitution. As a solution to many of the associated difficulties identified within the paper, I advocate for a more substantive reading of race---a reading that takes account of the historical, political, and social aspects of racial classifications. I also argue that Justice Benjamin Cardozo's "sociological jurisprudence" may help to engender a more honest discussion of affirmative action policies that come before the Court.