A corollary of the proposition that you cannot tell a book by its cover might be the argument that you cannot tell a book by its title. There are books that have provocative titles but narratives that turn out to be anything but. That is not the case with Mark Golub’s Is Racial Equality Unconstitutional? The very idea of the title is jarring, and at first blush the answer would seem to be “of course not.” But Golub sustains the argument throughout and makes the case (a pessimistic one, to be sure) that the answer might be “yes” under the current Constitution. Along the way to that conclusion there are some very interesting paths and alleys.
Race is the intractable American problem. Forced segregation in the United States ended just 65 years ago, and there were people living when the Supreme Court decided Brown v. Board of Education (1954) who were the children and grandchildren of people held as slaves. How could a hopefully color-blind society overcome that kind of historical legacy? Gunnar Myrdal wrote the classic The American Dilemma (1944) to discuss the oppression of African Americans. He was optimistic that the United States could ultimately surmount those problems. Golub is considerably less sanguine about the potential for equality and a truly color-blind society.
As the author explains, ever since the birth of politics and government, it has been clear that framing is critical to political discourse. And so it is with the notion of a “color-blind” constitution. What could be more universally acceptable than the aspiration that our society adopts a perspective that is free of racial distinctions? Of course, it is not that easy. A color-blind approach would harden or freeze existing inequalities. So the alternative is to let race be used on a limited basis to rectify past inequalities. Color consciousness is a means to color blindness as an end. Aspirational color blindness is future oriented and accepts the need for color consciousness in the short term. That is contrasted with a view of the present that focuses on the impermissible introduction of race because it ensures the continued divisiveness of race as an issue. For conservatives, the use of affirmative action makes race matter, thus undermining the very goals of ending race consciousness. This debate is not merely a sterile academic exchange; it is the basis of public policy and legal doctrine and has consequences that influence every part of our lives as individuals and of society as a collective.
There are a number of memorable passages in the book used to illustrate such contrasts and the dilemmas that ensue from them. Golub wonders what it would look like if Barack Obama and Clarence Thomas had to pen personal statements for law school that had to be color-blind. He deconstructs John Marshall Harlan’s heroic “color-blind Constitution” dissent and takes some of the patina off of it. He combines a broad span of political theory and constitutional doctrine into a wide-ranging discussion of the evolution of race as an issue. Unfortunately, the issue appears stuck, as many issues are these days, in an infinite regress. In part that is why Golub devotes a chapter to an analysis of Plessy v. Ferguson, arguing that it “remains relevant today, not only as an artifact of past racism, but also because the case informs contemporary thinking about radicalized identity and legal rights” (p. 93). The counterpoint to Plessy was Brown. Golub is not the first to recognize the limits of Brown. However, Golub contrasts “celebratory” Brown and “aspirational” Brown. The former “indulges a fantasy of completion or accomplishment” while the latter “marks an appeal to law to make good on its promises” (p. 96).
The author focuses on three elements that are potential impediments to equality and change: context, redemption, and white supremacy. Context explains how Clarence Thomas and Thurgood Marshall could both espouse a belief in a color-blind constitution and yet mean two diametrically opposed things by it. Both quote Harlan, but “it is difficult to imagine two views less similar than those held by Justices Thomas and Marshall regarding the constitutional meaning of racial equality” (p. 31). When Marshall argued for a color-blind constitution, he was referring to a society in which separate but equal segregation was legally protected. Thomas writes in another time when the most visible pillars of segregation had apparently been felled.
Golub’s notion of “redemption” has a long-standing racial connection. Abraham Lincoln spoke of the Civil War as redemptive in resetting American democracy without the stain of slavery. And the ending of legal segregation was thought to have a similar redemptive quality. The problem is that redemption becomes a self-congratulatory phase that supposedly signals the end of discrimination and the launching of the color-blind perspective. It is a “triumphal narrative that celebrates how far we’ve come on matters of race” (most prominently displayed in the voting rights cases; p. 23). The problem is that redemption does not cleanse the effects or leave the resulting racial relations in any proximity to equality.
The author also identifies the role of white supremacy (in lower case, rather than as a movement). This is manifested in a number of ways: group consciousness versus individualism, white victimization, and the irony of color blindness. African Americans, as a group, have felt inequality, but conservatives focus on individualism. And so it follows that the costs of an affirmative action program will be borne by individual whites who were not direct parties to past discrimination, even though they may benefit from its systemic consequences. They transformed the issue into a zero sum game where, ironically, the commitment to racial equality can be portrayed as a violation of the rights of whites. In addition, Golub points to two seemingly inconsistent trends. First, conservatives have cast whites into an aggrieved group (all while decrying group identity). Second, while extolling the virtue of color blindness, that doctrine as interpreted by conservatives actually has the ironic effect of making race more prominent.
This is a sobering book. It provides an excellent analysis of how we got here. Golub argues that the Constitution might indeed be antithetical to racial equality. There are two constitutions in his mind. There is the document itself, and there is the Constitution as defined and interpreted by the Supreme Court. Golub declines to say that the Court is irredeemably lost, but its current composition suggests that it will be at least a generation before there is not a majority in support of a policy of “color blindness” that is actually inimical to the interests of racial minorities in terms of its consequences. More telling, he argues (p. 164) that “racial equality . . . may in fact be unachievable [author’s emphasis] within the current American constitutional order.” Indeed, he argues that the relevant provisions of the Constitution actively work against equality and actually elevate entrenched hierarchy over equality. You do not need to agree with his assessment to concur that the situation is dire.
This is also a timely book, written during the Obama administration but released during the Trump presidency, when racial tensions are even more prominent, and when racially charged code words and dog whistles have given way to overt racially based appeals. And if one wants to find some ray of hope among the current conditions, maybe the overt and open racial overtones will ultimately shift the discussion on race. Maybe the presumed redemptive aspects of dealing with race will finally become genuine. But clearly, as Golub shows us, we have not come as far as some think.
