Robert S. Chang (Seattle University School of Law) has posted Our Constitution Has Never Been Colorblind (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article takes a contrarian approach to the first Justice Harlan’s famous phrase from his dissent in Plessy v. Ferguson, “Our Constitution is color-blind,” to argue not only that the Constitution has never been colorblind, but also that racial realism counsels against falling for the siren call of constitutional colorblindness. This Article provides a quick tour through America’s racial history, from the colonial period through the first constitution which then is remade following the Civil War. It sketches the operation of America’s racial compact that subordinates people who are Black, Indigenous, Latinx, and Asians in a system that simultaneously subordinates White people who lack wealth and power. The Court’s application of nominal or formal colorblindness has shielded those who have benefited and continue to benefit from racism such that colorblind constitutionalism, rather than addressing and redressing inequality, serves to enshrine and advance it. In this sense, our Constitution has never been colorblind.
Highly recommended.