01/07/2013 04:41 pm ET Updated Mar 09, 2013

A Colorblind Spot in the Fourteenth Amendment?

The skin-deep appeal of a "colorblind Constitution" is easy to see. Dissenting in Plessy v. Ferguson, the 1896 Supreme Court decision that made "separate but equal" the law of the land, Justice John Marshall Harlan defiantly insisted that "our Constitution is color-blind." NAACP lawyers understandably embraced that construct as a shield from segregation half a century later in Brown v. Board of Education. Five years ago, Justice Clarence Thomas invoked the same ideal for opposite effect, wielding colorblindness as a sword to strike down Seattle's modest attempt to integrate its schools.

The Supreme Court will soon once again address the tension between constitutional equality and racial reality. The University of Texas weighs race as one of many factors in the undergraduate admission process. A white woman whose application was rejected has sued the university, claiming support in the "language and spirit" of the Fourteenth Amendment's promise that "No state shall... deny to any person... the equal protection of the laws."

The notion that the "spirit" of equal protection prohibits even a limited effort to achieve racial balance in the classroom is, at best, misguided. The point of the amendment was to uplift black Americans after the Civil War by guaranteeing certain civil rights. Nonetheless, insist affirmative action opponents, the amendment was not designed to permit special favors to any race. As recently detailed by Adam Winkler, however, the various legislative efforts to improve the position of African Americans immediately after the amendment's ratification undermine that argument.

The bare language of the Equal Protection Clause poses a more debatable issue. As some view it, because the clause does not single out any race or even mention the topic at all, it mandates "colorblindness" -- if it bars discrimination against blacks, it bars discrimination against whites. Never mind that another provision of the Fourteenth Amendment prohibits redress for the "loss or emancipation of any slave," thereby revealing the fraught racial context. When focusing narrowly on the Equal Protection Clause itself, opponents of affirmative action are correct that the constitutional text is colorblind.

But it does not follow that the text bars affirmative action. If the absence of any direct reference to "color" means that race cannot influence governmental actions one way or another, then neither can just about anything else. Could a state legislate special treatment of people with physical limitations? Sorry, the Equal Protection Clause is ability-blind. How about programs to help senior citizens or the poor? No, the clause is age-blind and need-blind. And what of admitting students based on scholastic achievement -- which is precisely what the plaintiff in the University of Texas case says should be a public university's only criterion? Unconstitutional; the clause is merit-blind.

To read the Equal Protection Clause as barring distinctions on the basis of factors absent from its text would be to shut down government. After all, few if any laws affect everyone equally. Justice Thomas himself would not even be able to follow his stated preference for hiring clerks with an attribute nowhere mentioned in the clause: a degree from a non-Ivy League school. So what then does "equal protection" mean? Is it a blind spot in the Constitution, a phrase whose meaning is impossible to see?

Imagine a rule providing that summer campers will receive equal protection from the sun. Not all kids would need the same treatment; the appropriate level of sunscreen might depend on their bodily constitution. The less preexisting protection afforded by the melanin in their skin, the more external safeguards they might need.

When the equal protection at issue is not from the sun but "of the laws," then what matters is not complexion per se but legislative clout. In a democracy, members of the represented majority enjoy a measure of preexisting protection. If they do not like the laws, they have the political power to change them. It is those who lack that ability to protect themselves legislatively who may need a constitutional safeguard for their equality. Equal protection thus serves to counteract the tendency of democracy to devolve into tyranny by the majority.

In the University of Texas case, even if the Supreme Court turns a blind eye to the spirit of the Equal Protection Clause, the language offers a clear enough vision of equality to refute the argument that race-conscious admission policies designed to increase minority enrollment are unconstitutional. Like the summer camp rule, the clause may be "colorblind" in not referring to race. But as the Court should see, whether an application is of sunscreen or to college, when it comes to equal protection, it may be appropriate to look at people's skin.

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