The point is simple – clichéd, even. But this simple point is so often denied in the United States of 2009. The point is that race matters. More specifically, race matters in how we interpret the Constitution of the United States. Debates over the constitution, especially at the Supreme Court, often willfully ignore or obscure the living and continued significance of race and racism. The racial category you belong to plays a significant part in your life, if you’re an American, but American legal doctrine over the last several decades has refused to accept this fact.
Much as they did during the 1800s, today’s American courts allow entrenched racial discrimination to continue. Throughout the 19th century and into the 20th, the courts used openly racist thinking to enforce policies like slavery, segregation, and whites-only citizenship. Today, the courts use colorblindness to brush aside the reality of race and racism aside. They overturn and restrict race-conscious policies designed to help alleviate racism faced exclusively by people who are identified as racial and ethnic minorities. The courts can and should consider the impact of race when it deals with cases like voting rights, sentencing for drug use, law enforcement strategies that roundup random Muslim and Middle Eastern Americans, and the legality of practices and policies that drove nonwhite families into needlessly expensive “subprime” mortgages. But instead, legal scholars (including a majority of the Supreme Court Justices) regularly disagree with the need even to recognize the mere existence of socially constructed race.
It’s not a coincidence that Judge Sonia Sotomayor’s nomination to the Supreme Court has already become contentious on the issue of race. Sotomayor’s views on race and racism are becoming an object of public debate, thanks to coverage by national media (and thanks to well-publicized and ridiculous accusations that Sotomayor is herself “racist”). Her rulings during her illustrious career show that while she’s hardly a radical, Sotomayor does favor a reality-based judiciary that understands and considers the impact of race and racism. Because of this (and in part because she is Latina), she has already faced more questions about race than any other nominee to sit on the Supreme Court than anyone else in quite a long time. And she hasn’t even sat for confirmation hearings yet.
Before Judge Sotomayor arrives on Capitol Hill for confirmation hearings, I’d like to take a moment to consider why legal scholars argue against recognizing the existence of race in America. And then let’s consider how the next decade in legal thought might be influenced, thanks to Sotomayor’s presence on the Court.
The legal argument for denying reality – for denying the existence of race – is rooted in the colorblindness doctrine. My understanding is that the basic idea behind colorblindness is: only by ignoring race can we truly transcend it. You see, if we keep talking about race, if we acknowledge it, then we allow the race concept to persist. So, what we should do is pretend that race isn’t there. If we adjust our thinking to a colorblind world, then in time, reality will catch up with our thinking. This kind of thinking has been proven wrong again and again, most thoroughly by Eduardo Bonilla-Silva.
The colorblindness perspective didn’t come out of nowhere. Continue reading…