Color-blind Constitutionalism Research Articles

Diversity in Plastic Surgery and the 2023 US Supreme Court Decision.

The number of publications on the topic of diversity, equity, and inclusion in plastic surgery has increased exponentially in the last 5 years. Numerous changes have been implemented. On June 29, 2023, the US Supreme Court ruled that affirmative action in college admissions is unconstitutional. Writing for the majority, Justice Roberts concluded that eliminating racial discrimination means eliminating all of it, and the Equal Protection Clause applies without regard to any differences of race, of color, or of nationality. Justice Thomas authored a concurrence, stating that such policies are contrary to our colorblind constitution and our nation's equality ideal. Justice Sotomayor was joined by Justice Kagan and Justice Jackson in their dissenting opinion that ignoring race will not equalize a society that is racially unequal and that students of various racial backgrounds can offer different perspectives because of that identity. The reaction was largely partisan. Michelle Steel and Young Kim, Republican Asian American Congresswomen from California, lauded the decision, along with Republican Senator Tim Scott from South Carolina. Senate Majority Leader Democrat Chuck Schumer opined that the Supreme Court decision has put a "giant roadblock in our country's march toward racial justice." Cory Booker, New Jersey Democrat, called the decision a devastating blow. President Joe Biden and former First Lady Michelle Obama also disagreed with the decision. Profound ramifications across our institutions of higher learning and in medical specialties are likely to follow. Legally, it will be difficult or impossible to defend race-based preferences going forward. This is true regardless of whether such policies were put in place with the best of intentions.

MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

<i>MCCLESKEY</i> ACCUSED Justice Powell and The Moral Price of Institutional Pride

Is Racial Equality Unconstitutional? by Mark Golub

Reviewed by: Is Racial Equality Unconstitutional? by Mark Golub Steven White Is Racial Equality Unconstitutional?. By Mark Golub. (New York: Oxford University Press, 2018. Pp. xviii, 210. $65.00, ISBN 978-0-19-068360-3.) This book intervenes in the legal debate between advocates of a “colorblind Constitution” and their critics by arguing for a rejection of certain [End Page 936] shared premises (p. x). In Mark Golub’s analysis, the conservative judicial project of colorblindness actually advocates for a particular type of racial consciousness: the protection of white rights against a range of proposed remedies for addressing persistent racial inequities. By accepting the framing preferred by color-blind constitutionalists, Golub argues, their critics neglect the “peculiar form of race-consciousness that is produced through demands for nonconsideration of race” (p. 167). To make his argument, Golub traces the notion of colorblindness through detailed examinations of Plessy v. Ferguson (1896) and Brown v. Board of Education (1954), before he discusses how conservative jurists used color-blind rhetoric in the late twentieth century to articulate a politically powerful defense against further efforts to combat lingering racial injustices that continue to the present day. Golub’s primary contribution is theoretical rather than historical, but he uses historical scholarship to illustrate his theoretical argument. To connect his historical analysis to contemporary debates about the limits of the legal system for addressing racial injustice, Golub emphasizes the influence of white southern moderates in the aftermath of Brown. Their response to Brown, Golub argues, helped create a color-blind constitutionalist template designed to simultaneously oppose meaningful federal intervention into racial inequities while maintaining a rhetorical attack on Jim Crow discrimination. As Golub writes, white moderates “set the terms for an emergent national racial compromise reducible neither to the egalitarian demands of the civil rights movement, nor to the preservation of Jim Crow–era racial caste” (p. 102). The model of color-blind constitutionalism that emerged from moderate responses to the Brown decision is not simply skeptical of color consciousness, as is often claimed. Rather, by equating white racism with the extremity of Jim Crow, color-blind constitutionalists are able to offer rhetorical support for racial equality while treating contemporary forms of racial discrimination as though they lay beyond the scope of proper redress. Golub traces this rhetoric from early rumblings (for example, Justice William Rehnquist’s dissent in Keyes v. School District No. 1, Denver Colorado [1973]) to more recent cases, like Parents Involved in Community Schools v. Seattle School District No. 1 (2007), where conservative jurists succeeded in limiting the capacity of a policy intervention to achieve school desegregation. Some legal scholars might feel that Golub is picky at times (in describing work he is generally sympathetic to, he often notes that it “concedes too much” or “fails to appreciate” the particular interpretation he advocates [pp. 147, 80]). For historians, some of the narrative will seem familiar, as Golub relies on secondary sources for his historical analysis. On the whole, though, Is Racial Equality Unconstitutional? concisely ties together legal and historical scholarship to produce a clear intervention into a major debate in contemporary American politics. In doing so, it raises compelling (and disconcerting) questions about whether substantive racial equality is possible under the constraints of American constitutionalism. [End Page 937] Steven White Syracuse University Copyright © 2019 The Southern Historical Association

Is Racial Equality Unconstitutional?

Golub, Mark. (2018) Is Racial Equality Unconstitutional. New York: Oxford University Press. 232 pp. Hardback, $65.00. ISBN: 9780190683603 Race is a primary factor in United States legal, political, and social history. It is race that has found its way into the minds of citizens, influencing and shaping their thoughts and beliefs through the cracking of a gavel in a courtroom. Mark Golub reflects on these challenges in his new book, Is Racial Equality Unconstitutional?, as he traces the argument of “colorblind constitutionalism” back to Justice Harlan’s famous dissent in Plessy v. Ferguson (1896) to current debates on affirmative action. This leads to a furthered discussion of the many Supreme Court cases that emphasize a hierarchy of racial non-existence, where a protection of whiteness pervades as the illicit mechanism of the Supreme Court’s decision making, rather than an equal racial society, under the problematic color-blind doctrine.

Of Color Lines and Race Lines: John Marshall Harlan, W.E.B. Du Bois, and the Persistence of Racial Inequality in a Colorblind Regime

&lt;p&gt;&lt;em&gt;The life of the first Justice Harlan has been the subject of myriad studies, largely inspired by his declaration “Our Constitution is color-blind,” which appeared in his storied dissent in &lt;/em&gt;Plessy v. Ferguson&lt;em&gt;. This article interrogates unaddressed angles of his dissent that, when given proper attention, can deliver fruitful insights into his intentions behind the colorblind metaphor. The focus is primarily trained upon Harlan’s concept of the “race line,” which he referenced twice in his dissent. Placing this “race line” up against the colorblind Constitution will reveal that he purposed to keep whites educationally and financially dominant “for all time” by means of (colorblind) legal racial equality. The article delves further into the race line by juxtaposing it with W.E.B. Du Bois’s notion of the “color line,” which was voiced at the same moment of &lt;/em&gt;Plessy&lt;em&gt;.&lt;/em&gt;&lt;/p&gt;

The Harlan Renaissance: Colorblindness and White Domination in Justice John Marshall Harlan’s Dissent in Plessy v. Ferguson

Justice John Marshall Harlan’s dissent in Plessy v. Ferguson remains a contested flashpoint in the conversation over black equality over a century after the Supreme Court’s ignominious decision installed legal racial inequality as the law of the land. While myriad commentators extol Harlan as an inspirational beacon of racial justice for his eloquent and solitary stand against Jim Crow, this article questions such praises and argues that, in the context of white material supremacy and black material deprivation, Harlan was every bit as “racist” as the justices comprising Plessy’s majority. This article centrally contends that Harlan unsuccessfully attempted to inform his Supreme Court colleagues that legalized segregation was unnecessary in keeping whites the master race of the social realm; as Harlan conceived it, the “color-blind Constitution” would function equally well in trapping blacks in the maelstrom of political powerlessness and economic destitution.

Originalism and the Colorblind Constitution

The legal literature on the subject of originalism and affirmative action asserts two propositions: that originalism strongly supports the constitutionality of affirmative action and that the two originalist justices – Justices Scalia and Thomas – appear to be hypocrites for holding that the Constitution forbids government affirmative action. These claims are made by various leading scholars, including Cass Sunstein and Jed Rubenfeld. This Article challenges these claims. First, I argue that the Constitution’s original meaning does not plainly establish that state affirmative action is constitutional. Instead, there is, at the least, a reasonable argument to be made that such affirmative action is unconstitutional. In fact, based on the available evidence, I believe that the case for concluding that the 14th Amendment’s original meaning prohibits affirmative action as to laws within its scope is stronger than the case for concluding that it allows affirmative action. Second, because there is at least a reasonable argument for their position, I argue that the originalist justices are not being inconsistent or hypocritical by supporting a colorblind Constitution. I do argue, however, that the originalist justices should have explained how an originalist methodology could yield the colorblind constitution. The claim that the original meaning supports affirmative action is based on a set of federal statutes passed at the time of the 14th Amendment that are thought to provide race based benefits to blacks. I argue, however, that these statutes do not provide strong evidence that the 14th Amendment allows such race based benefits. These were federal statutes that were not governed by the 14th Amendment and therefore were not directly informative of its meaning. Moreover, most of these statutes, and perhaps virtually all of them, are not necessarily best interpreted as providing race based benefits. In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution. The Article explores two leading and representative theories of the original meaning of the equality component of the 14th Amendment – John Harrison’s interpretation of the Privileges or Immunities Clause and Michelle Saunders’s interpretation of the Equal Protection Clause – to show that they are reasonably interpreted to support the colorblind Constitution.

Plessy v. Ferguson, Fisher v. University of Texas, and the 'Color-Blind Constitution'

As the Supreme Court turns its attention once again to the Reconstruction Amendments, in Fisher v. University of Texas and Schuette v. Michigan Coalition to Defend Affirmative Action, the Justices should reconsider the common image of a color-blind Constitution, a metaphor borrowed from Justice Harlan’s dissent in Plessy v. Ferguson. We usually consider Plessy an Equal-Protection case and Harlan’s dissent an early attempt at equal-protection jurisprudence. Those who brought the suit were not asking for equal protection, however. The perversely ingenious device Southern state used to circumvent the Reconstruction Amendments was a system of laws that created the legal categories white and colored, and authorized private and public agents of government to apply the label colored to the people formerly enslaved. The aim was to authorize private discrimination, and was accomplished and maintained for decades by asserting the right of white citizens to separate themselves from the former slaves. Creation in this way of superior and subordinate castes violated the core aim of the Reconstruction Amendments, but the labels white and colored served the purpose for which they were intended, and are still deeply impressed upon civil society. Plessy’s lawyers argued in surprisingly modern terms that equal treatment of superior and subordinated castes was not a remedy, but the evil itself. Their argument should be heard today.

The Myth of a Color-Blind Constitution

In the frenzied rush to stamp out affirmative action in all of its manifestations, courts and legislatures are losing sight of fundamental realities. A key weapon in the destruction of affirmative action is the myth that the Constitution requires a color-blind approach to all but a very narrowly excepted class of race-based problems. Indeed, if the trend in recent state referenda cases continues, we soon will have the mythical color-blind Constitution that Justice Harlan first described in his dissenting opinion in Plessy v. Ferguson. In Plessy, Justice Harlan stated that [o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens. The adoption of Harlan's color-blind interpretation of the Constitution would almost certainly eliminate race-based protections and benign racial preferences as unconstitutional. This Article advocates that courts and legislatures should not read the Constitution as a color-blind document. The Framers never intended to create a color-blind Constitution, nor would such a Constitution accurately reflect the social norms and mores of contemporary American society. Accordingly, this author believes that government institutions should not use the myth of a color-blind Constitution to perpetuate the racial problems of a society that itself has failed to reach color-blind status. Part II of this Article examines the United States Constitution, as drafted and amended by the Bill of Rights, to show that the Framers never intended the Constitution to be a color-blind document. Additionally, Part II discusses the Reconstruction Amendments in an effort to demonstrate that Congress passed on the opportunity to render the Constitution truly color-blind and instead adopted the lesser standard of equal protection, which explicitly rejects non-discrimination. Part III examines the modern cases in which the Supreme Court often failed to develop a majority opinion, but delineated the level of scrutiny appropriate to race-based remedial measures. Part IV examines Adarand Constructors, Inc. v. Pena, in which the Court depended in part on the color-blindness theory for dismantling an affirmative action program. Part V argues that some form of race-based affirmative action is still needed and is constitutionally defensible. It also argues that, in today's society, race is an appropriate proxy both for diversity and for the status of a victim of discrimination. This Article concludes that there are compelling state interests in maintaining affirmative action programs in academia, that affirmative action programs can be narrowly tailored, and that race-neutral alternatives are not practicable.

Race-Conscious Educational Policies Versus a “Color-Blind Constitution”: A Historical Perspective

This article examines the origins and development of citizenship and equal rights by the Reconstruction Congress (1865–1875) to determine if it created a new constitutional order that is color blind and thus prohibits the use of racial classifications by government to achieve school desegregation and affirmative action programs. The theory of color-blind constitutionalism, although pursued relentlessly by a small cadre of radical Republicans, stood in marked contrast to the views of the moderate-conservative majority, a group virtually obsessed with the ways in which race affected fundamental questions of citizenship, civil equality, and political power. Only through a multiethnic history can we comprehend the variegated and profound ways in which racial ideology shaped the beliefs and behavior of the Reconstruction Congress and the ways in which Congress carefully crafted the meaning and intent of citizenship and equality in the new constitutional order, one that serves as the legal foundation for contemporary debates over race-conscious educational policies.

The Slave's Two Bodies: The Life of an American Legal Fiction

NE of the more conspicuous paradoxes of slavery's legacy in contemporary America is to have produced two diametrically opposed schools of thought about how best to achieve racial equality. One school, conventionally associated with the policy of affirmative action, holds that it is legitimate for government to make distinctions between persons in terms of their race in order to overcome the continued effects of past racial discrimination. Another school, conventionally associated with the ideal of the color-blind Constitution (articulated most famously by Justice John Marshall Harlan in his Plessy dissent), asserts that racial equality is above all a matter of formal equality before the There are, to be sure, many ways of complicating this dichotomy, and many arguments can be advanced both for and against the two positions. Boiled down to its essence, the debate over how to achieve racial equality is a debate between content and form, the realities of the social world versus the ideals of the rule of law.

Race and redistricting: the Shaw-Cromartie cases

Through much of the 1990s, a newly hatched snake wreaked political havoc in the South. When North Carolina gained a seat in Congress following the 1990 census, it sought to rectify a long-standing failure to represent African American voters by creating, under federal pressure, two majority-minority voting districts. One of these snaked along Interstate 85 for nearly two hundred miles not much wider than the road itself in some places and was ridiculed by many as one of the least compact legislative districts ever proposed. From 1993 to 2001, three intertwined cases went before the Supreme Court that decided how far a state could go in establishing voting districts along racial lines. Noted Supreme Court biographer Tinsley Yarbrough examines these closely linked landmark cases to show how the Court addressed the constitutionality of redistricting within the volatile contexts of civil rights and partisan politics. A suit was first filed by Duke University law professor Robinson Everett, a liberal who loathed discrimination but considered motivated redistricting a clear violation of the Fourteenth Amendment's equal protection clause. Yarbrough tells how Everett enlisted associates as plaintiffs and went on to win two Supreme Court victories in Shaw v. Reno (1993) and Shaw v. Hunt (1996) both by 5-4 decisions. Following the creation of another flawed redistricting plan, he rounded up a new set of plaintiffs to take the battle back to the Supreme Court. But this time, in Easley v. Cromartie on the swing vote of Justice Sandra Day O'Connor the 5-4 vote went against him. Yarbrough shows the significant impact these cases have had on election law and the fascinating interplay of law, politics, and human conflict that the dispute generated. Drawing heavily on court records and on interviews with attorneys on both sides of the litigation, he relates a complex and intriguing tale about these protracted struggles. His cogent and balanced analysis considers whether the state legislature was wrong in using race as a measure for establishing the new district, or whether it was simply engaging in the time-honored practice of gerrymandering to ensure political balance. Race and Redistricting spotlights efforts to racially engineer voting districts in an effort to achieve fair representation. By examining one state's efforts to confront such dilemmas, it helps readers better understand future disputes over race and politics, as well as the ongoing debates over our color-blind constitution.

Vindicating Martin Luther King, Jr.: The Road to a Color-Blind Society

As V. P. Franklin has reminded us, African-American intellectuals have consistently tried to vindicate the from conceptions the larger that we are inferior.(1) Martin Luther King, Jr. by example was a race vindicator, and he saw the civil rights movement as contradicting arguments that southern blacks were satisfied with their condition. overwhelming response of the southern black masses to King's call for mobilization the civil rights movement showed the falsity of such views. In the spirit of race vindication, this essay seeks to absolve King from the charge made by conservative ideologues that he endorsed the blind society thesis.(2) Martin Luther King, Jr., as the preeminent leader of the black protest tradition and an American icon, has become the favorite color-blindness cudgel to use against African-Americans the political and legal arena. White and black conservatives wrap themselves the mantle of King as they denounce affirmative action, and consign majority black congressional districts to the trash heap. A principal tactic of these enemies of the African-American search for remedies to discrimination is to quote from Martin Luther King's famous 1963 speech recounting his dream of a nation where his children would be judged by the color of their skin, but by the content of their character. In using this quotation they abuse him, freeze him time, define him as a one dimensional man, distance him from his other statements and the context of his times. They then argue that by using the color-blindness ideal, we will hasten the day when racial discrimination is ended. most important people who undermine the civil rights of African-Americans behind a veil of color-blindness sit on the Supreme Court. Those on the five-end of a series of 5-4 Supreme Court decisions against the interest of African-Americans the last few years express this view. Justice Sandra Day O'Connor Shaw v Reno 1993, explaining why a 5-4 majority struck down Congressman Melvin Watt's North Carolina district as unconstitutional, said: Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin.(3) Color-Blind Doctrine from Plessy to King In the fullness of time we can see what Justice John Marshall Harlan predicted his 1896 Plessy v Ferguson dissent is accurate. African-Americans are today as effectively held thrall by Harlan's prescription of a color-blind Constitution as we were with Justice Henry Billings Brown's endorsement of separate but equal the majority decision the same case. According to Harlan's formulation, in view of the constitution, the eye of the law, there is this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. humblest is the peer of the most powerful. law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.(4) However, right before this often quoted color-blind statement, Harlan assured white Americans that nothing he said threatened their power or status. The white deems itself to be the dominant this country. And so it is, prestige, achievements, education, wealth, and power. So, I doubt not, it will continue to be for all [emphasis added] time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. If white America enforced the principle of color-blindness, it need not fear African-American progress, equality, or power.(5) Between Harlan's dissent and the day Martin Luther King made his speech at the March on Washington, a time of stark legal and de facto segregation, color-blindness seemed a legal refuge for blacks. …

Even the Children of Strangers: Equality Under the U.S. Constitution. By Donald W. Jackson. Lawrence: University Press of Kansas, 1992. 282p. $35.00 cloth, $14.95 paper. - The Color-Blind Constitution. By Andrew Kull. Cambridge: Harvard University Press, 1992. 301p. $35.00

Even the Children of Strangers: Equality Under the U.S. Constitution. By Donald W. Jackson. Lawrence: University Press of Kansas, 1992. 282p. $35.00 cloth, $14.95 paper. - The Color-Blind Constitution. By Andrew Kull. Cambridge: Harvard University Press, 1992. 301p. $35.00

The Color-Blind Constitution.

The Color-Blind Constitution.

A Legal History of Desegregation in Higher Education

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. (Justice John Marshall Harlan, dissenting opinion in Plessy v. Ferguson, 1896, p. 559)For almost a century now, the American judiciary has struggled with issues of segregation and desegregation in higher education. Justice Harlan's simplistic characterization of a color-blind Constitution fails to address adequately our contemporary racially stratified, culturally diverse, and economically divided nation (Gotanda, 1991). The United States Supreme Court's 1992 decision in United States v. Fordice is only the most recent of many unsuccessful attempts to solve this thorny problem. With litigation still under way in several states, the Court's ruling in Fordice does not promise to be the final word on this topic. The issue of desegregation in higher education remains unresolved for many reasons--some of which are examined in this article.Focusing on United States Supreme Court rulings, this article highlights legal, educational, and social issues surrounding the court-ordered desegregation of higher education. It also offers insights about the general effectiveness of the Court's rulings in this vital area. To accomplish this task, the article is divided into three parts. Part one provides a chronological, historical perspective of important court cases as well as relevant federal legislation on this topic.(1) Part two introduces and discusses concepts of academic freedom at the postsecondary level and their influence on higher education desegregation efforts. Part three concludes the article and offers a partial explanation why the judiciary has been unable to desegregate higher education.THE LEGAL HISTORICAL PERSPECTIVEThe legal history of higher education desegregation is appropriately divided into three distinct segments. The first period, starting in the late 19th and early 20th centuries, focuses on early law that emphasized equal protection as guaranteed by the 14th Amendment of the United States Constitution. Stressing the importance of institutions and facilities, these decisions maintained that a separate education may be an equal education and, in essence, supported laws that mandated separate facilities for the races.During the second period, which began in the late 1930s and reached its apex with such important rulings as Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents (1950), the focus shifted from the institution to the individual, as individual plaintiffs, mostly African Americans, sued to attend the institution of their choice. In some of these cases, no separate facility was available while in others, such as Sweatt, a facility was available but the Supreme Court deemed that it was not equal. These cases began to question the separate but equal doctrine as it applied to higher education, and they laid the groundwork for the Court's 1954 Brown v. Board of Education declaration that, when it comes to education, separate is inherently unequal.The third period shifted emphasis back to the institution. Encompassing litigation that occurred after the passage of the Civil Rights Act of 1964, this analysis focused on cases that called for dismantling dual systems of education for Whites and Blacks and that reconsidered the role of choice in this process. Desegregation litigation in higher education during this period is best characterized by the most recent applicable Supreme Court ruling in United States v. Fordice (1992). …

The Color-Blind Constitution.

The Color-Blind Constitution.

The Color-Blind Constitution

(1993). The Color-Blind Constitution. History: Reviews of New Books: Vol. 21, No. 4, pp. 153-153.

The Color-Blind Constitution?

The Color-Blind Constitution?

John Marshall Harlan I and a Color Blind Constitution: The Frankfurter-Harlan II Conversations

John Marshall Harlan I and a Color Blind Constitution The Frankfurter-Harlan II Conversations Liva Baker Editor’s Note: This speech, The Seventeenth Annual Lecture ofthe Supreme Court Historical Society, was delivered on June 15, 1992 in the Supreme Court Chamber. I feel a little like an impostor in this crowd. I’m not ajudge. I’m not even a lawyer. And I’m not a pedigreed historian. What I am is ajoumalist. The wholepoint ofmy work is to untangle constitutional and historical obscurities for the general reader. Of course, I am thatgeneral reader. IfI can understand it,anyone can. I thought I’d like to talk todayabout a relatively obscure footnote to some larger events ofhistory thathas always interestedme. Itset no precedents. It had no influence on the course of events. I’ve always thought, though, it held some intrinsic interest. It adds texture, I believe, to certain land­ marks ofhistory and may even shed some light on the characters of the people involved. This little sidelight on constitutional history I’ve chosen to tell you about poses the general question: What did the first Justice John Marshall Harlan, who sat on the Supreme Court during the latter decades of the 19th century and the first decade ofthe twentieth, really mean when hewrote in 1896, “OurConstitution is colorblind.”? It appears a simple enough statement. But like many of the seemingly simple statements out of which legends are made, its simplicity is deceptive, JusticeJohn Marshall Harlan (1833-1911). The first Justice Harlan served on the Supreme Court for thirty-fouryears. His portraithung in his grandson’s chambers when the second Justice Harlan sat on the Court. 28 JOURNAL 1992 as Justice Felix Frankfurter discovered when he tried to deconstruct its author’s mindset half a century later. Specifically, Frankfurterwantedtoknow, what were the implications for public school desegre­ gation? The subject was very much on his mind at the time. The subject of the Constitution’s color blindness came up in a conversation which took place in the summer of 1956 between Frankfurter, who sat on the Court from 1939 until 1962, and the second Justice John Marshall Harlan, who sat on the Court from 1955 until 1971. This almost contemporary Justice Harlan was, of course, the grandson ofthe first John Marshall Harlan. According to his biographer, Tinsley Yarbrough, one of the second Justice Harlan’s favorite family stories in fact involved this relation­ ship. He loved telling of the time he was showing off his portrait of his grandfather to a Japanese visitor, and his visitor responded, “I did not realize, Justice Harlan, that the post was hereditary.” Frankfurter always referred to the first Harlan as Harlan I, and to his own colleague as Harlan II, which is the quick and easy way to do it, and I’ll continue in theFrankfurtertradition. Harlan II was fond ofreferringto his grandfatheras “the old boy.” The first Harlanmade his reputation, as you all know, with his vigorous dissent inPlessy v. Fer­ guson in 1896, which is, ofcourse, where he wrote “Our Constitution is color blind.” Before I launch into the substance of their discussion, let me give you some background on it. 1 think it’s important to know something about Plessy, about Harlan I, and about his approach to civil rights. I’ll try to get to the point before the next annual meeting. You probably know, too, but I’ll include it for those who don’t, Homer A. Plessy was an octo­ roon who challengedthe Louisianastatutemandat­ ing “equal but separate accommodations for the white and colored races,” on all passenger railways within the state. Plessy’s lawyers would argue later the statute violated the Fourteenth Amendment's guarantee of“equal protection ofthe laws.” Let me take just a minute to describe this statute Plessy was challenging. It may give you some idea ofthe complexities ofrace relations in the years following Reconstruction and of the infinite pains Southerners took to insure the sepa­ ration of white and African-American. . '' . 1 t>il- l>l HALLSII. 1.0(11 IE, AI,i>T K 5 Ol,l.,_ GL(). FAEHM.E. EAST LOUISIANA RAILROAD CO. EXCURSIONS $1.00. -TO TIIE— X GREAT...