Kiff Hamp: Why We Still Need Affirmative Action

Kiff Hamp is a graduate student at the University of Michigan Law School and the Gerald R. Ford School of Public Policy.

...In debating the constitutionality of rights given to, and taken from, African Americans throughout the history of our country, lawyers, legal scholars and historians have debated the concept of a "colorblind Constitution." Most Americans know the term from Justice John Marshall Harlan's famous one-man dissent in Plessy v. Ferguson, in which he stated: "Our Constitution is colorblind, and neither knows nor tolerates classes among citizens." In fact, the term was used in a similar way in the decades before the Civil War by abolitionists such as William Lloyd Garrison, Wendell Phillips, Frederick Douglass and Sen. Charles Sumner.

The idea of constitutional colorblindness is still used in modern legal discourse, often in debates regarding affirmative action. Today individuals opposed to affirmative action argue, in part, that our Constitution does not allow for special assistance for minorities because the document makes no mention of color or distinction among races....

The colorblind-Constitution theory, at first glance, seems to provide a compelling argument for equality. But despite its historical roots in the abolition movement, it doesn't actually work as a remedy for discrimination against African Americans. The key concept behind the original colorblind argument made by 19th-century abolitionists was equality before the law; their vision was of a country in which nobody saw color, so everyone, it would follow, would be inherently equal.

While this is certainly an ideal for which to strive, the problem with that view today is that African Americans were subjected to decades of discrimination and unfair treatment, even after the abolition of slavery, during the repeal of Reconstruction, through the birth of Jim Crow in the 1890s and continuing throughout much of the 20th century. Today the case can certainly be made that African Americans are "facially equal" to white Americans. But because they were so disadvantaged by decades of discrimination, simply removing race from our national discourse and providing no remedial help to people who were historically and systematically disadvantaged simply cannot lead to true equality....