Justice Thomas Champions Our Colorblind Constitution

COMMENTARY The Constitution

Justice Thomas Champions Our Colorblind Constitution

Jul 21, 2023 5 min read
GianCarlo Canaparo

Senior Legal Fellow, Edwin Meese III Center

GianCarlo is a Senior Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Associate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021 in Washington, D.C. Drew Angerer / Getty Images

Key Takeaways

Discrimination in favor of African Americans is just as unconstitutional as discrimination against them.

Discrimination in favor of one person hurts others, especially in the context of zero-sum games like student admissions.

It is right to forbid discrimination, but it is wrong and counterproductive to attempt to cure this disease with more disease.

In forbidding the use of race-based preferences in university admissions, the Supreme Court held that every student “must be treated based on his or her experiences as an individual, not on the basis of race.”

In addition to Chief Justice John Roberts’s majority opinion, Justice Clarence Thomas wrote a magisterial concurring opinion, explaining that the Constitution is, quite properly, colorblind.

The case featured dueling views of the Constitution and race. One is Justice Thomas’s view that the Constitution forbids racial classifications of people. He “hold[s] out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”

The other is the dissenters’ view that racial classifications are not only permissible but necessary to correct the negative effects of past racial classifications. They argue that we must “do what evidence and experts tell us is required,” even if that requires more discrimination.

But what does the Constitution actually say? The 14th Amendment says that “all persons” born in and subject to the United States are citizens. It says that the privileges or immunities of “citizens” cannot be abridged. It says that no “person” may be denied life, liberty, or property without due process of law. And it says that every “person” is entitled to equal protection of the laws. The language is universal, and it was meant to be.

>>> Supreme Court Ends Racial Discrimination in America’s Universities

The framers of that amendment, as Thomas shows, knew that America had fallen short of the high ideals of the Declaration of Independence, that “all men are created equal.” They wanted to put the country right—not just for one specific race, but for everyone. They knew what Frederick Douglass knew: that “man is man, the world over.”

Black Americans’ plight, of course, had inspired that amendment. But its authors were thinking bigger than just one race. They were thinking of humanity. What this proves, says Justice Thomas, is that discrimination in favor of African Americans is just as unconstitutional as discrimination against them.

The three dissenters try to muster a historical argument to the contrary, but it is cherry-picked and incomplete. In their view, the solution to past and present racial disparities is for experts to create present and future racial disparities that tip the balance of outcomes in the other direction. Black people suffered harms generations ago that make it less likely that their descendants will get into Harvard today? Well, then, the admissions experts at Harvard should be trusted to lower standards and admit more of them today, perhaps even at someone else’s expense.

This balancing act, they argue, is the only way to correct past disparities. It is “ignorance,” they argue, to make the law colorblind when the people are not.

Thomas agrees that America is not colorblind. Indeed, he recounts with much more specificity the legacy of America’s color-conscious history. Race is “a social construct,” he says, and yet it has played an enormous role in American life, usually with devastating consequences. Slavery, segregation, anti-Chinese discrimination, Jewish exclusion from universities, Japanese internment, and now anti-Asian discrimination in elite universities—all these things have been defended at one time or another as “positive goods.”

People rarely think they are doing evil when they discriminate, but so often they are.

Even the best-intentioned programs often hurt those they’re meant to help. Racial preferences in admissions are no exception. Thomas points to a large body of empirical literature demonstrating that, but for racial preferences, there would be more minority doctors, lawyers, and other professionals than there are today. It’s simply untrue, as he points out, to think that only the elite schools can give non-white students a leg up in the world. Historically Black colleges and universities, it turns out, are more likely to produce African American judges, lawyers, and doctors than the Ivies are.

And, of course, discrimination in favor of one person hurts others, especially in the context of zero-sum games like student admissions. A spot given to one applicant because of his race is a spot taken away from another student because of hers. This sort of racial spoils system is no different in principle than the sort of historical discrimination we all now agree was evil. The only difference is “whose ox is gored.”

What’s more, racial divisions—even for supposedly “benign” purposes—breed more racial resentment and increase the view that people are first, if not exclusively, defined by their skin color. Thomas notes that segregation on college campuses has not abated with the use of racial preferences. Quite the opposite—almost half of all colleges now segregate housing and orientation programs, and more than two-thirds have segregated graduation ceremonies. This is not progress.

For these reasons, he argues, “[r]acialism simply cannot be undone by different or more racialism.”

Thomas is also acutely aware of that truth of human nature that Frederick Douglass observed in 1865: “If nothing is expected of a people, that people will find it difficult to contradict that expectation.”

>>> Justice Jackson’s Trifecta of Wrong on “Research” on Racial Preferences

Black Americans, Thomas believes, are wronged by those who would treat them as a “perpetually inferior caste,” as the dissenters do. He calls it “an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.”

Thomas acknowledges historical injustices, but he won’t allow them to define entire races. Racial determinism is no recipe for progress. Quite the opposite, racially deterministic visions, “historically, have ended disastrously.”

Yes, some members of some racial groups face more challenges than some members of other races—but not all. Again, we are more than stereotypes. Black students are just as heterogenous as anyone else. They include “northerners, southerners, rich and poor, and recent immigrants and descendants of slaves.” Some descend from people who were oppressed—as do some Asians, Jews, and even whites—but some do not.

It will do no good, Thomas argues, to let fester the belief that the color of a person’s skin traps him in a permanently oppressed caste. “What matters,” Thomas says, “is not the barriers [we] face, but how [we] choose to confront them.”

In his steady warning against “elites bearing racial theories,” Thomas echoes Frederick Douglass, who urged well-intentioned white people to “[d]o nothing with us! Your doing with us has already played mischief with us!”

It is right to forbid discrimination, but it is wrong and counterproductive to attempt to cure this disease with more disease. That, at bottom, is why a color-conscious society needs colorblind laws.

This piece originally appeared in The Hill on 7/6/2023