The Colorblind Constitution

Pacific Legal Foundation seeks proposals for academic papers to be presented at a scholarly research roundtable on “The Colorblind Constitution” to be held in the fall of 2025.

Background

“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,” Justice John Marshall Harlan famously wrote in dissent in Plessy v. Ferguson in 1896. Harlan’s rebuke to the majority opinion upholding Louisiana’s “separate but equal” system of segregated railroads has resounded ever since as a battle cry for equal protection under the law. Yet in recent years, the idea that the Constitution is colorblind has come under attack. Corporate diversity trainers routinely claim that praise for colorblindness is a “microaggression,” and a recent Pacific Legal Foundation review of academic literature on the colorblind Constitution found far more scholarly articles critical of the colorblind Constitution than the reverse.

Notwithstanding these academic and popular critiques, the concept of the colorblind Constitution remains very much alive, including at the Supreme Court. In the Court’s 2023 Students for Fair Admissions decision, Justice Clarence Thomas’s concurring opinion prominently cited Harlan’s dissent and discussed at length why he understood the Constitution’s colorblindness to compel the result in Students for Fair Admissions. Broad majorities of voters still support colorblindness when it comes to ending race preferences in public contracting, public employment, and public employment. Back in the academy, law professor Andrew Kull’s The Colorblind Constitution (1998) remains widely read, and Michael McConnell’s influential law review article “Originalism and the Desegregation Decisions” shows that the original meaning of the Fourteenth Amendment required prohibition of segregation in public education.

Against this backdrop, this research roundtable seeks to explore this concept of Constitutional colorblindness. Pacific Legal Foundation welcomes papers that look at the text and original meaning of the Constitution to understand this question, as well as papers exploring the current doctrine, popular understanding, and potential impact of a truly colorblind Constitution.

Possible Topics

1. What is the original meaning of the Thirteenth, Fourteenth, and/or Fifteenth Amendments? Do they mandate colorblindness? How does the privileges or immunities clause of the Fourteenth Amendment play, or not play, into any colorblind design? Law professor Ilan Wurman has argued that the original meaning of equal protection was more about legally protecting people from the Ku Klux Klan and other private violence than invalidating class-based state law. Is his understanding correct or not?
2. Justice Clarence Thomas’s concurrence in Students for Fair Admissions draws on recent scholarship to interpret the Constitution as colorblind. In dissent, Justice Sonia Sotomayor takes a different view of the evidence of the original meaning of the Fourteenth Amendment. Specifically, some of their disagreement turns on the history of the Freedmen’s Bureau and similar programs during Reconstruction and whether such initiatives were race-conscious. How should that history be best understood? Which justice is closer to being correct? Is there important evidence of original meaning that both Justices overlook?
3. Contemporary critics of the colorblind Constitution commonly attempt to draw a distinction between race classifications intended to harm racial minorities and those intended to help them. Are these distinctions sound? Why or why not?
4. Current doctrine recognizes that government may use racial classifications when narrowly tailored to achieve a compelling interest. The range of interests currently recognized as compelling is narrow. Is this test consistent with the original meaning of the Reconstruction Amendments? Are all of the interests recognized as compelling truly compelling? Are there others not recognized as compelling that should be? Does any compelling interest remain in student body diversity after Students for Fair Admissions?
5. If the Reconstruction Amendments created a colorblind Constitution, are there modern doctrines that need to be reformed to come into conformity with the original meaning? Are there cases that should be brought to revive the original understanding? What about legislation to realize the promise of these amendments?

Research Proposal Submission Details

We invite you to submit a brief research proposal that describes your thesis and how your research will contribute to the legal issues described above. Proposals should be submitted by September 5, 2025, to Alison Somin at . Early proposal submission is encouraged, as proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early.

Honorarium and Research Roundtable

Authors of accepted papers will receive a $4,000 honorarium. Authors will benefit from robust feedback on their research. Paper drafts are due two weeks before the research roundtable but need not be in polished or publishable form. Authors will present their papers in person at the research roundtable at Pacific Legal Foundation’s office in fall 2025 or early 2026. Each author will be expected to discuss and comment on others’ papers. We will cover the cost of hotel accommodations and reasonable travel expenses to attend the roundtable. We encourage authors to seek publication in an academic journal after the research roundtable. Drafts will be posted on PLF’s SSRN page.