[November 2, 2022] Andrew Kull, a distinguished Senior Lecturer at the University of Texas at Austin School of Law, is a distinguished author. In 1998 he published one of my favorite “intellectual” books of the 90s, The Color-Blind Constitution, which can be appropriately labeled a terrific book. In his book, he lays out the history of how Americans fought segregation (from 1840 to 1960) and that it was not the business of the government sorting its citizens by the color of their skin.
“During these years, the moral and political attractiveness of the antidiscrimination principle made it the ultimate legal objective of the American civil rights movement.”
Yet, the current debate over race, discrimination, and racism has blocked our color-blind, antidiscrimination view of our nation’s founding. Andrew Kull believes that the foundational argument that our Constitution protects our civil rights has been lost. This is a damning conclusion, and not one quickly defended. But Andrew Kull does just that.
He provides us with the previously unwritten history of the color-blind idea. From the arguments of Wendell Phillips and the Garrisonian abolitionists, through the framing of the Fourteenth Amendment and Justice Harlan’s famous dissent in Plessy, civil rights advocates have consistently attempted to locate the antidiscrimination principle in the Constitution.
“In our own time, in Brown v. Board of Education and the decisions that followed, the Court nearly avowed the rule of color blindness that civil rights lawyers continued to assert; instead, it veered off for political and tactical reasons, deciding racial cases without stating constitutional principle.”
Our social upheaval of the 1960s put the color-blind Constitution out of reach … until now.
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