21 Geo. Mason L. Rev. 313 (2013-2014)
Borne Back Ceaselessly into the Past: Fisher v. University of Texas, the Freedmen's Bureau Act, and the Originalist Meaning of Color Blindness

handle is hein.journals/gmlr21 and id is 325 raw text is: 

2014]


      BORNE BACK CEASELESSLY INTO THE PAST:
  FISHER V. UNIVERSITY OF TEXAS, THE FREEDMEN'S
  BUREAU ACT, AND THE ORIGINALIST MEANING OF
                        COLOR BLINDNESS

                      Aderson Bellegarde Franrois*



     The Supreme Court's decision in Fisher v. University of Texas at Aus-
tin' is the most recent iteration of the notion that the U.S. Constitution re-
quires-and American society should aspire to-color blindness. This idea,
which seems to be the only point upon which opponents and proponents of
race-conscious affirmative action programs agree, is more ancient than we
sometimes suppose. Between 1863 and 1868, Congress took up a series of
social welfare legislation generally termed the Freedmen's Bureau Act and
mostly designed to ease assimilation of newly freed slaves into American
society.2 In the course of congressional debates over these pieces of legisla-
tion, and long before Justice Harlan would declare in Plessy v. Ferguson3
that [o]ur constitution is color-blind, and neither knows nor tolerates clas-
ses among citizens,4 there developed a basic narrative of color blindness
that race-conscious remedies are per se unconstitutional; that they only
serve to confer benefits upon a special class of citizens; that they are better
apportioned on the basis of social class rather than race; that they inevitably
breed dependency in blacks and resentment in whites; that they create the
impression that blacks are unable to succeed through their own hard work;
and that, once adopted, these remedies risk extending into perpetuity. Not
much has changed in the intervening 150 years. The narrative of color
blindness has remained remarkably consistent, as has the seemingly sincere
belief on the part of some that it is-or ought to be-the answer to every
race question, the solution to every race problem, and the cure to every race
conflict.





      Associate Professor of Law & Director of Civil Rights Clinic, Howard University School of
Law. I am indebted to David Huynh and Douglas Quzack for their invaluable research and drafting
assistance. I am also grateful to Emily Komfeld and her colleagues at the GEORGE MASON LAW REVIEW
for their gracious invitation to contribute to the Developments section of the Law Review and their
thoughtful work in editing the Essay.
    1 133 S. Ct. 2411 (2013).
    2 See Part 11.
    3 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
    4 Id. at 559 (Harlan, J., dissenting).

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