Critique of Harlan's Colorblind Constitution from Roberts’s Revisions: A Narratological Reading of the Affirmative Action Cases

Amidst a rich critique of the majority opinion, Professor Onquachi-Willig parses the use of the famous "colorblind" Constitution reference in the Plessy dissent: 

"...Chief Justice Roberts highlighted the following language from Justice Harlan’s riveting dissent in Plessy v. Ferguson: '[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitu­tion is color-blind, and neither knows nor tolerates clas­ses among citizens.' [Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)]

"But in sharing Justice Harlan’s words about colorblindness and the Constitution, the Chief Justice failed to acknowledge three important sentences that immediately preceded the famous quote from Justice Harlan, three sentences in which Justice Harlan himself seemed to pronounce the superiority of the white race. Indeed, right before Justice Harlan asserted that the Constitution was colorblind and that there was “no caste” in the United States in his dissent in Plessy, he wrote the following three sentences about the dominance of the “white race”:

'The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. [Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).]"

Indeed, in the responsive commentary to Onwachi-Wing's article, The Need for an Asian American Supreme Court Justice, Vinay Harpalani points out that:

"Chief Justice Roberts also ignored another passage from Justice Harlan’s Plessy dissent: one that “allude[d] to the Chinese race,” which according to Justice Harlan was “a race so different from our own that we do not permit those belonging to it to become citizens of the United States.” [Plessy, 163 U.S. at 561 (Harlan, J., dissenting).] Even in 1896, Asian Americans were part of the story in the case that upheld the segregation of Black Americans. And a complete narrative of American racial history must include the complex racial positioning of Asian Americans."

The full article and response are not required reading, but recommended, if of interest.