COLOR BLINDNESS AND THE LAW
"In order to get beyond racism, we must first take account of race. There is no other way."
--Justice Harry Blackmun, University of Calif. Regents v Bakke (1978)
In cases decided every day across America, the theory of color-blindness is said to govern the judicial process, a reflection of the flawed notion that the mere mention of race is somehow racist. Consequently, the law serves up yet another legal fiction, which obscures the complexity of real life, in furtherance of a false and fatal simplicity.
There can be no sustained study of American law without coming face-to-face with racism that drenches judicial thought, in a clear, unapologetic tone, which leaves no question as to the objectives of the court:
It is obvious that the objection on the part of Congress is not due to color, as color, but only to color as an evidence of a type of civilization which it characterizes. The yellow or bronze racial color is the hallmark of Oriental despotisms. It was deemed that the subjects of these despotisms, with their fixed and ingrained pride in the type of their civilization, which works for its welfare by subordinating the individual to the personal authority of the sovereign, as the embodiment of the state, were not fitted and suited to make for the success of a republican form of government. Hence they were denied citizenship. (Terrace v. Thompson, U.S. District Court Washington; 1921)
The anti-Asian bias that oozes out of this opinion, clothed in a kind of quasi-sociological justification, actually justified laws in western regions that outlawed the sale of land or property to Japanese, on the basis if ineligibility of citizenship (until the 1950s, Chinese, and other Asians, were denied Naturalization).
Despite our pretensions of "Color-Blindness," scholars assure us that, over a century after the Chinese Exclusion Act of 1884 became law, the court case that upheld the Act remains good law to this day.
The Supreme Court majority in Chai Chan Ping v. U.S. (1889), found "the presence of foreigners of a different race in this country, who will not assimilate with us" is properly excludable. For over a century, such decisions, which made whiteness the sole prerequisite for U.S . citizenship, and explicitly excluded people it deemed "nonwhite", had, at its very core, not "color-blindness," but color consciousness informed by a profound white supremacy.
It is fitting here to note that in 1935, two countries in the world had racial restrictions on naturalization: Hitler's Germany; the USA. Color blindness?
For the better part of two centuries race has been at the very heart of the law. It remains so despite the latest fashion of the legal fiction of "color blindness." How people are treated in court, how they are charged, and how they are sentenced is a direct reflection of what race they are assigned by the physiognomy presented to the world.
Several years ago, a prominent American law professor asked his students to imagine if they were to wake up the next day as black folks. The white students reasoned that such a "disability" required monetary damages of a million dollars a year for life.
Why damages, unless color does matter? Unless whiteness is a valued property which, when lost, demands a premium payment? And black is devalued?
We are blind to everything but color. © MAJ 1998
THERE IS SCARCELY A SOCIAL EVIL in American history that was not, in some case, at some time, approved by some jurist. During the depths of American slavery some brave souls sought relief in court of law. Esteemed scholar and historian Herbert Aptheker, in American Negro Slave Revolts (1987) quotes from the opinion of North Carolina Supreme Court Justice Thomas Ruffin:
The power of the master must be absolute, to render the submission of the slave perfect . . . . As a principle of moral right, every person in his retirement must repudiate it but in the actual condition of things, it must be so (p. 66).
The immigration cases which excluded Chinese for over 150 years and which stripped citizenship from tens of thousands of Japanese and other Asians solely on the judgment that they were not white (and therefore, not worthy) worked to truncate and shrivel lives and cripple hopes. Tens of thousands lived lives of pain, shame and loss, unable to own land, serve on juries, or function in public service because of their color and heritage. People seeking freedom, the right to procreate, and citizenship were damned by judicial decree, their hopes, dreams and bodies violated by law, acts of legal judicial violence.
--from"Legalized Violence" by Mumia Abu-Jamal.