Kristen Bui

Jose Fuste

ETHN 152

12 June 2014

The Deconstruction of Colorblindness

Since we constructed the concept of human rights, we have been more willing to take

rights away than to extend them to others. Within the term of others, we distanced ourselves

from people in terms of race, color, and even culture. In our democracy, we became champions

in that respect. Among the phenomenon that shook our American history, racism is still a long

and enduring mark of our society. Critical Race Theory was formed as an effort to analyze the

race and racism interactions within our legal system. Many famous scholars have participated in

the study to formulate and delineate the pervasive marks of racism in our history and the

subsequent effects on society, particularly people of color. Michelle Alexander claims our current

legal system have replaced slavery with mass incarceration, a fate much worse than servitude.

Neil Gotunda shares his critique of the colorblind constitutionalism, an ideology that forsakes the

use of race as a legal or political distinction, is in fact a tool for white racial dominance (Neil

Gotunda 257). Mary Romero examines the state of racial treatment and oppression of immigrants

as a new form of racism in order to secure immigration control. Amaney Jamal observes the

unifying forces that lead the tyranny against Arab and Muslim minorities after the events of 9/11.

Alternatively, we have been led to believe that colorblind constitutionalism, a stance that the

courts have stood by, are idealistic mentalities that will ultimately resolve all race-conscious

sentiments in our American society. Sadly, these efforts have been a misguided attempt to

blanket the covert racism that still exists in our legal system. The idea of colorblind
constitutionalism does not remedy racial inequalities by appearing on paper, but rather, it

deepens the racialized consciousness (the awareness of their race and culture as an identity) that

these minorities suffer. Without the legal consideration of race, these minorities are victims of

socially and legally constructed forms of subordination and tyranny from a historically race-

conscious society. Gotunda refutes the famous lines written in Justice Harlans dissent in Plessy

v. Ferguson, Our constitution is.colorblind (Gotunda 257).

Gotundas objection of colorblind constitutionalism stems from the demands of social

tolerance and subordination of blacks under a form of racial scrutiny. Living in a society where

we used race as a classification, we already created the arena of racial subordination. By defining

the rule of descent of black ancestry, we defined the boundaries to which we draw our racial

lines. Gotunda notes that we lack intermediate or mixed-race classifications because we can

only recognize what is pure white and pure black (258). We restore the historical differences

between these two races, a feat we fought during the Civil Rights Movement. Using this rule of

descent and recognition, we reinforce a system of racial subordination when we condone

colorblind constitutionalism. A white person recognizes a black persons inferiority by

acknowledging his race and this kind of transgression refers to the racial scrutiny, which parallels

the historical and legal doctrine, that the inferior status of blacks was an accepted legal

standard (262). The courts demand a social acceptance of this constitutionalism by refusing to

acknowledge the factor of race in their deliberations. But their historical status of Africans

resonates in their political and social status in the future. Gotunda notes that it strikes down Jim

Crow segregation but it offers no vision for attacking less overt forms of racial subordination

(269). Continuing with the strict scrutiny of racially conscious cases, the courts are subverting

the change and initiatives that have been corrected by Civil Rights Movements. Justice Potter
Stewart remarks that, Government may never act to the detriment of a person because of that

persons race (260), but Michelle Alexander believes that they exerted a new form of

discrimination by creating the War on Drugs.

The tolerance on colorblind constitutionalism creates a new socially constructed

hierarchy between whites and blacks that even rivals the historical state of slavery. In todays

society, the first detection of any racial slur from anyone is immediately renounced. While we

were apt in our social criticism of this form of overt racism, we remain blatantly ignorant of

other forms of covert racism. Eradicating forms of discrimination on grounds of race, we

replaced it with an institutionalized system of slavery, criminals. There are now more African

Americans under correctional control than there were slaves in 1850 (Alexander 9). As a

criminal, their status is no less than a slave because they are denied every basic right as a citizen,

suffrage, jury service, and legally discriminated in housing, employment, access to education,

and public benefits (10). As if, the de jure discrimination they received before the Civil Rights

Movement became de facto discrimination. These social constructions have been aided with the

governments efforts with the War on Drugs, a futile attempt since its inception during the Nixon

era. Their drug busting efforts have amounted to 1000% drug arrests since its inception, but 80-

90% of the convicts have been black (12). They have been asked to accept that our constitution is

colorblind, but how can we accept the staggering figures of these prisons? Why should there be a

tolerance of colorblindness when there is a blatant racially conscious effort to target blacks in

drug arrests? By criminalizing the majority of the African race, they are reinforcing the hierarchy

that existed before the Civil Rights Movement, intentionally creating the stigma between the

association of being black and a criminal. But the War on Drugs is not the only form of social
control the government has tried to exercise over minorities; Romero claims that immigrants,

particularly Mexicans, have suffered the same fate.

Romeros studies in critical race theory deviates from the idealism of colorblindness

because it is her focus in certain ethnic and race groups that are subject to a new form of

immigration control. She has noted the growing literature shows that racism can be studied by

how immigration laws affect all racial minorities (Romero 27). In American history, we have

seen various substitutes for the word immigrant, among them, we still use the term alien. It is

not surprising to note that the same sentiments, which govern their racism for immigrants, also

affect minorities. This carryover of racialized alienation have caused them to create social

construction of immigration status as well as the significance that race plays in maintaining and

controlling immigrants and other minority citizens (27). By observing their transformation

entering the American society as an immigrant, we delve further into the sociology of their

change when they become differentiated as a minority in the legal and social scope. As

immigrants, they lack many legal freedoms, which subjects them to blatant forms of humiliation

and intimidation in order to assert immigration control (31). Given they are not citizens, we

understand that it is perfectly legal to commit such acts of discrimination against a minority,

similarly to the treatment of blacks before the Civil Rights Movement in form of de jure

discrimination. We draw the parallels of how society exerts their control over minorities, past and

present. But since then, there has emerged a new form of tyranny on Arab and Muslim

Americans.

The War on Terror has been a socially and legally constructed tool to validate the

infringement of civil liberties and assert the racialized differences of Arab and Muslim

Americans during the era of colorblind constitutionalism. Reeling in the aftermath of 9/11, the
American society has continued its tyranny over minorities, particularly Arab and Muslim

Americans, by infringing on their civil liberties in its efforts to combat the War on Terror, in

additions to several other forms of harassment and discrimination. We have seen a growing

resentment from the national audience towards the Arab and Muslim minority following 9/11.

Thus, when there is a unifying agreement to collectively encroach on the rights of these

minorities, the American society did not hesitate due to widespread fear on terror. In a legal

system where we are promoting the use of race as a determinant, how have we been colorblind?

However, we must question the arena which has so much support for policies that so apparently

anathema to basic American values (Jamal 116). Jamal noted that mischaracterized perception

of Arab and Muslims from mainstream American culture is violent and threatening (116), which

fuels the social construction for the racialized term other. In the similar matter that they have

used the War on Drugs, they have used the War on Terror to exert a form of social control over

this minority. By asserting these racialized differences, this juxtaposition captures the dominant

social structure of this country has positioned vis--vis this subpopulation (122). If our

constitution is colorblind, why are we continually erecting the differences?

Racial inequalities will continually exist because addressing them on paper will not

change the racialized differences that society constructs. In a world where we rather look for

commonalities that unite all humankind, we erect differences (Jamal 128), and treat others in a

manner that we would never want to treat ourselves. By telling society that racism is wrong on

paper, it will not change the way they would feel against a race. All the change and initiatives

since the Civil Rights Movement have been outdone by the construction of a colorblind

constitution because it provided catalyst to nationwide movements, such as War on Drugs and

War on Terror. Both of these movements have been more effective in removing liberties than the
Civil Rights Movement securing civil liberties. Colorblind constitutionalism has been an excuse

to discontinue the mitigating factors that we owe to African Americans while it fosters the

growing white privilege that they have never been entitled to. Against the backdrop of the War

on Drugs, our model of colorblindness is recycling the racial caste over blacks (Alexander 10).

Our society continues to be blind to the racial differences that we construct to assert our

dominant social hierarchy. The rights that we fail to extend to citizens, we lack even more to

immigrants, despite the fact our entire society is composed of immigrants. How can we proclaim

to be colorblind when these anti-immigrant treatment use race as a determinant? Similarly to the

War on Terror, our misconception of the violent and threatening nature of Arab and Muslism

Americans excuses our infringement on their civil liberties. All the differences that society

constructs to justify the racial treatment, this is the core of our problems. In order to project the

racial equality that were addressed on paper, there is a need to change the way society views race

and their natural inhibition to erect differences between them. Society is more willing to share

rights to people similar to them than others.

 Works Cited

Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of

Colorblindness. New York: New Press, 2010. Print.

Gotunda, Neil. A Critique of "Our Constitution is Color-blind. Critical Race Theory:

The Key Writings That Formed The Movement. New York: New Press: 1995. Print.

Jamal, Amaney A.. Civil Liberties and the Otherization of Arab and Muslim

Americans. Race and Arab Americans Before and After 9/11: From Invisible Citizens to Visible

Subjects. Syracuse, N.Y.: Syracuse University Press, 2008. Print.

Romero, Mary. Crossing The Immigration And Race Border: A Critical Race Theory

Approach To Immigration Studies. Contemporary Justice Review: 23-37. Print.