Equal Protection, Class Legislation, and Colorblindness

• Published in: Michigan law review Vol. 96; no. 2; pp. 245 - 337
• Main Author: Saunders, Melissa L.
• Format: Journal Article
• Language: English
• Published: Ann Arbor University of Michigan Law School 01.11.1997; Michigan Law Review Association
• Subjects: Apportionment; Civil rights; Clauses; Constitutional amendments; Constitutional law; Due process of law; Equal protection; Equal protection clause; Equal rights; Equality; Fourteenth Amendment; Jurisprudence; Legislation; Political parties; Race; Race relations; Racial discrimination; Redistricting; Sex discrimination; State actions; State court decisions; State courts; State laws; Supreme Court decisions; Traditions; United States constitutional law; Voting; Voting rights; United States > US
• ISSN: 0026-2234; 1939-8557
• DOI: 10.2307/1290069

In the racial gerrymandering cases, the Supreme Court has confronted state action that, though undeniably race-conscious, does not appear to single out any identifiable group of persons for special disadvantage because of their race. Though various members of the Court have argued in dissent that the action could not violate the Equal Protection Clause precisely for this reason, a consistent 5-member majority has steadfastly ignored this argument. This majority has interpreted the Equal Protection Clause as giving all persons a substantive constitutional right not to be dealt with by the state on the basis of their race, whether or not this results from their being singled out for any special disadvantage because of their race. A paper argues that the interpretation of the Equal Protection Clause embraced by the majority in the racial gerrymandering cases - though morally attractive, rhetorically powerful, and politically popular - is profoundly inconsistent with the original understanding of the 14 Amendment.