William & Mary Bill of Rights Journal


The concept of color-blindness has long elicited much debate over its precise meaning and the role it should play in jurisprudence. Such debate was catalyzed by Justice John Marshall Harlan's well-known Plessy dissent. In the wake of the efforts of both civil rights activists and conservatives to use color-blindness to further their respective goals, Professor O'Brien seeks to clarify Harlan's vision of color-blind jurisprudence and examines the ways in which recent Supreme Court decisions echo Harlan's concepts regarding a color-blind constitution.

Professor O'Brien first provides a brief introduction to the concept of color-blindness. O'Brien then examines Harlan's experiences in politics and war to explain the bases of Harlan's beliefs, which O'Brien argues were steeped in white paternalism and Republican federalism. By analyzing Harlan's decisions in several key cases, O'Brien pinpoints two consistencies in Harlan's race jurisprudence: his commitment to federalism and his belief that for a court to find that a plaintiff has been racially discriminated against, the discrimination must have been explicit and purposeful. Finally, O'Brien adresses the limitations of constitutional color-blindness and the ways in which current members of the Supreme Court continue to echo Harlan's opinions regarding the interaction between federalism and color-blind racial justice.

Professor O'Brien concludes that although John Marshall Harlan was prophetic in his prediction that legally sanctioned segregation would place minorities in a position of legal inferiority, Harlan's world-view caused him to fail to address pervasive prejudice against African-Americans by elevating formal equality and federalism concerns above social realities and remedial needs. Additionally, O'Brien concludes that, like Harlan, the current Supreme Court unnecessarily has limited its remedial power with regard to racial justice.