Cedric Merlin Powell
 

Rhetorical Neutrality is the linchpin of the Court's colorblind jurisprudence. Three underlying myths--historical, definitional, and rhetorical--all serve to shift the interpretative (doctrinal) framework on questions of race from an analysis of systemic racism to a literal conception of equality where the anti-differentiation principle is the guiding touchstone. "The traditional fonts of Fourteenth Amendment jurisprudence--the anti-subjugation and anti-caste principles--have been effectively replaced by an anti-differentiation principle." Literal equality, without regard to context or history, is the unifying principle of the Court's race jurisprudence.

1. The Historical Myth

Professor Cass Sunstein explains the doctrinal shift from the anti-caste principle to the literal equality standard embodied in the anti-differentiation principle:
Originally the Fourteenth Amendment was understood as an effort to eliminate racial caste--emphatically not as a ban on distinctions on the basis of race. A prohibition on racial distinctions would excise all use of race in decisionmaking. By contrast, a ban on caste would throw discriminatory effects into question and would allow affirmative action.
*832 In any case the question for the anticaste principle would be: Does the practice at issue contribute to a system with castelike features? It would not be: Have the similarly situated been treated differently?

This shift also signals something fundamental about the Court's race jurisprudence: "the similarly situated" must be treated the same, so the rhetoric of neutrality becomes especially appealing. Because everyone is the "same," or similarly situated, history can be ignored (or submerged) in the name of colorblindness (history is neutral); race can be decontextualized so that it becomes an institutional value rather than a complex social construct, and neutrality is preserved through a series of doctrinal tenets which invert the central meaning of the anti-subordination principle.

Because the present day effects of past discrimination are constitutionally irrelevant to the Court, history has no significance in the Court's race jurisprudence in the absence of a clearly identifiable discriminatory actor. The Court articulates two doctrinal tenets to deemphasize history: societal discrimination is too amorphous to remedy and the Constitution protects individuals, not groups. No reference to *833 the racist past (and its present day manifestations) is needed if discrimination is viewed as some ephemeral phenomena that is out of our reach. If the focus is on the individual, race does not have to be considered because any consideration of it is supplanted by an analysis premised on individualized harms and benefits. This is the hallmark of the anti-differentiation principle and the fundamental doctrinal shift from the anti-subordination principle to the non-substantive principle of colorblindness.

The historical myth ignores the legislative history of the Civil War Amendments--the Thirteenth, Fourteenth, and Fifteenth Amendments--and *834 instead focuses on the neutral principle of colorblindness. The rhetorical move here is to recast the Fourteenth Amendment in liberal individualist terms and to literally ignore the primacy of the Thirteenth and Fifteenth Amendments in eradicating the racial caste system that was the hallmark of Nineteenth Century America. In advancing the historical myth, the Court continuously emphasizes the language of personage (essential individualism) in the Fourteenth Amendment, and this serves to disconnect the Fourteenth Amendment from the anti-caste and anti-subjugation principles underpinning the Thirteenth and Fifteenth Amendments. Personal rights *835 displace the rights of the oppressed. This is far from the legislative mandate underlying the Thirteenth, Fourteenth, and Fifteenth Amendments:
First, the Court focuses on the principle of "color-blindness," rather than racial equality, as the goal of equal protection. The principle of color-blindness for some justices has become more important than achieving racial equality....
...
Second, by ignoring this nation's history of racism, the justices reframe the Reconstruction Amendments' specific purpose of ending whites' oppression of African Americans into a generalized prohibition of "race discrimination." This abstracted conception of discrimination led the justices to oppose affirmative action on the grounds that it "discriminates" against innocent third parties predominantly white males who have benefited from this nation's exclusionary employment policies. Current equal protection interpretation thereby rejects the historical justification for affirmative action remedies: a response to centuries of excluding people of color from educational opportunities and better-paying professional and skilled jobs.

The abstracted conception of discrimination referenced above is at odds with the history of the Civil War Amendments:
The anti-subjugation principle is faithful to the historical origins of the Civil War amendments. Under Dred Scott v. Sandford, blacks were not deemed citizens--as though they were not counted among the "People of the United States" in the Constitution's preamble--because they were "a subordinate and inferior class of beings, who had been subjugated by the dominant race." The Civil War amendments were drafted specifically to overturn that odious hierarchy. The notion that one race is, or ought to be, subordinate to another is "at war with the one class of citizenship created by the thirteenth, fourteenth, and fifteenth amendments."

*836 Nevertheless the historical myth proceeds along a literal, ahistorical interpretation of Justice Harlan's dissent in Plessy v. Ferguson. The result is to read the anti-caste and anti-subordination principles out of the Civil War Amendments. This is not surprising, however, because Justice Harlan's dissent evinces the same contradictory ambivalence that the Court displays in its modern race jurisprudence.

In Plessy, the U.S. Supreme Court upheld a Louisiana law that required railroad companies to provide separate but equal accommodations for whites and Blacks; the train coaches were separated by a partition (a "colorline") based on race. The Court concluded that:
[W]e cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

Adopting a deferential approach premised on the rationality of the Louisiana law, the Court rejected a central tenet of the Fourteenth Amendment--state legislation cannot be based upon the presumption that African-Americans are inferior and deserve to occupy a subordinate position in American society. Interestingly, the Court recognized race, but it did so in a manner that perpetuates caste:
[w]e consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Thus, the Court's inverted reasoning is not of recent vintage. One hundred and nine years ago, the Court embraced a "neutral" construction of the racist law it upheld in Plessy. Because the state's actions toward the "colored race" and whites were equal and neutral--the colorline separated both races in Louisiana's railroad cars--then there was no subordination or caste. It was all in the subjugated race's imagination.

This leads to the Historical Myth that is at the core of Plessy. What happens when we read Justice Harlan's colorblind dissent in its entirety? Justice Harlan's dissent is always abbreviated and decontextualized; the majestic, ringing endorsement of the anti-caste principle contained in one sentence is always the highlighted section of Justice Harlan's dissent. Placed in context, there is a disconcerting resonance in the colorblind dissent; it is part and parcel of the rhetoric of neutrality, and neutrality perpetuates racial caste:
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, [that] it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional *837 liberty. But in 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 ....

While this is not a ringing endorsement of white privilege and supremacy because it is muted by Justice Harlan's resounding proclamation that "[t]here is no caste here," it is nevertheless a tacit endorsement of the anti-caste and anti-subordination principles because neutrality is premised on the dominance of the white race. "[Plessy] embraces two theories: racial subjugation in the majority opinion and the elimination of caste based on Black skin in Justice Harlan's dissent. Both theories are color conscious, not colorblind. The striking difference between the two theories is how color is used to fashion a theory of equality."

Building upon the color-conscious legislative history of the Civil War Amendments, Justice Harlan advances three doctrinal themes that are bedrock elements of the Fourteenth Amendment: (i) there is "no ... dominant, ruling class"; (ii) "[t]here is no caste here"; and (iii) "[o]ur Constitution is color-blind." Taken together, these themes explain the essence of the anti-subordination and anti-caste principles--white supremacy and domination of a subject class based on race are prohibited by the Constitution. There can be no racial caste system premised on hierarchies of color.

However, it is this colorblind mandate, with its anti-subordination and anti-caste underpinnings, that has been inverted and distorted by the Court. This is an inevitable doctrinal progression because Justice Harlan's dissent has some disconcertingly racist undertones steeped in white supremacy. "While 'there is no caste here,' there is certainly the widely held [post-Reconstruction] view that Blacks are subordinate to the dominant [white] race."

Today, subordination is maintained through neutrality. The hallmark of rhetorical neutrality is its inversion of normative, substantive constitutional principles, like the eradication of caste and the rejection of subordination premised *838 on race, into neutral non-substantive principles. History is displaced in this analysis, and the Court's decisions reflect the historical myth. Once the Court embarks on the rhetorical path of neutrality and ignores the overwhelming historical evidence against colorblind constitutionalism, it employs two additional myths--the definitional and rhetorical myths.

2. The Definitional Myth

Just as the historical myth strips the historical core from the Civil War Amendments, particularly the Equal Protection Clause of the Fourteenth Amendment, the definitional myth reinforces this historical distortion by disconnecting race from its social context. Colorblindness is buttressed by a definitional model that advances white supremacy. "A color-blind interpretation of the Constitution legitimates, and thereby maintains, the social, economic, and political advantages that whites hold over other Americans."

Discrimination is defined in a manner that perpetuates systemic racism. Without history or context, "Black" or "white" are simply societal labels through which the government, by its actions, distributes benefits or burdens. In this vein, Professor Neil Gotanda posits the concept of formal race and unconnectedness: "Under color-blind constitutionalism, references to 'race' mean formal-race. Formal-race implies that 'Black' and 'white' are mere classification labels, unconnected to social realities." Plessy v. Ferguson's constitutionalization of "separate but equal" is a compelling illustration of formal race and unconnectedness. Because race is neutral since "Black" and "white" are simply classification labels without history or context, the fact that Blacks were a subordinate class was not constitutionally cognizable. This is why it was so easy for the Court to casually note that any stigma of *839 inferiority did not emanate from constitutionally invalid state action, but from the minds of "the colored race" because they "[chose] to put that construction upon it." In this astounding passage, the Court is actually saying, quite clearly, that discrimination is in the minds of the oppressed.

The public-private distinction is the foundation upon which this contorted reasoning is built. If the state is acting in a "neutral" manner toward both races (Black and white), then the only discrimination that is left is "private" discrimination which cannot be reached by the Fourteenth Amendment. Indeed, in the absence of some specific evidence of state-mandated racial discrimination, the Court is free to assume (and it invariably does) that the alleged discrimination is illusory or irremediable because it is merely societal discrimination.

The segregationist law in Plessy was "neutral" because it segregated both races "equally" and the state action in question merely enforced a well-settled societal convention. The Court applied rational basis review to this intrinsically racist law. Of course, the "separate but equal" doctrine was overturned in Brown, and the meaning of neutrality changed at that point. However, the Court's conception of neutrality would still control how discrimination was defined and identified. Specifically, formal discrimination was eradicated with the Brown decision, but there would be (and still are) lingering vestiges of de jure discrimination.

*840 In adjudicating Equal Protection Clause claims, the Court had to determine whether to embrace a substantive conception of equality or a formulaic, anti-differentiation model that preserves the status quo while incrementally offering small portions of substance. The Court has consistently chosen the latter.

Colorblind constitutionalism and the rhetorical device of neutrality literally define discrimination out of existence. The historical myth is employed to rewrite the legislative history of the Civil War Amendments, so that individual rights are elevated over those of the descendents of the newly emancipated slaves for whom the amendments were passed by the Reconstruction Congress. Since the Equal Protection Clause protects individuals, not groups, then finding state-sponsored racial discrimination is an almost insurmountable task. In a manner eerily reminiscent of the Plessy decision, the Court has "privatized" discrimination.

Exploring the underlying discourses of the affirmative action debate, Professor Barbara Flagg critiques the rhetoric of white innocence and places this victim rhetoric in context, stating "the costs to whites imposed by affirmative action *841 measures are costs borne by 'innocent white victims."' This is significant because all of the Court's affirmative action decisions start with the proposition that the Fourteenth Amendment "protect[s] persons, not groups[.]" All racial group classifications are constitutionally irrelevant, and strict scrutiny is employed "to ensure that the personal right to equal protection of the laws has not been infringed." The effect is that legitimate discrimination claims, advanced by injured racial groups, are ignored under the guise of neutrality while individualized reverse discrimination claims are presumed to be constitutionally relevant.

Privatization, then, means that the personal rights of innocent whites are protected whenever the state uses race to their "disadvantage," unless the use of race can be legitimated in context. This is what distinguishes Grutter from decisions like Croson or Adarand. The benefit to whites in the Grutter decision is the "cross-racial understanding" that is the product of having a critical mass of African-American students in the classroom ; while in economic marketplace cases, like Croson and Adarand, the Court goes to great lengths to preserve the personal rights, or the personal entitlements of whites, in the economic marketplace. There is more *842 of a "burden" on innocent whites in these cases because there is competition in a limited marketplace. Individual self-interest is the distinguishing factor in cases like Croson and Adarand; the broad, process-based themes of the First Amendment do not resonate well here. Nevertheless, it is the manner in which discrimination is defined that determines whether a race-conscious remedial approach will be upheld by the Court.

The Court, in light of its preference for process-based values and rights, has defined discrimination virtually out of existence. Thus, in order to establish a cognizable Equal Protection Claim under the Fourteenth Amendment, there must be clearly identified discriminatory intent by the state or an actor connected to it. Disparate impact, while not constitutionally irrelevant, is not enough to establish an Equal Protection claim; discriminatory intent must exist.

The Court has defined discrimination in narrow terms, and much of the systemic nature (and its devastating impact) is left undisturbed. This is the hallmark of the definitional myth. Washington v. Davis is the analytical linchpin of the definitional myth.

The Washington v. Davis intent requirement segments discrimination into a myriad of discrete, individualized occurrences. This approach preserves liberal individualism at the expense of eradicating racial subjugation in all facets of American life.

Plessy and Washington v. Davis are a disconcerting doctrinal tandem: Plessy literally erases the history of subjugation and subordination, and Washington v. Davis, building upon the historical myth, defines discrimination so narrowly that it only exists in a few, discrete instances. Certainly, Washington v. Davis is not as *843 odious as Plessy; it at least acknowledges that discrimination is not imaginary, but it shares a common doctrinal thread with Plessy since it neutralizes discrimination. Plessy was a direct response to the broad prospective societal change mandated by the Reconstruction Amendments, while Washington v. Davis was an implicit response to the broad prospective societal change, grounded in the anti-caste and anti-subordination principles, mandated by Brown v. Board of Education. As Professor Cheryl I. Harris observes:
[T]he Court's current conceptualization of neutrality mirrors that of the Plessy Court and produces a similar result: racial inequality is virtually irremediable under the Constitution. While the line has moved with regard to what counts as racial discrimination--rules of equal prohibition based on race now look plainly unconstitutional--the prevailing logic has reconstituted a conception of race which renders the asymmetrical allocation of power, access, and rights by race as constitutional and consistent with the equal protection guarantee. The Plessy Court relied on formal race--the idea that race has no social meaning or relevance--in deciding that the Louisiana statute requiring racial separation in public carriers was consistent with the Equal Protection Clause. So, too, does the prevailing majority of the current Court rest its analysis upon the assertion that race is fundamentally irrelevant and signals nothing more than skin color.

Professor Harris pinpoints the very essence of the definitional myth: "discrimination" is defined so that it legitimizes racial inequality; the Court's *844 neutral rhetoric masks stark inequalities by relying on the discriminatory intent requirement; and the absence of history and context ultimately leads to jurisprudence which preserves centuries of racial oppression. The final component of Rhetorical Neutrality is the rhetorical myth. Once the history of racial oppression has been erased, and discrimination has been decontextualized so that it means any encroachment on an individual right, then there has to be some neutral explanation *845 for the glaring inequalities which persist but cannot be remedied. The rhetorical myth supplies the dubious explanation through a series of affirmative action critiques.

3. The Rhetorical Myth

The Rhetorical Myth is the final prong of Rhetorical Neutrality. It functions on a thematic level as a justification for any "burden" on white privilege, and, embracing the First Amendment's marketplace of ideas paradigm, it serves as the doctrinal foundation of the forward-looking approach. Thus, race-conscious remedial approaches to the eradication of caste are supplanted, and the central focus is on the future benefits to individuals (and institutions), not on race. Grutter is squarely in this doctrinal vein. Diversity is particularly appealing because race can be *846 neutralized, and the rhetorical move that accomplishes this is the Court's articulation of several seminal, reinforcing myths. These myths actually "explain" why race is irrelevant to the Court.

Paradoxically, to ignore race, the Court must first recognize it. Indeed, the rhetorical myth's primary function is to articulate how race is fungible. It is like the "diversity" that is derived from having a tuba player from Idaho in the first year law class, while simultaneously justifying the consideration of race so that a "critical mass" of the historically subjugated has substantive access to the gateways of American opportunity. This inherent tension illuminates the deeply embedded incongruity of colorblind constitutionalism.

Examining the rhetoric against affirmative action as a manifestation of white guilt, Professor John E. Morrison identifies eight colorblind doctrinal themes underlying the Court's affirmative action jurisprudence:
[1.] Affirmative action is not colorblind, because it intentionally invokes racial classifications.
[2.] Affirmative action is not based on individuals, but on groups.
[3.] Affirmative action is not based on merit.
[4.] Affirmative action leads to racial politics and backlash in the form of white extremists.
[5.] Affirmative action is exploited by middle-class African-Americans.
[6.] Affirmative action stigmatizes its intended "beneficiaries."
[7.] Affirmative action is social engineering, demanding equal results rather than equal opportunity.
[8.] Affirmative action victimizes innocent (white[s]).

What is striking about all of the colorblind themes listed above is that they all strain to ignore race, while simultaneously acknowledging it to offer a critique on why it is antithetical to equality. These literal interpretations of "equality" are rooted in the anti-differentiation principle. All of the preceding colorblind conceptions are ahistorical--the present day effects of past discrimination are irrelevant (this is amorphous societal discrimination)--and these forward-looking themes reinforce Rhetorical Neutrality. All of the preceding themes shift the focus from historical discrimination, with present day effects, to individuality and merit. The substantive core of the Equal Protection Clause is turned inside out. This inversion preserves entrenched, systemic racism. Professor Darren Lenard Hutchinson notes that:

Colorblindness also reflects majoritarian interests because it freezes existing social, economic, and political inequities that result from racism. No serious advocate of colorblindness disputes the reality that a history of racial subordination has caused enormous inequalities of wealth, political power, educational opportunity, and inequities in many other measures of well-being. Colorblindness advocates, however, demand neutrality now that formal, overt efforts to subjugate persons of color have dissipated. The decontextualized, undifferentiated demand for colorblindness in a society marked by vast racial inequity accepts current conditions as a legitimate baseline; it compels prospective equal treatment, but prohibits affirmative steps to dismantle historical and present-day maltreatment. In *848 other words, colorblindness preserves status quo racial inequity. Only whites benefit from such an approach to equality.

This approach to equality is embedded in the Court's affirmative action jurisprudence, and all of the colorblind themes serve to preserve the status quo. Indeed, the historical and definitional myths inevitably lead to a doctrinal narrative of colorblindness and white victimization. All of the colorblind themes share this narrative foundation.

For example, colorblind themes--affirmative action is not colorblind and affirmative action is not based on individuals, but on racial groups--are essentially statements of colorblind constitutionalism and the complementary doctrine of liberal individualism. Doctrinally, the Court has eschewed a substantive, race-conscious remedial approach for one that obscures the significance of race and rejects history.

Diversity is an aspirational goal with First Amendment underpinnings. This is a significant shortcoming in the eradication of caste. Diversity fits squarely within *849 the canon of Rhetorical Neutrality because it is forward-looking and embraces neutrality to the exclusion of all other substantive values. Under the Fourteenth Amendment, diversity is ahistorical, partially acontextual, and inherently procedural (rather than substantive). The focus is on preliminary access and inclusion; difference is embraced (rather than the eradication of race based caste).

There is a presumption against content-based discrimination under the First Amendment. Therefore, the content of messages, whether political speech or racist hate speech, must be ignored to protect the free flowing ideological marketplace. This fits nicely with the illusion of neutrality--race must be ignored at all costs to preserve colorblind neutrality. Content neutrality and colorblindness are reinforcing doctrinal concepts. Both types of "blindness" (to content under the First Amendment) and to race (under the Fourteenth Amendment) lead to the same result. The First Amendment's prohibition against content-based discrimination by the state, as applied to hate speech and colorblind constitutionalism both serve to preserve the status quo. Deeply rooted systemic discrimination remains undisturbed: racist messages that ultimately lead to racial harassment and violence are left to be remedied by "more speech" and colorblindness prohibits any consideration of *850 race-conscious remedial approaches designed to eradicate the present day effects of past discrimination. This is directly attributable to how discrimination is defined. The definitional myth reinforces Rhetorical Neutrality, and, since discrimination is a rare occurrence, then the remaining critiques ((3) - (8)) of affirmative action all focus on "neutral" standards in the distribution of societal benefits or the impact of race-conscious remedial efforts on white interests.

Colorblind theme (3) (affirmative action is not based on merit) is a "neutral" articulation of white privilege. While no mention of "race" is made when the analysis focuses on "merit," the racial underpinning could not be clearer--people of color do not measure up under any quantifiable (or qualitative) standard, so admitting them will unjustifiably exclude whites who are entitled to take their place in elite institutions. The reference to elite institutions is instructive because Justice Scalia noted, during oral argument of the Grutter case, that the issue of fairness could be resolved by simply lowering the standards of admission to the University of Michigan School of Law:
I find it hard to take seriously the State of Michigan's contention that racial diversity is a compelling state interest, compelling enough to warrant ignoring the Constitution's prohibition on the basis of race.... [T]he problem is a problem of Michigan's own creation, that is to say, it has decided to create an elite law school, it is one of the best law schools in the country. Now, it's done this by taking only the best students with the best grades and the best SATs or LSATs knowing that the result of this will be to exclude to a large degree minorities.
It is--it's not unconstitutional to do that, because it's--that's not--not the purpose of what Michigan did, but it is the predictable result....
*851 Now, considering [Michigan] created this situation by making that decision, it then turns around and says, oh, we have a compelling state interest in eliminating this racial imbalance that [we] ourselves have created.
Now, if Michigan really cares enough about that racial imbalance, why doesn't it do as many other state law schools do, lower the standards, not have a flagship elite law school, it solves the problem.

This seemingly neutral rationale is breathtaking in its cynicism, for it assumes a stereotypical view of the abilities of people of color. Under the "neutral" meritocratic standards, it is "predictable" that people of color will not be admitted to the law school in large numbers. It is also predictable, under the same twisted reasoning, that whites will naturally do better than people of color. So, admission standards must be "lowered." The assumption underlying Justice Scalia's query is buttressed by the historical, definitional, and rhetorical myths. His question is specifically forward-looking (it does not take into account the present day effects of generations of fundamentally inadequate school systems for people of color) ; there is no particularized indicia of discrimination proffered by Blacks here (so "societal discrimination" is easily ignored and "discrimination" is inverted so the focus is on the impact on white victims) ; and the "solution" underlying the question is not *852 neutral (or colorblind) because it implicitly embraces white privilege as the guiding principle in the distribution of societal resources.

Colorblind theme (4) (affirmative action leads to racial politics) builds upon the meritocracy concept discussed above, but this theme is an explicit attempt to prohibit the use of race in the distribution of benefits (societal resources). Just as meritocratic arguments seek to "explain" why there is a "neutral" (colorblind) rationale for the disproportionate under representation of people of color in elite institutions, the racial politics rationale employs "colorblindness" to strike down race-conscious remedies that are inaccurately classified as the product of a racial spoils system--students should not be admitted to law school on the basis of race alone and benefits should not be distributed in a system (or process) skewed toward race.

Advancing a powerful critique of the racial politics rationale of Croson and its use of the Process Theory as a tenet of Equal Protection neutrality, Professor Reginald Oh highlights the doctrinal inversion that is at the center of the decision:
Justice O'Connor flipped Ely's [Process Theory] on its head.... Justice O'Connor reasoned that "[t]he concern that a political majority will more easily act to the disadvantage of a minority based on unwarranted assumptions or incomplete facts would seem to militate for, not against the application of heightened judicial scrutiny...." In other words, under the facts of this case, where a black majority City Council enacted an ordinance that harmed the interests of Whites to seemingly provide an economic boon to its black constituents, Justice O'Connor used Ely's political process theory to imply that the white minority in Richmond were a suspect class who needed the courts to protect its rights and interests from the "racial tyranny" of the new black political majority.

*853 Professor Oh points to the essence of inversion--whenever white interests are "burdened," then colorblind constitutionalism becomes doctrinally irrelevant. "Neutrality" gives way to inversion. In Croson, Justice O'Connor uses the Process Theory to produce a narrative of oppression for whites. This rhetorical myth simply preserves white privilege. While this appears perfectly "neutral" on its face (Blacks and whites should receive the same benefits from a colorblind political process), this is nothing more than a bald assertion of white privilege. Because the history of systemic racial oppression is ignored, it is easy to take the next step in reasoning that African-Americans will become the new "oppressors." There is a disconcerting parallel between the racial politics rationale and the racist rhetoric underlying the revisionist history of the Reconstruction Era. Whiteness is equated with competence and thoughtful policy initiatives for the benefit of all, while on the other hand, people of color (specifically, African-Americans in this case) are viewed as legislative buffoons who enact policies for their own selfish ends.

This is an interesting rationale because it assumes that African-Americans with "political power" will engage in the same racist practices that have been the linchpin of white supremacy for over four hundred years. One might ask, how can African-Americans engage in "turnabout" when they only have access to a small (perhaps insignificant) piece of the game? This question is part and parcel of the doctrine of inversion-- neutrality is employed to obscure the real and enduring quality of racism.

Another "neutral" critique of affirmative action is that it is exploited by middle-class African-Americans who do not need "preferential treatment" (colorblind *854 theme 5). This is the doctrinal analog of the racial politics and meritocratic critiques. In a racial spoils system, neutrality is circumvented so that preferential treatment is dispensed based on race; thus, many undeserving (Black) recipients receive the tainted fruit of affirmative action. Without any reference of history or context, this make-weight rationale gains currency. But we should not be confused by this rationale's simplistic allure:
[E]ven the most complex measure of class would have difficulty capturing all the significant class effects of being born black in America. One can measure the racial and income composition of a neighborhood, but without [sic] considering race, there is no way to capture the fact that blacks do not gain the full social benefits of having better-off white neighbors. One can look at the racial composition of schools, but if only black students suffer stereotype threat within those schools, the differences between the schooling process for blacks and whites will be ignored. Stated simply, the social processes through which the black middle class becomes and remains economically disadvantaged are driven by and mediated through race. Ignoring race missed the point and distorts the results.

It may be pushing the thematic connection too far to suggest that there are disconcerting similarities between Plessy's narrative--that there comes a time when African-Americans should no longer be "special favorite[s] of the [law]"--and the rhetorical myth of exploitation of affirmative action by African-Americans. It can be said, however, that a common thread runs through both rationales--Blacks are receiving a benefit that they do not deserve.

Building upon this formal equality paradigm of just deserts (of course, historical racism and its present day effects are irrelevant here), colorblind constitutionalists, like Justice Thomas, argue that affirmative action stigmatizes its intended *855 beneficiaries. Thus, under colorblind theme 6, merit matters, not race. But this is an illusory world buttressed by the rhetorical myth of neutrality. Indeed, the concern seems to be the reaction of whites to affirmative action rather than the eradication of caste. This notion is rooted in liberal individualism; the Constitution protects individuals, not groups, and to "single" out members of a racial group for "special treatment" is constitutionally illegitimate. Thus, any "benefits" that racial minorities receive have a stigmatizing effect on them and harms whites who had no part in any discrimination against people of color. Of course, this ignores how white privilege functions in society.

The neutral critique of social engineering (colorblind theme 7) is rooted in liberal individualism, which is essential to the preservation of white privilege. That is, because the Fourteenth Amendment protects individuals (persons), not groups, it is constitutionally impermissible to guarantee results based on race. This is another formulation of the Process Theory--the Constitution guarantees equal access, not equal results. Professor Kathleen Sullivan advocates moving away from a "sins of the past" retributive approach to a prospective approach which answers the critiques of race-based social engineering and unwarranted harm to innocent whites. She writes:
Uncovering the Court's focus on sins of discrimination helps tell why both sides have always been left still standing at the end of affirmative action showdowns in the Court. Trapped in the paradigm of sin, the Court shrinks, even in upholding affirmative action plans, from declaring that the benefits of building a racially integrated society for the future can be justification enough.... And hemmed in by the quandary of harm to innocents that a sin-based rationale inevitably creates, the Court continues to caution, even in upholding affirmative action, that it is but a necessary evil. Not surprisingly, affirmative action's proponents and opponents both find reason to triumph: its proponents in the declaration of its necessity; its opponents, in its definition as evil. While thus doomed to partial success, a focus on sins of discrimination is understandable. Expunging past wrong has an urgency about it that other justifications might not, and that urgency lends force to claims that affirmative action serves "compelling" purposes. But as long as whites displaced by affirmative action are not being subordinated on the basis of their race--as it is especially clear they are not when white-dominated governments, unions, or employers choose affirmative action--any important purpose for affirmative action should be justification enough. Such a purpose may *857 look forward as well as back. Looking forward does not forget sins of discrimination; it just sees them as less in need of remedy than redemption.

There are certainly doctrinal limitations to the forward-looking approach, but Professor Sullivan pinpoints the interrelatedness of the social engineering and burden on innocent whites' rationales of the dismantlement of affirmative action. Rather than neutralizing (or turning inside out) substantive conceptions of equality, the rhetorical move away from perpetrator, victim, and sin means that discrimination is not particularized. The Washington v. Davis intent requirement is abandoned because it selectively privileges white reverse discrimination claims over those of people of color.

Finally, under colorblind theme 8, a conscious attempt is made to minimize the impact on white majoritarian interests. This is a doctrinal signpost of the Court's race jurisprudence. Indeed, the possibility of an all-encompassing, substantive approach to the eradication of systemic racism is undermined by the Court's insistence on particularized discrimination. Oftentimes, there is no injury to whites. As Professor Erwin Chemerinsky observes:

[I]t should be noted that affirmative action does not in all circumstances injure others. For example, if affirmative action takes the form of aggressive advertisement of positions in minority communities and active recruitment of minority applicants, it is difficult to see how any one can claim an injury deserving of consideration....
Moreover, in matters such as employment, education, or government contracting, benefiting minorities inevitably means taking away something from whites. To describe the injury of whites as an argument against affirmative action is to assume that whites are presumptively entitled to what they have and that their loss is a harm to be avoided.

The claim of white privilege or entitlement is rooted in the underlying myths of Rhetorical Neutrality and racist stereotypes. It is an easy step to ignore the real injury to oppressed people of color when they are characterized as debased and lazy. These labels were applied quite openly in our Nation's sordid racial past, but now *858 they are part and parcel of an intricate set of implicit understandings about people of color.

Several distinct conceptual propositions emerge from Rhetorical Neutrality:

1. The reinforcing myths (historical, definitional, and rhetorical) underlying Rhetorical Neutrality all serve to invert bedrock Fourteenth Amendment principles so that the maintenance of white privilege is the touchstone of the Court's race jurisprudence.

2. The historical myth constitutionalizes liberal individualism so that history is not the collective experience of an oppressed people, but simply the colorblind admonition that the Fourteenth Amendment protects (individuals), not racial groups. The Civil War Amendments are recast as merely articulations of the anti-differentiation principle.
3. Building upon colorblind neutrality and liberal individualism, the definitional myth defines discrimination so narrowly that whites become the new "discrete and insular minorit[y]" (systemic oppression against African-Americans and people of color is so amorphous that it cannot be specifically identified (or remedied), and individualized reverse discrimination claims are presumptively valid).
4. The rhetorical myth, with its varying colorblind critiques of affirmative action, serves to constitutitonalize formalized notions of equality so that substantive equality becomes, at best, a secondary consideration when compared to the cognizable "burden" on innocent whites.
5. The Process Theory, rather than providing a rationale for principled judicial review, becomes a justification for leaving entrenched systems of discrimination in place.
*859 6. These narrow conceptions are the foundation of the Court's race jurisprudence. The disconcerting conclusion is that even when the Court reaches a "good" result in decisions like Bakke and Grutter, there is "something missing."

IV. CONCLUSION

We must dismantle colorblind constitutionalism and reject the allure of neutrality. It is certainly appealing to imagine a world where race no longer matters. We will reach that day much sooner if we confront our fears, our hopes, and our dreams and acknowledge that they all are intertwined with race. We must use a new rhetoric--a rhetoric of inclusion that does not insist on colorblindness, but embraces the substantive core of the First and Fourteenth Amendments. In this way, Justices O'Connor and Thomas would honor the historical significance and true legacy of Frederick Douglass, and the Court would take an important step in discarding Rhetorical Neutrality.

[FNa1]. Professor of Law, University of Louisville School of Law. B.A., Oberlin College; J.D., New York University School of Law.