Rogers M. Smith
excerpted Wrom: PBARHDMNNSKVFVWRKJVZCMHVIBGDADRZFSQHYU
Brown: Constructions of Race in Modern Supreme Court Decisions, 5
University of Pennsylvania Journal of Constitutional Law 709- 733 ,
709-710 (May, 2003) (83 Footnotes Omitted)
This essay examines one dimension of a quite broad-ranging topic: how
modern American law is explicitly and implicitly constructing the racial
identities of contemporary American citizens. I focus on two contrasting
conceptions of "white" and "black" racial identity
visible in decisions of the United States Supreme Court during the
post-Jim Crow era. I term these the
"damaged race" and the "racial irrelevance" views
(though the latter is more customarily referred
to as "color-blind" constitutionalism).
I argue that both these conceptions are flawed, because both can easily
be understood to imply that whites today are as a group superior to
blacks in America, and belief in such superiority can in turn support
policies and practices that continue to privilege white interests.
I suggest that a third conception, that of "distinct racial
damages," does more to make sense of how the law has helped create
the racial identities that Americans still experience themselves as
possessing. It holds that both "blacks" and "whites"
today should be seen as social groups that are still harmed by the
consequences of past official constructions of race, though in very
different ways. This conception of contemporary racial identities is, I
believe, simply accurate; it may also serve as a better guide to legal
and political action on race-related issues. Though I think that this
analysis can be extended to encompass the great variety of racial
identities in past and present America, I confine the argument here to
Supreme Court depictions of "blacks" and "whites."
Those constructions have, I believe, done the most to shape the law's
approach to racial topics.
. Christopher H. Browne Distinguished
Professor of Political Science at the University of Pennsylvania.