At its inception, the Constitution was interpreted as quite explicitly color-conscious. Though it didn’t mention race until the passage of the Fifteenth Amendment, nearly a century after its creation, there is no disputing that the Framers drafted the three-fifths compromise as a means to delineate enslaved black Americans and Native Americans from the rest of the citizenry. In the same year that the last state ratified the Constitution, Congress passed and George Washington signed the Naturalization Act of 1790, which reserved citizenship exclusively for “free white persons” of good character—hardly color-blind.

Wilfred Codrington III: The Electoral College’s racist origins

In Dred Scott v. Sandford (1856), the Court’s opinion was that the Declaration of Independence never intended to include or acknowledge “the class of person who has been imported as slaves nor their descendants.” It further determined that the country adhered to a cultural belief that “the negro might justly and lawfully [be] reduced to slavery for his benefit.” In Plessy, the Court upheld the constitutionality of racial segregation. And even in the aforementioned dissent, Harlan caveated his assertion of constitutional color blindness by noting that the “Chinese race is so different from our own,” it is, “with few exceptions, absolutely excluded from our country.”

Opposing this interpretation, abolitionists and racial-equality advocates relied on color blindness to rebut these color-conscious readings of the Constitution during the slavery and Jim Crow eras. Because the Constitution did not explicitly mention race, they argued, how could the Court read racial hierarchy into it? In his Dred Scott dissent, Justice John McLean responded to the charge that black people could not access the rights of citizenship by noting this was “more a matter of taste than law,” adding that the Court “had not been very fastidious” on this issue.

Color-blind constitutionalism reached its high point in Brown v. Board of Education (1954). Thurgood Marshall, who argued the case, and his fellow appellants professed, “That the Constitution is color blind is our dedicated belief.” He made clear that a color-blind interpretation of the Constitution was necessary to “obtain full and complete integration of all students on all levels of public education without regard to race or color,” and that the “stumbling block” to this was the color-conscious doctrine of separate but equal.

Brown determined that segregated schools were unconstitutional because separating students by race was a discriminatory, color-conscious action that disadvantaged black Americans. The remedy was a color-blind reading of the Fourteenth Amendment’s equal-protection clause. This case was part of a 20-year period of transformational civil-rights reform carried out by each branch of the government. Harry Truman desegregated the military and federal workforce in 1948, and Dwight Eisenhower deployed the Army’s 101st Airborne Division and National Guard to enforce the desegregation of Little Rock Central High School three years after Brown. Congress passed civil-rights, voting-rights, and housing-rights laws that outlawed racial discrimination. And the Court continued outlawing racial discrimination in public transportation in Boynton v. Virginia (1960), electoral disenfranchisement in Gomillion v. Lightfoot (1960), and interracial marriage in Loving v. Virginia (1967).