In the frenzied rush to stamp out affirmative action in all of its manifestations, courts and legislatures are losing sight of fundamental realities. A key weapon in the destruction of affirmative action is the myth that the Constitution requires a color-blind approach to all but a very narrowly excepted class of race-based problems. Indeed, if the trend in recent state referenda cases continues, we soon will have the mythical color-blind Constitution that Justice Harlan first described in his dissenting opinion in Plessy v. Ferguson. In Plessy, Justice Harlan stated that [o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens. The adoption of Harlan's color-blind interpretation of the Constitution would almost certainly eliminate race-based protections and benign racial preferences as unconstitutional. This Article advocates that courts and legislatures should not read the Constitution as a color-blind document. The Framers never intended to create a color-blind Constitution, nor would such a Constitution accurately reflect the social norms and mores of contemporary American society. Accordingly, this author believes that government institutions should not use the myth of a color-blind Constitution to perpetuate the racial problems of a society that itself has failed to reach color-blind status. Part II of this Article examines the United States Constitution, as drafted and amended by the Bill of Rights, to show that the Framers never intended the Constitution to be a color-blind document. Additionally, Part II discusses the Reconstruction Amendments in an effort to demonstrate that Congress passed on the opportunity to render the Constitution truly color-blind and instead adopted the lesser standard of equal protection, which explicitly rejects non-discrimination. Part III examines the modern cases in which the Supreme Court often failed to develop a majority opinion, but delineated the level of scrutiny appropriate to race-based remedial measures. Part IV examines Adarand Constructors, Inc. v. Pena, in which the Court depended in part on the color-blindness theory for dismantling an affirmative action program. Part V argues that some form of race-based affirmative action is still needed and is constitutionally defensible. It also argues that, in today's society, race is an appropriate proxy both for diversity and for the status of a victim of discrimination. This Article concludes that there are compelling state interests in maintaining affirmative action programs in academia, that affirmative action programs can be narrowly tailored, and that race-neutral alternatives are not practicable.
To facilitate the tapering of local government regulation, this Article proposes that, as a matter of constitutional policy, the courts' should analyze zoning as a prior restraint when the challenged regulation has the potential to impact First Amendment rights. Zoning actions invalidated by the Court as prior restraints can then be adjudicated as common law nuisance actions that address those actual harms caused by the alleged offending land use activities. Admittedly, this proposal turns current constitutional jurisprudence "on its head." However, if courts can use "secondary effects" to give less protection to "lower-level" forms of expression, such as adult uses and commercial visual blight, then why shouldn't courts use the doctrine of prior restraint to give an extra level of protection to "higher-level" First Amendment rights, such as religious exercise?
