Powell v. Alabama

Colorblindness

Alabama Supreme Court Chief Justice Anderson Quoting Seay v. State in his Dissent

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”[1] Such was opined by Justice Harlan in his famous dissent in Plessy v. Ferguson. Yet perhaps being the most notable mention of the “colorblind constitution,” it was far from the originator. One of the earliest mentions of such a notion was Frederick Douglass’s speech critiquing the Dredd Scott v. Sanford decision: “The Constitution knows all the human inhabitants of this country as ‘the people.’ It makes, as I have said before, no discrimination in favor of, or against, any class of the people, but is fitted to protect and preserve the rights of all, without reference to color, size, or any physical peculiarities.”[2] This notion has undergirded much legal precedent throughout American history. It continues to do so in Powell v. Alabama, even if race is not mentioned, except at the very start, when the opinion is contextualizing the trial and the events that led to the boys’ convictions.[3] In lieu of race, the opinion in Powell mentions the phrase “surrounded by hostile sentiment.”[4] This is because, in a deeply racist Jim Crow Alabama, the mere accusation of the rape of white women by black people was among the most pernicious allegations possible. The opinion also mentions that because of this sentiment, the military had to guard and escort those boys accused, to prevent, in essence, a lynching, or at least an extrajudicial one, since the majority opinion likens the boys’ trial to “judicial murder.”[5] Despite the fact that race fundamentally was a large part in both the boys’ accusations, trials, and eventual convictions (not to mention their deprivation of adequate counsel), the opinions of the court, both the majority and the dissent, neglect to mention race, almost entirely.[6] Yet, however, there was mention of race more explicitly in Chief Justice Anderson’s dissent, when the case appeared before the Alabama Supreme Court.[7] That court affirmed the conviction, so his dissent was thus affirmed by the Supreme Court.[8] In it, when discussing a possible change of venue that could have taken place, he writes, “…the prejudice aroused, if any existed, was due largely to the nature of the crime and which was of such a revolting character as to arouse any Caucasian county or community, but the indictment was found and the trial had within a few days after the alleged commission of the offense and when the entire atmosphere was at a fever heat.”[9]  He suggests that the racism was so pervasive in the Jim Crow South, that even if the accused were tried where they were from, which was not where they ended up being tried, that any county would’ve had a similar reaction to the one that Jackson County did (where they were tried). Because of the trials taking place during a “fever heat,” those accused, among other reasons, were bound to not receive a fair trial due to racist prejudices.[10]

Though once liberatory in nature, the notion of a “colorblind” Constitution in recent times has been weaponized by those who hold an anticlassificationist point of view: that is, if we do not categorize people by race, racism will not exist (i.e. if we are colorblind). Chief Justice John Roberts, of the modern court, best sums this up in the majority opinion of Parents Involved in Community Schools v. Seattle School Dist. No. 1, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[11] In this sense, despite its circular logic, if we just do not actively address any issues with race, racial discrimination will cease, even if said addresses are to remedy past or present disenfranchisement or marginalization, and even if de facto. What this viewpoint fails to acknowledge is the fact race exists in society, regardless of if anticlassificationists want to see it gone. Thus, we are approached with the antisubordinationist viewpoint. That is, to eliminate racial discrimination, we must eliminate the subordination of racial groups, even if said subordination is de facto (of which it most often is in the modern day). Justice Sonia Sotomayor best encompasses this view in her dissent in Schuette v. Coalition to Defend Affirmative Action, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination…we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”[12] In this sense, the importance is of the effects of racial discrimination as they were actualized in society, even if not explicitly laid out in the law. What instead mattered were the effects of policy, not just the wording.

In Powell’s case, the notion of an implied “colorblind” Constitution is once again leveraged for liberatory politics, honoring the history and legacy of such a conception. Yet, the decision hybridizes the two frameworks: anticlassificationist and antisubordinationist. It makes little mention of race itself, seemingly avoiding it in lieu of specific legal arguments as to the deprivation of a fair trial (i.e. lack of effective counsel), but in fact clearly comments about the de facto effects of race impressing a bias on the jury (and perhaps, though not explicitly mentioned, the whole justice system, including the judge).[13] Thus, Powell complicates perhaps an often-characterized clear dichotomy, between anticlassificationism and antisubordinationism. This hybridization is not seen in its sister case, Norris, which came from the same set of trials, finding that exclusion of African-Americans from juries was unconstitutional, even if it was by de facto discrimination rather than de jure.[14] Norris wholly falls within the antisubordinationist camp, with explicit mentions of race and analysis of the implications of laws as racist, even if race was not written about in said laws.[15]

Despite modern jurisprudence, especially in conservative courts, seemingly largely attaching favor to the notion of a “colorblind” Constitution, they ought to bear in mind its radical and liberatory origins and even learn from the Powell and Norris cases, of which both utilized such a notion to repudiate de facto discrimination.[16] As much as these jurists may want it to not exist, “[the] simple truth [is] that race does matter.”[17]