The Yale Law Journal

April 2020

Respect, Individualism, and Colorblindness

Constitutional LawAntidiscrimination LawLegal Philosophy

abstract. What principle underlies the Supreme Court’s “colorblind” or “anticlassification” approach to race and equal protection? According to the Court and many commentators, the answer lies in a kind of individualism—a conviction that people should be treated as individuals, not as instances of racial types. Yet the Court has said almost nothing about what it means to treat someone “as an individual.” By excavating the philosophical foundations of that idea, this Article offers a framework for understanding, and then evaluating, the claim that the government fails to treat people as individuals when it classifies them by race.

Rightly understood, the Article argues, treating people as individuals means showing respect for their individuality, a central facet of their moral standing as persons. To evaluate the claimed link between individualism and colorblindness, then, one first has to consider what respect for a person’s individuality involves. Drawing on the philosophical literatures on respect and autonomy, the Article offers an answer to that question: treating someone as an individual requires taking due account of the information conveyed by her self-defining choices. But that answer entails that respect for a person’s individuality does not inherently require, or even favor, disregard of information carried by her race. The Article thus offers an internal critique of the Supreme Court’s avowedly “individualistic” approach to race and equal protection; it shows that the central moral argument for colorblindness rests on too shallow an account of what individualism itself demands.

Building on that conclusion, the Article then turns to suggestions that racial distinctions— whatever their intrinsic moral status—are nonetheless stamped with social meanings that render them disrespectful of a person’s individuality. Even if such meanings might justify limiting integrative race-based state action, the Article contends, the recognition that no more basic moral wrong is at work should transform the colorblindness project. It should prompt the Court to enforce colorblindness, if it does, with regret rather than indignation. And it should lead the Court to decide cases, and write opinions, in ways that avoid further entrenching social meanings that stand in the way of racial repair.

author. Assistant Professor of Law, Harvard Law School. For helpful comments and conversations, I thank Stephen Carter, Brendan de Kenessey, Kim Forde-Mazrui, Dov Fox, Sherif Girgis, Deborah Hellman, Randall Kennedy, Jed Lewinsohn, Alex Mechanick, Frank Michelman, Martha Minow, Steven Schaus, Louis Michael Seidman, Patrick Shin, Reva Siegel, Lawrence Solum, Jean Thomas, Amelia Uelmen, Robin West, Gideon Yaffe, and the editors of the Yale Law Journal, as well as workshop audiences at Georgetown, Harvard, the University of Toronto, the University of Virginia, and Yale. All errors are my own.