This Article examines the selective invocation of colorblindness in legal and political discourse and argues that the trope has served as a powerful vehicle for the creation, perpetuation, and patrolling of white geographiesspaces characterized by an implicit hierarchy privileging white racial identity. After assessing the new rhetoric of race in the Age of Obama, the Article focuses on identifying and deconstructing the modern paradox of colorblindness jurisprudence. On the one hand, the courts have increasingly hewed to a colorblind vision of the Constitution when weighing the permissibility of race-based admissions and hiring programs for traditionally disadvantaged minorities. And, yet, on the other hand, when confronted with invidious racial targeting-in the name of patrolling our borders, keeping our streets safe from crime, or protecting the homeland from acts of terrorism-the obstreperous advocates of the categorically colorblind Constitution go strikingly silent. Drawing upon the examples of S.B. 1070 (Arizona's "show-me-your-papers" immigration law), H.B. 2281 (Arizona's legislation outlawing ethnic studies programs in
public schools), and a series of racial profiling cases interpreting the Supreme Court's Brignoni-Ponce decision, this Article argues that the discriminate entreaty for postracialism has, in fact, helped consolidate subordination practices in critical social, economic, and political spaces. In the end, therefore, while we are colorblind in theory, we are color bound in fact. Government regularly uses race in a variety of troubling contexts. Indeed, the very same courts that tell us that we have a colorblind Constitution have also held that one's Latino appearance is a relevant factor in determining reasonable suspicion for an immigration sweep, one's Middle Eastern heritage is a perfectly suitable consideration when ascertaining whether transportation of a passenger is 'inimical to safety,' and one's African-American descent can serve as an acceptable indicia of criminality without running afoul of the Fourth Amendment. At a minimum, these practices call into question our fealty to notions of colorblindness that have dominated legal and political discourse in recent years. More perniciously, however, the resulting uneasy gestalt perpetuates longstanding inequities (and forges new ones) by empowering a racialized social geography that continues to privilege white identity.
Playing Cowboys and Iranians: Selective Colorblindness and the Legal Construction of White Geographies,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol86/iss1/2