Myopic Justice: A Brief Intellectual History of Colorblind Law, 1880-­1896

Abstract

This thesis attempts to address a seemingly straightforward question: does an originalist interpretation of the Fourteenth Amendment support a principle of colorblind constitutionalism? Some jurists and legal scholars have argued that original understanding of the amendment, found in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896), necessitates a contemporary practice of racial nonrecognition in law and government policy. I suggest that inquiries that cite Harlan as the progenitor of colorblind constitutionalism are misguided in methodology. Albion Tourgée, Homer Plessy’s attorney, introduced the concept of colorblind law to the United States Supreme Court. Tourgée mobilized the term frequently, not only in his legal writings, but also in his fictive novels. As such, colorblind ideology should be investigated through an analysis of Tourgée’s fiction and non-­‐fiction literature. I argue that such an analysis unveils the multiplicities of colorblindness. Modern day appropriations of the term must acknowledge its protean nature and carefully consider how the socio-­‐legal and socio-­‐historical aspects of the latter half of 19th century America shape its forms.