Kull, Andrew. The Color-Blind Constitution . Cambridge:
Harvard University Press, 1992: 182

With the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the civil rights movement celebrated the formal achievement of its historic objectives: a legal regime from which racial classifications had been largely expunged, and under which the most salient forms of private discrimination (in public accommodations and employment) were finally prohibited. The meaning of the word discrimination, in 1964, was not yet ambiguous. As explained by Hubert Humphrey during the Senate debate on the civil rights bill, it meant "a distinction in treatment given to different individuals because of their different race." A prohibition of discrimination against individuals necessarily barred "preferential treatment for any particular group." The ordinary understanding of "discrimination," moreover, was such that a violation of the legal prohibition "would seem already to require intent."
Liberals believed in 1964 that the Constitution imposed a rule of color blindness on government; and a color-blind standard, for most civil rights advocates, was the obvious choice to govern those areas of private conduct addressed by the new legislation. Not only was the right of the individual to nondiscriminatory treatment central to the traditional ideology of civil rights, but-by stressing the protection it afforded to all individuals, white as well as black-such a rule provided the natural ground of compromise necessary to obtain passage of the civil rights bill in the Senate. The argument for compensatory racial preferences, though rigorously excluded from the orthodox civil rights agenda, was already being formulated by 1964; conservative southerners were doubtless more alive to its possibilities than were other members of the Senate. In the whole of the congressional debate over the Civil Rights Act of 1964, no theme is more prominent than the exasperated insistence of the bill's supporters, in answer to repeated southern fears, that a law prohibiting discrimination must necessarily prohibit preferential treatment. Had the Senate been left in any doubt on this point, the Civil Rights Act of 1964 would not have been passed. The color-blind consensus, so long in forming, was abandoned with surprising rapidity. By the end of the first Nixon administration, a significant part of the "civil rights" being enforced by the federal government could be described more plainly as a system of compensatory preferences for racial and ethnic groups. The transformation was accomplished without resummoning the great national convention on civil rights that produced the 1964 act after eighty-three days of Senate debate. It was brought about instead by judges and administrators, who gave effect to a profound and sudden change in the views of liberal policymakers regarding the utility of race-specific government action. It is ironic but understandable, in retrospect, that this revolution took place just when Charles Sumner's vision of "equality before the law" had finally become the law of the land.

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu