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69 Fordham L. Rev. 1753 (2000-2001)
Equal Treatment and the Reproduction of Inequality

handle is hein.journals/flr69 and id is 1773 raw text is: EQUAL TREATMENT AND THE REPRODUCTION OF INEQUALITY Cheryl L Harris* A way of seeing is also a way of not seeing ...... INTRODUCTION The title of this article owes a great deal to the provocative questions raised by the framers, and here I mean the framers of the conference. Specifically they ask: Do the Constitution's protections of certain freedoms and of equality itself limit what government may do to secure equal citizenship for all? To begin, we should ask, to what Constitution do we refer when we speak of what the Constitution provides? While the answer may seem obvious, it turns out each of us may have very different things in mind when we speak of the Constitution. Consider, for example, the views of the late Justice Thurgood Marshall. In a controversial and trenchant critique of the Bicentennial Celebration, Marshall argued that one of his objections to a bicentennial celebration of the 1787 Constitution was that it was neither the only constitution nor the only important constitutional moment: I do not believe that the meaning of the Constitution was forever fixed at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, * My thanks to James Fleming and the organizers of the Conference on the Constitution and the Good Society for inviting me to participate. My thoughts were stimulated and enriched by all of the discussions, and in particular by the contributions of the members of the panel, Peggy Cooper Davis, William Eskridge, Deborah Rhode and Alex Aleinikoff. My research assistant, Sharmila Lodhia, and the incredibly resourceful Linda Maisner, research librarian at UCLA School of Law, are owed special thanks for their patience and assistance. For encouragement and insightful critical reads, I thank Devon Carbado. The work of Neil Gotanda, Eric Yamamoto and Kenneth Karst have provided a crucial foundation for this project. This article would not have been possible without research support from UCLA School of Law. 1. Kenneth Burke, Permanence and Change: An Anatomy of Purpose 49 (3d ed. 1954). 1753