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Hastings Constitutional Law Quarterly

Abstract

Beginning with the ideals expressed in the Declaration of Independence, America has promised its citizens "equality." The underlying assumption implicit in such ideals is that equal treatment is to be applied regardless of the race of individual citizens. Such an ambitious goal of color-blindness, however, ignores the reality of dual- Americas-one for the majority, and one for the rest-and consequently fails in its attempt at fulfilling the promise. This Article, based on the author's lecture at the 1996 Matthew 0. Tobriner Memorial Lecture, examines ways in which the problems of race have been and should be addressed in legal discourse.

The benefit of race is that minorities are often in a position to see more clearly where America fails in its promise to protect the weak and the powerless. The burden of race is that the responsibility often falls on minorities to hold America to that promise, often at considerable cost to themselves. This Article provides a critical look at the benefits and burdens of race from historical, philosophical and legal perspectives and demonstrates the current problems of race by focusing on the treatment of African- Americans in the criminal justice system. In its analysis, the Article rejects the traditional liberal and conservative articulations with respect to remedying the problems of race disparity. It proposes a modified perspective that encompasses both liberal and conservative veins of thought in developing a new approach to remedying the problems of race in the civil and criminal justice systems. Problems of race implicates every member of the society regardless of his or her race. This Article concludes that the complexity of race invites the solution which involves observing the problems of race through the prism of race instead of ignoring race.

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