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Frank I. Michelman, Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the United States and South Africa, 117 Harv. L. Rev. 1378 (2004).

Abstract: Racial classifying itself may become a form of maltreatment, and the dilemmatic result is that while refusing to classify by race may sometimes amount to maltreatment, proceeding to classify by race always does. This essay is a comparative study of the imprint of this fusion in the constitutional-legal dogmatics of two countries, the US and South Africa. It first lays out a certain bind for doctrinal development to which a side-constraint "take" on racial classification seems destined to lead in a country such as the US. It then describes the rise in South Africa of a constitutional-legal discourse of antidiscrimination that arguably evades the side-constraint effect and resulting strains on the law's claim to consistency, even though that discourse has not been immune from the impulse to fusion. The essay concludes with a brief reflection on the availability of the South African solution for use by American jurists.