Jack’s Back!

Jack Balkin has four recent posts on colorblindness that will reward your close attention (especially because I’m not going to summarize them here; doing so wouldn’t do them justice, and I’d be too exhausted before I finished to say anything about them). I believe Jack presents the contemporary liberal view of these matters about as well as it can be done.

The first post of the Big Four, “The Secret History of Colorblindness, Part I,” argues that

[t]he original understanding of the Fourteenth Amendment specifically rejected colorblindness, and the same Congress that adopted the Fourteenth Amendment also adopted a number of race conscious remedial measures.

This is true. Balkin is also correct when he says that one can’t consistently be a firm originalist and believe that the 14th Amendment requires colorblindness. We colorblinders can wish that our side in this debate, the old radicals and abolitionists, had carried the day when the 14th Amendment was being debated, but they didn’t. They favored language that would have barred the states and the national government from making distinctions based on race, but they lost out to conservatives and “moderates” who wanted to preserve the right to make many of those distinctions. I wouldn’t think many of today’s preferentialists would be proud of their lineage, but there it is.

I believe Balkin overplays his hand a bit, however, when he adds that “[t]his fact is an embarrassment both to the theory of colorblindness and to the theory of original understanding.” It’s not really an embarrassment to either. It’s only a problem — and here Balkin is right — if one claims that the 14th Amendment was understood by its framers to require colorblindness. I hereby encourage anyone having trouble with this to take a look at Andrew Kull’s masterful THE COLORBLIND CONSTITUTION.

The second post continues the discussion of colorblindness, but I found the history here much more didactic, and hence much less persuasive, than in post one.

The post gets off to a good start, explaining that in the 19th Century “civil rights” had a different meaning from today. Where we tend to think of “equal rights” as one concept meaning something like equality before the law, back then it comprised a trilogy of civil rights, social rights, and political rights.

This is all fine, but then Jack moves on to devote quite a bit of energy — more, I think, than it’s worth since informed conservatives don’t disagree — to chipping away at Justice John Marshall (“our Constitution in colorblind”) Harlan’s pedestal. Harlan, he explains, didn’t mean “colorblind” the way his current conservative acolytes believe. He meant “only” equality before the law in the narrow, 19th Century sense. He was perfectly happy to leave “social equality” untouched by the Constitution. Well, that may not be quite right, for Jack also tries to argue that today’s conservatives are just like Harlan using the concept of colorblindness as a mask for white privilege.

What do we learn from all this? When the idea of colorblindness was first introduced into American constitutional discourse by Justice Harlan, it did not represent a full grant of equality to blacks. Rather, it was a grant of basic economic rights to blacks while preserving a sphere of private choice or discrimination in which blacks would remain socially inferior to whites. Colorblindness did not permit the state to deny blacks the right to earn a living or own property on terms different from whites, but neither did it permit interference in the private sphere of private association. Whatever social stratification resulted from purely private choices was not the law’s business. Regardless of what happened in the private sphere, black and white were still “equal before the law.”

This vision of colorblindness was central to conservative opposition to the Civil Right Act of 1964. Both Strom Thurmond and Ronald Reagan opposed the Civil Rights Act of 1964 on the grounds that it interfered with private association, private property, and private contract. Both Thurmond and Reagan could claim that they believed in colorblindness in Harlan’s terms, for in many aspects of Jim Crow the state was not denying blacks the right to contract or hold property. Rather, private citizens were refusing blacks the right to sit at lunch counters or ride on privately owned busses.

I think Jack is largely right about Harlan, in about the same way Jefferson’s debunkers are right that he owned slaves and didn’t mean by equality what we do today. But this history-as-a-hammer is a, well, rather blunt instrument for tracing the history of ideas such as colorblindness. It can drive a point home with force, but it also can flatten surrounding material and on occasion even come down with unwelcome force on one’s own thumb, which is what I think happens here.

Jack’s description of the Goldwater/Reagan/Thurmond opposition to civil rights is fair enough, although I strongly dispute his implication of continuing racism (or at least indifference to racism) underlying current conservatives’ embrace of colorblindness. He writes, for example, that

contemporary colorblindness rhetoric … usually finds nothing constitutionally troubling about wide disparities in effects on blacks and whites unless there is overt racial classification or proof of deliberate intent to harm. In this way, colorblindness can actually be employed to preserve the racial status quo….

It’s certainly true that conservatives don’t believe all disparities, even all racial disparities, are unconstitutional, but that doesn’t mean they like the disparities and adopt an ideology for the purpose of preserving them. Do I infer too much? I don’t think so.

It is no accident that the rhetoric of colorblindness was selected from the many strands of argument that the Civil Rights Movement made and was championed by whites who were deeply concerned about how far the movement might go.

If it’s no accident it must be a conspiracy. (It’s no accident that “it’s no accident” is the traditional language of conspiracy theories.)

According to Jack,

The idea of colorblindness was reformulated in light of the victory of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Conservatives who previously opposed it now accepted it, and their ideological descendents reinterpreted colorblindness as now applying to (some) private action as well as public.

In my view this gets things pretty close to exactly backwards. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 were lifted to victory on a rising tide of acceptance of the colorblind principle, even, as Jack says, by some conservatives who had formerly rejected it or severely limited it. After its victory, in a tragic wrong turn it was rejected by the very liberals who had long been its most fervent advocates. That rejection, as much as Roe v. Wade sent many conservative Democrats over to the Republicans. It’s comforting, but wrong, to think that all the conservatives who fled the Democratic party did so because they were racists fleeing the Democrats’ commitment to equality, although there surely was some of that.

Before we leave the Civil Rights Act of 1964, it may be worth noting that anyone who believes that the opposition to it expressed nothing beyond racism would be surprised by the prescience of much of their criticism (even racists aren’t necessarily wrong about everything). For example, in his Bakke opinion arguing that the legislative history, plain text, and clear meaning of Title VI barred racial discrimination against any person by institutions receiving federal aid (that is, in supporting Alan Bakke against the University of California), Justice Stevens quoted the following comment as typical of the Southerners’ critique:

Presumably the college would have to have a “racially balanced” staff from the dean’s office to the cafeteria. . . .

The effect of this title, if enacted into law, will interject race as a factor in every decision involving the selection of an individual . . . . The concept of “racial imbalance” would hover like a black cloud over every transaction . . . . Id., at 1619. See also, e. g., id., at 5611-5613 (remarks of Sen. Ervin); id., at 9083 (remarks of Sen. Gore). [Footnote 14, quoting from 110 Cong. Rec. (1964)]

Justice Stevens rejected this view root and branch, quoting extensively from the record of debates to show that Congress quite clearly imposed a colorblind standard that barred discrimination for or against any race and that precluded the kind of imposed “racial balancing” feared by the Act’s critics. Typical was the following from Sen. John Pastore (D, RI):

Private prejudices, to be sure, cannot be eliminated overnight. However, there is one area where no room at all exists for private prejudices. That is the area of governmental conduct. As the first Mr. Justice Harlan said in his prophetic dissenting opinion in Plessy v. Ferguson, 163 U.S. 537, 559:

“Our Constitution is color-blind.”

So – I say to Senators – must be our Government. . . . [citing 110 Cong. Rec. 7063-7064 (1964) (remarks of Sen. Pastore)]

Title VI states:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Referring to that language, Justice Stevens concluded that Title VI required strict governmental neutrality. “A different result,” he wrote [438 U.S. 265, 413], “cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute….”

Jack obviously disagrees, which as I commented last time ironically places his view of the meaning of colorblindness in the Civil Rights Act in a line that goes back not to its framers but to its Southern critics, and from there back to the majority view in Plessy that Harlan was wrong because the 14th Amendment did not make the Constitution colorblind even in his limited sense, and from there back to the conservative-moderate block of Reconstruction Republicans who rejected the stringent colorblindness advocated by the old radicals like Thaddeus Stevens and Charles Sumner. In rejecting colorblindness modern racial liberalism has adopted quite an odd set of historical ancestors.

And speaking of Charles Sumner et. al., I think it worth pointing out that Jack gives unfairly short shrift to what is in fact a history of colorblindness that goes back far before Harlan (just as it has gone beyond him into the present). He writes in one place, for example, that “the rhetoric of colorblindness does not emerge in Supreme Court doctrines until Justice Harlan’s famous dissent in Plessy v. Ferguson,” and in another that “the idea of colorblindness was first introduced into American constitutional discourse by Justice Harlan.” This may be true in the narrowest sense of the use of the word “colorblindness,” but Jack is obviously aware that the colorblind argument was put forward as early as the 1830s by the some of the abolitionists, by Sumner himself when he unsuccessfully argued against school segregation inRoberts v. City of Boston, and most forcefully by the radical Republicans during Reconstruction. True, these were not part of “Supreme Court doctrine,” but they were clearly part of “constitutional discourse.” Harlan, in short, didn’t invent the concept, nor does he have a patent on its meaning.

In short, Jack’s argument here is that colorblindness is and always has been a rhetorical and ideological cover for racial inequality. He would have Congress eliminate racial disparities by “race conscious” remedies wherever and why ever they exist, notwithstanding the fact Congress’s enforcement power under the 14th Amendment is limited to “state action” (he has cited his extensive writings arguing why that restriction should not apply) and notwithstanding the fact that the Civil Rights Act of 1964, for better or worse, imposed a colorblind standard as clearly as words can do anything.

Moving on, Jack’s third post is a more narrowly focused discussion of how the civil rights legislation affected common law property and employment rights. He argues at greater length here a point he had made in an earlier post,

that if one takes the common law as the baseline of fairness, antidiscrimination laws do in fact shift power from whites to blacks, and that is why many whites opposed them. The common law rules of property and contract, after all, make no distinction based on race; these rules apply to blacks and whites alike, and in this sense they are colorblind. In order to see the Civil Rights Act of 1964 as fair one has to believe that the common law rules of contract and property, although formally neutral as between blacks and whites, are simply unfair when operating against the background of racial stratification in the United States.

Jack takes issue with my earlier disagreement with this point, and I have the feeling that to a certain degree we’re quibbling about semantics here. Clearly the civil rights legislation removed the freedom of employers and property owners to discriminate on the basis of race.

But Jack puts it a different way. He says “that if one takes the common law as the baseline of fairness, antidiscrimination laws do in fact shift power from whites to blacks, and that is why many whites opposed them.” But, as I argued earlier, I don’t believe that’s right. Where the common law of property and at-will employment contracts allowed discrimination for any reason, including race, the antidiscrimination laws restricted that right by allowing discrimination for any reason except race. Thus, it was not the race neutral common law that was unfair but the racially discriminatory practices that it allowed, for which the remedy was making property and employment practices conform to the colorblind principle.

Antidiscrimination laws did not, however, at least in my view, “shift power from whites to blacks.” They limited the power of property owners and employers to discriminate against whites or blacks or anyone on the basis of race. Of course, to repeat, the Southern critics of the Civil Rights Act made claims very similar to Jack’s.

Finally (at least for now), in post four Jack somewhat (but only somewhat) playfully asks whether Clarence Thomas is unconstitutional. Here are his five questions and my answers.

(1) Was the nomination of Clarence Thomas consistent with the principle of colorblindness?

No, but the principle doesn’t apply to the president’s power to nominate Supreme Court justices.

(2) If the answer to question (1) is no, did George H.W. Bush violate his oath of office to uphold the Constitution when he nominated Thomas?

No. See answer to No. 1. Nor would a Senator be violating his or her oath by votes cast for or against nominees for racial reasons. Nor, for that matter, would voters be violating anything other than good sense and common decency if they voted for or against candidates for racial reasons. The fact that something is a compelling principle doesn’t mean it applies to everything.

(3) If the answer to question (2) is no, then what principle allows presidents to take race as one factor among many in nominating Supreme Court Justices but does not allow the University of Michigan to take race as one factor among many in selecting a student body?

See answer to No. 2. First, there is no principle that “allows presidents to take race as one factor among many in nominating Supreme Court justices.” Nothing in the Constitution or laws prevents the president from making race the only factor or, like Michigan, the predominant factor. Now, a president who in fact made race the only factor might risk impeachment. The commitment to the colorblind principle is so wide and deep that an outraged public could well conclude that a president who flouted such a fundamental principle had forfeited his right to serve out the remainder of his term. As for Michigan, the easy answer is to say, with Justice Stevens in Bakke, that Title VI clearly bars its racially discriminatory practices. End of story. But the story never ends, so a harder answer, but one that I (obviously not a complete originalist) believe, is that the 19th Century’s distinctions among “civil rights,” “social rights,” and “political rights” have largely evaporated so that when an agency of the state (the Univ. of Michigan) distributes burdens and benefits according to race it is violating the 14th Amendment. For similar reasons, I think a president would be within his rights to nominate a justice because he is a believing Baptist, but I don’t believe Michigan could give preferences to Baptists, even though diversity there probably cries out for more of them. Do you?

(4) Suppose that the reason why Presidents or other executive officials may take race into account in nominating judges and Justices, or in selecting cabinet members or National Security Advisors is that these are political appointments and that one is permitted to use race to secure political support. Is this practice consistent with the Supreme Court’s statement that using race in government decisionmaking should be subjected to strict scrutiny because it is divisive and reinforces racial identities, and fosters the racial division of American society?

“Consistent with”? Hard to know exactly what this means here. But No, because racial appeals are offensive for the reasons the Supreme Court has said (and others). On the other hand, for reasons stated there is no obligation on a president’s part to be “consistent” with even every wise thing the Supreme Court says. To say a president “may take race into account” implies that there is someone — other than voters at the next election or an outraged populace that forces impeachment before then — to say he may not. I think racial appeals are offensive and I would oppose them, even though I think a president has a right to engage in them.

(5) Is the use of race as one factor in Presidential appointments in order to please potential voters more or less praiseworthy than the use of race to produce a diverse student body from which students might learn from each other? Leaving aside the fact that I think the former is legal and the latter illegal, I believe they’re about the same. They have the same virtue of “inclusiveness” and racial diversity (insofar as racial diversity itself has any virtue), and the same vice of divisiveness. Actually, racially categorizing students is probably worse, since it grooms new generations to think of themselves primarily in racial terms, to think their rights are tied to their race, and that wrongs done to them are all because of their race. Counting by race makes race continue to matter more than does making it legally irrelevant. I think it should be made to matter less, not more.

Say What? (2)

  1. Cobb January 23, 2003 at 5:40 pm | | Reply

    it’s going to take me a while to digest all this, but i’d like to take two angles and try to understand your perspective on that, if you would be so kind as to comment.

    #1. to what extent should one expect the law to punish racists, and what effect does mere anti-discrimination law have in impeding the idea of punishment? in other words, if everyone believes equally that racism is wrong, why is it not criminally wrong?

    #2 what dangers do the various forms of multiculturalism pose to the national fabric, and what are the appropriate legal sanctions against them? in other words, what is so good about colorblindness which makes it more appropriate to society than does multiculturalism, and what is the law prepared to say about that? why is ethnic recognition fundamentally wrong?

  2. John Rosenberg January 23, 2003 at 10:59 pm | | Reply

    Cobb – I don’t blame you! Jack Balkin can write faster than I can read, and I’m not sure I’ve digested all he said yet. (You’ll have noticed, however, that that didn’t keep me from replying … and replying….)

    Back to the chase, your two questions are terrific, and I’ll not be able to do them justice. Thus please regard the following as a brief, first take:

    1. I’ve always been interested in the idea of criminalizing racist acts (not punishing racists for being racists, but for engaging in at least egregious racist acts), and I’ve long thought that criminalizing certain racist behaviors could play a part in a grand compromise that would eliminate “disparate impact” discrimination, i.e., that would require establishing intent, and at the same time introducing new and stiff penalties, including criminal sanctions, for some proven acts of discrimination.

    2. This one’s a biggie. As I see it (again, preliminarily, briefly–don’t hold me to all this), multiculturalism requires that fairness itself be redefined to mean something approaching proportional representation. This in turn requires active regulation of what might be termed the racial/ethnic “market” to see that all important outcomes are fair in the above sense. Since fairness as equitable racial representation requires active efforts to include and exclude by race, this defintion of fairness is incompatible with our traditional notion of fairness, which is that every person has a right to be judged without regard to race, creed, or national origin. And without that right, that sense of fairness, as an underpinning, antidiscrimination laws make no sense.

    A good analogy can be made to our treatment of religion, which requires the state to be neutral regarding all sects, not to give preferences to any. The experience with warring sects was central to what our founding generation had in mind in insisting that the government be neutral with regard to religions. I believe the same principle applies to race. In a society that is in fact multicultural, it is folly to allow the state to play favorites among the various racial/ethnic/cultural groups.

    I’ve written about this issue several times. If you’d like to pursue my take on it, please look here, here, here, and here.

Say What?