Jack Balkin, a prolific and perceptive liberal law professor at Yale, has a new blog that, based on its provocative initial post, promises to offer big-gun reinforcements to the often beleaguered army of liberal bloggers … and challenging arguments to those of us who like to beleaguer them. (Link via InstaPundit)
Balkin’s initial post begins by comparing the legacy of Brown v. Board of Education with that of Roe v. Wade. Balkin is quite well-versed in Brown, having recently edited a collection of essays entitled WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERTS REWRITE AMERICA’S LANDMARK CIVIL RIGHTS DECISION.
Balkin writes that
[t]he result in Brown was effectively ratified by Congress ten years later in the Civil Rights Act of 1964, due to the success of the Civil Rights Movement….
Moreover, because members of both parties were crucial to passage of the 1964 Civil Rights Act, both parties had a stake in the legitimacy of Brown. The Civil Rights Act of 1964, in the words of Archibald Cox, made “Brown more fully law,” and led to the eventual canonization of Brown v. Board of Education that no politician could criticize and no judicial nominee could openly oppose.
Because of this “canonization,” Balkin argues, in a passage that I believe is at the core of the liberal persuasion in these matters,
people with more conservative views on race relations adopted a different strategy to articulate their values. While supporting the basic idea of racial equality in Brown, they focused on the remedial aspects of desegregation, opposing busing and other remedial measures designed to integrate schools. They raised institutional objections to desegregation, objecting to federal interference with state’s rights and judicial interference with legislative prerogatives. They interpreted Brown and the Civil Rights movement as a commitment to colorblindness, which justified their opposition to affirmative action and other race conscious remedies, while insisting that government policies that had a predictable and foreseeably disproportionate impact on racial minorities but did not make overt racial classifications did not offend the colorblindness principle. Finally, conservative politicians, following rhetorical strategies pioneered by Richard Nixon and George Wallace, accepted the basic constitutional principle of Brown while playing on racial prejudices through so-called “wedge” issues like busing, crime and welfare.
My first point about this view is personal, but I hope, and believe, it is more than that. (I’m at least marginally interested in my autobiography, but there’s no reason anyone else should be.) I clearly am one of the people Balkin has in mind here, in that I’m critical of much of what he describes as “the remedial aspects of desegregation,” but in all honesty I don’t believe my opinion about these measures has anything whatsoever to do with “conservative views on racial relations.” I don’t even know what conservative views on racial relations are, but in any event my opinion of the propriety of racial preference in its various forms — busing, “diversity,” etc. — is not dictated or even influenced by “views on race relations.” Indeed, I don’t think I even have any views on race relations, conservative or otherwise.
Next, I’m not clear on what the difference is between “the basic idea of racial equality in Brown” that conservatives are acknowledged to support, and other (less basic?) ideas of equality.
Balkin’s use of opposition to “the remedial aspects of desegregation” to define the conservative position raises the old, but still fundamental and fundamentally unresolved, question of what exactly Brown and its ratification in the Civil Rights Act required — an end to discrimination based on race, or the use of a panoply of “remedial” measures, including racial discrimination itself, to promote integration? The degree to which the “diversity” justification for racial preference in college admissions echoes the old arguments for busing (the ideal of integration justifies abandoning colorblindness, etc.) is quite striking.
Most interesting is Balkin’s assertion — quoted above but worth emphasizing — that conservatives
interpreted Brown and the Civil Rights movement as a commitment to colorblindness, which justified their opposition to affirmative action and other race conscious remedies, while insisting that government policies that had a predictable and foreseeably disproportionate impact on racial minorities but did not make overt racial classifications did not offend the colorblindness principle.
That is precisely right. But what Balkin misses, or at least does not discuss, is that liberals agree! That’s why they’ve abandoned the principle of colorblindness.
The great divide between liberals and conservatives on race is not a procedural or political one over “remedies.” It is over whether racial equality requires colorblindness or not. Brown and the Civil Rights Act of 1964 embodied that principle; the subsequent turn of the civil rights groups to race-based preferences does not.
