Breaking The Rules By Playing The Race And Gender Cards (What Rules?)

Stuart Taylor Jr. had an excellent column yesterday in the National Journal on the perils of playing the race and gender cards. He joins David Brooks of the New York Times in lamenting that the Democrats have turned the “verbal thuggery” they’ve long used “against critics of affirmative action [and of] radical feminism” against each other.

“Is it too much to hope,” Taylor asks, “that this embarrassing identity-politics brawl proves to be a learning experience for liberals about the dangers of reflexively attributing racist, sexist, and other bigoted motives to people who disagree with or displease them?”

Yes, it probably is too much to hope, since as he notes, learning this lesson will not be

easy in a party that has long wallowed in the politics of group grievance. It is especially difficult when running against a woman who has so assiduously used the gender card while profiting from her own victimization at the hands of the same unfaithful husband who now joins her in tag-team distortions of Obama’s record.

And yet, as I argued recently (here), the unusual nature of the Democrats’ current primary campaign may in fact teach some unintended lessons. It may have done more to knock the props out from under racial preference policies than have several decades of litigation, state initiatives, and philosophical complaints from affirmative action critics.

Hillary says people should support her because she’s the best candidate, not because she’s a woman. Moreover, she insists, Democrats should choose her because of her experience and qualifications, not Obama because of his race. Qualification, she now believes, trumps pigmentation. Obama agrees; he’s trying desperately to transcend race to be regarded not as a black candidate but as the best candidate.

Since the two candidates for the Democratic presidential nomination agree that neither of them should be supported or opposed because of their race or sex, how can either of them or their party continue to support the state distributing benefits and burdens on the basis of race? If presidents shouldn’t be selected or rejected on the basis of race or sex, why should college freshmen? Why is the “without regard” treatment Hillary and Obama seek for themselves not good enough for everybody else?

Most of Taylor’s column is devoted to discussing, and praising, a new book by Stanford law professor Richard Thompson Ford, The Race Card: How Bluffing About Bias Makes Race Relations Worse. Most of Taylor’s quotes show Thompson brilliantly skewering liberals playing the race card, and I of course agree with these. I’m less impressed with what the two of them have to say to, or about, conservatives. Here’s Taylor:

Ford’s book has lessons (if not very new ones) for conservatives, too. He skewers simplistic claims that affirmative action is simply “reverse racism,” when in fact no one really believes that, and the impact on whites who lose out is a far cry from that of American apartheid on blacks. He also shows that conservatives’ color-blind-Constitution absolutism, no less than liberals’ “rhetoric of bias,” detracts from the “cool-headed cost-benefit analysis” that should help shape our legal definitions of prohibited discrimination.

In my view, Ford tends to underestimate the social costs of preferences for minorities over much better qualified whites. But he is right to focus on real-world impact instead of moral absolutes.

I completely agree that affirmative action is not “simply ‘reverse racism,’” and its impact on whites who suffer its discrimination is not equivalent to what blacks suffer from segregation and racism. But…. I haven’t read Thompson’s book, yet (I will), and he may mention something that Taylor does not say here: affirmative action/racial preference is not “reverse racism,” but it does reinforce a racist assumption that blacks are not capable of competing successfully unless they are given preferential treatment, along with reinforcing the equally offensive suspicion that all successful blacks owe their success to preferences they received.

In addition, I completely disagree with Taylor’s, and apparently Thompson’s, belief that the standard that should be used in evaluating an allegedly discriminatory policy is its “social cost” or “real world impact,” not whether or not it treats some people better and others worse simply because of their race.

Among the problems I have with their pragmatic approach to defining and enforcing rights is that it requires an essentially legislative, balancing of interests approach to determining rights. Reasonable people can of course differ over how broad or narrow the right to be free from racial discrimination is, but I don’t believe that determination should be made by weighing the “social costs” or “real-world impact” of the alleged discrimination. We do, after all, have a Constitution that places rights, whatever they are, out of reach of legislatures weighing the costs and benefits of enforcing them.

Nor do I think of my position as being based on “moral absolutes” so much as on political, social, and constitutional absolutes, although I freely admit that I am far more comfortable with absolutes than is the school of pragmatic liberalism to which Taylor and Thompson seem to belong. As I have explained, or attempted to explain, at much greater length here, I think it is just as imperative for the government (state or federal) to refrain from preferring Protestants over Jews or Baptists over Catholics as it is for it to refrain from preferring whites over blacks or Hispanics over Asians, and for largely the same reasons. Not so much, or not only, because the Constitution bars religious preferences, but because the very constitution of our society (the source of the Constitutional provision) requires it.

My support for prohibitions against both religious and racial preferences is thus not based on a moral absolute so much as a social absolute. Our reality, throughout our history, as a multiracial, multi-ethnic society that comprises many religious sects requires that all the constituent races and religions be treated equally and neutrally in order to protect “the domestic tranquility.” Government favoritism among them has led and would and will predictably and inevitably lead to social strife.

Since this is not a moral absolute, note that other countries, with different societies and different histories, can have an established, state-supported religion and be both clearly moral and clearly democratic.

But our country can’t, at least not without rejecting the lessons of its history and violating its core values.

ADDENDUM

Roger Clegg emailed the following comment, which I add with his permission:

Stuart Taylor is always worth reading, and this week’s column is no exception. Of course, the REAL problem facing the African American community in 2008 is neither racism, nor “class hierarchy,” nor “capitalist markets” (Jeez Louise, pardon my French)—it is culture, most particularly the fact that 7 out of 10 African Americans are born out of wedlock. You name the social problem—crime, substance abuse, doing poorly in school, dropping out of school, etc.—and it correlates with growing up in a home without a father. And it is hard to ascribe this problem to past injustices, since the gap between white and black illegitimacy rates really started to widen just about the time that Jim Crow started to die. I wonder if Ford talks about illegitimacy in his book. If he doesn’t, then it’s Hamlet without the prince.