No CrossRef data available.
Article contents
Black and White Together: A Reconsideration
Published online by Cambridge University Press: 13 January 2009
Extract
Principled discussions of civil rights became inherently less likely as a direct result of the observation by Earl Warren, in Brown v. Board of Education, that, respecting freedmen, “Education of Negroes was almost non-existent, and practically all of the race were illiterate,” and in proportion as that observation increasingly became the foundation of common opinion on the subject. Warren's observation was not true in any meaningful or non-trivial sense. Nevertheless, it served to perpetuate the myth of a backward people needing help to catch up instead of the truth of a people being held back. That is the perspective – the disadvantaged group perspective – that ultimately infected all discussion of civil rights, even after the designation of so-called “disadvantaged groups” had been extended beyond American blacks.
To define civil rights, we may well begin with what all mankind would likely recognize. Thus the dictionary definition of “civil rights” stands: “the rights that belong to all individuals in a nation or community touching property, marriage, and the like.” In that definition the term “rights” may be further expanded to mean “legitimate claims,” following the definition of right as law – as “a claim or title or interest in anything whatever that is enforceable by law.” This definition applies with minimal distinction of regimes intruding and, therefore, without the host of recent complications in the United States that create the impression that civil rights have something to do with pluralism. Previously, the generic definition was thought to exhaust the meaning of the term in the United States.
- Type
- Research Article
- Information
- Copyright
- Copyright © Social Philosophy and Policy Foundation 1991
References
1 347 U.S. 490.
2 Funk & Wagnall's New Standard Dictionary of the English Language, 1946.
3 James Wilson, Works, ed. James DeWitt Andrews (Chicago: Callaghan and Company, 1896), vol. 2, p. 426.
4 Calder v. Bull, 3 Dall. 386.
5 One may imagine that the impartial administration of justice is sufficient to every such hypothetical. In that sense, Johnson's refinement of the definition would amount to a rejection of Wilson's anticipation of honest government. It stands on a theory of democracy that denies the claim to establish a “government of laws.”
6 For example, consider an experiment with a collection of marbles, differently colored in given proportions but otherwise identical, rolled out in a single cast. The marbles as a whole will distribute themselves in a normal (bell-shaped) curve. The different groups of colored marbles, however, will not be evenly distributed across the distribution. The probability that they would do so on any given cast is remote. Nevertheless, over an infinite series of such casts (with a two-dimensional analysis, that is), they would approximate such a normal curve. This experiment suggests that the assumption that human beings, in groups alpha through omega, will distribute themselves across activities or fields a through z in a random pattern approximating for each group a normal distribution within each activity for each single iteration, absent discrimination, is wholly unwarranted. Nevertheless, this very assumption is the theoretical foundation of all civil rights policy in our time. A different but cognate observation is made by Thomas Sowell in his essay, “By the Numbers”, Polity Review, Winter 1982 [reprinted as Hoover Institution Reprints No. 49]. Sowell focuses here, as elsewhere, on the problem of indeterminacy; that is, our general inability to assess adequate causal evidence to determine the particular outcomes in given social distributions. My point is rather a methodological consideration, for which purpose it must be assumed – as the marble example permits – that determination is complete. Given that, it still remains that random distributions cannot be expected, one by one, to recreate general population patterns.
7 Compare n. 24 and n. 42 below.
8 Congressional Record – Senate, February 7, 1990, S-1018ff.
9 City of Richmond v. Croson, 57 U.S.L.W. 4132.
10 427 U.S. 160 (1976); compare Allen, W. B., “Let's Re-Do Runyon: Questions to Guide Justice White,” Rutgers Law Review, vol. 41, no. 3 (1989), p. 893.Google Scholar
11 Patterson v. McLean Credit Union, 109 S.Ct. 2363 (1989).
12 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). “These cases from (Missouri and Michigan) were successful challenges to judicial enforcement of the once widely used practice of restrictive covenants – agreements among property owners to exclude persons of designated races. In the Missouri case, for example, a 1911 agreement signed by 30 out of 39 property owners in the area restricted occupancy for 50 years to persons of ‘the Caucasian race’ and excluded ‘people of the Negro or Mongolian race.’ The petitioners in these cases were blacks who had purchases houses from white owners despite the racially restrictive covenants. Respondents, owners of other properties subject to the terms of the covenants, sued to enjoin black purchasers from taking possession of the property and to divest them of title. The state courts granted the relief.” The United States Supreme Court reversed. Gunther, Gerald, Individual Rights in Constitutional Law, 4th ed. (Mineola: The Foundation Press, Inc., 1986), p. 543.Google Scholar
13 347 U. S. 483 (1954).
14 392 U. S. 409 (1968).
15 271 U. S. 323–331 (1926).
16 Shelley, 334 U. S. 10, emphasis added.
17 Shelley, 334 U. S. 11, 13, 12; Buchanan v. Warley, 245 U. S. 60, 79 (1917) and Harmon v. Tyler, 273 U.S. 668 (1927).
18 109 U. S. 3.
19 100 U. S. 339, 347 (1880); Shelley, p. 14.
20 Shelley, 334 U. S. 22; the first section of the Fourteenth Amendment reads: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
21 Compare Loving v. Virginia, 388 U. S. 1,2 (1967), in which the Court mistakenly claimed that this “constitutional question” had never before been presented to the Court. Only the fact situation, disguised as statute-relevant, had not been previously addressed.
22 Bolling v. Sharpe, 347 U. S. 497 (1954).
23 In the 1989 term, the Court gave itself a renewed opportunity to exploit Shelley's full potential by binding over for reargument this apparently innocuous case, precisely for the purpose of reconsidering its Runyon opinion.
24 See the fuller discussion of a path the Court might have followed in my essay, “Let's Re-Do Runyon: Questions to Guide Justice White”
25 109 S.Ct. 2115 (1989).
26 109 S.Ct. 2261 (1989).
27 109 S.Ct. 2180 (1989).
28 Wygant v. Jackson Board of Education, 106 S.Ct. 1842 (1986).
29 Days, Drew S., III, “Fullilove,” Yale Law Journal, vol. 96, no. 3 (1987) pp. 453–85.CrossRefGoogle Scholar This very interesting essay makes the point that the Court had been too gullible when, in 1971, it accepted Days's brief on behalf of the congressionally ordered racial set-asides defended in Fullilove. His theory was that ultimately such blanket approval would lead to a general undermining of affirmative action by inviting abuses in states and municipalities. Reminding his readers of the strenuous effort it took to get the Court to hold states and municipalities to a standard of “strict scrutiny” in the first place, Days reasoned that it would be a long-range advantage to retain that perspective, even in dealing with supposedly benign discriminations on the part of states and municipalities. Finally, he warned, the failure to do so would surely mean that an eventual abuse in states and municipalities would erode confidence in such affirmative action measures altogether, thereby removing them as well from the panoply of federal remedies.
30 Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).
31 Originally adopted by the Court in 1938 in United Slates v. Carolene Products Co. [304 U.s. 144], this theory maintains that the Court is required to show special solicitude for the rights of minorities inasmuch as one could not expect majoritarian political institutions to forward their interests. The Court promised, accordingly, that while it would show decreasing alertness to public abuses of economic liberties, it would exhibit increasing vigilance to sniff out “prejudice against discrete and insular minorities.”
32 108 S.Ct. 277 (1988). The chief contribution of this plurality decision was to add to the list of objective factors, such as standardized tests, that might have a disproportionately negative effect upon minorities, the kinds of subjective practices that had been thought theretofore to be safe from “disparate impact” review and to that extent less likely to figure in class-based litigation. A general conceptual model for distinguishing “disparate impact” and “disparate treatment” would be to regard the former as that theory whereby some methodology is generally regarded as producing an impermissible discrimination without raising any question of the intentions of the employer or responsible party. Disparate treatment cases, on the other hand, almost require the additional step of alleging discriminatory intent; such intent must, at a minimum, constitute a strong inference. Each type of litigation may in fact involve statistical demonstrations and also affect classes rather than individuals alone, but only recently has it seemed viable to raise such practices as interviews and other subjective practices in disparate treatment cases.
33 Relevant precedent for disparate impact analysis is found primarily in the following cases: Griggs v. Duke Power Company; Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975); Dothard v. Rawlinson, 433 U. S. 321 (1977); New York City Transit Authority v. Beazer, 440 U. S. 568 (1979); and Connecticut v. Teal, 457 U. S. 440 (1982).
34 A district court judge in Birmingham has challenged the prevailing understanding, as well as the wisdom, of discouraging litigation and truncating constitutional guarantees, such as the right to jury trial. Beesley v. Hartford Fire Insurance Co. may begin a period of reappraisal.
35 For instance, for employees who work for employers having fifteen or more employees.
36 Johnson v. Transportation Agency, Santa Clara Cty., Cal., 107 S.Ct. 1442 (1987). Johnson and the woman, Joyce, competed for a road dispatcher position with the transportation agency. The position was awarded to Joyce, despite Johnson's having survived the evaluation with a preferred recommendation. The County, accounting for its decision when challenged by Johnson in a lawsuit, responded that Joyce was preferred on affirmative action grounds.
37 The “Civil Rights Restoration Act of 1988” is only the most obvious example, rewriting as it did the statutory interpretation of the Court's decision in Grove City v. Bell, 465 U.S. 555 (1984). The Court had maintained that Title IX of the “1964 Civil Rights Act” applied only to the specific college program that discriminated on the basis of gender, rather than to the entire college.
38 Richmond v. Croson.
39 Plessy v. Ferguson, 163 U.S. 537 (1896).
40 Fullilove v. Klutznick, 448 U.S. 448 (1980). A premature and too-little-thought-through attempt to revise this landmark decision was attempted in the spring of 1990 in Metro Broadcasting v. FCC, 58 U.S.L.W. 5053. The question tested was whether federal racial preferences in the awarding of broadcast licenses do not impermissibly discriminate against whites. In one of his final majority opinions, Justice William O. Brennan wrote for a 5–4 majority that “It is of overriding significance in these cases that the FCC's minority-ownership programs have been specifically approved – indeed mandated – by Congress.” The good news of this decision was that it found Justices O'Connor and Kennedy united in declaring that the United States has “one Constitution, providing a single guarantee of equal protection… to all citizens.”
41 Compare my discussion in the essay, “A New Birth of Freedom: Fulfillment or Derailment,” esp. pp. 79–80, and 85–86, in Slavery and Its Consequences: The Constitution, Equality, and Race, eds. Goldwin, Robert A. and Art, Kaufman (Washington: American Enterprise Institute, 1988).Google Scholar
42 Compare note 24 above. The argument that a robust contract scheme would license discrimination gives too little credence to the notion that certain contracts are ruled beyond the pale from the beginning. Yet this is not a novel theory. We do not enforce contracts for murder; we punish such contracts even in the case that nothing more than the contract has been executed. The willingness to distinguish rightful from impermissible contracts gives even greater scope to the regulation of conduct by rightful contracts. Persons will naturally divide their activities into those they are unwilling to undertake without an enforceable contract (and therefore on a non-discriminatory basis) and those regarding which they do not find a contract reassuring. Surely, it will pose no burden for society to establish that same line of division respecting discrimination, regarding as impermissible only that discrimination that cannot attain its end without relying on the common force of society for the purpose.
43 The United States Commission on Civil Rights has correctly described the fallacy of that argument in its “Report of the United States Commission on Civil Rights on The Civil Rights Act of 1990,” July 1990. The authors show that “Settlement amounts represent a cost to defendants and a benefit to plaintiffs. On net, they represent neither a cost nor a [financial] benefit to society,” p. 71n.
44 One of the mysteries in the debate over racial preference is the clear decision by political conservatives in general to argue against preferences, not by reason of a defense of their own rights but rather on the spurious and paternalistic grounds of the harm racial preferences cause for the “disadvantaged.” There seems to be an unspoken and awkward embarrassment that inhibits white males above all from simply declaring, “I got my rights.” Indeed, I made this observation quite tellingly in a bastion of political conservatism in Washington, D.C. in 1989. Recommending that one pose the rights of white males rather than the spectre of quotas as the real issue in dispute, the response I drew consisted largely of personal abuse directed at me (in absentia) by a Republican Congressman who had drafted legislation inconsistent with the goal I had espoused, followed by the general publication and distribution of that abuse by the conservative think-tank involved, although it had not published my statement to which the response was directed. The message seemed clear to me: the strategy of avoiding the issue in the debate about civil rights had the highest blessings. I cannot help but believe, however, that that strategy is doomed to the failure that would have greeted die American Revolution if the Founders, instead of saying “The tax hurts!” had insisted instead on “India's need for trade!”
45 401 U.S. 424 (1971).
46 Congressional Record, p. 1021. Emphasis added.
47 109 S.Ct. 1775 (1989).
48 Since Title VII of the “1964 Civil Rights Act” provides protection only for employees of businesses with fifteen or more employees, all other employees must rely on the Reconstruction Era statutes for comparable protections.
49 This argument was set forth most persuasively by a gathering of legal and constitutional scholars, summoned to Cambridge, Massachusetts by Drew S. Days, III and other defenders of affirmative action. On March 30, 1989, this conference produced a “Constitutional Scholars’ Statement on Affirmative Action After City of Richmond v. Croson,” in which the participants announced, upon reflection, that although “some have recently argued that race-conscious remedies by local and state governments should be regarded as conflicting with the Constitution, [a]s long-time students of constitutional law, we regard this assessment as wrong.” What followed was not only a resounding defense of racial set-asides but also of federal government supervision of local and state recourse to that remedy (as provided in the article by Days). The signatories to this remarkable document were Judith C. Areen, Philip C. Bobbitt, Paul Brest, Denise Carty-Bennia, Jesse Choper, Peggy C. Davis, Drew S. Days III, Walter E. Dellinger III, Norman Dorsen, Christopher F. Edley, Jr., Yale Kamisar, Patricia A. King, Frank J. Michelman, Susan W. Prager, John E. Sexton, Laurence H. Tribe, James Vorenberg, Lee C. Bollinger, Barbara A. Black, Guido Calabresi, John Hart Ely, Herma Hill Kay, Gerald P. Lopez, Eleanor Holmes Norton, Robert M. O'Neil, Dean Rusk, Geoffrey R. Stone, and Cass R. Sunstein.
50 Diane, Bast et al., “Disadvantaged Business Set-Aside Programs: An Evaluation,” Heartland Policy Study, No. 26, June 29, 1989 (Chicago: The Heartland Institute).Google Scholar