Reply To Response To Additional Thoughts Re Randall Kennedy Review

Over the past several days I’ve posted additional thoughts following my review of Randall Kennedy’s new book, FOR DISCRIMINATION: RACE, AFFIRMATIVE ACTION, AND THE LAW. More recently I’ve been carrying on an email discussion with an old law professor friend who defends Kennedy’s dumping the non-discrimination principle (because it has not eradicated racial disparities) and asserting that legal colorblindness is ahistorical and otherwise indefensible. Below is my latest reply, slightly edited.

Although I’m fond of saying that my memory’s still so good I can’t recall the last time I forgot anything, in fact I had intended but forgot to comment on one of your first recent points to me:

I still think that there is no good reason for courts to impose an ahistorical and ultimately philosophically indefensible notion of “___-blindness” (in this case “color”) 

By now you will not be surprised to hear that I have an old (July 1, 2002) long post, Separation of Race and State, strongly (whether successfully or not only others can judge) disagreeing with the argument that colorblindness is ahistorical. The principle may well have been honored more in the breach than in observance, but it is definitely rooted deeply in our history. In a discussion of “race and sects” I argue at some length that colorblindness — the “without regard…” non-discrimination principle — is to race what separation of church and state is to religion and requires official neutrality for the same reasons, reasons that are not abstract moral preferences but in fact derive from and have been dictated by our history. The multiplicity of sects required not only toleration but official neutrality; the Constitutional principle is thus not an a priori moral preference but  derives from the small “c” constitution of American society.
Excerpt from long post:

Toleration developed not because it was valued but because it was necessary. “Freedom came to the Western world,” wrote Reinhold Niebuhr, one of our greatest theologians, “by the inadvertence of history. Toleration was an absolute necessity for a community which had lost its religio-cultural unity and could find peace only if toleration and freedom were accepted.”

America discovered, however, that toleration alone was not sufficient. Strict neutrality was also required, a prohibition against the state favoring any of the contending sects. As Justice Hugo Black wrote in Zorach v. Clauson (1952), “it is only by isolating the state from the religious sphere and compelling it to be completely neutral that the freedom of each and every denomination and of all nonbelievers can be maintained.” Or as the Court held in Abingdon School District v. Schempp(1963), “the government is neutral, and, while protecting all, it prefers none.”

But if the very structure of American society requires a principle of neutrality that in turn requires a separation of church and state … , should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time “ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history.” (POST-ETHNIC AMERICA, Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as “divisive” today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.

It makes no more sense to scrap the non-discrimination principle because it has not leveled the racial playing field than it would to scrap the separation of church and state because that principle has not prevented minority religious sects from remaining minority religious sects — Episcopalians are still richer and more powerful and have higher SATs than Jehovah’s Witnesses, etc.
George Will linked these two principles in his recent column on Schuette:

Could there be a “political-restructuring” objection to the First Amendment? Because it proscribes “establishment of religion,” people who favor an established church cannot simply lobby Congress to create this, they first must undertake the burdensome task of amending the Constitution. So, is the First Amendment a constitutionally dubious restructuring of the nation’s political process?

Or the Civil Rights Act, for that matter.

It’s easy to ridicule the BAMN/political restructuring argument, as Will does in that column (and as the Ninth Circuit did in throwing it out), and indeed as I have done, but I’ve come to think that doing so is a mistake. The argument against Prop. 209 and Michigan’s Prop. 2 may be preposterous, but it must be taken seriously because it is a perfect expression of modern liberal race theory, the essence of which is that the “without regard” non-discrimination principle discriminates against minorities — because at worst it causes and at best it leaves undisturbed various disparate impacts (of something).

Say What? (4)

  1. awwriting October 14, 2013 at 9:40 am | | Reply

    A strict “ahistorical” criteria for the law has several other implications, which I assume the professor neglects:

    1) White as a category is ahistorical, since it ignores different treatments of different “White” groups. Irish, Jewish, Italian, Middle-Eastern, Mormon, and others have different experiences that a “White” classification ignores ahistorically.

    2) A law that privileges “Latino” as a group is ahistorical, since it ignores distinctions between White Spanish and Portuguese conquerors and their former slaves and their assaulted indigenous populations. “Latino” privileges quarter-Spanish persons such as Charlie Sheen (“Carlos Estevez”) as much as a black Mexican descendant of slaves.

    3) “Black” is ahistorical, since it ignores the distinction between descendants of American slaves and new immigrants from Africa or other countries.

  2. CaptDMO October 14, 2013 at 11:34 am | | Reply

    Wow, Apparently Randall Kennedy is the gift that keeps on giving.
    Not your job but, are there OTHER respectable folks, of equally suitable credentials, submitting academic peer review to Mr. Kennedy’s um…thesis?

    Please, PLEASE don’t send us to Inside Ed.!(Or “wiki”)

  3. CaptDMO October 14, 2013 at 11:35 am | | Reply

    *sigh* “…send us to Inside Ed., on THIS one!”

  4. Federale October 17, 2013 at 2:58 pm | | Reply

    What Kennedy really does is admit that blacks and Hispanics are inferior to whites and Asians. That is the reason that color blindness failed. Blacks and Hispanics will never be equal because Kennedy realized that they are inferior.

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