Color Blind

David E. Bernstein from the May 1996 issue

The New Color Line: How Quotas and Privilege Destroy Democracy , by Paul Craig Roberts and Lawrence M. Stratton, Washington, D: Regnery, 247 pages, $24.95

The New Color Line: How Quotas and Privileges Destroy Democracy is a provocative but frustrating book. The heart of the book is a well-researched history of how civil rights litigation and legislation ultimately led to today's ubiquitous racial quotas and preferences. No boring academic tome, The New Color Line is well-written and concise. It is likely to be the leading conservative study of affirmative action for some time.

But even though the book is often insightful, it suffers from many of the flaws typical of conservative critiques of affirmative action. First, the authors fail to acknowledge at appropriate points America's history of oppression of racial minorities, particularly blacks. Second, the authors never discuss what would replace affirmative action. Third, the authors exhibit some confusion as to why they o ppose affirmative action. Is it, as the title of the book implies, because affirmative action "destroys democracy"? Or is it, as the authors sometimes suggest, because affirmative action creates special privileges that destroy the liberal order? Or perhaps, as the authors argue in one chapter, civil rights laws that apply to private parties violate individual liberty, whether or not they are accompanied by racial preferences.

Paul Craig Roberts and Lawrence M. Stratton initially focus on the argument that affirmative action subverts democracy. According to the authors, the assault on democracy began with the 1944 publication of Swedish economist Gunnar Myrdal's treatise on the state of black America, An American Dilemma. Myrdal's book, a true masterpiece bec ause of the prodigious research effort that produced it, put the neglected issue of the outrages suffered by black America in the forefront of the liberal agenda. But the book concluded on a pessimistic note: As a practical matter, segregation was too popu lar to be ended democratically.

Roberts and Stratton vigorously dispute this point, and contend that segregation was on its way out through democratic processes by the late 1940s. That may be true, but the authors fail to recognize that from Myrdal's 1944 perspective, America's recent history with regard to racial and ethnic minorities gave him no cause to be sanguine.

In addition to the day-to-day apartheid faced by blacks in the South, Japanese Americans were imprisoned in military internment camps; American Indians were, for lack of a better term, still being oppressed on their reservations; Chinese Americans were forbidden to marry whites in California, Oregon, Idaho, and other states; and the United States government, refusing to fill even the pitiful Eastern European quotas allowed under the discriminatory 1924 Immigration Act, was keeping its doors firmly closed to Jewish refugees from the Nazi genocide.

Roberts and Stratton do, however, present a persuasive case that An American Dilemma influenced the Supreme Court's decision to ban public school segregation in Brown v. Board of Education in 1954. The authors argue that Brown was a serious mistake for two major reasons: It retarded the democratic process, which would ultimately have resolved the segre gation issue; and it was in clear conflict with the intentions of the framers of the 14th Amendment, who never would have dreamed that the Equal Protection Clause banned school segregation. Ultimately, according to the authors, Brown discredited both democracy and strict adherence to the Constitution among judges and legal scholars.

But the emphasis on Brown's anti-democratic tendencies begs the question of whether the South, especially the Deep South, was truly democratic before the Voting Rights Act was passed in 1965 and the black masses finally were able to exercise the franchise. In fact, Roberts and Stratton never consider this issue.

Moreover, the United States is not a democracy but a constitutional republic. The authors give short shrift to legitimate arguments--admittedly not made by the Supreme Court in Brown--that school segregation was a violation of the 14th Amendment's Equal Protection clause. The concept of equal protection, properly understood, dates back to the Jacksonian era and beyond. Ac cording to this tradition, "class legislation" favoring one group of citizens over another is prohibited.

School segregation as practiced by the Southern states was clearly class legislation favoring white children over black children. The Supreme Court could not rely on the anti-class legislation tradition in Brown, however, because during the Roosevelt era the Court had rejected it in favor of a policy of judicial restraint. On the other hand, a heavy dose of Myrdal--along with postwar revulsion at Nazi Germany's racial policies and the Cold War imperative of improving America's image abroad--persuaded the justices that state-sponsored segregation had to be ended immediately. The upshot was Brown, correct in its result but incoherent from a legal standpoint. The authors note that Brown quickly became a liberal icon, giving judges the authority and confidence to engage in judicial activism regarding racial issues. Nevertheless, the authors exaggerate the case's significance when they claim that Brownled to "rule by judges."

That dubious honor belongs to the relatively obscure case of Shelley v. Kraemer, decided by the Supreme Court in 1948. In Shelley, the Supreme Court held that court enforcement of racially discriminatory restrictive covenants violates the Equal Protection Clause. This ruling came despite the undisputed fact that any American citizen, white or black, had the equal right to make and enf orce a racially restrictive contract. What the Court found objectionable was not discriminatory government action, but private discriminatory preferences. Shelley marked the beginning of the emergence of civil rights as an aggressively statist ideology. By the early 1960s, the primary goal of liberal judicial activists had shifted from Brown's emphasis on obliterating state-sponsored racism to Shelley's emphasis on conquering de facto segregation and private discrimination.

In 1965, influential United States Court of Appeals Judge Skelly Wright argued in favor of a judicially imposed merger of urban and subur ban school districts, regardless of whether there was any evidence of intentional discrimination by school authorities. The purpose of this proposal was to overcome de facto public school segregation arising out of residential patterns in the private housi ng market. The scope of Wright's proposal is breathtaking. Not content with mere integration, Wright argued that each school in the merged districts must have a proportionate distribution of black and white students.

Wright's plan makes the judicial abuse s that Roberts and Stratton cite--limited intra-city busing, federal takeover of the Kansas City school system--seem quite timid by comparison. Perhaps the real story is not that Americans are ruled by judges, but that we barely escaped absolute judicial c ontrol. In 1974, four of the nine justices on the Supreme Court voted to require states to merge their urban and suburban school districts. Had Hubert Humphrey been elected in 1968, the Supreme Court would have had three extra liberals and would likely hav e implemented Wright's scheme.

While judges have exercised only limited control over American life, civil rights laws have intruded dramatically on civil society, beginning with the 1964 Civil Rights Act, which prohibits discrimination in the public and private sector. In discussing the Civil Rights Act, Roberts and Stratton briefly abjure democracy and turn libertarian. Although they never explicitly oppose the act, the authors condemn its restrictions on private behavior for violating freedom of conscien ce. They applaud the prescience of Milton Friedman, Robert Bork (who has since recanted), and Barry Goldwater, all of whom opposed applying civil rights laws to cover private discriminatory behavior, but supported restrictions on discriminatory state action.

Roberts and Stratton point out that "Goldwater was an integrationist, but he appreciated the distinction between public and private that the preoccupation with quotas had obscured." Ironically, the authors' own preoccupation with quotas obscures any fur ther discussion of the public-private distinction in The New Color Line, and the libertarian tone of the chapter on the Civil Rights Act soon vanishes.

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