Reversing Discrimination

Equality Transformed: A Quarter-Century of Affirmative Action, by Herman Belz, New Brunswick: Transaction Publishers, 320 pages, $32.95/$19.95

Civil Rights Under Reagan, by Robert Detlefsen, San Francisco: ICS Press, 237 pages, $24.95

Racial Preference and Racial Justice: The New Affirmative Action Controversy, edited by Russel Nieli, Washington, D.C.: Ethics and Public Policy Center, 532 pages, $25.95

Reflections of an Affirmative Action Baby, by Stephen L. Carter, New York: Basic Books, 286 pages, $23.00

Amidst all the bright prospects that Alexis de Tocqueville beheld in Democracy in America, he could see that race—especially the destiny of the black race—would prove to be the great stumbling block of American democracy. The racial question was "the most formidable evil threatening the future of the United States." Not only did Tocqueville doubt that blacks and whites would ever live on a footing of equality anywhere in the world; he also thought "that the matter will be still harder in the United States than anywhere else." The law can be changed, but more difficult to change are the mores of the people.

The goal of a harmonious pluralism rooted in the American proposition about natural right—the "self-evident truth" that "all men are created equal"—is in a sense unnatural. It is an attribute of human social behavior that different kinds of people prefer their own. The preference for one's own, combined with the fear of others and the inherent competition for scarce economic resources, provides the natural basis for racial, ethnic, and religious rivalries. A regime dedicated to individual liberty will likely find incongruous the task of getting the races to mingle voluntarily, notwithstanding a central commitment to equal rights.

America, more than any other regime, takes seriously the idea of the law as teacher. The Civil Rights Act of 1964 can be viewed both as the culmination and the reinforcement of the deepening influence of the principle of equal rights. The act reflected the progress of America and was intended as the crucial stepping stone for further substantial progress in achieving America's goal of a colorblind society. Our brightest statesmen have held no illusions about how fast and how far this goal might be realized. Recall Lincoln, who spoke of the "deepening influence" the principle of equal rights would have on America over time, even though it would be "never perfectly attained."

Conservatives and libertarians disagree vigorously about whether the Civil Rights Act is consistent with the principles of limited government. (Can government rightly seek to regulate—or forbid—private discrimination?) But most believe, as Herman Belz argues in Equality Transformed, that the Civil Rights Act was consistent with the principles of individual natural rights and equality before the law. The well-known problem, which Belz painstakingly recounts, is that the judiciary has inverted the plain meaning of the Civil Rights Act and imposed race-conscious preferential policies.

Harvey Mansfield observes in his contribution to Racial Preference and Racial Justice that it may be possible to impose perfect justice, but that people may not be in a mood to live together when you are finished. Mansfield is merely echoing Tocqueville, who wrote that "some despot…might perhaps force the races to mingle." The judiciary has arguably become Tocqueville's despot, imposing policies that lack the political legitimacy of those that have been generated through the deliberation of the legislative process.

It is not so much that civil rights law has tried to push people too far, too fast, as it is that affirmative action has advanced in a clandestine and underhanded way toward a redistributive goal that a majority of Americans reject. Preferential treatment obviates the language in the Civil Rights Act expressly forbidding quotas and preferential treatment. (Justice Antonin Scalia remarks in one of his dissents that the Civil Rights Act is written with "a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship.") This lack of political legitimacy has contributed mightily to making affirmative action the most explosive issue in American politics today, and has, if recent opinion polls are a reliable guide, actually undermined the moral authority of the civil rights movement.

The controversy over affirmative action has rendered the inherently difficult topic of race even more difficult. Stephen Carter, a professor of law at Yale, notes in his Reflections of an Affirmative Action Baby that not only is it hard to hold an honest conversation about affirmative action, it is even hard to hold an honest conversation about the reasons why it is hard to talk about affirmative action.

Because affirmative action lacks political legitimacy, its supporters have an interest in avoiding a straightforward debate about it. In part this must be because they know that preferential policies are inconsistent with the American principles of equality before the law, and that a vigorous debate would expose this contradiction. Hence the defense of affirmative action, as Carter observes, has "slipped its moorings," shifting from an argument about corrective justice and equality to an argument about "diversity." Affirmative action is necessary, the new argument runs, to provide representation for the "points of view" of excluded groups. This makes it easier to level the charge of racism, and all the other new "isms" of the moment, from the plausible sexism to the implausible "ageism." What? You oppose affirmative action? You must be a racist or sexist, for to oppose affirmative action is to oppose "diversity."

This development Carter views with great alarm, since its premise is that skin color determines, or should determine, what views a person of each given color and ethnicity should have. This view not only reinforces stereotypes; it requires stereotypes. Blacks who do not toe the "party line," as Shelby Steele has put it, are branded as "traitors" by civil-rights leaders, because their true diversity of views calls into question the premise behind the "diversity" brigade. (Steele, a professor of literature at San Jose State University, was among the first black liberals to dissent on affirmative action, in his 1990 book The Content of Our Character.)

Carter is taken aback, for instance, by NAACP Executive Director Benjamin Hooks's reference to Glenn Loury's views as "treasonous," and he devotes a great deal of time discussing Clarence Thomas and his nomination to the U.S. Court of Appeals for the D.C. Circuit. (The book was published before Thomas was named to replace Supreme Court Justice Thurgood Marshall.) Carter notes that Thomas's "principal sin" was combining black skin with conservative views. For black groups to have opposed Thomas for the Court of Appeals, Carter argues, "would have been reverse discrimination with a vengeance."

The self-censorship of the affirmative-action debate swings both ways, however. Opponents of affirmative action also tend to avoid straightforward discussion of the issue. There are several reasons for this. They are, of course, afraid of being called racist.

But more significant is that a basic trend of modern American politics—interest-group liberalism—offers easy encouragement to avoid dealing with the issue on a fundamental level. Modern American politics has practically ceased to debate any issue on the level of fundamental principle, preferring instead the comfortable give-and-take servicing of constituency-group demands.

Hence, even many conservative Republicans would rather strike some kind of deal on civil rights than engage in a candid debate that would reveal the deep and serious divisions within American society over the principles of equality of opportunity versus equality of result. (One of the virtues of Belz's book is its account of how the Nixon administration actively expanded the use of quotas and preferential treatment, hoping for political advantage among blacks, even as Nixon gave speeches condemning quotas.)

It is not a coincidence that supporters of affirmative action would turn to the diversity argument. It represents, in a profound sense, the reductio ad absurdum of interest-group liberalism. When government organizes itself to minister to discrete special-interest groups (farmers, retirees, defense contractors, exporters, and so forth), we should not be surprised when "discrete and insular minorities" (the designation repeatedly used by the judiciary starting with the Carolene Products case in 1938) step up to the table for their share of the pie. But interest-group liberalism is especially ill-suited to the politics of race because it legitimizes exactly the kind of racial spoils system that the American principle of equal individual rights stands against.

To be sure, some political systems try to solve racial and ethnic problems by taking explicit account of race and ethnicity, dividing political power according to some proportional formula. But woe unto the nation—Lebanon and Yugoslavia today, India, perhaps, tomorrow—where this balance comes apart. Some cultures are open to the possibility of assimilation. The American experiment—the "melting pot"—rests on a higher principle. As with the principle of religious liberty (which is above and distinct from mere religious toleration), the American solution to the problem of race and ethnicity transcends mere assimilation by pointing to universal principles of individual rights which all men are bound to respect.

Affirmative action and the diversity argument, then, represent a repudiation of the American principle of equality. And in the end that repudiation will be as harmful to minorities as to society as a whole. Belz concludes that "the struggle to define American equality will determine whether the United States will remain a free society." A debate of this kind must be joined at a fundamental level. Opponents of affirmative action will succeed in a positive reform—instead of merely exploiting racial resentment in the manner of Jesse Helms's notorious television commercial about a white losing a job on account of a minority quota—only by reclaiming the moral high ground on the basis of equal individual rights. A principled rhetoric of equality would not only put an end to preferential policies that treat equal people unequally but would also rescue civil rights from its present course of becoming an explicit racial spoils system.

The Reagan administration attempted with only mixed success to move in this direction, and this attempt is well narrated in Robert Detlefsen's Civil Rights Under Reagan. That attempt, of course, faced strong political opposition. But Detlefsen also describes how big business—a supposed bastion of Republican sentiment—vigorously resisted the administration's efforts to eliminate affirmative action.

Big business has learned to live with quotas, and feared, with justification, that the elimination of government-mandated quotas would expose employers to disparate-impact liability on the one hand, or reverse-discrimination liability on the other. But there is another, even lower rationale for this craven position: Affirmative action is anticompetitive. Smaller firms have more difficulty complying with federal affirmative-action requirements.

These difficulties aside, both Detlefsen and Belz make clear that a real deficiency of the Reagan administration's approach to civil rights was its failure to articulate clearly and forcefully the principle of equality and individual rights. The administration failed as well to articulate a positive vision of how a genuine regime of equal rights and economic liberties (the true basis of equal opportunity) would benefit minorities—a failure that was strongly criticized by among others, Clarence Thomas.

Belz, Detlefsen, and the authors on both sides of the question collected by Nieli do a thorough job of exposing the political and legal morass affirmative action has become. The debate will ultimately be settled in the political and legal arena. But political and legal analysis is not fully sufficient for thinking about the issue. There is a social and cultural dimension that must be treated as well.

Carter's very thoughtful Reflections of an Affirmative Action Baby adds this much needed perspective. Carter opens this forthright and personal book by declaring that he got into law school because he is black. Although he supports affirmative action, he is clearly aware, from his own experience, that it attaches a stigma to its beneficiaries. As a policy matter, affirmative action targeted at would-be professionals in the black middle class benefits those least in need of help. Carter senses a shakeout is coming, with the end of affirmative action near—an end he would seem to welcome.

Otherwise, Carter sees the strong possibility that civil rights will lose the moral high ground as a result of the pernicious "diversity" gambit. The erosion of standards in the name of diversity will hurt all minorities in the end. He agrees with the critics who believe racism is an overused and often irresponsible term, analogous to the use of communism as a term of opprobrium in the 1950s.

In the end, Carter agrees with Shelby Steele that racism is a receding force in America, still present, but "no longer the all-encompassing force it once was, and it no longer holds the entire black race in desperate thrall." Carter knows he is likely to be labeled a "black conservative," a label he considers the ultimate stigma, indistinguishable from the lunatic fringe. He goes to great lengths to establish his liberal bona fides—he favors higher taxes and opposes the death penalty—but he senses that his protests will be to little avail.

At other points, his honest open-mindedness gets the best of him. He says perhaps we should try school choice, and he embraces the libertarian view that, at least in the professions, market forces will over time punish the willfully discriminating employer. Equally important, Carter takes seriously the views of black conservatives such Thomas Sowell, Glenn Loury, and especially Clarence Thomas, and he devotes no amount of effort offering advice to conservatives and Republicans on how to treat civil-rights issues more effectively. His most important point is that blacks hold their destiny in their own hands and must commit themselves to achieve any standard, thereby becoming "simply too good to ignore."

Carter stakes out a much needed moderate position between those who would exploit affirmative action politically by inflaming racial resentment and those in the civil-rights establishment who wish to maintain the political utility of racism by expanding its definition to justify huge new remedial claims. It may be, as Carter writes and Tocqueville thought, that "the minefield of racial politics is far too difficult to negotiate." But we have come a long way from Tocqueville's fear that the legacy of slavery could only issue in open racial warfare. Lincoln spoke of "the better angels of our nature." The issue of race relations and civil rights will require a full measure of "the better angels of our nature" if we are to continue on our way toward a colorblind society.

Contributing Editor Steven Hayward is director of the Claremont Institute's Golden State Center for Policy Studies in Sacramento.