Published September 22, 2003 in
FrontPageMagazine.com
Affirmative Action, Negative Justice
A few years ago, I was discussing the possibility of a piece for
National Review with Matthew Carolan, then an editor with the
magazine. I asked him if he would be interested in an essay
demonstrating the fundamental injustice of the concept now
inescapably known by the Orwellianism "affirmative action."
(Indeed, why not just call it the Grand Idea?)
Alas -- no sale. What
we really need, he explained, is something that shows how affirmative
action has been a total flop, how it has failed in this or that
respect -- i.e., a "pragmatic" (as opposed to moral)
argument. Ironically, the very next day, C-SPAN featured a speech by
Derek Curtis Bok, the co-author of The Shape of the River: Long
Term Consequences of Considering Race in College and University
Admissions. What struck me most was his observation that the
affirmative action debate was "as much about values as about
statistics."
I
would have thought that that's something on which everyone could
agree. The ongoing debate is the result, not of conflicting
interpretations of data, but of conflicting ideas of justice.
Which brings me to something else we can all pretty much agree on:
affirmative action is just -- if we're talking about "social
justice" as conceived by the Left from Rousseau to the latest
issue of the Nation. But the American conception of justice,
as embodied in the Constitution and our legal system, neither
originated with the Left not reflects its ideology, and it should be
the one by which affirmative action is judged -- by voters,
legislators, and (dare I say it?) even the Justices themselves.
Yet
it is precisely the currency of that rival conception (especially
among the theory class) that explains why affirmative action is even
still with us. Consider what has always been trotted out to prove
that affirmative action is a respectable "liberal" policy
and not merely reverse racism: President Lyndon Baines Johnson's
statement that "You do not take a person who for years has been
hobbled by chains and liberate him, bring him to the starting line of
a race and then say, 'You are free to compete with all the others'
and still justly believe that you have been completely fair."
Let's put aside the question of whether success in America is a
matter of "competition," where you get the trophy by
winning it away from others. If this analogy means anything
practicable, it's that affirmative action was supposed to be for the
"person who for years [had] been hobbled" by Jim Crow and
the other "chains" of socialist (i.e., statist) racism. But
what does it mean
today
for a black eighteen-year-old? By its
original logic, affirmative action should be an idea whose time has
long gone. It is only by shifting the focus from the black person as
a flesh-and-blood individual (the proper subject of our system of
justice) to the black "race" as an immortal, reified
collective that we still have this issue before us -- with
"reparations" in tow. And it is a shift that has not
occurred in a philosophic vacuum.
Perhaps
the foremost rationale for continuing affirmative action (whether the
government implements it in its own agencies, e.g., police hirings,
or forces it upon private businesses) is the contention that we must
strive to establish economic equality between races the way the
"earlier civil rights movement" established political
equality between races. This equivocation capsizes when it collides
with the fact that what our Constitution guarantees is freedom
(e.g., religion, speech, arms) to each and every individual,
irrespective of race, creed, etc. Thus, there is political equality
between races only because there is political equality between
individuals. In contrast, the Constitution doesn't guarantee
an income to anyone. To earn a living, different people (of all
races) work at different jobs that pay different salaries. There
is no economic equality between races because there is no economic
equality between individuals. What does it mean to demand that
blacks be given "equality with whites" when there is no
such "equality" between white ethnic groups (Jews vs. Poles
vs. Irish) or even persons within one group (Mr. O'Hara vs. Mr.
McArdle vs. Miss Shaughnessy)?
The
emphasis on collectives instead of individuals, the notion that
wealth is as much a right as freedom, the egalitarian
intolerance of any economic differences -- all these are the legacy
of Rousseau. They don't derive from Mr. Madison's document.
Almost
invariably, the economic equality defense is followed by: "And
the reality is, we still live in a race-conscious society and still
have tremendous discrimination." First, we should point out,
sadly but soberly, that there will always be some bigots the way
there will always be some pedophiles -- but the existence of the former
no more
proves that contemporary America is a "race-conscious
society" than the existence of the latter proves that we are a
society that condones child molestation. (We'll later examine the
precise connection between racism and society -- and the State.)
Second, "discrimination" -- bias in hiring -- has been made
illegal in this country. The whole thrust of this argument is that we
need affirmative action to fight what is already a crime.
Specifically, the claim is that there are any number of instances of
discrimination that the courts never address -- for which affirmative
action is needed as a remedy. Consider that concept ... with one
change: replace discrimination with rape. Now we may
suppose that there might be a great many cases of rape where there
isn't even a police report, much less a trial (still much less a
conviction). Would anyone propose that we rectify this undeniably
regrettable state of affairs with a government program that randomly
a) penalized some men who have never been arrested, much less tried,
for rape, but who, as men, are members of the same demographic group
as most perpetrators, and b) compensated some women who have never
reported a rape, much less identified the defendent in court, but
who, as women, are members of the same demographic group as most
victims? And yet that is exactly what we do when the offense in
question is discrimination. Affirmative action penalizes (or
compensates) individuals who have never been the perpetrators (or
victims) of any legally proven criminal act.
From
this perspective, affirmative action, by pronouncing guilt without
trial, can easily be recognized as a kind of bill of attainder,
prohibited by the Constitution -- except that this bill is brought
against, not a particular person, but entire categories of people.
Once again: the collectivist ethic, which assumes an even more
grotesque form with affirmative action enacted as a redress of "past
discrimination." If this scheme were limited to cases of
employer bias before that was legally proscribed, then at the very
least we would be dealing with ex post facto law, also prohibited by
the Constitution. But that is not all that is meant by its
proponents.
In Where Do We Go From Here?, his last book,
Martin Luther King, Jr. conceded the glaring conflict between
"special treatment" for one race and color-blind (i.e.,
individual-based) justice. Nonetheless, he insisted that "a
society that has done something special against the Negro for
hundreds of years must now do something special for him."
King, as a modern "liberal," was half-collectivist and
half-individualist, but within this wholly collectivist statement
lies the core of the argument -- and of the Left itself: the
nullification of the individual and the reification of the
collective. Obviously there is no one "Negro" who has
suffered unjustly for "hundreds of years" and can now seek
restitution. The evils of the past (e.g., slavery) were committed
against -- and by -- persons of the past. We can neither punish the
perpetrators nor compensate the victims. Moreover, we ourselves are
not these persons of the past. This seeming truism was lost on
Justice Thurgood Marshall, who, in response to the condemnation of
any government bias against or in favor of anyone, bellowed, "You
guys [i.e., white people] have been practicing discrimination for
years. Now it's our [i.e., black people's] turn." Again, most,
if not all, of the people today, black and white and whatever, were
not even alive during those past periods of injustice. But what would
this racial eye-for-an-eye theory of "discrimination" mean
in practice? The implementation of a Jim Crow system against
whites? The resurrection of involuntary servitude with whites as
slaves?
It
is often claimed that the evils of the past still impact upon the
persons of the present, which necessitates the corrective of
affirmative action. Let's examine that contention in relation to what
has been a primary concern: political equality. Yes, it is true that
even up to the Sixties there were still blacks who were denied the
opportunity to vote. But once that injustice was officially ended, it
was effectively ended. Today a black person is as free to vote
as any other person of any other race. His vote does not count for
less in any way -- there is no "legacy" of slavery or
segregation. And when we move from race to gender (as has affirmative
action, thanks to feminism), we find the same thing. Yes, it is true
that most women were denied the right to vote until ratification of
the Nineteenth Amendment in 1920, but that in no way makes the
contemporary woman a second class citizen at the polls.
Even more perverse is the claim that the evils of the past are responsible
for the "pathologies" of the black community.
The immediate
response should be simply to note that these behaviors are neither
unique to nor universal among blacks. Are we to believe that a
"legacy of racism" causes black people to not keep a steady
job, turn to drugs, commit crimes, etc., while their non-black
counterparts do these same exact things because of personal failings?
It is subsequently asserted that the "legacy of racism" is
responsible for the racial imbalance in these areas. So, what
we are
to believe is that the "legacy of racism" causes
some blacks to not keep a steady job and so on, while other
blacks (like all non-blacks) really do do these same exact things
because of personal failings.
Here the argument has driven itself to its
reductio ad absurdum.
Past evils are vanished evils, and to
fight them is to tilt at windmills long demolished.
(One note:
observe the willingness to accept differences on the individual, but
not the aggregate, level.
Yes, there can be high,
low, and middle achievers within a race, but the actual ratio of high to low to
middle, whatever it might be, cannot differ from one race to another.
This "equal
inequality" is a perfect reflection of the half-capitalist/half-socialist
schizophrenia of
the American mixed economy.)
In
the tail end of the Nineties, a new role for affirmative action
emerged. Now, it no longer mattered whether a "racial imbalance"
was or wasn't the result of "discrimination" (past or
present, proven or alleged).
Now, the failure to achieve proportional
demographic reflection -- or to use the obligatory term,
"representation," as if it referred to democratic elections
(again, the confusion with political equality) -- was an intrinsic
evil. It was inexcusable not to "look like America."
Indeed, embarrassment and apologies were supposed to rejoin the
indignantly asked "Why are there so few ['representatives' of
group x]?" Clearly, one should have done what was
necessary to ensure a "more equal" composition, even if
that meant taking race into account -- which, of course, is precisely
what anti-discrimination laws prohibit in the private sector and the
Fourteenth Amendment prohibits in the public sector. So important has
this objective become to the affirmers of affirmative action that
it's even been given its own Orwellian designation -- DIVERSITY.
The
most interesting feature of this project (thus far) is its limitation
to fields of achievement. This conflicts with the basic moral impulse
of affirmative action: the egalitarian demand for "equality"
irrespective of context. Logically, the campaign for
diversity-of-pigment should be extended to fields of failure.
If proportional reflection is an imperative for jobs, then isn't it
equally an imperative for, say, jails? Shouldn't we make sure that
the prison population "looks like America"? To achieve
racial balance, all we would have to do is establish an arrest
maximum for some ethnic groups and an arrest minimum for others. What
possible objection could there be -- a concern for the actual
behavior of individuals? That, like the virtue of a demimondaine, is
a distant memory. Besides, isn't the current racial makeup of our
penal system really the result of past and present discrimination by
policemen and juries and even just "society as a whole"?
Our worry should be whether feminists, of all people, will oppose the
institution of gender equality in the penitentiary. Curiously,
they see male "over-representation" in fields of
achievement (e.g., the executive suite) as the result of "privilege"
and not individual responsibility, but in fields of failure (e.g.,
the prison cell) as the fault of the men themselves -- that is,
individual responsibility -- and not the result of any kind of
prejudice. Why can't they just understand that "equality"
means equality?
That
individual responsibility and its concomitant, individual liberty,
are denied by affirmative action is fundamentally a reflection of the
fact that the individual is denied by the Left, for whom exist
only immortal (and forever warring) collectives. What follows is a
system of justice -- "social justice" -- in which a man is
judged by, not his personal obedience to the law, but the actions the
State attributes to the collective to which it has assigned him.
That, as stated, is the theory. To observe the practice, one need
only look at history from Jacobin France to modern totalitarianism.
The
America of today is a nation in which the two conceptions of justice
(viz., that of the Constitution vs. that of the Left) struggle
against the other -- with the latter in the ascendancy. So totally
has "social justice" dominated public discourse that one
cannot even suggest, at least not without fear of expulsion from
polite society, that private bigotry, however loathsome, is best not
fought with anti-discrimination laws, which violate freedom of
association. (With such laws, as discussed above, affirmative action
punishes people who are innocent of something that's a crime; without
them, affirmative action punishes people who are innocent of
something that's not even a crime.) Indeed, if We the People
defended individual liberty to that extent, would there even be this
controversy over affirmative action, to say nothing of reparations --
or "hate speech"? Think about that: If a man cannot be a
bigot with his private property, what difference does it make if that
property is a lunch counter or a printing press?
We
must point out that "discrimination" originally referred to
the bias not of individuals in their private dealings, but of
government in its defense of the life, liberty, and property of all
people (in other words: political equality). That's because Jim Crow
was not a social custom, but a political system.Here we come to the
reality that the Left cannot face. Ever since the Sixties, the Left
has spun the line that racism is the outgrowth of "capitalism."
Without government controls, bigotry will germinate from every square
inch of the open society. However, it is a theory of racism that is
falsified by the practice of racism. Almost without exception, the
history of racism is a history of statism, i.e., of government
imposition of racism on society. From the Old South to
Nazi Germany to apartheid South Africa, it is government that
(directly or through indifference) murders people because of their
race, establishes segregated economic and cultural institutions, criminalizes interracial sexuality and marriage, and in general
is responsible for almost every image that comes to mind when we
speak of racism. If bigotry is the natural reflex of the social
masses, why have racists always had to turn to the State to keep
people of different races from teaching each other, hiring each
other, marrying each other, and basically living together as members
of the same society? Indeed, if there is an organic relationship
between racism and capitalism, then history's greatest racist should
also have been its greatest capitalist. Our textbooks would record
how Adolf Hitler and his National Capitalist Party created the
ultimate racist regime by implementing completely the libertarian
free-market agenda: an unregulated economy, freedom of expression,
freedom of sexuality, private education, open borders, equality
before the law, anti-militarism, etc. Of course, actual National
Socialist policy was the polar opposite on every point.
Hitler chose
totalitarian socialism (that is, total socialism) as the means
to his racist end because he understood what every other racist has
always understood: that mass bigotry is "socialist,"
not capitalist -- statist, not societal -- in nature. Our
anti-discrimination laws were not a response to a history of market
bias, but a deduction from the tenets of Leftist dogma, which now
seeks to redeem the ideology of statism by placing the blame for
bigotry on the American people.
Thus, when a Michael Eric Dyson
preaches that racism is "America's original sin," we must
remember that the vision of a virtuous elite taking control of a
villainous society that the Left brings to this issue, is the vision
that the Left brings (and has always brought) to every issue.
The
march of "social justice" did not begin with the proposal
of affirmative action, and it will not end with its entrenchment. The
two different conceptions of justice are two mutually exclusive
conceptions of justice, and what can appear to be an evolution from
one ideal to another might well be nothing less than the sacrifice of
justice to its negation.
Barry Loberfeld
barry @ abcdunlimited.c o m