Published September 22, 2003 in

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