The Volokh Conspiracy - Another Paul Craig Roberts response:

As you may recall, I began this thread by criticizing Paul Craig Roberts on two main grounds:

He seems to praise decisions -- or call for decisions -- that strike down "racial quotas and preferences" that hurt whites. But he condemns as "government by judges" Brown v. Board of Education, which struck down racial quotas and preferences that hurt blacks.
He routinely uses language that seems to suggest that race and sex preferences are recent innovations, created to burden whites and men, and doesn't acknowledge that in fact race and sex preferences have long existed under American law, generally hurting nonwhites and women. My original post pointed to language such as "Brown ushered in inequality before the law with the racial quotas and preferences that followed in its wake," and (from an earlier column) "[the] essential feature [of the original U.S. Constitution] -- equality in law -- has been replaced by differential group rights based on skin color, gender, disability and, sooner or later, sexual orientation." My follow-up post pointed to Roberts' response that "Despite Plessy, the ruling doctrine still held people, rich, poor, black or white, to be equal under the law. After the civil rights revolution, this is no longer the case. There are now legal preferences based on race and gender." In fact, inequality before the law, racial quotas and preferences, and differential group rights based on skin, color, gender, disability, and sexual orientation long existed under the original U.S. constitution -- and most certainly during the Plessy era. For all its faults, the civil rights movement helped diminish these quotas, preferences, and differential group rights. I'm quite troubled by Dr. Roberts' general failure to acknowledge this past discrimination against nonwhites, women, and other groups, and to talk as if race and sex discrimination were "ushered in" by -- in the sense of being a new development caused by -- the civil rights movement.

Then, I went on to criticize Dr. Roberts' response to my piece on another point: He claims that he endorses Justice Harlan's dissent in Plessy v. Ferguson, which would have prohibited racial segregation in 1896 -- but he harshly denounces as "government by judges" Brown v. Board of Education, which prohibited racial segregation in 1954. Dr. Roberts now responds again in an e-mail to me:

I have read your response. You conflate many issues, and you avoid my points that Brown substituted coercion for persuasion and good will and established rule by judges. Justice Stanley Reed, who was a party to the Brown decision, explicitly referred to it as "kritarchy." Just because you don't understand doesn't mean that the justices did not understand. Your approach to reform is ahistorical. You seem to think that societies should be born morally perfect by the standards of later centuries. For example, you go on about women not having the vote as a legally imposed inequality. But of course, societies had not thought of women having the vote. When they were ready for women to have the vote, it was done without Supreme Court coercion. Your notion of race and sex preferences is not a legal one. No Supreme Court ever ruled that men were legally privileged and women were legally inferior or that whites were more equal than blacks. Plessy's ruling was separate but equal. Plessy did not rule that blacks were inferior and therefore consigned to inferior status. When the Supreme Court permitted racial segregation under Louisiana law regulating public transportation in Plessy v. Ferguson in 1896, it did so on the grounds that the state law required equal facilities and that separate accommodation was a social convention, akin to earlier "ladies' cars" on public trains, that did not apply "to nurses attending children of the other race" and did "not necessarily imply the inferiority of either race to the other." In other words, even segregationists had to accept equality before the law as the operative de jure principle. In his famous dissent, Justice Harlan was concerned that the Louisiana law would allow class distinctions to enter the legal system in the form of race distinctions. The Louisiana law was particularly dangerous because blacks and whites were economically as well as racially distinct. Thus, racial distinctions were also class distinctions. Harlan was certain that he wanted no status-based distinctions in the law. Your fundamental error in your response to my article is that you confuse the historical development of society with abstract legal principles. Prior to the "civil rights revolution," status-based legal privileges or group rights were considered to be a feature of pre-modern feudalism. They were the antithesis of equality before the law. Now they are upheld as evidenced by the recent Michigan case.

It seems to me that this response suffers from the same problems that I identified. 1. I continue to be mystified by how Dr. Roberts can reconcile his praise of judges' trying to ban race discrimination in education in Hopwood with his strident denunication of judges' trying to ban race discrimination in education in Brown. 2. Prior to the "civil rights revolution," "status-based legal privileges or group rights" were routine in the law. Women were by law barred from certain professions. Blacks were by law excluded from white-only schools (which were often given much more funding by the government than were schools for blacks), white-only railway cars, and more. (Of course, before 1868, blacks were excluded from even more important things.) The privilege of going to the white-only institutions was a "status-based legal privilege[]" given to whites. Government officials routinely discriminated based on race and sex in hiring, education, and the like. (Note that today's race preferences in admissions are likewise discrimination by executive officials, so if Dr. Roberts sees inequality before the law only in legislative race-based classifications, rather than discrimination by executive officials, then he should have no problem with modern race-based admissions policies.) All this indeed was "the antithesis of equality before the law." But it was nonetheless what happened. Now I have no wish to demonize all people of earlier eras for their failings in this respect. Some of them did the best they could given their limitations, and many of them had virtues that exceeded their vices in this area. (Jefferson and Washington surely can be faulted for owning slaves, especially since many people of that era had realized that slavery was immoral; but we rightly praise them for their other merits, even though we condemn them for their errors on this score.) I surely do not expect them to have been "morally perfect." But I don't think we should whitewash those eras, either, by pretending that race- and gender-based legal rights are somehow a modern invention. 3. Finally, Dr. Roberts starts by reiterating that "Brown substituted coercion for persuasion and good will and established rule by judges" -- and yet in his earlier message he wrote "I agree with Justice Harlan's dissent to the Plessy decision." But Justice Harlan's dissent, just as much as the Brown majority, took the view that the Constitution prohibits racial segregation, and that judges have an obligation to enforce this prohibition through the "coercion" of court orders rather than just through "persuasion and good will." Segregation, Justice Harlan wrote, "may be stricken down . . . by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding." So how is Justice Harlan's position permissible, but the Brown majority's position somehow reprehensible? Dr. Roberts continues not to answer this.

	[Eugene Volokh, May 17, 2004 at 3:36pm] Trackbacks Another Paul Craig Roberts response: As you may recall, I began this thread by criticizing Paul Craig Roberts on two main grounds: He seems to praise decisions -- or call for decisions -- that strike down "racial quotas and preferences" that hurt whites. But he condemns as "government by judges" Brown v. Board of Education, which struck down racial quotas and preferences that hurt blacks. He routinely uses language that seems to suggest that race and sex preferences are recent innovations, created to burden whites and men, and doesn't acknowledge that in fact race and sex preferences have long existed under American law, generally hurting nonwhites and women. My original post pointed to language such as "Brown ushered in inequality before the law with the racial quotas and preferences that followed in its wake," and (from an earlier column) "[the] essential feature [of the original U.S. Constitution] -- equality in law -- has been replaced by differential group rights based on skin color, gender, disability and, sooner or later, sexual orientation." My follow-up post pointed to Roberts' response that "Despite Plessy, the ruling doctrine still held people, rich, poor, black or white, to be equal under the law. After the civil rights revolution, this is no longer the case. There are now legal preferences based on race and gender." In fact, inequality before the law, racial quotas and preferences, and differential group rights based on skin, color, gender, disability, and sexual orientation long existed under the original U.S. constitution -- and most certainly during the Plessy era. For all its faults, the civil rights movement helped diminish these quotas, preferences, and differential group rights. I'm quite troubled by Dr. Roberts' general failure to acknowledge this past discrimination against nonwhites, women, and other groups, and to talk as if race and sex discrimination were "ushered in" by -- in the sense of being a new development caused by -- the civil rights movement. Then, I went on to criticize Dr. Roberts' response to my piece on another point: He claims that he endorses Justice Harlan's dissent in Plessy v. Ferguson, which would have prohibited racial segregation in 1896 -- but he harshly denounces as "government by judges" Brown v. Board of Education, which prohibited racial segregation in 1954. Dr. Roberts now responds again in an e-mail to me: I have read your response. You conflate many issues, and you avoid my points that Brown substituted coercion for persuasion and good will and established rule by judges. Justice Stanley Reed, who was a party to the Brown decision, explicitly referred to it as "kritarchy." Just because you don't understand doesn't mean that the justices did not understand. Your approach to reform is ahistorical. You seem to think that societies should be born morally perfect by the standards of later centuries. For example, you go on about women not having the vote as a legally imposed inequality. But of course, societies had not thought of women having the vote. When they were ready for women to have the vote, it was done without Supreme Court coercion. Your notion of race and sex preferences is not a legal one. No Supreme Court ever ruled that men were legally privileged and women were legally inferior or that whites were more equal than blacks. Plessy's ruling was separate but equal. Plessy did not rule that blacks were inferior and therefore consigned to inferior status. When the Supreme Court permitted racial segregation under Louisiana law regulating public transportation in Plessy v. Ferguson in 1896, it did so on the grounds that the state law required equal facilities and that separate accommodation was a social convention, akin to earlier "ladies' cars" on public trains, that did not apply "to nurses attending children of the other race" and did "not necessarily imply the inferiority of either race to the other." In other words, even segregationists had to accept equality before the law as the operative de jure principle. In his famous dissent, Justice Harlan was concerned that the Louisiana law would allow class distinctions to enter the legal system in the form of race distinctions. The Louisiana law was particularly dangerous because blacks and whites were economically as well as racially distinct. Thus, racial distinctions were also class distinctions. Harlan was certain that he wanted no status-based distinctions in the law. Your fundamental error in your response to my article is that you confuse the historical development of society with abstract legal principles. Prior to the "civil rights revolution," status-based legal privileges or group rights were considered to be a feature of pre-modern feudalism. They were the antithesis of equality before the law. Now they are upheld as evidenced by the recent Michigan case. It seems to me that this response suffers from the same problems that I identified. 1. I continue to be mystified by how Dr. Roberts can reconcile his praise of judges' trying to ban race discrimination in education in Hopwood with his strident denunication of judges' trying to ban race discrimination in education in Brown. 2. Prior to the "civil rights revolution," "status-based legal privileges or group rights" were routine in the law. Women were by law barred from certain professions. Blacks were by law excluded from white-only schools (which were often given much more funding by the government than were schools for blacks), white-only railway cars, and more. (Of course, before 1868, blacks were excluded from even more important things.) The privilege of going to the white-only institutions was a "status-based legal privilege[]" given to whites. Government officials routinely discriminated based on race and sex in hiring, education, and the like. (Note that today's race preferences in admissions are likewise discrimination by executive officials, so if Dr. Roberts sees inequality before the law only in legislative race-based classifications, rather than discrimination by executive officials, then he should have no problem with modern race-based admissions policies.) All this indeed was "the antithesis of equality before the law." But it was nonetheless what happened. Now I have no wish to demonize all people of earlier eras for their failings in this respect. Some of them did the best they could given their limitations, and many of them had virtues that exceeded their vices in this area. (Jefferson and Washington surely can be faulted for owning slaves, especially since many people of that era had realized that slavery was immoral; but we rightly praise them for their other merits, even though we condemn them for their errors on this score.) I surely do not expect them to have been "morally perfect." But I don't think we should whitewash those eras, either, by pretending that race- and gender-based legal rights are somehow a modern invention. 3. Finally, Dr. Roberts starts by reiterating that "Brown substituted coercion for persuasion and good will and established rule by judges" -- and yet in his earlier message he wrote "I agree with Justice Harlan's dissent to the Plessy decision." But Justice Harlan's dissent, just as much as the Brown majority, took the view that the Constitution prohibits racial segregation, and that judges have an obligation to enforce this prohibition through the "coercion" of court orders rather than just through "persuasion and good will." Segregation, Justice Harlan wrote, "may be stricken down . . . by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding." So how is Justice Harlan's position permissible, but the Brown majority's position somehow reprehensible? Dr. Roberts continues not to answer this.