Paul Craig Roberts responds to my criticisms:
As everyone knows, Brown was not a 14th Amendment decision. Had it been, the problems I have identified would not have arisen. As my book makes clear, I agree with Justice Harlan’s dissent to the Plessy decision. However, remember that the Plessy ruling did not uphold legal inequality. All sorts of inequalities in practice existed, including in the white schools. Being neighborhood schools, schools were segregated by class as well as by race. Unless they were
mismanaged, rich school districts could have better equipped schools.
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. These preferences are throwbacks to the status-based rights of feudalism. In place of practical inequality, we now have legal inequality.
Another devastating result of Brown is that it was influenced by–in my opinion, based on–Myrdal’s book, which concluded that American democracy could not overcome segregation, because Americans on the whole, including Northeast liberals, were too racists in their views.
In other words, Myrdal applied Karl Marx’s denial of the existence of good will between classes to races, as feminists have applied it to genders. As Marx made clear, in the absence of good will, coercion is the only effective force.
The Civil Rights Act followed in this train, invading freedom of conscience and substituting coercion for persuasion. This radically changed the nature of reform. In place of persuasion and good will, we now have rule by judges.
The Vinson Court was opposed to segregation and wanted to rule against it in 1952 but would not because the justices understood that it would usher in kritarchy. As you were born into kritarchy, their concerns may be a mystery to you. Justice Reed, who in the end went along with
the 1954 decision, knew it would fundamentally change the nature of the American political system. I saw in the news the other day that a federal judge in Kansas ordered an entire school system closed because it didn’t meet his standards.
Lawrence Stratton and I told the story of how the civil rights revolution went amiss in The New Color Line (1995). The book was widely and favorably reviewed. After 9 years, no one has been able to challenge or refute our work.
There are many things I disagree with here. To begin with, I simply don’t understand how Brown v. Board of Education, which held that “separate but equal” programs were unconstitutional, “ushered in kritarchy — government by judges,” while Harlan’s dissent in Plessy v. Ferguson, which would have held the same thing, was proper.
I also don’t understand how one can say that “the Plessy ruling did not uphold legal inequality. All sorts of inequalities in practice existed, including in the white schools.” Plessy v. Ferguson upheld a legal requirement that railroads segregate people based on race. That’s precisely why Harlan dissented; if “the Plessy rulling did not uphold legal inequality,” then how can Roberts “agree with Justice Harlan’s dissent”?
But what most strikes me is Roberts’ continued insistence (see here for more examples of this argument on his part) 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.
“After the civil rights revolution, . . . [t]here are now legal preferences based on race and gender.” There have always been legal preferences based on race and gender in America, from the date of the Constitution. Women used to be unable to vote. They used to be barred by law from various jobs. They were kept from being lawyers. They were routinely discriminated against by the government (let’s set aside private institutions here, since we’re talking about the Equal Protection Clause) in hiring.
Blacks were, even after the end of slavery, subjected to Jim Crow, which surely did not involve their being treated as equal under the law. They were excluded from various government jobs and government-run universities. They were denied the vote by government action. The list of “legal preferences based on race and gender” given to whites and males (and, in some instance, females) long before the civil rights revolution could go on quite long.
It is certainly true that there are now some legal (in the sense of overtly acknowledged) government-imposed preferences based on race and gender in favor of nonwhites and women, and some government-imposed but covert preferences based on race and gender in favor of whites and men as well as nonwhites and women. I have strongly opposed these myself. But bad as they are, they are far less than the vast, systemic, governmentally imposed race and gender discrimination that existed before the 1960s.
I repeat these facts not because they are somehow novel. They are utterly old hat. They are truisms though no less true because of that. What shocks me is that despite their obviousness, Mr. Roberts’ columns routinely frame the matter as if race and sex preferences were something novel, some post-1954/1964 fall from an earlier grace — as if the past massive legal preferences for whites and men are irrelevant and barely worth mentioning, while the present legal preferences for nonwhites and women are monstrous.