Archive | Racism

NAACP Backs State Autonomy on Marijuana Policy

The NAACP recently passed a resolution backing a proposed federal law that would prohibit enforcement of federal laws banning marijuana in states that have imposed lesser penalties or have legalized marijuana entirely. The resolution cites the “misguided and misplaced policies” of the War on Drugs, which have resulted in “the disproportionate over-confinement of racial and ethnic minorities.”

In one sense, this is not a surprising move. The NAACP previously called for an end to the War on Drugs in 2011, for similar reasons. But it is somewhat unusual for the nation’s most prominent African-American civil rights organization to back state autonomy on an important policy issue. For many decades, most political liberals and most minorities associated “states’ rights” with the defense of racism and segregation.

The NAACP’s endorsement of state autonomy on this issue certainly does not mean that they necessarily support greater political decentralization generally. But it is of a piece with other recent moves towards a more positive view of federalism on the left, including Yale Law Professor Heather Gerken’s work on the subject. Gerken argues that, despite its historic association with racism, conditions have changed in ways that make federalism more beneficial to minorities today than it might have been in the past. In some of my own work (e.g. here and here), I have argued that federalism was not uniformly harmful to minorities in earlier periods in American history either. During some crucial time-frames, minorities might well have been worse off under a unitary national policy on racial issues than they were with federalism.

None of this proves that federalism is always good for minorities, either today or in the past. There clearly are times when federal government intervention is the best way to protect minorities from state or local oppression. But it [...]

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My Take on Heather Gerken’s Progressive Defense of Federalism

I recently participated in a Tulsa Law Review symposium in honor of Yale Law School Professor Heather Gerken, one of the nation’s leading federalism scholars. Much of Gerken’s work urges her fellow political liberals to rethink their traditional distaste for federalism. My contribution to the symposium is now available on SSRN. Here is the abstract:

Professor Heather Gerken has made important contributions to our understanding of democracy and federalism. Part I of this article summarizes two of her most significant ideas. The first is “taking federalism all the way down,” the theory that many of the benefits of federalism can be enhanced by empowering local governments as well as states. The second is her insistence that federalism can be used to empower political dissenters, including racial and ethnic minorities. Subnational jurisdictions where nationwide minorities are in the majority enable these minorities to exercise power in their own right instead of relying on the good will of the national majority. In Gerken’s trademark phrase, they can “dissent by deciding.”

Part II proposes three extensions of Gerken’s ideas. First, both “federalism all the way down” and the empowerment of minorities might be enhanced by greater attention to the benefits of “voting with your feet” as well as voting at the ballot box. Foot voting has some important advantages over ballot box voting as a tool for actualizing political freedom and expressing dissent. Second, for minorities to be able to “dissent by deciding” effectively, Gerken may wish to rethink her opposition to judicial enforcement of constitutional limits on federal power. Finally, while Gerken argues that federalism may be beneficial for minority groups today, she accepts the conventional wisdom that it was largely detrimental to them throughout most of American history. In reality, however, the situation was far more nuanced. Although state and

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Racial Progress and Obama’s Reelection

As I see it, Obama’s reelection is overall likely to cause more harm than good. But there is one important positive aspect that deserves special mention. Obama’s reelection victory cements the idea that having an African-American president is normal. For a nation with a long history of racial oppression – one where most blacks didn’t even have the right to vote just fifty years ago – that’s an important sign of progress.

Obama’s 2008 victory was, of course, an even more important breakthrough on this front, as I, among many others, emphasized on the night he won. But that win could have been written off as a historical fluke, caused in large part by public revulsion at the financial crisis and the many failings of George W. Bush and the GOP. His reelection this year can’t be dismissed in that way. The Republicans had a real chance to win this year, and Mitt Romney, for all his flaws, was not as fatally compromised by Bush’s legacy as McCain in 2008.

The next time we elect a black president – and I am sure there will be a next time – it will be seen as business as usual. Similarly, few people are exercised about Catholics in high political office anymore or about the fact that there are numerous Jews in Congress and on the Supreme Court. It would be naive to assume that Obama’s political success signals the complete disappearance of racism or anything close to it, any more than we have completely eliminated anti-Semitism. But it’s certainly a sign that racism has greatly declined, and that African-Americans are more fully accepted in mainstream American society than ever before.

Does this sign of progress outweigh all the bad things that Obama has done in office, and may well [...]

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Racial “Obligations” of Mixed-Race People

Co-blogger David Bernstein links to a New York Times column by Thomas Chatterton Williams which argues that “[m]ixed-race blacks have an ethical obligation to identify as black — and interracial couples share a similar moral imperative to inculcate certain ideas of black heritage and racial identity in their mixed-race children, regardless of how they look.” He justifies this by the moral imperative of overcoming the legacy of anti-black racial oppression, claiming that “the black community can and does benefit directly from the contributions and continued allegiance of its mixed-race members, and it benefits in ways that far outweigh the private joys of freer self-expression.”

Such claims are not unusual. We often hear arguments that blacks, Jews, and members of other racial and ethnic groups have special obligations to their fellow group members. But there is no good justification for such claims. No one has a special moral obligation to another person merely because they happen to share the same race or ethnicity. Do I have a special moral duty to other whites or other Russian Jews that does not extend to nonwhites or gentiles? For reasons well articulated by Randall Kennedy, I reject any such notion.

Williams’ argument in regards to blacks has superficial plausibility because blacks have been victims of major historic injustices in this country. But it is not clear why other blacks – or mixed-race individuals – have a special obligation to combat those injustices that is greater than that of other people. If anything, the duty to combat an injustice falls most heavily on those who inflicted it – who, in this case, were mostly white.

Even if we accept Williams’ notion that interracial parents should consider the benefits to the “black community” from the contributions of “mixed-race parents,” how does he know that those [...]

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Heather Gerken’s Progressive Defense of Federalism

Yale Law Professor Heather Gerken, a prominent federalism scholar, has an interesting article in Democracy urging her fellow liberals to take a more favorable view of federalism:

Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think “federalism” is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism’s past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Much of Gerken’s argument is based on the simple but important point that groups that are relatively weak minorities at the national level often wield greater influence in state and local governments where they are a much higher proportion of the population. In these situations, political decentralization benefits minorities by shifting power to the level of government where they have more political clout.

This will not come as news to students of federalism in countries outside the US. Many federal systems were established [...]

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Libertarianism and the Civil War

Over at Libertarianism.Org, Jonathan Blanks has an interesting series of posts criticizing libertarians who defend the secession of the Southern states that precipitated the civil war (see here and here). Like Blanks, I believe that any possible justification that the Confederates may have had was negated by the fact that they seceded for the purpose of perpetuating slavery – a far greater violation of libertarian rights than anything white southerners could complain of in 1861.

There are, generally speaking, three types of libertarian perspectives on the Civil War. Many libertarians actually support the war, some condemn it without defending the Confederacy, and some are actually pro-Confederate.

I. Libertarian Unionism.

Many libertarians actually agree with the conventional wisdom on the conflict: that, although it caused great harm, it was ultimately beneficial because it led to the abolition of slavery. Although I haven’t seen any survey data, informal discussions with libertarian intellectuals and activists lead me to believe that this view actually very common in the movement, perhaps more so than either of the others. However, few libertarian Unionists have actually written about the conflict, perhaps because libertarian scholars tend to focus on issues where we diverge from the conventional wisdom of non-libertarians rather than endorse it (Tim Sandefur’s article on the subject is an interesting exception). Pro-Union libertarians do, however, differ from many other defenders of the Union cause in so far as most believe that the preservation of the Union was not by itself a sufficient justification for the war, independent of slavery.

II. Condemning the War Without Endorsing the Confederacy.

A second libertarian approach to the Civil War recognizes that the Confederates seceded for the purpose of protecting slavery, and does not defend their actions. But it still holds that the war actually did more harm than [...]

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Mercedes-Benz: The car for people who admire mass-murdering racist totalitarian thugs

Mercedes-Benz’s latest marketing ploy is to associate itself with Che Guevera. Over at the Huffington Post, Michael Gonzalez (Heritage Foundation) supplies the details.

It’s not surprising that a corporation which is currently pro-Che was pro-Hitler, far more so than many other German businesses during the Third Reich. As recounted in Cecil Adams’ “The Straight Dope”:

Daimler-Benz . . . avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world’s leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. According to historian Bernard Bellon (Mercedes in Peace and War, 1990), at least eight Jews were murdered by DB managers or SS men at a plant in occupied Poland.

UPDATE: Regarding Eugene’s post, immediately above. My own view would be that a corporation is a collection of individuals (and, I agree with him, therefore entitled to free speech and other constitutional rights); in the same sense, a human body is a collection of cells. Over time, all of the individuals in a corporation may change; likewise, the collection of cells that constitute “David Kopel” is today very different from the collection that constituted “David Kopel” 45 years ago. Yet the corporate body, like the human body, has a continuing existence as the same entity. (That’s one of the benefits of incorporation.) Corporations sometimes have cultures or other enduring traits that distinguish them even while their individual members may be replaced. It would be accurate to say that Yale Law School is a corporation that places far higher value of scholarly prestige than on teaching ability, and this was true not only today, but also 40 years ago, even [...]

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The original meaning of the 14th Amendment regarding interracial marriage

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one [...]

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The Tragedy of Urban Renewal

Reason TV has a short but interesting video about the urban renewal era of the 1950s and 60s, when hundreds of thousands of people – mostly poor minorities – were forcibly displaced from their homes by eminent domain. As the video notes, often the land was transferred to politically connected developers and other influential interest groups.

I discuss this period in greater detail in my recent testimony on the civil rights implications of eminent domain abuse before the US Commission on Civil Rights. As I point out there, today’s abuses are not on as large a scale as those of fifty years ago. But it is still common for “blight” condemnations to be used against the minority poor and other politically weak groups in order to transfer their land to politically powerful groups. And nowhere more so than in New York City, the focus of the Reason video. The recent Columbia University and Atlantic Yards cases are particularly egregious examples, which I described in this article.

Urban renewal and blight takings are also a good example of how, contrary to stereotype, protecting property rights often benefits the poor more than the wealthy. Indeed, government is far more likely to threaten the rights of the former, because they usually have less political influence with which to protect themselves. [...]

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My US Commission on Civil Rights Testimony on the Impact of Eminent Domain Abuse on Minority Groups

On August 12, I testified at a US Commission on Civil Rights hearing on the “Civil Rights Implications of Eminent Domain Abuse.” The video of the oral testimony is available here. I have now made my more detailed written testimony available online here. Here is the Introduction, which includes a summary of the rest [footnotes omitted]:

I am grateful for the opportunity to address the important issue of the impact of eminent domain on racial and ethnic minorities. I would like to thank Chairman Castro, Vice Chair Thernstrom, and the other commissioners for their interest in this vital question. As President Barack Obama aptly put it, “[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.” The protection of property rights was one of the main purposes for which the Constitution was originally adopted. Unfortunately, the Supreme Court has often relegated property rights to second class status, giving them far less protection than that accorded to other constitutional rights. And state and local governments have often violated those rights when it seemed politically advantageous to do so.

Americans of all racial and ethnic backgrounds have suffered from government violations of constitutional property rights. But minority groups have often been disproportionately victimized, sometimes out of racial prejudice and at other times because of their relative political weakness. Minorities are especially likely to be victimized by private to private condemnations that test the limits of the Public Use Clause of the Fifth Amendment, which requires that property can only be condemned for a “public use.” These include takings allegedly justified by the need to alleviate “blight” and promote “economic development.”

Part I of my testimony briefly surveys the constitutional law of eminent domain and public use. It documents the extent to which the

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Reagan’s infamous speech in Philadelphia, Mississippi

In 1980, one of the major party presidential nominees opened his general election by delivering a speech in a small town in the Deep South that just by coincidence happened to be the national headquarters of the Ku Klux Klan. That same candidate had previously complained about federal housing policies which attempted “to inject black families into a white neighborhood just to create some sort of integration.” He argued that there was “nothing wrong with ethnic purity being maintained.” That candidate was President Jimmy Carter, the Democratic nominee.

Carter kicked off his general election campaign with a speech in Tuscumbia, Alabama. Although the Klan’s headquarters were located in that small town, Carter was not appealing to the Klan vote, but was instead hoping to win the votes of the more than 40,000 people who saw him speak at the town’s annual Labor Day fair. Perhaps Carter chose to start his general election campaign in rural Alabama because he recognized that Reagan might take away some of the southern states that had been crucial to Carter’s win in 1976. As things turned out, Carter was right to be concerned; he ended up losing Alabama by 1%.

After the Republicans nominated Ronald Reagan in Detroit in July, he gave his first post-convention speech in New Jersey, near the Statue of Liberty. While the informal opening date of the general election campaign is traditionally Labor Day, Reagan continued to campaign during August, and on August 3, 1980, spoke at the Neshoba County Fair in Mississippi. The Neshoba Fair is large and popular, which probably explains why Democratic Senator John Glenn campaigned there in 1983, when seeking the presidential nomination, and why Democratic presidential nominee Michael Dukakis spoke there during the 1988 general election campaign, shortly after being nominated by the Democratic Convention. [...]

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Cornel West: The Dinesh D’Souza of the Left?

Last year, Dinesh D’Souza made waves by claiming that Barack Obama’s left-wing ideology and policies can be explained by his “anti-colonial” attitudes, traceable to his father’s Kenyan background. I criticized D’Souza’s argument here. This year, Cornel West claims that Obama’s racial background is the key to explaining why the president isn’t left-wing enough. West believes that it’s because Obama mixed-race background led him to have a “certain fear of free black men,” and to be more comfortable with “upper middle-class white and Jewish men who consider themselves very smart.”

Both West and D’Souza err in assuming that there is something unusual about Obama’s policies that requires explanation based on his personal background. In reality, as I explained in my critique of D’Souza, Obama’s policies are largely what any liberal Democratic president would have done under similar circumstances. Had Hillary Clinton or John Edwards (sans sex scandal) won the 2008 election, they would have done most of the same things. Indeed, Obama’s most important policy initiative, the health care bill, is in large part based on a proposal that Hillary Clinton promoted in the 2008 primaries, at which time Obama harshly criticized it.

I don’t always agree with Jonah Goldberg. But he recently hit the nail on the head on this particular issue:

Simpler explanations are available [than West’s and D’Souza’s]. Obama is a liberal Democrat. He does things a white liberal Democrat would do, and he receives mostly the same opposition a white liberal Democrat would receive.

Why isn’t Obama pursuing a more left-wing agenda? Perhaps because he only barely managed to get the health care bill through a Democratic Congress as it was, and also faced strong opposition to some of his other key policies. An (even) more consistently left-wing agenda would probably have [...]

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John McWhorter on Efforts to Remove the “N Word” from Huckleberry Finn

Last week, co-blogger Jonathan Adler noted the publication of a new edition of Huckleberry Finn that replaces all of the book’s many uses of the word “nigger” with “slave” in order to make it more palatable to modern teachers who want to assign the book to students. In this recent column, prominent black linguist John McWhorter criticizes such efforts to sanitize a classic:

NewSouth Books would seem to be creating a baby-food version of Huckleberry Finn, with the n-word replaced by “slave” because of feedback from teachers who claim the book has become “unteachable.”

I see. Eighth-graders are too unformed to understand the difference between someone calling someone else the n-word and an author using the word in an ancient book to reveal characters as ignorant. Interesting, given that the same eighth-graders hear the same word used by rappers daily and understand the difference between that usage — as a term of endearment — and the epithet one….

[I]s it really that adolescents can’t comprehend the layers inherent in the word and its usage? Are people younger than 18 really so foggy about the notion that social conditions change over time? And isn’t showing the open use of the word in the past part of showing how far America has come? And meanwhile, it’s hard not to notice that the typical black view regarding NewSouth’s action is that it would be a whitewashing of history. Black people want their kids to see the real Huckleberry Finn.

McWhorter’s objection (and mine) is not to the mere publication of the sanitized version of Finn. If there are people who want to read it, that’s fine. Rather, the problem is with its use as a teaching tool in schools. Part of the value of assigning the book is the way it [...]

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Of “Racist Progressives” And “Hard-Hearted Libertarians”

At Balkinization, prominent legal historian Brian Tamanaha has an interesting post on progressivism, racism, and libertarianism. He acknowledges that libertarians, including me, are right to point out that early 20th century progressivism was tarred by racism. But he also argues that libertarians have their own historical skeletons in the closet, ones he claims are more difficult to shed than racism is for progressives:

With the resurgence of the use of the term “progressive” by liberals, libertarians have taken to reminding liberals that their turn-of-the-century progressive forebears were virulent racists. According to libertarians, when the social reformist impulse of progressivism mixed with the personal racism of progressives, a toxic brew resulted that led to the legal oppression of blacks and other racial minorities. “The ideas of race and color were powerful, controlling elements in progressive social and political thinking,” [David Southern] argues. “And this fixation on race explains how democratic reform and racism went hand-in-hand.” Libertarians even blame progressives for Jim Crow laws.

There is much truth in this charge……

But classical liberals have their own embarrassing grandparents. Herbert Spencer, the most influential advocate of laissez faire in nineteenth century America, opposed all government aid to the poor and infirm because it thwarted the biological law that the weakest should die. (He coined the phrase “survival of the fittest.”)….

While racism can be severed without loss from progressivism (and indeed has been), the doctrine that government activities should be strictly limited to protecting property, enforcing contracts, and maintaining order is built into libertarianism. Ludwig von Mises, the leading classical liberal of the early twentieth century (not a social Darwinist), opposed public education as beyond the proper scope of government, and he was against any unemployment benefits (because it encourages indolence). Von Mises recognized that the unemployed would suffer, but he

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Jack London, Racist Progressive

Jack London is remembered today mostly for writing inspiring novels about dogs and the Alaskan wilderness. In his own time, however, he was also known as a prominent advocate of socialism and a virulent racist. At Slate, Johann Hari has an interesting review of a new biography of London:

The United States has a startling ability to take its most angry, edgy radicals and turn them into cuddly eunuchs…..

But perhaps the greatest act of historical castration is of Jack London. This man was the most-read revolutionary Socialist in American history, agitating for violent overthrow of the government and the assassination of political leaders—and he is remembered now for writing a cute story about a dog…..

The richer London became, the more radical his politics were. He was soon praising the assassination of Russia’s political leaders and saying socialism would inevitably come to America. Even as he employed small battalions of servants, he insisted he was a Robin Hood figure: They would be made to wait on the tramps and trade unionists he invited to his mansion.

And yet there is an infected scar running across his politics that is hard to ignore. “I am first of all a white man, and only then a socialist,” he said, and he meant it. His socialism followed a strict apartheid: It was for his pigmentary group alone. Every other ethnic group, he said, should be subjugated—or exterminated. “The history of civilization is a history of wandering—a wandering, sword in hand, of strong breeds, clearing away and hewing down the weak and less fit,” he said coolly. “The dominant races are robbing and slaying in every corner of the globe.” This was a good thing, because “they were unable to stand the concentration and sustained effort which pre-eminently mark the races best

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