The Volokh Conspiracy

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 do in the next four years? I think not. But it should be celebrated even so.

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 benefits really do “outweigh the private joys of freer self-expression?” For many people, living their lives unburdened by a sense of tribal loyalty is a very important good.

Furthermore, it is not clear why mixed-race people should necessarily choose to “contribute” to one racial “community” rather than another. It is true that the black community has a history of great injustice. But other communities can make similar claims. Asian-Americans, for example, also have a history of victimization in this country. Under Williams’ criteria, it is far from clear that the children of a black-Asian couple have a duty to identify as black rather than Asian.

Or consider my own situation. I am a Russian Jew married to a gentile. When it comes to comparative victimology, Russian Jews are formidable contenders. There is the history of severe discrimination and pogroms under the czars, official anti-Semitism under the Soviets, and of course the Holocaust. Do I therefore have an obligation to raise my future children to identify as Russian Jews? Maybe. But on the other hand, my wife is half-Ukrainian (her grandfather fled Ukraine in 1919). Ukrainians have their own history of oppression, including a massive terror famine inflicted by the Soviet government in the 1930s, and years of repression under both the czars and the communists. Does the Ukrainian claim to my children’s “contributions” outweigh that of the Jews? What criteria should my wife and I apply in judging the question?

Finally, we should recall that many of the historic injustices noted above occurred precisely because people thought they had special moral obligations to their racial and ethnic compatriots and therefore felt justified in oppressing other groups for the supposed benefit of their own. This is what makes nationalism so pernicious, and racial and ethnic loyalty often creates similar dangers. Perhaps we can all make a greater contribution to society if we teach the next generation not to define their moral obligations in terms of race or ethnicity.

That is not to say that we have to ignore racial and ethnic injustices. But addressing them does not require us to define our own moral duties in racial and ethnic terms. As Randall Kennedy puts it:

[I]f one looks at the most admirable efforts by activists to overcome racial oppression in the United States, one finds people who yearn for justice, not merely for the advancement of a particular racial group. One finds people who do not replicate the racial alienations of the larger society but instead welcome interracial intimacy of the most profound sorts. One finds people who are not content to accept the categories of communal affiliation they have inherited but instead insist upon bringing into being new and better forms of communal affiliation, ones in which love and loyalty are unbounded by race.

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 in the first place precisely because some ethnic groups that are minorities at the national level are majorities in a province or state. Federalism therefore protects them against domination by the national majority. Canada, Switzerland, Spain, India, and many other federal systems are examples of this pattern.

In the United States, of course, this aspect of federalism has largely been ignored because we have had very few cases of states where a national minority was a majority within a single state. The Mormons in Utah are an important exception, but one that few federalism scholars have paid attention to. However, as Gerken points out, racial and other minorities have increasingly become majorities in some state and local governments. In others, they at least form a much larger proportion of the population than they do at the national level and therefore have greater power. This helps explain why such causes as gay rights have made much more progress at the state level than in Washington in recent years.

Gerken rightly emphasizes that political empowerment through federalism enables minorities to be active agents protecting their own interests, as opposed to comparatively passive recipients of federal largesse, where their fate is in the hands of the national majority or the federal courts. Unfortunately, she ignores a different way in which federalism empowers minorities: By enabling a diversity of policies to arise in different jurisdictions, minorities are able to “vote with their feet” for the jurisdiction that serves them best. For reasons I describe in this article, foot voting is often of even greater benefit to unpopular minority groups than others. A century ago, millions of African-Americans improved their lot by migrating from the South to northern jurisdictions that had less racist policies. Today, ironically, many northern blacks are moving to the South in part because southern states have fewer regulations that artificially impede employment and inflate housing prices.

Gerken’s argument would be stronger if she were more willing to question the conventional wisdom about the history of American federalism, which holds that decentralization has almost always been an enemy of minorities, while the federal government is usually their friend. There is no doubt that state governments have engaged in severe oppression of minorities throughout much of American history. But the same can be said of the federal government, which was guilty of such sins as the Fugitive Slave Act; federally imposed segregation in the armed forces, the federal civil service, and the District of Columbia; the expulsion of Native Americans from much of their land; and the brutal internment of over 100,000 Japanese-Americans during World War II.

In an era when racial minorities were widely hated and wielded little political power, extensive discrimination against them was probably inevitable, regardless of whether the political system was unitary or federal. At many points in American history, however, centralization would likely have made minorities worse off than federalism did. For example, a unitary policy on slavery in 1787 would probably have led to a nationwide law in its favor, since nearly all states were still slave states at that time. A unitary national policy on racial segregation circa 1900 would likely have led to nationwide Jim Crow (though probably a less severe version than existed in the deep South) and nationwide denial of the right to vote for African-Americans. The point is not that federalism was always good for minorities (it clearly was not), but that our history is far more complicated than a morality play in which evil states oppress minorities until the latter are rescued by a benevolent federal government. I discussed these historical points about federalism and minority rights in greater detail here.

Finally, it’s worth noting that Gerken’s progressive defense of federalism coexists uneasily with her apparent rejection of judicial enforcement of structural constitutional limits on federal power. If federalism today is good for minority groups because they often have greater influence at the state and local level than in Washington, it logically follows that minorities could benefit from stricter enforcement of constitutional limits on federal authority. Otherwise, a hostile national majority can use its control of the federal government to override the locally powerful minority’s gains.

Much more can be said about Gerken’s article. For now, I would add only that it’s a valuable contribution to the ongoing reconsideration of federalism on the political left, as well as the broader debate on the subject.

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 good, because slavery might have been abolished soon anyway and the war did not result in anything resembling full equality for blacks. Libertarian historian Jeffrey Rogers Hummel is perhaps the leading modern defender of this view. I disagree with his perspective. But it is not unreasonable. The Civil War resulted in the loss of over 600,000 lives, extensive violations of civil liberties, and enormous destruction. And it is indeed true that blacks had to wait another century before they got full legal equality.

Nonetheless, I believe the war was worth the cost because the abolition of slavery was a tremendous advance even if it fell short of full equality. I am skeptical of claims that slavery would have disappeared quickly even without the war. As Blanks points out, slavery was not on its way out, either economically or politically, and the price of slaves was actually rising – indicating that the market expected the “Peculiar Institution” to last for a long time to come.

III. Pro-Confederate Libertarians.

We now come to those libertarians who actually defend the Confederacy and its “right” to secession, the targets of Blanks’ posts. These libertarians argue either that the secession wasn’t really about slavery or that the southern states had a right to secede regardless of their reason for doing so.

On the first point, as Blanks emphasizes, the Confederate leaders themselves repeatedly stated that protecting slavery was their principle motivation. This was forcefully articulated at the time by Jefferson Davis, Confederate Vice President Alexander Stephens (who famously called slavery the “cornerstone” of the Confederacy), and the southern state governments’ official statements giving their reasons for secession. Modern defenders of the Confederacy cannot get around the fact that the most damning evidence against it comes from the statements of its own leaders.

As for claims that the southern states had a right to secede independent of their motives for doing so, Blanks effectively dismantles this one. Slavery was a far greater violation of libertarian rights than anything that white southerners were suffering at the hands of the federal government in 1861. Even if a majority of the population in some jurisdiction supports secession, libertarians should still oppose if the purpose of secession is to perpetuate and extend a massive violation of libertarian rights. And few institutions violate such rights more blatantly than slavery. I don’t agree with all of Blanks’ arguments. Unlike him, I think it’s far from clear that secession was unconstitutional. But whether constitutional or not, Confederate secession was a great evil. Indeed, if the Constitution did permit secession for the purpose perpetuating slavery, that’s more an indictment of the Constitution than a justification of Confederate secession.

IV. Remembering that Blacks Count Too.

I would also add an important point that is overlooked by both Blanks and most modern defenders of the Confederacy: Even if you do endorse any secession that is supported by a majority of the population in a given state, you should still condemn the Confederacy. Southern secession can only be defended on majoritarian grounds if you discount the views of southern blacks. As of 1860, African-Americans constituted about 40% of the population of the states that formed the Confederacy. It’s a safe bet that they were overwhelmingly opposed to secession. When you combine this overwhelming black opposition with that of the substantial minority of southern whites who also wanted to stay in the Union, it is highly likely that a majority of southerners in 1861 opposed secession. Once you recognize that blacks count too, it becomes clear that Confederate secession was anti-majoritarian as well as proslavery.

I don’t believe that most of today’s libertarian defenders of the Confederacy ignore the views of blacks out of racism. They probably do so because they unthinkingly take for granted the laws of the time, which in the South excluded even free blacks from the franchise (as was also true in many northern states). But there is no reason to accept the validity of that exclusion. Indeed, libertarians should be the first to recognize that southern state governments had no right to rule over African-Americans without even the slightest pretense of gaining their consent.

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 though the Yale faculty is now entirely different. (Yes, to be precise, Yale Law School is just a unit within the larger corporation of Yale University.) None of the original personnel at National Review magazine are still there, but one can find many similarities between the corporate culture and mission of NR in 1955 and 2011. That the various corporations of the Ivy League schools discriminated against Jews in the 1920s is, in my view, of some relevance in understanding their current discrimination against Asians. That Mercedes-Benz was, compared to other German corporations, unusually supportive to Hitler then, and is similarly unusual (compared to other German corporations) in its attitude towards Che today, suggests that the corporation may lack an internal self-regulator which recognizes the wrongfulness of extolling totalitarian thugs.

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 very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

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.

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 Supreme Court has given condemning authorities a near-blank check to take property for whatever purposes they want.

Part II examines the impact of blight and economic development condemnations on minority groups. Both types of takings often victimize racial and ethnic minorities. Although such condemnations are defended on the grounds that they are needed to promote economic growth in poor communities, they often destroy far more wealth than they create. Economic development can be better promoted by other, less destructive means. African-Americans and Hispanics are targeted more often than other groups in large part because of their relative political weakness and comparatively high poverty rates. While, certainly, not all members of these groups are poor or politically weak, a disproportionately large number are.

Finally, in Part III I explain why the problem of abusive takings persists despite the wave of state reform laws adopted in response to the Supreme Court’s unpopular decision upholding economic development takings in Kelo v. City of New London. Many of the new laws actually impose little or no constraint on economic development takings. Even those that do impose meaningful restrictions usually still allow private-to-private condemnations in the types of “blighted” areas where many poor minorities live. Although post-Kelo reforms are a step in the right direction, much remains to be done before the property rights of poor minorities are anywhere close to fully protected.

UPDATE: Various commenters ask why this should be considered a “civil rights” issue and why it should matter whether there is a disproportionate impact on minorities. My answer is that property rights are in fact a major part of the “civil rights” that the framers and ratifiers of the Fourteenth Amendment sought to protect. And they particularly wanted to ensure their protection for African-Americans, whose property rights were at the time threatened by southern state governments. The disproportionate impact on minorities also matters because it is in part the result of past and (to a lesser extent) present racism, as is also the political weakness that makes it easier for even unbiased local governments to target the poor minority neighborhoods. It is not my view that the disproportionate impact on minorities is the only or even the most important aspect of this issue. But it’s certainly worth considering, and well within the mandate of the Commission on Civil Rights.

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.

Seven miles away from the fairgrounds is the town of Philadelphia, Mississippi, where three civil rights workers were murdered in 1964. Unfortunately, it would be difficult to find many places in Alabama or Mississippi which are not within seven miles of the scene of some infamous past act of racial violence, such as a lynching.

Reagan’s Neshoba speech was 33 paragraphs, consisting almost entirely of remarks about economics and jokes about Jimmy Carter. In the middle of the speech, he discussed his experience with welfare reform as Governor of California. He began by rebutting the idea that people on welfare are lazy and don’t want to work. To the contrary, said Reagan, they were just trapped by bureaucracy. Welfare, education, and other programs would work better for their beneficiaries if they were managed by state and local governments, rather than federally:

“I don’t believe stereotype after what we did, of people in need who are there simply because they prefer to be there. We found the overwhelming majority would like nothing better than to be out, with jobs for the future, and out here in the society with the rest of us. The trouble is, again, that bureaucracy has them so economically trapped that there is no way they can get away. And they’re trapped because that bureaucracy needs them as a clientele to preserve the jobs of the bureaucrats themselves.

“I believe that there are programs like that, programs like education and others, that should be turned back to the states and the local communities with the tax sources to fund them, and let the people [applause drowns out end of statement].

“I  believe  in  state’s  rights; I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we’ve distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I’m looking for, I’m going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.”

A rather mainstream sentiment, even if some devotees of federal centralization might disagree with it. Indeed, the bipartisan welfare reform law signed by President Clinton carried out Reagan’s vision, by returning much of the control of federal welfare programs to the states.

Some ignorant people claim that “state’s rights” is just a euphemism for racism. The phrase certainly has been sometimes been misused that way, but it is false to claim that the phrase is necessarily racist. Rep. Barney Frank (D-Mass.) introduced the “States’ Rights to Medical Marijuana Act” in the 107th, 108th, and 109th Congresses.

Reagan ended up winning Mississippi by 1.4% of the vote. Both Reagan and Carter were politically smart to take the opportunity to speak before large audiences in the rural South in states where the election would be close. It would be false to say that Carter was appealing to racists because he kicked off his campaign in a town that was the current home of the Ku Klux Klan, and it would be equally false to say that Reagan was appealing to racists because he mentioned his lifelong theme of state’s rights at a county fair several miles away from the site of an infamous crime 16 years earlier. Today, columnists and commentators who tell you that the ”kick off” for Reagan’s general election campaign was an appeal to racists are demonstrating that they don’t bother to check the facts before they make extreme allegations. People who are making coded appeals to racism don’t tell their audience that the “stereotype” of welfare recipients is wrong,  and that “the overwhelming majority” of them want to work.

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 been dead on arrival, as happened with the health care “public option.” It would also have hurt Obama’s electoral prospects, and those of the Democratic Party more generally. Like most successful politicians, Obama usually puts political survival first.

I don’t deny that Obama might genuinely have less left-wing views (including on racial issues) than West. Indeed, that’s a very likely possibility. Obama is on the left side of the Democratic Party mainstream, while West, a self-described “non-Marxist socialist,” is much further to the left than that. It’s understandable that a socialist like West believes that a conventional liberal like Obama isn’t left-wing enough. But it’s doubtful that the difference is caused by what West calls Obama’s “deracination.” There are plenty of liberal Democratic blacks who aren’t as far to the left as West, despite not having Obama’s unusual background. Indeed, the average African-American liberal is probably ideologically closer to Obama than to West.

Be that as it may, this is another case of pundits overestimating the impact of the personal on the political. Most of what Obama has done is readily explicable by his partisan background and the political situation he finds himself in rather than by personal idiosyncracies. To the extent that his personal views are discernible, they seem very similar to those of other liberal intellectuals of his generation, both white and black.

In a weird way, critics like D’Souza and West have much in common with the enthusiastic Obama supporters who in 2008 believed that Obama represented a fundamental break with politics as we know it. Both groups assume that the president is a lot more special than he actually is.

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 accurately portrays (and condemns) the widespread racism of the era it depicts. Censoring out the word “nigger” undercuts its educational value. In mid-nineteenth century America, many whites – especially poorly educated ones like Huck Finn – routinely used the the word in everyday speech. That fact reflected the ubiquity of racism, and as, McWhorter puts it, should not be whitewashed away.

Moreover, many other great works of literature also portray attitudes that are reprehensible and offensive. Unlike Twain, many other great authors actually endorsed such attitudes rather than condemned them. For example, some of the works of Shakespeare, Dickens, and Dostoevsky (The Merchant of Venice, Oliver Twist, etc.) reflect the widespread anti-Semitism of their time, a prejudice that these authors at least partially shared. Should all such works also be sanitized before assigning them to high school students? As McWhorter explains, educators would do better to explain the relevant historical context to their students instead of trying to shield them from literary depictions of offensive words and attitudes.

UPDATE: I have tried to find polling data on the subject of whether the majority of blacks really do oppose efforts to sanitize Huckleberry Finn, as McWhorter says. Unfortunately, a brief search didn’t find any relevant surveys. If any of our readers can point me to any such polls, I would be grateful. However, I am only interested in polls based on random samples, not internet polls with self-selected respondents, who may not be representative.

UPDATE #2: It’s also worth noting that replacing “nigger” with “slave” might obscure the meaning of the original text in some places, for example when the word is used to refer to blacks who weren’t slaves, thereby potentially confusing some readers.

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 felt this was justified because it would increase overall material wealth. Clear echoes of this argument are still made in libertarian circles today.

To the extent that Tamanaha merely wants to suggest that early libertarians such as Spencer made some very dubious arguments that modern libertarians should repudiate, he is surely right. I also welcome his acknowledgement, which echoes that of some other liberal scholars, of the close relationship between early 20th century progressivism and racism. But I take issue with some of his other points about both libertarianism and progressivism.

I. Progressivism and Racism.

I don’t believe that early 20th century Progressive racism is as easily sidestepped by modern liberals as Tamanaha suggests. As I explained in my earlier post on the subject, “The racist elements of Progressive ideology don’t prove that economic interventionism is racist by nature..... Still less do they prove that modern left-wingers are necessarily racist as well. But they do undercut claims that racism is primarily a product of the ‘right’ and that economic leftism and racial progress necessarily go together.” The point is not that modern liberals are racists (the vast majority are not), but that many of them are wrong to believe that racism is mostly or exclusively a product of “the right.”

There is a second, even more important, lesson here as well. It is that concentrating economic power in the hands of government is unlikely to benefit unpopular minority groups and the politically weak more generally. Rather, government intervention is likely to benefit the politically influential at the expense of the weak, which usually includes the poor, as well as disliked racial, religious and other minorities. As co-blogger David Bernstein notes, “[a]s a matter of American history, activist government was often used to oppress minority groups. As a matter of world history, the record of “activist government” with regard to minorities is even worse. And as a matter of political theory, it’s not at all clear why one would expect public policy in a democracy to necessarily be helpful to minority groups.” Progressive-era economic regulations that victimized blacks and immigrants are just one of many historical examples.

This is the really important lesson of early 20th century racism for modern progressives. And it’s one that few of them have fully assimilated. Indeed, it’s not clear that they can assimilate it without seriously questioning one of modern progressivism’s central commitments: the idea that there should be few or no constitutional constraints on government’s power to control “economic” activities.

II. Libertarianism and “Hard-Heartedness.”

Tamanaha is indeed correct to note Herbert Spencer’s social Darwinist “hard-heartedness,” which is not defensible. On the other hand, few if any modern libertarians either oppose all charity or rely on social Darwinist arguments about the “survival of the fittest” in any significant way. David’s work on the Lochner era shows that social Darwinism was a much less important element even in early 20th century libertarian legal thought than was traditionally believed. For example, contra Oliver Wendell Holmes, it is simply not true that the justices who decided Lochner did so under the influence of social Darwinist ideas.

Few modern libertarians even cite Spencer or other social Darwinists at all. By contrast, modern liberals do often cite early 20th century progressives as inspirations for their ideology. And until recently, few of them paid much attention to the more unsavory aspects of early 20th century Progressivism (though I should add that some far left radical scholars, such as Gabriel Kolko, were much more critical).

Tamanaha is also correct to note that many modern libertarians oppose welfare statism across the board for reasons unrelated to social Darwinism. He is wrong, however, to suggest that this position is an essential element of libertarian thought. Such prominent libertarian scholars as Milton Friedman (inventor of the negative income tax), and F.A. Hayek argued that libertarianism is compatible with a strictly limited welfare state. It is a coherent position to argue that property rights and economic liberties should get strong protection – far stronger than most liberals would permit – without concluding that they always outweigh all other considerations.

While my own views are close to the Hayek-Friedman position, I do not believe that more categorical versions of libertarianism are morally disreputable or something that modern libertarians should be embarrassed about. There is a serious case that the functions currently performed by the welfare state are likely to be better done by private organizations. Historian David Beito has shown how the rise of the welfare state destroyed many private mutual aid organizations that often did a better job of providing social services to the poor without creating perverse incentives. You don’t have to be either a social Darwinist or “hard-hearted” to endorse Beito’s position. Indeed, Arthur Brooks’ research shows that opponents of government welfare on average donate a far larger proportion of their income to charities that benefit the poor than supporters do.

As for public education, its extremely poor record over the last several decades and its repeated use for indoctrination suggests that libertarians have no reason to apologize for Mises’ views. To put it a different way, libertarians can support educating the public without supporting public schooling. As E.G. West describes in his classic Education and the State, education levels in Britain and the United States were rapidly rising before the introduction of public schooling, which was largely motivated by a desire to indoctrinate students in government-approved religious and political views. In the words of John Stuart Mill, an important intellectual forebear for both libertarians and progressives, “A general State education” promotes whatever view “pleases the predominant power in the government.... in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body.”

UPDATE: I am having some difficulties eliminating certain technical problems in this post. I hope to get them resolved soon.

UPDATE #2: The technical issue has been solved.

UPDATE #3: Various people, including my wife and David Bernstein, have pointed out that I was too quick to endorse Tamanaha’s critique of Herbert Spencer. As Damon Root explains here, Spencer was not actually opposed to private charity, and many of the other standard charges against him are also based on distortions of his work:

At the heart of [historian Richard] Hofstadter’s [famous] case [against Spencer] is the following passage from Spencer’s famous first book, Social Statics (1851): “If they are sufficiently complete to live, they do live, and it is well they should live. If they are not sufficiently complete to live, they die, and it is best they should die.”

That certainly sounds rough, but as it turns out, Hofstadter failed to mention the first sentence of Spencer’s next paragraph, which reads, “Of course, in so far as the severity of this process is mitigated by the spontaneous sympathy of men for each other, it is proper that it should be mitigated.” As philosophy professor Roderick Long has remarked, “The upshot of the entire section, then, is that while the operation of natural selection is beneficial, its mitigation by human benevolence is even more beneficial.” This is a far cry from Hofstadter’s summary of the text, which has Spencer advocating that the “unfit...should be eliminated.”

Similarly, Hofstadter repeatedly points to Spencer’s famous phrase, “survival of the fittest,” a line that Charles Darwin added to the fifth edition of Origin of Species. But by fit, Spencer meant something very different from brute force. In his view, human society had evolved from a “militant” state, which was characterized by violence and force, to an “industrial” one, characterized by trade and voluntary cooperation. Thus Spencer the “extreme conservative” supported labor unions (so long as they were voluntary) as a way to mitigate and reform the “harsh and cruel conduct” of employers.

Roderick Long has more information on Spencer’s views on charity here.

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 fitted to live in this world.”

And for those who are not “best fitted to live in this world”? In his 1910 short story “The Unparalleled Invasion,” the United States—with the author’s plain approval—wages biological warfare on China to decimate its population. It then invades and takes it over. It is, the story says, “the only possible solution to the Chinese problem.”

London’s simultaneous advocacy of racism and socialism was no anomaly among early 20th century Progressives. As co-blogger David Bernstein and Princeton economist Tim Leonard document here, many Progressives had a similar combination of views (see also here). Indeed, large-scale government intervention in the economy was justified in part by the supposed need to protect white workers from competition by members of “inferior” races.

Even by the standards of the time, London was extreme in both his socialism and his racism. As Hari notes, London thought that the Socialist Party was far too moderate. Very few American Progressives shared his belief that the Chinese and at least some other non-white races should actually be exterminated, as opposed to merely subordinated to whites. But the basic combination of racism and economic leftism was all too common in the early 20th century.

The racist elements of Progressive ideology don’t prove that economic interventionism is racist by nature, or that the policies Progressives defended in large part on racist grounds can’t be justified in other ways. Still less do they prove that modern left-wingers are necessarily racist as well. But they do undercut claims that racism is primarily a product of the “right” and that economic leftism and racial progress necessarily go together. Indeed, many of the early advocates of racial equality were mostly libertarian on economic issues, including Frederick Douglass, William Lloyd Garrison, and civil rights lawyer Moorfield Storey, one of the founders of the NAACP.

Despite London’s reprehensible racism and socialism, I don’t think it’s necessarily wrong to admire his novels on literary grounds. We can admire Dostoevsky’s work even though he was a rabid anti-Semite and apologist for czarist repression. Still, knowing London’s political and racial views make it a little hard to love White Fang quite as much as before.

In his much-discussed recent Wall Street Journal op ed, Virginia Senator James Webb makes some good points about affirmative action and race, but also some key mistakes and omissions. On the plus side, Webb’s article highlights the contradictions between the “diversity” and compensatory justice rationales for affirmative action. He also correctly suggests that slavery and segregation inflicted considerable harm on southern whites as well as blacks; it is therefore a mistake to view these injustices as primarily a transfer of ill-gotten wealth from one race to another. On the negative side, Webb is very unclear as to his own position on affirmative action. He also seems to blame racism and the historic economic backwardness of the South on the machinations of a small elite. The reality was more complicated. Low-income southern whites were often much more supportive of racism and segregation than economic elites were, and Jim Crow might have been less virulent without their support.

I. Competing Rationales for Affirmative Action.

One of Webb’s best points is that affirmative action has resulted in preferences for groups that cannot claim to be victims of massive, systematic injustices inflicted in the United States:

In an odd historical twist that all Americans see but few can understand, many programs allow recently arrived immigrants to move ahead of similarly situated whites whose families have been in the country for generations. These programs have damaged racial harmony. And the more they have grown, the less they have actually helped African-Americans, the intended beneficiaries of affirmative action as it was originally conceived....

The injustices endured by black Americans at the hands of their own government have no parallel in our history, not only during the period of slavery but also in the Jim Crow era that followed. But the extrapolation of this logic to all “people of color”—especially since 1965, when new immigration laws dramatically altered the demographic makeup of the U.S.—moved affirmative action away from remediation and toward discrimination, this time against whites....

This state of affairs highlights the contradictions between the compensatory justice and “diversity” rationales for affirmative action, which I previously discussed here, here, and here. Under the latter, it may be permissible to give preferences to any group with a supposedly different or unique perspective. Under the former, recent immigrants and other minorities who have not been victims of massive large-scale discrimination in the US should not get preferences. Even among black beneficiaries of affirmative action at elite universities, a significant percentage are recent West Indian and African immigrants.

Like Webb, I tend to be skeptical about the “diversity” rationale and at least somewhat sympathetic to the compensatory justice argument. Unfortunately, Webb doesn’t make clear whether his position is that affirmative action preferences should be abolished entirely or limited to African-Americans. If the latter, should they be limited to descendants of victims of slavery and Jim Crow, or should recent immigrants continue to be included (as they usually are now)?

II. Jim Crow Racism as a Negative-Sum Game.

Webb’s other good point is that whites are not a “monolith,” emphasizing that the historic economic backwardness of the South greatly harmed southern whites as well as blacks. He could have made this point stronger by noting that that backwardness was in large part the legacy of slavery and Jim Crow. As economic historians have documented, these institutions prevented the South from fully utilizing the abilities of some one third of its population and tended to deter economic innovation and outside investment. It’s no accident that the economic rise of the “New South” really took off only after the Jim Crow system was eliminated in the 1960s.

Slavery and Jim Crow are sometimes seen as a massive transfer of wealth from blacks to whites, a kind of zero-sum game where one group plundered the other. Advocates of reparations argue that the beneficiaries of injustice must therefore compensate the former by returning their ill-gotten gains. There is no doubt that some whites benefited from the system. Overall, however, slavery and Jim Crow were negative-sum games that harmed both groups (albeit blacks suffered much more). The net impact of slavery and segregation on southern white wealth was almost certainly negative, once we take into account the harm caused by the resulting economic backwardness, the expenses associated with repressing blacks, and the massive destruction wrought by the Civil War.

III. Webb and the Role of Poor Whites.

Unfortunately, Webb seems to treat poorer whites as passive victims “dominated by white elites who manipulated racial tensions in order to retain power.” In reality, poorer southern whites tended to be strong supporters of slavery and segregation. In the Jim Crow era, they often supported the system much more strongly than wealthier whites and business interests did. For as far back as we have survey data, support for racism and segregation among whites was inversely correlated with income and education. When Jim Crow laws were first established in the late 19th century, elite business interests often opposed the system because they feared it might damage their economic interests. Populist political pressure overcame that opposition. Populist racism often led political elites to take more segregationist positions than they personally preferred. For example, George Wallace’s biographer Dan Carter documents how Wallace started out his career as a relative racial moderate, but switched to a hard-line segregationist position after he got “outniggered” (as Wallace put it) by a more segregationist opponent in his first campaign for governor.

The racism of low-income whites was in part the result of indoctrination by elites and state governments. It was also partly the result of rational political ignorance and irrationality. Still, the fact remains that that racism, Jim Crow, and southern economic backwardness were not just the result of manipulation by evil elites. The masses had a hand too.

The NAACP and others have accused Tea Party supporters of racism. There is no doubt that some Tea Party members are racist. But the same can be said for some members of any large group, including the Party’s opponents. The important questions are whether Tea Party supporters are on average more racist than the general population, and whether that racism is an important driver of their political agenda. The available survey data doesn’t justify either charge.

Tea Party supporters cite Gallup data showing that Tea Party sympathizers are demographically similar to the general population. However, critics correctly point out that the crucial point at issue in the debate is the Tea Partiers’ attitudes, not their demographics.

I. The University of Washington WISER Survey.

The study most commonly cited by those claiming that Tea Party members are unusually likely to be racist is this recent survey of voters in seven states conducted by the University of Washington Institute for the Study of Ethnicity, Race, and Sexuality (WISER). It has gotten lots of coverage (e.g. – here, here, and here). The study authors don’t claim that white Tea Partiers have unusually high levels of racism as such, but they do argue that this group has more “racial resentment” than other whites. That charge, however, is poorly supported by the study’s actual data.

Some of that data simply shows that Tea Partiers hold more conservative views on racial policy issues than do opponents and moderates. For example, they are more likely to be hostile to affirmative action, and more likely to believe that historic racism and slavery are not the major causes of black socioeconomic disadvantages. The Tea Partiers may be wrong about some of this, but it doesn’t prove either racism or resentment towards blacks.

The strongest evidence of possible racism in the WISER study is the finding that only 35% of committed white Tea Party supporters describe blacks as “hardworking” (compared to 55% of strong opponents), only 45% see them as “intelligent” (compared to 59% of opponents and only 41% view them as “trustworthy” (compared to 57% of Tea Party opponents). The numbers for assessments of Latinos are similar, though slightly more favorable.

This data has limitations. It doesn’t prove that Tea Partiers are unusually likely to view blacks and Latinos negatively, believe that they should be discriminated against, or even that blacks have fewer positive traits than whites. Still, it’s at least plausible to believe that a person who refuses to describe a group as “hardworking,” “trustworthy,” or “intelligent” is prejudiced against them.

That conjecture breaks down, however, once we look at the survey’s data on white Tea Party supporters attitudes towards whites. Only 49% of strong Tea Party supporters describe whites as “hard working” (59% of opponents describe whites that way), 59% characterize whites as “intelligent” (compared to 69% of opponents) and 49% describe whites as “trustworthy” (compared to 72% of opponents).

If refusing to describe a group as “hard working,” “intelligent,” or “trustworthy” is an indication of prejudice or “resentment” against it, then about half of white Tea Party supporters seem to be strongly anti-white. Moreover, white Tea Party supporters would seem to be more anti-white by this measure than are white Tea Party opponents, who are far more likely to attribute the three positive characterizations to whites. It’s reasonable to note that white Tea Party supporters are more likely to ascribe the three positive attributes to whites than to blacks. But the same is also true of Tea Party opponents. For example, 72% of strong opponents describe whites as trustworthy, compared to 57% who describe blacks that way.

Interestingly, many more strong Tea Party supporters describe Asians as hardworking (64%) and intelligent (66%) than whites. Strong white Tea Party supporters are also slightly more likely to describe Latinos as “hardworking” (54%) than whites (49%).

It’s not impossible for people to be prejudiced against their own racial or ethnic group. Still, it seems highly unlikely that half of white Tea Party supporters (and about 40% of all whites) harbor strong prejudice or resentment towards their fellow whites.

If not racism or racial resentment, what explains the WISER findings on these three questions? It’s hard to know for sure. However, I conjecture that many respondents interpret these questions differently from what the authors intended. When people describe someone as “intelligent,” “trustworthy,” or “hardworking,” they could mean that the person in question meets some minimal threshold level of this quality. But they could also mean that he or she is more intelligent or hardworking than the general population. I suspect that the authors interpreted these questions the former way, while many survey respondents took the latter view. For example, most of the 51% of white Tea Party supporters who refused to describe whites as “hardworking” probably didn’t mean to suggest that whites are generally lazy. Rather, they just think that whites are not especially hardworking relative to other groups or relative to some other baseline.

Other explanations for the data are also possible. What is not plausible, however, is the claim that the data are strong evidence of racial prejudice or resentment.

In a recent Salon article, Christopher Parker, the lead author of the WISER study, briefly mentions some of these points, but fails to seriously consider the ways in which they undercut his thesis.

II. Racism and the Tea Party Agenda.

None of the above definitively proves that Tea Party supporters are not more likely to be racist than other members of the population. Further research might well show that they are. Even if racists do turn out to be overrepresented among Tea Party members, it does not follow that the majority of Tea Partiers are racists or that racial concerns are a major motivation for the group. Overrepresentation should not be confused with domination. Survey data overwhelmingly show that concerns about the size of government and other economic issues are the main focus of Tea Party members.