Each time the federal government of these United States comes close to emerging from its eternal psychosis on the question of using a crude system of racial classifications to condition citizens’ relationship with the state, it suffers a relapse. In the Supreme Court’s latest ex cathedra decree on the issue, regarding the use of racial preferences in Michigan state-university admissions, there were four separate opinions for the prevailing side alone, together commanding the concurrence of six justices, while Justices Sotomayor and Ginsburg of the Left bloc were united in dissent, and Justice Kagan absented herself from the case. The most charitable reading of that outcome, which also is the gullible reading, is that the legal questions are difficult and therefore splintered these, the best and most judicious legal scholars in our land. The more likely reading is that the Court is engaged in politics rather than in jurisprudence, that this has been the case for some time, and that the various justices’ reading of the Constitution is dependent upon their decisions rather than the other way around.
It is difficult not to share in the frustration of Antonin Scalia. “It has come to this,” Justice Scalia writes. “Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself.” He goes on to quote himself in Grutter v. Bollinger: “‘The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.’ It is precisely this understanding — the correct understanding — of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.” The plaintiffs in the case argued that by adopting a constitutional amendment, the people of Michigan unfairly disadvantaged those who would seek to use the political process to impose official racial preferences on the people of that state; George Will points out that the First Amendment likewise disadvantages those who wish to establish a Church of the United States and fill its collection plates with tax dollars. That constitutions limit the possible outcomes of the democratic process is the reason we have them; if they do not limit the power of majorities, they are little more than studies in calligraphy.
Understanding the political schizophrenia of the United States regarding so-called affirmative-action policies is somewhat easier if one digests the fact that those who today advocate the use of racial discrimination for purportedly benevolent purposes are members of the same party and the same political movement that advocated the use of racial discrimination for plainly malevolent purposes not very long ago. The Democratic party, and the progressive movement of which it is the main instrument, has never objected to racial discrimination as such; they have only reassessed the electorate and subsequently reconsidered the ends toward which racial discrimination should be used.
The modern Democratic party, and the modern Left, has convinced itself of a fantasy version of its own history in which the two parties suddenly and inexplicably swapped places on the issues of race and racism. The Republicans gave the world Abraham Lincoln while the Democrats threw up Bull Connor, but Democrats believe they can explain this uncomfortable fact away thus: “There were a lot of nasty segregationists and white supremacists in our party in those ancient days when the Beatles were still performing in suits, but those were conservatives, whereas progressives were as clean as pins on matters racial.” This is true only if one defines “conservative” as racist and “progressive” as anti-racist. But the actual history of the 20th century is both more complicated and less.
Bernie Sanders, the maple-glazed son of Brooklyn who represents the state of Vermont and the cause of socialism in the United States Senate, is fond of issuing a litany of policies that Republicans would like to see repealed, among them Social Security, the minimum wage, Medicare, and Medicaid. (From his lips to Mitch McConnell’s exquisitely sensitive ears!) There are conservatives and Republicans who today seek to lay waste to the New Deal and the mid-century progressive consensus, and they are the political heirs of the conservatives and Republicans who tried to prevent the establishment of those programs in the first place. In a comprehensive study of congressional votes from 1933 to 1950, political scientist Ira Katznelson — then at the New School for Social Research — and two other scholars tabulated the roll-call votes and broke them into six broad categories relating to conservative and progressive positions: civil rights, fiscal policy, economic planning, business regulation, welfare programs, and labor legislation. The Republicans of the day voted as Senator Sanders might expect the conservatives of 2014 to vote: They were very hostile to fiscal expansion, economic planning, regulation, welfare programs, and labor protections. In no case did Republicans give more than a third of their votes on economic matters to what Professor Katznelson describes as the Left bloc. By contrast, Republicans supported civil rights 77 percent of the time.
#page#Southern Democrats, those alleged conservatives, were practically indistinguishable from non-southern Democrats on questions of fiscal liberalism and economic intervention through government planning and regulation. They favored welfare programs with 73 percent of their votes. They differed from their non-southern Democratic colleagues on only two issues: civil rights, as expected, and labor. It is worth noting that even non-southern Democrats had by Professor Katznelson’s count a less respectable record than did Republicans on civil rights, and that southern Democrats came in about halfway between non-southern Democrats and Republicans on labor issues — but were distant outliers on racial issues. Contrary to the myth of the conservative southern Democrat, the sons of the Confederacy voted en bloc with the GOP on a vanishingly small number of issues; as Professor Katznelson puts it, “a Republican–southern Democratic alliance appeared on labor questions exclusively.” On the progressive agenda — from business regulation to the creation of the modern welfare state — southern and non-southern Democrats voted together 87 percent of the time.
Democratic segregationists north and south were instrumental in the passage of such progressive policies as the minimum wage and Social Security, in the latter case excluding agricultural workers and domestic servants, thereby shutting out two-thirds of the black work force in the South. There was no contradiction in the opposition of a New Dealer such as Lyndon Johnson to anti-lynching laws, or indeed in this piece of advice to the South from a capital-P Progressive such as Senator Rebecca Latimer Felton: “If it takes lynching to protect women’s dearest possession from drunken, ravening beasts, then I say lynch a thousand a week.” The progressives and the racists were in no small part the same people.
Progressives imagine themselves to be scientific, or empirical, as Ezra Klein would have it, and their ambitions are managerial. For humanity to be organized and regimented it must first be classified, and hence the progressive romance with race, class, sex, etc. This sometimes has odd results, such as the extraordinary attention paid to the imaginary “1 percent,” as though that were a coherent and semi-permanent group of individuals rather than a statistical abstraction that has few of the same members from year to year. As any corporate foot soldier knows, you manage what you measure, and if you measure university admissions by race, you will get racial disparities.
Considering the racial composition of the class of 2014 at the University of Michigan, and noting the underrepresentation of African Americans therein, one might ask some uncomfortable questions about the public schools and their relatively poor performance in preparing black students for life after high school, or about prevailing cultural norms that see black children growing up disproportionately in poor and single-mother households. Simply passing a law mandating that university admission policies be revised until the desired racial proportion is reached should strike an intelligent person as the crudest approach imaginable — but if you are a member of a party and a political tendency with a two-century history of using the government as a racially regimented spoils system, doing so makes a lot more sense. Today’s progressives are invested in the relative poverty and marginalization of black Americans, and no less convinced than their political ancestors were a generation ago that using race as a tool of public policy can serve their ends. Justice Sotomayor’s yogic accommodation of racial bias is not an emblem of how much the Democratic party has changed since the days of Bedsheets Byrd, but of how little.