What is Racism? What is America?
“It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. ... They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion. …
Citizenship at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the Government.”
C.J. Roger Taney, opinion of the Court, Dred Scott v. Sandford (1857)
“It is most certain that all men, as they are sons of Adam, are coheirs, and have equal right unto liberty. … So that originally, and naturally, there is no such thing as slavery. … How horrible is the uncleanness, mortality, if not murder, that the ships are guilty of that bring great crouds of these miserable Men, and Women. Methinks, when we are bemoaning the barbarous sage of our friends and kinsfolk in Africa: it might not be unseasonable to enquire whether we are not culpable in forcing the Africans to become slaves amongst our selves.”
Samuel Sewell, The Selling of Joseph (1700)
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”
John Adams, Benjamin Franklin, and Thomas Jefferson, The Declaration of Independence (1776)
“Provided, also, That a freehold in fifty acres of land in the district, having been a citizen of one of the states, and being resident in the district, or the like freehold and two years residence in the district, shall be necessary to qualify a man as an elector of a representative.
“There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.”
Northwest Ordinance (1787)
“[Abraham Lincoln] believed that free black people were a ‘troublesome presence’ incompatible with a democracy intended only for white people.”
Nikole Hannah-Jones, 1619 Project (2019)
“I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I cannot remember when I did not so think, and feel.”
Abraham Lincoln, Letter to Albert G. Hodges (1864)
“Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. … [I]n her natural right to eat the bread she earns with her own hands without asking leave of anyone else, she is my equal, and the equal of all others.”
Abraham Lincoln, Speech on the Dred Scott Decision (1857)
Roger Taney and Nikole Hannah-Jones have the same, mistaken view of the United States of America. Tany is the infamous Chief Justice of the United States who authored the U.S. Supreme Court’s opinion in Dred Scott v. Sanford. He ruled that black people cannot be citizens of the United States and constructed a false American history to support his judgment. In his narrative, black people never voted, nor participated in ratification of the Constitution, nor exercised any of the other privileges and immunities of citizenship, and were nowhere eligible for citizenship. As the dissent pointed out at the time, and as Abraham Lincoln observed shortly thereafter in his debates with Stephen Douglas, those assertions are false. Tany also claimed that no black persons had enjoyed the natural rights of life, liberty, and property in the United States, England, or Europe, and that no white Americans thought them possessed of natural rights. That also was obviously untrue.
Hannah-Jones and her colleagues in the 1619 Project are more subtle than Taney. They aspire not to rewrite American history but to “reframe” it by placing systems of racism at the core and by moving American founding and Reconstruction ideals, norms, and institutions to the periphery. Along the way, they attribute nefarious motivations and sentiments to Americans who contributed to emancipation, which are directly at odds with the words and actions of those Americans. Their narrative has quickly attained the status of dogma among cultural and educational elites.
For clarity, contrast both of those revisionist histories with the difficult history told at the Equal Justice Initiative’s Legacy Museum in Montgomery, Alabama. The museum is effective in part because it does not set out to recast all of American history as racist. Rather, it tells of an overlooked chapter in our history, between the end of Reconstruction and the second civil rights era, in which we failed to deliver on the promises of the Civil War Amendments, abandoned the presumption of innocence, and allowed racists to transform criminal law into a tool of segregation and violence. It fruitfully contrasts American jurisprudential commitments to due process and the rule of law with a particularly odious part of American practice.
By contrast, both Taney’s and Hannah-Jones’ revisionist narratives point toward the basic trope: At its core, America is racist. To evaluate that slogan, we need to understand just two terms, “America” and “racist.” We have important disagreements about both.
Sometimes we hear that America is “systemically” racist. As I’ll discuss below, racist systems have been constructed several times on American soil. But each time, the architects of racist systems have found it necessary to tear down or transform American norms and institutions, such as due process of law and the presumption of innocence, and to denigrate American ideals, such as the aspiration that each of us must treat each other human being as a person of equal worth and standing before the law, endowed with rights not by government or fellow citizens but by the God in whose image each is created. To see that is to see that the trope, “America is systemically racist,” gets things backwards and upside down. As I indicated in an earlier (shorter) post late last week, America is anti-racist; racist systems are generally anti-American.
So, what is “racist”? The classical view is that a racist act is an immoral act. The term “racist” refers to the intentions – the purposes, the reasons for action—of a rational, choosing, moral agent—a human being or group of human beings—who is personally responsible for his or her deliberations, judgments, and actions. On this view, a person who discriminates against another person because that other person is of a particular race has committed a racist act, whether or not the person discriminated against suffers any adverse consequences from the act, indeed, regardless whether anyone even knows about the act. Racist actions are products of human deliberation and choice. They are movements of human will. They corrupt human character and corrode human friendship and community.
This view, that an action is culpable or not according to the intention with which it is performed, prevailed at the time of the American founding and during ratification of the Civil War amendments. It is declared in the common law and codified in the numerous state and federal civil rights acts of the 1860s and 1870s, and in the U.S. Civil Rights Act of 1964. This view conceives of racism as a problem of natural and legal justice. The solution is to secure ordered liberty and protection of the laws according to long-standing common-law norms, such as the presumption of innocence and standards of (un)reasonable discrimination, and common-law institutions, such as public accommodation laws and jury trials to remedy unlawful exclusion.
The new view—the idea expressed in the trope, “America is racist”—is that something is racist if it produces disparate effects or consequences for different racial identity groups. It views racism in consequentialist, rather than moral, terms. It abstracts racism away from moral responsibility. It attributes racism to systems and institutions in which all do not succeed equally. This is why many people today consider neutral, standardized tests such as the SAT racist, and view actual acts of race-based discrimination, such as admitting less-qualified applicants ahead of better-qualified Americans of Asian descent, as morally unproblematic.
Now, turn these two different definitions of “racist” upon two systems set up during the Progressive Era of American history, which people have at times characterized as racist, eugenics programs and zoning ordinances. Eugenics programs, such as sterilization and abortion of human beings deemed “unfit,” were racist in their design and purposes. The architects of eugenics, leading figures such as Harry Hamilton Loughlin and Margaret Sanger, made clear that their conscious purposes included the eradication of mentally disabled people and racial minorities from the gene pool.
Not all Progressives supported eugenics and, on the classical definition of “racist,” most Progressives were not racists. The point is not who is responsible for America’s sins. The point is that arbitrary and unjust programs that have racial purity as an intended goal are the central instance of racist systems. Eugenic systems were clearly designed to achieve racist ends. So why do the eugenicists get a free pass from today’s anti-racist crowd? Perhaps it is because the most notorious examples of eugenic acts were perpetrated against white people, such as Carrie Buck. Or perhaps it’s because the consequences of eugenics do not count in the calculus of disparate effects which determines what acts are “racist” today.
Compared with eugenics, zoning ordinances seem benign on their face. But the rationale that zoning proponents offered when zoning first took root in the 1920s included segregating people along socio-economic lines. The idea was that central planners at the municipal level could better organize classes of people than the people could organize themselves, and could do this by preventing conflicting land uses from being too near each other. Predictably, segregating land uses according to the class of uses involved segregating people according to race and ethnicity. Whether that was an intended or unintended consequence probably varies according to the case.
Zoning ordinances are certainly systems. Unlike American norms and institutions, such as private property estates, which grew organically over the hundreds of years of Anglo-American legal history, zoning ordinances are artificial products of central planning. But are they racist? Under the classical definition of “racist,” zoning ordinances are not necessarily racist. They are just another example of the overconfidence of experts and central planners. On the new definition of “racist,” zoning ordinances are near the top of the list of examples of systemic racism.
In short, we disagree about the meaning of “racist.” To be “anti-racist” in elite society today is to be against zoning ordinances but not against sterilization and abortion. On the classical view of “racist” acts as immoral acts of responsible agents, that is mistaken. More to the point, when the “anti-racist” crowd goes after standardized tests, which are designed to achieve meritocracy and whose disparate effects can rationally be attributed to causes other than racism, such as broken families, people who understand racist acts to be moral acts find the criticism implausible.
We have many reasons to prefer the classical understanding of racist acts over the new, consequentialist definition. I’ll mention one. To call everything racist that results in disparate effects for racial identity groups de-values the normative currency of the term “racist,” and lessens the moral stigma attached to it. The word “racist” was a very useful way to express condemnation of morally abhorrent acts. Now, increasingly, it is viewed as just a lazy slander. if we use the same word to describe SATs and zoning ordinances that we use to describe lynching and coercive exclusion of blacks from public schools then it becomes very difficult to express the important moral truth that lynching and racial segregation are not just bad policy but are evil.
We disagree even more radically on the meaning of “America.” There really are ideals, norms, and institutions that run through the American experiment from before the founding, through the Civil War Amendments and first civil rights movement of the 1860s and 1870s, to the second movement in the 1950s and 1960s. They are repeatedly renewed and employed by abolitionists, civil rights advocates, and other Americans who fight unjust oppression. Call this set of ideals, norms, and institutions Aspiring America. And there really are systems that some Americans have built to control other Americans, whether with good intentions, in the exercise of raw power, or with mixed motives. Call this set Systemic America. Aspiring America has the better claim to the title “America” than Systemic America.
To see this, look again at the systems that powerful Americans have occasionally constructed, which were racist either by design or in their effects. From slavery, to the post-Reconstruction black codes, to eugenics, to housing and commercial segregation, all of the artificial systems of Systemic America required a repudiation or abrogation of ideals, norms, and institutions that are foundational to the American experiment.
Consider again eugenics, which required legislatures and jurists to do away with the founding doctrine of due process of law. American founders and jurists declared their commitment to the presumption of innocence and the corollary that no person may be deprived of life, liberty, or property unless and until they have been shown in a proceeding that satisfies the requirements of due process to have relinquished their natural rights in some act of culpable, legal wrongdoing. These commitments grew over the centuries from a nascent commitment to the “law of the land” in Magna Carta; to the Medieval common-law canon that penal statutes must be construed against the Crown; to the legal arguments for the presumption of innocence articulated forcefully by Matthew Hale, John Selden, and John Adams; to the terse and emphatic statement in the Fifth and Fourteenth Amendments that the national and state governments, respectively, must deprive no person of life, liberty, or property without due process of law.
By contrast, the architects of eugenics acts in the Progressive Era established statutory proceedings designed only to ascertain whether a potential sterilization victim were “feeble-minded” or could be crammed into some other class of unfit persons. In his infamous ruling in Buck v. Bell, Supreme Court Justice O.W. Holmes Jr. abrogated the foundational American commitment to due process and ratified the eugenicist idea of due process as whatever proceeding the positive law allows. Without Holmes’ abrogation of the requirement of due process, eugenics would have come to an abrupt end.
Holmes and other Progressives were legal pragmatists (like most elite law professors and lawyers today, who were educated by Holmes’ disciples, the Legal Realists, and their students, the Legal Crits). They understood law only as what Holmes elsewhere called the “articulate voice of some sovereign,” either a legislature or a court. They mocked, denigrated, and ultimately swept away common law, natural law, and the ius gentium. In short, they did away with the American conception of law that made intelligible the commitment to due process declared in the Fifth and Fourteenth Amendments.
Or consider again zoning ordinances. To rationalize municipal administration of zoning decisions, it was necessary to weaken the foundational constitutional commitment to the separation of powers, one of the most effective securities for equal rights ever devised And to carry on the fiction that zoning ordinances are neutral acts of general legislation, it was necessary to abrogate the foundational American doctrine of vested private rights. That doctrine was the cornerstone of American constitutionalism from the time of the founding until the Progressive Era. It prohibited officials from retrospectively abrogating particular rights and duties that people enjoyed as a result of common law and settled legal rules. As the New York high court candidly stated in the case Harbison v. City of Buffalo, vested property rights impeded the ambition of city planners to perfect their communities by segregating uses deemed incompatible. So, the New York court ruled, vested rights had to go.
If the point must be belabored (and it seems that it must in order to get a real hearing), we could belabor it. Racial segregation is only possible where courts have refused to enforce the common law prohibition against unreasonable termination of public accommodation licenses. Voter suppression is only possible where executive officials refuse to comply with the Fifteenth Amendment and courts let them get away with it.
Slavery could only be carried on where legislatures abrogated the common-law doctrine, declared in Somerset’s Case and forcefully articulated by American founders, including even Thomas Jefferson, that every natural person is born free and is entitled to protection of the laws. Slavery required legal enforcement of unenforceable contracts, suspension of legal remedies for battery and other coercive acts, and new definitions of property that were wholly at odds with the founding distinction between alienable and inalienable rights. Even where colonial and state legislatures accomplished all of those legal changes, many English and American jurists insisted that slavery was confined to the jurisdictional boundaries of the state sovereign who empowered slavers. Thus, American jurisprudence had within it the resources ultimately to abolish the slave trade, the Fugitive Slave Act, and eventually, slavery itself. Indeed, Lincoln developed his understanding of the natural-law argument for human freedom after reading the Commentaries of the great English jurist William Blackstone, which shaped American law from 1765 until the Legal Realist revolution of the twentieth century.
At this point, we might ask which pattern of practices has the better claim to the name “America.” Is it Aspiring America, with its imperfect but purposeful commitments to equal natural liberties, due process and equal protection of law, vested rights, the presumption of innocence, private property, the jury trial, and freedom of religion and expression? Or is it the systems that aspiring tyrants and social engineers have, from time to time, set up in opposition to those ideals, norms, and institutions? I think we have very good reasons to call Aspiring America, “America,” to describe the systems of Systemic America as accurately and fairly as we can, both the well-intentioned and the unjust, and to identify the unjust systems as anti-American in essence. To conclude, I’ll list just four of those reasons.
First, we should tell the truth. The narratives of Roger Taney and Nikole Hannah-Jones are false in important respects.
Second, we should observe that all of the progress in perfecting the American commitment to equal rights, halting and uneven as it has been, was accomplished by cultivating and building upon founding ideals, norms, and institutions. Meanwhile, most the steps backward, the construction of systems of tyranny and social engineering, have been accomplished by tearing down those ideals, norms, and institutions.
Third, the stories that we tell ourselves about ourselves tend to become self-fulfilling. A history that places our achievements and just ideals at the center and portrays our injustices as moral failings can inspire us to act more justly and to repent of our failures. A history that portrays us as divisible identity groups, inherently at odds and morally distinguished by the color of our skin, by itself generates nothing but enmity and power grabs.
Finally, we should treat anti-racist America as the true America because systemic America lacks all of the intellectual, jurisprudential, and legal resources to combat racist acts. All of those resources are found in American ideals, norms, and institutions. If we are serious about combatting racism, it is not enough to be anti-racist. If all interactions amount to assertions of power by members of some identity groups against other identity groups, then we are doomed.
I do not believe we are doomed. I think we get to choose. Let us choose well.