text:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Recent Posts
John Bingham and Racial Preferences
Monday, May 06, 2013
John Bingham and Racial Preferences
Gerard N. Magliocca
With the Court's decisions on racial preferences and on the Voting Rights Act looming, I was mulling over something that I found in a letter that John Bingham wrote in 1877. When the briefs were being written in the University of Texas case, I was asked by some attorneys whether Bingham said anything about the subject that they could use. I said no. Upon reflection, though, I suppose he he did say one thing that was interesting.
You should have extended the underline back to include: "especially to the enfranchised colored people, who are the wards of the nation."
In the phrase "enfranchised colored people," Bingham is referring to freed slaves, not African Americans as a group including freedmen in the North or later immigrants after the emancipation.
Rehabilitation of Americans enslaved by the government is not analogous to providing racial preferences under the law.
Certainly the "ward" language, even if true, would be rather offensive to true-blue civil rights advocates, as it plays into the right's argument that racial preferences are demeaning to the supposed beneficiaries.
Children and incompetents are classic "wards," people who cannot fend for themselves and need to be protected.
That might be of mild interest but what he said in some private letter in 1876 really is only of mild interest. Then, again, I think that is the case generally speaking when people cite history in that fashion to rule on policy and constitutional points. The GM probably agrees.
Bart, why wouldn't it makes sense to think he's talking about those who were "enfranchised" by the
15th Amendment (or for that matter the 14th as 'enfranchisement' can refer to the bestowal of citizenship), which by its terms applied to more than just one's "previous condition of servitude?"
Mr. W:
The program to which Bingham alludes which treated folks as wards of the government were aimed at ex-slaves.
Not even the most radical of the Radical Republicans of the day would have dared propose racial preferences under the law. As the recent movie Lincoln correctly portrayed, the proponents of the Reconstruction Amendments had to deny that they believed that African Americans were in fact equal and would only be treated equally by the law. Advocating that the law favor African Americans over others would have caused a political firestorm.
Gerard N. Magliocca said...Lincoln the movie is not a great source.
No, but more folks these days have seen Lincoln than have read the actual history. When popular culture gets the history right, it is a useful means of conveying ideas.
Everybody he was talking about is long dead. Almost all of the children of those "wards" are long dead. A lot of the GRANDCHILDREN of those "wards" are dead. It's been going on 150 years since he spoke of those "wards".
Is this to be taken as an excuse to racially discriminate for eternity?
The program to which Bingham alludes which treated folks as wards of the government were aimed at ex-slaves (who were all and only black).
"Advocating that the law favor African Americans over others would have caused a political firestorm."
Er, there kind of was a political firestorm over what they proposed...
"It's been going on 150 years"
Yes, and there was no race based policies targeting blacks between 1877 and now...
"Is this to be taken as an excuse to racially discriminate for eternity?"
Discrimination in favor of white people lasted for 350 years, give or take. What seems fair to you in order to make things right?
Those people are long dead, too.
What it would take to satisfy me is just stopping the racial discrimination. The way to end discrimination is to stop discriminating. It really is as simple as that, absolutely as simple as that.
There will always be excuses to continue racial discrimination, if you're looking for them. At some point you've got to stop looking for them. There will never be a perfect time to stop the discrimination, the discrimination itself will assure that.
You just have to stop.
Wrongful discrimination is still ongoing, putting aside that various types of race conscious programs are not illegal discrimination. The victims are not "long dead."
We need not rely on 1876 events here. It was cited since (1) the GM wrote a book on the guy (2) it is a tidbit of original understanding from the horse's mouth (3) food for thought.
These are not "excuses." They are facts. Just "stopping" is not the solution to entrenched norms and practices with 350 years of ongoing history behind them.
"Those people are long dead, too."
In addition to Joe's point, the *benefits* of 350 years of discrimination against blacks have accrued to the descendants of those who gained them unjustly.
How about we give it all back -- everything: education, good habits, wealth, everything -- and start over as true equals. That would allow us to follow your prescription without anyone's judgment being, uh, colored by their ill-gotten gains.
It's like Nietzsche said: "He who hunts dragons must beware lest he become a dragon himself."
You've adopted the most fundamental basis of racist thought: The notion that you're entitled to treat everybody as interchangeable instances of whatever group you assign them to.
Set aside the fact that none of my ancestors lived anywhere near the US as far back as the civil war. I come from Michigan, I'm as likely to have the people who ran the underground railroad in my ancestry, as slave owners.
But none of that matters, nothing about my life, or history, means a thing, because my complexion entitles you to assign me to the "white" group, and assign me "guilty" status.
You, sir, are a racist, as much as Bull Connor.
Mark Field did not say we can treat "everybody as interchangeable instances" and the lingering effects of history that isn't even merely history but is ongoing doesn't disappear because one's ancestors weren't there back in the day.
Exaggeration and invective doesn't work well except perhaps for personal venting. There are lingering acts of racism and racial discrimination going on and specific burdens that still fall more on people of a certain race.
This did not come from nowhere. It came from 350 years of history. We cannot adequately deal with problems w/o understanding history, especially if it is still ongoing. We should not pretend such and such a person is not more burdened in part because of a lot of historical baggage.
I'm not talking giving students a few more points at a college here. I'm saying, e.g., more likely to be arrested. Brett should care about that. It might threaten gun rights, after all.
Change does not come simply by snapping our fingers here and not being racist any more. It is very hard and in some cases involves taking into consideration race, since race is specifically the problem, often by means of hard to prove or subjective decision-making. "Just stop it" won't do it.
The proper path here is up to debate but calling those who you disagree with "Bill Connor," someone who violently attacked black people is totally lacking in perspective. Akin to comparing, just for the sake of argument, gun regulation to the KKK.
You sense of victimhood is noted.
350 years of history, in a world where nobody is 350 years old, and he doesn't think he has to actually track the history of particular individuals to connect them to that history. They may be the decedents of soldiers who fought on the Union side in the civil war. 350 years of history anyway. They may have parents who marched in the civil rights marches. 350 years of history anyway.
The only thing connecting me to that history is my skin color, so, yeah, he's a racist.
I find it amusing that we have such a hard time arguing with the self appointed doyennes of tolerance and equality to convince them that government racial discrimination is malum in se.
I have essentially given up. They are immovable racists in self denial.
Stephen Colbert's mother was at the March on Washington, in fact was pregnant with him at the time.
How does that change the basic point of my reply? Blacks still continue to be discriminated against and it is not wrong to recognize this and recognize that ongoing history is part of the story here.
You are part of this society. You are "connected" to it, including its ongoing history, just like others around here. So, no, that doesn't show he is a racist.
BTW, he might correct me, but I think Mark's last sentence was satirical. We can't just "start over," obviously. You seem to be taking him totally literally.
I'm not sure if "satirical" is quite right, but it was certainly hyperbole to make the Rawlsian point.
While our SALADISTA (FKA our yodeler) points out:
" ... that government racial discrimination is malum in se."
he seems to ignore the long history of racial discrimination and seems more concerned now that demographic changes are starting to take place, perhaps in fear that the change will not auger well for him and others of his ilk. Perhaps, like Brett, our SALADISTA ignores that long history and insists upon a tabula rasa, wiping the past "clean.".
Regarding Brett's:
"The only thing connecting me to that history is my skin color, ...."
ignores the history of Brett's comments at this Blog, and others, on racial issues. I wonder how he might explain his views to a young child of mixed race.
"You, sir, are a racist, as much as Bull Connor."
Is there no difference between wanting to keep a foot on the neck of a race beat down and wanting to give a hand up to that race?
The lingering effects of past racism is pretty powerful stuff. Here's one aspect of it that is getting quite a bit of attention thanks to some recent research:
I assume that our SALADISTA's (FKA our yodeler) use of "malum in se" would apply to the pre-Civil War Amendments Constitution's provisions supporting slavery. So how much reverence should be given to the Framers/Ratifiers of the Constitution for its "malum in se" provisions supporting slavery? Or might our SALADISTA consider slavery back then as merely "malum prohibitum" and that part of history "tabula rasa-ed" instantly with the adoptions of the Civil War Amendments?
"Is there no difference between wanting to keep a foot on the neck of a race beat down and wanting to give a hand up to that race?"
If you've got to stand on somebody else's neck to do it? No, not so much difference.
Racial discrimination was always malum in se.
The Founders who supported it were per se wrong, as are today's supporters.
If you've got to stand on somebody else's neck to do it? No, not so much difference.
# posted by Brett : 3:30 PM
As much fun that sounds, Obama isn't going to force you into slavery.
The Founders who supported it were per se wrong, as are today's supporters.
# posted by Bart DePalma : 4:17 PM
Blankshot, what would expect the payoff to be for a wrongful slavery lawsuit?
Our SALADISTA's (FKE our yodeler observes:
"The Founders who supported it were per se wrong, as are today's supporters."
Perhaps our SALADISTA could identify racial discrimination in this day and age in America against whites that is comparable to what slavery was for African Americans before the Civil Law Amendments. Might there be a tad difference in degrees of malum in se-ing in such a comparison? Hint: Google NYTimes 5/2/13 for Ted Widmer's "Cameristas" for photos and this:
"Roughly 150 years ago, in March or April 1863, a shocking photograph was taken in Louisiana. Unlike most photos, it was given a title, "The Scourged Back," as if it were a painting hanging in an art museum. Indeed, it fit inside a recognizable painter's category — the nude — but this was a nude from hell. The sitter, an African-American male named Gordon, had been whipped so many times that a mountainous ridge of scar tissue was climbing out of his back. It was detailed, like a military map, and resulted from so many whippings that the scars had to form on top of one another. Gordon had escaped from a nearby Mississippi plantation to a camp of federal soldiers, supporting the great Vicksburg campaign of the spring. Medical officers examined him, and after seeing his back, asked a local photography firm, McPherson and Oliver, to document the scar tissue. "
Does our SALADISTA understand proportionality, or is he a compete nitwit on the issue of race?
The John Lewises of America can come and commiserate with Brett, both needing to face up to racism though the "foot" metaphor is a tad more literal in one case.
Our SALADISTA (FKA our yodeler) may not understand proportionality, evading a comparative response. Surely the adoption of the Civil War Amendments did not eliminate discrimination problems during Reconstruction, and then Plessy, which was not overcome until Brown in 1954, which proceeded with all due deliberation speed, leading to the 1960s Civil Rights Acts, followed by Richard Nixon and the GOP's Southern Strategy in 1968, remnants of which continue to this day. So when was some racial balance reached? Was it in 2008 with the election of Pres. Obama, or in 2012 with his re-election? To what extent are whites victims of racial discrimination as compared to African Americans and other people of color? It would be nice if there were colorblind justice, but too many, like our SALADISTA and Brett, are just blinded by their hatred on racial issues. Note our SALADISTA's response:
"There is no good or even tolerable government racial discrimination."
Perhaps, in his book, personal racial discrimination is okay.
And I await from Brett:
"I wonder how he might explain his [racial] views to a young child of mixed race."
Balance the books with an eye for an eye?
Is that really your idea of equal protection under the law?
:::shakes head:::
Our SALADISTA (FKA our yodeler) once again demonstrates:
":::shakes head:::"
that he thinks with his colon, repetitively.
Balance is not an eye for an eye, nor a ledger book; rather, it is an effort to level the playing field, as demonstrated in sports when opened to African Americans. A twerp like our SALADISTA apparently fears competition.
"I wonder how he might explain his [racial] views to a young child of mixed race."
I'll have to figure that out when my young son of mixed race gets old enough to notice race. At four he's completely ignoring it. Which is a lesson to those older.
"Which is a lesson to those older."
is advice he neglects or ignores for himself. Watching Archie Bunker reruns might serve as a lesson.
Or perhaps by the time his son gets a little older, the one-drop rule of yore will be reversed, such that perhaps :"white" voters may then adjust the changing demographics dramatically, with Pres. Obama as a prime example.
Balance the books with an eye for an eye?
# posted by Bart DePalma : 10:14 PM
Obama isn't going to force you into slavery, you putz.
A little "Googling" led me to Mary Whitfield's "How Preschoolers See Color and Race" available at"
I asked "Google": "At what age does a child of mixed race become aware of racial matters?" The noted article provides suggestions to parents.
I think there is a distinct willingness to try to sever terrible history from the present because of the implications of that history. Let us bring this home in a way that was brought home to me a couple of weekends ago - the GI Bill.
The GI Bill after World War II was set up by the federal government but was structured and administered locally. The education benefits in the bill were operated in a discriminatory fashion - schools in the South and North received students and perpetuated discrimination against blacks who wanted an education. Black GI's were funneled to historically black schools which did not have enough places - effectively topping out the number who were able to access that.
On the housing front, discriminatory housing panels were enforced by the FHA/VA in the granting of the loans to buy houses. An example in those manuals of an unacceptable loan was to an upwardly mobile black man wishing to move into a nice neighborhood. The point scoring system gave definitions of neighborhoods that were top rated with "few undesirables" that clearly implicated race.
So if you are born in any period from say 1945 to 1965 (looks like the Baby Boomers) and your father got the benefit of the GI bill it is absolutely certain that it was operated in a way to perpetuate racial oppression in this country and not alleviate it or even be neutral about it.
Now, if you were on the white side of that governmental largesse your life and wealth prospects were accelerated and that tangible wealth was made available to you and is now being made available to your descendants born in the 1965 to 1985 period and to the extent grandparents help to your descendants born in the 1985 to 2005 period - pretty much bringing us up to young folks growing up and getting started today.
Now it may be true that that wealth was not well shepherded by those Baby Boomers and has been squandered so the effects do not flow down so linearly. I am not the one to say that. What I am saying is that the manner in which this accelerator was applied that we call the post-WWII GI Bill was significant and sustained and perpetuated discriminatory patterns.
Now where did those post-World War II discriminatory patterns come from. They were derived from pre-World War II discriminatory patterns in the north through racial covenanting and in the South through de jure segregation. You get back to Bingham's time quick.
Second part of the post.
Trying to take the path back quickly.
Now where did those post-World War II discriminatory patterns come from. They were derived from pre-World War II discriminatory patterns in the north through racial covenanting and in the South through de jure segregation.
Now where did those discriminatory patterns pre-World War II derive their essence. They were derived from the early-20th Century and late 19th Century terrorist repression of blacks as part of the Redemption movements.
Now where did those late 19th century and early-20th century Redemption movement discriminatory patters derive themselves from.
They are derived from the Reconstruction and Restoration dynamic in the post-Civil War period down through Rutherford B. Hayes period described then.
Now where did those discrimination attitudes in the Reconstruction and Restoration dynamic derive themselves from?
They were derived from the fundamental principle on which the confederacy was built that said that the founders erred in thinking all men were created equal. This idea of blacks not being equal was a fundamental principle undergirding the moral rationale for secession to support the financial rationale for secession.
And where did this rationale for secession come from? It came from the moral and financial rationales for slavery that bedeviled Jefferson a bit though not enough, Madison a bit though not enough, and Washington a bit and significantly.
Am I back far enough yet for you? We can go back to Bacon's Rebellion in 1676 if you would like where the conscious state effort to distinguish indentured servitude of whites with black slavery was put in place.
To say that one "just decides not to discriminate" is so fundamentally absurd when one looks at the length of service of these subordination ideas for blacks in our country.
I agree with the idea that the "wards" language is demeaning of black agency, but it is also emblematic of the kind of oppression and violence to which blacks were subjected in that period.
Ida Wells Burton's research in the late 19th century demonstrated in detail the use of terrorist violence by whites as a means of subjugation and repression of blacks.
Ignoring the consequences of that endemic violence from then and its expressions in language and culture today in such implicit bias and stereotype threatening images of welfare queens, welfare President, fake President, not an American and on and on is to ask me to forget that history or - as Justice Scalia once told me to do - get over it.
I would be happy to get over it, if the entire country would get over it. But, there is too much advantage for too many in playing to those paths for advantage - thus the efforts to disenfranchise voters etc as part of the voter suppression effort against minorities we just lived through in 2012 and are living through now in all its many forms to suppress student vote and elderly vote.
Nothing new under the sun.
Very nicely done, Ben. If I may, Lincoln expressed the same point with his usual eloquence:
"Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether."
I don't see how you answer, "Nobody is 350 years old." by piling on more years people alive today didn't live through. Or recounting wrongs few people alive are guilty of, and not bothering to actually identify those few.
This is just the flip side of "Segregation today, segregation tomorrow, segregation forever"; You don't intend that racial discrimination EVER end. You intend that it be eternal. I get that.
Well, fie on that, but thanks for being honest.
Benjamin spells out in detail what is at issue here. Society was not born yesterday. It is an ongoing thing and we have to factor this in when making policies. This is not something just used for this subject.
Brett accepts this when guns are involved. Then, he cites history and notes how it is ongoing, current events in part should be seen with that in mind.
Like his support of regulations for some fundamental rights over others (voting over guns), Brett is being inconsistent while playing the victim card. Again, Brett is being used here as an example, a stand-in to others. It isn't just about him. If it was, I would be less troubled about it.
I think the Lincoln quote is eloquent but the Ben's discussion is more substantive. Brett is ignoring both of them, so perhaps Mark's brevity is somewhat warranted.
If Brett were homeschooling his 4-year old mixed-race son, would he exclude the history Ben Davis summarized?
Regarding Brett's " ... the flip side of 'Segregation today, segregation tomorrow, segregation forever ... '"
it more accurately would be:
"Desegregation today, desegregation tomorrow, desegregation forever."
This suggests that in Brett's mind desegregation is eternal racial discrimination. So perhaps Brett's solution is resegregation. But this may require a Solomon for mixed race children.
Ben, thanks for telling some unpleasant truths.
The saying "one just decides not to discriminate" is a cover for a lot of unpleasant truths.
Dick played a dice game with Joe. Dick usually won. Over the years a lot of money changed hands from Joe to Dick. One day it was discovered that the dice were loaded, and that Dick had something to do with that. Joe said, how about now we play with dice loaded the other way? Dick said oh Lord no, from now on we play with fair dice. Joe said, that won't even up all the money you got. Dick said, maybe not, but it's just wrong to play with loaded dice.
Joe thought maybe he had a cause of action here. Judge Harry said, well, maybe I ought recuse myself here, because actually I was Dick's supplier for loaded dice. Joe said, tell you what then, how about you supply me some? So I can win a little? Harry said, oh no, I couldn't do that, because loaded dice are wrong. Joe said, they weren't wrong before? Harry said, oh yes, they were before and they are now. Joe said, but you didn't stop the practice before, you're only doing it now. Harry said, well yes, but you must agree that wrong is wrong, and the way to stop it is stop it.
Let us bring this home in a way that was brought home to me a couple of weekends ago - the GI Bill.
So your solution to government denial of educational opportunity for some African Americans two generations ago is to have the government deny educational opportunity to some whites today?
Since when was equal protection under the law mean evening generations old racial scores?
Now, if you were on the white side of that governmental largesse your life and wealth prospects were accelerated and that tangible wealth was made available to you and is now being made available to your descendants born in the 1965 to 1985 period and to the extent grandparents help to your descendants born in the 1985 to 2005 period - pretty much bringing us up to young folks growing up and getting started today.
Under this reasoning, the government should favor descendants of anyone regardless of race who did not receive government WWII era educational and housing subsidies (like me) over the descendants of African Americans who did receive subsidies.
Where does this cycle of government directed revenge end?
America was founded in part on the understanding that each individual was judged on his of her own merits and character and the cycle of tribal dominance and revenge in the old world (like Ireland where my mother's ancestors lived) was left behind.
I guess we have to keep fighting the same battles again and again.
"I don't see how you answer, "Nobody is 350 years old." by piling on more years people alive today didn't live through."
It's because the things that happened in prior generations still effects today's population.
So, for example, if your grandfather got preferential treatment over blacks and as a result was more likely than them to have an education, or own a home, or have many friends and relatives that had nice jobs, then your father would have had a 'leg up' on the sons of the blacks and thus he was more likely to achieve these things, and then of course now because he did you would be more likely to...
We know that many people get the jobs they do because of networking via friends and family. We know that those who had parents who were more educated are more likely to become educated themselves, and that those whose parents owned homes are more likely to do well themselves, and that the reverse of all that is true. So it seems a bit obtuse to say "well, no one around then is alive today, so no big deal." The effects are still here. To not address them would be to perpetuate the disadvantage done by direct government sponsored discrimination.
I'm. Not. Dick. I merely look somewhat like him. Neither are you Joe, though you may look like him, too. That's good enough for a racist, it's not good enough for anybody committed to treating individuals as individuals, according to their own individual merits and demerits.
You're just confirming what I've said, that you've internalized the fundamental premise of racism: That it's ok to treat people as simple instances of a group, instead of as individuals in their own right.
So take your just-so stories, and stuff 'em where the sun don't shine, I have no interest in them. Yes, I will teach my son history, and I'll teach him that it's history, events that happened to somebody else, and expect him to neither hold a grudge, nor feel guilt, over events he played no part in.
"Where does this cycle of government directed revenge end?"
It's not about revenge, it's about ameliorating the still present effects of past wrongs.
At the very least that is a different motivation than what was going on in Bull Connor's mind. To ignore that difference and equate the two is very close to arguing in actual bad faith.
Apart from the motivation there are other important differences. Blacks were denied access to some schools altogether; today's racial preferences operate to either provide some 'slots' for some groups or to give some 'thumb on the scale' advantage to some members of a group. I imagine they are different because of the different motivations, helping today's unfortunates vs. "an eye for an eye."
BD: "Where does this cycle of government directed revenge end?"
Mr. W: It's not about revenge, it's about ameliorating the still present effects of past wrongs.
Arguing that today's government racial discrimination is about evening the score rather than mere revenge is a distinction without much of a difference to the current victims of government racial discrimination.
"today's racial preferences operate to either provide some 'slots' for some groups or to give some 'thumb on the scale' advantage to some members of a group."
The Jim Crow application of the GI Bill to which Ben referred did the same thing.
"I imagine they are different because of the different motivations, helping today's unfortunates vs. "an eye for an eye."
No matter how you spin this, the government cannot practice racial discrimination without discriminating against someone.
An eye for an eye.
Proponents of racial discrimination know this and do not act out of good motivations.
I'm guessing Brett believes in Immaculate Conception too. That I understand, but an Immaculate Past is harder to justify.
This isn't that hard: blacks were discriminated against *as a group* by whites *as a group* for the express purpose of benefiting whites *as a group*. No "solution" limited to individuals can account for this. Focus on individuals is designed to avoid the accounting.
Bart's eye for an eye and government directed revenge bring to the fore one of the strongest parts of that history that is with us - white victim hood. The essence is that today's whites should not suffer an iota of inconvenience as the government acts to address MASSIVE SYSTEMiC PUBLIC AND PRIVATE SUBJUGATION of blacks. That approach by its nature perpetuates the advantages baked in by that past and also assures that by dint of whatever effort is done , the process of amelioration of that reality will be the slowest possible.
It is reminiscent of what I experienced when I integrated private schools as a child. The path that was thought was better was to start by integrating nursery school or kindergartens rather than all up the K-12 chain. This would allow people to get comfortable gradually with the presence of black people in the classrooms etc. Of course that approach further delayed imeanimgdul integration a further twelve years baking in the privilege of those whites ahead of my entrance who were competing with a narrower group because of my absence. With my presence some person did not sit in my seat other than me, that person was white, and therefore a victim of my presence no matter what I did in being present and no matter what rationale was used to allow me on that seat.
Contrast the systemic violence of both a physical and psychological nature countenanced with the meekness of remedial measures that might inconvenience even an iota a white person. Heaven forbid any robustness be part of that process.
The government has a range of options as to whether to act and how to act. Milquetoast approaches are Just means to reproduce and preserve advantage as long as possible.
I will stipulate that thousands of excellent people can be found for a position and that more of them will be white from privileged families with the most extraordinary preparation than there are slots.
Just be patient and wait your turn rings hollow. The law does not even capture the modt recent irwaearch on issues of implicit bias and stereotype threat - the kind of deep bias that is precisely the legacy of that history.
You confirmed it again: That you think it's appropriate to treat individuals as mere instances of the group. The same thing that 'justified' lynching some random black if it was claimed a black had committed some wrong. No need to determine which particular person is guilty, the group is.
No, I flatly reject that kind of thinking, as ought every decent person.
And you can't even explain why every white needs to suffer for the sake of every black, but every non-Asian doesn't need to suffer for the sake of every Japanese American because of the internment. Or why the British don't have to suffer for the sake of Irish-Americans whose parents were starved out of their homes in the potato famine. Or, name any historical wrong, most of which are to be ignored, only a few stoked.
You can't explain why this particular historical grudge is forever, and the others to be forgotten. Well, I can:
The Democratic party needs black votes. And racial discrimination in favor of blacks buys those votes. You can never let it go, because your party's welfare is dependent on the grudge never dying.
That's the sick and hateful root of this: The Democratic party never ceased to be the party of racial spoils, you just swapped clients. And I don't need your approval, so I don't have to pretend not to notice what's going on.
Check out Frank Rich's 5/8/13 New York Magazine essay "Whitewash," detailing the GOP on race today and going back to Strom Thurmond in 1948, bringing the GOP up-to-date on that subject.
By the Bybee [expletives deleted], would there, but for Brown v. Bd. of Educ., be a Federalist Society?
Brett yet again is treating college admissions type things with lynching. His lack of perspective is suggested in part by his use of "guilt." The lynched black was deemed "guilty."
Not getting extra points at college admissions is not. The fact that the point system is in place partially because of history that in some fashion involved wrongful conduct doesn't change this.
Note that we classify in this country in a range of cases. We are not mere atomic individuals. We are also from time to time members of groups.
Society provided some reparations to the Japanese internments. But, why? Why should people born in 1965 have to pay via their tax dollars in this fashion? They aren't "guilty" of anything. Such would follow from Brett's reasoning.
Brett also yet again references "history" as if the thing isn't ongoing. But, fine enough. The Brits can address the wrongs of their past regarding the Irish especially if such wrongs influence more recent things such as violence influenced by ongoing hatreds arising from such lingering history.
The fact you were born recently doesn't change that. The Brits now are part of society and as members of society has to address societal problems, including those with some connection to the past. So, his premise is wrong again.
And, it is not just "Democrats." Republicans also accept that history matters and is ongoing. The debate is over scope and specific policies. Rs like Brett does also uses the same general philosophy if you change the subject.
Brett, however, is as usual selective, including against Democrats. A pox on both houses for him, but one a bit more. History matters if guns are involved, but not here. Politics affects things all over, but I will selectively exaggerate that when it fits my needs.
And, if you don't agree with me, you are not merely wrong, but a "racist" and not "decent."
For instance, Republicans repeatedly support affirmative action to help certain *groups* specifically, including counseling, magnet schools or whatever. Justice Kennedy is not a "Democrat." See, however, his opinion in Parents Involved.
I think the racism charge has to explain why the audience at Lincoln's Second Inaugural didn't rise up en masse and denounce him for his "racist" view that God would consider it just if all the wealth piled up by the bondsman's toil -- wealth accruing to Northern whites as well as Southern -- were to be "sunk" as the cost of freeing the slaves. I mean, why should Garrison have had to pay? Or Douglass?
The argument that government racial discrimination against non-African Americans today is less onerous than government racial discrimination against African Americans three generations ago is simply another version of the evening the score argument and hardly makes the former discrimination any more legally or morally acceptable.
Indeed, this argument is generally made by folks like bb to continue government racial discrimination against non-African Americans indefinitely because African Americans can never be even after being held in slavery.
No one is saying: "Just be patient and wait your turn."
Quite the opposite.
Those of use who believe in the worth of every man and woman in a free society say exercise your God given talents immediately and completely to realize your own dreams.
Those of use who believe in the worth of every man and woman in a free society say exercise your God given talents immediately and completely to realize your own dreams.
# posted by Bart DePalma : 7:12 PM
Blankshot, why do you think that African Americans aren't buying the bullshit that you're selling?
"Arguing that today's government racial discrimination is about evening the score rather than mere revenge is a distinction without much of a difference"
You're equivocating ('evening the score' is essentially 'revenge) and therefore begging the question. Motive usually matters when judging the morality of something. Perhaps this is the odd case where it does not, but to dismiss it out of hand is contrary to how we usually think of culpability and ethics.
Let me ask you, do you think the Freedman's Bureau was a grave injustice? Because it surely involved taking from some who had not only done no wrong to the Freedman (such as pro-Union taxpayers) in order to ameliorate injustice done to the Freedman by others. Virtually any government initiative that tries to ameliorate any injustice to one group is going to have this element to it...
"The Jim Crow application of the GI Bill to which Ben referred did the same thing."
Perhaps I wasn't clear: I'm saying you can't equate 'plus points' at a handful of elite colleges or even a hard and fast quota in hiring/contracting/admissions with what blacks faced during Jim Crow. I'm not trying to minimize the harm done to someone who has to enroll in a less pretigous college than they wanted, but in comparison the disadvantages blacks faced were greater and more systematic. So to continually equate the two is to lose all sense of degree.
"You can't explain why this particular historical grudge is forever, and the others to be forgotten."
Isn't there an easier, if less sensational, answer? It's not about a grudge but about amelioration. This explains why preferences today are usually used to help groups that faced discrimination and are struggling (blacks) but not groups that faced discrimination but are not (Japanese-Americans). It's exactly how we would expect this to work if it was not about revenge or grudges, but rather about amelioration.
Two things. First that you did not have family benefiting from the GI Bill is of no moment. You are then merely a free rider benefiting more indirectly from that policy as the competition for housing for you or your anvestor was reduced by a policy that excluded competition from blacks.
Just like every lawyer up to around 1972 who was a male at least indirectly benefitted from the unwillingness of lawfirms to hire women as lawyers or of law schools to admit women in numbers even if the individual lawyer only works at one lawfi. It is a social capital provided to him even if he was the most wonderful progressive man.
Second, ok this will be very difficult to grasp - what the fuck do you think black people have been doing for 400 years. Within the constraints there have always been black people fighting to express their lves consistent with their god given talent.
That individual striving or lack of striving is so banal and the rewards received or not for that effort are summed up in an adage that I was taught as a kid - a black perso has to work twice as hard to get half as far. So next time you see a really successful black person think of the effort that adage/rule implies they must have exerted to get there. And when you think of that, think of the toll that exertion takes. Do you wonder why Jackie Robinsom died at 53? Or the differential life expectancies by race and gender.
As long as schools are financed pratilu on the basis of property taxes that GI Bill benefit keeps flowing brother and that is only one. To the extent capital was accumulated the tax structures reward to capital is an advantage to those able to accumulate or inherit wealth over those who earn it from labor. And the networks fr being a Harvard grad are stronger and.lead to more mice opportunities than a community college.
On and on - but through all this effort my life chance to have an extraordinary life was enhanced and I try to do the best I can with what I have to go far. Because effort was put in to create ladders that counteract the Ambient undertow for black people that's baked in. So it's not as good as it ought to be, but it is better than it was - in the words of the old gospel song. Part of that was my parents going to the mats with white private schools in New Jersey to get the door opened to the higher quality education available there in 1960.
I am sure that in every period the situation lon race ooks ok if you are white. With segregation that is so extensive in Americam housing patterns blacks and whites are so out of sight. Remember white kids throwing rocks at my friends and me as an 8 year old - turf living on the other side of Elmwood Park. They left with white flight. Another whole story ties to the creation of the interstate system which provided another accelerator for people leaving the cities and economic and spati segregation. But O do not look at everything through this one lens. Just laying out your denial spaces.
The amazing thing is a willingness of so many blacks to forgive and hold no grudge. Just don't ask us to forget like some do, like Scalia asked me. And so not ask us to think that we are in that post racial nirvana today. Better than it was but not as good as it ought to be.
"Two things. First that you did not have family benefiting from the GI Bill is of no moment."
Yeah, that's the point: The defenders of racial discrimination today think the actual details don't matter. You're not a victimizer or a victim based on what you've actually done, or had done to you. You're a victimizer or a victim based on your race. Based on something immutable you have no control over.
This is an evil point of view. It's indefensible. It is the root of so many evils in this world it's hard to express how evil this way of viewing the world is.
The dragon hunters really have, in the end, become the dragons.
For literally centuries government policy created conditions in which blacks had very little options in life. In large part because of this racist views of black people were fostered and reinforced. The idea that blacks could not achieve, that they were not as smart, hardworking, honest, etc., as whites seemed to ring true to many since blacks were denied education, basic economic and social rights, and had any initiative they might struggle to exhibit stomped on.
This view of blacks was accepted by a large portion of the country. The Civil Rights Movement fought, and defeated, the actual policies that fostered this view, but of course people did not totally stop believing it.
Let's say that only 20% of people still adhere to that view in some form. That means that 20% will judge blacks (in general, including the succesful black as much as the not successful black) poorly and will be less likely to give them, say, a job opportunity, contract with them, give them a loan, etc.
That's quite a disadvantage, no? The roots of it are plain. Can the government do nothing to ameliorate this, especially considering it played a significant part in creating it?
Note: this still doesn't even address the general differentials in wealth, networking and 'human capital' that has accrued from direct government policies discriminating against blacks.
Mr. W: Motive usually matters when judging the morality of something.
Only for the degree of culpability.
Homicide is wrong whether done intentionally or knowingly.
Racial discrimination is wrong whether you want to harm the disfavored or help the favored.
Let me ask you, do you think the Freedman's Bureau was a grave injustice?
Government assistance to those the law enslaved are reparations for a government wrong like compensating the wrongfully imprisoned.
Government does not compensate the grand children of a wrongfully imprisoned white woman by taxing African Americans.
BD: "The Jim Crow application of the GI Bill to which Ben referred did the same thing."
Mr. W: I'm saying you can't equate 'plus points' at a handful of elite colleges or even a hard and fast quota in hiring/contracting/admissions with what blacks faced during Jim Crow.
Sure you can.
Under Jim Crow, whites went to the elite colleges based on race and blacks went to the lesser black colleges.
Under today's racial discrimination, blacks are getting slots in elite colleges based on race and the displaced whites and others are going to lesser colleges.
Once again, ALL racial discrimination is malum in se. There is no lesser degree at which racial discrimination becomes acceptable any more than there is such thing as acceptable rape because the woman is drugged rather than beaten into submission.
Don't worry Blankshot, there are plenty of whites still getting into colleges for which they are not qualified (see Bush, Dumbya).
Brett: no, you're not Dick. I wasn't even thinking of you when I wrote that. But how interesting that you should think you were. Defensive much?
You're welcome to take offense; this is America. But I must inform you that none was given. It's not all about you, actually.
By the way, any time you like you can look up "just so story", along with "parable", "allegory", and "fable". That way you won't make a fool of yourself in print.
Bart and Brett,
At a True the Vote meeting In mid-August 2012 near Columbus, Ohio my son heard me called a coon when exercising my ordinary citizen ability to ask questions of a bunch of people about their efforts that smacked of voter suppression rather than vote integrity. Someone in that 99 percent white room called 911 not because of me but because they feared for my safety as some of those agitated people in that room were carrying concealed weapons. This was not 1712 or 1812 or 1912 but last August. If my black son and that white person can b oth see and hear that virulent racism alive and well now, we are not living some collective delusion about the legacy. Maybe I am to feel there is progress as I was not lynched, but it became apparent that it was closer than I ever wan to be. But I will still act free to be free.
So, Mr. Whiskas, what's your criteria for finally ceasing to discriminate? Do you even HAVE one?
No, what I'm seeing here are excuses why the discrimination must never end. Until perfection arrives, which it never will, people who are not guilty must pay, to compensate people who weren't wronged. And if the innocent don't like it, that proves they're not really innocent.
We're never going to agree on this, because we're reasoning from utterly contradictory premises. I think people are entitled to be treated as individuals, on their own merits, and you... don't.
Let's ee how it has worked out for our SALADISTA (FKA our yodeler0 with respect to his dreams:
"Those of use who believe in the worth of every man and woman in a free society say exercise your God given talents immediately and completely to realize your own dreams."
Our SALADISTA has made it to the top of his little hill (making a mountain out of a molehill, no doubt) community, claiming to be the top (most talented?) DUI dog of the legal profession there, with the benefit of advertising of course. If this is living his dreams, if these are his talents, how much worse would he consider a nightmare to be? Yes, someone's got to do it.
By the Bybee [expletives deleted], Charles Blow's NYTimes column today "Terms of Art" is a shorter version of Frank Rich's "Whitewash" referred to earlier. Each of these columns demonstrates the true attitude of conservatives today. Again, I wonder if but for Brown v. Board of Education there would be a Federalist Society today. Yes, there is a fear of competition in the conservatives' losing sum political philosophy with a level playing field, relying upon their version of the Second Amendment: "A well-regulated white Militia .... "
As to Brett's:
" I think people are entitled to be treated as individuals, on their own merits, ...."
speaking for myself, I am treating him as an individual who lacks merit based upon his comments at this Blog and others. Brett spews hatred, vile, perhaps out of fear of level playing field competition.
" I think people are entitled to be treated as individuals, on their own merits, ..."
I agree, but am not aware of a period when that entitlement has been practiced in any society or culture in the world. Asserting it now as we discuss integration of blacks is powder in your eyes, not in mine, and your paean to white victimhood not equality.
We're never going to agree on this, because we're reasoning from utterly contradictory premises. I think people are entitled to be treated as individuals, on their own merits, and you... don't.
# posted by Brett : 6:49 AM
I do treat you based on your merits. I treat you like you're an ignorant racist.
Under today's racial discrimination, blacks are getting slots in elite colleges based on race and the displaced whites and others are going to lesser colleges.
# posted by Bart DePalma : 9:48 PM
As long as we're talking merit, I have to point out that it's pretty obvious you got into a crappy college based on merit, not because some black kid got your slot.
I can never hear talk of slots at colleges without being reminded of legacy admissions.
If anyone believes Shrub got into Harvard and Yale based on his scholarly merits, and would have gotten in just the same if his father had not been George Herbert Walker and his grandfather Prescott Sheldon; if anyone really believes that, the more fool you.
Why yes, there are slots. This is one for eastern establishment old money white boys.
"Homicide is wrong whether done intentionally or knowingly."
You could not have picked a better example. Yes, homicide is wrong when done both intentionally and knowingly, but there is also such a thing as justified homicide when the mindset and circumstances are different (but the actus reus is the same).
"Under Jim Crow, whites went to the elite colleges based on race and blacks went to the lesser black colleges.
Under today's racial discrimination, blacks are getting slots in elite colleges based on race and the displaced whites and others are going to lesser colleges."
You still don't see the difference? Under Jim Crow elite white colleges were off limits to blacks, under current racial preferences at worst a small percentage of admissions are given to blacks. To use the metaphors we have been using, even were the latter evil in the sense assault is the former would be aggravated assault.
"I think people are entitled to be treated as individuals, on their own merits, and you... don't."
I'm not so sure about this. I'm guessing you take that policy to be the best in judging individuals that treats all citizens alike, without taking race into account. But I don't think that necessarily makes your view more 'individual based.' Take this example.
I have two children, one in kindergarten and the other in the fifth grade. My fifth grader is capable of converting decimals to fractions, but I don't think my kindergartner is. My kid's school agrees with this at a general level: 5th graders are taught and supposed to know conversions but kindergartners are not.
Imagine if the school said "look, we believe in treating students as individuals, so we're going to give the same test to all the kids, regardless of grade." Not only would that be silly, but it would not be treating these kids as individuals. Taking into account the ages of groups of kids, and treating them differently by group, is actually a step TOWARDS treating them more individually. Ideally we'd know even more about them and have even finer distinctions, but it's certainly a step toward individualizing to treat the groups differently.
This is how supporters of racial preferences today think about them. Treating blacks and whites exactly equally seems daft to them since only the former group has been burdened with a racial "badge of inferiority" by our nation's past policies and can be supposed to need the extra help preferences accomplish. Would it be better to actually have finer distinctions, for example making sure Barak Obama's daughters don't get a preference over Joe the Plumber's kid? Sure, and a lot of affirmative action supporters are at least receptive to such an idea, they just feel that current preferences are better than 'color blind' treatment in treating people like individuals...
"would it be better to actually have finer distinctions, for example making sure Barak Obama's daughters don't get a preference over Joe the Plumber's kid?"
We do up to a point and two affirmation action cases in 2003 split the difference there. The plan that was struck down was struck down 6-3. Justice O'Connor and Breyer int he majority. They went the other when when the program was more nuanced.
That was the lesson of Bakke too. It was the lesson of Kennedy's concurrence in Parents Involved. Race alone could not be used but given societal reality, it can be taken into consideration in certain ways. Not to apply "guilt" either. This is a path many agree with. It is not just a "Democratic" path to get votes.
Some child of a white blue collar worker should get notice for needing to go to a public school or working without the connections of the child of Bill Cosby or something. But, being rich doesn't suddenly mean being black (or gay or whatever) doesn't matter.
Ultimately, the goal is for it not to matter, but ultimately the goal might be to stop using medicine that has side effects. We can debate if the side effects are worth it, but even there, we have to know what they are.
Benjamin voices the reality, btw, that we aren't just talking about 'history' here.
Neither Brett nor I claim that racism has magically disappeared from the human condition.
Rather, we are arguing that our government should not engage in racism.
Being called derogatory racist names by ignorant yahoos is hardly goes only in one direction. The African Americans dished it out in abundance in my direction when I was bused into their neighborhood schools and when I served in the military.
Sticks and stones.
As the target, I ignored it.
As an NCO and later officer, I had zero tolerance for that nonsense.
BD: "Homicide is wrong whether done intentionally or knowingly."
Mr. W: You could not have picked a better example. Yes, homicide is wrong when done both intentionally and knowingly, but there is also such a thing as justified homicide when the mindset and circumstances are different (but the actus reus is the same).
Self defense from immediate danger of substantial bodily harm or death is a legal defense against criminal liability for homicide. It does not make homicide desirable not does it have any analogy in racial discrimination.
Apparently our SALADISTA (FKA our yodeler)
speaks not only for himself:
"Neither Brett nor I claim that racism has magically disappeared from the human condition.
"Rather, we are arguing that our government should not engage in racism."
But apparently our SALADISTA and his self-proclaimed puppet, unlike government, may engage in racism (our SALAISTA out of uniform).
Our SALADISTA's take on self-defense:
"Self defense from immediate danger of substantial bodily harm or death is a legal defense against criminal liability for homicide. It does not make homicide desirable not does it have any analogy in racial discrimination."
may not reflect FL law and other states with "Stand Your Ground" statutes. So it seems that Heller's self-defense gloss )glock?) on the Second Amendment fails the originalism tests.
By the Bybee [expletives deleted], did any "well-regulatid Militia ... " in 1791 include any Negroes?
No, Shag, even under "stand your ground" laws, you aren't allowed to kill someone unless in immediate threat of death or serious injury. Such laws only make clear that you aren't required to flee a location you're entitled to be, instead of defending yourself.
"Self defense from immediate danger of substantial bodily harm or death is a legal defense against criminal liability for homicide. It does not make homicide desirable"
Well, perhaps not 'desirable' but it is interesting to note that self defense is a justification defense rather than an excuse defense...
"not does it have any analogy in racial discrimination"
To the extent homicide (your original example) does it might.
What makes justified homicide justified rather than murder is 1. the mindset of the perp is different and 2. the circumstances are different.
Note the action itself is the same (thus why I think it fits well with your claim that discrimination is discrimination, with no regard for the motives and the circumstances [positions of the parties]). The perp of a justified homicide intends and carries out the killing of a human being, but unlike the murderer they did so with motive of protecting themselves; likewise the supporter of AA intends and carries out an act of preference (discrimination), but unlike Bull Connor does so with the motive of compensating for disadvantage.
Brett may not understand how common law self-defense brought over from England and adopted by the states has evolved over the years. But this is not unusual as Brett avoids history when convenient. There is no federal common law. Federalism provides states the power to address self-defense. And self-defense has indeed changed in some states under common law or statutes. "Stand Your Ground" laws are designed to protect gun nuts who shoot first and others ask questions later. There are distinct racial elements to "Stand Your Ground" laws in many of the states adopting such laws.
As for " ... unless in immediate threat of death or serious injury", that can be subjective, in the mind of the slayer, especially since the slayee cannot testify. But someone wearing a "hoodie" apparently serves as jusstification for getting in the face of the "hoodie" who may be unarmed and the slayer claiming to be threatened. How convenient. Perhaps this is why Brett needs an arsenal.
Stand your ground statutes employ the standard self defense affirmative defense and eliminate any legal requirement to retreat in the face of the threat.
They are hardly a license to kill.
This was the American common law in the heavy majority of states before the advent of statutory criminal law.
Stand your ground statute in Florida and some other states also allows the defendant to exercise the defense during a preliminary hearing to avoid the risk and expense of trial.
Very good law.
Neither Brett nor I claim that racism has magically disappeared from the human condition.
Rather, we are arguing that our government should not engage in racism.
Being called derogatory racist names by ignorant yahoos is hardly goes only in one direction. The African Americans dished it out in abundance in my direction when I was bused into their neighborhood schools and when I served in the military.
Sticks and stones.
As the target, I ignored it.
As an NCO and later officer, I had zero tolerance for that nonsense."
Brother Bart,
I will stipulate with you that the kind of dumbshit high school stuff you and I suffered as kids is terribly unfortunate and part of that dystopian reality of what kids do to each other in ways of being hateful. Those kids learn from their entourage and family and it would be better if school administrators clamped down on any of that and did more to have kids know each other better.
If it is any solace, my sense from my son and daughter is that the kind of hazing of which we both speak has declined as has the interaction.
But, when we get into the competitive business world and there is an opening to play on a card to get rid of a competitor I have no doubt that people are rewarded for ruthlessness including "othering" people to neutralize them as potential competitors. Have seen it attempted and even done.
Crossracial mentoring is a difficult space in corporate America and law.
Also, what I was reporting was about when I was 56 by adults at least my age with a clear threat of gun violence - a whole different kind of dumbass yahoo stuff than the high school hazing stuff of our youth.
On the military experience, I stipulate to allowing the joshing space for all as long as it does not get to the passive aggressive kind of insidious stuff. That is a space that I have experience with for many years on racial but also nationality ethnic gender and on and on.
What you seem to be discussing in the military is beyond that camaraderie space.
More in second e-mail
Second part of comment to Bart
With regard to that, your power as the authority figure to clamp down on that crap as an NCO and later officer is you as the government being willing to take that step and set a tone in a space where the persons were clearly subject to your UCMJ authority.
Those African-American soldiers who subjected you to that kind of thing should have not been allowed to do that by the equivalent NCO or officer in the role that you later played.
But, you can go back to "Red Tails" or "Miracle at Santa Anna" or even "Lincoln" (no black prisoners to be taken of DeForrest) to see the kind of crap black soldiers experienced in the segregated army where there was no one willing to do what you were willing to do when you were an NCO or officer. Don't start me on the military history because the levels of that are so rich and complicated.
Most importantly, this is not some tale I am making up. The military was and is well aware of that history - I had exchanges with the Chief Prosecutor for the 9/11 military commissions on that history just last year. You should read about Plot E in the book The Interpreter by Alice Kaplan or read about the fact finding that Thurgood Marshall did in the Korean War about unequal treatment of soldiers in the disciplinary and court-martial process in the Korean War.
As you know, the military has gone farther than most parts of society in addressing discrimination and trying to find paths to integrate.
It was precisely those military types who wrote very persuasive and influential briefs in the Gratz and Grutter v Michigan case IN SUPPORT of affirmative action being retained.
So from a macro vision those in the military are supporting the vision I am putting forward as did the amici from corporate groups in that period.
The lack of sanctions by other NCO's or officers (whatever their color also) sounds to me in the kind of stereotype threat conduct. A white NCO's or officer's fear of being called a racist. A black NCO's or officer's fear of not being seen as "black enough." This could also play another way in which the white NCO or Officer fear of not being seen as tough enough on the blacks or a black NCO or officer fear of being seen to not be tough enough on the blacks. In all of this, to me, the history is roiling through whatever the reaction.
That is why the "don't discriminate" or Roberts type of language is so fundamentally beside the point when you take America as it is. At least in my eyes.
I do not believe I have called you a name in these exchanges - just tried to make a straightforward and open dialogue. Have not been back here in a while since the old torture exchanges.
For some reason (guess why) our SALADISTA (FKA our yodeler), ignores the "Castle Doctrine in his dissertation on self-defense. The Castle Doctrine had variations among the states. And all "Stand Your Ground" statutes are not the same.
"But, when we get into the competitive business world and there is an opening to play on a card to get rid of a competitor I have no doubt that people are rewarded for ruthlessness including "othering" people to neutralize them as potential competitors. Have seen it attempted and even done."
Unfortunately, fearing and demonizing "the Other" is very much part of the human condition. Fear of the Other is hardwired and has to be consciously overridden. Demonizing the Other either arises from or is a conscious choice to exploit that fear.
Tolerance is difficult for humans and most other animals. That is why those setting the rules cannot be seen to be playing favorites and equal protection has to be enforced without exception.
On the military experience, I stipulate to allowing the joshing space for all as long as it does not get to the passive aggressive kind of insidious stuff.
My experience in the Army as enlisted and as an officer is that the military is comparatively successful in maintaining racial harmony is because the institution does not tolerate even joshing. When I said zero tolerance, I meant it.
In my basic training, a black and a white soldier lost their tempers because they were sleep deprived and started tossing the n-word and some other choice words at one another. It lasted less than a minute and they apologized to one another, but the drill sergeants hit both with non-judicial punishment and made them examples for the rest of us.
But, you can go back to "Red Tails" or "Miracle at Santa Anna" or even "Lincoln" (no black prisoners to be taken of DeForrest) to see the kind of crap black soldiers experienced in the segregated army where there was no one willing to do what you were willing to do when you were an NCO or officer. Don't start me on the military history because the levels of that are so rich and complicated.
I completely agree with you. When the fear of the Other is allowed to hold sway, the minority Other always loses.
That is why minorities will eventually lose when playing the government racial discrimination game. So long as racial discrimination is acceptable, the tables will someday turn to favor the majority again.
"As you know, the military has gone farther than most parts of society in addressing discrimination and trying to find paths to integrate. It was precisely those military types who wrote very persuasive and influential briefs in the Gratz and Grutter v Michigan case IN SUPPORT of affirmative action being retained."
The military comes in two different flavors - the minority of warriors and the majority bureaucracy of careerists.
Respect between warriors is built upon performance because you are relying on the men around you to accomplish the mission and stay alive. Men like my African American battalion commander did not want to be known as affirmative action babies and wanted simply to be judged by their peers on their performance like everyone else.
Careerists will follow the prevailing positions of their bosses in order to advance. I suspect your brief writers fall into this category.
Take care.
"That is why the "don't discriminate" or Roberts type of language is so fundamentally beside the point when you take America as it is."
This argument -- it's really more like a bumper sticker -- sets up the perfect as the enemy of the good. It leaves millions who've borne the effects of discrimination without a remedy, simply because someone, somewhere might pay a cost. Just like I had to pay for the Japanese internment, though I wasn't born when it happened.
It strikes me that the Roberts strategy is similar to that of Plessy. Theoretically, equality might be achieved that way, but as a practical matter that was impossible. If a school was found guilty of discrimination, after a long and expensive trial, it could change one detail and the whole matter would have to be re-litigated. Similarly, a finding with regard to school A meant nothing to school B.
That's why the Court eventually realized that it was playing the role of Charlie Brown trying to kick the football and ordered integration as a means to equality.
Very astute. And why the Voting Rights Act remains so important for its pre-clearance aspects.
Drill sergeant made the point which was deep for all of them including the two guys.
The majority always wins. Its just a matter of interest convergence as to how long the minority is taken into account. When the majority no longer sees its interest being met in aligning with the minority, drop them like a hot tamale. Watching the doors that opened when I was 5 being pushed closed when I am 57. Arc of my life is that interest convergence or not.
As to your black commander - classic stereotype threat. Not being seen as good enough is a fear that has been around before affirmative action and a mindgame played since time immemorial on blacks.
Affirmative action to get a chance. Work his way up in the space. No affirmative action - no chance to get in and show his stuff. Washouts are washouts.
Neither Brett nor I claim that racism has magically disappeared from the human condition.
Rather, we are arguing that our government should not engage in racism.
A fine argument against the death penalty. Of course people commit murder; we're just saying the government shouldn't.
And yet I'm guessing you would admit of conditions under which government can take life.
"This was the American common law in the heavy majority of states before the advent of statutory criminal law."
Bart, I'm not saying you are wrong about this, but do you have a citation? I always understood that the duty to retreat was found in the older states with the Westward ones rejecting it for the "true man" doctrine.
As to Roberts' bumper sticker, it should be underlined with black ink that Kennedy didn't join it in its most absolute sense. Kennedy specifically didn't join parts of the Parents Involved opinion.
I'll repeat what I said before
"From 'A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments', written by J.J. Gass and Nathan Newman for the Brennan Center:
in 1867 Congress passed a law providing relief for "freedmen or destitute colored people in the District of Columbia," to be distributed under the auspices of the Freedmen's Bureau.21 Of particular importance in the late 1860s was the Bureau's operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts. Opponents, including Johnson, raised the same arguments that would be marshaled against affirmative action programs a century later, but well more than the necessary two-thirds of Congress concluded that the 13th and 14th Amendments authorized race-conscious legislation to ameliorate the social condition of blacks.
"to the point that black children in the South were often better educated than their white counterparts."
How's that for a brilliant way to sow anger and mistrust among the poor white trash? I was blown away, not by the injustice but the sheer stupidity."
The amendments were written in neutral language. Policies introduced by the framers were clearly "unconstitutional". But imagine the result if reconstruction had focused on poverty regardless of race. Conservatives are right: liberals take the easy way out. But conservatives don't want a way out.
BD: Neither Brett nor I claim that racism has magically disappeared from the human condition.
Rather, we are arguing that our government should not engage in racism.
jpk: A fine argument against the death penalty. Of course people commit murder; we're just saying the government shouldn't.
It is the best argument against the death penalty. All life is sacred, thus, all killing is wrong.
"And yet I'm guessing you would admit of conditions under which government can take life."
The distinction between murder and execution under process of law is that the murder victim is not seeking to harm anyone while the subject of execution has taken the life of someone else. This essentially argues that murderers waive their right to life by taking the life of another.
Government racial discrimination does not care at all whether a disfavored individual has actually harmed anyone of the favored race.
BD: "This was the American common law in the heavy majority of states before the advent of statutory criminal law."
Mr. W: Bart, I'm not saying you are wrong about this, but do you have a citation? I always understood that the duty to retreat was found in the older states with the Westward ones rejecting it for the "true man" doctrine.
I'm sorry, I don't have a link.
I did this research in law school for a professor almost 20 years ago.
Your understanding that the duty to retreat originated in the older NE states is correct. Most of the rest of the country did not adopt it. I never researched the cultural reasons for the divide.
Our SALADISTA (FKA our yodeler) with this:
"This essentially argues that murderers waive their right to life by taking the life of another."
seems to accept governmental "eye for any eye." Of course, the foundational premise is "due process of law." But sometimes that due process permits jurors to free lynchers. And what is the history of "due process" as it has worked against African-Americans both as victims and as criminal defendants as compared to whites?
Our SALADISTA (FKA our yodeler) once again with this:
"Most of the rest of the country did not adopt it. I never researched the cultural reasons for the divide."
demonstrates his lack of skills as legal researcher. Is it possible that Slave States had their chattels in mind in adjusting common law in fear of possible uprisings? Keep in mind the Second Amendment's introductory clause and ask whether African-American slaves were included in "A well-regulated Militia ...." Perhaps this suggests cultural reasons.
Back 20 years ago, there was not the ease of Google but our SALADISTA might try 'Googling" Castle Doctrine.
If memory serves, the retreat doctrine was a Progressive Era change that just never caught on.
Maybe it was different when you studied under Hammurabi, but the law school prof sets the parameter for the research for his or her book or article and did so with me.
"liberals take the easy way out"
If there was political will for a comprehensive approach, liberals would not generally vote against it. Like the PPACA, the will is not there, so imperfect solutions are provided. The 15A itself was a compromise measure. It didn't even directly cover office holding & left open many dodges that in short time violated its spirit.
As to the Reconstruction acts, it reflects the amendment's spirit. And, even if (at least for a short term) some black children got more education, overall that didn't make them in practice "more equal" than resident whites. It was at best a small balance of generalized unequal treatment.
Also, it should be noted that efforts were made to generally promote education and the like in the South. Given former slaves had NO education (it in fact being illegal to educate them), they did need special attention. But, Reconstruction governments promoted various general reforms.
Then, it was over, and the South largely went back to former backward ways. As late as WWII, federal programs were looked at with disfavored because if they actually were equally provided, blacks would be benefited too.
This essentially argues that murderers waive their right to life by taking the life of another
The problem of course is this doesn't convey any right to anyone else to take the life. We politely wait for the perp to commit suicide, I guess.
Government racial discrimination does not care at all whether a disfavored [sic] individual has actually harmed anyone of the favored [sic] race
Oh my goodness! Gosh!
Government helps and hurts individuals every day in ways that similarly do not make such distinctions. That sneeze guard on the salad bar; so unfair! I had no intention of sneezing on it. In fact my record suggests I pose no danger here. Why is the guard interfering with my freedom? What hateful government would require it? Oh, the humanity!
Of course the inconvenient truth here is the original discrimination didn't give a rat's ass about whether the black guy who got kidnapped, enslaved, beat up, denied a job, denied an education, ever actually did anything to the racists. That went on for hundreds of years. Oh but now any remedy must show individual harm, don't you see -- how convenient!
Our SALADISTA (FKA our yodeler) self-diagnoses with this:
"If memory serves, ...."
and then confesses to his learning "law office history" with this:
" ... but the law school prof sets the parameter for the research for his or her book or article and did so with me."
I wonder if our SALADISTA's memory can recall those parameters he was provided.
I'm in the process or researching Hammurabi's Code in my class notes that preceded the Progressive Era. More to come on Ham (who could be quite wry at times) later.
I located my Hammurabi class notes that reveal:
"Slaying a burglar in self-defence is allowed by Moses and Hammurabi."
This was the "Tent Doctrine," the predecessor of the "Castle Doctrine."
DG: "liberals take the easy way out"
Joe: "If there was political will for a comprehensive approach, liberals would not generally vote against it."
Optimism is one of liberalism's most annoying traits. But self-awareness like self-sacrifice takes real effort.
I'll repeat the second part of what I wrote in my comment on the earlier post:
"When Harold Washington won his first term as mayor of Chicago, after a divisive election in which the white vote was split, one of the first things he did was tour white working class neighborhoods on the north side. In the words of someone who was there he walked around and in his theatrical tone said "Hey, These streets are a mess! These garbage cans haven't been emptied for weeks! We'll have to do something about that!" And he did. The locals were shocked. They never though a black mayor would give a damn about them. Washington won his second term running against only one significant opponent,"Fast Eddie" Vrdolyak."
What white liberal would have the street smarts to try to charm the white racist working class, or understand the roots of their fear? I've never met one in my life. The only white equivalent of black street smart liberalism is found in segments of the white left, but leftists aren't liberals. See the conflict there?
As I've said many times, the civil rights movement was first and most importantly a movement of lower middle class blacks lead by their priests, not liberal or revolutionary upper middle class whites and their college professors. The same applies for the fight for equal rights for women, a movement led by women, for gay rights, and for equality for Palestinians. Liberals love their universalism because first and foremost they love themselves.
Sorry if optimism is annoying to you, but it is not all I personally rest on. A comprehensive solution would be supported by liberals for a mix of reasons, including pragmatism.
Anyway, public schools, e.g., were set up not by race. They benefit a broad range of people and low income people of all races benefited from them. Just one general public good liberals support.
I'm not going to work off anecdote here but unsure how FDR et. al. didn't work with racists and factored in their concerns. White pols have "charmed" working class whites, including racists, for years, including libs. It is not just something that black pols do.
It is not denied that the core of civil rights tends to be the burdened groups themselves, be it black, Latino, gay, Muslim or whatever. Such people repeatedly follow liberal values. MLK was a liberal. He like others did love himself. That is a primary force for any fight for justice -- self-love.
Meanwhile, the groups fighting for justice also have allies outside of their immediate groups. Abolitionists, e.g., played an important role in ending slavery. It took optimism, annoying as that might be, in 1835 to forsee a time when slavery would be gone.
But, it was, in part out of self-interest, in part because there was an understanding that something united us, and that made slavery basically wrong. And, even racists got that.
"White pols have "charmed" working class whites, including racists, for years, including libs. It is not just something that black pols do."
They do if they want to get anywhere. Harold Washington spent a career as a democratic party hack. He changed, but his optimism came with hardened realism. And Barack Obama would never have been elected, nominated, or close to it, if he'd been anything other than a smooth and charming back room operator. He didn't have the luxury of awkwardness. He sticks on in a crowd. If he were as wooden as Kerry or Gore he'd never have made it beyond state politics. He knows he can never come off as an "angry black man"; he can't match, let alone exceed the anger whites can indulge. Yet white commentators have never understood it. They wondered why he never matched McCain's attacks.
He could never get away with it. It's a white man's world.
If you want to understand white liberals on race start here
It is politically and philosophically more than merely significant that Sandy Levinson can say nothing worthy of serious discussion concerning Palestine. Experience, and history trump reason. The liberalism of Jews in this context is like the feminism of men. Pardon me if defer to the opinions of women and Palestinians.
"Abolitionists, e.g., played an important role in ending slavery."
The abolitionists were considered radicals.
what he said in some private letter in 1876 really is only of mild interest. cheap fifa coins
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Then, again, I think that is the case generally speaking when people cite history in that fashion to rule on policy and constitutional points. The GM probably agrees.
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Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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subset: commoncrawl


text:
Dave Anderson's Forest Journal: Celebrating the dawning of the greenDAVE ANDERSON March 16. 2013 2:25AM
virescent n. The state or process of becoming green; greenish. [Latin]
IN MID-MARCH, skiers and snowmobilers still react to new snow with great joy. For others, March snowfall is a curse.
There's good reason to beware the Ides of March, Caesar. Winter always seems longest at its very end.
The vernal equinox, the alleged "first day of spring" falls one day earlier than usual this year, on Wednesday, March 20. And, of course, it's never the same as the "first spring day," which often occurs sometime in April.
Today being St. Patrick's Day, when all are Irish, we revel in all things green.
"Green" has grown in bandwidth. There may be more associations now with the color found in the very center of the visible spectrum than any other color of the rainbow.
"Green" as an adjective has become synonymous with the environmental community. It is applied to the marketing of consumer goods from dish detergents to coffee beans sold with conservation or ecological concerns applied to the process of growing, harvesting, manufacturing, packaging and recycling.
But, as Kermit the frog lamented, "It's not easy being green."
"Green" is also used in the pejorative when applied to "greenies," those "tree huggers" deemed somehow to stand in the way of progress as environmental obstructionists. To me, that seems a hypocritical perspective unless taken entirely in the absence of concern for clean drinking water, healthy food, productive soil, forest and wood products and air to breathe.
In our daily lives, we see the iconic image of Earth as seen from space in countless contexts. We rarely think twice about the basic ecosystem goods and services essential to our daily lives and very existence provided by the simplest ingredients: water, soil, green plants, sunlight, oxygen.
Here's a more radical proposition: Imagine if days did not grow longer and sunlight did not return to flood the Northern Hemisphere each spring.
I got to thinking about this annual fitful transition from late winter to early spring while plowing a recent surprise snowfall. The dirt driveway had thawed with daytime high temperatures consistently above freezing. I hadn't really noticed or thought much about it when watching the weather forecasts. The snowplow blade swirled the heavy, wet, marshmallow snow and chocolaty mud to create a marbled bank with the same color and consistency of "Rocky Road" ice cream. Wonder where they got that name?
The air smelled funny - an odd wet earth smell. The ancient association of smell and season overwhelmed me: springtime. Even as the surrounding landscape of leafless and seemingly lifeless trees and icy brooks remained cloaked by falling snow, I suddenly knew we had turned the corner.
In "The Outset," New Hampshire's most famous poet, Robert Frost, offers this reassurance of redemption:
... Yet all the precedent is on my side:
I know that winter death has never tried
The earth but it has failed: the snow may heap
In long storms an undrifted four feet deep
As measured against maple, birch and oak,
It cannot check the peeper's silver croak;
And I shall see the snow all go downhill
In water of a slender April rill
That flashes tail through last year's withered brake
And dead weeds like a disappearing snake.
Nothing will be left white but here a birch,
And there a clump of houses with a church.
We really don't question our faith in the assured arrival of springtime - eventually.
Green, the actual color, is a symbol of resurrection. Plants awaken from beneath the snow as the entire northern third of our planet shifts from reflective, monochrome white to a million shades (or so it seems) of green. Forests - the "lungs of Earth" - inhale mightily. A collective human population smiles as we feel warm sunshine on bare skin for the first time in many months.
We have evolved on the only planet our species has ever inhabited. Its seasonal rhythms are so deeply ingrained in our DNA as to seem innate. We respond with animal instincts born of hundreds of thousands of years.
And so today, who among us does not crave a huge dose of all things green?
Happy St. Patrick's Day!
Naturalist Dave Anderson is director of education and volunteer services for the Society for the Protection of New Hampshire Forests. His column appears once a month in the New Hampshire Sunday News. Email him at firstname.lastname@example.com or through the Forest Society Web site: forestsociety.org.


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