Attitudes about race permeate life in America. It would be surprising if they didn't. Race includes ethnicity for this purpose, and religion, as in Catholics, Jews, and Muslims. The names change over time.
The head of the Border Patrol wants a law that would fine employers $50,000 per unauthorized employee hired. That's a lot of money per car wash attendant, dishwasher, hotel maid, or picker.
These would be Mexican undocumenteds, sin papeles or mojados (wets), of course. Legislators in Southern California, Republican legislators, want a program that encourages and regularizes Mexican entrants. The Bush Administration is in conflict with itself. Paragons of "We must obey the law" cut it short when trumped by the paramount claim of "We must obey the economy, first, stupid." People need to make a living and mere laws are not apt to deter them any time soon. Look at Prohibition. See the drugs.
California would sink into the ocean if the Mexicans stopped coming in to bust their asses and send money home. We're getting the best workers in the world and we want to keep them out?
Who would do the work?
Not Americans.
"Not blacks," says a friend, a man of the professions. He sees blacks as field hands, I presume.
I know a businessman in Florida who will hire blacks, but only Haitians.
"Why only Haitians?" I asked.
"They want to work."
The Haitian limo-driver who picks me up at the West Palm airport driving his own late-model Chrysler is on the cell-phone, lining up his next gig. I wish he'd pay more attention to the traffic on I-95.
An older, conservative, friend rants about blacks wanting to be made whole from slavery. Reparations, he, and some of them, call it. The Japanese got an official apology and 20 grand for those who survived forty years after the Pearl Harbor internments. The Korematsu case was shown to be a put up job. Phony evidence put out by the Army and Justice Department. Judge Marylin Hall Patel, presiding, U.S. District Court, Northern District of California, San Francisco. Peter Irons for the defense.
Ward Connerly, a black proponent of do-it-yourself-and-don't-complain-about-it, says that reparations are ridiculous. They punish the wrong people and reward the wrong people. We're too far down the road. The time to have instituted a helping hand for the freed slaves, millions of them, began in 1865 with the end of the Civil War. Too little, too late, too soon stopped, and then the reaction. That's what happened.
Reconstruction, as the effort was called to do something with and for the freed blacks, ended with a political deal in 1876. This was the Bush v. Gore election of its day. Tilden (Democrat, of N.Y.) won the popular vote against Hayes (Republican, of Ohio). Republican, you recall was the party of Lincoln at the time.
There was a contest. The election was stolen, in a manner of speaking, with the loser becoming the winner through a series of backroom deals that turned the Electoral College. Hayes promised the Southern Democrats (There were no Republicans, the Party of Lincoln, in the South, then, or for the next hundred years. Democrats who smelled like republicans were later called Dixiecrats, in 1948, with the campaign of Sen. Strom Thurmond, (S. Car.) for president against Truman.) that he'd remove the federal troops from the South.
Federal troops were protecting blacks in the South from what later became the Ku Klux Klan. At the point of a bayonet, as Southerners rarely fail to point out. Bayonets were fine in the hands of white Southerners, but not the other way around.
Things move slowly in the South. The New York Times reports the indictment of the man alleged to be responsible for the murders of civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner, in Neshoba County, Mississippi, 1964. The accused is a preacher. Of course it would turn out to be a preacher. Frederick Douglass, in his Narrative of The Life of a Former Slave, by Himself, observed that southern ministers of religion owned and rented out slaves, justifying the practice in Biblical terms using Biblical authority. Slaves built their churches. Who do you think built Mt. Vernon? The White House? Who is more to blame, the leaders or the followers?
The preacher was Indicted by the Grand Jury of Neshoba County. Forty years later. Times have changed, to be able to do that.
The incident over Civil Rights Summer that, along with Bull Connor and the snapping German Shephards, the fire-hoses, the shooting on the Edmund Pettus Bridge, Rosa Parks, the Emmet Till murder, and so many other outrages, finally brought to us through the novel medium, television, and Martin Luther King, Jr., who knew how to speak, helped change America.
The past isn't dead. It's all around us.
Sen. Barbara Boxer (Democrat, California) has protested the vote of Ohio in Congress yesterday during the Electoral College meeting. You can't see the electoral college because it has no building of its own. It flits by like a no-see-um that only stings once in a while, when it lands every four years. The Electoral College is our way of insuring against too much democracy.
Too much of a good thing.
Affirmative action has been the racial bugaboo of the past generation or so. Let's make up for past wrongs by saying, okay, all you descendants of those who were mistreated by whites in the past now get bonus benefits. You want to get into college? Advance on the police and fire department hiring and promotion list? Get a government contract to build jail toilets (see the Richmond v. J.A. Croson case) or highway guard rails (see Adarand v. Pena)? Affirmative action in public contracting, government benefits, was held to require strict scrutiny, the nearly impossible test to pass, and fail. Strict scrutiny was said by the late Gerald Guenther, the distinguished Stanford Constitutional Law Professor, and biographer of Learned Hand, that strict scrutiny was "strict in theory, fatal in fact."
There's only one race in America, said Justice Scalia. American. For him, as Justice Harlan in 1896 (Plessy, dissenting) the Constitution is color blind. Would that it were so as applied on the ground.
"As applied" is one of our big constitutional doctrines. You can have a non-discriminatory law, fair on its face, applied in a discriminatory manner. Yick Wo v. Hopkins, 118 U.S. 356; 6 S. Ct. 1064; 30 L. Ed. 220; 1886 U.S. LEXIS 1938, Submitted April 14, 1886., May 10, 1886, Decided (not in Findlaw); out of San Francisco, 1886, is the first big example. You can read Yick Wo here, at Cornell's LII, a great on-line resource for finding Supreme Court cases pre-dating Findlaw's 1893 cut-off, of which we study more than a few...
San Francisco was built of wood and the city kept burning down, so a law was passed that new buildings had to be of brick (they hadn't been hit by the Big One, the earthquake and fire of 1906 yet.) Another law was passed requiring that laundries locate only in brick buildings. It was only applied against Chinese. White laundries could locate in wooden buildings.
Chinese were being driven out of business by whites, through the discriminatory application of this law. The Chinese sued and won. The Court, using Equal Protection principles, declared unconstitutional not the local ordinances but the way they were applied, against non-citizen disfavored immigrants no less. That was a big deal.
We have a Yick Wo Elementary School in San Francisco as the result of a move to commemorate the landmark case and the man who brought it. No one seemed to remember who he was, unfortunately.
Fine, we'll give you a preference, to make up for the bad road your parents and grandparents were forced to endure while whites amassed fortunes in the South and the North, dealing as it did in cotton, carrying slave cargoes, providing the banking and insurance services that underpinned the whole system, helped maintain the laws and create the markets that enabled slavery to thrive, etc., etc.
We'll make amends for slavery and Jim Crow. Great. We need to make amends. How to do it is another story.
I visited Washington, D.C. the summer my youngest son graduated college Back East, in '03. Made a little history trip from Boston to Washington. Visited Washington's slave plantation at Mt. Vernon. It was very nice. Nice little slave cabins belonging to the Father of Our Nation. Parking was easy. Back to the hotel in Alexandria. Plaque on a building noting the site where federal troops, during the Civil War, shot and killed the owner. Around the corner a building that George Washington built on spec. He was a developer.
We visited the Holocaust Museum, reminding us of what those bad Germans did to the Jews over there in far-away Europe. We didn't visit the American Museum of Slavery and Jim Crow reminding us of what we did here to blacks. There isn't one. Don't ask me why.
Don't go looking for the Japanese Internment Museum in San Francisco, either. You won't find it. Nihonmachi is it, Japantown, the location of the former real J-town, the ghetto destroyed by the round-ups. Whites snapped up the real estate at fire-sale prices. When you and your family are being shipped off to the camps, you'll sell out for what you can get. The Japanese Internment Museum could have a wall listing the names of who bought what from whom at bargain prices.
Con-law is all around you, I keep saying. All you have to do is keep your eyes open.
Affirmative action in university admissions was the subject of the Bakke case, 1978, in which the Court was split 4:4, for and against. Justice Lewis F. Powell, Jr., (see the epynomous bio by John C. Jeffries, 2001, Fordham) who knew something about race, having grown up and practiced law in Virginia (he was on the school board in Richmond around the time of Brown v. Board (1954) and had to deal with the effects of that on the ground) cast the deciding vote.
Affirmative action was okay, said the Court, so long as it wasn't quantifiable (i.e. no quotas or bonus points) by race, in the interests of "diversity." Justice Clarence Thomas asked a law class recently how it was that the Court came to adopt diversity as the rationale for upholding affirmative action. Justice Powell is the answer. It was the only thing left that made any sense, I guess.
In 2003 the Court adopted his view in Gratz and Grutter v. Bollinger, the U. of Michigan cases, as they are called. Affirmative action is regarded by its victims as "reverse discrimination."
Under 'Equal Protection,' some folks continue to remain more equal than others, as George Orwell dramatized in Animal Farm. And don't overlook his 1984. Traditionally, skin color aka race was the defining characteristic. Today there is some movement towards substituting some other characteristic than skin color as the definer of whom we would like to associate with or not, or allow scarce benefits. Such as "class" or "socioeconomic level." These have been called proxies, substitutes, for race.
Race, as we all know, has been so debunked by biologists that it no longer serves as a reliable marker. So we need another basis on which to discriminate, because that's how we seem to be built, to discriminate. If it isn't race, it'll be something else. Those poor Neanderthals. Wrong group, wrong time, wrong place. Kaput. See Richard Dawkins's latest, The Ancestor's Tale, cousin.
"Diversity" is different from "making amends" or "rectifying past injustices" or even "bringing folks up to speed by handicapping the race." Pres. Lyndon B. Johnson famously remarked, in endorsing the Civil Rights Act of 1964, after the Kennedy assassination, that you don't unshackle a man who has been in chains, then put him on the starting line of a marathon and call it a fair race. You need to nurture and train him first. That's the Civil Rights Act of 1964.
Nurturing and training means education, jobs, and government benefits, like contracts. Halliburton gets rich off government contracts, as does Bechtel, Lockheed, Boeing (who my son works for), General Electric (submarines), etc. NASA. Moon and Mars missions. My son doesn't like it when I refer to these as welfare for white folks. White engineers, mostly. Mars. Who else needs mars? So I've stopped.
After the Bush-Gore-2000 election fiasco, which produced the current administration, the presidents of MIT and CALTECH, two of the most prominent universities in the world, much less America, agreed to head a $25 million effort to design voting equipment to insure a reliably fair election. I say take the Mars money and put it to work here on the ground designing and setting up programs like job training and social welfare that might actually work. Let MIT and CALTECH lead the way. My youngest, an MIT grad, is still thinking about this one. Which is why I said it. Trying to be provocative is part of the game of teaching.
If you want to do big engineering, you've got to be a better politician than engineer. LBJ was supported by the biggest engineering firms around. Brown and Root. Wouldn't touch oil money, directly. But would take engineering money. Space installations go to politicians. Engineers who promise jobs to local pols' Districts, get projects. Others don't. You want to go to Mars? Here's what you do. The ground station is going to go right here, right? Right. And the university research money, we'll need some of that, too.
There's a reason the Johnson Space Center is in Houston, Texas. That would be the Lyndon Baines Johnson Space Center, headquarters for space missions. As in "Houston, we've got a problem." See Apollo 13, starring Tom Cruise, and don't forget Tom Wolfe's The Right Stuff, starring Chuck Yeager. LBJ was a T-Texan.
So now we have a guy, Rick Sander, who's done a study of affirmative action. He's white, his wife is of a different race, his kid is both, he's strongly for civil rights, he's looked at the data, some data, a lot of data, anyway, and has now written a law review article (Stanford) that says affirmative action as practiced so far has been bad for blacks for various reasons. We already knew that from Stephen L. Carter, a law professor at Yale, who wrote Reflections of an Affirmative Action Baby (1991, BasicBooks, Perseus) who is against it. And Justice Clarence Thomas, who benefited from it. And Thomas Sowell, of the Hoover Institute at Stanford.
Sowell said one of the greatest things ever written:
The key to creating an illusory world is a biased selection of facts according to a preconceived notion.
Think of Paris..., Hollywood..., Broadway..., Vietnam (dominoes)..., Iraq (WMD)....
Who sold us Hollywood? Broadway? (The Great White Way: Damon Runyan); Vietnam: the WWII generation vs. the kids. Iraq: George Bush, George Chenay, Condoleezza Rice the Warrior Princess, Wolfowitz of Arabia, and to his lasting discredit, the hero of the Persian Gulf, Sec'y of State Colin Powell who told the world at the U.N. the equivalent of "I have seen the evidence and it is good," when it wasn't. Oh, well. If we can't have WMD we'll take getting rid of a bad guy, Saddam. He needed getting rid of anyway. If we can't have affirmative action, we'll take diversity.
In the South, "He needed killin,' " is a good defense to a charge of homicide.
In San Francisco we try hard to avoid calling such things "Public Service Killings."
In New York, when gangsters are rubbed out by rival gangsters, who gets excited? The cops, the prosecutor, the rival mobs, but not the general public. As long as they are able to avoid stray bullets in case of the gang that can't shoot straight (see the novel by that name by N.Y. writer Jimmy Breslin, and later the movie, with Robert De Niro, Jerry Orbach), it's not as though there is felt any big loss, except for those most closely involved.
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Hastings Conlawprof Vik Amar has written a review of the Sanders article about race and affirmative action on Findlaw. Part I appears here.