Excerpted From: Richard Delgado, The Consequences of Systemic Racism: White Men's Law: The Roots of Systemic Racism. By Peter Irons. New York, N.Y.: Oxford University Press. 2022. Pp. Xix, 291. $29.95, 11 Texas A&M Law Review 175 (Fall, 2023) Book Review (136 Footnotes) (Full Document)

RichardDelgado.jpegIf you kill a small animal of a certain species or swat an insect, the species itself is apt to survive and even flourish. They may produce more offspring to replace the numbers they lost. They may even benefit from the reduced competition for food. With humans, additional mechanisms come into play. During wartime, if a member of a unit suffers an injury or death, a reservist may arrive to take his place. In civilian life, someone who loses a job may search and find a better one. If a teacher gives a good student a low grade on one assignment, she may try harder next time and perhaps earn a higher one.

With mass disasters, people may display resilience through collective action. After a flood, they may build higher houses or a seawall. After a plague, their scientists may develop vaccines that will prevent its return next year. If survivors of a disaster find themselves in dire straits, society may send relief teams and offer loans to help them rebuild or relocate. The group becomes safer and better protected over time.

Suppose, however, that the forces plaguing the group are intentional and stem from human action, not the natural kind. A new book by Peter Irons shows that with one such force--systemic racism--resilience and mutual aid do not come quite so easily. Racism is not impersonal, like a flood or wildfire, but a product of human action. It can immobilize a victim, especially if he or she is lacking in resources and knows that the episode is not a unique event but is likely to recur, again and again. If resistance proves unavailing, victims may try appealing to the better natures of the perpetrators. They may redouble efforts to demonstrate their own virtue. They may relocate to a different region or country where racism is less prevalent. They may try to pass laws against discriminatory behavior.

But what if none of these measures is successful, and the superior force continues oppressing the weaker one? They may warn them not to speak out or resist. They may point out that the current regime is perfectly legal, and that rebellion will bring swift punishment.

With natural disasters, the survivors typically face few obstacles like these. But with the interpersonal kind, victims may learn that outright resistance is dangerous or futile and lose heart. Studies of the behavior of inmates in POW camps or Auschwitz, struggling to survive under captors who control every feature of their environment, show that at some point, many lose hope and simply give up.

Much seems to depend on whether a group has reason to expect an improvement in their circumstances. For example, many immigrant groups from southern or eastern Europe who arrived in the U.S. in large numbers beginning around 1890 received very poor treatment on arrival. Everyday Americans saw them as inferior and likened them to Blacks, whom the natives had learned to despise. But most of the immigrants arrived with high hopes and, in time, did rise, aided by mutual self-help organizations and sympathetic social workers who taught them English, personal hygiene, and American ways. Their children attended free public schools and enrolled at universities like CUNY or Fordham. Their children today sit on the Supreme Court.

With involuntary immigrants, by contrast, especially ones who are racialized, upward mobility is often much slower. With Mexican Americans, for example, the second generation is often worse off than the first in a pattern sociologists call “downward assimilation.” Before the advent of casino gambling, Native Americans had the distinction of being, by many measures, the worst off of all minority groups, with high rates of crime, spousal abuse, unemployment, and alcoholism, and, like the Mexican Americans, enjoyed improved circumstances only after several generations, and then only slowly. And with African Americans, the path upward has been slow and difficult at best.

Why do some groups rise while others do not? Lawyer-historian Peter Irons's book finds one answer in a surprising institution--the rule of law. His well-written, but scholarly, book describes a centurieslong series of hammer blows, many administered through the legal system, that systematically reduced the chances of one group, African Americans, leading fulfilling lives. Similar, but slimmer, bodies of recent writing are beginning to cover other groups, but Irons's is the most comprehensive and the most instructive.

This Review begins, in Part II, by summarizing the career of Peter Irons, whose name may be familiar as the lawyer who first brought to light the lies and deceptions that led to World War II internment for Japanese American families living on the West Coast and who pioneered the use of a little-known legal writ, coram nobis, to erase two Supreme Court decisions, Korematsu v. United States and Hiraba-yashi v. United States that, until then, had remained as blemishes on America's legal record.

Part III discusses Irons's argument, showing how society delivered a centuries-long series of assaults on the bodies and souls of a single group in such a manner as to afford few opportunities for relief. “Systemic Racism,” the term in his subtitle, conjures the plight of an animal trapped by an inexorable tide of rising water, voracious predators, or all-powerful captors bent on using it for experimentation or food. His use of the term “systemic” emerges as entirely apt, inasmuch as it connotes an overpowering force that encompasses an entire group, leaving few opportunities to escape. Part IV discusses the consequences of systemic racism and asks why few sympathizers from the majority group have come to the aid of those laboring under it, and what conditions might motivate them to loosen, if only slightly, the chains holding the group back.

[. . .]

Two strategies, social contact and interest convergence, have proven reasonably reliable in reducing racism and its behavioral components. Unfortunately, the first takes a long time and requires an early start in life. The other requires a rare alignment of interests between whites and Blacks like the one that may have enabled an NAACP breakthrough in Brown v. Board of Education.

Since both approaches are well known, I offer a few words on the downward pressure, now rising in contemporary life, that will require even greater ingenuity and skill than usual. My reading of America's racial history, including Peter Irons's book, inclines me to think that Karl Marx, while writing mainly about class, saw something about American society that was equally true about race. Just as a capitalistic economic system tends to increase inequality and generate periodic “crises,” the system of racial oppression of which Irons writes can do the same. And when it does, it too requires a correction.

The resulting crisis, then, can be either class-based or racial in nature, like the one taking place today with the attack on critical race theory, on Black Lives Matter, the 1619 Project, and ethnic studies in K-12 schools. “Don't Say Gay” bills operate in much the same manner and tap many of the same instincts. If Marx or Derrick Bell were alive today, they could easily see the accelerated disinvestment in the fortunes of Blacks occurring in our time as an instance of a surplus value theory of whiteness that operates as a counterpart of Marx's famous axiom. They could see young white men like those who marched in Charlottesville, whose whiteness lies at the intersection of looks, Northern European ancestry, and an exaggerated identification with Nordic music, festivals, medals, insignia, and even pairs of horns and suits of armor, as venture capitalists of a new racial order.

Hyperwhites like these are not like your grandparents' Scandinavian ancestors who blended into American life in cities and farms and were often delighted to have neighbors who were Black, Mexican, Chinese, or Italian. Today's versions adore everything that they consider typical of Western civilization--ice hockey, not soccer; Icelandic sagas, not Toni Morrison. They are likely to see immigrants and minorities as irritants, requiring removal to their own squalid neighborhoods and schools. No countervailing interest is apt to require serious consideration. To them, the country has no stronger interest than preserving and expanding whiteness and its heritage. Interest convergence is not a promising avenue for race reformers hoping to make common cause with them. Any correction would have to arrive from somewhere else.

Little surprise that at times like these, police shootings are on the rise, attacks on ethnic studies, gay studies, and progressive schoolbooks have risen sharply, and conservative voices are demanding tighter control over voting, school curricula, and even the books that children can check out from public libraries.

In the long run, demography and social-contact theory are on the side of racial progress, and increasing competition from China is likely to motivate America's leaders to soften some of the hard lines of racial and class conflict that mark social life in this country. This transformation will not happen easily, though, and in the meantime, scholars who produce books like White Men's Law will find a broad and well-deserved readership. Racial oppression, as Irons shows, has long roots, requiring new habits, laws, and practices to counter it effectively. Four hundred years is a long time to wait, and recent cases like Shelby v. Holder, Citizens United v. Federal Election Commission, and Dobbs v. Jackson Women's Health Organization suggest that the wait could be even longer.

Distinguished Professor of Law, Seattle University.