Excerpted From: Yuvraj Joshi, Racial Equality Compromises, 111 California Law Review 529 (April 2023) (452 Footnotes) (Full Document)

yuvraj joshiThroughout American history, Black peoples' struggles for racial equality have been met with reactionary compromises. The Constitution's framers handed slaveholding states structural advantages in the name of national unity. The Reconstruction era promised racial equality but ended prematurely with the Hayes-Tilden Compromise of 1877. Even Brown v. Board of Education made concessions of Black rights to appease white supremacists. These recurring compromises have systematically restricted the rights of Black people. They have often generated inequality and distrust, rather than justice and unity. And they further threaten the current pursuit of a multiracial democracy--one in which Black people have “full equal standing” as “members of the polity.” American political system was designed around compromise, and many Americans claim to want compromise in policymaking. Both Democratic and Republican administrations extol the value of compromise. For example, President Barack Obama urged both Republican politicians and Black student activists to compromise for democratic change. Meanwhile, President Donald Trump's 1776 Advisory Commission condemned liberal “identity politics” for impeding “prudential compromise.” not all compromises have the same value. For example, Black people themselves making strategic concessions to advance their causes is different from White people finding common ground by sacrificing Black equality. Likewise, making concessions to advance racial justice and to play into longer-term strategies toward progress is different from endlessly delaying racial justice or trading short-term advances for longer-term drawbacks. Given America's racial history, American society must learn to differentiate between compromises that serve democratic aims and those that reproduce unequal and undemocratic power relations. Article therefore makes two main contributions. First, it identifies key democracy-constraining features of compromise gleaned from the racial equality compromises of the past and the voices of Black advocates. Second, it cautions against accepting such democracy-constraining features in the racial equality compromises proposed for the present.

Given that compromises are pervasive in law and frequently considered a democratic necessity, this Article provides guidance to legal and political actors on when and how not to compromise on racial equality. By learning from Black history and political thought, this Article offers a corrective to the standard American valorization of compromise. Article begins by integrating the insights of academic fields that have studied compromise extensively. Part I discusses previous legal scholarship that has studied compromises and especially “racial compromise.” Looking beyond the law, it also synthesizes transitional justice and political science scholarship that addresses the relationship between compromise and democracy. This literature offers analytical tools for classifying and understanding compromises that this Article then uses to examine American history and law.

With these tools in hand, Part II highlights patterns of racial equality compromise throughout American history. Doing so permits observation of how an American ideology of compromise is routinely deployed to accept and entrench racial injustice, and how patterns of racial equality compromise impede the achievement of a multiracial democracy, while situating the compromises proposed for the current moment in a much longer history.

Generations of Black advocates have operated in the shadow of legislative and judicial compromises. These experiences have given advocates a political literacy around compromise that is largely unacknowledged in legal scholarship. Using archival and other primary sources, Part II examines how Black advocates approached historic compromises on equality with a range of mindsets: from “principled compromising” to “principled uncompromising” to “fully uncompromising.” Even “compromising” figures had ways of distinguishing between principled and unprincipled compromises, and pressures from “uncompromising” Black activists sometimes facilitated more just and effective outcomes. As discussed below, the compromising and uncompromising positions of Black activists constituted an “ecosystem” of social movement strategies, each position relying on the other to shape politics and law. This account attempts not only to contribute to the historical record, but also to elucidate modern-day equality debates and their relationship to compromise.

Part III explores how Supreme Court decisions have been central to making and breaking America's racial equality compromises. Although Brown v. Board of Education and Regents of the University of California v. Bakke are widely recognized as products of compromise, this Article delves further to assess whether these compromises hampered the development of a multiracial democracy. Part III reveals that American society is currently constrained by previous judicial compromises that have both failed to secure equality and curtailed society's ability to battle inequality. Making matters worse, the Roberts Court has reversed the equality gains from earlier legislative compromises in cases like Shelby County v. Holder as well as in the more recent Brnovich v. Democratic National Committee. The Brnovich majority and dissent offered competing interpretations of a compromise that led to the 1982 Voting Rights Act. This disagreement over compromise was a central feature of the case that has been underemphasized in the extensive early commentary. Article's attention to the drawbacks of historical compromises is timely as the United States faces the prospect of new equality compromises. Competing forces are currently driving U.S. legal and political institutions to reconsider the wisdom of earlier compromises, and the U.S. government now has an opportunity to advance a democracy that protects Black people's rights. Yet, democratic progress on issues such as policing and voting rights has been stymied by an uncompromising Republican Party as well as an unduly compromising Democratic Party. And if its precedents are any indicator, the Roberts Court stands ready to unravel prior compromises such as the Voting Rights Act and obstruct prospective compromises such as the John Lewis Voting Rights Advancement Act.

This Article investigates how lessons from past compromises might help us approach present and future ones. Part IV describes common democracy-constraining features of past racial equality compromises to avoid for future compromises. Applying this analytical framework to present debates over policing, voting rights, the Senate filibuster, and Supreme Court reform, Part V cautions against enacting compromises that give us the illusion of democratic progress yet ultimately impede a multiracial democracy.

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The dominant American ideology of compromise valorizes compromise and reveres “great compromisers.” Unfortunately, this same ideology is routinely deployed to accept racial injustice in the United States.

Black advocates who lived through past equality compromises have shown us that there is a difference between principled compromises which advance racial justice and unprincipled ones which appease white supremacists. They offer a more nuanced understanding of when accepting compromises is useful, when uncompromising stances have democratic value, and the kinds of racial equality compromises worth pursuing. Had the Supreme Court learned from the insights of Black advocates, it might have chosen a bolder path toward racial equality. Instead of abandoning accountability to mitigate white racial animosities, it might have pursued accountability designed to withstand those animosities.

These Black advocates and past compromises offer key lessons in determining the democratic value of current proposed compromises concerning policing, voting rights, the Senate filibuster, and Supreme Court reform. Despite the widespread belief that bipartisan compromises will save the republic, many of the compromises proposed for our current moment would actually impede rather than advance democracy. A bipartisanship at all costs approach is a harmful basis on which reforms are pursued.

Adopting this perspective should propel us toward a more multiracial democracy by discouraging compromises that endlessly delay racial justice, or trade short-term advances for longer-term drawbacks. But disrupting established inegalitarian patterns of compromise and forging more egalitarian paths will be difficult. American leaders will need sustained pressure (including mass protests and uncompromising demands) for them to prioritize a genuine racial justice agenda over superficial compromises. Ultimately, the mobilization of the American people remains crucial to making the interests of marginalized communities cognizable by law.

Fellow, Harvard Carr Center for Human Rights; Faculty Affiliate, UCLA School of Law Promise Institute for Human Rights; Assistant Professor, University of British Columbia Allard School of Law; J.S.D., Yale Law School.