Friday, January 21, 2022

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 Abstract

Excerpted From: T. Alexander Aleinikoff, Foreword to the Republication of the Constitution in Context: The Continuing Significance of Racism, 92 University of Colorado Law Review 1315 (2021) (211 Footnotes) (Full Document)

 

TAlexanderAleinikoffIt is disturbing--to say the least--that an article written nearly three decades ago based on an assertion of the continuing existence of racism in the United States can be seen as meriting republication, not for its historical interest but because of its current relevance. The article began with descriptions of the brutal murder of Emmet Till in 1955 and the savage beating of Alfred Jermaine Ewell in 1991--to remind us, as Faulkner famously wrote, “The past is never dead. It's not even past.” Were I writing today, I would begin with the unprovoked and unjustifiable killings of Daniel Prude, Rayshard Brooks, George Floyd, Breonna Taylor, Eric Garner, Tamir Rice, Michael Brown, Ahmaud Arbery, Trayvon Martin, Philando Castile, Laquan McDonald, or the names of scores of other Black Americans murdered in recent years by police officers or white fellow citizens. America knows these stories; and yet what has America learned? More importantly, what has it done?

The article republished below made three central claims: (1) that racism, and its harmful impacts, very much continued to exist in the United States in the 1990s; (2) as a matter of legal methodology, it is appropriate for judges to examine the societal context in which constitutional doctrine is crafted and upon which it operates--because inevitably judges rely on background assumptions about the nature of social reality and frequently these default assumptions are incomplete, biased, or wrong; and (3) that the Supreme Court ought to take the existence of racism into account in fashioning constitutional doctrine, in particular in voting rights and affirmative action cases. Here, I affirm the first and second propositions; but given the current make-up of the Supreme Court, I recognize that the third claim is a nonstarter. If significant progress is to be made today in overcoming racism in our deeds, words, and institutions, it will need to come through concerted political action on the ground--not legal arguments in the courts.

[. . .]

The 1992 article described racism's harms across social, economic, and political spheres in the United States. There is evidence that the nation has made some progress on eradicating the effects of discrimination. We have elected a Black president and vice-president and a Black senator from the state of Georgia. The number of Black college undergraduates more than doubled between 1976 and 2008, at a rate substantially above white increases in enrollment. Today Black American life expectancy is over 75 years, up from 69 in 1990, and the gap with whites has been cut in half. In the 1950s, 96 percent of Americans reported being opposed to interracial marriage; today, an overwhelming majority approve of such marriages.

But in too many areas of everyday life, deep inequalities persist. Black median household income is about three-fifths white median household income, a figure not appreciably different than the rate in 1993; the current average net worth of whites today is ten times what it is for Blacks. While the infant mortality rate for Black Americans has decreased substantially over the past several decades, it remains over twice as high as the rate for non-Hispanic whites in part, to discriminatory practices or embedded biases in America's health care systems. Residential segregation persists; and while blatant forms of housing discrimination have declined, Blacks continue to be treated less favorably than white buyers and renters. Race-motivated hate crimes have decreased as a proportion of total hate crimes reported by the Department of Justice between 2004 and 2015; nonetheless an overwhelming majority still were motivated by race and/or ethnicity. Hate speech now proliferates on social media, reaching tens of millions of Americans.

The ideology of white supremacy has been present in every era of American history, but during the Trump Administration flagrant expressions of racism and acts of racist violence spewed forth with a strength and ugliness not seen in the United States for decades. The “Unite the Right” rally in Charlottesville, Virginia, in 2017 showed that open and notorious displays of racism are not a thing of the past. In the closing days of the Trump Administration, the president launched an attack on the 2020 election centrally based on alleged voting irregularities in cities with large Black populations. During the January 6, 2021 insurrection, Black Capitol Hill police officers were assaulted with racial epithets and the Confederate flag was marched through the halls of Congress--leading one historian to declare that “[t]he Confederate flag made it deeper into Washington on Jan. 6, 2021, than it did during the Civil War.” The difference in police preparation for and treatment of those protesting for racial justice during the summer of 2020 and those invading the Capitol is as apparent as it is disturbing. Said one observer, a former American counterterrorism official and diplomat: “The evidence is starkly clear that the momentum of violence has shifted to the right in this country. We've seen this in city after city .... There was a failure among law enforcement to imagine that people who 'look like me’ would do this.”

So I have no hesitation in asserting that American racism as described in the original article persists today with enough virulence to sustain the article's doctrinal claims. But the Supreme Court is decidedly less likely today to find my analysis persuasive than it was three decades ago. Shelby County v. Holder, the case invalidating section 5 of the Voting Rights Act of 1965 (as re-enacted by Congress in 2006), is a prime example. While professing that “no one doubts” that “voting discrimination still exists,” Chief Justice Roberts went on to ignore the thousands of pages compiled by Congress when it reauthorized the Act in 2006 that demonstrated continuing discrimination in covered jurisdictions. The Court left affirmative action hanging by a thread in 2003 in Grutter v. Bollinger, with Justice O'Connor stating in the majority opinion that “[t]he Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Given the Trump appointments to the Court, it appears a foregone conclusion that the thread will be cut before the 25 years is up.

II.

The aim of the original article was to show that there was more than enough “old-fashioned” racism (meaning, intentional infliction of harm based on race and racial prejudice) to justify race-based remedial measures in the 1990s. I suggested that this recognition ought to be a part of the context in which the Court crafted legal doctrine. I would extend that argument today, based on the important work of the protest movements to expose and condemn “systemic racism” in policing, health and social policies, higher education and in other areas of American life. (I will adopt the term “structural” racism here, which, to my mind, locates racism at the foundation of our institutions and also avoids understanding “systemic” as simply meaning widespread rather than deeply ingrained.) Recognizing structural racism comes to grips with the ways in which long-standing, pervasive, and persistent societal race discrimination is embedded in social and economic institutions and practices, yielding disproportionate harmful outcomes for persons based on their race. The discriminatory outcomes may not be “intended” by institutions, educators, or policy-makers; but the results are entirely foreseeable given the social and economic landscape in which they are located.

The COVID-19 crisis provides a clear example.

[. . .]

THE CONSTITUTION IN CONTEXT: THE CONTINUING SIGNIFICANCE OF RACISM

T. Alexander Aleinikoff

PROLOGUE

In August 1955, Emmett Till, a 14-year old African-American from Chicago, was lynched in Mississippi. Apparently unprepared to conform his conduct to the local mores, he made the mistake of whistling at a white woman. Till was beaten and shot; his body was thrown into the Tallahatchie River tied to a large piece of equipment used in ginning cotton. The two men who later admitted killing Till were found not guilty of murder by a petit jury in Sumner, Mississippi. A grand jury in Greenwood, Mississippi refused to indict them for kidnapping.

As this nation approaches the twenty-first century, to many the story of Emmett Till is as far away as the Civil War. The Civil Rights Movement and civil rights legislation of the 1960s--so the story goes--banished race discrimination from the United States, purging America of three hundred years of racism. While individual acts of race bigotry still occur from time to time, they are anachronisms; and perpetrators are swiftly and soundly condemned. We have, in the jargon of the day, “levelled the playing field.” And but for (highly controversial) race-conscious policies aimed at overcoming the “effects of past discrimination,” we are largely a society that judges persons “not by the color of their skin, but by the content of their character.”

So the story goes. And yet, as I sit down to write this paper, I cannot help but think about a newspaper article that appeared last week in the Chicago Tribune. It read, in its entirety:

Black Teen Beaten By Gang of Whites

Atlantic Beach, N.Y.--A black teenager was taken to the hospital on life-support systems Thursday after being beaten savagely by a group of bat-wielding white men, apparently because he was talking to a white girl. Alfred Jermaine Ewell, 17, a high school football and track star in this affluent seaside village in Long Island, was beaten unconscious as he talked with a white female classmate early Sunday morning. The men, aged 19 to 21, apparently attacked Ewell because he had fraternized with the girl at a graduation party a few hours earlier. They have pleaded not guilty to charges including attempted murder.

I will suggest in this paper that it is quite wrong to view the life-threatening beating of Ewell as an anachronistic throwback to the “bad old (pre-1960s) days” of American racism. Rather, both the Till and Ewell incidents represent a disturbing constant in American culture, one that American constitutional law and the Supreme Court appear increasingly unwilling to recognize.

I. INTRODUCTION: THE CALL FOR CONTEXT

Senator Paul Simon wrapped up his questioning of Supreme Court-nominee David Souter a little more than a year ago with “a suggestion” for the future Justice. Noting that, for both Senators and Justices, it is important “to be exposed to things in our society that maybe we haven't been exposed to,” Simon continued:

[I]f I can use a personal illustration. We don't have any Indian reservations in Illinois. I know there are serious problems. And while we have some Native Americans in the city of Chicago, relatively, it's a handful of people. I took the time to go to the Pine Ridge Indian Reservation in South Dakota, found 73 percent unemployment, 65 percent of the homes with no telephones, 26 percent of the homes with no indoor plumbing, 8 percent of the homes with no electricity ....

[W]hen an issue about American Indians comes up, it's not an abstraction for me ....

And I don't mean this disrespectfully to your fine background: I want you to understand perhaps a little more than you now do some of the aches of America .... Maybe [you could] get together with your friend and mine, [ [ [Senator] Warren Rudman, maybe [Senator] Fred McClure, ... [and] think about some kind of an agenda when the Court is not in session where you would get to understand the West Side of Chicago, maybe an Indian reservation .... I think if that were to take place, you would be a better United States Supreme Court justice. Justice Cardozo has been quoted here this morning. Let me just give you a quote here. “Where does a judge turn for the knowledge that is needed to weigh the social interests that shape the law? I can only answer that he must get his knowledge from experience and study and reflection; in brief, from life itself.”

At first blush, Senator Simon's suggestion seems to run contrary to cherished myths about the American legal system and the process of judging. Justice is, and ought to be, blind to the particular circumstances of litigants; a judge should apply the same rules of public and private law, derived from general categories and principles, on the West Side of Chicago that he or she applies in Evanston or Hyde Park. Indeed, to rely on personal knowledge in a particular case would violate judicial norms, undermining detailed rules of evidence and the ability of litigants to present and cross-examine witnesses.

But surely this description of adjudication is both descriptively and normatively flawed. No judge can put him or herself behind a “veil of ignorance.” The act of judging necessarily is predicated upon a range of political, psychological and social assumptions that cannot simply be discarded or overcome; without them, adjudication would be impossible. From this perspective, Senator Simon's suggestion appears quite sensible: a Justice who has led a rather insular life ought to scrutinize the assumptions that will inevitably play a role in adjudication--not to gain special knowledge that can be applied in cases involving Indians, African-Americans, or Latinos, but to appreciate the partiality of one's implicit world view.

Of course, there is a troubling simplicity to the Senator's suggestions. A trip to the slums of Chicago's West Side will not necessarily engender in Justice Souter the kind of sympathy and concern it does in Senator Simon. Whatever is observed will be understood through preexisting lenses. Where Simon might see victims of racism morally entitled to social programs to remedy past and present discrimination, another observer might see able-bodied people refusing to take advantage of the opportunities society makes available to those who are willing to take responsibility for their lives. The objective is not simply to gather more information; that goal can be reached through the adversary system. Rather I read Senator Simon's comments as urging the acquisition of wisdom (or at least humility) that comes by subjecting one's assumptions to challenge and critique.

There is another sense in which the Senator's suggestion may resonate with, rather than contradict, our usual normative account of adjudication. A call for analysis attuned to “context” is prevalent in current theoretical discourse. Contextualism represents an important part of the method of some feminist legal scholars and is implicit in much of the “new legal pragmatism.” At base, the appeal to “context” is an anti-formalist claim, deriding the attempt to answer legal questions by deduction from abstract categories. Such categorical reasoning may be attacked for privileging a dominant world view that suppresses alternative descriptions and values, as well as being out of touch with the world in which the legal norms will be applied. On the first account, formalist reasoning reinforces an unjust or non-inclusive status quo; on the second, it generates rules that will not function in a socially productive fashion. Reasoning “from the bottom up” helps to correct these problems; it also reminds us that our conclusions are contingent and subject to revision as the world, and our understandings of it, evolve.

I will not, in this paper, take a strong position on these fashionable debates in modern legal theory; although I am happy to note my sympathy with critiques of legal reasoning (tracing back to the early days of Legal Realism) that question the “neutrality” or “objectivity” of categorization and adjudication. One hardly need describe oneself in fancy terms to recognize that knowledge of the world ought to be a component of any sensible theory of adjudication.

As the opening section of this paper should make clear, my claim here is that the persistence and power of racism ought to be seen as an important part of the social “context” with which constitutional norms regarding equal protection and racial justice interact. That it is not considered such by the majority of the Supreme Court today is illustrated by the strong words which close Justice Blackmun's dissenting opinion in Wards Cove Packing Co. v. Atonio: “One wonders whether the majority still believes that race discrimination--or more accurately, race discrimination against non-whites--is a problem in our society, or even remembers that it ever was.”

By using the phrase “social context,” I do not mean to imply that there is a “real world” out there that empirical, scientific research can reveal to us. Just as constitutional adjudicators do not “discover” an answer to a difficult legal question, neither do they “discover” a “real world” to which they apply constitutional norms. Adjudicators create a world through social analysis; and in that process untested (even unconscious) descriptive and normative assumptions will play a role. Thus, my guess is that decision makers who adopt a “colorblind” interpretation of the Equal Protection Clause are likely to do so based on the view that racism is on the decline in the United States; adjudicators who adopt constitutional norms more favorable to color-conscious remedies probably see a far greater degree of racial inequality in American society.

I hope to demonstrate in the pages that follow that race discrimination against non-whites remains a serious problem in this society, and that recognition of this bigotry has important implications for the crafting of constitutional doctrine. Specifically, I will suggest that focusing on racism can provide a powerful and sensible basis for anti-discrimination doctrine--one that moves beyond justifications that no longer seem to persuade. Both the Court and the polity appear troubled by the justification of race policies as “remedying the effects of past discrimination.” Not only does such a claim appear to justify “remedies that are ageless in their reach with the past, and timeless in their ability to affect the future;” it also runs counter to the view that a quarter century of anti-discrimination law has produced a social system of equal opportunity. Even more disconcerting, apparently, is the claim that anti-discrimination law should be used in a broadly distributive fashion, allocating jobs and other opportunities based on a racial group's proportional representation in society. Crafting doctrine to remedy acts of current prejudice--I will try to show--charts a different course, neither reaching into a past that seems too far away to be relevant to today's problems, nor establishing constitutional norms that mandate proportional representation.

I offer here a reading of American culture that I hope will reinvigorate the discussion in the legal literature of “old fashioned” racism. To many, my description might seem exaggerated--accentuating the negative, discounting signs of improvement. Indeed, use of the term “racism” will seem to some an ideological move that once again attempts to blame and shame white America. I therefore want to make clear at the outset that I am not asserting that racism is the sole cause of racial inequality in this country. But I do want to claim that it remains a serious social disease, one that--far from being cured--has hardly been controlled. And a legal culture that ignores racism does so at the peril of its victims and society as a whole.

The next section will provide the support for my claim that race prejudice remains a potent force in modern American life. The section after that will describe theoretical and doctrinal implications of a “recontextualized” account. In particular, I will suggest that doctrine in cases concerning vote dilution claims and affirmative action in higher education may be profitably reconceptualized once we construct a context appropriately attuned to the continuing significance of racism.

[. . .]

Constitutional doctrine necessarily incorporates an understanding of “the real world.” To its detriment, modern constitutional law has constructed a picture of American society from which racism has been erased. I have argued in this paper that racism is far more widespread in American society and culture than is normally recognized. I have tried to show how changing the context from and in which we analyze constitutional questions might well change the development of constitutional doctrine.

I have not addressed broader questions of substantive constitutional law which seem implicit in much of the discussion above. For example, I argued above that in voting dilution cases, a violation of the Fourteenth Amendment would be established if plaintiffs could show that an electoral system was structured in a way that permitted the racial prejudice of voters to persistently disadvantage racial minorities. It might well be asked whether this principle has broader applications for constitutional law where state conduct permits private discrimination to inflict injury. In Palmore v. Sidoti, the Court held that a state court deciding a child custody case could not take into account the harms that private prejudice would inflict on the child, if custody were awarded to the child's mother and stepfather, an interracial couple: “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Yet at other times, the Court has been unwilling to sanction government officials for conduct that permits private prejudice to influence public outcomes. For example, school boards are not deemed to violate the Constitution where school segregation is a result of the decisions of white parents to settle in particular state-drawn attendance zones, even if the state knew that maintenance of the zones would result in segregated schools.

Should jury verdicts be impeachable if it can be shown that some of the jurors based their votes on racial prejudice (or stereotypes)? Does the publication of a racist joke in a high school newspaper subject the school to liability? Such questions have vexed constitutional law since the early state action cases; Shelley v. Kraemer has been routinely maligned in constitutional law classes but never overturned by the Court.

While leaving these questions to another day, let me suggest that answers to them will, to an important degree, depend upon the adjudicator's understanding of the current state of race relations and racial prejudice in this society. Surely, recognition that race discrimination was a major social problem lay behind the early state action cases and other cases that gave a broad reading to congressional power.

While context may guide and inform constitutional adjudication, it cannot and does not compel particular results. Still, there is something to be said for getting the context right--or at least not inventing one that is demonstrably false. Thurgood Marshall, who spent a lifetime educating the Court about the continuing significance of racism, noted late in his career that “[t]he battle against pernicious racial discrimination or its effects is nowhere near won.” The success of this society's fight against racial injustice can be measured by its recognition of the world that Justice Marshall courageously described and sought to transform.


University Professor and Director, Zolberg Institute on Migration and Mobility, The New School.


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