- Historic Sites
The End Of Racism?
February/March 1996 | Volume 47, Issue 1
I think it is fair to say. In the main it certainly is true. But I think it’s important to point out differences of degree. There’s an important difference between being ruled by Hitler and being ruled by the British colonialists. My parents and grandparents lived under British colonialism. It was a kind of subjugation, but it was a long way from extermination. Although your world was circumscribed and limited, it was one that you could endure. In the case of slavery I think many of the horror stories of systematized brutality are exaggerated—not because the masters were compassionate per se (some were) but because the slave owner had an interest in his property. People usually don’t go around bashing their property. Nevertheless, slavery did involve the complete subjection of one’s body, and to some degree soul, to the master’s whim. And segregation was not slavery. So, yes, I agree with you in general, but I would just italicize the differences of degree. The condition of blacks in 1940 was vastly different from what it was in 1910, and vastly better in 1910 than it had been in the 1830s.
Most people would say that what brought an end to race-based separate status for blacks in America were two big landmarks, the Brown v. Board of Education decision in 1954 and the Civil Rights Act in 1964. As I read your book, you don’t agree with either one of those. Am I reading you wrong?
No, you’re reading me right. Even though in documentaries like Eyes on the Prize one gets a vivid sense of the civil rights struggle, the number of casualties, for any kind of revolution, is fairly light. You really only have one side arguing. King is attacking the Southern segregationists, and the Southern segregationists appear to have no counterarguments. Nobody’s fighting back. You have Bull Connor, you have hoses, you have dogs. But, essentially, by the time King articulated his arguments a revolution had already occurred. Earlier in the twentieth century surveys of race relations showed the belief in black inferiority to be extremely widespread. Most Americans were strongly opposed to intermarriage. This began to change in the thirties and had changed already by the fifties, so the atmosphere was right for the NAACP in the Brown case, and King had tremendous support, particularly in the North.
Make the case, though, if you would, against the Brown decision and the Civil Rights Act.
I don’t make a case against those things. I do think it is fair to say that if I had been around then, it would have been difficult to see an alternative course of action. But both those decisions contained important flaws, although in different ways. Today we are living with the fruits of those flaws.
What were the flaws?
In the Brown decision the flaw was that the result was color-blind but the reasoning was not. This is important, because the Supreme Court builds upon prior reasoning. By explicitly disavowing color-blind reasoning, the Court opened the door to the later abandonment of color-blindness; it opened the door to busing and to race-based school assignments. Although many people understand Brown to have cemented the color-blind principle, it did not. In fact it’s probably fair to say that the Supreme Court has never embraced color-blind reasoning unequivocally.
Had you been on the Court when that case came up, how would you have voted?
I would have voted the same way, but I would have argued that the government should be strictly race-neutral. If that argument had been cemented then, not only would it have represented the greatest victory of the civil rights movement, but it would have set a precedent. It probably would have helped slow down, if not prevent, much of the racialization of our society that has subsequently occurred with the blessing of law.
With the Civil Rights Act of 1964, and with Martin Luther King’s agenda, generally I have two quarrels, one minor, the other major. The minor quarrel is that there was no thought given to the distinction between private and public behavior. In a free society we have a right to be treated equally under the law. We have a right for the instruments of government to treat us as individuals. In the private domain that’s less true, and in some cases it’s not necessarily true at all. If I want to hire my nephew to work in my store, I am departing from the principle of merit. Is it the job of a government in a free society to tell me I can’t do that? Probably not. And if that is so, why isn’t that range of discretion extended to the area of race? In other words, I think that there was not enough attention paid in the Civil Rights Act of 1964 to the distinction between outlawing private conduct and outlawing public conduct.