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- [00:00]
A
I don't want to make light at all of the depth, the intensity of racism in American life, and we are seeing it. But we also ought not underestimate countercurrents. We have to take into account the abolitionist crusade. We have to take into account the second Reconstruction. We have to ask ourselves, well, how have things changed in America? And, well, have things changed in America? Yes, things have changed in America. I mean, in my life, every day I see change in America.
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B
And now the good fight with Jascha Monk.
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C
One of the things that I found really irritating in the debate about critical race theory a few years ago was the claim made by many defenders of these ideas that this ideology really was not particularly controversial, that all it entails was, as the name might suggest, thinking critically about the role that race plays in American history and society. And the reasons why I found that frustrating is that it both seems to me that CRT is actually quite radical and quite interesting legal theory, and that even though I have some serious concerns about that tradition, I do, of course, think that we should think critically about the role that race plays in American history and society and the law. Well, my guest today is somebody who is the living proof of that point. Randall Kennedy is one of the most prominent law professors in the country. He serves as a Michael R. Klein professor of Law at Harvard University. And he is somebody who in many books over the course of decades, has tread that line, has interrogated interestingly and critically the role that race plays in American society. While being a prominent critic of critical race theory. He's somebody who understands the deeply skeptical view that many Americans, like his own father, who grew up in the segregated south, have about the ability of America to make progress on race. And yet he himself insists that we have, for all of our imperfections, made very significant progress, progress in that realm. He understands why some people might be impatient with the universal norms and laws and values that liberals say will help us to make progress, and yet insists that it is precisely the universalist convictions of civil rights leaders like Martin Luther King that have allowed us to overcome the deepest injustices of American history. And so, in this conversation, Randall and I talk about the realm of theory. We talk about personal things and his own personal story and the story of his father, and about many applied questions about, for example, how to think about affirmative action or about gerrymandered districts that are meant to ensure black representation by creating not always geographically contiguous districts in which African Americans represent a majority of voters. In the rest of this conversation, we touch on a few more of these topics. We talk about, for example, the low trust that Americans have in the system and that American political parties have in each other, making it really hard to get to solutions which otherwise would be rational. Helping to explain, for example, why I have to show voter ID in Germany or other countries in Europe, but in the United States this is a very contentious topic. We talk about how it is that people who are interested in racial progress should fight for anti discrimination laws, but also recognize but ones that are overly demanding may then lead to backlash, which actually holds us back. To listen to this part of the conversation to support the work we're doing here to stop hitting these annoying paywalls in which I ask you to subscribe and you're not able to listen to the rest of the conversation, Please go
- [04:45]
B
to jaschamonk.substack.com and become a paid subscriber. That's yashamunk.saps.com. Randall Kennedy welcome to podcast.
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A
Thanks so much for having me.
- [05:02]
B
Well, I'm really excited for this conversation. I've been reading you for a long time. One of my frustrations in the kind of intellectual debate over the last five or so years has been the rise to prominence of critical race theory and then attacks on it, which I think often were rather simplifying and caricaturing. And then there was Spence on the left, which was there's really nothing to see here because all that critical race theory is thinking critically about the issue of race and why on earth. Who wouldn't want to do that? And the way that I read your work and tell me if that is putting words in your mouth or mischaracterizing it is as somebody who certainly thinks critically about race in America and about the role it plays in the American legal system, that is not the only thing you work on, but it certainly has been one central theme of your work. And yet you have at times criticized critical race theory and would not consider yourself a critical race theorist. So I think it'd be very interesting for listeners to learn what that in between space is.
- [06:03]
A
Sure. First of all, I do not want to join in any demonization of critical race theory. I know people who call themselves critical race theorists. I know them as colleagues, I know them as friends, I know them as fellow scholars, and I've learned from them and I respect them. I do have differences. I'd say probably the main difference. I'm a liberal and I believe, for instance, I embrace the anti discrimination standard and think that the establishment of the antidiscrimination standard. What do I mean by Anti discrimination standard. I mean, the presumption that. That taking race into account is a bad thing. It isn't always bad. So I distinguish between racial discrimination, which in some instances is justifiable. So I am a defender of affirmative action within limits. But generally speaking, I believe that taking race into account is a bad thing, has been a bad thing in American history and remains a bad thing. I believe that as a presumptive matter, we ought not take race into account. We should take people as people, and that's it. So that's one distinction. Because the critical race theory theorists, I think, view the anti discrimination standard as all too little. And in my view, is it going to bring about a radical change in American society? Is it going to bring about the fulfillment of all of the hopes of social justice? No, it's not. It is an incursion on a particular aspect of American life, that is to say, the. The racist use of the race line against racial minorities, the anti discrimination standard which was at the heart of what occurred between 1950 and 1970 in the United States. The invalidation of de jure segregation, the attack on private racial discrimination that was probably best featured in the Civil Rights act of 1964, the attack on. On racial disfranchisement that's best featured in the Voting Rights act of 1965, the Open Housing act of 1968. In my view, those things were great achievements that changed American life for the better.
- [08:58]
B
An implicit new emphasis on that is that for a lot of the founders of critical race theory, those weren't huge achievements. Which isn't to say that they were against them necessarily, or that they thought the civil rights movement was bad. But they certainly were extremely critical of it and didn't think that the basic philosophically liberal frame of the civil rights movement could make a very significant contribution to improving the condition of historically discriminated racial groups in the United States. When Mother's Day means celebrating your mom, your wife, maybe even your daughter as a new mom, trust 1-800-FLOWERS to help you celebrate every important woman in your life. With double blooms from 1-800-Flowers. Order one dozen roses and get another dozen for free. It's a simple way to give beautifully with colorful blooms that make Mother's Day feel meaningful for every mom you're celebrating. Order with confidence and get Double blooms at 1-800-Flowers.com Spotify. That's 1-800-Flowers. Com Spotify.
- [10:00]
A
I think what you just said is correct. I think that one difference between me and them is they're happy about those changes. But they basically view those changes as cosmetic. Some of them will say as rather minimal. So you have this phrase that's very widespread, the new Jim Crow. Now in my view, the, the great champions of the civil rights movement succeeded to a great extent. In overcoming Jim Crow. But some of the critical race theorists would say that no Jim Crow, we just changed his clothes. Jim Crow was not killed. We have a Jim Crow in new guys. And I think that's a mistake. I think that you should recognize a victory, and I think that a tremendous victory was won in the period between 1950 and 1970. Again, doesn't mean that all of social injustice was, was overcome in America. Doesn't even mean that racism was overcome in America. No, it was not. But in those years a particular type of institutionalized racism was overcome. And I think that the law played an essential part of that. And I think that the people who engineered that change in law, some of them were lawyers, the great Thurgood Marshall being the preeminent example. And some of them were not lawyers, some of them were protesters, the great racial dissidents of the period who petitioned, who demonstrated, who lobbied, who, some of them went to jail to trigger lawsuits. These people accomplish something in American life. And I think that that should be recognized.
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B
It seems to me that this question about optimism versus pessimism, about seeing the progress or focusing on the remaining injustices is really key to people's attitudes towards liberalism. And that's true for those who focus mostly on race, but it's also true for whether people end up being liberal or non liberal feminists, whether they end up being liberal critics of colonialism or post colonial scholars who reject liberalism. And there's really sort of two elements to this. One is whether you can acknowledge that every society is going to have imperfections, that racism, sexism, other genuine ills are always going to continue to exist in certain kinds of ways in human societies, given our fundamentally tribal and self interested nature, and then nevertheless recognize that our societies suffer from those ills significantly less than once in the past did. And the second one is whether you think that the aspiration to live up to universal principles was a key motor for bringing about some of those improvements, or whether, as I think a lot of those more critical perspectives would claim, it just can't. It's just the wool that's pulled over people's eyes to blind them to the real interests of a powerful, the real interest of the privileged that justify the domination through those empty references to those universal principles.
- [13:46]
A
Yeah, I think that the tragedy of our particular moment is that politics today. And here I mainly am thinking of the second Trump administration has given the pessimistic view a real boost. Again, I want to emphasize I'm not one to demonize the critical race theorists. My father, who I venerate, my father was an early critical race theory person. Well, he was completely pessimistic about American democracy. His view was, this is a. A white man's country. It was created as a white man's country. It's going to stay a white man's country. He was as critical, he was as pessimistic as Derrick Bell could have ever been. And Derrick Bell, being viewed as one of the progenitors of critical race theory and a friend and colleague of mine, profoundly pessimistic. And the camp of pessimism does have a very distinguished intellectual lineage. Alexis de Tocqueville in Democracy in America, his chapter, the Three Races of America, thoroughly pessimistic. Thomas Jefferson, thoroughly pessimistic. Abraham Lincoln, thoroughly pessimistic. And, of course, in the black nationalist tradition, you know, Marcus Garvey, Malcolm X, Elijah Muhammad, thoroughly pessimistic. Now, unfortunately, historically and today, there is reason. They can point to things that have made them pessimistic. There is reason to think that we shall not overcome. Unfortunately, there is reason to think that. You can't say that. That's a silly idea. It's not a silly idea. There's a reason to think that way. On the other hand. On the other hand, there is a reason to think that we can overcome. Of course, in the 19th century, the great spokesperson for that position was a man who was born into slavery, Frederick Douglass. Frederick Douglass. Frederick Douglass. Frederick Douglass, before the passage of the 13th Amendment, was asked, do you foresee a time when blacks and whites can live in America as equals and as neighbors before the. And he said, yes, I can foresee that. In the 20th century, of course, the great spokesperson for this point of view would have been the wonderful Martin Luther King, Jr. In the 21st century, the person who's most well known, who speaks for this view is Barack Obama. Now, again, I don't want to make light at all of the depth, the intensity of racism in American life, and we are seeing it. But we also ought not underestimate countercurrents. We have to take into account the abolitionist crusade. We have to take into account the second Reconstruction. We have to ask ourselves, well, how have things changed in America? And, well, have things changed in America? Yes, things have changed in America. I mean, in my life, every day, I See change in America.
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B
So I don't know how deeply you got into this with your dad, but what would that argument look like? What is the argument that you would make to him when he who I believe was born and raised in the segregated South?
- [18:05]
A
My father was born in Louisiana. My father had a very tough upbringing. He saw racism at its ugliest, at its most violent. He never forgave the United States of America for its mistreatment of black people. And for him, I think the thing that was most gripping was the way in which the United States of America treated black people who served in the armed forces of the United States. He served in the armed.
- [18:44]
B
Sent straight back to segregation after they stopped serving.
- [18:46]
A
Not only were they sent back to segregation after they stopped serving, but while they were serving. While they were serving, they would see German and Italian prisoners of war go into restaurants as prisoners of war that they could not go into. This really scarred my father. This was a big thing with him now. And we talked about this a good bit. And what I would say to him, I'd say, well, Dad, I understand, and that was absolutely horrible. But let me ask you a couple of things. You've got three kids, right? Yeah, yeah, of course I got three kids. I'd say, now, how are they doing? How are they doing? Your three children? You had three children. All of your children went to Princeton University. Three children. That's right. I understand that what you saw was terrible. In Louisiana, you married my mother, your wonderful wife. You all met at Fort Jackson, outside of Columbia, South Carolina. I understand that terrible things happen to you. It's also true that somehow you all got it together. You all were refugees from the Jim Crow South. You go to Washington, D.C. you have a household. You have three children who went to Princeton University. You have three children, all of whom became lawyers. All of whom became lawyers. Now, doesn't that suggest something about the society that we live in? That's a problem for your theory. I mean, you are doing better than most of the people who try to oppress you and keep you down.
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B
I mean, there's a lot of people living in the most affluent suburbs of New York and D.C. and LA, whose, you know, life's dream it would be to send three of their kids, three of their kids to the university. Yes.
- [21:02]
A
It didn't. By the way. By the way, he did not live to see the inauguration of Barack Obama. But my father did live to see the inauguration of the first black governor. Probably the only one, but I know the first. Douglas Wilder. When Douglas Wilder was elected in Virginia. And I must say that even he was taken aback by that.
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B
That doesn't quite.
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A
And I think. I'm so sorry. I would have wanted. I would have loved to have had a conversation with him about Obama. Now, it is true. It is also true that if my father were alive today, I think that
- [21:48]
B
my father would point to Trump and say, this is what I've been telling you.
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A
Yes, exactly. He would say to me. He'd say, randy, see, you're being sentimental by being so upset. This is America being America. That would be his view.
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B
When I think about this question, I feel very different hearing about your father and hearing similar arguments by some of my pretty privileged and as it happens, white friends and acquaintances and colleagues, which is to say that for somebody with your father's life story, I understand where that pessimism comes from. I disagree with it intellectually in various ways, but I certainly don't feel that I can get to sit in judgment of it. When I hear faculty members at fancy universities who grew up in some of those nice suburbs and who did also themselves go to Princeton or whatever other institution as undergrads say, america is just the same as it was 50 or 100 years ago then, I think that is actually offensive to the life story of your father. It's just offensive to reckoning with how deep the injustices were that your father and many, many others in American history went through. To say that today is just the same.
- [23:04]
A
Yeah, I think it's partly. I would agree with all of that. I think ignorance has a lot to do with it. I talk with people all the time, too, about these sorts of things. And if somebody says to me, for instance, there haven't been many changes, and I say, well, what do you do about the 1964 Civil Rights Act? And they say, didn't matter much. And I say, listen, you're talking with me. I was born in 1954. I clearly remember drives from Washington, D.C. to my birthplace, Columbia, South Carolina, before the 1964 Civil Rights Act. I remember them clearly. There was a difference, a noticeable, notable difference, between that drive in 1963 and that drive in, let's say, 1966, not to mention today, I think that unfortunately, people, you know, people just don't know. And I would say the irony is, and here I'll go back to some of the critical race theory colleagues I have, I'll say, listen, in a certain sort of way, you are not taking into account, I think, enough, how bad things were.
- [24:28]
B
Right? I mean, that's what seems offensive. To me about it.
- [24:32]
A
Yeah. You know, you sort of. If you don't think that that much has changed, then I think that you don't have a sufficient understanding of what Jim Crowism was. I'm not saying that. Again, I do not want to give any oxygen to complacency. I do want to state, however, that heroic, intelligent, persistent, collective action did make a difference. It has certainly made a difference in my life. It has certainly made a difference in the life that I can hand off to my children. Let's be realistic. But I want to be realistic about everything. Let's not just be realistic about the downsides. Let's be realistic about the upsides, too. And it's a complicated story.
- [25:35]
B
You told me before we started the conversation, that you've just submitted a manuscript on the civil rights era. Congratulations on that. I look forward to reading it when it comes out, I guess, next year. To what extent do you think that the frame of the civil rights era continues to be the thing that can allow us to make progress? This is, I think, ultimately what this debate is about, where I think philosophical liberals want to say we have not yet fully lived up to some of those standards in various aspects of our society, but those are the right standards. We can use those standards as the lodestar to continue making progress. We've made significant progress so far, and there's more progress to make, but we have the roadmap for how to do that. And then I think the people who are much more pessimistic are emphasizing that we haven't made any progress. But the reason why we're doing that is, is that they want to get to the conclusion of. And therefore none of this is going to work. It is a chimera. It's an illusion. To think that this kind of framework can help point us towards further progress. That's why we have to rip it up and put something completely different in its place.
- [26:38]
A
I would say that dissidents in American life have made a difference. One of the things that I think we should be attentive to is vehicles can only have so much of a load put on them. So I'm not saying that the ideas, the doctrines that were so much in evidence in the period between 1950 and 1970, I think they covered a lot of ground. But we have new ground today. And with new ground, we have, it seems to me, new ideas. I think that some of the vehicles that have been used have been. They were wonderful, but we now have a very different America. So for one thing, just demographically When I was coming up again, I was born in 1954. It was really, to a very large degree, blacks and whites.
- [27:44]
B
You could put everything through that. And a lot of the. I mean, even, I think when we measure segregation in American schools, we still, to a large extent, use metrics that made sense when there was two ethnic groups. And now that many schools have five, six, ten ethnic groups, they don't really make sense in trying to capture those changes just in a purely empirical level anymore.
- [28:03]
A
Absolutely. I mean, things have changed to a very large extent. And along with change, we need to be experimental. So, for instance, a race problem question is the best way of addressing this problem that maybe has a disproportionate effect, adverse effect on black people. Let's take such a.
- [28:36]
B
So give us an example. What kind of thing are we talking about today?
- [28:38]
A
So, I mean, let's talk about schools, for instance. People say nowadays, for instance, they'll talk about schools. Some people say, for instance, that schools are as segregated now as they were in 1954. No, they're not. No, they are not. In 1954, the year I was born, the state of South Carolina had as part of its constitution a requirement that black kids be separated from white kids in schools. They had it in their constitution. They had it in the statute books. They had a whole phalanx of people that put that into operation. And they weren't apologetic about it. That's the way it was.
- [29:27]
B
They thought they were defending the right moral order.
- [29:30]
A
Yes. And they weren't apologetic about it. They were not apologetic about it. They were proud of it. Because of the struggles of the civil rights era, that was invalidated. That was put on the defensive in the United States today. And again, we have many problems. I'm not saying we don't have problems. We do. We have unfairness. That's scandalous. Okay? You will not have a public official get up and publicly say, I'm in favor, or I'm trying to separate people on a racial basis in public schools. You won't have it. Now, that doesn't mean that we don't have things to attend to. But let's be careful about our language. It is not true that there has been no change in segregation in public schooling. Now, if we are talking about affirmative action, I have defended affirmative action. I am still willing. I still defend affirmative action. I think that affirmative action. I'm proud of having defended affirmative action. I think affirmative action did many good things. It had its weaknesses. It had its detriments. Now the courts have struck down Affirmative action in higher education. Okay. Are there other ways to try to address ongoing difficulties? Ongoing types of unfairness? Yeah, even. Forget about the Supreme Court for a moment. Let's suppose that the Supreme Court had not struck down affirmative action. Frankly, there were people who were suggesting experiments of other sorts. I think we should be open to those.
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B
So, for instance, what kind of.
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A
Well, I mean, the people who talk about class, not race.
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B
Right.
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A
Right now, you know, I'm not awful.
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B
And one of the strangenesses, of course, of a particular way that affirmative action was practiced about 10 years ago, which has to do with the kind of changes we were speaking about earlier, is that it often wasn't benefiting the group for which affirmative action was originally designed. Which is to say that back when affirmative action was put in place, there was very few recent immigrants from African countries in the United States, for example. And by the time that the Supreme Court struck affirmative action down, according to various estimates, a third to a half of black students at Ivy institutions like Harvard were children of immigrants from Nigeria and Kenya and other countries would have come in on H1B visas. Now, those were often tremendously deserving students who made a huge contribution to those universities, but they often were not poor students. They certainly didn't tend to come from the most underserved neighborhoods in the south side of Chicago and in the poor parts of Baltimore and so on that we might hope affirmative action to lift up.
- [32:42]
A
Yes, well, I mean, the affirmative action dispute was such a complicated one because I mean, the fact of the matter is that the rationale that the courts had allowed for affirmative action diversity, I mean, that was a pedagogical theory. The idea didn't really didn't have to do with repairing injustices in the past. It didn't have to do.
- [33:09]
B
And it was a pretty patronizing idea because to some extent it's implied that those black students were there to enrich the educational experience of a majority of students who would somehow learn better by the fact of diversity in the classroom, as opposed to what I think would have been. I have very mixed feelings about affirmative action. I think on the whole, I'm in favor of burning the whole admission system down in American universities, I think is unjust and absurd across a huge number of dimensions, including, by the way, the much under discussed fact. But at this point, virtually every elite school is engaging in massive affirmative action in favor of boys because otherwise they would have such an uneven gender ratio, which I think is also absurd. But I certainly think by far the strongest normative defense of affirmative action is simply that African Americans have been excluded and maltreated in the most extreme ways for a very long time in American history. And that therefore, at least on a temporary basis, creating opportunities for African Americans to be integrated and to be elite institutions of his country and gain those opportunities is an incredibly important way to redress that. And as you're pointing out, the problem from the beginning was that the Supreme Court didn't allow for that rationale. And so everybody was pretending that they hugely cared about the strange value in that context, strange value of diversity rather than the thing that really this debate has always, I think at some level been about.
- [34:25]
A
But I mean, that is a function of race talk in American life. I mean, we have in America legal fictions. We have talk and we have double talk. And societies are like that sometimes. Sometimes you approach things through the side, sometimes you use euphemism, sometimes you can't say what ought to be said directly. That was true at the time of Brown versus Board of Education. It's true in our time. So we had affirmative action. Everybody knew that the real impulse behind affirmative action was to try to repair deep seated racial wrongs by, but for some reason, but the Supreme Court wouldn't allow that. So we came up with this cover story. Now I actually, over the life of the COVID story, I changed. I used to scoff at it entirely. I stopped scoffing at it entirely. I think that there's something to it. But I agree with you that the real impulse, the strongest impulse behind racial affirmative action in America was to repair past wrong. But my point is that are there other ways to try to accomplish the advancement of racial justice in American life? I think there are. And in fact, I think there's an argument, a strong argument, that people like me may be invested too much in affirmative action in places of higher education. I mean, for one thing, affirmative action's only an issue at the most elite places.
- [36:26]
B
It only means that a student gets into Harvard rather than UNC or whatever it is. It's a difference, but it's not.
- [36:33]
A
If you are a plausible candidate at the most elite schools, then that means you're doing very well. If you don't go to this one, you're going to go to maybe one that's, you know, you're going to go to a good school. You're going to go to a good school. What about the kids who graduate from high school? Well, first of all, what about the kids who don't graduate from high school? What about the kids who graduate from high school and are Functionally illiterate. Why aren't we focusing more on them? Why are, why aren't we focusing more on the K through 12 preparing people so frankly, they don't need any hand? Again, I think it was a great thing that stretching out a hand and helping people from groups who had been so badly mistreated. But what about preparing people over time so they don't need it? So I think we need to have a more experimental idea. I think we need to think more about, well, how can we frame progressive reformist action that creates a big tent that brings together coalitions that does not have a situation where there's my little group versus your little group. I mean, I think we need to be thinking in a more broad based way. And I think that the great champions of the civil rights era, a Philip Randolph Bayard Rustin, Martin Luther King Jr. The Great John Lewis, I think that they had this. They were great. And I think that their greatness. We don't have to embrace the particulars of what they were advancing, but their ideas and their conduct, their conduct was so exemplary. The punchline of my book is I don't know what is going to happen to the monuments that they left behind. I mean, that was only what, 70, 80, 90 years ago. I can't foresee the future. Maybe there will be a rollback. That would be terrible. But could it happen? Yeah, it could happen. But what they created, I think was quite admirable. It changed a lot of lives for the better. And then. So I just want to make that point. And then there's a second point. And the second point has to do with our estimation of what they did. Because even if it's the case that tragically their monuments are eroded, that'd be terrible. That'd be a tragic thing. But okay, but then there's a second point. The second point is that they acted in a way that is exemplary. Nothing can take that away. And these people, the way they acted, the generosity, I mean, one of the things that's so great about the period that I wrote about and one of the things that made it such a wonderful, made it so inspiring to read about and write about these people crushed into the dirt by the Jim Crow South. They conducted themselves in such a grand, such a generous, such an inspiring way, they have inspired people all around the world. We Shall Overcome is known all around the world. The women's movement, the gay movement, every movement for social justice has been inspired by what these people did. And so I would say to folks, what they did read about them, listen to them carefully, and let's take the best of what they did and embrace it and put it to work in our time.
- [41:13]
B
I wholeheartedly agree with you on that. And one of the things that sometimes gets me depressed about this political moment is that faced with a lot of horribleness and indignity from this administration, not enough people are looking to that kind of attitude embodied by the civil rights movement in response that the thing that is encouraged and celebrated is Gavin Newsom saying, I'm gonna sink to the level of Donald Trump and mock him on social media with the same kinds of memes as he uses to mock us. Rather than that incredible ability, faced with physical intimidation and assault and every dirty book used by the political power, certainly, of the Southern states, but to some extent, the federal state as well, to speak to the highest part of our nature and the highest parts of our conscience. And, you know, I came to the United states briefly in 2005, when I started my PhD at Harvard in 2007, and that's what was so inspiring about Barack Obama as well. That's, I think, one of the continuities between Obama and the civil rights movement in less difficult circumstances, in Obama's time, to try and call upon the most magnanimous and noble part of our nature.
- [42:28]
A
Absolutely.
- [42:29]
B
Rather than to say, I'm gonna fight dirt with dirt, which would've been very easy to understand in the 50s and 60s. I mean, it wouldn't take a lot to understand why people in that moment might have said, we are faced with such violence and injustice, let's fight back with violence of our own. It would be perfectly understandable why people would resort to that strategy. And I think it is really the enduring importance of that political moment. Not just that they gave a moral example by not doing that, but they showed that that actually can, under the right circumstances, be a lot more effective.
- [43:06]
A
Tremendously effective. We paid lip service. I think that people. I think that a lot of people know just enough to think that they know what happened during the civil rights era. I think people should take a second and a third look. Take a second and a third look of what the people of Montgomery, Alabama, did in that glorious year when they basically created a government for themselves, where Rosa Parks and Ed Nixon and Martin Luther King Jr. And Ralph Abernathy. Absolutely extraordinary. Again, these are people who had been. And their lawyer, Fred Gray. They had been marginalized. They had been minimized. They had been. You know, people didn't think anything of them. And yet, look what they did. They surprised the world. And their example, I think, should be embraced. And I think it can lead to. To what we're going to need. Because, frankly, at the present moment, I think that our country is in peril. I think that our democracy is absolutely in peril. And to get out of this hole that we are in, this hole of just. A type of polarization that is really paralyzing our efforts to do most anything to get beyond that, we are going to need the inspiration from aspects of our tradition. Our traditions. And the tradition that I have just finished writing about is one of the most important and one I think, of the most revealing and one of the most inspiring.
- [45:31]
B
Now, I want to come back for a moment to how to make further progress and how to think about the role of race in the law in particular. You know, there are two sets of views which seem relatively straightforward, but that I think you would argue are flawed for different reasons. And one of them is the one that at least some adherents of critical race theory embrace, which is to say that we should give up on the presumption that it is wrong for the law to discriminate on the basis of race and create a system in which how people are treated is often dependent quite explicitly on the racial category, obviously with a hope that, unlike in the past, that will somehow abut to the favor of those who have been most discriminated and disadvantaged. Now, one of my concerns about this is normative. The other concern is empirical. Why, if you have such a pessimistic interpretation of American history, do you think that a system that so explicitly discriminates on the basis of race is somehow going to favor the most disadvantaged, rather than going straight back to what those kind of systems looked like in the past. Now, on the other side, you have the stance of more conservative, philosophically liberal jurists of Supreme Court justices who say, well, the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. And we basically shouldn't have race play a significant role in the law under any circumstances. Now, of course, we should have certain forms of anti discrimination laws. Of course we should stop businesses from excluding people on the basis of their race. Of course we should have certain kind of legislation which says that if an employer suddenly fires 10 black employees and no white employees, then there might be an anti discrimination lawsuit that provides remedy to those employees if it seems very obvious that they've been fired on racial grounds. But, for example, we certainly won't have affirmative action. We certainly won't have set asides in federal contracting, we won't have districts drawn in such a way to make sure that we have majority black districts. Those two positions each seem straightforward and coherent in their own ways. And it seems to me that you, on a number of these issues at least, are arguing for something that's kind of not in the middle exactly, but that says, look, on the whole, we don't want race to be at the center of the law. We want to have a presumption against it. But there are many more areas than that conservative, philosophically liberal jurist would acknowledge in which we do need to have race play a role. What does that look like and sort of tell us the logic for that middle position.
- [48:10]
A
A couple things I think that you mentioned two things. I want to mention a third, but let me just walk through your first two. Number one, I embrace your resistance to a legal regime that would normalize and reinforce racial distinctions throughout social life. For one thing, again, things change. And so one thing that you need for that sort of regime is distinctions. Who's white?
- [48:50]
B
It's gotta be obvious who's part of which category.
- [48:53]
A
Yes, and more and more and more. That's a complicated story.
- [48:58]
B
And incidentally, I'm a political scientist by training. And when you look at people who defended forms of consociational democracy in countries like Lebanon, where very explicitly, which office you can get elected to, what kind of laws about education and marriage and divorce you're subject to and so on, is dependent on your status in the case of Lebanon as a Sunni or a Shia or a Maranade Christian, the people who came up with those schemes, like Aaron Liepard, explicitly said, we have to make sure that there's not too much context and mixing between those different population groups, because otherwise the scheme is going to fall apart. And so the very logic of that from the beginning had recognized that for its maintenance you need these relatively ironclad categories. And of course, one of the wonderful things about American life is that some of those categories have started to blend and mix and so on in all kinds of ways over the course of the last 50 years.
- [49:57]
A
Yeah, you know, I don't want a system in which I've got to fill out a form. Who was your great grandmother? Where'd she come from? Was she born in the United States or was she born in Jamaica or was she born in Africa? No, no, no, no, that's not. I don't want that sort of society. I prefer the fluid, the integrationist, the amalgamationist, mix matching. So that's number one. Number two, you talked about you were making reference to Chief Justice Roberts. The way you get rid of discrimination. I would say to the people who take that position, I have considerable sympathy for that position. I really do. The problem I have with Chief Justice Roberts, or at least one problem, probably my main problem is I hear you say that. But why is it that you get so hot and bothered, so passionate in the face of affirmative action or in the face of electoral arrangements that are advantaging people of color? I don't see you getting so upset about the age old policies and impulses and habits that disadvantage people of color,
- [51:41]
B
like other forms of gerrymandering or other forms of gerrymandering.
- [51:45]
A
To listen to them. To listen to them. To listen to our present administration in terms of anti discrimination law. If you just came over here and you didn't know any better, you'd think that it was mainly white people who were discriminated against, white men who were discriminated against in the United States. It is still the case today. There's a tremendous amount of racial discrimination. But I don't hear that from the people who embrace Chief Justice Roberts position. To tell you the truth. If I heard that, if I thought that the people who say race is out, if I could be assured that that was a thoroughgoing, passionately held belief that they were willing to put into action comprehensively, I'd have a different position towards them. I might not ultimately agree with them, but I might take the position, you know What? Let's have 10 years of that and see what happens. But there's a third. There's a looming ghost in the room. And there's a third thing that you did not mention. But that's on my mind. That third thing is the old time religion of racism in America. It is still the case that there are people who believe in racial hierarchy. They don't say it, they cover it. And the way they cover it is to say, oh, race blind, race blind, race blind. We don't want to take race into account, but they are taking race into account.
- [53:52]
C
Thank you so much for listening to this episode of the Good Fight. Isn't Randall great? Well, if you want to listen to the rest of my conversation with him, if you want to support this podcast, if you want to stop hitting this annoying paywall, please become a paying subscriber. In the rest of this conversation, Randall and I talk about why America's racial history has created an equilibrium of really low trust, which helps to explain, for example, why it's so hard to make sensible rules about voter id. We talk about how to be principled on questions like the shape that anti discrimination law should take without making it so demanding that it inspires a political backlash. If you want to listen to this part of the conversation, please go to
- [54:43]
B
jashamunk.substack.com that's Yashamung substack.com.