Justice You Shall Pursue

I recently came across Justice You Shall Pursue, an interview with Charles Fain Lehman in Time Well Spent, the substack of Sotonye.  Sotonye is a pseudonym.  It's a Nigerian name, and the author claims to be a native West African, who's lived most his life in Los Angeles, and is a recent convert to Judaism.  

Lehman writes for City Journal, primarily on issues of crime justice, along with another City Journal writer, Rafael Mangual, author of the new book, Criminal (In)Justice, who's been recently interviewed by both Tucker Carlson and Trevor Noah, making him part of a very, very small group to be on both shows (I've never watched either).  You can find a summary of Mangual's thesis here). 

Sotonye asks interesting questions and Lehman speaks thoughtfully and avoids overstating his case.  Crime is not the sole focus.  At one point, Sotonye asks Lehman about being a parent, and I like his response:

. . . parenting is existentially satisfying in a way that many things aren't. A lot of what we fill our days with are "experiences," or sensual stimuli—television, social media, vacations, sports games, etc. etc. Those are great, don't get me wrong. I love to cook and eat, which is a primarily sensual experience. But I think many people often feel, in my view rightly, a certain emptiness associated with this lifestyle. "What is this all for?" we might ask, or, “What is the purpose of this?" "Why get out of bed in the morning?" One thing I have discovered as a parent is that this is basically not a question I need to ask anymore. The reason I get out of bed in the morning is because my son needs me to. Being a parent means having a whole other person whose whole world you are.

Of course his child is only two.  Let's ask him again after the teenage years!

Two thoughts prompted by the interview:

The first is whether the Civil Rights Act of 1964 (CRA) was a mistake in not limiting its scope to the problem we were trying to remedy - the exclusion of black Americans from the full scope of legal rights of citizenship, as well as their de facto exclusion from large parts of American life.

During the debates over the 14th Amendment after the Civil War, an alternative was proposed simply stating:

All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color.

It was overwhelmingly defeated in the Senate and instead we ended up with the more complex and legally ambiguous version of the Amendment we have now, in which we are still debating what "due process of law", "privileges and immunities of citizens" and "equal protection" mean 150 years later. 

The one sentence version was doomed to defeat because, at the time, white Americans would not accept social equality for blacks, but in the long-term I think it would have served us much better.  Was the same true of the CRA, which I've always considered one of the two greatest federal legislative achievements of the 20th century (the other being the 1965 Voting Rights Act)?  It is something recent events have led me to question. (1)

Lehman does not make this argument, instead focusing on what he regards as policy changes under the auspices of the Act.  Nonetheless, it prompted me to see the analogy between what happened with the 14th Amendment and the CRA, as well as the repeated refusal of the Supreme Court to follow the literal language of the CRA (see Will Plessy Ever Be Overruled?), as pointing to a more fundamental problem.

Here's his take:

From the late 1940s, mainstream America became increasingly concerned with the status of black people . . . .  it became increasingly apparent to many Americans that black citizens, particularly in the south, were still subject to explicit and horrific discrimination. People were radicalized by concrete displays of this animus . . . To resolve this very particular problem, however, Congress passed an extraordinarily general, sweeping law, prohibiting discrimination on a wide variety of bases. In most parts, this law was formally colorblind. But many of its ambiguities and unintended consequences gave birth to a system that was anything but. 

The first development comes from how courts chose to understand the idea of discrimination. While the authors of the CRA had intended for the law to restrain discriminatory intent (there's Congressional discussion to this effect), judges and regulators (e.g. the EEOC) began to focus on discriminatory outcomes. They adopted explicitly color-conscious approaches, using disparate impact as evidence of discrimination, or seeking to impose quotas in higher education.

The second development is a product of the way that, rather than target blacks specifically, the CRA was written to confer protections—and therefore rights—on the basis of general categories. This was not really seen as a problem at the time, because America was more or less divided between blacks and whites, with only small Hispanic (not even really a discrete group) and almost no Asian population—conferring civil rights protections on the basis of race or ethnicity meant protecting blacks. But once the privilege existed, groups started jockeying for formal recognition as needing protection, which carried with it access to jobs and government resources. This situation was compounded by the 1965 Immigration and Nationality Act, which dramatically changed immigration law and heralded America's great ethnic transformation.

The second is being struck by how much of an oddball the United States is on free speech because in the rest of the world tribalism still reigns.  While I knew this, I was reminded of just how different we are when it comes to speech, even compared to other democracies.  The question for us is whether the New Racists will succeed in making us more like other countries, with all the enmity, jealousy, and enhanced conflict it would entail.  Lehman's take:

In reality, I think the woke program is pretty straightforward. Society is composed of groups, those groups are in conflict, one of those groups has more power than the other groups for historically contingent reasons, the best way to resolve that conflict is to work toward intergroup equality, and laws and actions should be evaluated in relation to how they resolve that conflict. Not only are these not inexplicable values, many other cultures embrace them. They are often, just as one stark example, the working framework for post-conflict multiethnic states. A favorite example of how these values play out is in hate speech: the idea that we should ban hate speech sounds totally weird in the American context, simply because we think about the right to speak as a fundamental political right, a basic component of citizenship. But hate speech laws exist all over the world! And when Critical Race Theorists (yes, the real Critical Race Theorists, like Richard Delgado) talk about the issue, they often invoke not only those cases, but also the value system that undergirds them.(2)  Hate speech harms target groups, we should be concerned about harm to those groups, therefore we should prohibit hate speech.

There's much more of interest in the full piece which was quite thought-provoking.  I have several disagreements with Lehman; he's a death penalty proponent, I'm opposed; he favors drug prohibition, while I'm undecided, though more inclined his way than twenty years ago (I do think the widespread media and academic normalization of drug use is a tragedy).

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(1)  My point is not whether other groups should have civil rights, but perhaps we would have been better served focusing on the unique circumstances of those involuntary brought to America, held in servitude, and their descendants.  Whatever other groups may have faced, the degree, extent, and duration of discrimination against these people is unparalleled in our history.

(2)  The value system that undergirds CRT in Delgado's own words:

Unlike traditional civil-rights discourse, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundation of the liberal order; including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.

For the critical race theorist, objective truth, like merit, does not exist, at least in social science and politics.  In these realms, truth is a social construct created to suit the purposes of the dominant group. 

If the vision of Delgado and other New Racists (including those embedded in the Biden Administration) were to triumph, we are looking at a very different country.  As I've noted elsewhere the analytical lenses brought to bear on society by white nationalists and the New Racists is the same; the only difference being who should end up on top at the end.  It is why the many liberals, progressives, and socialists I now read who oppose this movement, and have mostly been expelled from their former circles for their heresy, recognize the danger it poses to democracy; it is a totalitarian ideology.