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date: 18 November 2019

(p. 499) Public Policy, Political Philosophy, and Law

Abstract and Keywords

Although slavery was abolished in 1865, racial subordination was maintained under Jim Crow, and those wrongs have caused lasting harms. Governments, institutions, and individuals (including corporations) are morally accountable today if they supported or profited from slavery or Jim Crow. Reparations would include cash payments, but moral wrongs are not fully repaired by material compensation. Slavery and Jim Crow were total systems predicated on a persisting ideology of white supremacy. Reparations should enable those wronged to rebuild their lives, free of oppressive racism.

Keywords: slavery, Jim Crow, reparations, racial subordination, institutionalized racism, African Americans, injustice, rectification, apology by government, US Congress apology, equal protection law, concept of race, critical race theory, Fourteenth Amendment, Supreme Court and race, diversity affirmative action, Regents of the University of California v. Bakke, Fisher v. University of Texas, race-based affirmative action, non-race-based affirmative action, ideal theory, nonideal theory, applicative justice, injustice, John Rawls

Most philosophers of race would claim that public policy regarding US race relations has favored whites at the expense of nonwhites. Historically, such public policy has formed as the result of societal practice, for example, slavery and segregation, that was legitimized in local, state, and national law. The most striking example of racist law was the original US Constitution stipulation that slave populations would count as three-fifths for apportioning congressional representation and taxation (Article 1, Section 2, Paragraph 3). Racially unjust public policy and law have been corrected through constitutional amendments, for instance the Civil War Constitutional Amendments XIII, IV, and XV, or by the US Supreme Court, as in Brown v. Board of Education. These ultimate legal changes have in principle resulted in new public policies, including the illegality of racially segregated schools and residential neighborhoods. However, the temporal sequence of societal practice, public policy, highest legal decision, and then new public policy is hardly a structural cycle of progress, because there has not been reliable or constant progress in the history of US race relations. (Schools and residential neighborhood remain racially segregated.)

The contemporary conjunction of formal equality as a result of the 1960s civil rights and immigration reform legislation, with ongoing nonwhite disadvantages, is an insistent paradox. After Barack Obama took office as the first African American President of the United States, the number of white supremacist organizations increased almost tenfold and (p. 500) anti-immigration sentiment intensified. There have been unprecedented numbers of highly publicized homicides by police against unarmed young black men. Rates of nonwhite incarceration and residential segregation are at all-time highs, as are income and wealth disparities between white and nonwhite households. Many progressives believe that this situation is the result of “backlash” against previously achieved progress in race relations; others have described proactive conservative or reactionary obstacles to the extension and protection of civil rights for minorities, such as the War on Drugs. Political observers have also criticized early twenty-first century trends that diminish voting rights for the poor and elderly, with disproportionate effects on minorities, for instance in new state requirements for photo IDs at the polls. Also, speculation abounds about a growing lack of confidence in the good will of white political leaders toward black constituents, for example in the slow and inadequate federal response to mostly black victims of Hurricane Katrina, in 2005. Many nonwhites are described as having lost faith in the ability of present democratic processes to represent their economic interests. High rates of unemployment in poor black neighborhoods persist, in contrast to recovery from the Great Recession of 2007–2008, in other places and populations.

We should note that the legal and public policy disadvantages attending nonwhite race are neither limited to blacks within the United States nor to distinctively American forms of oppression on an international level. For instance, immigration policy has consistently favored people from Northern Europe, even after the Immigration and Nationality Act of 1965 opened US borders to new waves of entrants from Asia and South and Central America. Racial prejudice against undocumented immigrants from Mexico has accompanied resurgence of early twentieth-century populist and nativist ideology, along with the activist Minuteman Project, begun in 2004 and xenophobic conservative rhetoric during the 2016 presidential campaign. Decisive legislation pertaining to undocumented immigration is pending as of this writing.

Native American spokespersons and advocates have consistently stressed the importance of retaining or reclaiming some measure of internal sovereignty. Unlike African Americans and immigrants, they have been less concerned with sharing the goods of majority life than maintaining resources for their own self-sufficient traditional lifestyles. Few treaty provisions protecting Native American land rights have been honored by the US federal government, leading to the irony that some Indian tribes have been able to retain their traditional lands only through profits from running gambling casinos on reservations, in states where gambling is otherwise illegal. By contrast, on a global level, the nonwhite poor constitute cheap labor for multinational corporations or clients for development projects. These populations are also the most vulnerable to physical harm in natural disasters and dislocation due to civil wars, and territorial and political disputes between neighboring states.

African American pessimism regarding antiracism was discussed in Part VI, and confidence in social constructions of positive nonwhite identities was not robust throughout the essays of Part VII. The analyses of contemporary social issues involving racial disparities in Part VIII were not enthusiastically optimistic. Sober reassessments of the role of law in correcting racial injustice are undertaken by the authors in this part. It should of course be kept in mind that legal changes are subject to political and social climates that are difficult to predict, so that even extreme changes in federal law or court rulings may not be implemented in reality.

(p. 501) David Lyons’s “Reparations for Slavery and Jim Crow” examines the historical effects of past oppression. Although slavery was abolished in 1865, racial subordination was maintained under Jim Crow, and those wrongs have caused lasting harms. Slavery and Jim Crow were total systems predicated on a persisting ideology of white supremacy. Lyons claims that governments, institutions, and corporations are morally accountable today, if they supported or profited from slavery or Jim Crow in the past. Contemporary reparations might include cash payments, but moral wrongs are not fully repaired by material compensation. Overall, reparations should enable those wronged to rebuild their lives, free of oppressive racism.

In “Race, Rectification, and Apology,” Rodney Roberts calls attention to “rectificatory justice” as a subject of political philosophy, with specific focus on the rectification of the racial injustices perpetrated against Africans and people of African descent. Rectificatory justice sets unjust situations right, and apology is an important aspect of that undertaking, along with restoration, compensation, and punishment.

Roberts here examines the relationship between rectification and apology. He notes that “philosophers have often burdened the notion of apology with emotional requirements and the assumption that reconciliation is the proper aim of an apology.” However, a clarification of rectificatory justice, including a conception of apology that is grounded in justice, suggests that emotional requirements, for example, sorrow and regret sincerely expressed, are not necessary. Moreover, reconciliation need not be the goal of the expression or performance of apology. According to Roberts, the just apology expresses respect:

The wrong of injustice is the disrespect shown to another when that person’s rights are violated. Acknowledging that what one has done is wrong entails an acknowledgment that the person affected by the act is undeserving of the treatment given. By apologizing the perpetrator reaffirms that the victim is a person and is therefore worthy of respect.

Roberts shows how according to these relevant measures, the apology to African Americans by the US Congress in 2009 failed as a legitimate apology.

Tina Botts provides an analysis of the US Supreme Court’s idea of race, which can be inferred from its application of the Equal Protection Clause of the Fourteenth Amendment. (The Equal Protection Clause precludes biased treatment of individuals by government officials, but it is vague in that government officials usually have discretion in deciding how to fulfill their duties.) Botts claims that as equal protection law developed over the twentieth century, the Supreme Court’s concept of race moved from sociocultural/sociohistorical aspects of race to biological ones. During the same time, the humanistic and scientific view of race moved in the opposite direction, as essentialist biological notions of race were replaced with analyses of race as social constructions. That is, the solely biological meaning of race seems to be in the background of the Court’s rulings in recent affirmative action cases that there be no preferences for admissions or hires on the basis of race alone. If race is only biological, then it is not also historical. As a result, the ongoing effects of past discrimination cannot be taken into account in crafting contemporary policies, because to do that would favor nonwhites at the expense of whites. But formal equality has been taken to mean that unjust history is no longer relevant, implying that there is little remaining race-based injustice that needs to be corrected. Indeed, the court’s reasoning has been that any “unnecessary” consideration of race becomes invidious or unfair, regardless of whether minority (p. 502) or majority races are considered. If Botts is correct about the Court’s restricted view of race, according to that view, racial integration or diversity is no more than variety only and not very important, again, because formal equality is presumed to preclude discrimination.

Suppose, as the US Supreme Court seems to, that fairness and justice exist, given and guaranteed with the formal equality of the 1960s civil rights legislation. Suppose further that “race” refers only to differences in skin color, with historical injustice having no legacy. It could plausibly be concluded that race-related disparities in achievement are the result of individual choices, including perhaps, values that do not support achievement within minority cultures. This is the conservative view of disparities in well-being among racial groups at this time, and it is consistent with an attitude of blaming nonwhites themselves for whatever disadvantages they experience that might otherwise be attributed to structural or institutional, as well as individual prejudice and discrimination.

Progressives tend to have a more historically comprehensive social picture that seeks causes for disparities that are not the moral responsibility of individuals less well off. If disparities are the result of structural inequalities, then inequalities are unjust and solutions to them need to be sought on a structural level. Affirmative action policies in higher education were intended to accomplish that, because in the United States, education has been the single most important means for socioeconomic advancement. The reasoning in support of affirmative action was that if minority identities were affirmed in higher education admissions policies, not only would additional individuals given access to higher education be better off, but they would also become leaders and help other members of their groups. However, these cultural, as well as historical, arguments for affirmative action have been rejected by the US Supreme Court since the late 1970s. The result has been a weak support of diversity or a mix of different racial identities on college campuses, not so much to help minorities or otherwise correct injustice, but because racial variety in a college setting is of benefit to members of majority groups. White college graduates will be better able to perform their jobs in business, the professions, and the military, if they have had experience with nonwhites.

In “Affirmative Action for the Future” James Sterba begins by noting that the goal of diversity affirmative action, the most widely implemented form of affirmative action at present, is simply diversity that has its own benefits in educational and work contexts. However, even when universities have implemented measures to increase racial diversity, lawsuits by white students claiming “reverse discrimination” have been successful and curtailed those efforts. Sterba claims that, nevertheless, educational institutions are morally obligated to respond to discrimination in the wider society. But such a response need not require race-based diversity as a form of identity. Sterba advocates future programs that will bring students of any race to campus who have witnessed, as well as personally experienced, discrimination.

In “Ideal, Nonideal, and Empirical theories of Social Justice,” I argue that ideals of justice may do little toward the correction of injustice in real life. The influence of John Rawls’s A Theory of Justice has led some philosophers of race to focus on “nonideal theory” as a way to bring conditions in unjust societies closer to conditions of justice described by ideal theory. However, a more direct approach to injustice may be needed to address unfair public policy and existing conditions for minorities in racist societies. Applicative justice describes the applications of principles of justice that are now “good enough” for whites, to nonwhites (based on prior comparisons of how whites and nonwhites are treated).

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Churchill, Ward. (1994). Indians are US? Culture and Genocide in Native North America. Monroe, ME: Common Courage.Find this resource:

Corlett, J. Angelo. (2003). Race, Racism, and Reparations. Ithaca, NY: Cornell University Press.Find this resource:

McCarthy, Thomas. (2009). Race, Empire and the Idea of Human Development. Cambridge: Cambridge University Press.Find this resource:

McGary, Howard, and Bill E. Lawson. (1992). Between Slavery and Freedom. Bloomington: Indiana University Press.Find this resource:

Pinckney, Darryl. (2014). Blackballed: The Black Vote and US Democracy. New York: New York Review of Books. (p. 504) Find this resource: