Race, Racism and the Law in America


Rush Limbaugh called the President’s appointee for Supreme Court Justice a “reverse racist.” He is wrong; she is simply a racist. If you discriminate against anyone because he belongs to a racial group (whatever that means, see below), you are a racist. There is no definitional exception depending on the race of the discriminator. Got it?

Judge Sotomayor is an overt racist. Read the papers and think about the decisions she made on affirmative action and the reasons she gave. She is also on record as stating that she would “hope that a wise Latina woman, with the richness of her experience, would more often than not reach a better decision than….” (quoted from WSJ editorial of 5/27/09). Hemming and hawing aside, that is a straightforward declaration of the judicial superiority of having been born a member of a particular group. The qualifier “wise” does not count. Of course, she is not stupid and she would not say that an unwise Latina has superior judgment.

That declaration was published in something called “La Raza Law Journal.” Yes, you guessed right, “raza” means “race” in Spanish. It’s a law school publication for Latinos, “our race.” Academic ideologues will try to tell you with a straight face that “raza” does not really mean “race.” Just ask them how to say “race,” in Spanish then and watch them stutter and possibly cry.

Mrs Sotomayor is also a bad judge whose decisions are overturned 60 % of the time. No matter, she will be confirmed because she has been paying her taxes, unlike other Obama appointees.

That Sotomayor is a woman is going to please women who think only occasionally, because it feels right. There is no reason in the world to believe that female judges render decisions that are different from those of male judges. You can’t have it both ways, girl! Women don’t have different brains or they do; it’s one or the other. Former Secretary of State Madeleine Albright said it best: “Those who think the world would be better if it were run by women just don’t remember high-school.” I wouldn’t be surprised though if Justice Sotomayor’s robe turned out neater than the robes of the male Justices.

Race is a puzzling topic under American law. Conservatives have been silent too long about the intellectual incoherence of our Federal Government’s racial policies.

Racial thinking in America begun with definitions used to narrow down the judicial idea of who was a slave. Race then played a part, but a small one. The Federal legal reach on race expanded greatly in the nineteen-sixties for the purpose of defining which kind of person deserved to be compensated for (real) past injustices. At the beginning, it was easy: There was a fairly well defined category of Americans whose ancestors had been brought to this country in chains. Mot of the same also had ancestors who had been kept in chains for several generations. Most also had ancestors whom the law failed to protects equally for several more generations. The law was dealing with tangible historical injustices committed against a tangible group of people. Then, quickly, legal matters got conceptually complicated.

Under our political system, any category of people can group together to lobby for anything. Observing the advantages African- Americans were getting through affirmative action as a result of these legal definitions, other members of other categories , and potential categories, starting thinking, “Me, too. Give me a piece of that pie.” They lobbied to become legally protected minorities under the law.

The first imitators were “Hispanics” or “Latinos,” no one knows exactly what the politically correct designation is, not even the Federal Government. Their success in achieving protected status is doubly perplexing. First, the category of reference was created purely for the purpose of lobbying. It did not and does not exist in Nature. Having ancestors born in a country where the main language is Spanish creates limited linguistic and cultural commonalities, that’s all. If you told a Cuban-American former heart surgeon (in Cuba) that he was in some way related to a poor, illiterate, illegal immigrant from a rural area of Mexico, he would be perplexed. There is no commonality of condition between these two men although they use the same word to say, “horse,” for example.

Even this minimal linguistic definition does not hold for most Latinos (or “Hispanics”). Like all other immigrant groups, people from Spanish-speaking countries normally lose the language of origin by the third generation, more rarely, by the fourth generation. Thus, most American Latinos probably do not know the language that defines them, for some legal purposes. The logic of this is as if here were special duties imposed on blonds that applied also to their dark-haired and red-headed grandchildren!

Since obtaining a protected status from the Federal Government is mostly a matter of successful lobbying, there is no objective limit to who or what a protected category will include. So, for some purposes, Spaniards, people born in Spain, enjoy the same protected status as other “Latinos.” But, wait a minute, Spaniards are citizens of the greatest oppressor nation in the history of the world, members of the society that enslaved more millions than anyone else, for four hundred years! (Spanish colonial slavery started early and ended late.) Those people enjoy protected legal status here because of something Americans did to the same people they, the Spaniards oppressed so successfully. Read this again. I know it’s complicated; not my fault, I did not make this up. Here it is again:

Spaniards oppressed Mexicans. Americans oppressed Mexicans. Therefore, Americans owe Spaniards!

Even more puzzling is the fact that, for practical purposes, almost all Latinos (“Hispanics”) currently living in the US are immigrants or the descendants of immigrants. (Not all, I know; see below.) So, if I understand well the compensatory logic of federal law regarding protected categories: People come here from another country, of their own accord, and they get mistreated. They keep coming nevertheless, generation after generation. They keep being mistreated. So, other Americans whose ancestors came from other countries, such as Sweden, or Italy, or India, or Iraq, owe them special consideration. This debt is even embedded in federal law.

Note that there is no more convincing proof of the voluntary nature of any action than having to incur considerable risk to undertake it. The greater the risks, the higher the degree of voluntariness. The current flood of illegal Mexican immigrants, forced to risk death crossing deserts, pillaged, robbed, raped and beaten by human smugglers, living if they succeed under precarious conditions in this country, underscores the fact that such immigrants are not similar to the African-Americans whose ancestors were brought here by force. In fact, they are exactly the converse of African-Americans.

Here is another way to put it: If your ancestors made the wrong choice by coming to this country (uninvited, even if legally), don’t ask me for compensation. I had nothing to do with it, nor did the Republic that articulates my will, for better or for worse. And, by the way, your ancestors probably did not in fact make the wrong choice. Find your cousins in the old country and see how they are living right now.

The point I am making is that voluntary immigrants and their descendants have no moral claim on this society and that they merit no special judicial treatment irrespective of how unfairly they are treated. Here is the common-sense principle that applies here:

If you crash the party, even if you crash it only in the sense that the host did not care whether you came in or not, you may not complain about your seating. You may also not allow others, greedy or vainglorious lawyers for example, to make claims on your behalf based on what a bad table you ended up sitting at.

By the way, for those of you who don’t know, I am an immigrant. So is my wife and so are our two children.

Also by the way, I like Mexicans and I don’t think illegal Mexican immigrants should be deported. I consider other radical options in an article forthcoming soon in The Independent Review (co-authored with Sergey Nikoforov, another immigrant).

Historical note: I am well aware of the fact that there was a Mexican, Spanish-speaking population there when the US stole half of Mexico in the 19th century. Those people’s descendants are not immigrants at all. They just stayed home. By my count, assuming a rate of reproduction normal for their place and time, if the only Latinos in the US today were the descendants of those people, the total Latino population would be about one tenth what it is.

Other protected groups except one received their special treatment the same way as Latinos, by arguing successfully that they were especially ill-treated, sometimes in the past. The reasoning invoked always ends up absurd. Thus, Chinese-Americans and Japanese-Americans received their special protection because their ancestors were undoubtedly discriminated against in the 19th century, including with respect to admission to the US. My reaction is: So, double what? First, they were all volunteers. (See above.) Second, the US did not owe then, and does not owed now, an equal right to be admitted to all kinds of people regardless of their provenance and of the cultural baggage they carry. Right now, there are countries whose citizens I would accept only with an eye-drop because I think they present a serious danger to the values I love as an American. (What countries is a topic for another posting. I am trying to avoid distraction here.)

The judicial protection extended to descendants of Chinese and of Japanese was gradually extended to some other Asians but not to all Asians. Thus, people of Filipino origin, and of Korean origin, and of Vietnamese origin all share in this special status. Asians from the Indian subcontinent, Iranians, Turks, and Arabs do not. If you ask yourself why the ones but not the others, the obvious answer is that Koreans and Vietnamese and, with a stretch, Filipinos, all look like Chinese and Japanese to the untutored Western eye. If this classification does not proceed from a racist mentality, nothing does!

The Federal Government is racist at the behest of liberal opinion!

Or maybe, it’s a matter of how much rice they each eat. It would make as much sense as the current system of classification.

One federally protected category did not obtain its special status through lobbying and absolutely deserves it. I am referring to the congeries of groups and their descendants known as “Native Americans,” American Indians. Today’s Indians are descendants of people who were lied to, killed, imprisoned, deliberately deprived of their cultures, and who had their treaties violated by the United States of America. There is no doubt in my mind that they merit reparation at the hands of the same United States because they were actively prevented from enjoying the rewards of our society repeatedly, and from day one. A special, protective legal status is very small compensation for what was done to them by our polity acting in its official capacity, this very same United States of ours.

Incidentally, I am also in favor of reparation for the descendants of African slaves but I am too tired to write about it today.

I could not resist the temptation of delivering myself of a lecture on race on the occasion of Judge Sotomayor’s nomination. In fact, Judge Sotomayor’s racism is largely a red herring, I think. It distracts us from the main fact about her: She is a bad jurist and she is on record stating that the courts make policy. These two facts together turn her into an asset for our messianic President. He and his entourage are betting that she will do as she is told on the Supreme Court. A Justice intellectually out of her depth is less likely to become independent than one fully at ease on the Bench.

PS A few days ago, I heard the White House Press Secretary warn everyone to refrain from saying anything disparaging about Judge Sotomayor, in line with the monarchical style of the Obama Administration. I have a response:

Mr Press Secretary: I invite you to commit an anatomically challenging lewd act on your own person.


About Jacques Delacroix

I am a sociologist, a short-story writer, and a blogger (Facts Matter and Notes On Liberty) in Santa Cruz, California.
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7 Responses to Race, Racism and the Law in America

  1. Scott cochran says:

    I like this too, thank you for your brave and lucid analysis of a dangerous topic.

    I do agree that the american Indians, mostly over a century ago, were mistreated. But what is the statute of limitations? My ancestors were Lilly fed to lions by the Romans if one wants to go back far enough. The “my great great great great great great grandfather was allegedly/likely/possibly/plausibly abused by your great great great great great great grandfather and therefore you owe us casinos” (or other concession) argument I find to be more opportunistic and a play on liberal white guilt than a realistic restitution of ancient wrongs.

    Wouldn’t a 99 year or “if no man is alive to remember it” be a more realistic policy?

    • jacquesdelacroix says:

      No, a statute of limitation would not be more reasonable. This, for three reasons. First, if your grandfather stole my grandfather’s property, the damage continues to this day. The original theft deprives me of the possibility of enjoying the property now. At the same time, you are enjoying the use of property to which you have no right although you had no active complicity in the original theft. (In fact, you may not even know of it.) The two wrongs are additive. The innocent art museums in America that think they own the art Nazis stole from Jews during WWII sipkly don’t own them. Tough luck but what’s right is right.
      Second, in the case of American Indians and African-Americans, the polity that enforced the theft is the same polity for which you and I are responsible now. There is perfect historical continuity, unlike the case of Germany, or Iraq, for example. What they did, we did.
      Third is a point germane to the second but not identical to it. Failure to redress past wrongs deprives one of the ethical basis on which to declare the chapter close. Black organizations have been blackmailing (unfortunate term, I know) the rest of American society for fifty years or more because of the incomplete redress given the real evils of slavery and also of legal segregation. Once you implement fully reparation that is mutually agreed upon, you gain the right to say, “Enough!” You don’t have that right until then. If the other party refuses to come to the table or refuses to agree to a solution that extinguishes its claim, you also have the right to impose a solution and to declare the issue closed.
      There have been many band-aids and sops offered to both American Indians and African-Americans but no proposal for a plenary settlement with either group. In the meantime, our society’s value system is being eroded by the destructive and unfair practice of piece-meal affirmative action.

      If you are a libertarian, I don’t see how you can think otherwise. Sorry, I am a totalitarian libertarian!

      Immigrants and their descendants are not entitled to anything, of course. (Read my several blogs on this.)

      Glad I could be of use.

  2. Scott cochran says:

    I am apragmatic libertarian. Longer response to come when I get back to a keyboard (not an iPhone)

    • jacquesdelacroix says:

      Isn’t calling yourself “pragmatic” another way to accuse the other guy (me, in this case) of being un-pragmatic, that is, unrealistic, a dreamer, someone whose opinion need not be taken seriously? First, “reasonableness” was at stake, then it was “pragmatism.” What’s next? Sanity, virginity, chastety?

  3. Pingback: Race, Racism, and the Law in America « Notes On Liberty

  4. Queequeg’s Mark has an interesting response:

    I’m not going to pretend that I understand what protected status means, but I can comment on racism, racial classification, and civil rights. First off, when you point out that the law had to create a broadened scope of race during the 60s because the category was mainly based on slavery, this socially incorrect. Socially, before the civil war and shortly after it, we recognized degrees of race. After the civil war and with the institution of Jim Crow, America gravitated toward the one-drop rule or hypodescent.

    Hypodescent is probably one of the number one causes for racial profiling and discrimination because it lumps everyone into singular categories. You are right in pointing out that Latinos are not one group, but in America, Latinos are. European Americans are not one group, or shouldn’t be considered such, but in America they are.

    In a country where socially the citizens are taught to group people by physical characteristics–in America race has little to do with culture–what options does an individual have if they are pegged as something that they have a distant connection to?

    As far as Sotomayor being racist: she’s not the only one. We are all racist. We all instinctually gravitate toward people of our own kind, anthropology shows us this, so if Sotomayor sides with people of color she is doing so as a contrary voice to the people of noncolor (it doesn’t even make sense, but that’s race in America) that share the bench with her.

    Well, Dr J, any thoughts you’d like to add? For what it’s worth, I think Queequeg’s Mark is a community college professor in Hawaii or Los Angeles.

    • jacquesdelacroix says:

      Yes, I know the type. No comment except about the statement that we are all instinctively gravitate to people of our own kind. Not so Queequek, I would probably be attracted to your sister!

      “Protected status” is a generic administrative term. It designates a number of different ways in which different groupings enjoy a special legal status in connection with federal law. On example would be the possibility of charging civil right violation. That’s only one example.

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