Racism

Proposed Immigration Bill Kills Birther Theories

In one of the more noxious “conservative” proposals to come down the line in quite some time, over 90 House Republicans have pledged their support to the “Birthright Citizenship Act of 2009,” which would, contrary to its title, end the notion that citizenship is the right of all born in this country. Put in their words, the BCA would solve the “anchor baby problem,” by providing that no child born on American soil shall take citizenship at birth, unless at least one parent is a citizen. So much for 4,000+ years of jus soli, and the idea that modern conservatism has anything to do with preserving tradition.

The more interesting implication of the bill, though, is this: because the bill assumes that the current state of the law provides citizenship to all persons born on American soil, it’s an implicit rejection of the more “rational” birther theory — that Obama, despite being born in Hawaii, fails to qualify as a “natural born citizen,” because one of his parents wasn’t a citizen.

Of course, it’s blatantly unconstitutional, too (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” U.S. Const., Amd. XIV, § 1).

You really have to wonder why this bill was ever even written. If it’ll never become valid law, why go to the trouble of writing it? Have we really fallen so far that we’ll draw up and push legislation just to slake our constituents’ desire to offend the groups that the bill would target, in theory? Apparently, yes.

Party & Identity Politics

RedState continues an argument we regularly hear: that the Democrats, not the Republicans, and not any other amorphous entity, were to blame for the racial politics and discord that prevailed after the end of the Civil War, and regularly culminated in violence. The author is entitled to a rebuttal not due to the elegance of his phrasing, but on account of the frequent resurgence of the issue.

Odds are you’ve heard the general argument. It works by two syllogisms. First:

1. Democrats in the past were racist.
2. Modern Democrats are ideologically equivalent to former Democrats.
3. Ergo modern Democrats are racist.

And, assuming the validity of the first conclusion:

1. Democrats are inextricably linked to liberalism.
2. Democrats are racist (see supra).
3. Ergo liberalism is racist.

We can (and must) concede point #1 of syllogism #1, without harm. Let’s start with the first argument.

We should acknowledge at the outset that there’s a certain unfairness in holding any modern entity to account for the crimes of the past. If we were to carry forward the sins of all prior generations, and attribute them to their modern progeny, whether by a rubric emphasizing formal labels, or general intellectual inheritance, no religion, government, or philosophy of government would be blameless. In fact, all would be utterly insupportable.

Further, were we to decide to carry forward intellectual blame, apportioning it on the basis of party name would be an especially inelegant method. Party labels shift over time. E.g., Democrats were the segregation party at least pre-Thurmond; but it’s generally accepted that that changed sometime thereafter. Similarly, Democrats were the Southern party, but that changed completely by the 1984 election. Since party labels change, the critical premise of the first syllogism breaks down.

To avoid this conclusion, attribute the blame for Jim Crow to modern Democrats, and then draw some conclusion about the evils of an amorphous Progressivism, conservatives must assume constant labels, and then conflate “Republican” with “conservative,” and “Democrat” with “liberal.” The first component fails because labels change, as noted; and the second fails almost as quickly.

First, we have to define our terms. When we say “liberal” or “progressive,” we refer to a philosophy that prefers individual liberty to state power, at least along social dimensions; thus, faced with a choice between inclusiveness and stability, a liberal will deflect error towards inclusiveness. Conservatives will take the opposite choice, erring towards tradition or security, and they embrace that definition (Bill Buckley: conservatism “stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it”).

This country enjoys a history of increasing liberty, but it’s never been easy. It is axiomatic, then, that the partisans in any single battle, fighting against progress, were “conservative,” at least relative to their time. In context, then, history’s villains are always, and have always been, throughout American history, from Royalists and Tories to the last segregationists, conservatives, relative to their contemporaries. Further, properly defined, Republicans have not always carried the conservative torch, nor Democrats the liberal one; in fact, this country’s greatest Republican heroes were all, truly, avowed liberals, or progressives, relative to their time — Teddy Roosevelt saved the national parks, Abraham Lincoln freed the slaves, etc.

Modern conservatives will bristle at the characterization of their ideology as necessarily villainous. And they should, but only if we attempt to draw modern conclusions from this idea. Because the battlefield of the moment changes almost daily, a 1960′s conservative is not a 2010′s conservative. Therefore, the conservative cause must rest not on a general need to push society backwards, or the assertion that all change is bad, but rather the idea that change after a certain point is bad. However, when conservatives undertake that definitional act, as they must, they acknowledge that association with past heroes is necessarily slippery. As conservatives relative to their peers, they shun conservatives of eras past, and while embracing yesterday’s liberal heroes.

This is what happens when you define ideologies based on change: when the changes themselves change from proposal to status quo, you change, as does your adversary, and you have to change which changes you look at when defining yourself, or risk changing history. Alternately, you can always change your argument.

Pat Buchanan Basically Just Writing Fanfiction Now

From his latest column in Human Events:

“Diplomacy has failed,” Sen. Chuck Schumer, D-N.Y., told AIPAC, “Iran is on the verge of becoming nuclear and we cannot afford that.” [. . . .]

But to Graham’s point, if we are going to start this war, prudence dictates that we destroy Iran’s ability to fight back. At a minimum, we would have to use airstrikes and cruise missiles to hit a range of targets. [. . . .]

To prevent a counterattack, the United States would have to take out Iran’s 14 airfields and all its warplanes on the ground. We would also have to sink every warship and submarine in Iran’s navy and destroy some 200 missile, patrol and speedboats operated by the Revolutionary Guard, else they
would be dropping mines and mauling our warships.

Also, it would be crucial on day one to hit Iran’s launch sites and missile plants for, like Saddam in 1991, Iran would probably attack Israel, to make it an American and Israeli war on an Islamic republic.

Despite an utter lack of evidence that anyone actually in power wants it, yes, Pat Buchanan is planning a war against Iran, treating its commencement as a foregone conclusion, and trying to find someone to blame for it, if it’s started early. But the real kicker is this: what concessions must be made to the exigencies of wartime, once Buchanan’s fictional war is started? Glad you asked:

Would we have to intern all Iranian nationals in the United States, as we did Germans and Italians in 1941?

Although, in Beckian fashion, he masks it by “just asking a question,” in Buchanan’s fantasty world, once a war is started, all Iranian nationals could be jailed on the force of their national origin alone. Note, too, the critical omission from his historical narrative: the last time we interned enemy nationals, the real victims weren’t the Germans (approx. 11,000 interned) or the Italians (approx. 1,500 interned), both of whom were only targeted for internment on an individual basis only, but the Japanese (approx. 110,000 interned), who were interned based on nothing more than their national origin, and choice to reside in the western United States. Repeating this course of action would require repeating one of the most nakedly racist acts this country has ever taken — racial profiling writ large, with concentration camps and everything. It would also be unconstitutional. See Korematsu v. United States, 323 U.S. 214 (1944). Be glad this guy and his fellow travelers are out of power. Let’s keep it that way.

Social Versus Political Racism

Despite Politico’s best efforts to convince us otherwise, there’s a world of difference between Harry Reid (D-NV)’s admittedly racist line and Trent Lott’s career-ending gaffe. The former betrays a deep ignorance about how African Americans and indeed all Americans define themselves, and wish to be defined — not by the color of their skin, or their dialect, but by their individual merit — but the latter is an entirely different beast. Lest we forget:

LOTT: I want to say this about my state: When Strom Thurmond ran for president, we voted for him. We’re proud of it. And if the rest of the country had followed our lead, we wouldn’t have had all these problems over all these years, either.

Reid showed a lack of personal tact and grace, as well as a concerning willingness to essentialize class traits. But Lott openly supported a segregationist, for his policies as a segregationist. Nothing more, nothing less. Thurmond ran on a platform that put segregation as its #4 plank — it’s the first hard policy part of the platform.

Query whether we should, but we can forgive Reid’s human ignorance. We cannot, and indeed must not, forgive an ignorance so complete that it would ignore a full half-century of progress, and cast an entire race of fellow citizens into the dust.

When Deliberately Broad Tailoring Becomes “Narrow”

Another brief note in a busy week!

To some disappointment, Obama recently caved to demands for racial profiling, by requiring that all travelers from identified nations (e.g., Yemen) submit to special screening. Fairly stated, this isn’t racial profiling — it’s profiling based on nation of origin which, while worrying, is substantially broader than racial profiling, and thus less dependent on discriminatory (and often incorrect) notions of “what a terrorist looks like.”

This development actually demonstrates a bizarre quirk of equal protection law — the answer to a discriminatory policy isn’t always to eradicate the policy. Sometimes it’s to “equalize up,” expanding a repressive regime to cover everyone. Instrumentally, this isn’t a desirable solution, but it’s one that, in more invidious situations, the law is often powerless to stop.

When we speak of equal protection, we most often refer to “formal equality” (the law should apply equally) rather than substantive equality (the law’s effects should be equal). Myopic focus on formal equality often blinds the judicial branch to the effects of discriminatory policies — as when, in 1971, the town of Jackson, Mississippi responded to demands to integrate its public pools by simply closing its public pools. All of them.

The Supreme Court found this blatantly racially-motivated decision to be constitutional (Palmer v. Thompson, 403 U.S. 217 (1971)). Justice Douglas’ dissent tries to say why the decision is legally wrong, but the conclusion is visibly strained:

May a State in order to avoid integration of the races abolish all of its public schools? That would dedicate the State to backwardness, ignorance, and existence in a new Dark Age. Yet is there anything in the Constitution that says that a State must have a public school system? Could a federal court enjoin the dismantling of a public school system? Could a federal court order a city to levy the taxes necessary to construct a public school system? Such supervision over municipal affairs by federal courts would be a vast undertaking, conceivably encompassing schools, parks, playgrounds, civic auditoriums, tennis courts, athletic fields, as well as swimming pools.

My conclusion is that the Ninth Amendment has a bearing on the present problem. It provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights. Such is the right to travel from State to State. Such is also the right to marry.

He’s clearly morally right, but he lacks the legal ground to make the conclusion. The Ninth Amendment, unfortunately, is a non-starter. The answer — focus on the municipality’s decisionmaking process, identify the discriminatory motive, and condemn it — is harder here than it proved in other cases. When defendants in equal protection cases fight the courts by “equalizing up,” there’s not a lot we can do.

Obama’s new profiling policy is obviously not like the famous pool case. He’s struggling to avoid discrimination, and even though his policy burdens more people than it needs to, so would any profiling policy. At least this one actually contains a semblance of logic.

Vitter: “No Idea” if Loving v. Virginia Rightly Decided

A great moment for Tulane Law School — their alumnus, Senator David Vitter has “no idea” if Loving v. Virginia, 388 U.S. 1 (1967), was rightly decided. Could it have been judicial activism run amok? Maybe!

It’s forgivable for politicians to not know Supreme Court cases. I wouldn’t expect a sitting Senator to be able to tell me what he thought of Lochner v. New York, or even Kelo v. City of New London. But knowing Loving v. Virginia, the case that finally crushed the white supremacist movement by invalidating miscegenation laws, is a matter of good citizenship, and it’s taught in literally every law school, ever. There are questions you can’t brush off, and there are those that you shouldn’t: “was Loving rightly decided?” is one of the two, and whichever one it was, Vitter failed the test.

As Evan reminds us, Vitter was the only Senator not to comment on the Louisiana judge who refused to marry mixed-race couples. Now we can imagine why.

h/t Evan at BreakTheTerror.

Tragedy, Joy, and Profiling

For American conservatives, 2009 has not been a year for tact. As the only high-profile African American in the Republican Party admits that many in the GOP distrust him because of his race, not one but two mainline pundits are on record calling the first black President a “racist”; and, conservative activists have visibly delighted in rising unemployment, Chicago’s loss of the Olympics, and, now, a brutal massacre at an army base in Texas.

You see, right-wing gunman are not representative of their ideological group; Muslim gunmen, on the other hand, prove that Muslims shouldn’t be in the military. The Fort Hood tragedy is the perfect chance for the GOP to exploit lingering anti-Muslim racism, playing upon that familiar cocktail of fear and hatred that so often sweeps them to power, at the expense of the nation’s soul. The willful racial profiling going on on conservative blogs and websites these days is probably the worst since Korematsu.

Lest we forget, there are between 3,500 and 20,000 Muslims serving in America’s 1.5 million-member military. One of them, over the course of time, transitioned from a loyal servicemember to a radicalized murderer. That leaves Muslim soldiers with somewhere between a 99.97% and a 99.995% loyalty rate. Meanwhile, two right-wing extremists — one anti-government militia member, and one white supremacist — have killed in the past six months, and lest we forget, in 1995 a registered Republican army veteran committed a mass murder that makes the Fort Hood incident pale in comparison.

The point must be that none of these groups, even heinous, hate-driven organizations like white supremacists, are sufficiently dangerous to render membership a proxy for murderous intent. We should be vigilant of red flags, as surely existed in Mr. Hasan’s case, but that’s all either common sense or DHS policy statements have ever suggested. It is a sad state of things when tragedy functions as sufficient excuse to reveal barely-concealed racism, but here we are. For the Republican Party, the thin veneer of humanity is just so easily chipped.

There’s a Special Place in Hell for Erick Erickson

Late today, an army major, apparently disturbed by stories of the war abroad, murdered twelve of his comrades at Fort Hood. The man had a Arabic-sounding name, but stated “no religious preference” on his military paperwork. I’m sure you know what’s coming next:

As the sun set tonight, tragedy came to Ft. Hood. A muslim [sic] soldier began shooting other soldiers.

What we know so far is that the soldier was a muslim [sic] and began yelling at his fellow soldiers statements in Arabic.

Leave it to RedState to support our troops — by twisting their deaths for unrelated political gain.

Update: apparently he was Muslim. This changes nothing. His religion wasn’t relevant to the crime, except to permit pundits from Erickson to Malkin to blame his religion and Muslims generally.

Was Brown v. Board Wrongly Decided?

Scalia thinks it was. Except, he doesn’t. Irresponsible, slapdash journalism notwithstanding, America’s second most conservative — and, arguably, most intelligent — Supreme Court justice stands quite firm in his defense of the case that created the modern civil rights movement and, thereby, modern America. But this vignette in journalistic ethics raises a more interesting question: we all know Brown v. Board, by terminating the practice of racial segregation in schools, was the morally right decision for the Supreme Court to make. But was it legally sound? This question deserves to be asked. After all –

However apparent the injustice of [segregation] may be, we have only to consider whether it is consistent with the constitution of the United States. Plessy v. Ferguson, 163 U.S. 537, 553 (1896) (Harlan, J., dissenting).

Well, let’s see.

Despite the seminal place Brown v. Board has attained in our jurisprudence, it was by no means a slam-dunk decision (don’t let the unanimous opinion convince you otherwise). Seeking to bring to a successful conclusion a fifty-plus year campaign for racial equality, the newly-minted Chief Justice Warren worked long and hard to build a consensus opinion, but the resulting opinion seems to rest more on sociology than true constitutional interpretation. Contrary to popular understanding, Brown v. Board never explicitly rejected the idea that “separate but equal” satisfied equal protection — it simply concluded, after examining extensive expert reports, that separate can never be equal, at least in the context of education:

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Brown v. Board of Education, 347 U.S. 483 494 (1954).

That Brown‘s ultimate significance has become, in legal circles as well as public discourse, “segregation is always illegal,” is a happy coincidence, but not, strictly speaking, what the opinion says, and deliberately so. An outright reversal of Plessy would’ve been earth-shattering. Brown‘s half-step is a concession to history: while the framers of the Equal Protection Clause did, in fact, probably intend their text to forbid segregation (a discussion for another day), the practice of segregation grew contemporaneously with the South under Reconstruction, as schools were built and rail lines restored. This organic history makes it very difficult indeed to parse the distinction between the America the Fourteenth Amendment was built to create, and that which it actually did create. Consequentially, an analytical approach built on originalism would be somewhat inadequate to the task, which Warren acknowledges, before changing the question to address whether segregation is fair to modern eyes.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Id. at 493.

So, let’s summarize — “separate” can still be “equal”; but not in the context of education; and, decisions about the meaning of “equality” should be reckoned by modern, rather than 19th century notions of fairness. This is an elegant, beautifully written opinion, and unequivocally right, but there’s a lot to question here, from a conservative perspective. If a liberal justice today leaned on sociology to answer controversial culture war issues, she’d be pilloried; if the same justice argued that “fairness” should be judged by modern values, her name would surely be cursed from here to WorldNetDaily. They may not want to admit it, but from a conservative perspective, there is an argument that Brown was wrongly decided.

Of course, no politician who wants to be taken seriously would ever admit as much, even if they would disagree with Brown‘s reasoning being used today, to decide more present issues in equal protection law. By any reasonable rubric, Brown was rightly decided in 1954, but conservatives are still fighting its major premise, fifty years later. That should say a lot.

Ladies & Gentlemen — Your Republican Party

Courtesy WorldNetDaily. Remember, they’re actually proud of these pictures.