For a good while I’ve been a member of an impressive online mail list on constitutional law. Since the list is for, mainly, constitutional law professors, I’ve generally been a silent lurker. Recently one of the distinguished members posted “A Musing,” which prompted an outpouring of unusually heated comment, much of it uncharacteristically vituperative. Here is what struck me as the operative part of the long “Musing”:
Okay, why does Conlaw seem so difficult and strange?
We take it for granted that certain things are bad and should be illegal, such as 14th (and 5th for federal) Amendment equal protection violations in light of the premise in the Declaration, admittedly not law but somehow more important, that all men are created equal. So why did it take so long to eliminate the exceptions for blacks, women, gays and so many others? In hindsight, years later, the injustice seems so clear, doesn’t it?
....
Fifty years ago, coming out against discrimination against blacks was considered ‘liberal’ in the Hubert Humphrey sense. Today we don’t think opposition to discrimination against blacks to be ‘liberal’ but mainstream and the discrimination plain wrong as well as illegal and immoral. What happened? Where did the shift occur?
Naturally most of this heat (You’re a liar! No,
you’re a liar!), as is almost always the case with such heat, was not very enlightening, nor did it inspire confidence in what may be going on in some constitutional law classrooms. But some of it was, well, amusing. One eminent professor, for example, declared that there has been no shift at all.
I think you only have to look at the racism of the right wing of the Republicans -- Rep. Wilson yelling out that Obama is a liar; tea party people yelling “nigger” at black members of Congress to see that substantial numbers of white Americans -- from the tea party crowd to South Carolina Congressmen to Glen Beck -- [to see that right wing Republicans?] are deeply racist and deeply hostile, not only to blacks but to anyone who is not “white” but their definition of the term. In much of the country it is also perfectly ok to campaign against Hispanics as long as you phrase it in terms like “illegal aliens” and “illegal voting.” I think vast numbers of Americans (look at the ratings of those who listen to the rants of Glen Beck and Rush Limbaugh; look at the suggestions over and over again that Obama is not an “American”) do NOT think it is immoral to discriminate.
He was reproached — all too gently, I think — by another professor, who was
sorry to read [this] repetition of a mistake/lie about the n-word chant/yell at the black congressman. There were many video cameras there at the time and none have backed up the assertion that was made. Race is being used by opponents of the tea party movement. Isn't that immoral?
To which the critic of right wing Republican racists replied:
Even i[f] the Tea Party name calling is not true (and again, I would like to see more evidence and wonder if evidence is ONLY when it is on film); I stand by the rest of my arguments. The racism of the right side of the Republican Party (NOT ALL REPUBLICANS) is pretty obvious.
Who needs, you know, evidence when it’s “pretty obvious” that the racist Republicans (not “ALL” Republicans; just the conservative ones) are racist?
Well, I said much of this was amusing. You will have guessed by now that I decided to pipe up for a change. Here’s what I posted:
Fifty years ago, coming out against discrimination against blacks was considered ‘liberal’ in the Hubert Humphrey sense. Today we don't think opposition to discrimination against blacks to be ‘liberal’ but mainstream and the discrimination plain wrong as well as illegal and immoral. What happened? Where did the shift occur?
Fifty years ago liberals in the Hubert Humphrey sense believed that people should be treated without regard to race and that distributing burdens and benefits on the basis of race was plain wrong as well as illegal and immoral. Now they don’t. They used to believe that color-conscious racial favoritism was the essence of discrimination. Now many of them believe that opposition to color-conscious racial favoritism is racist. What happened?
Now, my entry and the few responses it engendered were not even a minor spark in the raging flame war. Still, a couple of the responses were revealing, I believe, and interesting enough (at least to me) to mention here.
Here’s one:
Assuming your question is meant ingenuously, which after looking at your blog I have my doubts about, I'll hazard an answer to your question, anyway. I think “what happened” in the last fifty years was a shift in public attitudes toward racial issues and an awareness that racial differentiation need not always work to the detriment of racial and ethnic minorities. I can see the value in seriously debating the substantive merit of this policy or that legal decision. I don’t see a whole lot of value in pretending to be mystified by what’s going on.
There are several things worth noting here. First, the unreflective (and incorrect) assumption that a change in liberal attitudes (the attitudes of “liberals in the Hubert Humphrey sense”) is the same thing as “a shift in public attitudes.” It wasn’t. The liberals did indeed change their spots on this issue, but unless all the survey data is wrong “the public” did not.
Second, did I really pretend to be “mystified” by this change? I don’t think so — I think I was being clearly sarcastic — but who am I to say?
Finally, and is some ways the most interesting, is this professor complimenting or criticizing me by generously (in his own eyes) “assuming my question is meant ingenuously,” about which he has doubts because of “looking at [my] blog”? My dictionary defines “ingenuous” as “ innocent and unsuspecting,” and has a “see also” to “gullible.”
Now, moving on, here’s another one:
Get real. Hubert Humphrey was trying to lift up an oppressed class, not put a lid on their aspirations and accomplishment. As long as Blacks were an underclass, his language allowed efforts to lift them up. COngress did not infact give every slave 5 acres and a mule as they passed 13-15th A But they sure could have, even without giving every White confederate veteran a mule and 5 acres.
It is cutsey argument only to say Humphreys language really meant “keep a lid on Blacks and dont help them too much.” I dont see it as an element or implied by the original anti-discrimination rhetoric.
First, since this fellow is a lawyer and not a historian I will, with great difficulty, refrain from snarkily pointing out that it was 40 acres (not 5) and a mule that the freedmen did not receive. Oops, I failed; some temptations are just too great.
Jury, disregard that. Now for some (at least a little) substance:
Hubert Humphrey was trying to lift up an oppressed class, not put a lid on their aspirations and accomplishments.
• So? What’s your point? Do you mean to say that the requirements of the 1964 Civil Rights Act are determined by what Humphrey was trying to do, i.e., his intention?
• But while we’re talking about his intention, does it matter what he said his intention was? It’s not as though he was unclear or ambiguous. As floor manager of the bill, he stated at one point:
“[T]he word ‘discrimination’ has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . .
“The answer to this question [what was meant by ‘discrimination’] is that if race is not a factor, we do not have to worry about discrimination because of race. . . .
In introducing the bill, Humphrey said “Title VII prohibits discrimination .... it says that race, religion, and national origin are not to be used as the basis for hiring and firing.”
In the second major speech introducing the bill, Senator Kuchel (R, Calif) said that no agency “would be empowered under Title VII to dictate racial balance and preferential advancement of minorities.
Sen. Saltonstall (R, Mass), Chairman of the Republican Conference of Senators who participated in drafting the bill, said that it “provides no preferential treatment for any group of citizens. In fact, it specifically prohibits such treatment.”
And you want talk about Humphrey’s intent?
• Does it matter what the bill he sponsored actually, you know, said? Here’s just one example of what it said, from Title VI:
No person in the United States shall, on the ground of race, color, or national origin, . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.
In case that language is not clear enough for the responder to my post, perhaps he could take a look at the Dept. of Justice’s
TITLE VI LEGAL MANUAL, which states that intentional discrimination occurs when “similarly situated persons are treated differently because of their race, color, or national origin.”
• Let us grant, for the sake of argument, that Sen. Humphrey’s intent was “to lift up an oppressed class.” But let us also recognize the obvious: that the means he chose to accomplish that goal was to prohibit the state from distributing benefits or burdens based on race. Does the professor really mean to argue that a clearly prohibited policy — overt racial preferences, for example — passes legal muster whenever its supporters believe it consistent with what he was “trying to” accomplish?
If so, then why not this: If Congress passed a tax on, say, medical devices for the stated purpose of raising revenue, could medical device manufacturers refuse to collect it if they thought the effect of the tax would actually be to reduce revenue to the federal government?
• Does the professor really believe that following both the letter and the spirit of the Civil Rights Act — that is, requiring the state to treat all its citizens “without regard” to race, creed, or color — “put[s] a lid on [the] aspirations and accomplishment” of an oppressed class? Is there any evidence that Hubert Humphrey thought that? That anyone who voted for (or for that matter, against) the Civil Rights Act thought that?
As long as Blacks were an underclass, his language allowed efforts to lift them up
• Of course it did, but should it be interpreted to allow what it specifically prohibited?
• Are there any measures that supporters believe would “lift them up” that Sen. Humphrey’s language would not allow? How about a “white tax” that would tax only whites for the benefit of blacks only?
COngress did not infact give every slave 5 acres and a mule as they passed 13-15th A But they sure could have, even without giving every White confederate veteran a mule and 5 acres.
• Of course Congress could have given 5, or 40, acres and a mule to all freedmen. But does it follow from its ability to compensate former slaves that 150 years later it could give umpteen acres (taking account of inflation) and a tractor to people, and only to people, whose only connection to slavery is shared skin color?
It is cutsey argument only to say Humphreys language really meant “keep a lid on Blacks and dont help them too much.” I dont see it as an element or implied by the original anti-discrimination rhetoric.
• Who made that “cutsey” argument? The responding professor may think that treating blacks equally, without regard to their race, is “keep[ing] a lid” on them, but I don’t, and have never said anything remotely similar to that.
Actually, the distinguished professor I discussed first (the one who sees a racist every time he looks at a conservative Republican) was right about one thing: “vast numbers of Americans ... do NOT think it is immoral to discriminate,” but most of them these days are liberals.
If Hubert Humphrey were alive today, I believe he would have a bad case of indigestion (because he famously promised to “eat my hat” if the civil rights law he promoted ever led to preferential treatment based on race).
