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 a WSJ editorial). 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 they 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. Most 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 in The Independent Review (pdf, and 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 owe 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.

8 thoughts on “Race, Racism, and the Law in America

  1. 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.

    • Queekeg: I wonder what you mean by “racist.” To me, it means treating people as primarily members of a group that is defined largely by physical characteristics. Also, I don’t believe that… a wise old white man… anything. I am not a racist. Fee free to be one if you like.

      “Protected status” is a legal term that refers to having special rights by law or by administrative fiat. Thus, the physically handicapped have federally protected status. Racially based protected status today has a lot to do with employment, admission to schools, and mortgage financing.

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