In her dissenting opinion in the Supreme Court affirmative action case, Justice Ketanji Jackson began by announcing that “gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens.”
Justice Jackson argues that these race-based gaps are caused by legacies of oppression; in her view, the only question to be debated is how to eliminate those gaps. She considers it to be self-evident that race-based gaps are explained by historical events, stating that the gaps “were created in the distant past, but have indisputably been passed down to the present day through the generations.” She describes this “intergenerational transmission of inequality” as “well documented” and argues:
Given our history, the origin of persistent race-linked gaps should be no mystery. It has never been a deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s words, “stand on [their] own legs.” Rather, it was always simply what Justice Harlan recognized 140 years ago—the persistent and pernicious denial of “what had already been done in every State of the Union for the white race.”
In attributing “race-linked gaps” to legacies of historical oppression, Justice Jackson overlooks the work of economists such as Walter Williams that show that there are no causal links between histories of oppression and contemporary economic outcomes among different racial groups when examined from a comparative perspective. In Race and Economics, Williams argues: “To observe racial discrimination is one thing. Quite another is to ask whether it is an insurmountable barrier to socioeconomic advancement.” Williams is not arguing that discrimination does not exist but that it does not explain economic outcomes: “The issue is not whether or not racial discrimination exists but the extent to which it explains what we see today.”
Law as a Weapon of Plunder
The causes of socioeconomic outcomes are numerous. The question then arises whether critical race theorists are correct to argue that the purpose of the law is to eradicate gaps in health, wealth, and well-being between different racial groups. In adopting that view, critical race theories attempt to wield the law as what Frédéric Bastiat called a weapon of plunder—using the law to take from one group by force and give to another.
Critical race theories are inspired by the egalitarian belief in distributive justice, in which justice requires the absence of attainment gaps. Racial preferences such as affirmative action, which are intended to close these gaps, are therefore deemed to be compatible with the Constitution. Thus, in her dissent, Justice Jackson argues: “Justice Sotomayor has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education.”
Her reasoning is that promoting racial diversity through racial preferences promotes equality of opportunity and offers what she terms “universal benefits” to society because in her view addressing inequality will be “to the benefit of us all.” The Constitution would surely not prohibit such worthy social goals, reasons Justice Jackson.
Justice Jackson’s reasoning illustrates how the law has been harnessed by egalitarians in their great quest for equality. They treat race-based gaps as incontrovertible evidence of illegal discrimination within the meaning of the Civil Rights Act. They regard racial preferences for black people as a tool with which to fight against discrimination in a judicial application of Ibram X. Kendi’s childish slogan: “The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination.”
This reasoning is not confined to affirmative action cases but also extends to other legal disputes, including access to justice and the right to a fair trial. For example, the Washington State supreme court has ruled that describing black witnesses as “confrontational” and “combative” is “language that called on racist tropes” or language with “racial overtones” and amounts to evidence of “implicit, institutional, and unconscious biases” against black litigants. The respective races of the parties are treated as the most important set of facts in safeguarding the integrity of a trial. The court therefore described the respective races of all the parties in evaluating whether the trial was tainted by “unconscious bias”:
Janelle Henderson, a Black woman, and Alicia Thompson, a white woman, were involved in a motor vehicle collision. . . . Henderson’s lead trial counsel was a Black woman; Thompson’s was a white woman. The judge was a white woman, and there were no Black jurors. The only Black people in the courtroom were Henderson, her attorney, and her lay witnesses.
Moreover, if black litigants allege that they were subjected to unconscious bias by white litigants, then the white litigants must prove their innocence. Where it is sought to set aside a decision on grounds that the trial was tainted by bias, “the party seeking to preserve the verdict bears the burden to prove that race was not a factor.” This means that if it is alleged that racial bias influenced a court, that is presumed to be the case unless it is proved otherwise:
A trial court must hold a hearing on a new trial motion when the proponent makes a prima facie showing that this objective observer could view race as a factor in the verdict, regardless of whether intentional misconduct has been shown or the court believes there is another explanation. At that hearing, the party seeking to preserve the verdict bears the burden to prove that race was not a factor. If that burden is not met, the court must conclude that substantial justice has not been done. . .
It is always difficult to prove a negative, so it is difficult to see how one would prove that race was not a factor in uttering plain words such as “confrontational” or “combative.” Shifting the burden of proof in this way goes against the presumption of innocence, a fundamental tenet of the rule of law. The court justifies this approach by linking the pursuit of justice to the ultimate goal of eradicating racism: “This court has stated, unequivocally, that we owe a duty to increase access to justice, reduce and eradicate racism and prejudice, and continue to develop our legal system into one that serves the ends of justice.”
In Canada, courts have gone even further in treating race as a component of justice. A human rights tribunal has ruled that white people cannot claim the protection of antidiscrimination law: “An allegation of racial discrimination or discrimination on the grounds of colour is not one that can be or has been successfully claimed by persons who are white and non-racialized.”
Justice and Equality before the Law
Transforming the law into a weapon of redistributive plunder flies in the face of ordinary principles of fair treatment, thereby posing a threat to the rule of law. Bastiat warns that when the law no longer reflects basic principles of justice and morality, citizens lose respect for the law:
No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law—two evils of equal magnitude, between which it would be difficult to choose.
For law and morality to be in harmony, the law must uphold principles of formal equality in which all have equal rights regardless of race. It is neither ethically nor morally justifiable to take from one racial group to give to another racial group in a bid to equalize the fortunes of all races.
Affirmative action is a cruel farce, in the words of Clarence Thomas, as it implies “that blacks could never catch up with whites,” a view on which racists and antiracists stand united in full agreement with each other. More importantly, all racial preferences regardless of their motives are unjust. A theory of justice must treat like cases alike and distinguish between cases that are not alike. As Antony Flew argues, the concept of justice incorporates notions of desert and entitlement, so that in a true sense, people get what they deserve or are entitled to get what they deserve. Flew argues:
Justice is an essentially backward-looking notion, concerned with people getting and being able to keep their several and presumably often different deserts and entitlements—deserts and entitlements we have antecedently acquired by being what we are and have been, and by doing or refraining from doing what we either have done or have refrained from doing.
In Egalitarianism as a Revolt against Nature, Murray Rothbard poses the crucial question: “Should equality be granted its current status as an unquestioned ethical ideal?” He points out that egalitarian ideals attempt to ignore reality, including “the ineluctable facts of human biology; in particular, the fact that each individual is a unique person, in many ways different from all others.” Human nature being what it is, there is no reason to expect any group of individuals to have equal outcomes to any other group. The egalitarian premise itself—the notion that differences between groups call for an explanation and can be corrected by judicial fiat—is wrong. As Rothbard explains:
This means, of course, that equality of all men—the egalitarian ideal—can only be achieved if all men are precisely uniform, precisely identical with respect to all of their attributes. The egalitarian world would necessarily be a world of horror fiction—a world of faceless and identical creatures, devoid of all individuality, variety, or special creativity.
Indeed, it is precisely in horror fiction where the logical implications of an egalitarian world have been fully drawn.
By interpreting the law as a tool to eliminate race-based gaps, the judicial application of critical race theories would turn that world of horror fiction into reality.
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