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Today’s Missouri Compromise Is Bad News

Are our laws producing “identity politics” and the divisions it fosters?

A scientist, or perhaps it was an engineer, once asked the political philosopher Harry Jaffa for a general scientific rule about politics. After reflecting upon the bizarre request, Jaffa came up with the following:

S = 2P, where “S” = solution and “P” = problem. Politics is tragic; there are no final solutions.

To end the evils of Jim Crow laws—and the prejudices upon which they were built, and which they fostered—the U.S. government did more than demand the end of all discrimination. It did not simply declare Justice Harlan had been correct in Plessy v. Ferguson (1896), and proclaim that all American laws and all government-backed institutions must be color blind.

Many, not unreasonably, concluded that that was insufficient. After centuries of oppression of  African Americans, roughly 12 percent of the U.S. population at the time, was it fair just to say, “Okay no more biased laws, the government will no longer back discrimination based upon race”?

Would that truly remedy the situation? Or were “affirmative actions” necessary?

Our new civil rights regime did not prohibit all discrimination. One can still, for example, choose not to hire a Trump supporter or a Clinton supporter. Why? Political affiliation is not a “protected class.” The Equal Employment Opportunity Commission explains:

The EEOC enforces laws that prohibit discrimination based on race, color, religion, sex, national origin, disability, or age in hiring, promoting, firing, setting wages, testing, training, apprenticeship, and all other terms and conditions of employment. Race, color, sex, creed, and age are now protected classes.

“Protected classes” reflect an exception to the general liberty of association. One can choose whom to hire and fire, whom to work with in general, but may not make such judgments with regard to “protected classes.” These have grown in number since 1964, and now include groups based upon sexual identity or gender. Some of these new bureaucrats have taken to adding even more—on their own account, without waiting for legislatures do it.

Thus the rise of what we might call the “intersectional” Left, which draws all these protected classes together under one rubric. After the fashion of the Marxist distinction between the proletariat and the capitalists, the Intersectional Left has on the one hand straight, white men, and on the other hand, everyone else. Even so, there seems at times to be some hierarchy among the rest. Recent comments deriding Taylor Swift for being a white, heterosexual female, and therefore part of the oppressor class, come to mind. Asian Americans seem to be less “protected,” at least in college admissions, than other protected classes.

Where do these ideas come from, and why have they gained so much purchase in American life? Might it be that the idea of “protected classes,” and their proliferation in practice, encourages people to think of themselves in categories instead of as individuals?

That it is in the nature of law to influence the direction of political culture is hardly a new thought. Thomas Jefferson expressed it quite clearly in his reaction to the Missouri Compromise:

A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper.

To resolve the Missouri controversy, Congress had decided that as the United States expanded westward, new states would be slave or free states depending upon where they were located. All future states south of the southern border of Missouri would be slave states; all future states north of that line would be free states. Jefferson saw the likely result for American political culture: having drawn “a geographical line, coinciding with a market principle,” the government had created the foundation upon which two nations, not one, would be built.

Human beings are tribal. And few human beings can stomach their tribe’s being considered in the wrong forever. Hence it was inevitable, once the United States drew the compromise line explicitly separating slavery from freedom, that America would be divided into two teams. The Missouri Compromise had staved off the crisis for a time (for a couple of decades, in fact) but it caused serious problems of its own.

It is no surprise that 17 years after the Missouri Compromise was struck, John C. Calhoun gave his infamous speech asserting that “Slavery Is a Positive Good.” The line having been drawn, it was only a matter of time before a major Southern leader embraced slavery and defended it forthrightly, in contrast to leaders like Jefferson, George Washington, James Madison, and the other major Southern Founders, who recognized that slavery was a wrong and wrestled with finding a way to end it by consent of the people.

A similar process seems to be at work today with identity politics. We did not simply end discrimination on the basis of race. To remedy past injustices, we created “protected classes,” and this seems to have had cascading effects on our political culture. To enforce the law, the government routinely asks citizens to classify themselves by race or other signifiers of identity; this is done so the government can tell whether or not they are part of a protected class. And, to comply with the law, large institutions—schools, corporations, the military—hire lawyers to ensure that they are complying with the law. If they fail to do so adequately, they are in danger of being sued.

Many universities, school districts, and large corporations hire flocks of diversity professionals to ensure institutional adherence. In our offices we must regularly count who is from which group, to ensure our policies are not having a “disparate impact.” Such concerns ensure we constantly pay attention to race and other protected categories. This compliance bureaucracy, which seems to get bigger each year, is connected with the larger effort to transform American political life on behalf of what some members of the Democratic Party call “the coalition of the ascendant”—a coalition of members of the protected classes.

We seem to be creating the cultural version of the Missouri Compromise line. No one, and no group, wishes to think of itself as the bad guy in perpetuity. Given that reality, if identity politics becomes the heart of American politics, it is only a matter of time until “whites” begin to see themselves as a group deserving special protection. (And “whites” now includes ethnic nationals who used to be excluded from Anglo-Saxon nationalism.) If our government remains democratic, these new entrants into identity politics are likely to get a good deal of what they want. Some of President Trump’s support, from what is often called the “Alt Right,” seems to fit exactly this description.

And thus the tragic irony: The laws we passed to fight discrimination, however necessary at the time, created new problems that, at this point, threaten to undermine the progress we have made in combatting discrimination. This suggests that the way forward, the way to attain true progress, would now be to take the path away from identity politics. And to do that, we have to rethink the practice of protected classes. Kept too long, they’ve create an American identity that is tribal and balkanized, rather than fostering a common American community.

After all, the very idea of a “protected class” is itself impossible to reconcile with the rule of law. Our judicial oaths reflect the spirit of the rule of law quite well:

I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.

In the long term, we can have either equal justice under law, or we can have protected classes. One of them will inevitably push out the other.

Reader Discussion

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on August 29, 2017 at 09:33:43 am

I sure hope you have tenure.

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Diggs
on August 29, 2017 at 14:30:22 pm

Ditto on the tenure problem. The gods of political correctness will come looking for your academic scalp but the southern poverty law center or other left wing hate groups may take it out on this academic first.

Despite this obvious risk, Professor Samuelson provides excellent commentary that deserves the widest possible audience.

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westie
on August 29, 2017 at 17:43:12 pm

Might it be that the idea of “protected classes,” and their proliferation in practice, encourages people to think of themselves in categories instead of as individuals?

Pop quiz: Who want to guess whether Richard Samuelson is a member of a protected class?

In other words, if Samuelson had spent her entire life as a black, Muslim, female Ugandan immigrant in a wheelchair, do you imagine she’d be confused about whether the legal concept of “protected class” is what caused the world to see her as a member of a category rather than as an individual? ‘Cuz we all know that prior to 1964, no one ever discriminated on the basis of race, religion, sex, national origin….

Human beings are tribal.

Nonsense—we’re all individuals, distinct from any group or category! Didn’t you read the prior quote?

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nobody.really
on August 29, 2017 at 17:46:09 pm

“Protected classes” reflect an exception to the general liberty of association.

Yes, it does. This is one of those classic liberty/equality trade-offs.

The Missouri Compromise had staved off the crisis for a time (for a couple of decades, in fact) but it caused serious problems of its own.

This statement is oddly like the statement about protected classes and the tendency to see categories. What serious problems did the Missouri Compromise cause that did not predate the Missouri Compromise?

It is no surprise that 17 years after the Missouri Compromise was struck, John C. Calhoun gave his infamous speech asserting that “Slavery Is a Positive Good.” The line having been drawn, it was only a matter of time before a major Southern leader embraced slavery and defended it forthrightly, in contrast to leaders like Jefferson, George Washington, James Madison, and the other major Southern Founders, who recognized that slavery was a wrong and wrestled with finding a way to end it by consent of the people.

Yes, most slavery apologists seemed more chagrinned than Calhoun was about their peculiar institution. But for what it’s worth, Irving H. Bartlett reported in John C. Calhoun: A Biography that Calhoun’s attitudes about slavery had been handed down to him by his father. That suggests that at least some people held Calhoun’s views before the Missouri Compromise.

In any event—so what? Southerners had a financial and cultural incentives to keep slavery, regardless of their other rationales. Calhoun added rhetoric, but the policies and politics were well-entrenched beforehand. Why else would the northern states have felt the need to compromise with the southern ones? I can only speculate at Prof. Samuelson’s answer: “Well, since the law pre-dated Calhoun’s speech, clearly the Southern states would have caved in an agreed to the abolition of slavery if the Northern states had asked nicely. But inexplicably...."

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nobody.really
on August 29, 2017 at 17:48:06 pm

We did not simply end discrimination on the basis of race. To remedy past injustices, we created “protected classes”….

Dude—how does “end discrimination on the basis of race” differ from designating race a protected class?

If you’re not a lawyer, you may not have thought about the practicalities of enforcing antidiscrimination laws. But here’s the quick version: It requires proving a negative—a famously hard thing to do.

You have to scrutinize people’s behavior to see if they appear to be discriminating based on a suspect category—that is, against people in a protected class; typically this is done via statistical analysis. Then you ask people to justify their choices. People offer justifications such as “I hired people based solely on bona fide occupational qualifications that just happen to correlate with suspect categories.” Finally, a tribunal rules on whether the proffered rationale seems credible.

That’s how it works.

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nobody.really
on August 29, 2017 at 17:50:25 pm

[T]o comply with the law, large institutions—schools, corporations, the military—hire lawyers to ensure that they are complying with the law. If they fail to do so adequately, they are in danger of being sued.

Yup. And that would make anti-discrimination laws different from other laws … how?

Many universities, school districts, and large corporations hire flocks of diversity professionals to ensure institutional adherence. In our offices we must regularly count who is from which group, to ensure our policies are not having a “disparate impact.” Such concerns ensure we constantly pay attention to race and other protected categories.

Why are you so defensive? If there’s no undue discrimination, then you can simply rely on your current, meritocratic, unbiased hiring/admissions policies.
Oh, do those policies result in a disproportionate share of white people getting benefits? Hmm. So how do you explain that?

Let’s look at meritocracy: If meritocracy is functioning property, successful candidates will correlate with merit, not with irrelevant criteria. But what if we discover that these candidates DO correlate with presumptively irrelevant criteria? Then we need to surrender one of our assumptions. (1) We can conclude that certain criteria ARE relevant—that is, that certain races, genders, sexual orientations, etc. are inherently superior to others. (2) Alternatively, we can conclude that there’s a flaw in the meritocracy that warrants correction.

So—which thesis does Samuelson embrace?

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nobody.really
on August 29, 2017 at 17:51:32 pm

This compliance bureaucracy, which seems to get bigger each year, is connected with the larger effort to transform American political life on behalf of what some members of the Democratic Party call “the coalition of the ascendant”—a coalition of members of the protected classes.

Likewise, the voting rights bureaucracy, which seems to get bigger each year, is connected with the larger effort to transform American political life on behalf of what some members of the Democratic Party call “the coalition of the ascendant”—a coalition of members of the protected classes. If we let non-white people vote at the same rates as whites, it may well change the outcome of elections.

And…?

In short, defending the rights of members of subordinated groups threatens people who have an interest in their privileged status. The Klan figured this out long ago. Intervarsity, a Christian student group, has begun objecting to the idea that they should have to abide by the same rules as other student groups. The Republican Party has been playing this game for a while. I don’t know where Samuelson has been.

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nobody.really
on August 29, 2017 at 17:54:16 pm

No one, and no group, wishes to think of itself as the bad guy in perpetuity.

This is a big issue in its own right—and perhaps this is the heart of Samuelson’s (and other people’s) critique of antidiscrimination laws. I sometimes fail to recall how traumatized conservatives are by accusations of racism.

In brief, solidarity has long been a tool when the weak confront the strong. This involves a lot of strong emotions—pride, anger, etc.—which tend to overwhelm both dispassionate discourse and calls for compassion/love. So it’s not surprising that, for historical reasons, civil rights were achieved by turning discriminators into villains. Much contemporary discourse talks about systemic discrimination, “racism without racists,” the idea that we are all members of a society that teaches certain unhelpful lessons, and that no one is personally responsible for that society. But no, those are not the messages that get coverage on TV.

Plus, if you’re the third person to step on my toe today, I’m likely to vent my frustration on you—not because you’re uniquely culpable, but simply because I’m in pain. That is, people in pain may be motivated to lash out, even if the lashing is not otherwise justified.

That said, the goal of antidiscrimination laws is to reduce the incidences of discrimination. Making people pay a price for discriminating may be the only practical way to do this. A friend has transitioned from male to female. I constantly screw up the pronouns—and have exhausted her patience. Knowing that she will express displeasure when I screw this up makes me uncomfortable and self-conscious—but it does cause me to use more care, which I hadn’t done before.

That’s a long way to say, I regret this dynamic, but I can't say that it was avoidable--and maybe our feelings aren’t really the point here.

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nobody.really
on August 29, 2017 at 17:55:11 pm

Given that reality, if identity politics becomes the heart of American politics, it is only a matter of time until “whites” begin to see themselves as a group deserving special protection.

Perhaps Samuelson is unacquainted with the Klan/Christian Identity Movement and the Nazis?
Ok, maybe I’m being too snarky; I sense Samuelson is coming to some important realizations about the nature of racial identity. Specifically, white is a racial identity, too.

If our government remains democratic, these new entrants into identity politics are likely to get a good deal of what they want.

Yup, our government is basically democratic. And yup, our government’s policies have been designed for the benefit of white people.

Now, to be sure, because white people are the overwhelming majority, white people aren’t always self-conscious of these dynamics. We see this when you hear the classic observation “Why are all the black people in the lunch room sitting together?” – yet not the corresponding “Why are all the WHITE PEOPLE sitting together?” Thus, white solidarity is often expressed not in terms of including whites, but excluding everyone else.

Consider the New Deal and labor unions: While presented as programs designed to promote the welfare of the “common man,” in practice this meant the common WHITE man. Minimum wage laws did not apply to agricultural and domestic laborers—sectors employing blacks. Mortgage support programs redlined black neighborhoods. Agricultural programs inexplicably excluded black farmers. Federal highways that would be routed around white neighborhoods and plowed through black neighborhoods. Many unions discriminated on the basis of race. Add to this restrictive covenants, segregated schools, segregated public accommodations, segregated transportation, segregated voting standards, segregated law enforcement standards (including the disparate treatment of crack and powder cocaine, and the current “medicalization” of white people with opioid addictions)….

In short, we have ALWAYS had race-conscious public policy. Anti-discrimination laws merely made them also conscious of races OTHER than the white race.

Some of President Trump’s support, from what is often called the “Alt Right” seems to fit exactly this description.

Exactly so. And consider the various commentary about Trump’s success with “the working class.” Hillary won the working class vote, by any definition you might actually name. But Trump won the WHITE working class vote. And when people bemoan the plight of the working class, it often becomes clear who they are talking about.

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nobody.really
on August 29, 2017 at 17:58:00 pm

[T]he very idea of a “protected class” is itself impossible to reconcile with the rule of law. Our judicial oaths reflect the spirit of the rule of law quite well:

“I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.”

Likewise, judges should not discriminate between the duty a parent owes a child and the duty a stranger owes a child. Or the duty a police officer owes a citizen and the duty a stranger owes a citizen. Or the rights of a landowner and the rights of a trespasser. Or the duty of a mandatory reporter and the duty of a random person. Or the duty to file a tax return imposed on someone with an income and the duty imposed on a person without an income. Or the right to have sex with a 27-yr-old and a 7-yr-old. Blind justice requires shutting your eyes to the facts that the law deems relevant, regardless of how much legal authority stacks up for the opposite proposition. This would be obvious, except that we’re legally precluded from observing the law.

Alternatively, perhaps “administering justice without respect to persons” means enforcing antidiscrimination laws against white discriminators and black discriminators, equally. Just a thought.

Let me make two concessions:

1. Yes, the designation of protected classes seems like an inelegant way to promote equal justice under law. It seems arbitrary to identify some criteria as subject to scrutiny while ignoring others.

2. Yes, designation of a formal protected class status will create a political constituency to defend the status.

If somebody has a practical alternative to our current system, I’d be delighted to hear it. For example, some people suggest replacing considerations of certain protected class categories with class-based considerations. It’s still a protected class, but arguably a better targeted class. I don’t think Sasha and Malia need help getting into college.

But simply saying “Rely on meritocracy! Humans have evolved beyond the desire to discriminate on arbitrary categories, honest! 'Cuz the really important thing is that I not have to feel bad....”--this has not proven to be a practical alternative.

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nobody.really
on August 30, 2017 at 18:36:55 pm

The solution to identity politics, group politics, and legalized discrimination is a Creed of Equality, written in the spirit of the Declaration of Independence. That Creed is here: http://speakeasyideas.com/creed-of-equality/

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Thomas Krannawitter
on August 31, 2017 at 00:14:12 am

Don't worry about the judicial oath; they're working on "reinterpreting" it, just like they reinterpreted the Constitution when it got in the way. See "Equal Right to the Poor" at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2901577. Read it and weep.

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Biff
on August 31, 2017 at 05:54:01 am

[…] just as the Confederates of yore, are driven by a form of identity politics that makes race the central feature around which their project revolves. However ironic it may be, there is something in common between […]

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Image of The Black Hole of Modern Conservative Rhetoric By Mike Sabo | RUTHFULLY YOURS
The Black Hole of Modern Conservative Rhetoric By Mike Sabo | RUTHFULLY YOURS
on August 31, 2017 at 14:51:32 pm

[…] Richard Samuelson, “Today’s Missouri Compromise Is Bad News“ […]

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Image of For Consideration: Persons Not Groups | Palamas Institute
For Consideration: Persons Not Groups | Palamas Institute
on August 31, 2017 at 19:27:32 pm

How do you explain the fact that more than 2/3 of the NFL's player's are black, even though they only make up around 12% of the general population? Or that the NBA is 3/4 black? Which of your two theses explain these phenomena?

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brad
on August 31, 2017 at 22:36:20 pm

The number of professional football and basketball players is a statistically insignificant share of the population, which limits the kinds of conclusions we could draw based on such a small sample.

That said, either of my explanations might be relevant to analyzing such a pattern.

1. I expect that genetics influences how well people can perform specific tasks, especially at the elite level. Michael Jordan is a man of world-class competitiveness, drive, concentration, dedication, etc., which enabled him to dominate the sport of basketball--and enabled him to flunk out of AAA baseball. Moral: Competitiveness, drive, concentration, dedication, etc., don't amount to squat if you don't also have the specific genetic make-up required for your sport. Contrary to what the coach told you, athletics ain't a morality play.

Thus, I expect that genetics plays a role in determining who succeeds at football and basketball. Perhaps these genetic features also correlate with the features we identify when talking about race.

(While it's not entirely obvious to me that this is true of the sports of football and basketball--given the complex combination of attributes that might contribute to success--it seems much more plausible to me regarding long-distance running. A narrow group of Kenyans seem to dominate that sport. This group is not representative of Kenyans at large, let alone representative of black people at large. But all of these Kenyans would qualify as "black" in American parlance.)

2. Alternatively, or in addition, black men may have found that they are excluded from a variety of avenues to success and acceptance. Thus, more black men then white men may find it their optimal strategy to pursue high-risk, high-reward careers such as professional athlete and entertainer.

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nobody.really

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