Derrick Bell, Barack Obama, and Liberalism

We are taught in our first American History or Civics classes that Brown v. Board of Education of Topeka, Kansas is a landmark case in protecting equality for all races. “Not so,” says Derrick Bell. “Instead, let’s go back to Plessy v. Ferguson.

It was recently revealed that the first tenured black professor at Harvard University had what appeared to be a more-than-chummy rapport with our current president, at least in his law school days. The revelation itself was, in my opinion, quite underwhelming. In fact, I immediately became defensive of the president, because I believe it is more than possible to hold great admiration for a professor while not agreeing with a single philosophy he utters. But given Barack Obama’s apparent patterns of association, I was curious.

It is not unreasonable to assume that Professor Bell taught Mr. Obama while they were at Harvard together (we’ll know if he releases his transcripts). Even if he didn’t teach the future president, Obama was apparently enamored enough of Bell’s status as a legal theorist to praise “the excellence of his scholarship, [which] has opened up new vistas and new horizons, and changed the standard for what legal writing is all about.”

So what was this scholarship? What are these “new vistas and horizons?” Many of the revelations about Professor Bell have been on his popular culture book Space Traders. While it is insightful into Bell’s controversial mind, and while some may argue it is literature, it is not scholarship. It is fiction. Instead, I want to look at Professor Bell’s scholarship.

But first, I want to disclaim that this is not an article about Obama, Bell, or their embrace. Instead it is an insight into a serious understanding of liberal premises and points of view. I think after studying Bell’s scholarship, I gained a new appreciation for the differences between a ‘liberal,’ and a ‘conservative.’

Derrick Bell’s “Brown v. Board of Education and the Interest-Convergence Dilemma,” is a valuable look into modern liberality, and he, unlike many other liberal advocates, followed his premises to their logical conclusion.

Derrick Bell

Bell’s first topic in this article is a speech given by Constitutional lawyer and scholar Professor Herbert Wechsler, which argues faults within the means – not the ends – of Brown v. Board. Wechsler has been identified as a liberal constitutionalist, but his quest for finding “neutral principles” in judicial review often led him to advocate against judicial activism and for judicial restraint. Such was the case in Wechsler’s opinion of Brown v. Board. The Court had exercised judicial activism by promoting an honorable end through questionable — or even non-existent — reasoning.

“Here was an attack that could not be dismissed as after-the-fact faultfinding by a conservative academician using his intellect to further a preference for keeping blacks in their ‘separate-but-equal’ place,” Bell wrote of Wechsler’s critique of Brown’s principles. Wechsler was very hesitant to declare that the judicial branch had any authority interpreting the motives of legislation – it could only interpret the legislation per se. Thus the segregation laws could not rightly be interpreted by a judiciary as deliberately malicious laws, making any argument of overt or covert discrimination  null, as long as the language was Constitutional. Instead, Wechsler argued, Brown was decided on associational rights:

“Given a situation where the state must practically choose between denying the association to those individuals who wish it, or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?”

Herbert Wechsler

It was inconsistent, said Wechsler, to positively force integration on these grounds because it infringed on the negative side of associational rights: the freedom to not associate.

Bell’s response to Wechsler is unconvincing. He uses the casually dismissive argument of Charles Black (who was also involved with the plaintiff in Brown) to refute Wechsler’s constitutional principles. Black, said Bell, “correctly viewed racial equality as the neutral principle which underlay the Brown opinion.” Black argued that “the equal protection clause of the fourteenth amendment should be read as saying that the Negro race, as such, is not to be significantly disadvantaged by the laws of the states,” and that “segregation is a massive intentional disadvantaging of the Negro race, as such, by state law,” and concluding that the equal protection clause “clearly bars racial segregation because segregation harms blacks and benefits whites.”

This argument does not follow. Not only does it ignore Wechsler’s insistence that the judiciary not divine the motives of legislation, he affirms the consequent by defining the antecedent. Hopefully, no one today will argue that segregation in the south did not disadvantage blacks. But his (and Bell’s) reasoning is tautological. Segregation is defined as harmful; therefore, segregation is harmful. In this case it was, but could it honestly be used as an argument of principle rather than an argument of point?

What if segregation was actually beneficial to all segregated classes? Could it then constitutionally be defined as a violation of equal protection, much less “massive intentional disadvantaging” of a certain demographic? This was Wechsler’s point that Bell did not grasp. The same argument is used by liberals today: “discrimination” or “intolerance” is by definition unjust; therefore, to discriminate or lack tolerance is to deny equality. But is it? Can it logically be said that all forms of discrimination are inherently unjust? Or is this another argument of point over principle? Is it unjust or harmful to segregate women from men in separate bathrooms? Is it a malicious disadvantage for minors to be segregated from bars or strip clubs? Is it unjust or harmful to discriminate by criteria of intelligence? Are coach passengers disadvantaged or disprivileged from those in first class?

Left: "Occupy Toilet" protestors; Right: Are children segregated?

Bell posited that “Whites may agree in the abstract that blacks are citizens and are entitled to constitutional protection against racial discrimination, but few are willing to recognize that racial segregation is much more than a series of quaint customs that can be remedied without altering the status of whites.” In other words, whites may only believe in diversity until it infringes upon their comfort. Bell applauds the argument that “when the directive of equality cannot be followed without displeasing the white, then something that can be called a ‘freedom’ of the white must be impaired.” That is to say, the security, liberty, and property of a certain group is absolutely expendable in the name of equality. This is liberal justice.

Professor Bell then extrapolates his reasoning into the contemporary scenario of affirmative action, “where identifiable whites must step aside for blacks they deem less qualified or less deserving. Whites simply cannot envision the personal responsibility and the potential sacrifice inherent in Professor Black’s conclusion that true equality for blacks will require the surrender of racism-granted privileges for whites” (emphasis mine). Equality, in the mind of Bell, is a zero-sum game because it is based on a “positivistic” approach that only recognizes current assets and situations; it is not a “normative” approach that recognizes potential assets or situations. The privileged must relinquish their advantage to the disadvantaged. As can be seen by Justice Sonia Sotomayor’s statements regarding affirmative action — that she never would have succeeded if not for affirmative action because (a) her test scores were not comparable to others, and (b) because cultural differences make the system inherently unfair — this theory in modern liberalism is by no means restricted to blacks, but can be applied to any minority or “oppressed” demographic.

But while Professor Bell agrees with points of Professor Black, and disagrees with the principles of Professor Wechsler, he still believes that Brown is inherently unjust. Not only Brown, but the entire system and structure, including the Constitution, is unjust toward true racial equality. He declares that under the current system, equality may only be achieved through “interest convergence, ” or, that “the interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.” Additionally, the Fourteenth Amendment, upon which Brown was decided, “will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle and upper class whites.”

If one substitutes alternate demographics for the respective ‘disadvantaged’ and ‘advantaged’ demographics, he can begin to see the mindset and the plights of modern liberalism.

The Fourteenth Amendment, according to Bell, can only benefit the disadvantaged so long as those benefits “secure, advance, or at least not harm societal interests deemed important by middle and upper class whites.” Justice for the unprivileged only occurs in America when it is convenient for the privileged.

This is a Marxian approach to history and historiography (and I do not necessarily mean that in the sense of Communism, although, as Bell later shows, this is a logical conclusion). It makes politics, power, and money the chief — or only — interests of actors, especially among the successful or powerful. Arguments of ideology are an excuse; they are not true motivators, and can readily be dismissed. This bias is evident in Bell’s refutation of the apparent advances in racial equality.

Bell offers that Brown “cannot be understood without some consideration of the decision’s value to whites, not simply those concerned about the immorality of racial inequality, but also those whites in policymaking positions able to see the economic and political advances at home and abroad that would follow abandonment of segregation.”

And what are these “economic and political advances” for whites?

The first reason he gives is that the decision gave the United States international “credibility” in the Cold War. Bell’s only evidence is a prediction in Time magazine, but it is possible this was true. The U.S. Justice Department filed an amicus curiae brief stating  “the existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills, and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.” But this only accounts for an amicus brief of the federal government’s interest, not the decision of the court in interpreting the Constitution. So, perhaps it wasn’t true.

Secondly, Brown was a concession for black soldiers fighting in World War II. Bell asserts that black veterans faced discrimination and violence upon their return, causing mass disillusionment with an American philosophy. Instead of embracing Americanism, blacks might convert to Communism. Bell praised Paul Robeson’s remarks before the Partisans of Peace in 1949, where the black actor declared, “It is unthinkable…that American Negroes would go to war on behalf of those who have oppressed us for generations…against [the Soviet Union] which in one generation has raised our people to the full human dignity of mankind.” Communism was a better distributor of justice than liberty.

Finally, the Supreme Court decided Brown because whites realized that industrial development and economic profit in the south was inhibited by their struggle to retain segregation, so they caved.

None of these reasons are philosophical. They are material. They are speculative arguments of point, not of principle. And in each case the distributors of justice are seen as unjust because their true motive is not true equality, it is always selfish convenience. If this were not enough, he dismisses the ideologies of the great abolitionists as insufficient, pretending that “with abolition, the number who would act on morality alone was insufficient to bring about the desired racial reform.” Justice is a convenience to the elite in our Constitution; it is not inherent, and therefore the Constitution is itself unjust. Bell despised the idea of local autonomy, and that under the Constitution, the desires of one community may impair the equality of another.

It should be noted here that Professor Bell does not view equality as the protection to equally pursue an outcome. He believes equality is the outcome, and that all levels of government must positively enforce that outcome, from the federal to the state, in the legislatures, the executives, and the courts. Equality is not a protected venture; it is a directed indenture.

Professor Bell concludes with a remedy to the problems he sees as inherent in Brown, though it can be frighteningly applied more generally. His goal is a “concerted effort towards achieving racial equality.” But he lamented the “white flight” that took place from cities to the suburbs to seek a more accommodating landscape, and that the Supreme Court was unable to force the redrawing of school districts to include suburban areas for the sole purpose of racial quotas. Since the Court could not force people where to live, his first solution is the creation of federal- and state-mandated “model all-black schools,” through positive legislation, strict executive enforcement, and activist judicial review.

He even admits that “Desegregation remedies that do not integrate may seem a step backward toward the Plessy ‘separate but equal era.’ Some black educators, however, see major educational benefits in schools where black children, parents, and teachers can utilize the real cultural strengths of the black community to overcome the many barriers to educational achievement.” He complains, quoting Laurence Tribe, that “[J]udicial rejection of the ‘separate but equal’ talisman seems to have been accompanied by a potentially troublesome lack of sympathy for racial separateness as a possible expression of group solidarity.”

Perhaps one can easily see the hypocrisy in this argument. But in a Marxian perspective of social warfare, it is easier to comprehend. Why can’t whites have racial separateness to express group solidarity? Why can’t men as a group advocate “men’s rights” in solidarity? Why can’t Christians exclude federal mandates to express group solidarity? Why can’t straight people express group solidarity by defining state-sanctioned marriage? Why can’t a corporation protect its property to express corporate solidarity?

It is because they have already enjoyed privileges as a community while others have not, whether because they are more numerous or more powerful. Furthermore, because they are by definition the perpetrators of the social or economic injustices, acknowledging they have the same claims to equality is in itself unjust, because they will only use that equality to further inequality. The solution can only be to segregate — geographically or politically — the majority from the minority, even if it limits the majority’s “purported freedoms.” This is perhaps why Justice Sotomayor really does believe that a “wise Latina” is preferable over a white male on the court to promote redistributive racial equality.

In light of Professor Bell’s article, I have a new understanding of Barack Obama’s statement in 2001:

“If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be o.k.

But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. [It] says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court focused, I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that…. I’m not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way.”

With a liberal mindset — with a Marxian historiography that dismisses ideology as a viable primary motivator, and superordinates the equal distribution of property, power, and happiness, to the equal protection of those ventures – it is easier to see why they believe Capitalism cannot be altruistic, why the power structure is inherently unjust, why “the 1%” must be regulated unequally to “the 99%,” why any conservative ideological approach to Constitutional racial equality is potentially — if not necessarily — racist, and why true justice cannot be found in a Constitutional court of judicial restraint or constraint. To the liberal, justice is equality, even if it is forced at the expense of another individual or group’s life, liberty, or property. Justice is not the equal protection of an individual or group’s right to life, liberty, and property. It is the equal deliverance of rights.

I fear that well-meaning egalitarians will realize the fallacy of Bell’s (and Obama’s) argument too late. Aristotle predicted it over two millennia ago, saying “When inferior, people enter on strife in order that  they may become equal, and when equal, that they may become greater.” Thus the cycle will only perpetuate. To achieve true equal outcome — a true equality of service, rather than an equality of opportunity to pursue service — there must be at least one to determine how much is equal, who would be, by definition, the superior of all.

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