By Kevin D. Williamson
Thursday, August 03, 2017
It is possible to take seriously the idea of “social
justice”?
With the advent of a renewed federal interest in the use
of racial criteria in college admissions — the Department of Justice under Jeff
Sessions intends to launch new investigations into the question — we arrive, or
re-arrive, at what is now a very familiar debate. Those who argue that the
policies of our public institutions should be racially neutral have the better
end of the argument, and always have. But conservatives should spare a moment
to give some consideration to the merits — which are real but not dispositive —
of the other side of the argument.
Conservatives are oriented toward procedural justice, as are many left-leaning civil libertarians, at
least so far as formal legal proceedings and law enforcement are concerned.
Procedural justice demands that there be a neutral set of rules, generally
applied, under which persons are (at least in theory; the world is an imperfect
place) treated equally irrespective of considerations such as race, religion, or
political connections. We are willing to accept occasional unjust outcomes in
the service of maintaining the integrity of the procedure, the justice of which
is linked to its universal application. To invoke the relevant cliché, we’d
prefer to see 99 guilty men go free than see one innocent man convicted, and
hence we maintain procedural protections that bias the system in that
direction. There is a bias toward acquittal, but that bias works in favor of
every defendant. We are much less likely to accept specific unjust outcomes
that satisfy procedural demands when the specific injustice runs in the
opposite direction, i.e., when an innocent person is penalized.
For the procedurally minded, the question of affirmative
action — of well-intentioned racial discrimination — is fairly simple: We
prohibit racial discrimination. We prohibit racial discrimination against
blacks. We prohibit racial discrimination against Asians. We prohibit racial
discrimination against whites. And the idea that we would prohibit racial
discrimination against some groups while practicing it against others is, in
this view, self-evidently unjust, because it violates the principle that rules
ought to be applied in the same way to everybody, that the law should be “no
respecter of persons.”
This is not only a question of legal procedure. The
libertarian philosopher Robert Nozick argued that the distribution of wealth in
any given society at any given point could be understood as just if it could be
shown that the relevant property was justly acquired and justly transferred,
i.e. that there was no evidence of misappropriation through theft, political
repression, etc. Something like this conception of justice in wealth
distribution informs the conservative view of the debate over reparations for
black Americans, which some progressives desire as an instrument of justice in
atonement for slavery and the oppression of black Americans that survived it.
The libertarian might be persuaded if a certain 21st century American could
show legal title to a piece of property or financial interest belonging to an
ancestor of his who was unjustly dispossessed of it. But the reality of black
life under slavery and under Jim Crow means that such cases are so rare as to
be immaterial to the broader question at hand.
The conservative looks at this and says: “You can’t show
me a way in which a specific 21st century American was deprived of property by
another 21st century American, or that this happened between their ancestors in
such a way as to establish specific
culpability. Furthermore, I can show
you beyond a doubt that Mr. Kowalski, whose family emigrated here from Poland
in 1972, never owned a slave and never had a relative who owned a slave. Why
should he be punished for the sins of other people? Why should Mr. O’Leary,
whose Irish ancestors were treated shabbily, or Mr. Peshlakai, whose Navajo
ancestors were treated abominably? And why should anybody pay reparations to
the native-born children of Caribbean millionaires who moved here in 1992?”
At this point, the social-justice progressive will start
to say something that sounds to the conservative ear a lot like “argle-bargle
white supremacy privilege.” The argument breaks down.
But doesn’t the proceduralist argument break down, too?
For one thing, the lack of hard evidence that somebody violated the rules
doesn’t mean that the rules were followed. For another, the rules were horrifying — they permitted chattel
slavery and much else that was cruel and barbaric. It is true enough that the
19th century slave economy was conducted in accordance with the letter of the
law. But the Nuremberg Laws were laws, too. The crimes of the Soviet Union were
perpetrated under the color of law. So are those of sharia-compliant Islamic
supremacists around the world. Relying on procedure for justice assumes a
certain general level of decency that had been entirely alien to black
Americans until fairly recently in our national history. Some would argue
(wrongly, I think, but not absurdly so) that it is alien still.
There is some relief to be found in specificity. Even if
we were to take to heart arguments based on “social justice,” the use of racial
preferences in college admissions could probably be safely set aside as an
instrument of such justice, because it does very little for people who are in
fact marginalized. The people who are genuinely suffering in our society are
not, for the most part, right on the cusp of being accepted to a top-tier
undergraduate program or professional school. The elite obsession with admissions
policies at what are, after all, mostly elite institutions is
omphaloskepsis-as-policy: The genuinely downtrodden are not applying to study
at Haverford College. Upper West Side progressives care a great deal about the
admissions rules at Columbia but have relatively little to say about the
dropout rate for black men in New York City’s public schools. If “social
justice” is to be found in some part in institutional reform, then the
institutions that ought to be on our radar are public schools, not Ivy League
universities.
We should insist on procedural justice — which is to say,
we should insist on the rule of law and on the equality of all people before
it. But we ought not allow that insistence to be a bunker into which we retreat
when we do not wish to think too hard about the real social and economic
distance between black Americans and white Americans. The fact that we passed a
new set of rules in 1964 is not in itself an accounting for what came before or
an answer to what has happened since.
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