Unleashing the Furies

By Ramesh Ponnuru

Thursday, July 23, 2020

 

The legal commentator Josh Blackman called it the Supreme Court’s “blue June.” The Court ruled that discrimination against sexual minorities was illegal, nullified restrictions on abortion in Louisiana, and held that some of President Trump’s changes to immigration enforcement had been improperly implemented. Responses from conservatives, many of whom had previously been exulting over the supposed transformation of the federal courts by President Donald Trump and Senate majority leader Mitch McConnell, ranged from disappointment to apoplexy.

 

Conservatives were more pleased by the decisions at the term’s end. The Court said that state scholarship programs for children at private schools had to include religious schools, and okayed the Trump administration’s exemptions for employers with religious or moral objections to covering contraception or abortifacients. But that second ruling was narrow: The Court did not decide whether statutory protections for religious freedom require the exemptions, and so a Biden administration could be free to withdraw them. All in all, conservatives were left with the sense that decades of political and legal work had yielded very poor returns.

 

Much of their unhappiness has been focused on Chief Justice John Roberts, who was in the majority in each of these decisions. Roberts has been the subject of increasing Republican complaints since 2012, when he sided with the Democratic appointees on the Court to sustain Obamacare. In 2015, when conservatives advanced a lawsuit alleging that the Obama administration had extended health-care subsidies beyond the letter of the Obamacare law, Roberts voted against them again. And while he has voted with the Court’s conservatives to find that the Second Amendment protects an individual right to own guns and that this right applies against state governments, conservatives blame him for the Court’s refusal to say just what regulations are forbidden. When Justice Anthony Kennedy retired in 2018 and was replaced by Brett Kavanaugh, Roberts became the Republican-appointed justice who least enthuses conservatives.

 

Observing the conservative criticism, liberals have sometimes responded that it demonstrates the insincerity of the Right’s commitment to originalism, textualism, or other jurisprudential theories. See, they say: Conservatives are just as “results-oriented” when it comes to judging as they have long accused liberals of being. But this charge often rests on an equivocation. Judicial decision-making should not be oriented toward the advancement of certain policies on the basis of their desirability. It should seek to achieve the correct legal result. The chief justice’s critics think that in too many crucial cases, his opinions have been both mistaken on the law and unfortunate in their effects.

 

When conservatives have soured on previous Republican-appointed justices, they have tended to explain the justices’ apostasies by reference to the sociology of the legal profession, their desire for elite approbation, and their weaknesses of character. But there is widespread agreement, spanning the political spectrum, that something else is moving Roberts: that he is trying to protect the Court as an institution.

 

The Court requires public respect if it is to be effective in discharging its duties, for the same reason Alexander Hamilton wrote that it is the branch of the federal government that poses the least danger to the others: It neither holds the sword nor commands the purse. “It may truly be said to have neither force nor will, but merely judgment.” If the Court comes to be seen as a partisan political actor, Roberts worries, its judgments will lose their legitimacy. Or, at least, many observers have inferred that Roberts has this worry.

 

That worry has an objective basis. The perception that the Court is turning into an activist conservative power center in our government has been fueling a political backlash on the left. Progressives are increasingly interested in expanding the size of the Supreme Court if they win control of the White House and Congress. New Democratic appointees would make up for the “stolen seat” that they believe Merrick Garland should have taken in 2016. A new progressive majority could then overturn such hated conservative precedents as Citizens United, the 2010 decision that protected corporate political advocacy under the First Amendment.

 

Against that backdrop, the ruling in June Medical may have seemed prudent: Allowing Louisiana’s new restrictions on abortion would have angered progressives more, increasing the chance that they will act aggressively next year in a way that would reverse any gains on that front, undo other conservative precedents, and destabilize and weaken the court. “A key source of national unity and stability,” as Roberts has described the federal courts, would be diminished.

 

Hence also, perhaps, Roberts’s apparent preference for narrow rulings that command large majorities, or even unanimity, over more sweeping 5–4 rulings. While the narrow rulings may leave the law less clear, they also reinforce the public impression that the Court is interpreting the law impartially rather than imposing the partisan views of justices. It is very nearly the opposite approach of that taken by the late justice Antonin Scalia, many of whose most memorable dissents were written to persuade readers that his colleagues were not truly engaged in interpretation at all.

 

Case Western Reserve University law professor Jonathan Adler has advanced a related explanation of Roberts. He argues that an impulse to avoid disruption shapes and tempers his judicial conservatism. It’s a theory that might help to account for why Roberts allowed President Obama’s effective amnesty for many illegal immigrants to continue and, in earlier years, left his health programs in place: The alternatives would have involved dramatic changes.

 

And while the Court was bound to draw criticism however it decided those cases, criticism based on a change to the status quo would probably be more intense than criticism based on leaving it in place. During his confirmation hearings, Roberts famously promised to call “balls and strikes.” Adler points out that he also said that nobody goes to the ballpark to see the umpire. This umpire, it is fair to infer, does not want too much attention.

 

But of course an aversion to criticism is not supposed to exert an independent influence on the umpire’s calls. A strike is a strike even if he will get booed for saying so, and even if the whole game comes down to that call. In 1985, Justice William Brennan defended the Court’s liberals by saying that conservative advocacy of “judicial restraint” was “arrogance cloaked as humility.” A judicial minimalism that makes the Court’s reputation central to its deliberations is vulnerable to the same charge.

 

On one occasion, before Roberts’s tenure, the Court provided a self-conscious, extensive, and vigorous defense of the treatment of its own institutional interests as a criterion for decision. Planned Parenthood v. Casey, in 1992, also concerned a state’s legislated restrictions on abortion. The Court was widely expected to overturn Roe v. Wade. Instead it modified it while reaffirming its “essential” holding that abortion is a constitutional right. Justices have, however, cited Casey’s discussion of precedent outside the context of abortion; it is a precedent about precedent.

 

The Casey Court did not base the case for reaffirmation on the soundness of Roe as a constitutional interpretation. That interpretation is notoriously difficult to defend, as Casey’s lengthy treatment of the costs of overruling it may be taken to concede. Instead Casey’s central and most distinctive argument is that “to overrule under fire . . . would subvert the Court’s legitimacy.” It would betray all those who face “criticism or ostracism” because of their support of Roe, and even more all those who, because of their own misgivings about abortion, “struggle to accept” Roe and are “tested by following” it.

 

Overruling Roe, it continued, would not just break faith with the public. It would corrode the nation’s character. The country’s support for the rule of law, the justices explained, cannot be separated from its belief in a Court that must “speak before all others for their constitutional ideals.” The country would no longer be able to recognize itself in the mirror if the Court reversed itself.

 

To describe Casey’s argument on this point is to run the risk of being accused of caricature. The justices who made up the plurality were saying that the more the Court draws criticism, even reasonable criticism, the less it can yield; and that a refusal to yield to such criticism is a way to build a reputation for “institutional integrity.” We must keep faith with our biggest errors. The desperation of the prose suggests a certain lack of confidence in the content. But the argument is not gratuitous, and the problem of legitimacy that troubled the Court is not imaginary.

 

When the Supreme Court sets aside a law that contradicts the Constitution, its authority to do so is clear enough. If the Court must choose between the permanent will of the people, as expressed in the higher law, and the transient will of their elected representatives, as expressed in a mere statute, there is no true choice at all. That’s the basic argument Chief Justice John Marshall made in Marbury v. Madison (1803); and while it has often been described as a cunning political maneuver on his part, it is hard to gainsay. On what basis, though, can the justices deprive the people of duly enacted laws when those laws cannot plausibly be said to conflict with the Constitution? That’s the question that moved the Casey Court to talk about broken faith and lost national identity.

 

It’s the same question raised, but hardly answered, by Chief Justice Roberts’s controlling opinion in June Medical this summer. Roberts based his decision on a precedent (Whole Woman’s Health v. Hellerstedt) from 2016 that he explicitly said was mistaken. The people of Louisiana are to be denied a law that their elected representatives (in both parties) consider just and right, that is consistent with the text and original understanding of the Constitution — and that a majority of the Supreme Court recognizes to be consistent with the Constitution. Rather than resort to the grandiloquence of Casey, he justifies this denial in the name of legal stability. This stated rationale fits the legal materials poorly: His opinion in June Medical departs from the reasoning of Whole Woman’s Health, which he acknowledged at the time had misapplied Casey, which itself reworked Roe. If the foundations of your house were so stable, you’d seek better lodging.

 

If the actual rationale was the pursuit of the Court’s institutional interests, as is widely speculated, perhaps it is best that it was left unstated. But it should not be surprising that the attempt to burnish the Court’s reputation should involve its accretion of power — or that a strong doctrine of precedent in constitutional cases should lead to the Court’s exercising power in ways ever more detached from the source of that power.

 

It is also a fair question whether an effort to safeguard the Court’s prestige can succeed even on its own terms. The perception that Roberts is (and other justices may be) keenly attuned to changes in the Court’s image has exposed the Court to more outside pressure, not less. It has meant that the Roberts Court is viewed as an institution that engages in political calculation, albeit of a somewhat refined sort, rather than one that strictly follows the law.

 

Because we cannot know what might have been, it is impossible to say whether the Supreme Court would enjoy more or less respect now, whether it would be more or less the focus of partisan attention, if it had taken a different path in Casey. That we cannot know suggests that adding such considerations to a judicial task that is already difficult enough is an act of hubris.

The Habsburg Moment

By Kevin D. Williamson

Sunday, July 26, 2020

 

T he European Union is — maybe — on the verge of its much-discussed “Hamilton moment.”

 

A sweeping Franco-German proposal for a $2 trillion EU coronavirus-recovery program would see the European Union itself raising funds in the credit markets for the first time, essentially making the European Union a new issuer of sovereign debt. Such mutual debt had long been opposed by Germany and other wealthy EU members that dread the possibility of the federation being made into a transfer union in which the affluent north pays the taxes and the frequently delinquent south deposits the checks.

 

But with Germany beginning its presidency of the EU Council, Angela Merkel has joined with France’s Emmanuel Macron to insist that these extraordinary times justify measures that once would have been politically impossible. The historical parallel to the aftermath of the American Revolution, when Alexander Hamilton engineered the first joint debt of the U.S. government and brought the loose confederation of sovereign states into a more robust national union, is very much on the minds of those who dream of a “United States of Europe” — and also those who hate the notion of such a thing. The proposal was not met with unqualified jubilation in the European Parliament, a reminder that the EU leadership and the peoples of the member nations are not always on exactly the same page.

 

The new European debt, and the EU coronavirus-recovery effort generally, will provide an interesting point of comparison with the United States. Will sovereign-debt investors treat debt coming out of Brussels as being as practically risk-free as U.S. Treasury debt? (One might call U.S. debt the “gold standard,” if one wanted to get a lot of angry email from libertarian goldbugs.) What happens to international investment if the European Union enjoys a quick and robust recovery while the United States lags, either in economic or public-health terms or both, as it may? Europe’s prestige vis-à-vis the United States has waxed and waned (the Wall Street Journal has measured it by comparing references to dollars with references to euros in hip-hop songs), and subtle shifts in status and credibility can have important long-term consequences. The future is coming, and it has some choice about where it sets up shop.

 

If we are indeed seeing the European Union enter a new stage in its development, what might that mean for the United States?

 

Washington has long been focused on China as the United States’ leading international competitor, and that has been especially true under President Donald Trump. (Indeed, President Trump’s failure to deliver on his promises to bring Beijing to heel may prove as heavy a millstone on his reelection as are his administration’s similar failure to deliver on immigration and its coronavirus malpractice.) There is good reason for that: China is big, China is hostile, and Chinese economic interests are complexly interwoven with U.S. economic interests. But there are many reasons to believe that China is more of a swollen Russia or Turkey than a genuinely credible alternative to the United States. China’s market is very large, but its business culture is largely parochial and sclerotic. China’s biggest firms are old-fashioned state-run industrial concerns (Sinopec, China National Petroleum, State Grid Corporation, Agricultural Bank of China), and even the more interesting and relevant Chinese firms, such as Huawei, mostly are second-rate. It is at best Pepsi to the American Coke, and often something more like Kick. China remains a relatively poor, backward, ill-governed country. It is difficult to imagine a real alternative to Silicon Valley taking root in the shadow of a single-party police state.

 

A big domestic market is nice to have, but real long-term economic power takes innovation and the development of human capital. And beyond economic power, a genuine world power needs both military might and — most important — cultural power. China’s military remains largely untested, and it has few significant alliances either in the region or globally. (Forgive me if I do not give sufficient credit to the mighty forces of Kazakhstan.) Culturally, China is admired mainly by illiberal nationalists and New York Times columnists during moments of authoritarian reverie.

 

The European Union is another matter.

 

The European Union’s total economy is about the same size as that of the United States, though it has a significantly larger population (about 450 million residents to the United States’ 325 million) and therefore a lower GDP per capita. (U.S. economic output per person is about 20 percent higher than Germany’s and 60 percent higher than Italy’s.) By some measures, Europe has a larger middle class than the United States, but its middle class is less affluent.

 

Europe lags behind the United States economically in part because the conservative, consensus-driven business and institutional cultures of Europe do not encourage the same kind of entrepreneurship that the United States enjoys. (One German leader told Bloomberg, “We are so preoccupied with the economy of the last century, we are so proud of our trade surplus and our automobile industry, but we have fallen behind in the digital economy. This is where value and growth will come from in the future.”) European entrepreneurs also generally lack access to the kind of capital and equity-compensation arrangements that are the lifeblood of U.S. startups. (The next time you hear somebody complaining about the “financialization” of the U.S. economy, think about how dearly entrepreneurs in Berlin wish they could hand out stock options the way they do in San Jose.)

 

Those are the headwinds.

 

The tailwinds are millions and millions of remarkably productive workers, enormous and increasingly well-integrated markets, generally (though not exceptionlessly) decent governance, reliable health-care and educational systems, and, perhaps most important, the kind of cultural power that China cannot manufacture, steal, or bully into existence — and that the United States risks forfeiting.

 

It is in the matter of culture — which is in part a matter of institutional credibility — that the European Union has both great opportunities and risks. For example, the flouting of EU “rule of law” standards in Poland and in Hungary, and the European Commission’s reaction to these infringements on judicial independence and press freedom (a story that does not exactly dominate U.S. headlines), is as much a test of credible joint European action as the coronavirus epidemic is. The EU wants more Copenhagen, less Budapest. (If the EU wants more Copenhagen, it is not entirely clear that Copenhagen wants more EU.) The fight over the European Public Prosecutor’s Office (EPPO), which is a kind of free-range anti-fraud unit empowered to fight “crimes against the Union budget,” raises similar questions about the character and credibility of European practice on the ground. In these matters, the European Union has the opportunity to take a stand for certain liberal-democratic values that will not only distinguish it from China (which is hardly necessary) but also, more to the point, from the nationalist-populist shenanigans currently under way in Washington, which are likely to continue after November (with one complexion or another) irrespective of what happens in the election.

 

Put another way: There’s currently a job opening for “Leader of the Free World.” Who wants the position? Angela Merkel has carried things about as far as she is likely to.

 

Because the Trump movement is spiritually aligned with Brexit, the American Right has taken an intensely anti-EU stance and in some cases a broadly anti-European one. That is a mistake. Brexit was probably the right move for the United Kingdom, which never fit easily into the European Union for many reasons (beginning with the fact that it is not in “Europe”) and which could have got most of what it wanted out of the European Union with a trade pact, which it can (and probably will) negotiate on independent terms. But France and Germany (and the Czech Republic and Slovenia and Denmark) are not the United Kingdom. The member states of the European Union have their differences (see the recent dispute between the so-called Frugals and the less thrifty EU members on the recovery agenda), but they broadly find value in the union as a matter of national and regional self-interest. A European Union that stands for liberalism, democracy, trade, open markets, and the rule of law is consonant with U.S. interests; a European Union that stands for protectionism, mercantilism, corporatism, and étatisme is not consonant with U.S. interests. Hamilton moment or not, it is likely that the European Union will see closer integration on some fronts in the coming years. The United States can influence the development of the European Union and benefit from it, or it can jeer from the sidelines.

 

If the European Union is having a Hamilton moment, the United States should take care that it is not having a Habsburg moment. When Philip the Pious was installed on the Spanish throne in 1598, he believed that he had inherited an empire in its prime. In reality, he and his successors would learn that the conditions for decay in their kingdom had set in well and deeply at least a generation before, and Spain would spend most of the coming century in a state of decadence and decline. By the time Alexander Hamilton worked out his famous financial compromise, Spain was just starting to figure out how far it had fallen, and Napoleon already was waiting in the wings.

 

As Charles Krauthammer famously put it, decline is a choice. But it is sometimes a choice that you do not realize that you have made until after the fact.

Ibram X. Kendi, Prophet of Anti-racism

By Christopher Caldwell

Thursday, July 23, 2020

 

It is a measure of how deeply our culture is fragmented that some of the best-read people in the country have never heard of Ibram X. Kendi. Most Wall Street Journal readers would probably have to Google him. But Kendi now has four books at or near the top of the best-seller lists, including Stamped from the Beginning, which is a history of American racism that won the National Book Award in 2016, and two books on racism for younger readers. Racism is Kendi’s thing. His newest, How to Be an Antiracist, reappeared at the top of the New York Times nonfiction best-seller list this summer after having spent several months on the list last fall and winter. For many of the protesters who poured onto America’s streets in June in the wake of the videotaped killing of George Floyd by Minneapolis police, the book has been a conceptual road map. As the first fires were being lit in Minnesota, Boston University announced it would offer Kendi, 38, the most prestigious tenured chair at its disposal, making him only the second holder of the Andrew W. Mellon Professorship in the Humanities. The chair has been vacant since the death of the novelist and Holocaust survivor Elie Wiesel four years ago. BU will also host the Center for Antiracist Research, which Kendi founded at American University.

 

The “antiracism” of which Kendi is the most trusted exponent is not just a new name for an old precept. It is the political doctrine behind the street demonstrations, “cancelings,” Twitter attacks, boycotts, statue topplings, and self-denunciations that have come together in a national movement. Anti-racists assume that the American system of politics, economics, and policing has been corrupted by racial prejudice, that such prejudice explains the entire difference in socioeconomic status between blacks and others, that the status quo must be fought and beaten, and that anyone not actively engaged in this system-changing work is a collaborator with racism, and therefore himself a legitimate target for attack.

 

Under anti-racism, the private sphere becomes a battlefront. In Denver, ACLU organizers push people to “raise kids who ‘see color.’” The English department at the University of Louisiana at Lafayette has instituted quotas to increase its BIPOC (black, indigenous, and people of color) hiring until all its senior positions are 15 percent minority. In California, a member of the San Francisco Board of Supervisors introduced a Caution against Racially Exploitative Non-emergencies (CAREN) Act that would make it easier to prosecute those whose calls to 911 appear motivated by racial prejudice.

 

The anti-racism movement may sometimes be misguided: While the Floyd killing was affecting, for instance, there is still no evidence that it was an instance of racism. And the movement may be smaller than it looks, drawing primarily on those within the universe of activist foundations (such as the ACLU), the Bernie Sanders campaign (whose members fill the ranks of Showing Up for Racial Justice, or SURJ), and university ethnic-studies departments. Still, social media have broadened the networks from which each of these groups can recruit, and the anti-racism movement has grown to the point where Ibram X. Kendi can be said, for better or for worse, to be changing the country.

 

***

 

How to Be an Antiracist is a manifesto in the form of an autobiography. Kendi is not the first author confident that his intimate conflicts and private challenges provide sufficient raw material for a project to reorder American race relations. Ta-Nehisi Coates did something similar in Between the World and Me, his polemic against police violence. For that matter, Barack Obama’s Dreams from My Father (1995) sketched out themes he would use to campaign for the Senate (“in no other country on earth is my story even possible”) a decade later. It is called “identity politics” for a reason.

 

Kendi’s devout parents were drawn through their churches into political activism in the 1970s and wound up worshiping at Reverend (later Representative) Floyd Flake’s Allen African Methodist Episcopal Church, in Jamaica, Queens. They fired their son’s imagination with biographies in the Junior Black Americans of Achievement series. Kendi saw a bit of urban violence on the school bus. He was drawn to basketball, rap, and fashion. His parents moved to Manassas, Va., where he attended Stonewall Jackson High School. He won an oratory contest for a Bill Cosby–style exhortation calling on blacks to pull themselves up by the bootstraps, a performance that (on one hand) he remembers with shame but that (on the other) he begins the book with. Kendi has done a bit of everything. He is an ideological everyman of race consciousness, his life a Bunyanesque pilgrimage from the Valley of Assimilation to the Mountains of Intersectionality.

 

There is a moment in this life story that serves as the postmodern equivalent of George Washington’s chopping down the cherry tree with his little hatchet — a foreshadowing of the author’s most important adult virtues and commitments. It comes with a “microaggression” that Kendi witnessed in his third-grade classroom at the age of eight. A teacher, whose name Kendi forgets, called on an eager white student at the front of the class rather than a shy black girl sitting in the back. Later, in chapel, Kendi defied the teacher and refused to leave. The principal was called. His parents were sent for. The incident doesn’t sound like much, not even in Kendi’s purple description, but to remember it brings rage: “What other people call racial microaggressions I call racist abuse,” he writes. “And I call the zero-tolerance policies preventing and punishing these abusers what they are: antiracist.”

 

Decisive and unflinching though Kendi is when it comes to retribution against people such as his third-grade teacher, the autobiographical parts of this book show him to be tentative, even anguished, about identity. He grew up with the surname Rogers; he changed it to “Kendi” on his wedding day a few years ago. His parents gave him the middle name “Henry,” although he dropped it, he says, when he discovered the role of Henry the Navigator in the slave trade, eventually replacing it with “Xolani.” In college he was both fascinated by whiteness (wearing eye-lightening “honey” contact lenses) and repelled by it (writing in a college newspaper column that “Europeans are simply a different breed of human”). He is tormented by what he calls a “dueling consciousness” and believes many other blacks are too: “I felt the burden my whole Black life to be perfect before both White people and the Black people judging whether I am representing the race well.” It is, mutatis mutandis, a worry common to people of many ethnicities. In his classic memoir of assimilation, Making It, Norman Podhoretz calls it “the brutal bargain.”

 

In African-American studies, first at Florida A&M and then at Temple, Kendi began to resolve some of these questions. His mentor in Philadelphia was Molefi Kete Asante, notorious at the dawn of political correctness a generation ago as the author of Afrocentricity (1980), which stressed that, long before the high point of Greek culture, Egyptians, who lived in Africa, were building the Pyramids. This is perhaps not an insight it required the founding of a whole new academic discipline to impart, but Asante’s goals were polemical as much as scholarly. “The rejection of European particularism as universal is the first stage of our coming intellectual struggle,” he taught Kendi, who quotes these words midway through How to Be an Antiracist.

 

As a prose stylist, Kendi is clear, direct, and even witty. But the academic discipline he practices is built from bundles of esoteric “intersectional” concepts, such as “race-class” and “gender racism” and “space antiracism.” Kendi’s arguments are often disjointed: “An ethnic racist asks, Why are Black immigrants doing better than African Americans? An ethnic antiracist asks, Why are Black immigrants not doing as well as other immigrant groups?” Actually, both sound like perfectly legitimate avenues of speculation for a sociologist — or, for that matter, some guy sitting on a barstool. Why drag racism into it? To figure that out, we must understand what Kendi means by “racism” in the first place.

 

***

 

Kendi’s definition of racism is short but far from simple: “Racism is a marriage of racist policies and racist ideas that produces and normalizes racial inequities.” Certain reviewers, including Harvard law professor Randall Kennedy, have faulted the definition for the way it uses the concept of racism to define the concept of racism. It will seem less strange, and more powerful, when examined through the lens of academic race theory.

 

As the Minnesota legal theorist Alan David Freeman noted in his landmark 1978 essay “Legitimizing Racial Discrimination through Antidiscrimination Law,” the beneficiaries of a racist system (Freeman calls them “perpetrators”) are likely to view its dismantling as an ethical challenge. Getting over such a system means adopting an attitude of fairness and treating everyone the same.

 

The historic victims of that system, however, have a different perspective. They look at the system as having taken from them concrete things that were theirs by right — above all, jobs, money, and housing. They will not consider the problem fixed until those deprivations have been remedied. Kendi writes from this victim’s perspective. He wants not pious talk but the actual policies that will redistribute the advantages, the stuff, that whites have undeservingly acquired. “What if instead of a feelings advocacy,” he asks at one point, “we had an outcome advocacy that put equitable outcomes before our guilt and anguish?”

 

You might think that such a focus would render the talk of “racist ideas” in Kendi’s definition superfluous. As long as we’re talking about redistribution, what the haves and have-nots believe about race shouldn’t matter. This, in fact, is the way Marxists have traditionally solved (or evaded) the race problem. But ideas about race and racism are central to Kendi’s system of thought, and you will understand why when you focus on its one truly original element: His “antiracism” is not a doctrine of nondiscrimination. In fact, it is not even anti-racist, as that term is commonly understood.

 

Kendi belongs to the generation of activists who understand affirmative action to be an immovable part of the U.S. Constitution — and he has reason to understand it this way, if the complaisance of the Supreme Court is anything to go by. He does not even pay lip service to neutral treatment. If practical equality for blacks is the imperative, discriminating on their behalf is going to be necessary, and Kendi grasps the nettle:

 

The defining question is whether the discrimination is creating equity or inequity. If discrimination is creating equity, then it is antiracist. If discrimination is creating inequity, then it is racist. . . . The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.

 

This is a momentous defection from the consensus that has shaped discussion of race in newsrooms and faculty clubs for the last half century. It is why this book really is as “bold” as reviewers say it is, and why the judges who in 2016 gave Kendi the National Book Award were right to say he “turns our ideas of the term ‘racism’ upside-down.” Kendi has decided that the two approaches to civil rights described by Freeman are not simply different perspectives on the same issue; they are mutually incompatible — one must destroy the other. “There is no neutrality in the racism struggle,” he insists. The old view of the perpetrators — that everything will be well as long as we treat people with equality, neutrality, and respect — is no longer just a different approach to the problem. It is illegitimate. It is a “racist” obstruction.

 

A lot of things that only yesterday seemed like uncontroversial opinions become, under the terms this book lays out, crimes against decency. To oppose reparations for slavery (or to have no opinion on the matter) is racist. To say “All lives matter” is to place oneself among those “beleaguered White racists who can’t imagine their lives not being the focus of any movement.” To allude to color blindness or talk of a “post-racial society,” to back religious freedom or voter-ID laws . . . these are racist things, too. Even the overarching vision that rallied white liberals to civil rights — the belief that blacks could, and should, assimilate into American society — becomes morally suspect. Assimilation, Kendi announces at the start of his second chapter, expresses “the racist idea that a racial group is culturally or behaviorally inferior.” The idea is racist, Kendi reasons, because it is assumed the out-group would be improved by joining the in-group. Kendi returns to this theme again and again, and we shall return to it, too.

 

Also racist are those intellectuals and politicians whose explanations lessen in any way the weight of white racism among the causes of inequality: Daniel Patrick Moynihan and Nathan Glazer, naturally, for their ideas on black family structure in Beyond the Melting Pot (1963). But also Oscar Lewis, once considered the hippest of radical anthropologists, for describing a “culture of poverty” in La Vida (1966) and other books. Even Eleanor Holmes Norton, the longtime black congressional delegate from Washington, D.C., is accused of using “racist talking points” in formulating crime policy, racist in the sense that they discussed the culture of Washington’s urban neighborhoods.

 

Kendi grants that blacks, too, can be racist, but we must understand the grudging sense in which he concedes this. He believes blacks can collaborate with the structures of white racism, as turncoats, agents, and enforcers, the way Ohio secretary of state Ken Blackwell did by working for the George W. Bush presidential campaign in 2000:

 

Black on Black criminals like Blackwell get away with their racism. Black people call them Uncle Toms, sellouts, Oreos, puppets — everything but the right thing: racist. Black people need to do more than revoke their “Black card,” as we call it. We need to paste the racist card to their foreheads for all the world to see.

 

But the racism itself is always white, no matter what the color of the person practicing it. When Kendi opposes “racism,” he means only the treatment of blacks by European-descended peoples since the Age of Discovery, especially under the American system of slavery and Jim Crow. He explicitly does not mean that he considers it wrong to discriminate by race in any abstract ethical sense. On the contrary: He is carrying out the de-universalization of Western values that his mentor Asante urged. One of the more interesting days in the culture wars will come when the trustees of Boston University discover that the ethical commitments of their second Andrew W. Mellon Professor in the Humanities are diametrically opposed to those of the first.

 

***

 

‘I had to forsake the suasionist bred into me, of researching and educating for the sake of changing minds,” Kendi writes. “I had to start researching and educating to change policy.” Something similar is inscribed on Karl Marx’s gravestone in Highgate Cemetery in London. It is the credo of an activist, not a scholar. Undisciplined in its arguments, audacious in its demands, How to Be an Antiracist bears the hallmarks of the ethnic-studies departments from which it arose.

 

Kendi spends a lot of energy turning up ancient grievances — an article in a 1903 issue of Medicine about the “sexual madness and excess” of black people, the speculations in a New York City prison doctor’s report in 1894 about whether lesbians are physically different from other women. He tends to imagine his interlocutors as eccentric and simple-minded, holding opinions that hardly anyone would dream up, let alone defend: “Black neighborhoods do not all have similar levels of violent crime,” he insists. “If the cause of the violent crime is the Black body, if Black people are violent demons, then the violent-crime levels would be relatively the same no matter where Black people live.” Who needed to be convinced of that? What is this “Black body” that Kendi and other ethnic-studies authors constantly allude to? Kendi leaves the impression he has had few conversations with people he really disagrees with. The distinction between mainstream Republicans and night-riding bigots does not appear to be an important one to him, given his references to what “white supremacists” think of climate change and Obamacare.

 

In African-American studies departments you can address racial problems in an atmosphere of esprit de corps and ideological unanimity. Because they traditionally had a different academic culture than other university departments, it long seemed natural to ignore them. But their very isolation has turned them into mighty bases for consciousness-raising, dogma construction, and political organizing. They are Internet Age equivalents of 19th-century Fenian Brotherhood lodges. It is from these hives of like-minded activists that the country’s human-resources departments have been staffed. That helps explain how, within hours of the first urban protests in June, hundreds of far-flung corporations had spontaneously and independently produced identical press releases and Facebook posts, identical right down to the catchphrases.

 

Americans were doubly stunned: First, that these intra-corporate cliques could compel one celebrity after another, starting with New Orleans Saints quarterback Drew Brees and Oklahoma State football coach Mike Gundy, to endorse Black Lives Matter, which most Americans had considered a radical movement just days before. Second, that they had been asked to surrender so much that they once considered part of their constitutional heritage, starting with rights of association and speech. These limitations seem to be restricted to the relations between companies and their employees, and thus of no concern to the Constitution at all. But the ultimate cause of the restrictions is the pressure brought to bear on corporations by regulators and litigators in the name of civil rights.

 

Those who are confident that Kendi’s argument is something they can take or leave probably do not understand what civil-rights law has become. The word “racist” is a powerful disciplinary tool; whoever controls its deployment can bend others to his will. In the recent wave of cancellations, silencings, forced recantations, and self-denunciations, it has become clear that corporations fear the word “racism” so much that they will betray their employees and permit their lives to be destroyed rather than risk being accused of it. Kendi’s aim is to broaden the privileges of those entitled to fling the word “racist” around, and to extend its power to ever more marginal misdeeds.

 

All this requires is a few redefinitions, and here the law appears to be on Kendi’s side. With its Bostock decision this spring, the Supreme Court went into the business of policing transphobia, a word that was not even in the dictionary when Barack Obama arrived in the White House. Most Americans can’t yet spell it, but anyone can be haled into a courtroom for it. In late June, when YouTube removed several videos it described as white-supremacist from its site, everyone cheered. The Financial Times even called the move “inexplicably delayed.” But “white supremacism” is in the eyes of the beholder. In Kendi’s book — which, it bears repeating, has been for much of this summer the best-selling nonfiction book in the United States — the line between white supremacists and climate-change deniers, between white supremacists and opponents of Obamacare, is hard to draw or discern, and a harried schoolteacher who doesn’t call on enough black students is a racist abuser deserving “zero tolerance” from the law.

 

***

 

Things are in flux. Since the killing of George Floyd, a lot of anti-racist political reforms have been suggested and even carried out in the name of progress, but much of this “progress” looks strangely like a segregationist’s dream.

 

It is difficult to imagine a reform more likely to drive American ethnic (and other) groups apart than the much-discussed project of defunding, or even abolishing, urban police forces. It is a matter of basic anthropology that, in the absence of a neutral arbiter, mutually mistrustful groups will provide for their own security. First they will isolate from the groups they fear most, and then they will build up their defenses. The alternative to the police is not social work — it is the Second Amendment. More than twice as many guns were sold this June as last June.

 

The same can be said for the wave of iconoclasm. Satisfying though it may be to throw ropes around a monument of Andrew or Stonewall Jackson and pull it down on one wild night, the effect is to add a grievance to American history, not remove one. The principle holds for a statue of Robert E. Lee as surely as it does for a statue of George Washington. Americans’ commitments to liberty and justice for all arise from their history. If human-rights activists do not take seriously many generations’ worth of democratic choices about which parts of their history Americans wish to commemorate (and even celebrate), then Americans will have a reason not to take seriously the commitments of human-rights activists.

 

In light of these unintended consequences, one assertion of Kendi, mentioned earlier, is particularly troubling, because even a skeptical reader will need to pause over the author’s point. This is Kendi’s dismissal of assimilation — the belief that blacks can “join” American society on equal terms — as racist. “While segregationist ideas suggest a racial group is permanently inferior,” Kendi writes, “assimilationist ideas suggest a racial group is temporarily inferior.” To an American raised in the civil-rights era, or in the shadow of it, this sounds obtuse. Temporary inferiority is not the same as permanent inferiority. Inferiority, in fact, is the wrong word for it.

 

But for those, like Kendi, who came of age in this century, the whole question looks different than what older Americans, both black and white, are apt to acknowledge. For a couple of decades after the passage of civil-rights legislation, such black socioeconomic inequality as remained could be wished away by well-meaning people of all persuasions, whether quota Democrats or enterprise-zone Republicans. But the persistence of this inequality through two whole generations puts those promises in a different light. The difference between “temporary” and “permanent” disadvantage looks like a rhetorical one. The dream, as Langston Hughes put it, has been deferred. A radical temptation arises.

 

Kendi, terrible simplificateur that he is, has picked up the gauntlet. As he sees it, there are only two explanations for this delay: Either you believe the problem is with blacks, unable to make it in a system that has been designed fairly for everyone, or you believe the problem is with whites, who have designed an unfair system that keeps blacks down. If you believe the former, you are a racist, and you will find yourself in conflict with both law and custom, conflict that anti-racists such as Kendi will strive to sharpen. If you believe the latter, then the present unrest is only a foretaste of a deeper transformation to come. For now, Americans have been struck dumb by these two unappealing diagnoses. A more considered response is to be expected. And perhaps feared.

The American Medical Community’s Credibility Problem

By Kevin D. Williamson

Thursday, July 23, 2020

 

Doctors: “The government needs extraordinary emergency powers to deal with public-health crises.”

 

People: “Okay, so what about—”

 

Doctors: “Also, we have to gut the Bill of Rights, because gun violence is a public-health crisis.”

 

People: “. . .”

 

Doctors: “Also, we need to forcibly sterilize poor people, because overpopulation is a public-health crisis.”

 

There are a lot of people making a lot of bad decisions in regard to COVID-19. I wish they would make better decisions. But if some people do not seem to believe that they are getting a straight answer from the medical community about the pandemic, it may be because they remember not having got a straight answer from the medical community about gun rights, climate change, population control, abortion, and much else. If some people believe that the doctors and their organizations are playing politics with the pandemic, it may be because they remember the doctors and their organizations playing politics with a lot of other issues before.

 

For example: The efforts of the American Medical Association and similar organizations to medicalize the debate over gun control, part of a larger effort from progressives to pathologize dissent, is typical of the pattern. Doctors, like scientists, enjoy a great deal of prestige, much of it well-earned. That prestige is rooted in expertise that is specialized. But like the businessman-politician who argues that what’s needed is to run the IRS or OSHA as though it were a business, physicians mistakenly generalize their actual expertise and experience. It’s the same thing behind Michael Jordan’s baseball career: “I’m good at this, so I must be good at that.” And so a guy who belongs to a professional association in which there are other people who treat patients for gunshot wounds comes to believe that he has special knowledge about the questions of regulation and constitutional jurisprudence related to gun control, and that he has special moral and intellectual standing to speak on these questions.

 

And so it is, “Gun control is a public-health emergency,” “Population control is a public-health emergency,” “Climate change is a public-health emergency,” etc. But when the AMA speaks about climate change, it does not speak about the actual medical questions related to climate change; instead, it engages in simple, ordinary political activism, e.g., endorsing changes in the electricity-generating industry as though the world’s physicians collectively knew the first thing about operating utilities. Physicians are entitled to their opinion on this as citizens; but as physicians, they have a responsibility to invoke their medical authority only where it is actually applicable. To do otherwise is to damage the credibility of their profession — with the results that can be seen all around us right now.

 

The AMA asserts that “uncontrolled ownership and use of firearms, especially handguns, is a serious threat to the public’s health.” But it is not the “uncontrolled ownership” of firearms that results in all those murders — it is murderers and murderous intent. And so the AMA might as easily have written: “The failure to impose longer prison sentences on first-time violent offenders is a serious threat to public health” or, “The failure to create an actual police state is a serious threat to public health” or, “The failure to oogedy-boogedy is a serious threat to public health.” The policy preference comes first and the medicalized rationale comes after. And the policy is not the result of medical judgment but political judgment.

 

Usually, a public-health emergency is something that is getting worse, but the AMA pursued its anti-gun crusade even while violent crime (including homicides committed with firearms) was declining, as it did after the 1990s. Why? Because it is not a matter of public health but a matter of plain political activism.

 

If it were a matter of individual human lives’ being snuffed out, then the AMA might instead be focused on, say, abortion, which ends about 45 times as many American lives every year as people with guns do. Given that the violence of abortion is perpetrated very prominently by members of the AMA, the organization is uniquely positioned to do at least a little something about that. What happens in an abortion is as a medical question of less interest to the AMA than is abortion as a political question.

 

The AMA could be right about gun control. (It isn’t, but it could be, in principle.) It could be right about abortion (the AMA is engaged in outright abortion activism through litigation and other means) or climate-change policy. But these are political questions, not medical questions. A member of the AMA may have working knowledge about how to perform an abortion or treat a gunshot wound; that does not give him any special standing on the question of how these should be regulated or treated as a legal or moral matter. Pretending that it does is intellectual dishonesty, and it is a big part of why the public trust in medical expertise is politically qualified.

 

On such political questions, the AMA does not have an especially encouraging record. In the neo-Malthusian days of The Population Bomb and the overpopulation panic, the AMA went in for population control in a pretty big way, and it offered the familiar medicalized rationale: “The problems that related to human reproduction, including the need for population control, are more than a matter of responsible parenthood; they are a matter of responsible medical practice.” The AMA published this statement as though it were impossible to provide a mother with good medical care without also developing a political position about whether she and others like her should be having children — or whether this even should be permitted. The Journal of the American Medical Association was a leading voice of the eugenics movement in the United States, and its political positions were presented as matters of scientific fact: “It has been demonstrated beyond a doubt that a very large proportion of all criminals, degenerates, and perverts come from parents similarly affected. If it were possible to eliminate all habitual criminals from the possibility of having children, there would soon be a very marked decrease in this class.” That is from a JAMA article headlined “The Surgical Treatment of Habitual Criminals” — gun control is not the AMA’s first effort to medicalize the problem of crime. Planned Parenthood’s recent repudiation of its founder for her commitment to eugenics is, if a little peculiar — Planned Parenthood was founded to pursue a eugenics program under the “scientific” progressivism of the time, planned parenthood as in planned economy, and the organization really stands for almost nothing else — at least a welcome reminder that all the best people get it very wrong from time to time. We are fools to believe that this was the case 100 years ago but somehow isn’t today.

 

Medicine should be guided by medical criteria. When medicine is dominated by politics, horrifying things happen. Those who remember the Soviet Union’s weaponization of psychiatry to crush dissent must greet with some concern current efforts in the United States to treat certain species of political disagreement as though such dissent were a kind of mental disorder.

 

The memory of the Soviet example persists, as does the memory of the American experience with forced sterilizations and the like along with the horrifying legacy of “scientific” eugenics programs in Sweden and elsewhere in Europe. If Americans do not trust their doctors and scientists entirely when it comes to matters of public controversy, there is a reason for this. The AMA and other organizations got into the muck of politics on their own initiative, and it is not easy to get out.