Meaningful dialogue about what actions the government should take overcomes the conversational impasse and paves the way for material racial change. Disavowing the policy consequences of one’s ideological positions makes things worse, not better.
Bracey 6 — Christopher A. Bracey, Associate Professor of Law and Associate Professor of African & African American Studies at Washington University in St. Louis, holds a B.S. from the University of North Carolina and a J.D. from Harvard Law School, 2006 (“The Cul De Sac of Race Preference Discourse,” Southern California Law Review (79 S. Cal. L. Rev. 1231), September, Available Online to Subscribing Institutions via Lexis-Nexis)
IV. A Foundation for Renewed Racial Dialogue A deepened appreciation and open acknowledgment of this pedigree is crucial to restoring public conversation on race preferences. Opponents of race preferences must come to understand that this pedigree, if left unaddressed, tends to overwhelm the underlying merit of arguments against race preferences in the eyes of proponents. At the same time, proponents should understand that the deployment of these pedigreed rhetorical themes does not necessarily signal agreement with the nineteenth-century racial norms from which they are sourced. For both proponents and opponents, the avoidance of a rapid retreat into ideological trench warfare not only preserves space for reasoned, substantive debate regarding race preferences, but also allows for the possibility of overcoming our collective fixation on race preferences as the issue in American race relations and advancing the conversation to reach the larger issue of producing a more racially inclusive society. Our failing public conversation on race matters not only presents a particularly tragic moment in American race relations, but also evinces a greater failure of democracy. Sustained, meaningful dialogue is a critical, if not indispensable feature of our liberal democracy. n260 It is through [*1312] meaningful public conversation about what actions government should take (or refrain from taking) that public policy determinations ultimately gain legitimacy. Conversation is particularly important in our democracy, given the profoundly diverse and often contradictory cultural and political traditions that are the sine qua non of American life. Under these particular circumstances, "persons ought to strive to engage in a mutual process of critical interaction, because if they do not, no uncoerced common understanding can possibly be attained." n261 Sincere deliberation, in its broadest idealized form, ensures that a broad array of input is heard and considered, legitimizing the resulting decision. Under this view, "if the preferences that determine the results of democratic procedures are unreflective or ignorant, then they lose their claim to political authority over us." n262 In the absence of self-conscious, reflective dialogue, "democracy loses its capacity to generate legitimate political power." n263 In addition to legitimizing the exercise of state authority in a liberal democracy, dialogue works to promote individual freedom. The power to hash over our alternatives is an important exercise of human agency. n264 If democracy is taken to mean rule by the people themselves, then conversation and deliberation are the principal means through which we declare and assert the power to shape our own belief systems. The roots of this idea of dialogue as freedom-promoting are traceable to the Kantian view that individual motivation that is either uncriticized or uncontested can be understood on a deeper level as a mode of subjugation. As Frank Michelman explains, "in Kantian terms we are free only insofar as we are self-governing, directing our actions in accordance with law-like reasons [*1313] that we adopt for ourselves, as proper to ourselves, upon conscious, critical reflection on our identities (or natures) and social situations." n265 Because "self-cognition and ensuing self-legislation must, to a like extent, be socially situated," Michelman continues, "norms must be formed through public dialogue and expressed as public law." n266 In this way, dialogue as democratic modus operandi can be understood both as a material expression of freedom and as a mechanism to promote individual freedom. Robust dialogue on public policy matters also promotes the individual growth of the dialogue participants. Conversation helps people become more knowledgeable and hold better developed opinions because "opinions can be tested and enlarged only where there is a genuine encounter with differing opinions." n267 Moreover, meaningful conversation serves to broaden people's moral perspectives to include matters of public good, because appeals to the public good are often the most persuasive arguments available in public deliberation. n268 Indeed, even if people are thinking self-interested thoughts while making public good arguments, cognitive dissonance will create an incentive for such individuals to reconcile their self interest with the public good. n269 At the same time, because political dialogue is a material manifestation of democracy in action, it promotes a feeling of democratic community and instills in the people a will for political action to advance reasoned public policy in the spirit of promoting the public good. n270 For these reasons, the collective aspiration of those interested in pursing serious, sustained, and policy-legitimating dialogue on race matters must be to cultivate a reasoned discourse that is relatively free of retrograde ideological baggage that feeds skepticism, engenders distrust, and effectively forecloses constructive conversation on the most corrosive and divisive issue in American history and contemporary life. As the forgoing sections suggest, the continued reliance upon pedigreed rhetorical themes has and continues to poison racial legal discourse. Given the various normative and ideological commitments that might be ascribed to [*1314] opponents of race preferences, the question thus becomes, how are we to approach the task of breaking through the conversational impasse and creating intellectual space for meaningful discourse on this issue? One can imagine at least three responses to this question. As an initial matter, one might subscribe to the view that pedigree is not destiny, and thus conclude that the family resemblance tells us little, if anything, definitive about the normative commitments of today's opponents of race preferences. Consider the argument that the benefits of white privilege do not extend equally among all whites, and that policies that treat all whites as equally guilty of racial subordination advance a theory of undesirable rough justice. n271 Although this argument is a staple of modern opponents of race preferences, it would be a mistake to conclude that it can only be deployed by those persons who normatively oppose race preferences. Indeed, one might very well support race preferences, but believe quite strongly that such programs should be particularly sensitive to individual candidate qualifications. Similarly, although one might believe that diversity does not comport with merit based decisionmaking in education and employment, it would be incorrect to interpret this belief as necessarily indicative of a greater commitment to preserving status quo racial inequality. One might reject the diversity rational as insufficient to justify a system of race preferences that one strongly believes must be justified. In short, one may be inclined to simply engage the argument and ignore the possibility of retrograde normative underpinnings. Interestingly, a small cadre of scholars has adopted this approach. Derrick Bok and William Bowen, in The Shape of the River, investigated whether racial minorities feel stigmatized or otherwise adversely affected as a result of being denoted beneficiaries of affirmative action policy in college admissions. n272 Thomas Ross has critically examined claims of collective white innocence. n273 More recently, Goodwin Lui has researched the scope of the burden that affirmative action in college admissions imposes upon aspiring white students. n274 In each instance, these scholars chose to place to one side their skepticism about the normative commitments of those advancing the viewpoint, and launch directly into substantive critiques of that viewpoint. [*1315] This approach, however, may prove unsatisfactory for those more strongly committed to racial justice - those for whom it is not enough to simply challenge ideas in the abstract. As the late Robert Cover famously wrote, "legal interpretation takes place within a field of pain and death." n275 By this, he meant that the stakes of legal discourse are elevated when bodies are on the line. A vigorous critique of the substantive position alone leaves the normative underpinnings - the motivational force behind the proposal - dangerously intact. It may stymie the particular vehicle that attempts to reinforce racial subordination, but it leaves unaddressed the fundamental motive driving policy positions that seek to undermine racial minorities in the first place. At the other end of the responsive spectrum is wholesale rejection. One might view the pedigree as providing good reason to dismiss opponents of race entirely. Proponents of this view may choose to indulge fully this liberal skepticism and simply reject the message along with the messenger. n276 The tradition of legal discourse on American race relations [*1316] has been one steeped in racial animus and characterized by circumlocution, evasiveness, reluctance and denial. When opponents avail themselves of rhetorical strategies used by nineteenth-century legal elites, they necessarily invoke the specter of this tragic racial past. Moreover, their continued reliance upon pedigreed rhetoric to justify a system that only modestly responds to persistent racial disparities in the material lives of racial minorities suggests a deep, unarticulated normative commitment to preserving the racial status quo in which whites remain comfortably above blacks. The steadfast reliance upon pedigreed rhetoric, coupled with the apparent disconnect between claims of racial egalitarianism and material conditions of racial subordination as a result of persistent racial disparities, spoils the credibility of modern opponents of race preferences and creates an incentive for proponents to dismiss them without serious interrogation, consideration, and weighing of the arguments they advance. The principal deficit of this approach is that it would serve only to concretize the existing conversational impasse and subvert the larger aspiration of seeking constructive solutions to pressing racial issues. It creates an incentive to view race matters in purely ideological terms and further subverts the possibility of reasoned policy debate. Speaking of race matters in purely ideological terms poses a serious impediment to racial conversation because, in advancing one's position, one essentially argues that a particular set of circumstances demands a particular outcome. In this [*1317] way, purely ideological race rhetoric functions much like philosopher Immanuel Kant described in the Groundwork of the Metaphysics of Morals. n277 According to Kant, a moral imperative is categorical insofar as it is presented as objectively necessary, without reference to some purpose or outcome. The imperative is the end in and of itself. As Kant explained, the moral imperative "has to do not with the matter of the action and what is to result from it, but with the form and the principle from which the action itself follows; and the essentially [sic] good in the action consists in the disposition, let the result be what it may." n278 Because the moral imperative embodies that which is morally good, it necessarily makes a claim about justice. In short, an act is deemed morally just to the extent that it retains fidelity to the moral imperative. By contrast, a policy argument reflects a set of choices or priorities and asserts a claim about the impact of a particular set of decisions upon the world. n279 A policy argument does not embody a claim to justice. Indeed, the correctness of a policy choice is often tested against the backdrop of some agreed upon conception of justice. As the late Jerome Culp, Jr. explained: Neither side of a moral debate is likely to be persuaded by proof that the policy claims support or discredit their moral positions. Policy arguments can be disproved by empirical evidence and challenged by showing in some situations the policy does not work or has contrary results. To refute a moral claim, however, first requires some agreement on the moral framework. Only then can one discuss whether the moral policy advocated conforms to the agreed-upon framework. n280 Speaking about race matters in purely ideological or moral terms creates the impression that a particular racial policy is rooted in some theory of what is morally just. In this way, opposition to race preferences is made to appear "above the fray" of politics and less susceptible to public choice debate. In addition, it enables opponents to claim that race [*1318] preferences merely reflect the political whims of its proponents, unanchored by principle or a coherent theory of social justice. Second, reducing conversation on race matters to an ideological contest allows opponents to elide inquiryinto whether the results of a particular preference policy are desirable. Policy positions masquerading as principled ideological stances create the impression that a racial policy is not simply a choice among available alternatives, but the embodiment of some higher moral principle. Thus, the "principle" becomes an end in itself, without reference to outcomes. Consider the prevailing view of colorblindness in constitutional discourse. Colorblindness has come to be understood as the embodiment of what is morally just, independent of its actual effect upon the lives of racial minorities. This explains Justice Thomas's belief in the "moral and constitutional equivalence" between Jim Crow laws and race preferences, and his tragic assertion that "Government cannot make us equal [but] can only recognize, respect, and protect us as equal before the law." n281 For Thomas, there is no meaningful difference between laws designed to entrench racial subordination and those designed to alleviate conditions of oppression. Critics may point out that colorblindness in practice has the effect of entrenching existing racial disparities in health, wealth, and society. But in framing the debate in purely ideological terms, opponents are able to avoid the contentious issue of outcomes and make viability determinations based exclusively on whether racially progressive measures exude fidelity to the ideological principle of colorblindness. Meaningful policy debate is replaced by ideological exchange, which further exacerbates hostilities and deepens the cycle of resentment. n282
Reformation is a prerequisite to revolution—focus on instantaneous individual action/rhetoric results in wide spread backlash, failed organization, and re-entrenchment of right-wing domination. Building alliances are necessary
Saul ALINSKY, community organizer and writer, 1971 [Rules for Radicals, p. xix-xxiii (Gender Modified – Sigalos)]
As an organizer I start from where the world is, as it is, not as I would like it to be. That we accept the world as it is does not in any sense weaken our desire 'to change it into what we believe it should be-it is necessary to begin where the world is if we are going to change it to what we think it should be. That means working in the system. There's another reason for working inside the system. Dostoevski said that taking a new step is what people fear most. Any revolutionary change must be preceded by a passive, affirmative, non-challenging attitude toward change among the mass of our people. They must feel so frustrated, so defeated, so lost, so futureless in the prevailing system that they are willing to let go of the past and chance the future. This acceptance is the reformation essential to any revolution. To bring on this reformation re-[END PAGE XIX] quires that the organizer work inside the system, among not only the middle class but the 40 per cent of American families-more than seventy million people-whose incomes range from $5,000 to $10,000 a year. They cannot be dismissed by labeling them blue collar or hard hat. They will not continue to be relatively passive and slightly challenging. If we fail to communicate with them, if we don't encourage them to form alliances with us, they will move to the right. Maybe they will anyway, but let's not let it happen by default. Our youth are impatient with the preliminaries that are essential to purposeful action. Effective organization is thwarted by the desire for instant and dramatic change, or as I have phrased it elsewhere the demand for revelation rather than revolution. It's the kind of thing we see in play writing; the first act introduces the characters and the plot, in the second act the plot and characters are developed as the play strives to hold the audience's attention. In the final act good and evil have their dramatic confrontation and resolution. The present generation wants to go right into the third act, skipping the first two, in which case there is no play, nothing but confrontation for confrontation's sake-a flare-up and back to darkness. To build a powerful organization takes time. It is tedious, but that's the way the game is played-if you want to play and not just yell, "Kill the umpire."What is the alternative to working "inside" the system? A mess of rhetorical garbage about "Burn the system down!" Yippie yells of "Do it!" or "Do your thing." What else? Bombs? Sniping? Silence when police are killed and screams of "murdering fascist pigs" when others are killed? Attacking and baiting the police? Public suicide? "Power comes out of the barrel of a gun!" is an absurd rallying cry [END PAGE XX] when the other side has all the guns. Lenin was a pragmatist; when he returned to what was then Petrograd from exile, he said that the Bolsheviks stood for getting power through the ballot but would reconsider after they got the guns! Militant mouthings? Spouting quotes from Mao, Castro, and Che Guevara, which are as germane to our highly technological, computerized, cybernetic, nuclear- powered, mass media society as a stagecoach on a jet runway at Kennedy airport? Let us in the name of radical pragmatism not forget that in our system with all its repressions we can still speak out and denounce the administration, attack its policies, work to build an opposition political base. True, there is government harassment, but there still is that relative freedom to fight. I can attack my government, try to organize to change it. That's more than I can do in Moscow, Peking, or Havana. Remember the reaction of the Red Guard to the "cultural revolution" and the fate of the Chinese college students. Just a few of the violent episodes of bombings or a courtroom shootout that we have experienced here would have resulted in a sweeping purge and mass executions in Russia, China, or Cuba. Let's keep some perspective.We will start with the system because there is no other place to start from except political lunacy. It is most important for those of us who want revolutionary change to understand that revolution must be preceded by reformation. To assume that a political revolution can survive without the supporting base of a popular reformation is to ask for the impossible in politics. Men [and women] don't like to step abruptly out of the security of familiar experience; they need a bridge to cross from their own experience to a new way. A revolutionary organizer [END PAGE XXI] must shake up the prevailing patterns of their lives- agitate, create disenchantment and discontent with the current values, to produce, .if not a passion for change, at least a passive, affirmative, non-challenging climate. "The Revolution was 'effected before the war commenced," John Adams wrote. "The Revolution was in the hearts and minds of the people…This radical change in the principles, opinions, sentiments and affections of the people was the real American Revolution." A revolution without a prior reformation would collapse or become a totalitarian tyranny. A reformation means that masses of our people have reached the point of disillusionment with past ways and values. They don't know what will work but they do know that the prevailing system is self-defeating, frustrating, and hopeless. They won't act for change but won't strongly oppose those who do. The time is then ripe for revolution. Those who, for whatever combination of reasons, encourage the opposite of reformation, become the unwitting allies of the far political right. Parts of the far left have gone so far in the political circle that they are now all but indistinguishable from the extreme right. It reminds me of the days when Hitler, new on the scene, was excused for his actions by "humanitarians" on the grounds of a paternal rejection and childhood trauma. When there are people who espouse the assassination of Senator Robert Kennedy or the Tate murders or the Marin County Courthouse kidnapping and killings or the University of Wisconsin bombing and killing as "revolutionary acts," then we are dealing with people who are merely hiding psychosis behind a political mask. The masses of people recoil with horror and say, "Our way is bad and we were willing to let it change, but certainly not for this murderous madness-no matter [END PAGE XXII] how bad things are now, they are better than that." So they begin to turn back. They regress into acceptance of a coming massive repression in the name of "law and order."
b. Incremental reform is better than pure rejection---the alternative fails and infinitely replicates the SQ
Jefferey Pyle 99, Boston College Law School, J.D., magna cum laude, Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism, 40 B.C.L. Rev. 787
"Critique," however, never built anything,and liberalism, for all its shortcomings, is at least constructive. It provides broadly-accepted, reasonably well-defined principles to which political advocates may appeal in ways that transcend sheer power, with at least some hope of incremental success:26' Criticalracetheory would "deconstruct" this imperfect tradition, but offers nothing in its place.¶An apt example of how unconstructive CRT is can be found in its approach to equality. To the extent that race-crits discuss "equality" at all, they do so less to advance tangible goals than to disparage liberalism's different approaches, including the ultimate goal of a society where race does not matter. 265 The race-crits are particularly hostile to the liberal ideal of "color blindness," expressed most eloquently by Martin Luther King's dream that his children "will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."266 To the race-crits, this integrationist goal of color-blind constitutionalism is not just naive or preinature. 2"7 In Neil Gotanda's words, it "supports the supremacy of white interests and must therefore be regarded as racist." !08 Unlike King, who saw affirmative action as a color-conscious means to a more inclusive, integrated nation ,"9 race-crits consider affirmative action an end in itself, more akin to an award of permanent damages than transitional assistance:270 To the race-crits, any doctrine that gets in the way of that end, including egalitarian colorblindness, is ipso facto "racist." 271¶ ¶ Critical race theory's failure to address the difficulties of administering a reparations-based, "equality of result!' system leaves one with the impression that either they really are not. serious, or their invocation of "equality" is little more than an assertion of group interests. Indeed, the more pessimistic race-crits, like Derrick Bell, would be happiest if social reformers jettisoned the goal of "equality" altogether, because that goal "merely perpetuates our disempowerment."291 Illegal doctrine is to be judged solely by how it advances the interest of racial minorities, the race-crits implicitly dismiss any vision of equality that could aid other disadvantaged groups, or that could treat disadvantaged members of the racial majority with equal concern and respect.29' To the race-crits, the proper inquiry is not how the law lives up to aspirations or principles, but how it serves the interests of a constituen cy.297¶ In this respect, the race-crits are more political advocates than legal scholars.2"8 There is, of course, nothing wrong with being an advocate, and disadvantaged people certainly need advocates. But legal theories—the principles and ideas that guide the determination of legal outcomes—must transcendmere factional interests if they are to aid minorities. They must win the majority's acquiescence, if not its active support. So far, race-crits have not provided such a theory. CRT is only "scholarly resistance" that lives within, and indeed depends upon, the liberal legal order. 2"" Without liberalism to "critique," critical race theory would have little meaning. In the end, critical race theory could no more supplant liberalism than the mission statement of a political action committee could replace the Constitution.
The status of modern blacks is profoundly different from that of slaves- even if some famous cases have had little impact on the status of blacks their authors ignore a multiplicity of minor changes that prove state action is a useful tool for improving civil society
Driver, 11- Justin is an Assistant Professor, University of Texas School of Law. In 2004, he graduated from Harvard Law School, where he was an Articles Editor and Book Reviews Chair of the Harvard Law Review. Driver served as a law clerk to Judge Merrick B. Garland, United States Court of Appeals for the District of Columbia Circuit, and Justice Sandra Day O'Connor (ret.) and Justice Stephen Breyer, Supreme Court of the United States. His principal research interests include constitutional law, constitutional theory, and the intersection of race with legal institutions.(“Rethinking the Interest-Convergence Thesis”, 105 Northwestern University Law Review 149, http://www.law.northwestern.edu/lawreview/v105/n1/149/LR105n1Driver.pdf)
B. Consistency and Inconsistency of Racial Status The interest-convergence theory holds that, because black people re- ceive relief from racial oppression only when it suits the interests of the white establishment, the status of blacks and the status of whites remained relatively constant throughout the latter half of the twentieth century-and perhaps even throughout the nation's entire history. According to Professor Bell, as discussed above,119 the interest-convergence theory at work throughout United States history links contemporary racial developments to the unvamished racism of seemingly bygone eras. This misperception- that the status of blacks and whites has been characterized by continuity ra- ther than change during the last several decades-erroneously minimizes one of the leading transformations of American society during that time. One need not believe that racism has been completely vanquished or that there is no longer any advantage associated with whiteness to acknowledge that the status of both racial groups has experienced profound transforma- tions since World War ll. I . Status of Blacks.-Professor Bell has long asserted that the inter- est-convergence theory reveals how contemporary blacks have a good deal in common with their enslaved ancestors: "The difference in the condition of slaves in one of the gradual emancipation states and black people today is more of degree than of kind.'''''' Under this view, the fall of Jim Crow was largely a formality, as conditions for African-Americans in the modern era retain an eerie similarity to the days of yore. Even though signs indicat- ing separate water fountains for blacks and whites have long since disap- peared, Professor Bell asserts that "contemporary color barriers are less visible but neither less real nor less oppressive.""' While it may seem that to state this point is to refute it, arguments as- serting an absence of genuine racial change for contemporary black citizens are surprisingly widespread. Indeed, in the face of the overwhelming evi- dence of the tremendous strides that the United States has made with re- spect to race relations since World War II,''' the notion that conditions have improved for blacks only on the margins enjoys prominent support both in the legal academy"' and in the larger culture.'3' Accordingly, it is necessary to observe that the racial existence of blacks in modern America would be unrecognizable, and perhaps even unfathomable, to their enslaved forefa- thers. Contending that the existence of blacks today can be analogized to people who were literally (not metaphorically) denied their freedom or to people who had their liberty thoroughly circumscribed by Jim Crow mini- mizes the suffering of individuals who endured the yoke of unrelenting ra- cial oppression. While the goal of racial equality has certainly not yet been fully rea- lized, the racial progress that has been made over the generations has dra- matically elevated the racial status of blacks. Examples abound of racial progress for blacks in their everyday lives.'" To appreciate the genuine ra- cial progress that has been made, it is necessary merely to recall the Su- preme Court's statements in notorious cases openly acknowledging and affirming the inferior social status of blacks. In Dred Scott v. Sandford, Chief Justice Taney's opinion stated that, in the eyes of the Framers, blacks "had for more tha[n] a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations."l26 In Plessy v. Ferguson, the Court made the then-unremarkable point that a black man "is not lawfully entitled to the reputa-tion of being a white man."'27 Not only would such arguments no longer appear in the U.S. Reports but they would no longer be uttered in polite company. The significance of that change cannot be underestimated. The Supreme Court has, moreover, played at least some role in closing the gap between the status of blacks and the status of whites. While many Supreme Court cases involving race received a great deal of attention be-cause they seemed dramatic, it is perhaps most helpful here to remember a case that affected the quotidian. Not long ago, black people were typically denied the honor of being addressed formally, even in formal settings. Among the list of racial slights that Martin Luther King Jr. listed in his Let-ter from Birmingham City Jail as justifying his civil disobedience was the refusal of white people to accord blacks the respect of using formal titles: I guess it is easy for those who have never felt the stinging darts of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; ... when your first name becomes "nigger" and your middle name becomes "boy"... and when your wife and mother are never given the respected title "Mrs." ... then you will understand why we find it difficult to wait.'28 One year after King wrote his celebrated letter, the Supreme Court decided Hamilton v. Alabama.'29 In that case, the Supreme Court reversed the con-tempt conviction of a black woman who refused to answer questions ad-dressed to "Mary" as opposed to "Miss Hamilton." Hamilton thus offers a prime instance of the judiciary refusing to permit black citizens to be treated with diminished status before the law. And in so doing, Hamilton represents a sharp break from the past in a way that is at once simple and profound.