Guinier’s Poetry of Race; or,
When Accepting the Reality of Difference Means Conceding Different Realities*
by
William B. Allen
Professor Guinier’s Tyranny of the Majority constitutes a poetic re-statement,
beginning with the title itself, of her studied arguments concerning the
“political market failure” of American liberal democracy in handling the
representation concerns of American blacks.
Drawing selectively on extensive scientific resources and a deep history
of legislation and litigation, Guinier creates a story of general exclusion,
political impotence, and resulting social instability. Moreover, the work provides an
unacknowledged attempt to construct an intellectual grounding for the Carolene exception.[1] The key argument appears in her first chapter:
But if a group is unfairly
treated, for example, when it forms a racial minority, and if the
problems of unfairness are not cured by conventional assumptions about majority
rule, then what is to be done?[2]
Where Carolene
answered Guinier’s question with suspension of the “ordinary practices” of
majority rule and “protected classes” taken under the special care of the
courts, Guinier correctly perceives that this recourse has a value limited to
the sympathy of the courts.
Accordingly, she seeks for an institutional and permanent solution.
While I will mention Guinier’s institutional
response, it is my assumption that others will discuss that at least
sufficiently to demonstrate that her response fails the test of
comprehensiveness, neglecting as it does James Madison’s (on whom she
putatively relies) first test of democratic government, namely its
iron-clad resistance to minority tyranny.
What I shall treat at length, therefore, is her foundation argument, the
rationale for Carolene, and the
reasons it appears to me especially fallacious. My argument is that when the intellectual test fails to meet the
crucial standard of reasonableness, deductions therefrom cannot responsibly be
accorded a serious hearing.
The limited compass of this response can accomplish
nothing beyond an informed characterization of her explicit apologia. Accordingly, much of her technical argument must remain
unexplored. Perhaps it will suffice,
however, to observe that her conclusion regarding the effects of
replacing local at-large elections with single-district remedies are largely
accurate (and have been demonstrated in litigation by substantial expert
analysis, including my own). On the
other hand, her recommended correctives bear little or no relation to the
specific facts adduced in those demonstrations. In the place of the social and political dynamics which
originally explained the defects of single-district remedies (and successfully
pointed to the correctives called for in Romero[3]),
Guinier substitutes the false and ideal conception of the “monolithic,”
persistently “racist” majority. On this
metaphorical ground she elaborates an account of the political significance of
race which serves rather to convey personal preoccupations than accurately to
describe life for others in the United States.
Justly to discuss Guinier’s argument requires paying
due heed to her agonistic experience.
The publication of these much redacted essays is an immediate response
to the rejection, on the specific basis of her ideas as expressed in the
original versions of these essays, of her candidacy to become Assistant
Attorney General for Civil Rights in the Administration of United States
President Clinton. She (and many
others) regard her ideas to have been misrepresented and herself to have been
treated unjustly (the two charges are mutually interdependent). I have accordingly read this work, and the
original essays in the spirit of the jury to which she appeals in this
re-publication. For the juror two
questions must be answered: first, what
did she say and, second, were her arguments fairly represented. Neither of these is a verdict which she can
render herself.
To respond to the first question, I summarize her
argument in terms of the relevant elements.
Then, I specifically assess the differences between the re-publicized
versions and the original essays, since the critics addressed the latter rather
than the former. On the basis of the
conclusions derived from this exercise, we may then respond to the second
question. Part I summarizes the
arguments. Part II displays some
significant textual discrepancies between the two versions of her
argument. Part III renders a conclusion
based on the analysis in Parts I and II.
The fundamental premises set forth in Guinier’s
argument are that American “blacks, as a poor and historically oppressed group,
are in greater need of government sponsored programs and solicitude,”[4]
and that black representation in government in general has been denied by a
monolithic, prejudiced majority.
Respecting the latter she points out, for example, that “until 1993
there were no blacks in the United States Senate.”[5]
These premises are sustained by a series of
arguments purporting to demonstrate that, despite the success of the 1965
Voting Rights Act in exponentially increasing the number of black elected
officials, the result has not been an actual improvement in representation of
black “interests,” and that the absence of “actual” representation for such
interests has not been supplemented by effective “virtual” representation. Now, these arguments are as important for
what they do not say as for what they do say.
Guinier’s claim that the Voting Right’s Act is the
most successfully implemented piece of civil rights legislation, though false,
shows the emphasis she places on the need to recognize American blacks as a
specifically protected class. For,
despite the success of the Act, the desired results have not been
obtained (or at least not fast enough) and remain a burden of the
government. By contrast, the “public
accommodations” sections of the 1964 Civil Rights Act has clearly been far more
successful legislation in terms of near universal and voluntary compliance and
raising no further claims for government intervention. Thus, it is the “protected class,” Carolene argument, which is the real
source of Guinier’s premises, though she does not investigate the theoretical
foundations of that pivotal argument.
Similarly, Guinier’s discussion of “actual” versus
“virtual” representation misstates the meaning of the latter, taking it to mean
representation by someone with the same interests, and who may “look” the same
as the constituent, while virtual representation originally referred only to representation
by persons for whom one could not formally vote—as in the era of the
American Revolution and as remains the case for minors today.
The misstatement is critical, for it informs her
later reliance on the argument against virtual representation in order to
sustain a claim to procedures that assure legislative “influence” for
specifiable minorities.[6] If we stand the argument on its head, we can identify the problem with
it. Let us ask just what does “actual
representation” give the voter. The answer
is not direct access to the representative; not an open draw on
the public treasury; and not even a reliable assurance that policy
preferences of the voter will be (a) accepted by the representative or (b)
approved in the legislature. It seems,
then, that “actual representation,” on her terms, yields no more than the right
to identify with the representative—to say, “I voted for her”—in which light it
is hard to imagine why time is wasted on the argument against virtual
representation.
Where, in fact, the real point is to secure
guarantees of legislative influence (a percentage of deciding votes) for
particular views or perspectives rather than for persons, Guinier requires to
take up a more rigorous discussion of the
Carolene assumption, namely that there are identifiable (“discrete and
insular”) minority views, which cannot survive majority rule practices but
which deserve to be enacted as general legislation. That discussion is not, fundamentally, a discussion of
representation but a discussion of the need for political authority beyond
majority rule and, indeed, beyond democracy.[7]
No one will fail to see that the model against which
to measure representative democracy (the Madisonian model) is direct democracy,
in which every decision for the community must be made by the community as a
whole and following decision rules which all will regard as
legitimate. That classical problem
begins with recognizing individual (not group) consent to any arrangement—as
opposed to “rational individuals” choosing at each instant.
The reason the rational choice of each individual
cannot be the foundation of ephemeral legitimacy is quite simply the
mathematical impossibility a consequent unanimity rule would impose. Since any question to be decided must
nominally presuppose divided opinion about the correct response, it would be
rational for any individual to choose “a, b..., or z” of the
possibilities. Thus, unanimity could
obtain only by means of the concession of rational preferences.
Direct democracy, then, will operate by some rule
less than unanimity by necessity. Now,
whatever rule less than unanimity may be adopted, if it is direct democracy it
will follow that the outcome of each vote is decisive for the question, respecting
which some only will exercise the deciding judgment while others will
dissent. The dissenters will be no less
bound by the judgment, however. Nor can
their participation in the decision be denied. Their votes were not wasted.
Suppose one’s vote were the equivalent of the 52d percentile in whatever
system prevailed? Would that vote, in a
direct democracy, be wasted? The fact
is, every decision rule is winner-take-all within the measure of permitted
decisions. Rules define winners;
winners choose results. Every loser is
in the minority position, even if the decision rules—or constitutional
principles—make of a majority of persons a procedural minority regarding
deciding power.
Guinier’s response to this reality is to insist that
no one should lose consistently. To
make sense of this, however, we must interpret her to mean, not that, on the
issues on which one loses, one should not lose once and for all (in principle),
but rather that, on some occasions at least, one should win once and for all
(in principle). Having said this,
though, one finds in her work no ready means to discern when certain
persons should win and others should lose.
One might try to insert the pluralist assumption on which she relies, to
imply that one should win where one’s interests are concerned and one should lose
where the interests of others are concerned.
That applies, however, to every case, in principle!
Her misstatement of the Madisonian principle
explains why she has fallen into this dilemma.
Madison, she claims, argues that a majority faction is just as bad as a
minority faction, and that, just as means to thwart minority faction are
integral to representative democracy, so, too, must means to thwart majority
faction be integral to our political procedures and institutions. Thus, Guinier finds it necessary to reject
majority rule in the name of defending minority rights. Federalist
No. 10, however, was explicit: the
security against minority faction is majority rule. To qualify majority rule may well strengthen
minorities, but only at the expense of weakening this security against tyranny.
Madison was clear that the security against minority
faction operated in direct and indirect democracy alike. The reason for indirect, or representative,
democracy, accordingly, was to sponsor securities against majority
faction. Among these securities, the
chief was the multiplicity of sects, interests, etc. Further, specific institutional checks—including a few, but
critical, super majority provisions—added to this security. Guinier therefore believes to follow
Madison, when she observes that, in the matter of race prejudice, the
multiplicity of views does not exist (a “monolithic,” “prejudiced,” “white
majority” rules), and the secondary means are insufficient to check this
“tyrannical majority.” Besides rendering
her own account incoherent, when the question becomes, “To whom does she
address her appeal for redress?”, Guinier fails to observe the most essential
element of Madison’s design, namely, the alienation of the people in their
collective capacity from direct participation in legislation (i.e., persons,
not groups, are represented). Her
appeal for the direct, if proportional, representation of interests, would
defeat the plan of representation itself and force her to seek her defense on
the grounds of direct democracy. In
that event, on her premises, there is no principle to which she can appeal and
in accord with which, the so-called “monolithic majority” ought voluntarily to surrender the power to
decide every question.
The reason Guinier arrived at this predicament seems
to me to be two-fold, empirical and theoretical. In the first case, her reasons for imagining a monolithic white
majority to exist are seriously in error.
She abstracts from the diverse interests beyond race which characterize
the many individuals who constitute the majorities in American politics. In the second case her treatment of “black
electoral success” theory forced her to abstract completely from the underlying
and determinative social dynamics of political relationships.
Her argument proceeds loosely as
follows: Madison’s defense of majority
rule depended on the conception of majorities as fluid, shifting. When the majority hardens, it becomes a
screen for injustice.[8] This “golden rule” principle no longer
works, if it ever did, because the interests of whites unite them against
blacks. Her reasoning is from group to
group, and she ignores the phenomenology of the shifting majority system, most
importantly the expectation that individuals, not groups per se, will be tugged
at by competing allegiances, thus giving rise to varying majority formations as
one or the other prevailing “interest” takes shape in individual souls. In other words, this concept can work only in proportion as individuals are
subject to multiple interests and thus group identities are attenuated. That she does not apply this element of the
argument rigorously is shown by her casual dismissal of any black who strays
from the straight and narrow as “inauthentic.”
In discussing black integrationist and black
nationalist electoral strategies, she focused on the need to identify and
authorize to act “authentic” black representatives who would pursue explicit
goals of procedural fairness and
substantive redress—especially redistributive policies and efforts to capture
allocations of government benefits. It
is clear that the abilities of these representatives to participate in shaping
a view of the good of the whole is secondary, if it occurs to Guinier at all. The exclusive vision offered is the vision of
the good of an identifiable, “cohesive” faction within the society.[9] To her credit, Guinier does argue that
“black electoral success strategy” fails to accomplish its goals when
articulated in this fashion. What she
offers, however, is not a rearticulation, but a “third generation” attempt to
achieve the narrow goal of securing black interests without making an explicit
commitment to America as a whole.
The rehabilitation of faction as the
exclusive arena of politics sustains her core theory, namely, the theory of
“proportionate interest representation.”
While rejecting the model of proportionate representation deduced from
the strategies of integrationists and nationalists, precisely because it
assures only the presence and not the influence of an identifiable majority,
she plumps for explicit interest representation. The difficulty—i.e., absence of assured, substantive outcomes—can
be resolved on the presumption that the “real” goal of “authentic blacks” can be
focused on the interest itself rather than on the mere image of
representation. To this end, however,
one must devise a means whereby a minority interest cannot be outvoted (in at
least some percentage of the cases) by a consistent majority interest.[10]
To the end proposed Guinier needs both an institutional
mechanism (she prefers legislation to litigation at this hour), and also an
assured means to concentrate the power and authority thus to be directed in the
hands of reliable agents of the views she embraces. The requirement for black “authenticity” is to be “politically,
psychologically, and culturally black.”[11] Interestingly, race need not play a
role. More, the critical psychological
and cultural parameters do not derive from any objectively determined factors
but seem rather to emanate from an ideological posture. On these grounds, for example, discrete
families are frequently and pervasively divided into the authentic black and
the inauthentic black (in some cases with the former being white or of other
non-black racial background and the latter being black).
The search for authenticity is predicated on the
“reality” of polarized voting—i.e., blacks demonstrate their political
cohesiveness by their uniform votes in elections. What Guinier presents as “The Polarization Assumption”—that, all
thing being equal, “whites and blacks vote for persons of their own
racial/ethnic background”[12]—has
been proved in litigation to be nothing more than the common sense observation
that, as far as they may, people tend to vote for people they know more than
they vote for people they do not know.
This is a central, and powerful illustration of the deficiency of this
theory. It presses so hard in the service of a special agenda that it is
extraordinarily insensitive to generally accepted rules of independent
analysis. Similarly, the so-called
“general rule” that a majority of whites choose not to vote for blacks is in
reality—applied at this level of generality and taking into account ordinary
social dynamics—probably mathematically impossible. This is however, the basis on which Guinier establishes her title
to demand representation of black interests by authentic “blacks.”
She concludes, therefore, that based on such
assumptions, “mechanisms to surmount this prejudice and to ensure black
electoral success are justified.”
Given the common sense and mathematical requirements of the case, this
conclusion can only be a requirement to prorogue general electoral requirements
in the interest of appointing blacks (by whatever procedures) -- mandated
racial representation. She seems not to
be aware of this consequence, and thus devotes much time to will-o’-the-wisps
such as alternatives to “winner-take-all” electoral procedures. But, in fact, no procedure could accomplish
the end she prescribes except one such as Madison described as a “will
independent of the society.”
The proposal for “cumulative voting” in a “modified
at-large electoral system,” accordingly, is a fairly tepid institutional
response to the far more fundamental claim Guinier makes. She recognizes this, for she insists that
employing it to elect representatives will not, in and of itself, be
sufficient; similar rules of voting must apply to the legislative bodies
themselves, in order to provide the kinds of guarantees she seeks. Her argument aims to move beyond “equality
of opportunity.”
What has in part occasioned this move has been the
realization that much of the voting rights activism of the 1980s has either
backfired or been inconclusive. The
litigants attacked at-large districts and succeeded in substituting
single-member districts in their stead in municipalities across the United
States. They often found themselves,
however, isolating the newly chosen representatives in majority dominated
councils and also isolating their constituents from the attentions of other
office holders no longer formally bound to their interests. This experience has not been uniform, but it
has occurred sufficiently to persuade Guinier that a change in strategy is
required.
The defects of single-member districts in these
circumstances have far more to do with principles of constitutional or
institutional design than with racial dynamics. Add to that reality the fact that social dynamics have moved
inconsistently with the assumed dynamics of single-member districts, and it
will not be difficult to discern why many of the ills Guinier complains of have
occurred. The argument for
single-member districts, however, was founded on putative demonstrations of the
existence of polarized voting in these many jurisdictions. If one is not to abandon the claim of
polarized voting, while nevertheless wanting to expand the range of political
opportunities beyond what single-member districting will typically offer (at
the local level), then it becomes necessary to seek new effects from the same
cause. Guinier’s “proportionate
interest representation” is the result, the institutional response which alters
the calculus without requiring an altered view of the reality.
To conclude this summary, therefore, we should ask
directly just how accurate is the assumption of the monolithic majority? The ills of single-member plans have been
carefully described in litigation for a long time, with predictions of the very
results Guinier now reprehends. Much of
that record insists that the single-member strategy pursued by activists
represented a missed opportunity, precisely because in many cases majorities
were not monolithic and there were identifiable and easily convertible
correlates to the historical pattern of voting that could meaningfully repair
the circumstances of minority voters.
For example, so-called cumulative voting itself is
but a cousin to the informal process of bullet voting, which enables minorities
in at-large, multiple seat elections often to increase their chances of election. Guinier is aware of this, but regrets the
“loss” of votes involved, which seems inconsistent with her view, otherwise
expressed, that every vote not cast for a winning candidate or issue is a
“wasted” vote.[13] More importantly, however, this process incontestably
demands organization, communication, and involvement in the community at large,
results for which Guinier piously prays on behalf of her cumulative voting
proposal but which are not at all necessary consequences. Still more importantly, given a persistent
trend toward dispersion in all populations, always led by the most educated and
the most successful within the domestic population, single-member districting
not only ghettoizes representatives and constituents,[14]
but it often cuts off by exclusion highly desirable candidacies which at-large
elections could still capture. Add the
fact that most at-large elections (with significant exceptions) are plurality
rather than majority elections, and one will see that these are elections which
concede enormous advantages to organized campaigns. It is rare throughout the United States that more than 15% of the
electorate participate in these elections.
Hence, far from expressing the will of a monolithic majority, they
typically would be ripe for the picking at the hands of any “identifiable,
cohesive minority” which is at the same time organized for political action.
Of course, though, Guinier does not depend on the
political organization of American blacks.
Hence, she can segue from race to the “unit of disempowerment,” which
can become any “voluntary interest constituency[y]”. At the outset it was said that government
must sponsor programs for blacks; it should not surprise, therefore, that
Guinier places little reliance upon American blacks displaying that political
fortitude that would enable them to take advantage of the political
opportunities open to them. That is the
reason she appeals for institutional changes. to render even those effective,
however, she adds the additional prospect of well-intentioned partisans who
will be the true “authentic blacks” who will carry out the reforms. Her
paradigm, at length, is partisan, making natural the appeal to “progressive
interests,” “reform interests,” etc.
That explains as well, perhaps, why she never entertains the thought
that the design of institutions should foster community over opposition.[15]
The foundation of this partisanship is a standard of
political equality, which Guinier founds on two points:
1. that each group has a right to have its interests
represented, and
2. that each group has a right to have its
interests satisfied a fair proportion of the time[16]
which I propose we
test, by first substituting for “each,” “any;” namely:
1. that any group has a right to have its interests
represented, and
2. that any group has a right to have its interests
satisfied a fair proportion of the time
and then weighing its implications in light
of the negations:
1. that no group has a right to have its
interests represented, and
2. that no group has a right to have its
interests satisfied a fair proportion of the time.
This experiment, I suggest, indicates in what way
Guinier’s theory imposes a false understanding of reality. Where she asks that we concede the reality
of differences, by recognizing group rights, it is plain that doing so would
lead to accepting different realities.
She makes this clear, in response to the dangers inherent in the
reformulations of her two principles, by explicitly indicating that not every
group could qualify for this treatment.
Rather, only groups that have been victims of the “arbitrary allocation”
of power and wealth may qualify for this special treatment.[17] Here, too, of course, is a
contradiction: any resource which is
consistently allocated “disproportionally” is not “arbitrarily allocated.” Nevertheless, her fundamental claim remains:
representation is fundamentally group political participation.[18] This is qualified only to the extent that
Guinier recognizes that interests may shift (as race may not) in the way that
majorities have been thought to shift.
Thus, she calls for “modified at-large election systems” which will
sponsor a “continuous redistricting by the voters themselves” as a direct
result of their political participation from election to election.[19] The fact that Guinier had to detach her
institutional response from race, strictly speaking, testifies sufficiently to
the inadequacy of her original formulations.
The fact that she has had to recur to shifting “majorities” both
overturns the polemical argument about a “monolithic majority” and returns her to the grounds of “Madisonian
democracy.”
Guinier made several changes in her original text in
order to produce a published book; that is, she eliminated redundancies and
made the flow of text from one essay to another much smoother (given they were
originally published as separate productions in separate venues). She made other changes, however, which can
in no way be explained in those editorial terms. Some of them suggest less than a spirit of robust disclosure,
which one expects in an apologia. I here simply enumerate some of these
changes, with minimal commentary, and invite the reader to regard the
enumeration as the basis of the judgment I will render in the conclusion.
An
elision noted by three dots in the re-publication is neither irrelevant nor
redundant:
“Congressional legislation
is pending which would establish uniform standards for voter registration in
federal elections, encourage state and local governments to assume the burdens
of canvassing eligible voters by mail
or through citizens’ contacts with government agencies, and allow voters to
register on election day. Yet,
eliminating registration and other discriminatory barriers only increases black
turn-out where blacks have someone, and something, to vote for. And that someone, for most blacks, is often
a ‘black representative.’ While this
term suggests a black person, it can also apply to any minority-sponsored
candidate who was elected by black voters in a black majority electoral
constituency.”[21]
The argument that having “someone to vote for” is a
key to black turn-out is often repeated throughout the book. Earlier, in the “Introduction,” however,
Guinier argued that “Reagan’s perceived anti-civil rights agenda” had increased
“black registration and turn out.”
While this is incompatible with the pseudo technical role model argument
just made, she doubtlessly believes the latter to be the correct argument,
while using the former only as a metaphor for her own mercurial reactions.
An
elision without indication:
“The
following suggests a framework for responding to black concerns.”
What follows is an enumeration of sub-sections “A.,
B., C.”
Then,
an elision without indication following “A. Immediate Action” paragraph:
“[Long paragraph attacking
Bush for failing to develop ‘a realistic plan for meaningful black
representation,’ she continues:] Nor has he determined to use the full
resources of the federal government in partnership with the courts, Congress
and public interest institutions to further the national goal of
eradicating the effects of racial discrimination from our national landscape. At minimum, Bush, the president of the
white electorate, needs to confront directly the racial divisions within
the body politic and announce a new, concrete policy of actual inclusiveness
and not symbolic outreach.”[23]
A
further elision without indication, same essay [especially meaningful since she
later criticizes the Bush Justice Department for doing exactly what is here
prescribed]:
“In particular, the
Department should now begin to prepare for the vigilant monitoring of the 1990
redistrictings which present the continuous threat of racial gerrymandering to
dilute black voter strength. Here, the Department of Justice must also
embrace the concept of ‘meaningful,’ actual representation through race
conscious remedies.”[24]
About the time this was being written I authored a
resolution for the United States Commission on Civil Rights calling for such
vigilance on the grounds that any race conscious gerrymandering would
constitute a partisan screen for augmenting Republican representation by means
of fragmenting Democratic constituencies.
Additions,
expanding the original text in the same essay:
“In
light of the Reagan Record... if the Bush Administration continued the
exclusionary litmus tests of its predecessors...”[25]
These
qualifications formed no part of the original essay.
A
final addition to this essay, expanding the original:
from
“twenty-four” to “twenty-nine years ago...” and the addition of “and Bush” to
“Reagan Administration[s].”[26]
“Blacks and other
statutorily protected minorities are groups whose interests historically
were unprotected yet were considered by Congress worthy of government
attention. To remedy the political
system’s unresponsiveness the case law under both Sections 2 and 5 [Voting
Rights Act] evolved to protect the group right to vote.”
This
republished version compares with the following original version:
“Precisely because blacks
and other statutorily protected minorities have group interests that Congress
considered worthy of government attention, the case law under both Sections 2
and 5 evolved to protect the group right to vote.”[28]
Must not she assume every action directed toward
inclusion and assimilation to have been extorted, since they run counter to the
“pervasively prejudiced preferences” of whites?
The
following language was added in the republished version:
“The right to a meaningful
vote requires extending the statutory inquiry to examine legislative decisional
rules.
“In this sense, the right
to vote is a claim about the fundamental right to express and represent
ideas. Voting is not just about winning
elections. People participate in
politics to have their ideas and interests represented, not simply to win
contested seats.
“Thus, the right to a
meaningful voice does not measure participation simply by counting competitive
votes; it examines the extent to which a system mobilizes broad based voter
participation, fosters substantive debate from a range of view points, and
provides and reinforces opportunities for all voters to exercise meaningful
choice throughout the process of decision-making and governance.”[29]
Elided
passage from original:
“The right at stake would
be the right at all stages of the political process to recognition of
distinctive group interests that numbers alone would presumptively give black
voters or their representatives in a constituency not polarized by race.”[30]
The underlying theory at work here, an analysis of
coalitional decision making possibilities, applies to all numbers and not just
masses and hence to one citizen as much as to many. Thus, the true foundation of the argument remains the old rule of
aggregation, “discrete and insular minority,” now to be identified as a
“politically cohesive (and hence voluntary), statutorily protected minority.” This argument relates to a change occurring
in the essay, “Triumph of Tokenism.”
“This conception
[systematic bias excluding minority preferences] borrows liberally from the
work of Charles Beitz, who contends:
‘Everyone has an equal right to have his or her political preferences
satisfied; but since it will normally be impossible to satisfy all political
preferences simultaneously [presumably by a rule of contradiction or exclusion],
some compromise is necessary, and the only compromise consistent with equality
is that political decisions should satisfy the [legitimate (Guinier)]
preferences of each member of the population an equal proportion of the time’.”[32]
Guinier adds, however, that “Remediation of
inequalities in preference satisfaction also involves equality of respect to
cleanse pluralist polities of racist preferences. This is an intermediary, but more just version of pluralism, from which a civic republican
model may follow.” Here, then, is a
frank embrace of the notion that political freedom can be accorded only in
proportion as specifiable moral perfections are attained. Proposed constitutional principles to
restrict the exercise of political freedom are, in this system, as much
punishments for the offenders as protections for the victims.[33] The wonder remains, throughout this
analysis, the total abstraction from consideration of the agency by which these
fundamental political designs are to be installed.
An
elision:
“The ultimate goal of fair
and effective representation would be to encourage the implementation of
decision making structures or procedures that ensure minority representatives
an equal opportunity to choose how to participate and cast a decisive vote.”[34]
Of these two choices, it is clear that, for anyone,
a fair chance to perform the former (choose how to participate) has
implications for the latter (casting a decisive vote), inasmuch as there is a
reasonable causal connection between the two.
In other words, guaranteeing the opportunity to choose how to
participate, in some definite number of cases, will necessarily preclude a
power to cast a deciding vote insofar as unwise choice defeats opportunity.
“...only a representative
sponsored by the black community and electorally accountable to it would count
[as black] for purposes of a legislative bloc voting analysis.”[35]
Thus
a non-black representative may be black for purposes of proportional
representation analysis.
The
substitution for a passage in the original of a new version in chapter 3 of Tyranny:
“While at one level such
an inquiry might explore basic issues of democratic principle, the scope of
this article is more limited. I simply
invite voting rights activists and litigators to consider on behalf of the
Act’s intended beneficiaries a different conceptual, remedial, and pragmatic
approach to the immediate problem of legislative responsiveness within the statutory
framework of the 1982 Voting Rights Act.
To achieve this limited but important objective, I propose the concept
of ‘proportionate interest’ representation.
Proportionate interest representation is a general term subsuming a
number of implementation strategies.
Proportionate interest representation addresses the black electoral
success model’s failure to develop a realistic enforcement mechanism for
achieving legislative responsiveness.”[36]
While,
in chapter 3, one reads:
“In the next chapter, I re-examine
the more general theory of majority rule, for we must ask the question that
black electoral success theory has ignored at its peril: When does majority rule become the tyranny
of the majority?”
A question lurking throughout this inquiry informs
the general conclusions that follow:
Why, if it is sufficient for the representative only to “think black,”
can not one also construct the constituency of a majority of folk who “think
black” as opposed to being “descriptively black”? If we fail to find an answer to that question, I believe the
reason is that Guinier does not provide or enable an answer to that question,
even though she relies far more on “thinking black” than on being black.
Her theory is correctly called “proportionate
majority rule” and incorrectly called “cumulative majority rule.” Nor is it a Calhounian “concurrent
majority,” though she borrows from the father of the Confederacy for her theoretical
grounding. The differences are best
revealed by showing what Calhoun and Guinier share. Both believe the United States to consist of plural nations. Calhoun’s response to that is that each
nation should be ruled by its own will, and on any question each should express
itself separately. When all concur a
national rule results; otherwise each rules itself conformably to its own
views. In either case, this is
concurrent majority rule.
Guinier, on the other hand, insists that, though
there are plural nations, there must at all times be only one national rule for
all of them, respecting which each must get to cast a deciding vote in its
relative turn. Since mutually exclusive
views cannot produce a single rule operating conjointly, then they must take
turns, making this “sequential majority rule,” which becomes proportional when
turns are weighted by relative population numbers. Nor could sequential majority rule function if every ephemeral
will, once stated, were beyond repeal.
Thus what was decided one way yesterday may be decided another way
today, meaning that this is distinctly not “cumulative majority rule,”
technical considerations aside.
To answer the question I posed at the outset, I
would say that Professor Guinier’s views have not been mischaracterized in
their essential thrust. What she said
originally, and continues to say in the republished version, honestly and
forthrightly proposes to abandon a vision of republican institutions in the
United States which may arguably be said to be a necessary ground of community
in the society. Of course, she argues
that history has demonstrated the error of that view. History, however, is not a moral principle. Yesterday’s wrong does not reveal today’s
right, let alone tomorrow’s further wrong.
That Ned raped Mary yesterday cannot of itself prove that George will
rape Sally tomorrow. Nor can it justify
Mary raping Ned today.
Though moral confusion is a consequence of Guinier’s
argument, I do not believe that it is the essence of her argument. In the last analysis I believe her difficulties
are theoretical. She believes to have
detached, for example, from majority rule as a standard. In fact, however, she seems only to have
buried it beneath wrenching concerns for a partisan agenda. It is still majority rule as the sole
legitimating principle of political choice which she relies upon to discount
the votes and opinions of that minority among American blacks whom she knows to
have voted for “the president of the white electorate.” She does this exclusively on the grounds
that the overwhelming majority of blacks, a consistent, monolithic, prejudiced
majority in her view, ought alone to determine the representational fate of
blacks. Because this argument mirrors
in inverse the argument against the supposed consistent, monolithic, prejudiced
majority of American citizens (who are white), Guinier obviously needs
something beyond the supposed defect of majority rule to ground her moral
claims. For those defects, if they
existed, could not be turned on and off at will.
What grounds her moral claims is a view about
community in America which delegitimizes the claims of the larger community in
favor of the “discrete and insular minority.”
For her not only does that not require an argument that the broader
community must include the narrower community.
It is rather an argument that the narrower community ought to construct
a self-sufficing and perduring separate identity.
If we follow teachings as old as Aristotle, namely
that political community requires a supporting dynamic of social unity, the
institutional designs that would engage our attentions on Guinier’s reading of
the facts would be measures to foster mutual interdependence and concourse
rather than political measures to highlight group independence. As it happens, the course wisdom would
counsel has been the course the United States has been fitfully pursuing,
albeit entirely without assistance from theoretically informed elites. Intermarriage would be a far more effective
counsel than political isolation and, if broadly embraced by opinion leaders,
would doubtless change the society more swiftly.
If such an evolution occurs in the United States, as
it has been doing slowly, it will doubtless occur despite the reservations of
thoughtful critics, who have failed to address the matter publicly and sensibly
ever since the hand-wringing of Thomas Jefferson in Notes on the State of Virginia in 1783. It is fair to conclude, rather, that such folk, who are now more
likely to pose as defenders of black rights, will go to the end kicking and screaming,
claiming to be what they’re not, which is merely black. The rest of us owe to recognize this story
for what it is, which is not a genetics but, rather, merely a poetry of race.
* Published in The Good Society (1995) v. 5, no. 2. A review essay of The Tyranny of the Majority: Fundamental Fairness in Representative Democracy by Lani Guinier (New York: Freee Press, 1994).
[1] United States v. Carolene Products Company, 304 U.S. 144, 152 n.4 (1938).
[2] “The Tyranny of the Majority,” p. 5. This introductory statement is the explicit added element to her previous writings.
[3] “Review of Elections,” Romero et al. v. City of Pomona, 1985-86; “Pomona's Passion for Perfection: The City’s Century Long Charter Story (A Socio-Political Analysis),” Romero et al. v. City of Pomona, 1985-86; “Electoral Participation and Voter Registration: Pomona,” Romero et al. v. City of Pomona, 1985-86; “California Voter Registration Laws,” Romero et al. v. City of Pomona, 1985-86; “Review of Plaintiffs’ Redistricting Plans for the City of Pomona,” Romero et al. v. City of Pomona, 1985-86; “The Charter History of the City of Pomona (A Legal Analysis),” Romero et al. v. City of Pomona, 1985-86; “Hispanic Registration in the City of Pomona,” Romero et al. v. City of Pomona, 1985-86; “Profile of winning Candidates in City of Pomona City Council Elections,” Romero et al. v. City of Pomona, 1985-86; “Pomona Voter Survey,” Romero et al. v. City of Pomona, 1985-86; “Successful Candidacies with Reference to Ethnicity and Seriousness,” Romero et al. v. City of Pomona, 1985-86; “Report on Primary Election Results, March 5, 1985, Using Plaintiffs’ District Plans,” Romero et al. v. City of Pomona, 1985-86.
[4] Chapter two, p. 37.
[5] Thus is Senator Edward W. Brooke, 1967-1979, despatched, perhaps as not “authentically” black, since he served within Guinier’s lifetime! Ibid., p. 38; this passage was not included in the original essay, and thus has been deliberately added, upon reflection. Moreover, in the same paragraph, the original version read: “White voters, in general, have been reluctant to support or contribute to black candidates.” In the re-published version the sentenced was altered to read, “A majority of white voters, in general, has been reluctant to support or contribute to black candidates.” This statement is supported by reference to a sampling result showing “one-third” of white respondents ever having contributed to a black candidate’s campaign, but without even hinting at the total number ever contributing to any candidate or the ratio of black candidates to white candidates (i.e., measures of opportunity).
[6] Tyranny, pp. 130-132.
[7] I have laid out the fundamental argument in my essay, “A New Birth of Freedom: Fulfillment or Derailment,” in Slavery and its Consequences: The Constitution, Equality, and Race, ed. by Robert A. Goldwin (Lanham, Maryland: American Enterprise Institute [with University Press of America], 1988): “The Court...accepted the perspective of the Carolene footnote, in 1938, that ‘prejudice against discrete and insular minorities may be a special condition, which tends to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and may call for a correspondingly more searching judicial inquiry.’ The Carolene Court strongly implied that enhanced judicial scrutiny not only remedied but supplanted the defect of recourse to ordinary political processes...
“What were those ordinary political processes? In general this must be regarded as a reference to the ordinary processes of elections, lobbying, and general participation in the formation of public opinion. In this context, however, the proper expression would be rule by the majority. The Court saw itself as the protector of minority rights against majority intransigence, in a case in which it did not conceive it possible that the minority could be incorporated directly into the political process and in which it did not conceive of any other possible protection for minorities.
“This is the famous problem set forth in Madison’s tenth Federalist paper, in which he held that ‘if a faction consists of less than a majority, relief is supplied by the republican principle,’ namely, majority rule. When a faction is a majority, however, Madison acknowledged a peculiar difficulty, in that the republican form worked against an easy solution. He affirmed, however, that the end, ‘the great object in view,’ has to be both to ‘secure the public good and private rights’ and ‘at the same time to preserve the spirit and the form of popular government.’ Too often Madison is read as offering nothing more than ‘interest group liberalism’ as the solution to this great difficulty. Not only is that an inadequate reading of the limited remedy offered in Federalist 10; it also neglects the fully developed response that Madison offered in No. 51. That is where we find the authoritative account of the relation between the ordinary political processes...and the preservation of minority rights...
“Madison argued that the most important test of the American system would always be its ability to guarantee the freedom of minorities without special provisions for their protection. On that basis the optimal condition of freedom would be that degree that would allow the majority to govern without permitting it to abuse the rights of others. Every special protection for minorities, then, would be a further barrier to majority rule. Unfortunately, however, it would amount [also] to establishing a ‘will independent of the society’ to enforce it. Madison ruled that out as incompatible with republicanism and as the re-establishment of the aristocratic principle. He defended the specific constitutional design, the process, as accomplishing all that was desirable to achieve the end. For a process to bear that much weight calls for conscious attachment on the part of the people. And that is what was provided: to avoid the evil of majority faction while relying on majority rule, through the citizens' conscious attachment to republican principles and processes.
“The founders relied on this conclusion as the active principle of the regime...
“I am aware that there is an objection to this interpretation of the ordinary political processes from which the Court had departed in adjudicating questions of civil rights. As it is usually stated, any proposal to allow fundamental guarantees of civil rights to be enforced by the majority (not intending to eliminate private litigation) would merely be a return to rule by whites in the interest of whites... But the belief that minorities are ‘protected’ by laws rather than by the opinions of the people is based on a fundamental misunderstanding. The assumption is that every special protection of a minority exists in opposition to the preponderant sentiment of the community. If that were strictly true, however, such laws and programs would not remain in force.” pp. 83-84.
[8] Tyranny, p. 17.
[9] Ibid., pp. 54-58. Also, see p. 61. Although many passages in the book speak of “deliberation,” and especially “legislative deliberation,” at no time does she envision that species of deliberation which involves deliberating about the common good or a transcending identity. At p. 63 she discussed “legislative deliberation,” but there it is clearly merely a part of the game and a social interaction. She has no apparent concept of public deliberation in general. Again, see p. 107 for the “collective contract of deliberation,” which is more rules of the game.
[10] While Guinier refers to the existence of “a hostile, permanent majority,” technically she establishes nothing more than the possibility of a consistent majority (from which she inappropriately excludes supposedly “inauthentic” blacks).
[11] Tyranny, p. 57.
[12] Ibid., p. 60.
[13] Ibid., pp. 125, 127. The concept that a vote is wasted when cast on the losing side or beyond the margin required for victory is tied to the concept that a district is proxy, and a poor one at that, for interest representation. Each ignores the vital elements of scales of participation and communication and the reciprocal effects of political participation and political representation. Nor does Guinier use the term simply within the technical limits of game theory.
[14] A not altogether undesirable result when along with it comes the concentration of the plenary power of the jurisdiction in question within the districts thus set aside. Problems emerge when such districts are merely a few of many which share in exercising the general powers of the jurisdiction.
[15] She employs the analogy of the jury to bolster her claim for extraordinary measures, but the analogy is inapt for someone seeking to escape zero-sum accounts. While the rule of unanimity or near-unanimity requires consensus and mutual respect of majority and minority, there are no split the difference options, in principle, on juries, any more than Solomon really enjoyed. At p. 107 she says: “My proposal envisions restructuring the legislative decision making process on the model of jury deliberations.”
[16] Ibid., p. 104. [Emphasis added]
[17] Ibid., p. 119.
[18] Ibid., p. 121. Cf., my essay, “The Promise of America,” in Second Thoughts About Race in America, Peter Collier and David Horowitz, eds. (New York: Madison Books), pp. 142-143.
[19] Ibid., p. 153.
[20] 24:420 [1989].
[21] Compare Tyranny, p. 33. The hypothetical district described here is the real Los Angeles County Supervisorial District, in which Supervisor Kenneth Hahn served for more than thirty years a district long overwhelmingly black in voter registration.
[22] 24:430; cf., Tyranny, p. 38.
[23] 24:431; cf., Tyranny, p. 38. All emphases added.
[24] 24:432; cf., Tyranny, p. 39.
[25] Ibid.
[26] Tyranny, p. 40, cf., 24:434.
[27] 77:1413 [1991].
[28] 77:1418; cf., Tyranny, p. 72.
[29] Tyranny, p. 93; cf., 77:1418ff.
[30] 77:1496; cf., Tyranny, pp. 107-109.
[31] 89:1077 [1991].
[32] Ibid., p. 1137, n. 291.
[33] The citation to Charles Beitz is Equal Opportunity in Political Representation, 155, 167-68 (N. Bowie, ed., 1988).
[34] 77:1497.
[35] Ibid., p. 1500, n. 299.
[36] Ibid., p. 1136.