UNITED STATES 1121 Vermont Avenue, N.W.
COMMISSION ON Washington,
D.C. 20425 CIVIL A1GMTS
THE NEW RACISM
by
William B. Allen
Chairman, U. S. Commission on Civil Rights
“Racism,” the epithet, loses
the sting of a scourge in proportion as it is overused and debased through
misapplication. Conservatives are frequently alleged to be racists, among other
things. Little wonder if, by degrees, they become insensitive to protests of
racism. The wolf syndrome (it is insensitive to say “the boy who
cried wolf”!) has eroded the power of the warning. Still, it is of crucial
importance for conservatives to recall what is truly fearful about racism. For
the real racism is the greatest threat to freedom and limited government in our
time, serving as the apt vehicle for a policy of divide et impera. The
real racism both factionalizes our society and aggrandizes the power of the
state in the process.
We speak of the “new racism”
rather euphemistically, on account of its supposed difference from old
fashioned “Jim Crow.” In reality, however, there is no such difference. The
racism of racial preference remains the same old fashioned racism, whether its
preference scale seems to place American whites at the top of the scale or at
the bottom of the scale. In each case, racism as social policy depends upon
monopolizing political power in order to work its will. And even the supposedly
benign racism (making up for the legacy of exclusion) concentrates political
power in the hands of an elite which considers itself superior and invested
with supranormal rights to determine the status and position of other members
of the society.
Perhaps, however, we should
think in terms of nonstereotypical analyses in order to understand how deeply
and how perversely racism has been fashioned into the keystone of politicized
social policy in our era. To show how the “new racism” factionalizes our
society, perhaps a review of federal Indian policy would be more instructive
than yet another rehash of affirmative action and the proliferation of “minorities”
lining up to profit from the only game in town. And to show how the new racism
aggrandizes the power of the state, we can mount a mere summary of some of the
most egregious policies in recent years to show the character of the danger. In
order to render both of these showings more persuasive, I shall open with an
example of the kind of supportive atmosphere that makes racism politically
viable.
Whether harmful or
beneficial, social policies must always stake their roots in fundamental public
opinions that not only nurture but sustain any policy of consequence in our
free society. This was shown most clearly in the 19th century, as we
will see in the case of the Indian. But there is a still more instructive
example ready to hand. Accustomed as we are to struggling against Marxism’s
claim to scientific accuracy and moral necessity, it cannot help but dismay us
each time we discover how far necessary tenets of Marxism have crept into the
ordinary expectations of Americans—liberal and conservative—without their being
aware of it. Unconscious Marxism provides the most fertile soil for the new
racism.
The Kerner Commission Report
of 1968 (riots in America’s cities were caused by pervasive “white racism”)
expressed a rather conscious version of Marxist class analysis applied to the
unique circumstances of American politics. Many people rejected the fairly
sophomoric argument of the Report at the time, but few realized how deeply its
premisses lodged in the minds of many Americans. We have since seen Supreme
Court opinions entertain, albeit in passing, the theory that people sometimes
are not responsible for their actions because of their social
conditions. We find a still more dramatic resort of the Report’s premises in
the very notion of a “permanent underclass,” which substitutes Marxist terms of
analysis for the hopeful terms of the American founders, which expressed
confidence that all human beings were capable of “self government.” These
general dispositions show up most decisively, however, in moments of crisis and
decision making.
In Miami this winter, a
return of violence precipitated by the deaths of young black men at the hands
of police officers highlighted in a dramatic way how far Marxist terms of
analysis had crept into our usages and thereby silently favored the agenda of
the new racism and increased governmental power. In a public briefing in the
aftermath of the riots last January, the Commission on Civil Rights State
Advisory Committee received testimony from community officials and leaders, from
the Mayor and Police Chief to pastors, teachers, and activists. In the course
of their testimony, I was appalled to note their exclusive concentration on the
question of whether the federal government had spent enough before! Witness
after witness testified without so much as mentioning the names of the victims
of the shooting as an explanation for the rioting and certainly without
questioning whether any sane person could count upon the rule of law in Miami.
The implication was clear: a deficit of federal spending in Miami’s poor
communities had resulted in lingering poverty which, in turn, sparked the
riots. The rioters, in other words, risked life and limb in the streets of
Miami not on account of perceived injustices in the administration of justice but
because they were hungry!
It requires only a few
moments reflection to discover in this posture a foundation in Marx’s material
determinism. The people who testified were by no means disciplined marxists;
nevertheless, they depended utterly upon such an argument as they tried to
advance the cause of the rioters in Miami. Two results follow: first, the
“natural” response of increased federal spending and necessarily increased
federal power; secondly, and more importantly, the witnesses tacitly dehumanized
the rioters, denying not only their power of self-government but their very
capacity to recognize and resent injustice. It is thought that rioters riot
because their stomachs rumble rather than because their souls are troubled.
This is the attitude that makes the resort to race and class so “natural” for
many Americans today in speaking of social policy. They imagine that it would
suffice to tinker with material conditions to determine people’s opinions and
attitudes, neglecting history’s lesson that revolutions are not the resort of
the poor exclusively and that all human beings, rich and poor alike, once
persuaded that they cannot expect justice at the hands of their lords, will
resort to rebellion.
It is this opinion, in its
hostility to American principles, that fuels the new racism, as it did the old.
In the 19th century we can find in the positive good school of
slavery that foundation of opinion which ultimately led to attempts to enlist
the power of the federal government in the protection of slavery. That story
turned out in a manner that is well known. The parallel story of the American
Indian turned out differently, however, and today constitutes the best single
example of the “new racism’s” power to pervert the institutions and principles
of American government. Nowhere else has Congress so clearly and persistently
succumbed to the despotic temptation as in Indian policy, and nowhere else has
it done so with such harmful consequences for the liberty of all American
citizens.
The fundamental opinion
underlying Indian policy is the notion of irreconcilable difference between
Indian and American, coupled with a presumed tutelary responsibility on the
part of Congress. We will see that this has led to policies dealing with the
Indian in frankly racial terms and to powers exercised by Congress at the
expense of the rights of all other citizens.
When Congress was in the
full flush of excitement over the legislative initiatives of the 1960s in the
field of civil rights, it occurred to some that it might be well to provide for
Indians the same guarantees Americans were presumed to enjoy. Accordingly,
Congress passed the Indian Civil Rights Act in 1968 (ICRA). More than the Civil
Rights Act of 1964, the ICRA sought to guarantee the basic prerogatives of the
Bill of Rights for Indians living on reservations. In the process, however,
Congress discovered certain paradoxical necessities. Although the ICRA reads
like a literal copy of the Bill of Rights, it does not include the Second
Amendment to the Constitution, the right to bear arms. That omission reflected
Congress’s own ambiguous devotion to the Second Amendment. More revealingly,
the ICRA did not include the First Amendment’s guarantees of freedom of
religious exercise and freedom from religious establishment. This omission
reflected the ambiguous status with which Congress regarded the Indian, seeing
him less as a citizen of the United States than the specimen of a precious and
endangered culture, whose moral and religious practices often differ so markedly
from anything the protections of the Bill of Rights can suffer, that it was
thought rather preferable to exempt tribes from those strictures than to
protect tribal members who were also, after all, American citizens.
At the time of the adoption
of ICRA, therefore, it was clear that certain fundamental incompatibilities
haunted that misty netherworld of American relations with Indian tribes. As
tribes or nations the Indians are held to be sovereign—independent of the
United States Constitution. At the same time, however, they have been regarded
in our law as subject to the plenary power of Congress. Congress, accordingly,
is indirectly responsible for whatever transpires on an Indian reservation—or
at least has the power to change it, at the same time that Indian reservations
are not properly (that is in terms of their membership) a part of the United
States. Thus, tribal members are fully subject to the authority of tribal
governments without recourse to the government of the United States, save that
the government of the United States arbitrarily might choose to extend such
protection.
Ten years after its passage
the ICRA encountered a Supreme Court challenge on precisely this ground. The
result: the Court decreed that, although Congress had the power to pass and
enforce the Act, by passing it without specific enforcement provisions, the act
could not be cited in the courts of the United States, even while tribes were
obligated to extend to members the protections it promised! Thus, a mother at a
New Mexico pueblo, whose property was stolen from her on the grounds that her
children were insufficiently “of the blood,” could not defend herself against
the tribal government in an American court. Further, tribal custom and
tradition rendered the expropriation of her property entirely appropriate!
In summary, then, while
Congress has the power to alter Indian law and practice, it also has the power
to abstain from doing so. In short, Congress may treat Indians just as it
pleases, and without regard to the ordinary protections other Americans take
for granted. Nor has Congress failed to follow up on this opportunity. In the
very year the ICRA was ruled to be unenforceable in federal courts, Congress
passed the Indian Child Welfare Act (ICWA), in which Congress made explicit the
tacit premise of all our Indian policy. An Indian is as such not permitted to
assert rights of American citizenship, even while Indians are almost
universally admitted to citizenship whether on or off reservations. Indians
vote in all of our elections; they pay our federal taxes; and they defend our
liberties in the country’s wars. Indeed, Indians are dramatically subjected to
the obligations of citizenship even in one case in which certain other citizens
are exempted: they must pay social security taxes. Congress specifically
exempted the “self-sufficient” and “independent” Amish from the need to pay
social security—a privilege Indians lack altogether.
In the ICWA the Indian
individual, parent and child, is subordinated to the cultural identity of the
tribe. By assigning jurisdiction in child custody cases to tribal courts,
whether the child and/or parent is on or off the reservation and despite their
dissent in most meaningful cases, the Congress has effectively ordered that
Indian children be placed specifically with regard to their race and, more
importantly, that state courts in particular close their doors to Indian
suitors. Congress’s express interest in preserving the integrity of Indian
tribes has been executed in such a way as to destroy the integrity of
individual Indians. Now is the time to repeat: Indians are almost universally
American citizens. Accordingly, what this exercise of power by Congress means
is that Congress is free to dispose of the persons and properties of citizens
entirely on the basis of race, and without the customary safeguards of-the
Constitution.
How came Congress to
exercise such power over the American Indian? In a word: treaty relations! One
might rightly inquire how it can be possible for the government of a free society
to deal with its own citizens (and only some of them at that) by means of
treaty—thereby escaping the obligation to assure the equal protection of the
laws. Congress has never attempted to answer that question, preferring to hide
behind the fiction that treaties executed before Indians became citizens remain
in effect after they are citizens. We will not be fooled by that device,
however, for we recognize that if treaty obligations persist despite and indeed
at the expense of citizenship, then there is no reason assignable why Congress
may not enter into treaties with any of its citizens, suitably defined in terms
of group affiliation (the most accessible of which is race). The power Congress
exercises threatens not only the Indian, therefore, but every American; for it
reveals a device whereby to elude the limitations of the Constitution. Given
the rapid Lebanonization of American society that has been inspired by policies
of racial preference, the prospect is frightening indeed.
It remains now but to answer
whether this development is innocent—a by-blcw stumbled across by despotic
souls ever ready to aggrandize themselves? Far from it, it is rather the
natural fulfillment of that design which was originally aimed not only at the
Indian but at all the United States. The architect of American Indian policy
was the selfsame architect of the positive good school of slavery, and the
theoretical argument that republican government was inefficacious and should be
replaced by government on the model of rationally distinguished interests or
cultures engaging in mutual bargaining for the sake of their respective
members. The affirmative action regime is not new; it was invented in the 19th
century. The Indian policy is only the most advanced stage of the affirmative
action regime a glimpse of the future that awaits us. The 1824 Secretary of War
who invented the Bureau of Indian Affairs by his own fiat, and laid out the
guidelines of a government serving as a “great father,” in fact bequeathed to
us what today we falsely recognize as the “new racism.” It is, in fact, the
racism of yesteryear, rejecting in its principle, as it was designed to do, the
central tenet of Americanism, the belief in self-government.
Behold the examples of even
our most recent policy decisions. See how these decisions aggrandize the power
of the state at our expense, and all in the purported service of the new
regime. Then inquire anew whether we should not quickly learn to employ George
Washington’s language toward the Indian, “our brother,” thence springing to his
defense as the surest means to defend ourselves. What is the implication of
those provisions of the Fair-housing Act Amendments of 1988, providing for the
outfitting of new residential construction (and the retrofitting of some old
construction) to accommodate the disabled, if not a claim by Congress that it
can provide considerations for arbitrarily designated groups of citizens at the
expense of other citizens? The point is not the general availability of
“suitable” living arrangements for the disabled, for whom the market itself
would make specifically adapted arrangements possible. The point is Congress
power to assure that all relevant residences will be suitable!
What
could be the point of the provision in the immigration Reform and Control Act
of 1986 (IRCA), declaring it is “lawful,” indeed mandatory for employers of
five or more persons to discriminate in favor of citizens in hiring (as against
legal immigrants), if not to demonstrate Congress’s power to order folk to discriminate,
as easily as it theretofore ordered them not to discriminate, on the basis of
“foreign origin” (see Title VII of the 1964 Civil Rights Act)? The provisions
are indeed contradictory; but the point is the irresistible will of Congress!
Congress may divide the American citizen as it wills, and compel the citizen to
take note of such divisions, constitutional guarantees to the contrary
notwithstanding.
What
otherwise could have been the point of the Supreme Court’s Richmond v.
Croson decision, in which it was determined that minority business
set-asides and state/local racial preference schemes could not be imposed,
willy-nilly, but only at the behest of Congress and under the “strict scrutiny”
of the Court, except to concentrate the awesome power to discriminate in the
hands of the government itself? What could the “Civil Rights Restoration Act’s”
picking and choosing among favored and disfavored rights and groups convey,
apart from Congress’ determined assertion of its power to legislate without
limit and to rule without law? The Act accordingly subjects innumerable private
enterprises and activities to the regime of racial and gender preference, while
at the same time asserting that certain purported rights (such as the so-called
right to an abortion) need not be extended, for the moment, under this regime.
This summary list of only
some of our most recent accomplishments displays, I submit, nothing so clearly
as it display the incredible power the government of the United States has
amassed on the strength of the preposterous claim that it has the title to
divide its citizens by race and other ascriptive identifications, to treat with
them separately, and as groups rather than individuals, and to accord them the
benefits of government, not as equal citizens enjoying equal rights, but as the
designated beneficiaries of “appropriate” rights and privileges. The only
remaining question is, what’s so new about this? This sounds for all the world
like the old-fashioned racism, the old-fashioned despotism. The more precise
question, therefore, is how came we to be in such a state?