The Case for Repair, Part 2

A Guest Post by N. D. B. Connolly.  See Part 1 Here.

Policemen Choking African American Rioter

So, what do we do? With ‘nuff respect for all the bandwidth Coates has burned through making the case for racial justice over the years, and with a tip of the hat to the work of Congressman Conyers, Randall Robinson, and many others, I offer these recommendations for reframing old issues and marshaling new ones in the name of repairing a racist government, in the name of making reparations.

First, I believe we need to use the history of white supremacy to revise, fundamentally, the rules of capital accumulation, racial segregation, and violence that continue to fuel the wealth of nations, ours and others. We need a new blueprint, at a policy and political level, that reverse engineers the state-sponsored taking of black people’s futures, one that halts social processes that have made it in every group’s interests not to be black, look black, talk black, learn black, or live black. Putting the “repair” into reparations essentially means using constitutional amendments, political organizing, and the courts to restructure the very government that has enabled the wretched and enduring history that Ta-Nehisi Coates so vividly details.

We can start by dismantling white popular sovereignty – the notion that the federal government remains subservient to the whims of an amorphous mass of white Americans. I encourage everyone to read Ashraf Rushdy’s American Lynching for one of the most concise and cogent articulations of how the racial violence of slavery continues to nest within the American body politic, through and after what the Rayford Logan famously called the Nadir. White popular sovereignty, as a cultural force, is what inspired U.S. military officials to racially segregate the Army’s blood reserves during World War II, in spite of high costs and the contradicting science. It’s also what forced federal mortgage underwriters to determine the entire nation’s home values based on what staffers generally considered “the desirability of white residential property.” White popular sovereignty flexed its muscle in the small but vocal “Birther” movement that forced President Barack Obama to furnish his birth certificate, and it roared in the wilds of Nevada when agents from the Bureau of Land Management confiscated the cows of the tax-delinquent rancher Cliven Bundy, only to give them back under threat of an armed white militia. (As a practical matter, we should probably just stop caving to unreasonable demands, even when they come from white Americans.)

From a more tangible policy and legislative standpoint, we can begin unmaking white popular sovereignty by reconsidering the constitutionality of the Castle Doctrine, and completely asphyxiating its kissing cousin, “Stand Your Ground” laws. These laws, as we know from a series of high profile killings in Florida, Michigan, and elsewhere, represent the second-life of lynch law. They allow individual citizens to use lethal force against other citizens with no fear of state reprisal. Stand Your Ground, in particular, empowers people to commit extralegal and deadly violence simply on the suspicion of a possible assailant’s future actions. Given that racism generally shapes how we read black people’s current behavior and how we forecast their future behavior, Stand Your Ground preserves a legacy of slavery that finds it acceptable to reduce black death to what one 1705 Virginia slave statute simply called “an accident of correction.”

We can start reparations rolling with a constitutional amendment that does what the Fifteenth Amendment should have done: provide the right to vote as an affirmative right that cannot be taken away for any reason, including the commission of a felony. As the historian Heather Ann Thompson points out, one of the many reasons “why mass incarceration matters” is that it essentially gutted the Voting Rights Act of 1965 (and well before last summer’s U.S. Supreme Court decision). In some all-white counties in Colorado, Texas, Florida, and California, disfranchised prisoners make up roughly 30 percent of a county’s overall populations. By virtue of their headcount, they bring in government resources and, by virtue of their labor, they enrich corporations as illustrious and recognizable as Microsoft and Nike, all with no voting rights. “In ways quantifiable,” Thompson explains, “the mass incarceration of the late twentieth century had given whites an amount of political power that had not been so disproportionate since before the Civil War.” [1] Returning the franchise to inmates and others under state supervision would not just impact national elections. It would change the face of local America by dramatically expanding the political voice of black communities in state, county, and municipal politics.

Indeed, we can start reparations by better using federalism to the advantage of those in need of redress. If “States’ Rights” partly got us into this mess, “States’ Rights” may well get us out. While we wait (and wait) for Conyers’s House Resolution to be voted on, we should perhaps do what the American Legislative Exchange Council or gay marriage advocates have already done: attack state and local governments as a way to begin moving the needle on national policy. Congress is where the current case for reparations has been tranquilized. We cannot trust our representatives to act, at least not until we use state governments to fix the gerrymandering that has preserved congressional seats and the legislative hegemony of white politics (not to be confused, of course, with white people).

Lastly, we can start reparations by dismantling through the courts the legal standard of “discriminatory intent,” a guardian of white popular sovereignty. Since the 1976 case Washington v. Davis (arguably the Plessy v. Ferguson of our era), progress on civil rights has come to a virtual stand still. In Davis, a discrimination case about a Washington, DC police training program, the United States Supreme Court eliminated the use of “disparate impact” as an acceptable measure of racial injustice. It established, instead, a legal standard that makes plaintiffs have to prove that a person meant to discriminate against them on the basis of race, gender, or whatever. In the age of discriminatory content, historically powerful groups (i.e. white property owners) now have much more room to carry out discriminatory practices, so long as you cannot prove, usually through something they said or wrote, that they meant to target a members of a given group (see, Sterling, Donald). Davis has enabled the re-segregation of schools and housing, discrimination in employment, and the evisceration of black wealth through a variety of channels. Not only have most people never even heard of the Davis case, but even those in activist circles, like the NAACP, have elected not to take the necessary action to challenge the legal standard as such. For some, there’s too much money to be gained in compromise.

[1] Heather Ann Thompson, “Why Mass Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American History,” Journal of American History (December 2010): 733.

N. D. B. Connolly is Assistant Professor of History and Co-Director of the Racism, Immigration, and Citizenship Program at the Johns Hopkins University.

About LaDale Winling

LaDale Winling is assistant professor of history at the Virginia Polytechnic Institute and State University. His book project, Building the Ivory Tower, examines the role of universities as urban developers in the 20th century. Learn more about him at Urban Oasis.

3 thoughts on “The Case for Repair, Part 2

  1. Your reading of Davis as a legal standard is half-correct and your attack on mainstream civil rights groups for “hav(ing) elected not to take the necessary action to challenge the legal standard” is misinformed. That constitutional standard has been repeatedly challenged in the courts (Arlington Heights, McClesky v Kemp, and Batson v Kentucky being some of the more obvious examples). Even with the loss of constitutional disparate impact claims, civil rights groups still use and are even now fighting hard to argue for the constitutionality of disparate impact in the statutory context (e.g., the discriminatory housing policy in Arlington Heights did not violate the constitution but it was later found by a court to violate the Fair Housing Act on a disparate impact claim). Civil rights groups and the legal community deserve criticism but not on this point.

    1. The essay actually makes no argument in favor of “disparate impact.” (That standard had its own limitations as a weapon for pursuing civil rights, which I’d be happy to discuss elsewhere). Part 2 of “The Case for Repair” only points out the increased difficulties presented by “discriminatory intent” for those who’ve attempted to bring about various forms of equality in the post-76 era. One thing I will say about the era of “disparate impact” at least before Griggs v. Duke Power was weakened by the Court’s ruling in Ward Cove Packing Co. v. San Antonio, is that Griggs-era law placed the burden of proof on the employer (in this case for nondiscriminatory use of aptitude tests). The post-Davis court, by contrast, has placed the burden of proof on the aggrieved party to prove the defendant’s intent to discriminate.

      Interestingly, property law presumes a measure of discrimination as an acceptable feature of one’s bundle of property rights (The Civil Rights Act of 1964 merely regulates the nature of that discriminatory practice, for instance). An effective attack on “discriminatory intent” should therefore begin by laying out the case for anti-black racism as a discernible force in American law and policy (which Coates and countless others makes clear), while then demanding that the Court presume discrimination on the basis of race “Not much different than the way it presumes innocence or the racial innocence of its institutions (as in Kemp, for instance). Now, lawyers and historians tend to think about these issues differently. So. I know I’m demanding a measure of racial literacy that the current court does not value. However, the same kind of hostile environment toward racial literacy was true when the separate but equal standard of Plessy ruled the courts. There, the NAACP’s LDF did the painstaking case work over several decades to build an attack on separate-but-equal as a standard (with Charles Hamilton Houston at times arguing for equalization to only to have NAACP attorney’s demonstrate equalization’s folly later). The same kind of deliberate case work would be necessary here, rather than simply attacking the death penalty in one case (Kemp), Florida’s self-defense laws in other (Zimmerman), and predatory lending in another (Wells Fargo). One loss after another, with not a dent in the Davis standard to speak of.

      On the questions of civil rights organizations specifically, I’d invite readers to look at CORE’s work with the Nixon Administration in the early 1970s, the Rainbow Push Coalition’s dealings with Coca-Cola in the 1980s, the Clinton Administration’s checkered record of supporting progressive black appointees in the 1990s, and the NAACP’s dealings with Wells Fargo in the 2010s. In the last instance, the NAACP’s inability to secure an effective prosecution of Wells Fargo, both on behalf of black Americans and the city of Baltimore (on the grounds of lost tax base) generated enough negative press for the bank that Wells Fargo became a major donor for the organization (in the neighborhood of $11 million), helping to establish the NAACP’s financial literacy center in Washington, DC. The bank admitted no wrongdoing. Those moments when discriminatory intent prevented a conviction were often followed by former defendants giving “hush money,” to borrow Coates’s term, in order to make a potential public relations disaster go away.

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