The Color of Law and the Politics of Artifacts

Ancient Roman Soldier

All roads lead to Rome. They do because the ancient Romans built roads. Lotsa roads. They were famous for it. They had had an empire to build and maintain.  They had to come and see and conquer. They had nouns to decline and verbs to conjugate. So they built roads. Really good roads. So good, in fact, that many routes we still use today through Europe were laid down by the Romans two-thousand years ago.

The Romans built roads because they needed them for the maintenance of their empire. The technology of the road was embedded in a particular social system of power. Roman roads are an example of how, in political theorist Langdon Winner’s phrase, artifacts have politics.  The artifacts we are surrounded with every day: our houses, neighborhoods, roads, cities are political in nature. They reflect a certain set of assumptions about who should live where and who should travel freely. One of Winner’s examples were the overpasses built on Long Island. These bridges were too low to allow buses to pass which meant that major transportation routs were designed to keep lower-people out of areas while allowing wealthier, car-owning folks easy access.

In Richard Rothstein’s new book, The Color of Lawit is clear that Winner’s was not an isolated example. Throughout the country, technologies of space and place were purposefully designed to maintain a racist society.

Cover of the book:

The Color of Law takes aim at one of the central myths of American racism. The myth goes as follows: The American south was segregated by de jure racism, segregation mandated by law, colloquially called Jim Crow laws. The complicated legal regime of segregation was eventually toppled by legal action in the courts and Congress in the twenty years following World War II. The American north was also segregated but it was de facto segregation: segregation that was the result of individual choices, private business decisions, and custom. This kind of segregation was not mandated by law in any way.

Rothstein shows that the north was legally segregated just as surely as the American south. Neighborhoods in the north were carved into white and black areas through legally mandated means, just as surely as southern schools were segregated by law:

Racial segregation in housing…was a nationwide project of the federal government in the twentieth century, designed and implemented by its most liberal leaders. Our system of official segregation was not the result of a single law that consigned African Americans to designated neighborhoods. Rather, scores of racially explicit laws, regulations, and government practices combined to create a nationwide system of urban ghettos, surrounded by white suburbs. (p. xii)

The scores of racially explicit laws that segregated housing in the United States included discriminatory racial lending regulations by the FHA beginning in 1935 when “The FHA favored mortgages in areas where boulevards or highways served to separate African American families from whites” (p. 65). African American residents could not get mortgages in the “Levittowns,” and the few who did faced violence by the community and police (Chapter 9).  So, when Bill O’Reilly (remember him?) denied the existence of white privilege by claiming he grew up in Levittown, he was actually confirming white privilege.

Even though the racist policies that created residential segregation throughout the United States are gone, they remain in the very material of the roads and buildings that those policies created. White suburban homes have appreciated in value and continue to do so while African Americans lag far behind in such measures of wealth(p. 179). The Dan Ryan Expressway in Chicago, which was “shifted for several blocks for the purpose of creating a ‘firewall’ between the slowly expanding African American area and white neighborhoods” (p. 265), is still there and the wealth  disparities it helped create are still there.

Map of Chicago ethnic neighborhoods in 1950

The policies might be gone, the racist discrimination continues because the politics are built into the very structures of our cities. It is because of the politics built into our artifacts, that Rothstein cautions that “ending de jure segregation of housing requires doling past actions that may seem irreversible” (p. 177). The Fair Housing Act just turned fifty last week, but as Rothstein argues, “the public policies of yesterday still shape the racial landscape of today” (p. 178).

Rothstein cautions us that whatever solutions we pursue, they all with be “both complex and imprecise. After so much time, we can no longer provide adequate justice to the descendants of those whose constitutional rights were violated” (p. 197). This is not to say that Rothstein has no ideas, he has plenty, but notes that any solutions will be difficult or impossible to adopt in today’s political climate.  Some of the barriers to effective solutions can be found in the reception of Rothstein’s book itself.

Libertarians and conservatives give the book a respectful hearing because Rothstein provides powerful evidence of the evil that government inflicted on American society. However, they seldom support his suggested solutions in the last chapter of his book. Their reasons for doing so are worth exploring because I believe they represent part of the political climate that prevents the country from addressing the deep problems that Rothstein presents.

Some, but not all, of Rothstein’s solutions are explicitly race conscious. These range from the admittedly radical notion that the federal government buy up fifteen percent of the houses in Levittown and sell them at a discount to African-American families to rectify the history of racially exclusionary policies (p. 202) to the less-radical notion that federal subsidies be provided to middle-class African Americans to purchase homes in racially exclusive suburbs (p. 203). Predictably conservatives and libertarians are four-square against anything like race-conscious policies.

One objection to any race-conscious policy is a moral one and is straightforward. Writing over at Cato, Neal McCluskey claims:

Clichéd though it may seem, “two wrongs do not make a right” feels correct: moving from race-based preferences for whites to such preferences for African-Americans, even to ameliorate unquestionable racial injustice, seems unacceptable. We must have preferences for no race under the law, but rather equal treatment for all.

Moving beyond clichés, it is not clear that a race-conscious remedy is morally objectionable. The entire concept of “restorative justice” is that an offender should try to repair the harm caused by a crime.  Nicholas Mcginnis makes this point eloquently:

The question is: if, for centuries, a substantial part of the populace stood outside the social contract —for instance, refused mortgages, denied schooling and economic opportunity, subject to racial terror and discrimination — what are the demands of justice? Not the accusations of punishment due, not the finger-pointing of guilt — what does justice demand? What, if anything, is owed? What can we do to salve the wound? Do we owe nothing to each other? Not as guilty party and victim, but as a society?

It is simply not enough to tell an enormous section of our society that we are sorry about all the racism but we’ve stopped now. We must make positive steps toward amelioration of the harm and some of these positive steps should be race conscious in nature.

A slightly more nuanced moral argument against race-conscious policies was raised in Cato’s journal, Regulation. David Henderson writes that it is a moral wrong to expect today’s white people to, in essence, pay for the sins of their ancestors:

To pay for these subsidies, Rothstein advocates taxing regular taxpayers, almost none of whom are responsible for these policies…. Because our grandfathers didn’t object to one form of social engineering, we can’t object to another? That’s weak. (p. 52)

Though no “regular” (meaning “white”?) taxpayers are “responsible for these policies” the harm from those policies exist today. The policies are gone; the harm remains embedded in our neighborhoods, our cities and suburbs, and our transportation systems. Because artifacts have politics and those politics remain long after those who built the artifacts have shuffled off this mortal coil. The Romans built the Via Appia over two-thousand years ago, but it is still there affecting what we can see and do. (Also see Rothstein, p. 222)

Henderson’s point also shows a misunderstanding of racial justice. He is obsessed with a “harm” being inflicted on today’s taxpayers who are forced to subsidize racial remedies. He treats racial justice as if it is a zero-sum game.  Such a view is reinforced by the conservative belief that government policies always creates winners and losers. The American Conservative thought:


What the Color of Law is really about is that we are all winners when racial discrimination is eliminated. Echoing arguments articulated in the litigation in Brown v. Board of Education, Rothstein argues that racial discrimination hurts white people, though not to the extent it hurts African Americans (pp. 196-7). Just lifting people out of the poverty caused by racial discrimination would benefit everyone economically (also see Rothstein, pp. 225-227).

Morally then, we should take up some of Rothstein’s suggestions. But, there are also practical objections: how can we be sure any of these remedies will make any headway whatsoever toward solving the problem? Every policy has unintended consequences and Henderson points out some of the possible ones of some of Rothstein’s proposals (Rothstein addresses this point, see p. 236).

One easy response to this is to point to the evidence of Rothstein’s book. We know that government policies can put people into decent homes, build good neighborhoods, construct efficient transportation systems because it has done so. The problem is that it has only done this for white people. So eager are conservatives to endorse Rothstein’s thesis that state action has inflicted great harm on the United States that they seem unaware that they can only level this charge by agreeing that the harm is the denying to African Americans the advantages of state action that white Americans received, for example government sponsored mortgages from the VA or the FHA.

There is also the fact that the government segregated the United States with ruthless efficiency. If conservatives can agree that it did so, why could it not integrate the country with similar efficiency? This is a standard conservative dodge: back in the nineteen-forties libertarian Frank Chodorov argued that Fair Employment measures would simultaneously fail because the government is powerless to change morals while also holding that such measures would guarantee the government would ruthlessly run every businesses hiring decisions? Since we know that the government segregated society, why could it not desegregate it as well?  The expert witnesses I wrote about in my book Social Scientists for Social Justice argued during the Brown litigation that the government had inculcated racism so there was no reason to think it couldn’t inculcate antiracism. Sociologist Arnold Rose argued:

It has been thus demonstrable for a long time that law and power could create or increase attitudes of prejudice.. It should not be surprising from newly-available evidence that law and power would also decrease prejudice….Now we know that law and authority can reduce prejudice. (p. 118)

Unfortunately, the conservative case against the usefulness of government action to repair residential discrimination echo segregationist arguments that Rose was responding to in the nineteen-fifties. Over at Cato, we get the warning that “race-based policies foster resentment and can ignite conflicts that may well make matters worse.” This was definitely the stance of “racial moderates” like Virginius Dabney who constantly invoked the merest threat of a violent white backlash to prevent the desegregation of the south.  Cato invokes the Boston busing crisis of the nineteen-seventies as evidence for making “matters worse.” But, one terribly implemented plan does not a natural law make. “Boston became a potent, nearly universal system of what not to do” (p. 223) wrote Ronald Formisano, and that “desegregation has been instituted fairly peaceably in cities in which diverse leaders have shown a united front in support of it” (p. 228). The claim also ignores the evidence that Rothstein himself presents. Describing ordinances that, in a libertarian’s words, “impinge on the freedom of the market” by demanding developers set aside units for low-income families Rothstein reports that the law had the effect of “disproving fears of the area’s middle-class residents, the project did not bring crime into the town of Mound Laurel, diminish the quality of the its public schools, or otherwise harm the community’s character” (p. 205, also see his discussion of this point on pp. 22-225).

Shades of too many segregationists to count, we are told “Research has repeatedly found that people are strongly inclined to self-segregate” as if this were something built into human nature rather than something that was learned and could be unlearned.  Actually, I’m not being fair to their position with that last remark. They completely believe such behaviors can be unlearned. They recommend a full-blown educational effort as the sole remedy to the problem:

Perhaps the solution is to focus not on policy prescriptions, but to constantly and powerfully educate the public about the massive injustice that has been done—the primary goal of Rothstein’s volume. Then change efforts should be concentrated on an avenue we too often forget: civil society—individuals voluntarily forming communities that take collective action, such as churches, Kiwanis clubs, Habitat for Humanity, or any other groups people freely choose to form. They could perhaps pool funds to help African Americans purchase homes, or reach out to black communities and say “consider moving where we live, and if you come we will greet you with open arms,” or other potential actions.

Here, Cato mirrors recommendations made by Rothstein who argues that “we might begin with high school and middle school curricula. If young people are not taught an accurate account of how we came to be segregated, their generation will have little chance of doing a better job of desegregating than the previous ones” (p.199).  No one objects to any of the measures Cato suggests here, however if you visit their page on  “Housing and Urban Policy” all you find are complaints about government interfering with the housing markets and links to articles cheering cuts to housing aid for the poor. Not one word about any kind of anti-racist education through any kind of community action. It is reasonable to wonder what they are waiting for before they launch these efforts. There are many ongoing efforts they could be joining, but they simply are not part of the movement as far as I can see.

Education efforts are not mutually exclusive of governmental action. We can simultaneously educate the public as to the true history of de jure segregation while enacting policies to remedy it. There is not reason to think, as conservatives, and libertarians seem to, that education must precede governmental action. This is a view of social change that has long been shown to be erroneous. William Graham Sumner, the early twentieth century sociologist proclaimed “stateways cannot change folkways” meaning that the government was powerless to change the customs and morals of citizens. It was the rejection of this dictum that mobilized the civil rights movement to attack the Jim Crow laws of the south.  Gunnar Myrdal, in his agenda-setting study of American race relations put it this way regarding the “natural law” of racial prejudice in 1944:

This theory is nothing else than a reformulation and slight modification of the old laissez-faire doctrine of the “natural order” as it was more naively set forth in the Enlightenment period: human relations are governed by “natural laws”; “natural laws” are not only the right laws but are also, in the main, and in spite of all the interferences of foolish governments, actually permeating real life; they do not need to be legalized — if legislation adheres to the “natural laws,” it is not exactly damaging but useless; if legislation conflicts with the “natural laws” it will be inefficacious though slightly damaging as it will disturb somewhat the smooth operation of the ‘‘natural laws.”…The “invisible hand” will inevitably guide human activity. On this central point, which apparently is much of the political purpose of the whole theory of folkways and mores, Sumner simply expresses a common American prejudice against legislation. (pp.1054-5)

Rothstein convincingly argues that this country was segregated by law. It is time begin to undo the harm that is built into our cities and neighborhoods. It is unfortunate that today’s conservatives simply repeat the same arguments against these efforts that segregationists made half a century ago. It is time to join together to truly integrate this country. There is a lot to do, let’s get busy doing it. We still walk on the roads the Romans built two-thousand years ago, but it is time we take our feet off the path we have built for ourselves here at home.

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