Law for One People

Winston Taney, American Renaissance, December 8, 2017

How we lost it and how we can get it back.

Over the past few weeks, Gregory Hood has made powerful arguments, at AmRen and Altright.com, about the demise of the rule of law in 21st century America. He touches on three principal themes: (1) “critical race theory” (i.e., the left-wing idea developed in American law schools in the 1970s and 80s that racial hierarchy structures legal norms and adjudication) has infected the legal profession, (2) critical race theory, despite its problems, provides a richer understanding of American law than any conservative legal theory, and (3) the rule of law is dying. I agree with Mr. Hood’s analysis, but would like to add a few notes.

Why critical race theory is right (in theory)

Two essential properties of critical race theory are that (1) the law is indeterminate, and (2) therefore race relations structure the resolution of any legal dispute in which race is an issue, particularly in criminal and constitutional law. Both of these propositions are essentially right.

As for the law’s indeterminacy, many studies have found that in most legal controversies—and virtually all of any importance—”The law runs out,” as lawyers often say. This means that the conventional methods of legal interpretation—e.g., following legal texts or judicial precedent—cannot provide clear guidelines in every factual dispute.

For example, the 14th Amendment’s Equal Protection Clause was designed to ensure that the freedmen did not suffer legal disabilities after emancipation. But on difficult policy questions, such as the desirability of racial integration and interracial marriage, the text and history are unclear.

Does “equal protection of the law” mean what the Supreme Court said it meant until 1954: that the government must provide equal resources to different racial groups, but may provide those equal resources separately? That interpretation permitted segregation and bans on interracial marriage, both of which were part of the social order up until the mid-20th century.

Or does “equal protection of the law” mean what the Supreme Court has generally said over the past 60 years: that the government must provide the same resources in the same locations? Neither text nor history resolves this ambiguity. That means a judge has to look outside the law to make a decision.

That is where the second proposition of critical race theory comes in to play. When judges look outside the law, understandings of race will be a critical factor, at least whenever race is even peripherally involved.

Consider again the example of the Equal Protection Clause. In Plessy v. Ferguson (1896), the case holding that Louisiana had not violated the Clause by requiring equal but segregated train cars, the Supreme Court was not simply applying the meaning of “equal protection.” Instead, it was interpreting its meaning in a way that made sense in a multiracial country in which the majority of the Justices and the vast majority of the people did not want integration.

The same is true of Brown v. Board of Education (1954). The Court was not simply applying the meaning of “equal protection.” Rather, it was trying to interpret its meaning in a way that made sense in a multiracial country in which the Justices and many white elites, particularly in the North, wanted integration. As one critical race theorist famously explained, the Brown decision was designed to advance “societal interests deemed important by middle and upper class whites.”

Neither case was ultimately about law as such, but about trying to make a multiracial society work. Critical race theory thus provides insight into why and how decisions such as Plessy and Brown differed in their understandings of the meaning of equal protection.

Why critical race theory is wrong (in practice)

The problem with critical race theory is that it is practiced only by left-wing scholars who view “white supremacy” as the only relevant racial reality in American law. A more accurate and balanced approach to critical race theory would recognize that, in all societies where racial differences are pervasive, race will be a significant factor in legal decision-making. The greater the diversity among the racial groups—both in degree and percentage—the more likely it is that tribal identity will replace the rule of law.

To illustrate this point, compare the legal systems governing a homogeneous country (such as Iceland) and a diverse country (such as the United States). In both legal systems, there will be many situations where the law is unclear. For example, what does “equality” require? That Christian bakers make cakes for same-sex weddings? Affirmative-action programs for disadvantaged groups? Vast overhauls of public education, criminal law, and jury procedures to eliminate “systemic” discrimination?

In a homogeneous society, these questions do not arise with much intensity or frequency, because what the people have in common fills in the gaps left by legal indeterminacy; that “filling in” process is part of what we call the natural law. The law in Iceland may be unclear, but no one will notice, because the people are naturally similar. The commonality of the people renders the indeterminacy of the law irrelevant.

In a multiracial society, however, there is a weaker natural foundation to support the law. Without the glue of nature, tribal strife emerges. That is a big part of why in the United States there are fierce legal battles over every major social disagreement. Indeed, the United States is unique in its division and obsession over topics such as originalism, federalism, and judicial restraint. Many conservatives may see these as healthy concerns, in pursuit of a more just and efficient legal order, but a more clear-eyed understanding would see these preoccupations as part of a national sickness, growing out of an unnatural and ever-worsening diversity.

Left-wing critical race theorists understand better than conservatives that the American legal system has always reflected a fierce tribalism. But the thinking of critical race theorists is locked in the past. They believe our legal system still reflects white supremacy rather than the anti-white liberalism that now permeates American law.

In modern-day America, there are different implicit rules for racially conscious whites. The United States has one of the most invasive public-accommodations laws in the world, preventing businesses, no matter how small, from refusing service on the basis of any identity or affiliation—except to racially conscious whites. Likewise, our nation may ensure more free-speech protection than any other—except for racially conscious whites. For more than 150 years, the American bar has been expanded to many groups, including blacks, but that right may soon be taken away from racially conscious whites. Non-discrimination in employment has steadily expanded, except as applied to racially conscious whites. Everyone has a right to be free from violence, except for racially conscious whites.

Credit Image: © Emily Molli/NurPhoto via ZUMA Press

Critical race theorists fail to notice that over the past 50 years, anti-white advocacy has accumulated enormous power. Despite a massive anti-white media/entertainment/academic campaign, these scholars still see “white supremacy” as the core of our legal system.

Perhaps this is because discrediting white consciousness advances the left-wing agenda, which, as one critical legal scholar conceded, increasingly sees “the straight white male working class” as “the core of the enemy camp.”

But perhaps this hostility toward racially conscious whites comes more from a misguided sense of empathy than from sheer animus. A good example of this is how left-wing legal philosopher Martha Nussbaum has her students read black literature so they can develop the empathy to understand the relationship between American law and the black struggle. She does this with the intention of helping her University of Chicago students understand what causes the violence in the South Side of the city. She has her students imagine what it must be like to be black—to imagine the nightmare of the middles passage;  the humiliation and pain of over 200 years of bondage; the tyranny of Jim Crow; the horror of lynching; and the poverty and incarceration rates that have carried over into the 21st century.

Critical race scholars do not try to understand, however, why white advocacy is rising—what it must be like for whites watch their own governments turn over their cherished institutions to hostile populations; to feel vilified whenever they turn on a television, take a college class, or watch a movie; to be terrified to live in the cities their own people created; to be disproportionately raped, murdered, and harassed while their government lies about it; to raise children in a country in which their identity is scorned.

An honest critical racial understanding of American law and society would conclude that there are deep grievances on all sides, and no way for a unified legal system to resolve them. In a multiracial society, the scales of justice become a pendulum, swinging back and forth according to who has power. There is only one way to stop the pendulum from swinging.

Restoring the rule of law

The rule of law is one of the most cherished concepts in Western Civilization, going back to Plato, Aristotle, Aquinas, Dicey, Blackstone, and indeed the Founders. But the rule of law can emerge only after certain social, cultural, and biological requirements are met.

John Jay alluded to this idea, in Federalist 2, when he thanked “Providence … [for] giv[ing] this one connected country to one united people—a people descended from the same ancestors.” Jay realized that nothing else the Framers sought—limited federal power, individual rights, separation of powers—is possible without first having “a people descended from the same ancestors.” This makes Federalist 2 more important and prescient than any of the other 84 essays in the Federalist, but conservatives ignore this essay while they dissect the intricacies of Federalist 10 and 51.

John Jay

Conservatives likewise quote John Adams’s great line in the Massachusetts Constitution about creating “a government of laws and not of men,” but in their many paeans to the Founders and the rule of law, conservatives often forget that the Founders knew that words by themselves do not ensure the rule of law; it must be fought for by people and it can easily slip away. As Ben Franklin said, the Constitution created “a Republic, if you can keep it.”

A little more than 200 years later, Justice Scalia, in a famous 1989 essay, argued that the rule of law can be revived by re-establishing a law of strict rules. What conservatives like Scalia fail to see, however, is that the rule of law cannot be brought back through magical incantations. In trying to revive the rule of law through some new theory, they are like parents hoping to revive a dead child with a séance. We didn’t keep Franklin’s republic and we can’t bring it back—not with this society.

This is where I cannot fully endorse Mr. Hood’s assertion that “[a]ll politics is identity politics and law is not separate from politics, but an expression of it.” Law is a part of politics, but law is also about what is essential to a people. The answer is not to give up on the rule of law as an aspiration, or any of the other inherited values and traits of our European-American tradition. The answer is to re-create the rule of law in a more suitable setting where it can flourish as it once did.

This issue, then, is about much more than law: It is about the task facing all people of European ancestry. Our task, from America to Germany to New Zealand, is to be, and re-create, who we are.

This extends to every facet of our civilization. It means rejecting both the formalism of legal conservatism and the nihilism of legal liberalism; it means rejecting so-called White Sharia and the degeneracy of gender neutrality; it means rejecting an ethno-masochistic version of Christianity and the materialistic atheism of liberalism.

In short, we must become better men, husbands, and fathers; and as Victoria Garland has noted, we must also become better women, wives, and mothers. We must make the rule of law—and ourselves—great again. And once we reclaim it, we must never again let it go.

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Winston Taney
Winston Taney is a constitutional law professor and conservative Christian, struggling to believe in constitutionalism, conservatism, and Christianity in 21st century America.
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