Trying to draw normative values from political acts is often dangerous. It tends to ignore the motives and actions of its actors and thus overlooks the actual intended consequences of those actions. Instead it attributes to them some higher rational meaning, the unintended consequence. As such, it asks the wrong questions and diverts from the real issues at hand. More importantly, it bypasses the historical conditions from which such actions derive and thereby again represses the social pathology in exchange for the purity of an ideological position as the historical agent.
Let’s begin with the obvious: there have always been quotas and race-based admissions in university and colleges . . . for white, Protestant men. If the earlier quotas were intended at best to keep ethnics, Blacks, Jews, and women at an invisible minimum (and defer the benign neglect of one’s racism to a gentleman’s agreement), it was simply a socially acceptable practice that played on the historical racism the country was built upon with slavery and the slaughter of Native Americans, on the one hand, and the eugenic theories that stayed institutionalized in our immigration laws until the mid-’60s, on the other. The historical racism this country was built upon is still something most don’t want to acknowledge. It’s not the best idea for a tourist attraction. Yet even among our national holidays, there are very few that in themselves can’t be traced to some kind of racist act in our past. Columbus Day? Yeah, sure, you know: a day that commemorates someone who intentionally tried to kill off a native population. But the holiday actually was a payoff for the largest single mass lynching in American history, which took place in New Orleans in 1891. President’s Day? Let’s not go there; the irony is unrelenting. The Fourth of July? The celebration of equality and independence? Not if you were Black, female, or anything else but white and propertied. It took a civil war to begin that road to the promised land. And even then, how many roads must a man walk down . . . ? Unfortunately, the answer is still blowin’ in the wind.
Let’s set aside for the moment the question of how affirmative action has been implemented in the hands of administrators, and notwithstanding its instrumentation. What those who argue against affirmative action forget, and do not address, is that the concept is not intended to privilege race or sexual identity as the first among equals for a policy of diversity, but to recognize the social pathology of discrimination and inequality that privileged race and sexual identity to begin with. What the current policies of affirmative action have produced is not a hardening of race-based notions but a backlash against “uppity” minorities who tend to step into slots that belong to us white folk; or the equivalent, those who play the game, even though the game—if we may steal a phrase here for a more applicable rendering—is rigged. With the old rules gone, the gentleman’s agreement has been vacated and replaced by Tiki torches and “Jews will not replace us.” That’s not a hardening of race-based identity but the outward manifestation of the disease, like some pathogen hiding in the nervous system of the social body that finally bursts forth from a social trauma. And what is that trauma? As Lindsay Graham has pointed out, there are fewer and fewer white folks to rely on to define the politics of American society.
Now let’s get real: what is really behind the current affirmative action cases before the Supreme Court? It is not to assert American values of equality, liberty, and the American way. It is not being argued on behalf of some norm that is believed to lead to a less polarized society or harmonize a community. It is not to defend some transcendental “race-neutral” principle. On the contrary, here we see the dialectic of tolerance at work. The cases are being litigated to pursue a political outcome that sets off the self-claimed rights and self-interests of individuals against the social pathology; as if the failure to recognize the self-absorbed, abstract, undifferentiated right of an individual to define themselves outside the history of their community was itself the pathology. At the same time, they are not happy that the marketplace has changed. The social contract now discounts, in every sense of the word, the exchange value inherently present in their intellectual property. Instead, it argues, it values an inferior commodity. Standards are lowered to allow cheap foreign products again to push aside what’s American made. The university is no longer the arbiter of a free marketplace of ideas, measured by the objective and qualitative standard of merit. I have news for you: it never was. Historically, merit is a dubious proposition. For those who see a decline in standards as a result of affirmative action, the gentleman’s C forgave many in facilitating undeserved privilege. Not much has changed for this lot; affirmative action is as threatening as the Kobayashi Maru.
For those who argue that affirmative action is a violation of equal protection under the law, equal protection does not mean that differences need to be set aside or ignored in favor of some abstract principle of right based on instrumental reason. The “veil of ignorance” that only sees the right of personhood does not produce liberal values. It denies subjectivity, individuality, determinate existence. These qualities are what drive the right of the free will to define itself and its own particularity within a society that recognizes this particularity. Equal protection under the law should mean that the recognition of difference be given equal treatment where it has previously been oppressed as a basis of differentiation for a free will. A community achieves liberal values and harmony through the recognition of the historicity of difference, not through its benign neglect. Because even when all cows are white, you will still have Comrade Napoleon come forth to tell you some cows are more white than others.
