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Friday, July 28, 2023

Oppenheimer through modern eyes

I saw Oppenheimer yesterday, and I generally came away very impressed. The production design was outstanding and the major characters were all well cast.  The dialogue among highly intelligent people seemed entirely realistic, as it so rarely does in major films. The movie conveyed the incredible mix of excitement and terror involved in major theoretical and practical breakthroughs in physics.  I enjoyed the relationship between Oppenheimer (Cilian Murphy) and General Leslie Groves (Matt Damon)--two very different, very strong personalities who knew that they needed one another.  I also enjoyed the long segment of the movie dealing with Lewis Strauss, the one-time chairman of the Atomic Energy Commission who may have wrecked Oppenheimer's career in public service, and his rejection as Secretary of Commerce by the Senate in 1959, which I remember quite well--even though I have the impression that the film exaggerates the role of the Oppenheimer controversy in that outcome.  There was however one thing about the film that I did not like.  In addition, I just stumbled upon Peggy Noonan's review of it in the Wall Street Journal, which gives me a chance to expand upon a point I made recently--the way that journalists now see their role in the world.

General Groves was a hot-tempered military man who as a result has been caricatured at least twice on screen, once by Manning Redwood in the excellent PBS miniseries about Oppenheimer from 1980 (starring Sam Waterston) and also by Paul Newman in Fat Man and Little Boy.  Matt Damon went in the other direction and played him in a relatively low-key manner, and interviews with Groves in a 1965 documentary The Decision to Drop the Bomb--available on youtube--suggest that he got it right.  The problem arose, oddly, when Christopher Nolan, the director, turned to famous people--two in particular--President Harry S. Truman and Secretary of War (and one-time Secretary of State) Henry M. Stimson.  He and his collaborators, frankly, appear to know very little about either man, and didn't care enough to find out.

Harry Truman still has an image as a man of the people--but that image is only half true.  Yes, he was a friendly Midwesterner with a notoriously foul mouth, but he was also extremely intelligent and very well read in American history.  When he became Vice President he had spent several critical years chairing the Senate Committee on the Conduct of the War, looking for problems that had to be corrected in the unprecedented war mobilization that the country went through.  He took his job extremely seriously and he made a number of critical decisions in both foreign and domestic affairs, beginning, of course, with the decision to drop atomic bombs on Japan.  He was ahead of his time in two major respects.  In late 1945 he proposed a national health insurance system, which, sadly, the United States still does not have, and in 1948 he became the first president to put civil rights as we now understand them on the national agenda.  He could not get his civil rights proposals through Congress but he made them part of the Democratic Party platform and started the ball rolling that crossed the goal line in 1964-5. 

I do not know why Christopher Nolan decided not to use Truman's actual broadcast announcing the Hiroshima bomb in the film.  I have heard it many times and I feel certain that in the movie an actor read the words.  Nor did I recognize Truman (or his Secretary of State Jimmy Byrnes) in the scene in which they meet with Oppenheimer, in which Truman look and sounds like a fat Rotarian who raises his voice when his interlocutor says something to disturb him.  We haven't had a president of Truman's caliber in a very long time, and Nolan might have given us all a better look at the real man.

I am myself more intimately acquainted with Stimson that with Truman since I read all his diary entries over an 18-month period while researching No End Save Victory.  He was older and slimmer that the actor who played him in the movie.  Walter Huston, the star of Dodsworth and The Treasure of the Sierra Madre, could have done a brilliant job of playing him.  The film shows Stimson arguing very briefly with General Groves over whether to drop the atomic bomb on the city of Kyoto--and repeats a myth that Stimson was influenced by having visited Kyoto on his honeymoon.  (He had visited the city, but only decades after his marriage.)  It so happens that General Groves, in his own memoir, described that conversation in great detail, and I read it to War College classes many times.  Here is his account of the conversation.

"With these [target] selections in hand, I prepared a plan of operations for General Marshall, recommending his approval. This report was in my office when I went co see Secretary Stimson about another matter. In the course of our conversation, he asked me whether I had selected the targets yet. I told him that I had and that my report was ready for submission co General Marshall. I added that I hoped to see the General the next morning.

"Mr. Stimson was not satisfied with this reply and said he wanted to see my report. I said that I would rather not show it to him without having first discussed it with General Marshall, since this was a military operational matter. He replied, "This is a question I am settling myself. Marshall is not making that decision." Then he told me to have the report brought over. I demurred , on the grounds that it would cake some time. He said that he had all morning and that I should use his phone to get it over right away.

"While we were waiting, he asked me about the targets. When I wen over the list for him, he immediately objected to Kyoto and said he would nor approve it. When I suggested that he might change his mind after he had read the description of Kyoto and our reasons for considering it to be a desirable target, he replied that he was sure that he would no.

"The reason for his objection was that Kyoto was the ancient capital of Japan, a historical city, and one that was of great religious significance to the Japanese. He had visited it when he was Governor General of the Philippines and had been very much impressed by its ancient culture.

"I pointed out chat it had a population of over a million; that any city of that size in Japan must be involved in a tremendous amount of war work even if there were but few large factories; and that the Japanese economy was to a great extent dependent on small shops, which in time of war tured out tremendous quantities of military items .. .. I pointed out also that Kyoto included 26,446,000 square feet of plane area that had been identified and 19,496,000 square feet of plant area as yet unidentified. The city's peacetime industries had all been converted to war purposes and were producing, among other items, machine tools, precision ordnance and aircraft parts, radio fire control and gun direction equipment. The industrial district occupied an area of one by three miles in the total built-up area of two and one-half by four miles.

"Mr. Stimson was not satisfied, and without further ado walked over to the door of General Marshall's office and asked him to come in . Without telling him how he had got the report from me, the Secretary said that he disagreed with my recommendation of Kyoto as a target, and explained why. ...

"After some discussion, during which it was impossible for me discreetly to let General Marshall know how I had been trapped into by-passing him, the Secretary said that he stuck by his decision. In the course of our conversation he gradually developed the view that the decision should be governed by the historical position that the United Stares would occupy after the war. He felt very strongly that anything chat would tend in any way to damage this position would be unfortunate.

"On the other hand, I particularly wanted Kyoto as a target because, as I have said, it was large enough in area for us to gain complete knowledge of the effects of an atomic bomb. Hiroshima was not nearly so satisfactory in this respect. I also felt quite strongly, as had all the members of the Target Committee, that Kyoto was one of the most important military targets in Japan. Consequently, I continued on a number of occasions afterward to urge its inclusion, but Mr. Stimson was adamant. Even after he arrived in Potsdam, Harrison sent him a cable saying that I still felt it should be used as a target. The recurn cable stated that he still disapproved, and the next day he followed it with another which said rhat he had discussed the matter with President Truman, who concurred in his decision. There was no further talk about Kyoto after that."

The film makes one another mistake about the targeting, when Oppenheimer says that the bombs must be dropped twice, the second time simply to make clear that the United States could continue atomic bombing indefinitely.  In fact there was no intention to stop after one bomb (and no separate decision to drop the second one, in fact, as some irresponsible historians have speculated), and a third drop had already been scheduled when the Japanese accepted American surrender terms. Once again I feel that an accurate rendering of the Groves-Stimson conversation would have given us all a necessary impression of the kind of leadership that got us through the greatest war in world history.

I turn now to Noonan's review. To begin with, she paints Oppenheimer as a tragic figure because she thought his "driver," and perhaps his primary one, was his desire "to be a great man like his contemporary [sic], the hero of science, Albert Einstein"--and he could only do that by creating the "moral horror" of the atomic bomb.  No ambition of Oppenheimer's, however, played any role in the decision to build the bomb.  As the movie makes clear, albeit very quickly, the project began with Einstein's 1939 letter to FDR sketching out the possibility of a fission weapon and suggesting that the Germans were probably hard at work on one.  That meant that the survival of civilization depended on building one before they did.  In bringing the project to fruition Oppenheimer was simply doing his job, a job that many tens of thousands of lives, in the end, depended on.  (The movie, by the way, also bows quickly to the idea that the bombs were not necessary to induce the Japanese surrender--a myth decisively refuted by Richard Frank in his book, Downfall.)

Noonan then goes further. "My deeper criticism of the film," she writes," is that I expected more of Oppenheimer’s reaction to what happened after the bomb was dropped. Before Hiroshima was bombed, at 8:15 a.m. local time on Aug. 6, 1945, everything was theory—mathematical formulae, observed blast radius, calculations and estimates. Only afterward would it be known what actually happened. I expected more of Oppenheimer’s absorbing of the facts of his work, more on how his reflections turned and developed."  He would have absorbed this information, she says, "indelibly through the work of John Hersey," a journalist and novelist who wrote a famous description of the effect of the bomb on Hiroshima that appeared in the New Yorker in May 1946.  That piece, she argued, inevitably affected the thinking of everyone who read it.  "I don't know if Robert Oppenheimer was a great man," she writes, "but John Hersey was."

As as matter of fact, it is very hard to argue that Hersey's piece had any short- or medium-term impact on the willingness of the United States to use atomic weapons again.  Well before that piece, Stimson (him again) had been instrumental in getting the US government to present a plan at the UN to bring atomic energy and atomic weapons under international control.  The Soviets however rejected it, and over the next fifteen years or so, atomic weapons, as I found writing American Tragedy, figured in all American strategic planning for almost any war.  Eisenhower and Dulles spoke more than once of having to remove the "taboo" against using them.   It was the presidents of the GI generation--most notably Kennedy and Nixon--who resolved to do what they could to try to eliminate the threat of nuclear war.  

More striking however, is Noonan's journalistic hubris.  Oppenheimer, the physicist who built the bomb, might have been great. Hershey, the man who told the world how horrible it was, indisputably was. And there, in a nutshell, is the perspective of today's commentariat, most consistently displayed over the last few decades by Nicholas Kristof and Thomas Friedman of the New York Times, but by many others as well. They do not see their job as explaining to the public how our leaders are trying to do their job, but rather as explaining to our leaders, in public, how they should do their job.  Friedman, undeterred by the failure of successive Israeli and Arab governments ever to follow his advice, is once again laying out Middle East peace plans as I write.  

I have been writing these weekly pieces--most of them much longer than the normal op-ed--for nearly 20 years now.  They usually take me about an hour or two to write and sometimes less.  Two or three a week would take less than a full working day.  For that amount of work, the regular op-ed writers of the world make several hundred thousands of dollars a year now.  Perhaps that is what gives them such a high opinion of themselves and their role.  We need to develop more respect for the opinions of the men and women who actually exercise decision-making authority.  Perhaps that would allow them, like the Roosevelts and the Stimsons and the Oppenheimers, to design great projects and bring them to fruition once again.

Monday, July 24, 2023

The 1619 Project and the contemporary intellectual scene

 In 2019 the New York Times devoted one entire issue of its Sunday magazine to its 1619 Project, whose director, Nikole Hannah-Jones, put forward a new interpretation of American history.  The real founding of the United States as we know it, she argued, took place not in 1776 or 1787-9, but in 1619, when the first African slaves--she said--landed in Jamestown, Virginia.  Slavery and oppression of black people by white, Jones said, were the central principles of colonial and later American society from the beginning; "Anti-black racism runs in the very DNA of this country;" and black people had always had to fight almost alone to secure their rights.  Accepting Jones's claim that Americans had learned to ignore these truths since the beginning, the Times embarked upon a huge and expensive educational mission to re-educate the citizenry, promoting the book version of the project almost every week from that day to this and distributing many thousands of copies of teaching materials based upon the project.  Meanwhile, several distinguished historians, as we shall see in a moment, immediately argued that Jones and her colleagues on the project had made fundamental errors of fact and perspective and asked the Times to correct them.  This the editor of the magazine refused to do.

It would take a whole book to trace the controversy over the project.  I am going to talk about two publications that appeared in response to it in the last two years.  The first is a book published in 2021, edited by David North and Thomas Mackaman, The New York Times' 1916 Project and the Racialist Falsification of History.    The book, most of which had already appeared on line, was the work of the International Committee for the Fourth International ICFI), who are Trotskyites.  The second is a forum from the December 2022 issue of the American Historical Review, the nation's leading historical journal, which 19 historians and one journalist (Jake Silverstein) to comment on the project.  Together they paint a revealing picture of the intellectual landscape of the United States in the 2020s.

The IFCI reader begins with a foreword by David North that makes some critical points.  Although at least two of the contributors to the 1619 Project were white, a December 3, 2020 Times article, "How the 1619 Project came together," included the following statement: "Almost every contributor in the magazine and special section — writers, photographers and artists — is black, a nonnegotiable aspect of the project that helps underscore its thesis, Ms. Hannah-Jones said."  The idea that only black historians could write black history, the forward shows, became popular in the late 1960s, and has been developed in more sophisticated form by postmodernists who now argue that "whiteness"--a concern for white supremacy--has informed not only the whole western European intellectual endeavor of the modern era, but its artistic achievements and scientific approach as well. The 1619 Project, in short, is one highly visible part of a broader attack on the intellectual principles of our civilization.

The first article in the IFCI reader, "The New York Times' 1619 Project: A Racialist Falsification of American and World History," sets the tone for the whole work.  Quoting Hannah-Jones on the "very DNA of this country," Niles Niemuth, Thomas Mackaman and David North write, "This is a false and dangerous conception.  DNA is a chemical molecule that contains the genetic code of living organisms and determines their physical characteristics and development.  The transfer of this critical biological term to the study of a country--even if meant only in a metaphorical sense--leads to bad history and reactionary politics. Countries do not have DNA, they have historically formed economic structures, antagonistic classes, and complex political relationships."  Quoting other similar work as well, they identify a tendency to identify black and white Americans almost a separate and perhaps irreconcilable species, and compare it quite appropriately to social Darwinism in the 19th century and National Socialism in the 20th.  They then argue that slavery cannot be viewed simply in  a North American context, since it has existed all over the world almost from the beginning of time, with Africa the primary supplier of slaves for several continents by the 17th century.  They also focus on Hannah-Jones's two indefensible claims in her original (and since slightly amended) introduction to the project: that the American colonists fought the revolutionary war largely to preserve slavery, and that Abraham Lincoln opposed racial equality in the United States.   They accuse her of ignoring the most important scholarship on these issues, and they argue instead that the whole problem of slavery and race relations after emancipation must be viewed in the context of an American class struggle in which black Americans were simply one particular part of the working class.  And by barely nodding at the Civil War--the gigantic war that ended slavery--and ignoring the progress of the working class, they argue, the project ignores the great progress that all its segments have made, and the work that remains to be done.  The New York Times, they suggest, blessed and promoted the project because it fit into its editors own world view, in which diversity among the elite has become a substitute for the redistribution of income and wealth.

Three subsequent short, pithy contributions by Mackaman, Eric London, and Joseph Kishore flesh out many of these points.  Mackaman sketches out the worldwide history of slavery, which had become very prevalent in Africa and had involved millions of white and black slaves in the Middle East and South Asia as well as the Americas.  He mentions the very great natural increase of slaves in what became the United States--a sharp contrast with slave populations in the Caribbean and South America, who evidently faced much harsher conditions.  He notes that indentured servants--many of whom were treated as badly as slaves--were for a long time the leading source of labor in Maryland and Virginia.  He also mentions that the 1771 Somerset decision in England, which freed a slave whose owner had brought him from the Caribbean to England, denied any right to own slaves, which could only exist where laws specifically endorsed it.  The founding fathers similarly omitted any endorsement or even specific mention of slavery from the Constitution, which was ratified while most of the northern states were abolishing the institution.  Eric London spends most of his time attacking Hannah-Jones and 1619 contributor Matthew Desmond for arguing that slavery served both the emotional and material interests of most of the white people in the South.  "According to the Times," he writes, "slavery was bad for the slaves by improved the lives of the majority of the people in the South.  To put it bluntly, the Times is regurgitating the argument of the slaveholders."  The penal institutions of the South imprisoned poor whites, not blacks, whose economic status was precarious indeed. London may exaggerate when he says that a majority of southern whites opposed secession, but many unquestionably did, including large majorities in West Virginia and East Tennessee and 300,000 white southerners who joined the Union army.  “By denouncing the revolutions it led—the bourgeois revolutions of 1775-1873 and 1861-65—today’s ruling class is signaling its hostility to the Declaration of Independence, to the principle of equality before the law, to the Constitution, to the Enlightenment and rationalist thought, and to the fundamental principle that the people are endowed with certain inalienable rights,” he says.  It is sad that we need a Trotskyite to make this point today. 

Joseph Kishore makes an even stronger argument against identity politics, which, he rightly argues, has become a critique of the Enlightenment.  He quotes another leading contemporary black intellectual, Ibram X. Kendi, who denigrated the Enlightenment as a "metaphor for Europeanness, and therefore Whiteness. . . .Enlightenment ideas gave legitimacy to this long-held racist 'partiality,' the connection between lightness and Whiteness and reason, on the one hand, and between darkness and Blackness and ignorance, on the other." "Today’s bourgeoisie," Kishore continues, "is repudiating any association with anything progressive in its own past.  By denouncing the revolutions it led—the bourgeois revolutions of 1775-1873 and 1861-65—today’s ruling class is signaling its hostility to the Declaration of Independence, to the principle of equality before the law, to the Constitution, to the Enlightenment and rationalist thought, and to the fundamental principle that the people are endowed  with certain inalienable rights.”  The term "identity politics," he notes, was coined by the Combahee River Collective, a 1970s group of black lesbian feminists, who wrote that black women “have always embodied, if only in their physical manifestation, an adversary stance to white male rule. . . .This focusing upon our own oppression is embodied in the concept of identity politics.  We believe that the most profound and potentially most radical politics come directly out of our own identity, as opposed to working to end somebody else’s oppression.”  The influential Michel Foucault, he adds, also rejected the centrality of class conflict and the Enlightenment idea of truth. Kishore also presents statistics to show that income inequality has been rapidly increasing among the black population of the US, as well as in the population as a whole. The top 1 percent of black Americans, he says, owned less than 25 percent of black American wealth in the early 1990s, but the own 40.5 percent of it now.

The reader then turns to interviews with six eminent historians and political scientists covering a center-left spectrum who share their reservations about the project.  Victoria Bynum presents some of her findings about white southern society, including the thousands of poor whites who literally competed with slaves for jobs and the independent yeomen farmers who favored abolition.  James McPherson, our most eminent historian of the Civil War period, criticizes the project for ignoring the huge and ultimately successful anti-slavery movement in the United States.  James Oakes criticizes Matthew Desmond's argument that slavery was central to American capitalism.  The Civil War, he says, was obviously a context between two very different economic systems, and the industrializing North, not the agricultural South, was driving economic development. Oakes, a professor at the Graduate Center of the City University of New York, gives a revealing answer in response to a question about his relationship to proponents of identity politics on campus:

“My sense is that among graduate students the demitarians stay away from me, and they badger the students who are interested in political and economic history.  They have a sense of their own superiority.  The political historians tend to feel besieged.  The reflection of identity politics in the curriculum is the primacy of cultural history. There was a time, a long, long time ago, when a ‘diverse history faculty’ meant that you had an economic historian, a political historian, a social historian, a historian of the American Revolution, of the Civil War, and so on.  And now a diverse history faculty means a women’s historian, a gay historian, a Chinese American historian, a Latino historian.”  [This]has produced narrow faculties in which everybody is basically writing the same thing.” 

Gordon Wood, a prolific 89-year old historian now retired from Brown, emphasizes--as he has shown at length in books--that by 1776 or 1789 most Americans all over the colonies thought that slavery was dying. North America, he says, was the locus of the first real antislavery  movement, and the ideology of the revolution put slavery on the defensive.  Few now understand how revolutionary the idea of equality among citizens was--even if it was initially mostly restricted to white men.  The political scientist Adolph Reed Jr. also hits the academic nail on the head speaking of the "cultural turn in academia," a synonym for identity politics. "One of its ironic entailments is this notion that doing cultural work in academia itself is a form of political practice, and that advancing certain programmatic and intellectual interests within the Academy or in bourgeois public discourse is simultaneously a political practice and an intellectual practice.”  Academics, he says, simply appropriate the past to push their agenda in the present, and critical race theory is "another expression of reductionism." Asked about Hannah-Jones's idea of "national DNA," he replies, "The only place that can lead, if it's impermeable, is race war."  And he revealingly adds: “The ‘legacy of slavery’ construct is also one I’ve hated for as long as I can remember because, in the first place, why would the legacy of slavery be more meaningful than the legacy of sharecropping and Jim Crow and the legacy of the Great Migration? Or even the New Deal and the CIO?”  Retired British academic Richard Carwadine expresses shock that the distortions in the project will find their way into US classrooms, and, like many others, attacks Hannah-Jones for almost completely ignoring figures like Frederick Douglass and Martin Luther King, Jr. 

Clayborne Carson, a veteran and historian of the Student Nonviolent Coordinating Committee, describes his three years of intense work as one of the consultants on the PBS documentary Eyes on the Prize, a sharp contrast to the quick and private genesis of the 1619 project.  The American Revolution, he says, combined an intellectual movement from the top down based on the idea of universal rights and a freedom movement from the bottom up.  And historian Dolores Janiewski stresses that many original white settlers were not free, and that the original blacks who landed in Jamestown were not formally slaves.  Even in the South, she makes clear, blacks did not fight alone against slavery and for equal rights under Reconstruction--a point also argued by Jones.

The collection continues with accounts of a letter submitted by some of these same historians (and by another one, Sean Wilentz) asking the Times to correct some of the mistakes in the project, and of magazine editor Jake Silverstein's refusal to do so, with one marginal exception.   In a discussion of the Times controversy, David North and Eric London trace Hannah-Jones' view of Lincoln as anti-black to a 1968 magazine article in Ebony and a 1999 book, Forced into Glory: Abraham Lincoln's White Dream by Lerone Bennett Jr., whom Hannah-Jones praised in a 2019 interview. Then it concludes with some excellent short historical pieces on the destruction of monuments of Washington, Jefferson, Lincoln and Ulysses S. Grant during 2020; on the significance of the Declaration of Independence in world history; on Abraham Lincoln's response to the Dakota Indian rebellion of 1862; on Martin Luther King, Jr.,; and on my one-time colleague, the late historian of the American Revolution Bernard Bailyn.  

Before turning to the AHR forum, I would like to add two historical perspectives of my own.  The first relates to the national and international stakes of the American Civil War.  Thirty years before that war, Tocqueville had noted that slavery had created a very different society in the South than in the North. While the North was the quintessential democratic and egalitarian society, slavery in the South had created an aristocracy, and southern society showed all the aristocratic vices of licentiousness, violence, and gambling.  When the war broke out in 1861 Europeans of all political stripes recognized it as a struggle between the democratic North and the aristocratic South, and took sides accordingly.  The northern victory turned out to be a victory for European democrats as well, and Great Britain, Germany and France all took huge steps towards representative government in the decade after it was over.  That is an important part of the significance of the Civil War that the 1619 Project has to ignore.

My second point also relates to the differences between the antebellum North and South, based on the reminiscences of the great Frederick Douglass.  Here, in his first autobiography, My Bondage and My Freedom, he describes his first impressions of the thriving Massachusetts port of New Bedford, where he arrived after escaping from Maryland in 1838.

"The reader will be amused at my ignorance, when I tell the notions I had of the state of northern wealth, enterprise, and civilization. Of wealth and refinement, I supposed the north had none. My Columbian Orator, which was almost my only book, had not done much to enlighten me concerning northern society. The impressions I had received were all wide of the truth. New Bedford, especially, took me by surprise, in the solid wealth and grandeur there exhibited. I had formed my notions respecting the social condition of the free states, by what I had seen and known of free, white, non-slaveholding people in the slave states. Regarding slavery as the basis of wealth, I fancied that no people could become very wealthy without slavery. A free white man, holding no slaves, in the country, I had known to be the most ignorant and poverty-stricken of men, and the laughing stock even of slaves themselves—called generally by them, in derision, 'poor white trash.' Like the non-slaveholders at the south, in holding no slaves, I supposed the northern people like them, also, in poverty and degradation. Judge, then, of my amazement and joy, when I found—as I did find—the very laboring population of New Bedford living in better houses, more elegantly furnished—surrounded by more comfort and refinement—than a majority of the slaveholders on the Eastern Shore of Maryland. There was my friend, Mr. Johnson, himself a colored man (who at the south would have been regarded as a proper marketable commodity), who lived in a better house—dined at a richer board—was the owner of more books—the reader of more newspapers—was more conversant with the political and social condition of this nation and the world—than nine-tenths of all the slaveholders of Talbot county, Maryland. Yet Mr. Johnson was a working man, and his hands were hardened by honest toil. Here, then, was something for observation and study. Whence the difference? The explanation was soon furnished, in the superiority of mind over simple brute force. Many pages might be given to the contrast, and in explanation of its causes. But an incident or two will suffice to show the reader as to how the mystery gradually vanished before me.

"My first afternoon, on reaching New Bedford, was spent in visiting the wharves and viewing the shipping. The sight of the broad brim and the plain, Quaker dress, which met me at every turn, greatly increased my sense of freedom and security. “I am among the Quakers,” thought I, “and am safe.” Lying at the wharves and riding in the stream, were full-rigged ships of finest model, ready to start on whaling voyages. Upon the right and the left, I was walled in by large granite-fronted warehouses, crowded with the good things of this world. On the wharves, I saw industry without bustle, labor without noise, and heavy toil without the whip. There was no loud singing, as in southern ports, where ships are loading or unloading—no loud cursing or swearing—but everything went on as smoothly as the works of a well adjusted machine. How different was all this from the nosily fierce and clumsily absurd manner of labor-life in Baltimore and St. Michael’s! One of the first incidents which illustrated the superior mental character of northern labor over that of the south, was the manner of unloading a ship’s cargo of oil. In a southern port, twenty or thirty hands would have been employed to do what five or six did here, with the aid of a single ox attached to the end of a fall. Main strength, unassisted by skill, is slavery’s method of labor. An old ox, worth eighty dollars, was doing, in New Bedford, what would have required fifteen thousand dollars worth of human bones and muscles to have performed in a southern port. I found that everything was done here with a scrupulous regard to economy, both in regard to men and things, time and strength. The maid servant, instead of spending at least a tenth part of her time in bringing and carrying water, as in Baltimore, had the pump at her elbow. The wood was dry, and snugly piled away for winter. Woodhouses, in-door pumps, sinks, drains, self-shutting gates, washing machines, pounding barrels, were all new things, and told me that I was among a thoughtful and sensible people. To the ship-repairing dock I went, and saw the same wise prudence. The carpenters struck where they aimed, and the caulkers wasted no blows in idle flourishes of the mallet. I learned that men went from New Bedford to Baltimore, and bought old ships, and brought them here to repair, and made them better and more valuable than they ever were before. Men talked here of going whaling on a four years’ voyage with more coolness than sailors where I came from talked of going a four months’ voyage.

"I now find that I could have landed in no part of the United States, where I should have found a more striking and gratifying contrast to the condition of the free people of color in Baltimore, than I found here in New Bedford. No colored man is really free in a slaveholding state. He wears the badge of bondage while nominally free, and is often subjected to hardships to which the slave is a stranger; but here in New Bedford, it was my good fortune to see a pretty near approach to freedom on the part of the colored people. I was taken all aback when Mr. Johnson—who lost no time in making me acquainted with the fact—told me that there was nothing in the constitution of Massachusetts to prevent a colored man from holding any office in the state. There, in New Bedford, the black man’s children—although anti-slavery was then far from popular—went to school side by side with the white children, and apparently without objection from any quarter. To make me at home, Mr. Johnson assured me that no slaveholder could take a slave from New Bedford; that there were men there who would lay down their lives, before such an outrage could be perpetrated. The colored people themselves were of the best metal, and would fight for liberty to the death."

Sadly, the new woke version of American history and American race relations depends on ignoring not only the best works of scholarship that generations of historians have produced, but also the contemporary testimony of black Americans from earlier generations.  Someday we must all rediscover our true history.  The AHR forum, alas, shows that the contemporary historical profession will be of no use in that great national enterprise.

The December 2022 forum marked the second comment on the 1619 Project and its critics from the AHR.  The first was a February 2020 note from the review's editor, Professor Alex Lichtenstein of Indiana University, which treated Wilentz, McPherson, Bynum, Oakes and Wood with extraordinary condescension, adding the detail that all of them were white, and cherry-picked individual pieces of evidence to suggest that Hannah-Jones and the project were more right than wrong on every contested issue.  "What is odd about the letter is that it implies that the singular problem with the 1619 Project is that journalists are practicing history without a license.," he says.  That is not true: while some of the historians clearly felt (and rightly) that they might have been consulted, their principle objection relates to falsehoods about the motives behind the American Revolution and Abraham Lincoln.  Lichtenstein tries to refute them mainly by arguing that many people don't agree with them.  That is one of the new principles of historical scholarship:  if enough people assert something, their view must be respected, regardless of what an objective review of the evidence might show--all the more so since the very idea of "objectivity" has been rejected by historians as well as leading journalists now. 

The introduction to the new forum by two editors, Mark Philip Bradley and Fei-Hsien Wang, makes it clear that the AHR had to no intention of trying to resolve the important factual disputes surrounding the claims of the 1619 Protect.  Instead, they defined their objective as follows:

"As we conceived of this review forum, the critical question for us was what the AHR, given its global range, could uniquely bring to the conversation around the 1619 Project. Most debate over the project has been situated in an American context. But how, we wondered, might the project be viewed by scholars who work on the historical questions of slavery and race from different geographical and chronological perspectives? For example, what might historians of slavery in Africa, Asia, Latin America, Europe, and the Middle East find compelling or controversial about the project and its method for rethinking the past? At the same time, we saw this forum as an opportunity to invite historians in fields too long underrepresented in the pages of the AHR to critically engage with the 1619 Project."

It was 30 or 40 years ago, I believe, that another editor of the AHR declared that it would cease to be the "NATO Historical Review," that is, focused mainly (although never exclusively) on Western Europe and the United States.  That impulse has only grown stronger in subsequent years and may explain why that eminent journal has failed to review my books on the origins of the American intervention in Vietnam, the assassination of President Kennedy, and the decision to intervene in the Second World War in 1940-1.  It also explains what the 16 contributors to this forum did and did not talk about and the conclusions that they reached.

Rather than take the time to analyze them one by one, I am going to try to sort the contributions into categories.  Several contributors--Annette Gordon-Reed, Daniel Sharfstein and Faith Day--simply praise particular aspects of the project.  Writing about the project's digital platform, Faithe J. Day says, "the 1619 Project promotes a standpoint logic, which introduces the possibility of multiple timelines and shared histories of America that change depending on one’s identity and cultural background.”  The largest number of them, however, combine some praise with complaints that the focus upon black Americans was too narrow both racially and geographically. In particular, co-authors Rose Stremlau, Malinda Lowery, and Julie L. Reed, call for more attention to the subject of their own work, the indigenous natives of the American South, who also suffered from white oppression. E. M. Troutt Powell, an historian of slavery in the Middle East, makes the point that there were no abolitionists in the Ottoman Empire. Another historian of the Middle East, Rachel Schine, sticks to her own topic and provides a fine example of contemporary historical jargon: "“Thus, even as widely accepted historiography sidelined multiple groups in the Islamic world’s making, the field’s counternarratives have not posited them as apotheoses. Rather, they become emblems of “aporetic” possibility, per Mana Kia—of multimodal belonging within a transregional religiopolitical matrix rather than a delimited nation-state.” Erika Denise-Edwards, a specialist in Argentina, praises the project and adds that a similar "race-making" process took place there. Alan Mikhail suggests that the discussion of 1619 in Virginia should have included references both the the colonial war against local Indians and to John Smith's brief experience as an Ottoman slave in Eastern Europe. Indrani Chatterjee endorses the claim that African slaves were "the founders of modern American prosperity before making some comparisons with the status of South Asian slaves.  Jeannette Eileen Jones praises the project fulsomely while also suggesting a few points about 1619 that might have been added. Danielle "Terrazas Williams praises Khalil Gibran Muhammad's discussion of sugar but wants more material on the Caribbean and the Haitian slave revolt.

Several contributors, on the other hand, criticize the project quite sharply from the left.  "While offering astute analyses of US law and southern policy," writes Joanne Barker, "Hannah-Jones scaffolds those analyses around American (neo)liberalism. It is not America’s claims on an exceptionalist democracy that need to be challenged, just an understanding of its true protagonists. So erased within are more radical liberation movements and their demands not for recognition or inclusion but for substantive structural change. For revolution. As Glen Sean Coulthard argues, recognition or being recognized within an imperial formation or racial capitalism is a fallacy. It does not require anything about or within that formation to change or be changed."  Karin Wulf attacks the project's traditional emphasis on "national politics (and economics and war)” in place of institutions like families. While calling the project "important," Sandra E. Green, an historian of Africa, says that "several chapters simplify to the point of distortion." Hannah Jones, she says, wrongly claimed that slavery wiped out African culture and ignored African-Americans who rejected the United States. 

Two contributors critiqued the project from what might be called the historical center.  Daryl Michael Scott says, rightly, that the text exaggerated "how scholars and our educational system have ignored slavery" and is "unabashedly presentist." "“With the participation of prominent professional historians," he writes perceptively, "The 1619 Project marks the end of a silent, unacknowledged phase—a historiographical shift from a moratorium on depicting African Americans as victims. The new sensibility is visible in the move away from referring to Blacks in bondage and the owners of human chattel as slaves and slaveholders, respectively. The 'enslaved' and 'enslaver' better convey an ongoing power dynamic that highlights the victims and victimizers.”  He also attacks contributor Matthew Desmond for arguing that slavery was the reason that socialism never caught on in the US, and Jamelle Bouie's argument that John C. Calhoun would have approved of the January 6 insurrection.  And James Sweet, the President of the AHA who later had to apologize for criticizing "presentism" in the historical profession, criticized the treatment of the 1619 arrivals as something unique.  By that time, Sweet writes, some estimates suggest that more slaves had already crossed the Atlantic than ever reached British North America or the United States, and there were already slaves in Spanish Florida.

None of the distinguished historians who had signed the critical letter to the New York Times appear in the AHA Forum, and two of them have confirmed to me that they were never asked. More significant to me is this: not one of the contributors had anything significant to say about the politics of the United States at any moment from the Revolution up until the present day.  That is the "old history" which Wood, Wilentz, McPherson and Oakes have practiced so effectively.  Nor are they the only ones who might have added something:  Oakes in his interview in the Trotskyite collection mentions five younger historians writing books about black voting before the Civil War, the end of school segregation in parts of the antebellum North, the controversy over the Fugitive Slave Act, and the wave of manumission in the Mid=Atlantic states after the Revolution.  Apparently they were not approached either.

The Trotskyite collection on the 1619 Project illustrates the value of true intellectual diversity.  I am not myself a socialist, much less a revolutionary socialist, but the world view of David North, Thomas Mackaman and their colleagues has given them a broad view of history that is far more useful and accurate than the identitarian views that reign supreme on campus today.  That view reminded me of the early Karl Marx, whom I studied and taught many years ago.  Marx believed that both bourgeois society and liberal democracy were important historical steps forward, and that is why he, like so many other Europeans, rejoiced at the northern victory in the Civil War. He also believed that the spread of western civilization around the world fostered progress, and therefore supported European imperialism.  I share the Trotskyites' view that in the long run political and economic change are more important drivers of history than race and gender.  That view enabled them to write very useful analyses of the 1619 Project and some of the related historical issues.  I was very sad to find that their book had not been purchased by any library in the west Boston suburbs, and only my status as a Harvard alumnus allowed me to get it from Widener Library after the librarians retrieved it from offsite storage. My return to the pages of the AHR, however, only confirmed for me how wise I was to quit the AHA a quarter century ago, and to predict that the kind of history that it was promoting was destined to die.  History has become propaganda, and I am very sad that our leading newspaper has enthusiastically joined one particularly damaging propaganda effort that has had a huge impact on our politics.   In the last week, another battle has broken out over Florida's new African American history curriculum.  So far the outcry focuses on one small section of the curriculum, part of its treatment of slavery, which reads as follows:

"Examine the various duties and trades performed by slaves (e.g., agricultural work, painting, carpentry, tailoring, domestic service, blacksmithing, transportation). Benchmark Clarifications: Clarification 1: Instruction includes how slaves developed skills which, in some instances, could be applied for their personal benefit."

This does not amount, as critics including the Vice President of the United States are claiming, to stating that slavery benefited black people.  That some slaves did manage to earn their own money by hiring themselves out to perform certain tasks--occasionally even enough to buy their own freedom--is true.  Unfortunately, as I have found online, many woke Americans are so desperate to portray slavery as nothing but an unremitting horror that true statements like this one are more repellent to them than false ones.  I don't know that it was essential to include that provision, but I have looked through the whole curriculum. While I would suggest a few changes it strikes me as a balanced and thorough attempt to present the history of black people and race relations in the United States, slavery around the world  and other related issues--one that would leave students with a far more honest picture of the ups an downs and triumphs and disasters of American racial history than the 1619 Project.  It does not in the least substantiate the common accusation that Ron DeSantis and other Republican state leaders are trying to whitewash the history of race relations in the United States, and thus represents a rare hopeful sign for the future.  Florida will be better off for it.

Saturday, July 08, 2023

The Affirmative Action Debate, Part III: some reflections

 Having looked at both the majority and minority opinions in the affirmative action case, I will try to put the issues involved in the decision in a much wider context.  Let us look first at the state of American higher education, then at how the issue relates to broader issues of economic inequality, and then at its political effects.

Regular readers know that I spent my working life (1976-2013) in higher education and still try to keep abreast of what is happening within it.  The Supreme Court decision will once again focus public opinion on the question of affirmative action in admissions.  No matter what you may think about that issue, I think that is much less important than several related parallel developments that have had catastrophic consequences for higher ed and its role in our society.

On the one hand, our student bodies—like our population, and especially our population of young people—are far more diverse than they were nearly sixty years ago when I entered college.  They are also much larger rising from about 20 percent of the 18-24 age population in 1965 to 38 percent in 2021—but their total numbers are now declining because of lower birth rates and other factors.  And meanwhile, they have become much more expensive.  One year of Harvard now costs about $80,000, compared to about $2000 in 1965—and even accounting for inflation that represents a fourfold increase.  I think that on a percentage basis the cost of major state universities—many of which were nearly free sixty years ago—has gone up much more. And as a result, 45 million borrowers owed an average student loan debt of $37,000 in 2021, and graduates of professional schools owed much more.  Much of three generations have mortgaged their futures to get a college degree.  These trends, I think, have exacerbated certain trend that began in the late 1960s when higher education populations mushroomed to accommodate the boom generation.

Having expanded their facilities and their faculty very rapidly, colleges and universities needed to maintain the size of their student bodies.  That meant attracting and holding on to many students who would not have attended college in previous years—and that statement has nothing to do with race or gender. In addition, the Boom generation was the first television generation, and reading among young people and everyone else has declined a great deal in recent decades.  Workloads have become much less demanding, especially in the humanities, and school calendars have become shorter.  The student rebellions of the late 1960s also convinced faculty and administrators that students deserved a greater voice in the curriculum.  Grade inflation reached remarkable levels, especially at elite institutions.  Since every one of their students had jumped through so many hoops to matriculate, demonstrated such wonderful qualities, and committed so much more money to their education (in the last few decades), it seemed unfair to give them a C or even a B.  In short—to put it bluntly—students today are receiving less education for three or four times as much money, which in turn pays for more impressive transcripts.  And I have the distinct impression from various campus controversies—although I cannot document it—that this has not made students happier, on the average.

The biggest reason for the higher cost of higher education is a small increase in faculty per student and a massive increase in the size of the administration, which now outnumbers the faculty on many campuses.  Admissions offices, development offices, and public relations offices have grown enormously, and entirely new diversity, equity and inclusion (DEI) bureaucracies have grown up as well.  Most of these new bureaucrats—such as all but one of Harvard’s approximately ten vice presidents, who average at least $350,000 a year in salary—contribute nothing directly to the education of students.  In the 1940s and early 1950s James Bryant Conant of Harvard was one of many college presidents who used his office to shape the undergraduate curriculum, but top administrators no longer play that role.  Indeed, relatively few institutions—such as the St. Johns colleges in Annapolis and Santa Fe and other schools with a great books curriculum—market themselves based upon a distinctive curriculum.  By and large, our universities—including the new for-profit ones that do more and more of their teaching online—are marketing a credential, not an education, and the elite institutions are marketing an entrĂ©e into the upper reaches of our economy, the financial and tech firms that recruit most of their new hires from a select group.  And the main job of college presidents today is not education, but fundraising—that is, trying to ensure that university endowments receive their share of the greatly increased wealth that today’s economy allows their graduates to create and retain.

Our universities, in my opinion, have become somewhat parasitic institutions that have used their prestige and their critical role in young peoples’ lives to siphon off far more of the nation’s resources than they deserve.  Other industries playing a similar role are the health insurance industry, which makes US medical care about twice as expensive as care in other advanced nations, and our burgeoning legal gambling industry.   Because administrators run universities themselves, most of them are very unlikely to undertake necessary reforms—least of all those of top institutions that are still deluged with applications.  Perhaps however a few small liberal arts colleges—many of whom are threatened with extinction—or state universities with budget crises might try drastically reducing their administrative staff and even their faculty, which might allow them to offer a better product at a much reduced price.  If this worked it would put a great deal of pressure on other institutions to follow suit.  It will be interesting to follow the impact of laws in Florida and other states aimed at eliminating DEI bureaucracies in public institutions, which so far remain unclear.  Universities and colleges would also benefit enormously from returning to more traditional humanities curriculums focusing on the great works of western civilization, but as I have often pointed out in other posts, they have strayed so far from them that it is hard to see how that might take place—or where they would find the faculty who could make that shift.  As it is, most of them are dominated by social justice ideology, which divides the world into oppressors and oppressed based on their race, gender, and sexual orientation, and teaches that one's reality is a function of those categories.  As we saw in the last post, Ketanji Brown Jackson in particular is one of many thousands who have picked up that ideology and are applying it in their work.

The great expansion of higher education during my adult lifetime has provided a worse and far more expensive education to a much larger proportion of our young people.  I wonder whether that also means that we should revise our goal of giving everyone a college education—a goal which we have never come close to reaching anyway.  Apprenticeship programs and purely vocational education could train many of our professions at least as well, including some that rely on brainpower, not muscle power.  I firmly believe that unusual intellectual ability is distributed pretty randomly among our whole population, regardless of race or gender, and that our educational system should specifically try to identify those people and give them an opportunity fully to develop their talents.  I don’t think that is happening today. 

Instead, our elite institutions have the principal role of gatekeepers to our economic, political and social elite.  That is why justifications for affirmative action so often focus on the need to diversify that elite, even though as we have seen the Supreme Court never endorsed that goal.  Now the idea of meritocracy—to which I subscribe—holds that society’s greatest rewards should go to its most intellectually capable members.  Here we encounter another huge problem of our society has it has now developed.  I think it is impossible to maintain support for a meritocratic ideal—which we can never fully achieve anyway—in an economy in which a small elite secures for itself so much of the wealth and income of our society.

The following table shows what happened to the after-tax income of various parts of American society from 1970 to 2020.

While the top .01 percent increased their after-tax income by about percent and the top 1 percent by 350 percent, the incomes of Americans from 50 to 90 percent did not quite double and the income of the bottom 50 percent increased by about one third.  By contrast, the share of the top 1 percent   had fallen from 22 percent in 1940 to 11 percent in 1975, while the rest of the economy gained.  Patterns of wealth accumulation reflected these changes.  This leads us to the critical question of what affirmative action in elite college admissions, as now practiced, does and does not do.  While it gives a few thousand representatives of minority groups the chance to enter into our economic elite, earn vast income and increase their wealth, it does nothing for the 50 percent or more of Americans of all races whose incomes have been almost stagnant for half a century.  Seeing people who “look like them” among the rich and famous is hardly adequate to solve the economic problems of the mass of the population—and this is probably why so much of the population has lost touch with our political elite. Shifting from race-based to class-based affirmative action will not change this picture either.  Affirmative action may make powerful institutions feel better and look more diverse, but it won’t help most of the American people.  And these trends are particularly tragic—in the literal Aristotelian sense—for the Democratic Party, which was largely responsible for the levelling trend of the 1940-75 period and still imagines itself as the party of the working class.

That in turn brings me to the other elephant in the room with respect to the Supreme Court decision.  The great mass of the American people agree with the court majority that race should not be a factor in college admissions.  This table, which for some reason I cannot past into this post, gives use the results.  Half of those surveyed disapprove of the use of race, while 33 percent approve of it and 16 percent are not sure.  Whites and Asians oppose it by large margins; black Americans favor it 47-29; and Hispanics are evenly split.  54 percent of Democrats support it and 74 percent of Republicans oppose it.  Yet opposition may be even greater than this.  In 1996, a California referendum barred the state from considering race in its state university applications process by 55-45 percent.  That substantially reduced black and Hispanic representation at UC Berkeley and UCLA, but increased it on other campuses, and, according to some sources, raised minority graduation rates overall because black and Hispanic students were attending colleges where their test scores matched those of other students.  In 2020 a referendum to repeal the 1996 measure was on the ballot—and the most diverse state in the country, and one of the most Democratic, voted it down by an even higher margin, 57-43.  Every single one of about half a dozen states that have voted on affirmative action in college admissions have rejected it.  President Biden reacted to the Supreme Court decision by attacking it.  This position may well accelerate the trend of poorer voters away from the Democratic Party that is already apparent among Hispanics and even, to a smaller extent, among blacks.

To build a better future for our country, in my opinion, we must make higher education much cheaper—which we could do—and restructure wages, benefits, and taxes to stop the trend towards economic inequality.  That is what we did in the 1930s and beyond to undo some of the effects of the Gilded Age.  A patronizing, self-righteous and largely ineffective elite-led approach will only increase resentment outside the elite—resentment which already threatens us with political disaster.

Tuesday, July 04, 2023

The Affirmative Action decision, Part II: the dissents

 The opening paragraphs of Justice Sonia Sotomayor's dissent define a completely different view of the case and of the Fourteenth Amendment, which both sides view as central to their positions, from that of the majority.  I quote them in full.

"The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation and the “importance of education to our democratic society.” Id., at 492–495. For 45 years, the Court extended Brown’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity. This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools.

"Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent."

Perhaps it would be well to quote Section 1 of the Fourteenth Amendment here also.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Brown v. Board of Education unanimously banned states from operating separate school systems for black and white students on the grounds that such facility were "inherently unequal" and thus deprived citizens of the equal protection of the laws.  Sotomayor refers  to section 1 as a "guarantee of equality" that embodies a "vision of equality" and  interprets Brown as a "race-conscious means  in a society that is not, and has never been, colorblind."  We shall find that Justice Jackson goes even further down this road, and that is the conceptual difference that divides the minority from the majority.

Sotomayor then embarks upon her own historical summary of race relations in the United States, with particular reference to education.  The Fourteenth Amendment, she notes, passed the Congress in response to attempts by the former Confederate states to deprive freed slaves of legal equality in many ways.  Her key paragraph on the amendment reads as follows:

"To promote this goal, Congress enshrined a broad guarantee of equality in the Equal Protection Clause of the Amendment. That Clause commands that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1. Congress chose its words carefully, opting for expansive language that focused on equal protection and rejecting “proposals that would have made the Constitution explicitly color-blind.” A. Kull, The Color-Blind Constitution 69 (1992); see also, e.g., Cong. Globe 1287 (rejecting proposed language providing that “no State . . . shall . . . recognize any distinction between citizens . . . on account of race or color”). This choice makes it clear that the Fourteenth Amendment does not impose a blanket ban on race-conscious policies."

While the majority, as we have seen argues that this clause bans race-conscious policies except in exceptional cases that are designed to remedy particular acts of discrimination or protect lives, and which survive strict scrutiny, Sotomayor believes that it authorizes any policies designed to benefit black people and undo the legacy of slavery.  Continuing, she cites the work of the Freedmen's Bureau, established by the same Reconstruction Congress to assist freed slaves in many respects, including education.  She also quotes from the Civil Rights Act of 1866, passed almost simultaneously with the Fourteenth Amendment to secure equal rights for black citizens and to eradicate the "Black Codes" that the former Confederate states had passed. " Here her legal theory becomes more explicit.

"Because the Black Codes focused on race, not just slavery-related status, the Civil Rights Act explicitly recognized that white citizens enjoyed certain rights that non-white citizens did not. Section 1 of the Act provided that all persons “of every race and color . . . shall have the same right[s]” as those “enjoyed by white citizens.” Act of Apr. 9, 1866, 14 Stat. 27. Similarly, Section 2 established criminal penalties for subjecting racial minorities to “different punishment . . . by reason of . . . color or race, than is prescribed for the punishment of white persons.” Ibid. In other words, the Act was not colorblind. By using white citizens as a benchmark, the law classified by race and took account of the privileges enjoyed only by white people."

The Constitution and the Bill of Rights used universal language to define the rights of the citizenry.  The words "black," "white," "man," "woman" and "slave" do not appear in the Constitution, which recognizes only "persons."  In practice, of course, neither black people (for the most part) nor women enjoyed all the same rights as white males, but the Constitution in no way guaranteed the privileges of white males at others' expense.  Sotomayor adopts the view--very popular for decades among academics--that the reality is more important than the text, that certain "privileges" (not rights) were "enjoyed only by white people," and that only race-conscious remedies, rather than an affirmation that the universal language meant what it said, could secure equality.

Sotomayor then cites Reconstruction laws  that Congress passed specifically to help black people, including "destitute colored women and children" and black Union Army and Navy veterans. "In doing so," she writes, "it rebuffed objections to these measures as “class legislation” “applicable to colored people and not . . . to the white people.” Cong. Globe, 40th Cong., 1st Sess., 79 (1867) (statement of Sen. Grimes). This history makes it “inconceivable” that race-conscious college admissions are unconstitutional. Bakke, 438 U. S., at 398 (opinion of Marshall, J.).2"  Yet as the majority pointed out, Marshall's opinion in Bakke, the only legal authority for this position that she can cite, was a solitary opinion of his own in no way binding on the Court, that took a position which the Court has never adopted. Marshall, of course, was the attorney who argued Brown v. Board of Education before the Court, but that did not give him the right to decide what it meant in other contexts.

Having established her own conceptual framework, Sotomayor shows how it applies to the current case.  She surveys at length the education of "Latino and Black" students." Segregated schools (de facto, not de jure), schools with fewer resources, and weaker curricula, she says, obviously make them less qualified by traditional standards. “Students of color, particularly Black students, are disproportionately disciplined or suspended, interrupting their academic progress and increasing their risk of involvement with the criminal justice system,”  she continues.  (One striking feature of these opinions is their differing use of capitalization.  Both Roberts and Thomas refuse to capitalize "black," although the younger Gorsuch does so.  Sotomayor capitalizes it, and Jackson capitalizes both black and white.  Regular readers know that I refuse to capitalize either myself, since I think they should be simple descriptors, not indicating a separate political identity.)  She adds that "Stark racial disparities exist, for example, in unemployment rates,15 income levels,16 wealth and home-ownership,17 and healthcare access.18 See also Schuette v. BAMN, 572 U. S. 291, 380–381 (2014) (SOTOMAYOR, J., dissenting) (noting the “persistent racial inequality in society”); Gratz, 539 U. S., at 299–301 (Ginsburg, J., dissenting) "Put simply," she concludes, "society remains 'inherently unequal," citing Brown. ). As I have explained before, only with eyes open to this reality can the Court carry out the guarantee of equal protection.” Schuette, 572 U. S., at 381 (dissenting opinion).” The unanimous Brown opinion wrote, "Separate educational facilities are inherently unequal."  Brown based that conclusion not on the poorer education black students were receiving or their poorer outcomes in life, but on the stigma attached to legally separate schools. And once again, the only legal authorities Sotomayor can cite for her view are dissents of her own and the late Justice Ginsburg's.   

"Both UNC and Harvard have sordid legacies of racial exclusion" she continues. Because “[c]ontext matters” when reviewing race-conscious college admissions programs, Grutter, 539 U. S., "at 327, this reality informs the exigency of respondents’ current admissions policies and their racial diversity goals."  This seems to argue that both colleges owe black and Latino students better treatment because of discrimination in the past--a position that Gruber did not take. She quotes at length from a recent Harvard report on Harvard's involvement in slavery--a report which I criticized as one-sided in an op-ed which the Harvard Crimson published. She then argues at length that the Harvard and UNC admissions policies fall fully within the guidelines established by Bakke and Gruber.  Here I cannot resist pointing out a methodological problem that I have blogged about before in other contexts

Sotomayor explains why she thinks the lower courts correctly rejected the diversity alternative based on income rather than race which SFFA proposed, as follows:

"The courts below correctly rejected SFFA’s view that Harvard’s use of race is unconstitutional because it impacts overall Hispanic and Black student representation by 45%.See Brief for Petitioner 79." That 45% figure comes from a calculation that eliminating the use of race in admissions “would reduce African American representation . . . from 14% to 6% and Hispanic representation from 14% to 9%.” Harvard II, 980 F. 3d, at 180, 191. Such impact of Harvard’s limited use of race on the makeup of the class is less than this Court has previously upheld as narrowly tailored. In Grutter, for example, eliminating the use of race would have reduced the underrepresented minority population by 72%, a much greater effect. 539 U. S., at 320. And in Fisher II, the use of race helped increase Hispanic representation from 11% to 16.9% (a 54% increase) and African-American representation from 3.5% to 6.8% (a 94% increase). 579 U. S., at 384."

The problem here is the math--and she is very far from the first person to have it.  A decrease of "African American representation from 14% to 6%" does not reduce black student representation "by 45 %." It reduces it by 8 % (14% minus 6%).  And in the same way, the use of race documented in Fisher II didn't increase Hispanic representation by 54 % (11% to 16.9%), but by 5.9 % (16.9%-11%) and didn't increase black representation by 94%, but by 3.3 % (6.8%-3.5%).  Pardon me for this digression but I have already shown in another post that this is a sore point with me.  One should not violate basic mathematical principles to make a stronger point.

Sotomayor also denies that the figures on racial percentages of Harvard admits that I copied from Roberts' opinion (and which originated in the SFFA brief) show that Harvard is using a quota system--because they represent significant changes in some categories from years or decades earlier.

In another interesting part of her argument, Sotomayor defends Harvard's insistence on valuing different aspects of every candidate to create a diverse environment benefits white students as well.  To do so, she cites another interesting discovery for which we can thank SFFA: that about 30 percent of admits every year come from four special categories: legacy admissions with parents who attended Harvard, the children of big donors, athletes, and children of Harvard faculty and staff. 67.8 percent of the applicants in those groups are white.  (A good many applicants, by the way, are both legacies and the children of donors; I am not convinced that simply having a parent who attended Harvard helps very much.)  I would agree, for the record, if Sotomayor argued that Harvard should eliminate those preferences, but she doesn't--she feels they are justification for considering race for others. And in another significant passage, she writes: "Similarly, because of achievement gaps that result from entrenched racial inequality in K–12 education, see infra, at 18–21, a heavy emphasis on grades and standardized test scores disproportionately disadvantages 18–21, a heavy emphasis on grades and standardized test scores disproportionately disadvantages underrepresented racial minorities. Stated simply, race is one small piece of much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities. That is precisely why underrepresented racial minorities remain underrepresented. The Court’s suggestion that an already advantaged racial group is “disadvantaged” because of a limited use of race is a myth.  Stated simply, race is one small piece of a much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities. That is precisely why underrepresented racial minorities remain underrepresented. The Court’s suggestion that an already advantaged racial group is “disadvantaged” because of a limited use of race is a myth."  Apparently Sotomayor isn't concerned with highly qualified Asian applicants who are turned down to favor all other groups, including whites, because the percentage of Asian students is already much higher than the Asian percentage of our population.  

Sotomayor also criticizes the majority for overruling the Bakke and Gruber precedents--as Thomas, but not Roberts, admits--because the arguments that they now accept had been rejected by the full court in those cases.  She however was not willing, as I think I have shown, to stand on those previous decisions alone, but has introduced arguments of her own relating to the meaning of the Fourteenth Amendment and the use of preferences to remedy past discrimination and undo current economic equality that the full court never agreed to either.  All this makes perfect sense.  Bakke and Gruber were written by members of earlier generations who valued compromise, even though compromise sometimes produced quite contradictory majority opinions.  That spirit no longer dominates the court. 

In her concluding pages, Sotomayor restates her basic arguments and adds another dimension.  “By singling out race [as a feature college admissions must not take into account), the Court imposes a special burden on racial minorities for whom race is a crucial component of their identity. Holistic admissions require “truly individualized consideration” of the whole person. Id., at 334. Yet, “by foreclosing racial considerations, colorblindness denies those who racially self-identify the full expression of their identity” and treats “racial identity as inferior” among all “other forms of social identity.” E. Boddie, The Indignities of Colorblindness, 64 UCLA L. Rev. Discourse, 64, 67 (2016). The Court’s approach thus turns the Fourteenth Amendment’s equal protection guarantee on its head and creates an equal protection problem of its own.”

“There is no question that minority students will bear the burden of today’s decision," she writes. "Students of color testified at trial that racial self-identification was an important component of their application because without it they would not be able to present a full version of themselves. For example, Rimel Mwamba, a Black UNC alumna, testified that it was “really important” that UNC see who she is “holistically and how the color of [her] skin and the texture of [her] hair impacted [her] upbringing.” 2 App. in No. 21–707."  She quotes a number of other students who said very similar things about themselves. Sotomayor accepts the centrality of racial and ethnic identity to the personhood of Americans--which have been developed at great length within academia over the last few decades--and immediately wants to incorporate them into the equal protection clause.  To do so would take a very momentous step in American jurisprudence and American life, and for the foreseeable future. “The Court’s holding," she writes, "is based on the fiction that ra­cial inequality has a predictable cutoff date. Equality is an ongoing project in a society where racial inequality persists. See supra, at 17–25. A temporal requirement that rests on the fantasy that racial inequality will end at a predictable hour is illogical and unworkable. There is a sound reason why this Court’s precedents have never imposed the major­ity’s strict deadline: Institutions cannot predict the future. Speculating about a day when consideration of race will be­come unnecessary is arbitrary at best and frivolous at worst. There is no constitutional duty to engage in that type of shallow guesswork.

Both Sonia Sotomayor and Ketanji Brown Jackson are Ivy League graduates, but Jackson is a generation younger.  Not surprisingly, Jackson's dissent draws even more heavily on theories and writings that have steadily become mainstream during the last half century within elite academia.

Denying that the consideration of race in admissions can be unfair, Jackson rejects the majority opinion for this reason: "Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry.1M. Oliver & T. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality 128 (1997) (Oliver & Shapiro)

"It is that inequality that admissions programs such as UNC’s help to address, to the benefit of us all. Because the majority’s judgment stunts that progress without any basis in law, history, logic, or justice, I dissent.

"Imagine two college applicants from North Carolina, John and James. Both trace their family’s North Carolina roots to the year of UNC’s founding in 1789. Both love their State and want great things for its people. Both want to honor their family’s legacy by attending the State’s flagship educational institution. John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black. Does the race of these applicants properly play a role in UNC’s holistic merits-based admissions process?

"To answer that question, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). Many chapters of America’s history appear necessary, given the opinions that my colleagues in the majority have issued in this case."

Jackson then writes her own survey of US history, from slavery through Reconstruction and into the twentieth century.  Reaching the 1930s, she argues based upon books by Richard Rothstein, Isabel Wilkerson, Ira Katznelson, and M. Baradaran that federal programs to encourage homeownership almost totally excluded black Americans from the 1930s through the 1950s.  Quoting Rothstein and an article by one R. Scragger, she writes, "Thus, based on their race, Black people were “[l]ocked out of the greatest mass-based opportunity for wealth accumulation in American history.”  She continues:

"This discussion of how the existing gaps were formed is merely illustrative, not exhaustive. I will pass over Congress’s repeated crafting of family-, worker-, and retiree-protective legislation to channel benefits to White people, thereby excluding Black Americans from what was otherwise “a revolution in the status of most working Americans.”40 I will also skip how the G. I. Bill’s “creation of . . .middle-class America” (by giving $95 billion to veterans and their families between 1944 and 1971) was “deliberately designed to accommodate Jim Crow.”41 So, too, will I bypass how Black people were prevented from partaking in the consumer credit market—a market that helped White people who could access it build and protect wealth.42 Nor will time and space permit my elaborating how local officials’ racial hostility meant that even those benefits that Black people could formally obtain were unequally distributed along racial lines.43 And I could not possibly discuss every way in which, in light of this history, facially race-blind policies still work race-based harms today (e.g., racially disparate tax-system treatment; the disproportionate location of toxic-waste facilities in Black communities; or the deliberate action of governments at all levels in designing interstate highways to bisect and segregate Black urban communities)."

This history, of course, suggests that college admissions officers should take account of race in order to make up for the impact of these policies.  One may agree or disagree with this; I simply point out once again the the Supreme Court has never endorsed that position.  That, however, is not all.  I have not read or fact-checked all the books Jackson cites, but I have investigated some of these questions and found that their history and their conclusions are sometimes wrong.  Most strikingly--as I recently pointed out in a letter to the New York Review of Books--the idea that the Social Security Act of 1935 failed to cover agricultural workers and domestics--who represented a substantial portion of the black working population, even though large majorities of those categories were white--because white southern legislators didn't want to benefit black citizens is without foundation.  In addition , a 2010 article by William Collins and Robert Margo showed that despite redlining of some neighborhoods (which, again, actually affected more white residents than black ones) and other discrimination in housing programs, the share of black people who owned their homes rose from 21 percent to 56 percent from 1940 until 1980, at a pretty steady rate, while the white rate rose from about 43 percent to 75 percent.  It is a sad day when a Supreme Court opinion includes such a striking misstatement of fact as that black people were "locked out" of the postwar accumulation of wealth, but these myths have been so eagerly spread that it is not surprising.  (The Supreme Court majority, on the other hand, might ponder that it was in the 1980s--the beginning of the Reagan revolution--that both black and white Americans stopped improving their homeownership rates.)  In addition, a detailed study of the impact of the GI Bill on education showed that it clearly benefited both black and white veterans substantially, although black veterans in the South had difficulty taking advantage of it because so few colleges were open to them.

Now there is no question that a suit against redlining--which as far as I know  was never brought--or against discrimination in housing programs against black people might well have overturned those practices on equal protection grounds in the same way that Brown overturned dual school systems.  The argument here is between Sotomayor and Jackson, who evidently believe that the nation owes it to new generations of black Americans to make up for these violations retroactively now, and Thomas, who wrote bluntly, "Whatever their skin color, today’s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors. Our Nation should not punish today’s youth for the sins of the past." The nation needs to resolve that dispute.

Jackson clearly states that she expects admissions officers to take all this into consideration--and that that is what UNC admissions officers are doing. “UNC has concluded that ferreting this out requires understanding the full person, which means taking seriously not just SAT scores or whether the applicant plays the trumpet, but also any way in which the applicant’s race-linked experience bears on his capacity and merit. In this way, UNC is able to value what it means for James, whose ancestors received no race-based advantages, to make himself competitive for admission to a flagship school nevertheless.

“Understood properly, then, what SFFA caricatures as an unfair race-based preference cashes out, in a holistic system, to a personalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth plus all that has happened to them since. It ensures a full accounting of everything that bears on the individual’s resilience and likelihood of enhancing the UNC campus. It also forecasts his potential for entering the wider world upon graduation and making a meaningful contribution to the larger, collective, societal goal that the Equal Protection Clause embodies (its guarantee that the United States of America offers genuinely equal treatment to every person, regardless of race).”

Readers may judge for themselves whether Jackson is suggesting that her mythical white "John" should be disadvantaged to make up for the advantages racial unfairness conferred upon his ancestors and himself.  That seems to me to be implied.  In any case, it is clear that she wants admissions to make up for the historic disadvantages of black applicants, and like Sotomayor, she expands the 14th Amendment guarantee of the "equal protection of the laws" to "genuinely equal treatment to every person, regardless of race."  This is also what is known in the social justice movement as "equity." 

Jackson also seems to overstate a mathematical claim to support her argument. She writes:

"Furthermore, and importantly, the fact that UNC’s holistic process ensures a full accounting makes it far from clear that any particular applicant of color will finish ahead of any particular nonminority applicant. For example, as the District Court found, a higher percentage of the most academically excellent in-state Black candidates (as SFFA’s expert defined academic excellence) were denied admission than similarly qualified White and Asian American applicants. “  “94See 567 F. Supp. 3d, at 617, 619; 3 App. 1078–1080. The majority cannot deny this factual finding."

Checking her footnote to the District Court opinion, I find that this statement was based on this fragment of a discussion of an "academic index" devised by SFFA's expert Professor Arcidiacono, based on an aggregate of test scores and grades:\

"Though this was not the focus of Professor Arcidiacono's analysis, the Court also observes that 3% of in-state, top decile African American candidates were denied admissions by UNC, more than double the percentage of their white counterparts with AIs in this decile. (See ECF No. 247-1 at 13 (Arcidiacono demonstratives) (showing 1.2% of white students and 1.8% of Asian American students being denied in the top decile); see also Nov. 10 Trial Tr. 371:23–372:3 (Arcidiacono).) If URM candidates were largely defined in the admissions process by their race, one would expect to find that every URM demonstrating academic excellence at the highest level would be admitted or, at the very least, be admitted at a higher rate than their non-URM peers. This deciles analysis suggests instead that race does not even act as a tipping point for some students with otherwise exceptional qualifications."

The percentages of black, white and Asian students from the top decile who were denied admission were all very small--3 percent, 1.2 percent, and 1.8 percent. One again, the phrase, "more than double the percentage of their white counterparts" makes a 1.8 percent difference sound more significant than it is.  And just one page earlier, the opinion noted Arcidiacono's findings that in the fifth decile, "whites and Asian Americans have admit rates that are below 30%, but the African American admit rate is over 40 points higher, at 71%, and the Hispanic admit rate is almost 54%." Surely those much bigger numbers help answer the question of whether race is a crucial factor in admissions, but Jackson doesn't mention them.

In conclusion, while the majority opinion explicitly rejected earlier precedents and demanded colorblind admissions, the dissenters not only affirm those precedents but go well beyond them in justifying the consideration of race to benefit certain minorities.  They clearly believe that the equal protection clause demands that colleges and universities admit more members of certain minority groups to make up for past discrimination, and possibly simply to try to equalize economic outcomes for all.  That argument now divides our two major political parties, as well as the Supreme Court.  In the last post in this series I will talk about the attitude of the American people.

[Note:  my momentum drove me forward, and I have finished and now published this post sooner than I expected. The third and last post on the topic will probably not appear until next weekend.]