E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
America’s New Racial Battle Lines illustrates the
centrality of race to our nation’s politics and identity, so relevant to our
present political moment and throughout our nation’s history. After reading this book, it seems abundantly
clear that whenever our country experiences progress and growth in the field of
racial justice, that progress is followed by backlash and retrenchment. Smith and King argue that there are two predominant schools
of thought about the role of race in our country today, representing polarized
opposite views. Members of the “Repair”
group cite our nation’s history of slavery, Jim Crow segregation, and other
racial injustice. They seek to repair
the damage wrought by that injustice using legal and economic measures. Repair advocates view themselves as continuing
the tradition of the civil rights activists of the 1960s, but taking the fight
for racial justice to a deeper level by confronting past injustice. Opposing this vision, the “Protect” group see
the Repair activists as a threat to the fundamental way of life in the United
States. Smith and King argue that the
conservative movement in this country, once focused on free market economics has
become obsessed with a racial narrative that describes our country as under
attack, needing protection from immigrants of color and “woke” activists who
criticize our history and tradition. As a historian of the post-Civil War Reconstruction Era, I am
very familiar with backlash. Reconstruction
marked a highpoint in this nation’s constitutional history. It was a time when the political will of the
nation supported the expansion of individual rights, including racial justice
and economic rights. During
Reconstruction, our country amended its constitution to end slavery and
constitutionalize individual rights against state infringement for formerly
enslaved people and other people in this country. Union troops occupied the formerly
confederate slaves states and protect the right to vote of formerly enslaved
people, including the right to vote. They
elected officials, including Black representatives, some who were formerly
enslaved, to state and federal government.
Those representatives enacted progressive legislation, including laws
establishing minimum wage and maximum hours for workers – laws that helped all workers
regardless of race. In the early years
of Reconstruction Congress also considered some land reform measures, which
would have authorized the federal government to seize land from former
slaveholders and grant that land to the formerly enslaved people who had worked
on the land. Those measures failed, but
Congress enacted other laws to protect formerly enslaved people, including civil
rights legislation, prohibiting race discrimination in contracts and establishing
both criminal and civil remedies when state officials violate federal rights. During Reconstruction, southern states resisted these
efforts. They formed the Ku Klux Klan
and other vigilante groups to terrorizing formerly enslaved people who tried to
vote or exercise any rights, championing the “lost cause” narrative which
romanticized slavery and the antebellum south and lionized Confederal General
Robert E. Lee and his confederate army. By
the mid-1870s, the federal government tired of enforcing the rights of formerly
enslaved people – and the Republican party turned its attention to westward
expansion and economic development of the country. In the former slave states, during a time
known as the “redemption” era, a system of slavery in all but name developed - convict
leasing, sharecropping famers who were essentially indentured servants, and
brutal racial segregation in the Jim Crow south. For almost 100 years, formerly enslaved
people and their descendants suffered from the backlash of the Reconstruction
Era, without the right to vote, and living in fear of violent retribution if
they tried to assert any other rights. In the mid twentieth century, after World War II, a civil
rights movement emerged out of the labor movement. Civil rights activists such as Martin Luther King,
Jr., advocated for the end of racial segregation and for voting rights of Black
people in the south. This is where the Repair
story that Smith and King recount begins.
Responding to the civil rights activists, in what historians refer to as
the “Second Reconstruction,” Congress enacted new landmark civil rights laws,
banning racial discrimination in employment and public spaces, and establishing
meaningful measures protecting the voting rights of Black people throughout the
country. These laws prohibited
discrimination and required equal treatment of white people and people of
color. 1960s Congressional civil rights measures inspired “massive
resistance” in the south, but over time, a consensus developed in this country
that treating people equally was okay. –
and indeed, Protect advocates have embraced the narrative of “racial
blindness” as their marker of equality. However
Repair activists believe that the history of slavery, Jim Crow segregation, and
brutal racial violence left such a mark on people of color in this country that
many people began to believe that the injustice of the past could not be
redressed without proactive measures such as affirmative action and even
reparations for past harms. In 2016, the
Reverend William Barber II, called for a Third Reconstruction, which would
embrace economic empowerment as well as racial justice. In recent years, advocates of the Repair movement achieved
significant visibility, participating in the Black Lives Matter Movement, focusing
on diversity, equity and inclusion, and championing reparations for the
ancestors of formerly enslaved people and others who have been harmed by
systemic racism. Repair activists
highlighted our nation’s history, convinced Congress to adopt Juneteenth – the
day in which enslaved people in the state of Texas learned that they had been
emancipated, as a national holiday, destroying some confederate statutes and
demanding recognition of the history of racial injustice in our country. “Protect” advocates called these efforts
radical and anti-American, and a majority of people in our country seem to
agree. Last month, the “Protect”
narrative helped to propel Donald Trump to his presidential victory, and he has
promised to dismantle many of the initiatives championed by the Repair
movement. Martin Luther King said that “the arc of the moral universe
is long, but it bends towards justice” – but in reality, the arc is circular -
with every advance, the universe regresses, especially when the advance is progress
towards racial justice. Reading America’s New Racial Battle Lines helps
one to understand where we are today and how we got there. It is essential reading for understanding not
only the backlash, but also how we can move forward into the future.
Rebecca E. Zietlow is Interim Dean, Distinguished University Professor, and Charles W. Fornoff Professor of Law and Values at the University of Toledo College of Law. You can reach her by e-mail at rebecca.zietlow@utoledo.edu.