America’s Battle Lines: A Comment on Rogers M. Smith and Desmond King’s America’s New Racial Battle Lines: Protect versus Repair

For the Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024).

James E. Fleming & Linda C. McClain

 

            We are honored to take part in this symposium on Rogers M. Smith and Desmond King’s compelling and sobering book, America’s New Racial Battle Lines: Protect v. Repair (University of Chicago Press, 2024). Reading it has been quite beneficial for our own work, which includes assessing competing conceptions of civic education for our polarized times: the “patriotic education” proposed by the 1776 Commission Report versus the “reflective patriotism” supported by the Educating for American Democracy Roadmap. The former clearly exemplifies what Smith and King call the “Protect racial policy alliance,” while the latter (though bipartisan) has more in common with the “Repair racial policy alliance.” For example, as we have written elsewhere, the 1776 Report regards recognition of “systemic racism” in the U.S. as shattering “civic bonds,” “sham[ing] Americans” for “the sins of their ancestors,” and calling for further “discrimination” as a remedy—akin to a new racial caste system. The Educating for American Democracy Roadmap never uses the term “systemic racism”—perhaps because of the ideological diversity of the participants and the goal of presenting a consensus framework despite partisan polarization, but it clearly speaks of engaging with “hard histories” of inclusion and exclusion, histories of “oppression and power,” and marginalization of groups and how to “explore constructive ways to discuss” these histories.
 
            Smith and King’s book is deeply illuminating, even on matters beyond what its authors specifically set out to examine. We will begin with two examples of what we mean. First, when we initially read the 1776 Commission Report—while analyzing what Jack Balkin called “constitutional rot” in his book, The Cycles of Constitutional Time (2020)—we were puzzled why the authors of the Report were so alarmed about Critical Race Theory (CRT), and why it was so central to their analysis of how our constitutional practice and culture had gone wrong since the 1960s. We could not understand why the proponents of so many strands of constitutional conservatism today—libertarianism, fundamentalist Christianity, conservative Catholicism, and even establishment conservatives mainly committed to less regulation and lower taxes—would be agitated by, and would coalesce around opposition to, CRT. 

            To be sure, we understood why people like Christopher Rufo of the Manhattan Institute would use attacks on CRT in schools to motivate people in purple states like Virginia to come back into the fold of the Republican Party and to elect Glenn Youngkin as their Governor. But that alone would not establish why sounding the alarm about CRT would be so useful in unifying the evidently discordant and cacophonous strains in the Republican Party. Smith and King’s book, in its account of the Protect racial policy alliance and institutional order, illuminates how opposition to CRT—and, more broadly, “DEI” and “woke indoctrination”—became even more effective in unifying the Republican Party and conservatism more generally than opposition to Hillary Clinton had been in 2016.
 
            Second, and relatedly, during the 2024 presidential campaign, we kept expecting that more Republicans would join former Republican Representatives Liz Cheney and Adam Kinzinger in repudiating the disgraced insurrectionist felon Donald Trump and urging that patriotism required voting for Harris-Walz. So did the Democratic Party nominee, Vice President Kamala Harris, who spent considerable time just before the election campaigning with Cheney to try to win the hearts and minds of Republicans who were weary and wary of Trump, especially Republican women.
 
            Smith and King’s book helps us better understand why most conservatives, explicitly or implicitly embracing some form of Protect vision, remained implacably opposed to Harris. To them, Harris personified the Repair vision. Even though she framed her campaign in terms of Freedom and love of country more than Equality and fundamental criticisms of our nation’s historical and continuing injustices, she indisputably was committed to transforming the status quo to secure the status of equality for all by eradicating discrimination on the basis of race, gender, sexual orientation, and gender identity. No matter how plausibly Harris ran as a pragmatic consensus-builder rather than a radical disruptor, Republicans rightly grasped that she was firmly committed to using government to repair injustices to persons who have been subordinated and marginalized.
 
            Reading Smith and King’s book enabled us to move beyond general understandings and expectations that, with increasing polarization, we should expect to see less cross-party voting and ticket-splitting. Their analysis makes it possible to appreciate more specifically why polarization reduces the likelihood of coalition-building across parties around common commitments and concerns, for example, repudiating a demagogue who has repeatedly undermined institutions, norms, and trust which members of the Repair alliance believe it is imperative to protect. Voters rightly expect that, if they disagree with candidates on race, they also will disagree with them on abortion, LGBTQ+ rights, family values, feminism, climate change, civic education, taxes, and much more, you name it.
 
            Smith and King’s analysis also sheds light on why most every measure liberals and progressives would support as vital for repair, conservatives would oppose as destruction of what we should protect. And why most every institution or practice conservatives wish to protect, liberals and progressives seek to repair. In such circumstances, it is hard to find common ground in order to work together to try to solve or mitigate problems. What one side sees as the solution, the other side sees as the problem!
                                                                       
            Sometimes, when we read a book that is as cogent as Smith and King’s book is, we come away from it not only with clearer understanding of important matters, but also with greater hope for or appreciation of the possibilities for positive change. Not so this time, unfortunately. Although they did not write the book specifically to sober or chasten liberal and progressive aspirations concerning the possibilities for repair, the book has had that effect upon us.
 
            Of course, we write these reflections shortly after the 2024 presidential election returned Donald Trump to power. It is hard not to interpret this outcome as a dispiriting triumph for the Protect racial policy alliance and a resounding defeat for the Repair racial policy alliance, since Trump so clearly embodied the Protect vision and campaigned against the Repair vision. Indeed, Smith and King begin their illuminating chapter, “The Conservatives’ Story: Who and What to Protect,” with Senator Rick Scott’s claim that, “The greatest danger we have ever faced: the militant left wing in our country has become the enemy within.” (97) Trump campaigned against “the enemy within”—including the people “surrounding” Harris—as more dangerous than the U.S.’s foreign adversaries and cast himself as a protector.
 
            What is more, Smith and King’s final chapter, which sketches six scenarios for the future in descending order of probability, ranks “an ascendant ‘multicultural protectionist conservatism’” as the most likely, with the next two most likely being (2) progressives successfully building a “class/race coalition” (a modified Repair alliance, of which there were glimmers in the Harris-Walz campaign vision), and (3) “triumph for white extremist conservatism.” (284-92) The 2024 presidential election seems to have been an amalgam of Smith and King’s first and third scenarios (acknowledging, of course, that voters’ perceptions of the economy was also an important factor). A “multicultural protectionist conservatism” would likely “strengthen the authority of parents and legislatures to ensure that public education and public commemorations do not foster a woke ideology they view as hostile to American traditions and values.” (287) The “white extremist conservatism” form of the Protect alliance “would mandate a patriotic 1776-style curriculum that presents as anti-American governmental efforts to combat systemic injustices in American institutions and to reduce material racial inequalities” and resists “any further changes in American monuments, statutes [sic], and place names.” (291) The 2024 Republican Party Platform, for example, pledges to “reinstate the 1776 Commission,” “promote Fair and Patriotic Civics Education” and to “defund schools that engage in inappropriate political indoctrination of our children,” i.e., “CRT and gender indoctrination.”
 
            At the same time, Smith and King remind readers that “the state” is not “effectively unitary” and “overwhelmingly committed to traditionalist forms of white hegemony.” (261) Thus, while the Protect alliance has structural advantages over the Repair alliance, the latter has achieved some significant victories in various municipalities and states. As we face Trump 2.0, the reminder that “the diversity in racial politics across American is now greater than in much of the nation’s past” (276) and that there are possibilities for progress in diverse arenas offers some hope in an otherwise bleak picture.
 
            We want to offer two small quibbles about Smith and King’s remarkable book, neither of which detracts from its significance. First, throughout the book, we had the strong sense that they were delineating not just “America’s new racial battle lines,” but indeed America’s battle lines more generally. Granted, they focus on battles over race, and we assume they intend in the title of their book to allude to W.E.B. Du Bois’s famous declaration in 1903 that “the problem of the twentieth century” was the “problem of the color line.” They invoke DuBois’s declaration to set up a contrast between the competing racial orders as of 1903 and 2003. (153) But their analysis shows how the “Protect racial policy alliance” is far more general than that. It is a conservative protect alliance or “institutional order.” (33) An example is the way that race, gender/gender ideology, “CRT,” and “DEI” appear as part as one amorphous threat, as in Protect 2025’s call for an account of how “federal programs/grants spread DEI/CRT/gender ideology.” (358) Smith and King offer rich accounts of both the conservative/protect and progressive/repair stories. Just as the conservative story embraces a broad narrative about preserving “traditional” values and rejecting developments like civil marriage equality (as in the affirmation of the “traditional,” one man-one woman family in the 2022 National Conservatism: A Statement of Principles) (119-20), the Repair alliance (particularly in the Movement for Black Lives) offers an intersectional, transformative understanding of equality that includes races, gender, sexual orientation, disability, class, and more.
 
            Second, Smith and King argue that the conventional formulation of the racial battle lines—between color-blindness and race-consciousness—is far less illuminating at present than their formulation—Protect versus Repair. They are absolutely right about this. But the change may not be as fundamental as they suggest. Indeed, on the best understandings of the earlier formulation, the battle between color-blindness and race-consciousness was already a battle between Protect and Repair.
 
            For example, long before the Supreme Court’s decision in Students for Fair Admissions v. Harvard (2023), narrowly limiting race-based affirmative action in universities, scholars like Cass Sunstein had argued persuasively in The Partial Constitution (1993) that the commitment to the principle of color-blindness was an instantiation of “status quo neutrality.” This idea entailed that the status quo of existing distributions of wealth, power, and entitlements was neutral and presumptively justified, and that any departures from it in pursuit of redistributive aims were presumptively partial and unconstitutional. At the same time, Sunstein argued that the commitment to race-conscious remedies stemmed from a conception of the Fourteenth Amendment’s Equal Protection Clause as embodying an anti-caste principle that entailed a commitment to eradicating the vestiges of a caste system and to securing the status of equality for historically subordinated and marginalized groups.
 
            It does not require a great leap to get from the battle between these competing principles, so understood, to their conceptualization of the battle as Protect versus Repair. This is not to deny or undercut the power of Smith and King’s orienting conception of the battle lines, just to observe that their analysis better captures the heart of the matter in these debates than did the earlier labels of color-blindness versus race-consciousness. Protect versus Repair also enables us better to understand why the conservatives in the Protect racial policy alliance see the stakes as so high and as implicating so many issues beyond race.
 
            Finally—and this is an aspect of what depresses us from reading the book—Smith and King’s analysis enables us to see how, despite Trump’s arguably being the most divisive major party presidential candidate in our nation’s history, he has proven to be the great unifier of conservatives and Republicans. They cogently present Trump as the clearest and most vigorous manifestation of the Protect vision—of what is required to “make America great again”—and this is a siren call that most conservatives and Republicans ultimately could not resist, no matter how much they initially profess to loathe Trump himself. Liz Cheney’s and Adam Kinzinger’s warnings about the dangers of the Trump-led Republican Party crashing into the rocks simply fell on deaf ears. Whether anyone or anything can right the ship before it crashes remains to be seen.

Jim Fleming is the Honorable Paul J. Liacos Professor of Law and Boston University School of Law and may be reached at jfleming@bu.edu. Linda McClain is the Robert Kent Professor of Law at BU Law and may be reached at  lmcclain@bu.edu.