The Maryland Exception

The other day, I went to a talk by Yale Law Professor Akhil Amar, who was promoting his new book The Law of the Land. The conceit of the book is a telling of the "story" of American law and our constitutional ethos via various state-based vignettes (the first one is about Abraham Lincoln and Illinois, the second about Hugo Black and Alabama, and so on). A major theme of the book and talk is an argument about the endurance of America's geographical divides. The list of states that voted against Lincoln in 1860 bears a striking a resemblance to those which voted against Obama in 2012. Of the four states which were genuinely "purple" in 2012 (decided by less than 5 points), three of them were "north-meets-south" states (Ohio, Virginia, and North Carolina). The fourth, Florida, is functionally "north-meets-south" as well, due to its massive population of New York and New Jersey transplants (I've often joked that South Florida is essentially a suburb of Brooklyn).

After the talk, I was able to ask Professor Amar about a state that did not receive a chapter in his book -- my home state of Maryland. Maryland, it seems, is a very stark exception to this tale. It is a southern state -- below the Mason-DIxon line. It was a slave state. It didn't secede, but mostly because it was under Union military occupation. It has a large Black population, which in Southern states had historically been associated with extraordinary racial polarization in voting (that is, in Southern states the more Blacks they were the more conservative Whites voted).

Today, Maryland is not Virginia, or North Carolina, or Ohio. It is among the most liberal states in the country. It is Massachusetts, or Hawaii. If you lived in the beltway suburbs (Montgomery County or Prince George's County) in 2006, there was not a single Republican representing any level of government -- federal, state, or local -- except for the President. I think that remained true until the recent election of Larry Hogan to the Governor's office -- only the second Republican to hold that office since Spiro Agnew (and even with Hogan's election, Democrats maintain a 91-50 edge in the House of Delegates and 33-14 advantage in the State Senate). It is a left-wing state.

Right now, Baltimore is awash in protest, initially sparking by the police killing of Freddie Gray, who succumbed to spinal injuries inflicted while he was in police custody. In some sense, this is just the latest chapter of the ongoing, national unrest that results from the continued exclusion of Blacks from the full fruits of the American dream.

But perhaps not. For as Adam Serwer notes, "Baltimore is no Ferguson, Missouri." Baltimore is a city with "a black mayor, black police commissioner, and a police force evenly divided between black and white officers." This is an exception too; Baltimore "is one of very few cities that burned despite substantial black representation in the city government and police force." For Serwer, this gives lie to the notion "that harmony can be achieved by elevating a few blacks to positions of power within a system that leaves so many impoverished. American cities cannot avoid unrest by simply placing black people at the helm, as long as progress for so many is ephemeral. An unjust system remains unjust no matter the ethnicity of its caretakers."

This is, indeed, a bitter pill, and a noteworthy one. Process-oriented liberals (and not all liberals, to be sure, are process-oriented) have sought to channel racial justice into a narrative of democratic inclusion -- the harm stems from being excluded from the levers of political power and self-determination, the solution is to create conditions of political equality and representation. Yet even as Maryland and Baltimore are in many ways exceptions to the rule where such equality is nowhere to be found, they are not exceptions to the social malfunctions and disasters which provoke the current unrest.

Of course, the conservative response to all of this is simple: Blacks should stop being Democrats. What have liberal politics done for you? What has a Black President done for you? Jump over to our side of the fence! The easy retort, of course, is that locales where Republicans are dominant political players are hardly paragons of racial virtue either -- if anything, they're worse than Maryland, but the best you can say is that it is a non-factor. The bigger problem, though, is that the small-d democratic solution -- self-determination, pick your own leaders -- doesn't seem to be sufficient either. It is a bedrock principle of respecting a group that you respect their choices on how to self-govern, even when one might disagree, even when they seem to be off the mark. The self-governance is the critical consideration; anything else has to answer the charge that it is domination in disguise. Yet Baltimore isn't a situation where the process failed. It's a situation where the substance failed.

I think it is to our nation's credit that we are starting to look seriously at the substance of things -- that substantively speaking too many people view Black lives as expendable and substantively speaking too many people don't care what happens in their neighborhoods. But it is a challenge because when it comes to racial justice people are very uncomfortable thinking in terms of substance. Procedural, representational justice is (conceptually easy), and one could argue that Maryland and Baltimore already achieved that. But debates over substance can be significantly murkier and far more intractable. I'm hopeful, and I believe, that Baltimore and Maryland have the right foundations to tackle these hard questions in a way that makes us an exception -- an exceptional leader in resolving these problems right.

The French Model

Back during the height of the French Race Riots last summer, I noted the interesting irony underlying American discussion. Conservatives love to bash on France, and they love to bash on European "multiculturalism", which they blame for ails like the race riots that tore through Paris. The problem is that France, as a matter of policy, has adopted a legal mandate of color-blindness that conservatives here can only dream of. And many of the more astute commentators pointed this out, arguing that French "color-blindness" was preventing it from adequately redressing the pervasive grating poverty of its racial minorities. As a political matter, I support labeling any conservative advocate of the color-blind system as supporting "The French Model," but I think there is a serious point to be made here.

Via Workplace Prof, Yeshiva (Cardozo) University Law Professor Julie Suk has expanded on this point in a forthcoming article appearing volume 55 of the American Journal of Comparative Law. Here's the abstract:

In Fall 2005, race riots in France drew attention to differences between the French and American legal regimes for remedying racial inequality and discrimination. The riots reacted to the persistence of employment discrimination against people of North African origin. French antidiscrimination law has been unable to solve such problems because of its focus on criminal punishment of racist speech and its uncompromising commitment to race-blindness. These features embody the intersection of two historical forces: the influence of Vichy memories on French legal conceptions of racism and discrimination, and the strong republican resistance to social distinctions. Understanding this history comparatively brings certain features of U.S. antidiscrimination law into sharper focus: U.S. law imposes civil, rather than criminal liability, and is more tolerant of race-conscious affirmative action, more resistant to regulating racist speech, and more reluctant to extend antidiscrimination law to a wide range of protected characteristics. These distinctive features of U.S. law are explained by the law's reaction to the history of slavery and segregation. The different evolutions of antidiscrimination law reveal how particular forms of racism - anti-Semitism and genocide in France, and the slavery and segregation of African Americans in the United States - gave rise to two very different antidiscrimination regimes. The French contrast challenges the assumptions of American antidiscrimination law, leading to greater precision about the uniquely American commitment to race-blindness in equal protection doctrine. The stricter French model of race-blindness highlights the instability and ambivalence of American race-blindness. Comparative historical inquiry reveals that the goal of eradicating group subordination does more work in U.S. antidiscrimination law than the goal of achieving a truly race-blind society based on individual merit.

France has adopted hate-speech laws that would make many American liberals blanch--we are reasonably committed to legal protection for racist speech. And America's relatively color-conscious policies (like affirmative action) are considered by the French to be "dirty", racist, and immoral.

Can America's relatively(!) superior racial climate be explained by our greater tolerance for color-conscious policy making? It's true that other variables present themselves. It could be due to France's more closed economy. But as conservative icon Richard Posner notes, America has had its share of race riots in the 60s and 70s, in an economic climate still significantly more liberal than contemporary France. Race riots happen regardless of economic system, and the fact that they are race riots should make us immediately suspect the causes have something to do with racial policies.

What I mean to do in bringing up the French example is not to say that it is game, set, and match for a particular position. But it does allow us to realize that we're not debating this question in a void. We currently live in an America which has fitfully experimented with affirmative action and other color-conscious race remedies for about 30 years or so. We can compare that to a France which has steadfastly rejected those remedies. Where are minorities better off? Which is more just? Which is working more effectively?

Ultimately, the question presents itself: Are you in the American camp, or do you support the French model?