Today, while all manners of civil rights laws and precedents are in place, the protection they provide is diluted by lax enforcement, by the establishment of difficult-to-meet standards of proof, and worst of all, by the increasing irrelevance of anti-discrimination laws to race related disadvantages, now as likely to be a result of social class as of color.1
In the 1980s issues of civil rights and racial justice have been replaced with concerns of budget deficits and viral diseases.2 Though the white media has chosen not to focus its attention on the suffering which the racially oppressed endure as a part of daily life, the effects of racial prejudice are no less pronounced today, as evidenced by the gross disparity of wealth between white and Black citizens.3 The civil rights struggles of the 1950s and 1960s focused primarily on ridding the country of de facto segregation.
Accordingly, when the courts ordered the desegregation of the schools and declared miscegenation laws unconstitutional, when “Black” appears in upper case and I must justify why. Black is conventionally regarded as a color rather than a racial or national designation, hence is not usually capitalized. I do not regard “Black” as merely a color of skin pigmentation, but as a heritage, an experience, a culture and personal identity, the meaning of which becomes specifically stigmatic and/or glorious and/or ordinary under special social conditions. It is as much socially created as, and at least in the American context no less specifically meaningful or definite than, any linguistic, tribal, or religious ethnicity, all of which are conventionally recognized by capitalization.
Congress enacted the Civil Rights Act of 1964 and the Voting Rights Act of 1965, civil rights litigants praised these achievements as the second emancipation of Black people.4 Events of the last twenty years demonstrate that this conclusion was premature.5 Neither legislative enactments nor landmark judicial decisions have eradicated racial discrimination in this country. Some commentators even argue that achievements made by Black people in the 1960s and 1970s are slowly being eroded.6
This review examines a recent chapter in the debate, Professor Derrick Bell’s book And We Are Not Saved. Derrick Bell is a Professor of Law at Harvard Law School. And We Are Not Saved is an expansion upon what was originally the prestigious 1985 foreward to Harvard Law Review’s volume 99.7
Bell analyzes the struggle of African Americans to achieve racial, political, social and economic equality from a historical perspective.8 From the outset of the book Bell proffers that white society rarely embraces any interpretation of United States history which does not have as its basic premise the supremacy of white race. One of the greatest benefits of And We Are Not Saved is that Bell expands the minds of his readers by exposing them to a nontraditional interpretation of United States history – a Black construction.
Bell uses fantasy as a vehicle for delivering the chronicles; it is well-suited. To the majority of whites in this country, the realization of the American dream is, as it has always been, a tangible goal. To the great majority of Black people, however, thoughts of racial and political equality [to achieve the American dream] are hopeless wishes. It is appropriate, therefore, that Bell has presented the despair of the Black nation in a dream.
And We Are Not Saved is divided into three parts. In the prologue to Part I, Bell introduces his alter ego, Geneva Crenshaw. Geneva functions as the antagonist throughout the book, the character who adopts the militant approach to any issue being discussed. The majority of the chronicles are told through her eyes. It is no accident that Geneva is a woman; nor is it fortuitous that she is a dominant figure throughout the book. Black women have always been in the forefront of the struggle for civil rights. II And We Are Not Saved is structured so that after a chronicle is completed, Geneva calls upon Bell to give his legal analysis of the chronicle and predict how the Supreme Court would rule on the particular issue in question.
In Part I, Bell examines the contradiction of the American Constitution which purports to be based on freedom and equality but endorses in no less than ten different provisions the legality of slavery.12 Bell argues that this sacrifice of Black people at the formation of the country is one of the phenomena which has prevented Black people from enjoying equal rights in this society.13 In the Chronicle of the Constitutional Contradiction, Geneva is transported back to Philadelphia in the year 1787, the site of the Constitutional Convention.
Geneva confronts the Convention delegates in an attempt to discover whether they were cognizant of the consequences that their ambivalence concerning slavery would bring to Black people. Bell uses this discourse to reveal seldom read American history. The framers’ motives for a strong union were greatly influenced by the need to protect their class interests. 14 Bell also points out through the chronicle that most of American society is under the misconception that slavery as an economic institution was essential only to the agrarian economy of the rural South. In fact, the North benefited greatly from slavery because the Southern plantation owners used Northern manufacturing outlets as a means of developing their goods. 15 Bell concludes that the framers felt justified in sacrificing the Black people for the union. 16
The economic plight of Black people in America has been consistently explained as the result of ineptitude or the inherent inferiority. The Chronicle of the Constitutional Contradiction makes it clear that the founding fathers decided to subordinate Black people to ensure the economic prosperity of the country. In this country groups lacking economic and political power have turned traditionally to the judicial system to enforce laws that protect their rights. [However] people with economic and political power fashion laws in their own interest.
Bell argues that litigation has been of only marginal benefit to Black people and that most so-called landmark judicial decisions have been of more help to white society. For example, in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), the Supreme Court held that Black people were not citizens under the Constitution but were property of the white enslavers.
Bell attempts to convey to the reader that the United States ended segregation to serve the interests of the majority and not because [whites] realized that segregation was both morally and legally wrong. Bell uses the Court decisions to demonstrate that the Supreme Court specifically and the judiciary in general is susceptible to political considerations. In particular, “the issue of race is such a politically sensitive subject in this country that the [Supreme] Court seldom stray[s] far from prevailing public moods.”20
Bell argues that Black people must continue to press the courts for relief because of the lack of other options. Law is a powerful element in our society, because of its ability to distribute the burdens and benefits among citizens. Thus, Black people and other oppressed minorities have a vested interest in changing the laws which are discriminatory. From the birth of the union, the white majority has used laws which are either overtly or covertly racist to deprive Black people of economic and political participation. Bell contends that this is one of the primary reasons Black people remain trapped in the lower class.21
Bell should be criticized, however, for [he] should have emphasized the important accomplishments that civil rights litigation has had in the lives of American citizens, while at the same time recognizing its limitations as a means of eradicating racial discrimination. Presumably, Bell’s attachment to the litigation strategy is the direct result of his days as a lawyer for the NAACP Legal Defense Fund.
“We civil rights lawyers attacked segregation in the public schools because it was the weak link in the separate but equal chain. Our attack worked. But to equate integration with the effective education Black children need – well, that was a mistake.”29 Desegregation was not the objective but merely the strategy adopted to achieve the goal. Whites who controlled the school systems seized the opportunity to benefit from desegregation litigation by closing schools, firing Black teachers and administrators and by thrusting Black children into hostile environments where failure was assured. The resulting legacy is that today much of Black society is under the false perception that integrated or white schools offer better educational opportunities than Black schools.
In the chronicle of the Black Reparations Foundation, a white philanthropist recognizes the depressed economic condition of the Black race and decides to set up a several billion dollar reparations fund. The fund’s purpose is to bring Black people up “to the levels they would have had but for the impediments of historic slavery and the continuing disadvantages of racism,” through money grants that encourage Black people to participate in the country’s economic system.31
The chronicle is insightful because it offers an analysis of the reaction of the white majority to a plan that does not adversely affect this majority. Bell argues that the jealous reaction of the white race grows out of the realization that better conditions for Black people cannot be accomplished without whites losing some of their privileged status. he racial antagonism whites express towards the reparations fund is analogous to the controversy surrounding affirmative action policies. Their passionate opposition to affirmative action is confusing given the fact that both historical and statistical evidence confirm the view that affirmative action has not resulted in Black people obtaining a share of society’s benefits proportional to their population.34
Bell puts forth the supposition that most organizations that adopt voluntary affirmative action programs advocate only small scale integration. But once the percentage of minorities reaches a certain point, the credibility of the organization as a white institution is threatened. 35 [Any] educational institution could argue [t]he maintenance of a predominantly white faculty … is essential to the preservation of an appropriate image, the recruitment of faculty and students, and to the financial support of alumni. With heartful expressions of regret that the world is not a better place, the law school would urge the Court to find neither federal fair employment laws nor the constitution would prohibit it from discriminating against minority candidates when the percentage of minorities on the faculty exceeds the percentage of minorities within the population.37
It is important to understand that “racism is more than a pejorative hurled in powerless frustration at an omnipotent evil.”38 As Professor Charles Lawrence more precisely puts it:
Racism in America is much more complex than either the conscious conspiracy of a power elite or the simple delusion of a few ignorant bigots. It is part of our common historical experience and, therefore, a part of our culture. It arises from the assumptions we have learned to make about the world, ourselves, and others as well as from the patterns of our fundamental social activities.39
Bell demonstrates that affirmative action programs are a good vehicle for accomplishing this goal because the white majority will allow only a very few qualified minorities to gain entrance into any particular institution.
Many Black people who have become disillusioned as a result of years of discrimination believe that progress will develop out of a national crisis. As Bell points out, history reveals that this belief is misplaced. For example, during the great depression, the government gave tacit approval to distribution of society’s benefits and burdens on the account of race. 40 Similarly, after World War II, Black soldiers returning home from overseas experienced the same racism which existed prior to the war.41
The Chronicle of the Amber Cloud further demonstrates how the equal protection clause and the strict scrutiny doctrine, which has grown out of the fourteenth amendment, often sacrifice the interests of Black people .45 In fact, the benefit of the strict scrutiny doctrine has been severely eroded since the Court adopted the intent standard.46
In Part II, Bell demonstrates that the historical patterns of racism in this country are an important element of the present condition of the Black community.47 This analysis is a refreshing departure from that of neoconservatives who have captured center stage in the 1980s by arguing that the traits displayed by the Black underclass are qualities inherent in a ‘ghetto’ population.48
Part II is germane because much of the racist ideology that exists in America has been incorporated by Black people into their own beliefs.49 The result is that the cycle of poverty in which so many are enthralled becomes even harder to escape.50 Bell understands and convincingly relates to his readers that if Black people are ever to make significant gains in this society a positive self-image is a necessary element of the solution.51
Political conservatives insist that Black people should stop depending on government welfare and resort to self-help as a means to overcoming oppression. 54 The question is whether the dominant society actually wants Black people to change their economic and social status. In the chronicle, a group on an excursion to Africa discover ‘slave scrolls’, which reveal the elusive history of slavery in America. Upon reading the scrolls, Black people reject crime, drug addiction and self-hatred, which have long plagued the Black community. They begin competing effectively with whites at all levels, surpassing whites in many arenas. Whites, who still control the political process, instituted racial tolerance laws which banned the teaching of the scrolls and resulted in their inevitable destruction.
Historical evidence supports Bell’s conclusion that this would be the reaction of the white majority. 55 Bell offers the example of the Reconstruction period when Black people’s business and educational success served only to intensify the hostility of southern whites. Similarly, Bell uses the treatment of Black leaders such as Malcolm X, Martin Luther King, and Marcus Garvey, as prima facie evidence to support his theory. 56 These men argued passionately to the Black race “that racism, not inherent inferiority, was the source of their self-hate and self-destructive behavior.”57
Bell argues that in times of crisis the Court is most likely to constrict the constitutional rights of a group in order to protect the country as a whole. The message of the chronicle is clear, as are the declarations of the other chronicles: self-help will not change the relative status of Black people.
[Any] single civil rights strategy is doomed to failure because society controls the mechanism to frustrate the goals. Professor Bell uses the Celestial Curia [and] states quite profoundly that previous civil rights strategies were destined to failure because the fruits of success would only exchange Black suffering for white suffering. As a result white society feared that any discernable rise in Black status would result in corresponding reduction in white status. Many whites suffer under an economic system which perpetuates class division irrespective of race. Bell concludes that the only strategy is for Black people to unite with similarly oppressed people regardless of race.59
The approach Bell advocates is most pragmatic in the face of evidence that civil rights strategies as they now exist are ineffective to combat contemporary racial issues. It is also important to remember that in his introduction to And We Are Not Saved Bell wrote that “rather than offering definitive answers, I hope, as law teacher rather than social seer, mainly to provoke discussion that will provide new insights and prompt more effective strategies.”60
Source: http://lawdigitalcommons. bc.edu/cgi/viewcontent.cgi?article=1333&context=twlj