The Breitbart machine’s attempt to smear President Obama for his 1990 embrace of civil rights activist and legal theorist Derrick Bell is an act of cynical, craven maliciousness. There was nothing covert about Obama’s support for Bell, nothing hidden about a video clip that appeared on television during the 2008 campaign and has remained online ever since. It’s a ginned up non-story grounded in a long list of lies and distortions.
Which is a shame not least because Bell is a figure around whom real, important arguments could easily be built. A civil rights lawyer who grew skeptical of the Brown vs. Board of Ed decision, a Harvard Law professor who wrote an agitprop sci-fi story that was adapted into a schlocky HBO production, Bell was a strange and complicated man. His views on race and justice were contrarian, pessimistic, and deeply unsettling to those — of any race — who regard the project of achieving American racial equality as having entered its mopping-up phase.
I’ve been going back and reading (often re-reading) some of Bell’s writings since this story broke yesterday, and I’ve been struck again and again by his ability to provoke and to unsettle. Take for instance his characterization, from a 1998 book review, of black people as living “at the mercy of a criminal justice system that unapologetically prefers and protects whites.”
It’s the “unapologetically” that inflicts the real pain there — a defiant, hostile characterization that seems designed to provoke defensiveness and dismissal. But the word is crucial to his larger argument, because it characterizes our society as one in which racism is not vestigial but essential. Racism, to Bell, wasn’t peripheral to American identity, but ingrained deeply within it, and if one did not acknowledge that reality, one’s efforts to combat it were bound to fail, and fail in shoddy, pathetic ways.
Bell’s critics often accused him of proceeding by assertion rather than argumentation, and there’s merit to that complaint. The “unapologetically” in that sentence is offered as a fact, not a hypothesis, and the casualness with which it is deployed renders it difficult to respond to. How would one prove that Bell was wrong? By offering examples of white American racial apology? By pointing to instances of liberal hand-wringing over racial abuses? Any attempt to engage seems to lead to entanglement, and Bell has no interest in finding a congenial middle ground.
But what he’s up to is something far more interesting than mere assertion, even in the parables that have drawn so much mockery. (Evidence of their confounding power can be found in the fact that they reduced a scholar as cogent as Richard Posner to the ugly and spluttering claim that they “reinforce stereotypes about the intellectual capacities of nonwhites.”) No, the project Bell is engaged in is the construction of an alternate reality, a brick-by-brick dismantling of received notions of how things are, to be replaced with a new way of seeing. Facts are important to this project, but Bell is mostly uninterested in arguing over facts — he proceeds from the premise that the facts are undisputed, and that it’s the interpretation of those facts that’s at issue.
Take this, from the piece I quoted above. Addressing the question of whether it is “proper to use a person’s race as a proxy for an increased likelihood of criminal misconduct,” Bell notes that from the dawn of slavery to the days of Korematsu, “the law’s answer was clearly, yes.”
He goes on:
“Affirmative action is under tremendous pressure politically and legally because whites claim they are innocent victims of policies that penalize them for the misconduct of others who also happen to be white. As a result, the Supreme Court has severely limited those programs by requiring that they meet the exacting standards of strict scrutiny. But the Court has approved race-based police stops with barely a mention of the harm suffered by innocent blacks or Mexican-Americans who look like suspects who also happen to be black or Latino. This inconsistency is not an aberration but part of a long-standing pattern to shape legal standards to protect whites when such protection can be achieved at the expense of blacks.”
“This inconsistency is not an aberration.” That phrase, that idea, constitutes the heart of Derrick Bell’s analysis of race and law in the United States.