Today's Missouri Compromise Is Bad News

Are our laws producing “identity politics” and the divisions it fosters?

A scientist, or perhaps it was an engineer, once asked the political philosopher Harry Jaffa for a general scientific rule about politics. After reflecting upon the bizarre request, Jaffa came up with the following:

S = 2P, where “S” = solution and “P” = problem. Politics is tragic; there are no final solutions.

To end the evils of Jim Crow laws—and the prejudices upon which they were built, and which they fostered—the U.S. government did more than demand the end of all discrimination. It did not simply declare Justice Harlan had been correct in Plessy v. Ferguson (1896), and proclaim that all American laws and all government-backed institutions must be color blind.

Many, not unreasonably, concluded that that was insufficient. After centuries of oppression of  African Americans, roughly 12 percent of the U.S. population at the time, was it fair just to say, “Okay no more biased laws, the government will no longer back discrimination based upon race”?

Would that truly remedy the situation? Or were “affirmative actions” necessary?

Our new civil rights regime did not prohibit all discrimination. One can still, for example, choose not to hire a Trump supporter or a Clinton supporter. Why? Political affiliation is not a “protected class.” The Equal Employment Opportunity Commission explains:

The EEOC enforces laws that prohibit discrimination based on race, color, religion, sex, national origin, disability, or age in hiring, promoting, firing, setting wages, testing, training, apprenticeship, and all other terms and conditions of employment. Race, color, sex, creed, and age are now protected classes.

“Protected classes” reflect an exception to the general liberty of association. One can choose whom to hire and fire, whom to work with in general, but may not make such judgments with regard to “protected classes.” These have grown in number since 1964, and now include groups based upon sexual identity or gender. Some of these new bureaucrats have taken to adding even more—on their own account, without waiting for legislatures do it.

Thus the rise of what we might call the “intersectional” Left, which draws all these protected classes together under one rubric. After the fashion of the Marxist distinction between the proletariat and the capitalists, the Intersectional Left has on the one hand straight, white men, and on the other hand, everyone else. Even so, there seems at times to be some hierarchy among the rest. Recent comments deriding Taylor Swift for being a white, heterosexual female, and therefore part of the oppressor class, come to mind. Asian Americans seem to be less “protected,” at least in college admissions, than other protected classes.

Where do these ideas come from, and why have they gained so much purchase in American life? Might it be that the idea of “protected classes,” and their proliferation in practice, encourages people to think of themselves in categories instead of as individuals?

That it is in the nature of law to influence the direction of political culture is hardly a new thought. Thomas Jefferson expressed it quite clearly in his reaction to the Missouri Compromise:

A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper.

To resolve the Missouri controversy, Congress had decided that as the United States expanded westward, new states would be slave or free states depending upon where they were located. All future states south of the southern border of Missouri would be slave states; all future states north of that line would be free states. Jefferson saw the likely result for American political culture: having drawn “a geographical line, coinciding with a market principle,” the government had created the foundation upon which two nations, not one, would be built.

Human beings are tribal. And few human beings can stomach their tribe’s being considered in the wrong forever. Hence it was inevitable, once the United States drew the compromise line explicitly separating slavery from freedom, that America would be divided into two teams. The Missouri Compromise had staved off the crisis for a time (for a couple of decades, in fact) but it caused serious problems of its own.

It is no surprise that 17 years after the Missouri Compromise was struck, John C. Calhoun gave his infamous speech asserting that “Slavery Is a Positive Good.” The line having been drawn, it was only a matter of time before a major Southern leader embraced slavery and defended it forthrightly, in contrast to leaders like Jefferson, George Washington, James Madison, and the other major Southern Founders, who recognized that slavery was a wrong and wrestled with finding a way to end it by consent of the people.

A similar process seems to be at work today with identity politics. We did not simply end discrimination on the basis of race. To remedy past injustices, we created “protected classes,” and this seems to have had cascading effects on our political culture. To enforce the law, the government routinely asks citizens to classify themselves by race or other signifiers of identity; this is done so the government can tell whether or not they are part of a protected class. And, to comply with the law, large institutions—schools, corporations, the military—hire lawyers to ensure that they are complying with the law. If they fail to do so adequately, they are in danger of being sued.

Many universities, school districts, and large corporations hire flocks of diversity professionals to ensure institutional adherence. In our offices we must regularly count who is from which group, to ensure our policies are not having a “disparate impact.” Such concerns ensure we constantly pay attention to race and other protected categories. This compliance bureaucracy, which seems to get bigger each year, is connected with the larger effort to transform American political life on behalf of what some members of the Democratic Party call “the coalition of the ascendant”—a coalition of members of the protected classes.

We seem to be creating the cultural version of the Missouri Compromise line. No one, and no group, wishes to think of itself as the bad guy in perpetuity. Given that reality, if identity politics becomes the heart of American politics, it is only a matter of time until “whites” begin to see themselves as a group deserving special protection. (And “whites” now includes ethnic nationals who used to be excluded from Anglo-Saxon nationalism.) If our government remains democratic, these new entrants into identity politics are likely to get a good deal of what they want. Some of President Trump’s support, from what is often called the “Alt Right,” seems to fit exactly this description.

And thus the tragic irony: The laws we passed to fight discrimination, however necessary at the time, created new problems that, at this point, threaten to undermine the progress we have made in combatting discrimination. This suggests that the way forward, the way to attain true progress, would now be to take the path away from identity politics. And to do that, we have to rethink the practice of protected classes. Kept too long, they’ve create an American identity that is tribal and balkanized, rather than fostering a common American community.

After all, the very idea of a “protected class” is itself impossible to reconcile with the rule of law. Our judicial oaths reflect the spirit of the rule of law quite well:

I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.

In the long term, we can have either equal justice under law, or we can have protected classes. One of them will inevitably push out the other.


A Jeffersonian Proposal for the Constitution

In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?