Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction

Rating:
Summary: Not the best in the field
Review: COLORBLIND INJUSTICE is a magnificent book with mighty themes. Built upon historian J. Morgan Kousser's two decades of work as an expert witness in voting rights cases, enriched by his rigorous state-of-the-art political analysis, and supported by massive and precise documentation, this powerful work will fundamentally alter discussion of race and politics in modern America. Most significantly, it convincingly refutes currently-fashionable talk about the benefits of eliminating government protection of the political rights of minorities. Kousser demonstrates, for example, that several supposedly "colorblind" 1990s voting rights decisions by the United States Supreme Court have been unfairly partial to the Republican Party, unjustly biased against the interests of African-American voters, contrary to the original intention of the relevant laws and constitutional amendments, and revolutionary in overturning well-established precedent. He also demolishes the underpinnings of the advocacy of supposedly "colorblind" racial policies by Abigail and Stephen Thernstrom in AMERICA IN BLACK AND WHITE, a "benchmark" conservative study of 20th century race relations. One central subject of COLORBLIND INJUSTICE is the relentlessly-political process by which state legislatures decennially draw congressional district boundaries. In 1991 the federal Justice Department, implementing the 1982 amendments to the federal Voting Rights Act, pressed states to create districts according to criteria that allowed minority politicians and voters to play a fairer role in the process than ever before and to increase the number of black-majority districts. Minority representation in Congress grew, but in no state did white representation fall below the white portion of the population. The Thernstroms have condemned the Justice Department's 1991 effort and have urged the Supreme Court to prohibit any minority preferences and to forbid any reference to racial classifications in drawing districts. Such "colorblind" policies, they claim, will reduce racial divisions and will foster racial healing, harmony, and equity. But the Thernstroms fail to deal with crucial political realities that Kousser demonstrates conclusively, realities that render the supposedly "colorblind" Thernstrom proposals unfeasible and unjust. For example, the Thernstroms and the Supreme Court implicitly assume that state legislatures adhere typically to "traditional race-neutral districting principles," thereby creating compact non-political districts that embrace natural communities. Kousser demonstrates instead that congressional redistricting has continually been an inherently-political no-holds-barred pushing and shoving process in which contending politicians relentlessly gerrymander in political party and protecting the interests of powerful incumbents. Moreover, since blacks vote solidly Democratic, politicians pursuing such partisan and incumbent benefit will inevitably and always give painstaking attention to race, vying fiercely to arrange a politically advantageous allocation of the predictably-Democratic black voters among districts. Typically Republicans will strive to pack most black voters into a very few heavily black urban districts, thereby "wasting" many black votes and keeping them out of suburban "Republican" districts. Typically white Democrats will seek to spread the black vote around into several contested districts, keeping it below 50 percent in each district so that black candidates cannot challenge white Democratic incumbents, but also carefully placing black voters where they can be useful in helping to defeat white Republicans. Neither white Republican nor white Democratic leaders will really want to allow minority voters the opportunity to elect the candidates they most prefer. The Thernstroms' notion that "colorblind" Court decisions can cause politicians to draw districts without reference to race is unrealistic. Court prohibitions will merely drive the inevitable partisan and incumbent-serving racial calculations and manipulations underground and out of sight, rendering them more unfair and more disadvantageous to the black voters themselves. Only in the 1991 redistricting, under the supervision of the Justice Department, was the ubiquitous political manipulation of race constrained in a way that allowed black voters a fair chance to elect their preferred candidates. But, starting with Shaw v. Reno in 1993, the five-member conservative majority of the United States Supreme Court has ruled some but not all of the 1991 black-majority districts unconstitutional. The Thernstroms have applauded the Court's direction, but have urged it to be more consistent and to go further--to declare unconstitutional any attention to racial classifications in drawing districts. Instead the Court has muddled along, and Kousser meticulously demonstrates that the muddling five-member conservative Court majority, all appointed by Republican presidents, has rendered a series of inconsistent decisions that are at once partisan (pro-Republican) and anti-minority. For example, the Court majority has condemned partisan redistrictings as racial in North Carolina and Texas, where they had been designed to aid Democrats, but it has endorsed equally partisan and racial redistrictings in Ohio and California, where they had been designed to aid Republicans. Also the Court majority has unfairly applied a "compactness" requirement to black-majority districts, but not to white-majority districts. If Shaw v. Reno and similar decisions stand and govern the 2001 congressional redistricting process, Republican strategies for advantageously manipulating race will be legal, Democratic strategies illegal. The entire process will be less open, more furtive and devious, less accessible to minorities, more vulnerable to anti-minority gerrymandering, and more often thrown finally into the hands of state and federal courts, which tend to favor conservative Republican interests. The five conservative Supreme Court justices sanctimoniously claim that their 1990s decisions adhere to a principle of "colorblindness" derived from the Fourteenth and Fifteenth Amendments to the Constitution. But as Kousser observes, their commitment to "colorblindness" has "collapsed when the interests of the Republican Party were at stake." Moreover, the Fourteenth and Fifteenth Amendments were originally designed for the express purpose of protecting blacks against a palpable prospect of anti-minority discrimination and anti-minority party maneuvers. The conservative justices misread and misuse those protective amendments when they find in them only an abstract "colorblind" principle and when they invoke that principle not to protect against, but in fact to foster a continuing palpable prospect of anti-minority discrimination and anti-minority partisan gerrymandering.

Rating:
Summary: An exhaustive study of the history of voting rights
Review: Shaw v. Reno is at the heart of Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction, historian J. Morgan Kousser's closely reasoned critique of the Court's recent rulings on the constitutionality of "majority-minority" congressional districts-districts created for the purpose of ensuring adequate minority representation in the House of Representatives...

Colorblind Injustice is an angry book. Kousser is convinced that in a series of recent decisions, beginning with Shaw v. Reno, the Rehnquist Court has destroyed the hard-won gains that African Americans have made in political representation. Kousser considers those decisions to be bad law, bad history, and bad public policy, and he hopes "to set voting rights policy straight by getting its history right" (p. 2). In the pursuit of that ambition, he has written an exhaustive study of the recent history of voting rights, a study so carefully researched and intelligently reasoned that it will probably become the definitive work on this subject...

Kousser begins his analysis with a celebration of the achievements of the Second Reconstruction, a period when "the Court's willingness to protect the rights of minority citizens or let Congress do so, along with the stable majority of experienced and sympathetic members of Congress from 1954 to 1994, allowed judges, Congress, bureaucrats, and interest groups to improve federal protections [for minority rights] gradually and pragmatically" (p. 53). In Kousser's eyes, the Voting Rights Act of 1965 has been central to this process of minority protection, especially Section 5 of that act, which requires states that had prohibited black voting in the past to submit changes in electoral laws to the Justice Department for approval...

In Kousser's eyes, progress came to an end with the Supreme Court's ruling in Shaw v. Reno that two sprawling congressional districts, which were carefully drawn to ensure that they held black majorities, were in probable violation of the Fourteenth Amendment guarantee of equal protection of the law...Like Javert in Les Misérables, Kousser is relentless in the pursuit of his quarry. He devotes 250 pages of text to careful historical analyses of white politicians' successful attempts since passage of the Voting Rights Act of 1965 to reduce or deny minority representation in Los Angeles, Memphis, Georgia, North Carolina, and Texas. Kousser then spends the remaining 150 pages of his book explicating his thorough and scathing critique of the Rehnquist Court's decisions on the constitutionality of the majority-minority congressional districts that state legislatures created in response to Justice Department pressure. In Kousser's eyes, the Rehnquist Court-usually by five-to-four votes-has (1) ignored the relevant historical contexts of the cases it decided, (2) made bad law, and (3) defined central concepts in these cases in a manner contrary to their clear meaning. Shaw v. Reno illustrates all these problems...

Often Kousser's critique of the Rehnquist Court is so extreme and his use of language so hyperbolic that they weaken his credibility. For example, a reader of Colorblind Injustice, ignorant of the Court's history, might conclude that only the Rehnquist Court-and its racist predecessors-made decisions that were "abstract, formalistic, and factually incorrect" (p. 466) and substituted its own public-policy preferences for established judicial precedent...

When Kousser ends his book by comparing the Shaw cases with the Dred Scott decision and Plessy v. Ferguson, arguing that they "all buttressed a seemingly uncertain white supremacy" (p. 465), he goes too far. Dred Scott asserted that African Americans had no "rights which the white man was bound to respect" and that "the right of property in a slave is distinctly and expressly affirmed in the constitution." Plessy v. Ferguson upheld racial segregation and contained the cynical and racist observation that "if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." Whatever the shortcomings of Shaw v. Reno, neither its reasoning nor its impact is comparable to those ugly, vicious, racist judgments...

Historically, African Americans and other minorities have made their greatest political gains through the formation of interracial coalitions. The abolition of slavery was a biracial effort, as were both Reconstructions. After World War II, African Americans in the industrial states of the North and West shrewdly exercised their voting rights in a manner that led to their courtship by politicians of both major political parties. Black votes often decided the outcome of state and national elections, as they did in the 1948 and 1960 presidential races. When the Civil Rights Act of 1964 was signed, civil rights leaders and congressional leaders of both parties were present in what was a truly biracial and bipartisan celebration.

Rating:
Summary: An exhaustive study of the history of voting rights
Review: The anonymous reviewer's comparison of Colorblind Injustice to David Canon's book is misplaced. Although both books are good and address the issue of minority voting rights, they raise very different, though, equally broad questions. Canon asks who is represented in majority-Black districts, while Kousser is concerned with the impact of the court's voting rights decisions for minorities and the country. It is like comparing apples and oranges. I strongly recommend Kousser's book. It is historically grounded and makes quite plain how institutional arrangments systematically limit the political influence of minority voters. Kousser writes extremely well and quite vividly. I especially recommend it for courses on Black politics and parts of the book (chapter one, for instance) for instructors who provide supplemental readings in their introductory American government courses. In the past I used the late Frank Parker's book Black Votes Count to follow our discussion of the civil rights movement in my courses on Black politics. Parker's book is a case study of the legal challenge to Mississippi's long efforts at suppressing the Black vote. It is especially useful because it shows how the state of Mississippi discriminated against its Black citizens not only in its past but very recently through the 1980s. Kousser's book does the same but covers more ground to include California and is current.

Rating:
Summary: Buy this orange for your students of American politics
Review: The anonymous reviewer's comparison of Colorblind Injustice to David Canon's book is misplaced. Although both books are good and address the issue of minority voting rights, they raise very different, though, equally broad questions. Canon asks who is represented in majority-Black districts, while Kousser is concerned with the impact of the court's voting rights decisions for minorities and the country. It is like comparing apples and oranges. I strongly recommend Kousser's book. It is historically grounded and makes quite plain how institutional arrangments systematically limit the political influence of minority voters. Kousser writes extremely well and quite vividly. I especially recommend it for courses on Black politics and parts of the book (chapter one, for instance) for instructors who provide supplemental readings in their introductory American government courses. In the past I used the late Frank Parker's book Black Votes Count to follow our discussion of the civil rights movement in my courses on Black politics. Parker's book is a case study of the legal challenge to Mississippi's long efforts at suppressing the Black vote. It is especially useful because it shows how the state of Mississippi discriminated against its Black citizens not only in its past but very recently through the 1980s. Kousser's book does the same but covers more ground to include California and is current.

Rating:
Summary: Not the best in the field
Review: There is much to appreciate here, such as the detail of the case studies -- the Memphis case in particular, brings us back to an earlier era in our nation's history.

But the broad themes of the book strike me as its greatest weakness. The analogy between Reconstruction in the period just after the Civil War on the one hand, and the Civil Rights movement of the 1950s and 1960s that Kousser calls the "second" Reconstruction, is lame.

The very first sentence shows some of the problems with this book. "Institutions and institutional rules -- not customs, ideas, attitudes, culture, or private behavior -- have primarily shaped race relations in America." If he took that sentence seriously, it would lead him into a definitional swamp, analyzing the different but overlapping meaanings of all the words used there, discussing which one is "primary" and for what reason. He does not take it seriously enough to get us mired in that swamp, but it remains a weak opening.

The best book in this field is David T. Canon's, RACE, REDISTRICTING, AND REPRESENTATION.