Notes on: Bell, D. (1985). The Supreme Court 1984 Term — Foreword: The Civil Rights Chronicles 99 Harvard Law Review  4--83

Dave Harris

[A systematic and thoroughly referenced devastating critique of civil rights legislation in the USA, starting with the contradictions in the Constitution. Also famous for telling the story via various science fiction 'Chronicles' with an imaginary companion, which then leads to further discussion. Far too much detail to summarise at any length. Hard to follow some of the references to the US system and to specific cases. Very different context to the case of racism in the UK].

The framers of the Constitution 'made a conscious, though unspoken, sacrifice of the rights of some in the belief that this forfeiture was necessary to secure the rights of others in a society embracing, as its fundamental principle, the equality of all' — 'the American contradiction' (4). [compare with Habermas's critique of American liberalism for not grasping the divisive nature of the ownership of capital in reality -- Habermas, J. (1974). Natural Law and Revolution. Theory and Practice, trans John Viertel. London:  Heinemann Educational Books]. They convinced themselves that Negroes were inferior, less entitled in some way to the self-evident truth that all men were equal and endowed with inalienable rights, forced to compromise with the southern delegates demand that slavery be retained. It is not that they had not received 'impressive advocacy of the propositions that Africans were humans and that their enslavement was wrong' (6) [documented in notes page 6]. The protection of property was prioritised and the moral implications of slavery as a kind of property ignored. They did not actually mention the term slave or slavery, but in the text itself 'historians have identified as many as 10 Constitutional provisions that effectively protected property in slaves' (7) [notes on this page point these articles out – appointing representatives on the basis of state population, counting all free persons but only 3/5 of slaves, taxing states on the same basis, preventing Congress from abolishing the international slave trade tothe USA, prohibiting states from emancipating fugitive slaves, empowering state militias to suppress insurrections including slave uprisings, requiring the federal government to protect states against domestic violence including slave interactions, prohibiting the taxing of exports which would burden slavery indirectly by taxing the exported products of slave labour. Another note refers to policies to increase the number of white people excluding 'black and tawnys' — by Benjamin Franklin!]

This contradiction remains and has been 'shielded and nurtured through the years by myth. Black people have not gained legitimacy, have not been taken seriously and have retained a subordinate status despite 'impressive proofs of individual competence'. The law of civil rights is 'an inexact euphemism for racial law' (8) and is itself mythological, constantly invoking a threat of disaster in a rich texture that constantly changes and elaborates misleading meanings. Myths often intervene between the goal of racial justice and its realisation, preventing the achievement of racial division from some landmark case, and denying the achievement of some long-term racial equality, especially 'without any loss of their [white people's] privileged position'. There are elaborate psychological motivations behind these myths. Racial stereotypes support them. They have informed the whole of racial history.

The Civil War itself is surrounded by myth. 'The Emancipation Proclamation was intended to serve the interests of the Union not the blacks, a fact that Lincoln himself admitted'(9), and the subsequent freedoms offered to blacks were barely better than slavery. Many promises were never effectively honoured, and the former masters were left in charge. Reparations were often discussed but never got any further. It is still the same today, effective remedies will not be granted 'if that relief involves a significant cost to whites' (10) and this affected the efforts of abolitionists even in northern states. Affirmative action and mandatory school desegregation plans in the current situation show the same qualities.

Black victims of racial oppression also subscribe to these myths. The modern Civil Rights movements 'must be seen as part of the American racial fantasy [although] this is not a condemnation', but better understood as 'the age-old effort to uncover the reality beneath the racial illusions that whites and blacks hold both about themselves and about each other. Clutching for ideological straws'.. Even two decades ago many proponents of racial justice would have expected equality by now, for example after Brown versus Board of Education [desegregating schools in 1954, which led to expectations that school segregation would entirely disappear]. [It was in fact greeted by a number of counters including white flight]. By 1984, no major racial issues had been decided by the Supreme Court, so the move towards racial equality 'has slowed to a walk, leaving millions of black Americans in a condition no better than' before the civil rights movement' (11). Formal desegregation may have made it possible for a few black individuals to make achievements, but this has been accompanied by the 'worsening statistics on the sorrowful state of many'

A huge black underclass was created as disadvantages accumulated and were reinforced by advanced industrial society. Real losses were not compensated by law. Overtly discriminatory policies have been abandoned and some talented and skilled blacks have benefited, but this is no '"final proof" that racism is dead' (12) and the non-mobile are now denied 'even societal sympathy', even if the chances are worse than they were. The future for many black people is actually 'quite bleak'.

The real problem is 'the unreconciled contradiction between our commitment to equality and preservation of the subordinate status of blacks… Shrouded and denied by our attachment to racial fantasy and myth'. The Chronicles explore a number of these myths, for example that a liberal Supreme Court will lead to progress in the movement for racial justice, or that affirmative action policies if accepted and implemented will repair the past racial discrimination, or even that a common crisis faced by the nation will dismantle racial barriers due to the 'demands of efficiency and perhaps survival' (13). Others expound the view 'that the most effective civil right is "self-help"'' and, like other groups, blacks can achieve success. The Chronicles 'enlist fantasy to explore these racial myths' — 'resort to the unreal may lead us towards a realism'.

All the Chronicles were allegedly related by Geneva Crenshaw, who was a civil rights advocate, a black woman, a lawyer, not interested in status or what names black people were called, a teacher. She suffered a brain injury after a suspicious accident and was catatonic for 20 years, then recovered and had some Chronicles to relate, 'strange and allegorical visions'. She wanted to share them with Bell, and drew deliberate analogies with current members of the Supreme Court [which is sometimes hard to follow](16)

Chronicle one turns on a futuristic court room with three women, identical in appearance and all black, as the judges, a large gathering of men and women as the chorus representing the racial groups on earth, so 'few Caucasians', discussing an industrial nation that became prosperous by exploiting the lower classes especially those that were not white. They wanted to know why this suffering and injustice did not bother the upper classes who developed justifications turning on ability merit and skill. One agent summoned to testify also reported that the white exploited groups were 'lulled by a surfeit of sports, sex and patriotic fervour' and this made them unaware of exploitation, and 'solace in the knowledge that they are of the same race as the upper class elite'. As a result 'pseudo-liberal social welfare programs' took the place of proper reform, including prattle about the society of equality under the law. Everyone instead 'knows, or should know, that equality that fails to include economic quality is no equality at all' (18). The agent promises to go back to earth, work from within the Supreme Court, try to persuade the upper classes to engage in true reform and incite the masses to understand that their interests are chained to the nonwhites. The closing speech criticises liberals for thinking that talismanic phrases will produce racial equality, merely enacting laws or winning cases in court, while true reform is needed to ensure maximum security, proper revolution rather than a mere changing of the guards.

In the discussion of the Chronicle, Bell doubts that conservatives would find it anything other than humorous. He said that lots more black judges and high-level government officials existed than in the old days, but agreed that those that they represented had still fared poorly and that civil rights litigation was ineffective. Nevertheless, despite the limits of the court in advancing racial justice, it still had a positive role and could make some difference. The court did not move far from public sympathy and still saw its duty in helping to form public understanding, although it was aware that it could generate controversy. There seems to be little effective alternative in representing a powerless group. Civil rights lawyers did support some of the uprisings and direct actions.

Nevertheless, lawyers seem to remain committed to the courts despite 'so much evidence that reliance on litigation strategies leads to disappointment. That does not seem very objective' (22). But lawyers are committed to the institutions. Some of them have been dismissed for making heretical statements about inefficient racial civil rights legislation [referenced in a note — it was a criticism about unnecessarily delaying implications of Brown versus Board of Education, and he was fired by NAACP for suggesting that their victories had only been symbolic]. Some of the old campaigners would be quite unhappy to hear that the reforms they achieved 'were just enough to assuage the discontent of blacks and other disadvantaged groups'(23), or that they were supported by outside factors [like the Cold War] rather than their own efforts — they would have their faith undermined.

Nevertheless the entire discussion suggests that 'courts cannot and will not meet the needs of our people'. 'Perhaps attachment to civil rights litigation stems from the exciting and rewarding career it has offered you [Bell] and so many other lawyers' (24). The contradiction the Constitution is still there. Even when slavery was abolished the place of blacks was already so established that they have not been able to enjoy more than incremental change, and even then only when it served the interests of whites. The best example is the 14th amendment — it gave blacks the rights of citizens but mostly '"nurtured railroads, utility companies, banks, employers of child labour, chain stores, moneylenders, aliens, and a host of other groups and institutions… Leaving so little room for the Negro that he seemed to be the 14th Amendment's forgotten man"' (25). All civil rights efforts are the same, and have benefited many sectors [lots of decisions are cited, which do not seem to be race cases], even though racist southern justice has been checked. In one remarkable case, lower courts rejected a claim that an Alabama law violated the 14th and 15th Amendment rights of black voters by changing the boundaries of the city of Tuskagee to move virtually all the blacks outside the city limits — it is complex case turning on a contradiction between urban growth on the one hand which in effect denies the influence of urban centres, and unequally apportioned districts on the other, with as a background a scheme designed to cancel out racial or political elements of the population. Much eventually turned on whether there was or was not an intent to discriminate]. For the critic [Geneva] the whole episode shows that litigation is an endless detour and an endless employment program for civil rights lawyers (29).

There is apparently still a difficulty handling civil rights cases 'in which allegations of discrimination are not accompanied by proof of actual intent'. Proving a disproportionately adverse effect is not enough (30), partly because it would overturn a large number of government policies, and deciding appropriate remedies would be very difficult. This is one reason why courts are reluctant to address racial harm. But this might deny blacks 'their rightful share of opportunities long available to whites'(30)'. The fear is they will gain privileges they have not earned and which are not justified — in those circumstances, it is easier to believe 'the inferiority of the black race'.

Nor is it easy to calculate the costs, say of segregation. Weschler has attempted to do this and to use the notion of 'loss of associational rights'. Addressing costs will involve sacrifices, and the question of who should make the sacrifices, who should pay to make blacks equal and there is no answer, so it's unsurprising to find the courts lacking in answer too. Perhaps a liberal court would mean that more cases were won, but there is still a tendency to favour a civil rights litigant '[only]  if the policies they attack are so blatantly discriminatory as to shock (or at least embarrass) the public conscience' (32) and if they do not impose any costs on identifiable whites, for example the exclusion of blacks from jury service. Such cases might close the contradiction in the American Constitution, maybe even shield against excesses of white power, but still 'bring about no real change in the status of blacks', producing victories that 'may be more apparent than real' [a note says that convictions were questioned if no black members appeared on the jury, but on retrial with black members, capital punishment was upheld!].

[In another extraordinary case, noted on page 33, a court upheld the exclusion of Negroes from a particular jury despite accepting it was racially discriminatory on the grounds that lawyers could use 'arbitrary and prejudicial decisions with their peremptory challenges' — in this case challenging jury membership. There are other cases where similar rights to  peremptory challenge have been cited]

It might be that the court is trying to remedy institutional discrimination, allowing case law to alter expectations, as the costs of acceding to civil rights challenges diminishes [apparently the cost of segregating blacks can be high, and support from working class whites has been diminishing]. But there are still subordinating effects, and what this admits is that the court is still protecting existing arrangements.

The National Labour Relations Act of 1935 was hailed by some as a proof that social reform can be achieved, but many courts interpreted this act so as to make 'only minimal intrusions' upon the existing business system [a note claims that many reforming acts went the same way]. The act was fiercely resisted by the business community, and these interpretations were important in 'diffusing the radical potential' of the situation. What we saw was 'institutionalisation and channelling of the militant labour struggles of the 1930s' (34), which preserved managerial power and hierarchy. The same might be said about black political movements: the disruption produced by say black sit-ins and civil rights protest led to protective legislation, but it was entirely minimal [say in protecting the right of black people to intrude in places where they were not supposed to be]. There have been many 'judicial limitations', leaving civil rights litigation as 'necessary "busy work"' (35).

Even though faulty, civil rights legislation must still be pursued? But what if it will lead nowhere? What if there is no alternative? Talk of revolution may be unrealistic and futile. That still leaves room for 'creative protest' and protest against laws that are 'the products of racism'(36). Protest need not be violent, and can still work with lawyers' help. Nevertheless relying on litigation requires a high price and diverts from 'more dynamic attacks on the real causes' of subordination.

There are class divisions among black people. For those in the underclass 'civil rights litigation is unlikely to make much difference', including a decision to make unconstitutional statutes requiring loiterers to identify themselves on request of a police officer [a bit like stop and search] — hardly worth celebrating for 'many poor blacks' (37). The black middle class by contrast gained more, although even this might be misplaced, as another Chronicle argues.

[Then another science fiction interlude where Bell's companion claims it is all real, that she was abducted so speak, and that she was told to share actual life experiences in further chronicles.]

Chronicle two. The speaker [Geneva again] is the first black member of faculty at a major law school, had become a counsellor and confidante of virtually all black students and some whites. She 'was expected to give an award winning performance every day — and serve on every committee at the law school on which minority representation was desired… Every emergency involving a racial issue was deemed "my problem"' (40), as well as to do research and writing. A visitor, a local businessman, asked for advice about some of the limits of equal opportunity legislation, and said that he had been searching for 'blacks who are truly committed to helping other blacks move up'. He had provided them with assistance in the form of a large amount of money, but not cash, for tax reasons – he wanted to help her. She responded by saying she needed help in locating more blacks and other minorities to become faculty members. An additional black teacher was hired during the summer as a result, and three more minority teachers were promised positions, producing six in all. Then another one was recruited, an 'exceptionally able black lawyer'(41) making seven.

This made the faculty '25% minority', and this was a problem for the Dean. All the candidates were good, but the character of the faculty would be changed, the Dean argued. Geneva argued that it was meritocratic, and the chief qualification should not be '"a white face, preferably from an upper class background"'. The Dean argued that if it was okay for law schools like Howard to retain mostly black faculties, even if they turned away white lawyers with better qualifications, so it was okay for them to remain a white school. Geneva argued that black schools have a special responsibility to aid victims of long-standing racism, however. The Dean's decision risked being sued. The Dean said that 'a law school of our calibre and tradition simply cannot look like a professional basketball team' [clearly a reference to the actual judgement mentioned above]. She realise that all her efforts had been futile.

Apart from the personal injury, Bell was interested in whether the Court would see this as racial discrimination. Apparently the seventh candidate did decide to challenge his rejection in the courts but she did not recall the outcome. Bell thought that the confidence in favourable precedents was not justified and that the court had actually withdrawn earlier decisions. However, the notion of a superior qualification can take into account 'the employer's subjective evaluation' (43) in a major way. The court will require 'strong proof that those decisions were based on an intent to discriminate'(44) and 'deference' [to the organisation] arises often when a decision affects the health or safety of large numbers of people, e.g. when hiring airline pilots. They are also unwilling to interfere with elite professions. Especially if there are 'few objective hiring criteria and legitimate subjective considerations'. There is no current intention to broaden the scope of anti-discrimination laws – the current Court declined to review in most of the cases of racial discrimination in employment submitted to it and most of those that stood went against the plaintiffs. There is a chance that the case might be seen as one of those that helps close the contradiction in the Constitution and if it did not impose an unbearable cost, but it was quite likely that the Dean would prevail. He could further argue that the reputation of the law school was based on it being 'a "majority institution"' (46) a predominantly white faculty, ad changes would affect recruitment and alumni  contributions, to his regret of course , and that they would be at a competitive disadvantage. The court might also be worried about the precedent that the minority might increase to 50%. The Dean might be able to argue that there was no evidence of racial discrimination in hiring the number of blacks they already had. He might argue that there is an analogy 'to housing cases in which courts have recognised that whites usually prefer to live in predominantly white housing developments' (47) [a note details the case putting the obligation to promote racial integration at the forefront even if that penalises some nonwhite persons. White flight had apparently led to the crisis in the first place, and white fears were seen as imperilling integration]. There is a notion here of a '"tipping point"' which triggers white flight.

Even civil rights groups have talked about '"benign" housing quotas' (48) and this has led to some legal discussion. The majority opinion in a case apparently concluded that these were illegal because the Constitution was colourblind, rejecting the argument that it was intended to promote racial integration. A dissenting opinion saw the proposal as a reasonable approach to a vexing problem, one that was not hostile to blacks. A third opinion argued that the blacks were likely to resent these restrictions, that racial classifications were odious, and that integration should be sought through other means including education. There is also concern that the principle might spread to include jobs and elective offices. This discussion might be cited as an analogy,  if the tipping point argument applied and was not instead a '"stopping point"' (49).

The Court could be seen as applying the rule that 'incorporates a desire for white dominance without, of course, admitting as much'. Perhaps it will be seen as a matter of associational rights, denying blacks freedom of association, or forcing an association on those who will find it unpleasant, and having to balance these rights — the court might need to find some level of desegregation which would be acceptable. Geneva thinks this would be tokenism and a way of legitimising the subordinate status of black people. It would also benefit the institutions rather than the minorities.

Another alternative is to take affirmative action. But  'rather than overhaul admissions criteria… officials chose to "lower" admission standards for minority candidates'(50), with unfortunate results — it sounds like noblesse oblige, charity, not legal duty. It still only allows a trickle of minorities' [and labels them as less deserving].

There is a last legal problem that academic freedom is protected by the first Amendment, that universities have a Constitutional right of academic freedom. Ethnic diversity is only one element in attaining the goal of a heterogeneous student body, it was decided in a court case, which can clearly lead to 'judicial deference' to a university's decision on the need to stop balancing faculty. Perhaps this particular case arose from a resentment that the intervention of the wealthy sponsor somehow doublecrossed the faculty, sidestepped them and undermined their policy. Perhaps they would have been much more favourable if it had been devoted to white law teachers — but the national record of minority recruitment is already very poor, so there is already a case that the talented seventh candidate would have been rejected, that recruiting some minority persons had taken the pressure off them and taken the energy out of their recruitment priorities.

That still leaves the question of why white faculty would want a predominantly white environment, especially the more secure tenured ones. They are probably not 'bigots in the redneck, sheet-wearing sense' nor would they accept slaveowner 'propaganda that blacks are an inferior species' (51 – 52). But there is '"ideological hegemony" of white racism [somebody called Marable], a '"public rationale to justify, explain, legitimise or tolerate racism"' shared by all our major institutions, producing 'a collective consensus' (52). It is not the result of a conspiracy but is sustained 'by a culturally ingrained response', and results in, say, immediate suspicion of any black newcomer. [This leads to personal accounts of covert racism by Geneva,  increasing criticism, suspicion of her popularity with students]

Bell says that Delgado has explained this in terms of '"cognitive dissonance"', where minorities do not just scrape by gratefully but overachieve, changing perceptions of reality (53). This is what seems to have happened here, where liberal tolerance was pushed to an unexpected level threatening their own 'sense of ideological hegemony'. Whether the Supreme Court would understand that is debatable — it is probably beyond antidiscrimination law, but it might come out in a court case if the law school was forced to explain its rejection. What this risks is a continuing view of progress in American race relations, 'largely an mirage' (54) in reality.

There is no point just trusting in the '"moral sense of the white race"' (55) [quoting Niebuhr]. The white race in America has to be forced to admit the Negro to equal rights. Was this despairing? We have to put it in context — progress was defined in his day as 'a reduction in the number of blacks lynched each year'. They did 'benefit from a national commitment to bring the poorest victims of racism to a point of educational, social and psychological parity'.

Perhaps things will change if there is some external crisis that forces a sense of national unity,andmakes everyonerealise that are all citizens? [for some reason, this is taken first to be some sortof celestial crisis] How would this be  manifested? Even Jesus is believed to be white! We can't just believe in supernatural forces [but perhaps he meant an internal political crisis? Or eco-crisis? Or one of those risks in Beck like pandemic, nuclear war, the sort of thing that frightens the middle classes because they can't see a way to buy themselves out of it?]. What about war? It gives blacks opportunities in the military and domestically, it captures the nation's imagination makes us think of each other as equals (the Vietnam War didn't -- the Iraq War?). The end of World War II did lead to some limits to racial segregation, although we still needed years of litigation — it will still be a long-lived process.

Third Chronicle. A mysterious Amber Cloud descended leaving a social transformation which affected white adolescents with wealthy parents with a debilitating affliction — '"ghetto disease"'. The nation's most prosperous families offspring became a dull amber colour. They were shunned. They experienced personality changes. They were treated as lepers. They became 'lethargic, disinterested, suspicious, withdrawn and hopelessly insecure' just like so many children in the ghettos. Attendance and achievement in the finest schools plummeted, antisocial behaviour rose sharply, apathy spread and undisciplined behaviour escalated. So did gang warfare. Working class whites were not affected but sympathised deeply with an outpouring of concern and support. Large sums were raised to research it, government welfare programs extended their operations. The government intervened without objection and it was seen as necessity not welfare. Some people claimed that black elements were responsible for the disaster because no children of colour were afflicted. Police officials responded by rounding up civil rights leaders and even more retaliatory measures were urged. Black social scientists who had worked on black ghetto life tried to develop an effective treatment plan and hundreds of black people volunteered for psychiatric testing. This eventually led to a psychological conditioning process and the synthesis of mind altering chemicals that appeared capable of a cure, although the treatment was expensive.

Civil rights leaders hailed the discovery and urged that the treatment should also be made available to nonwhite youths, but the public responded negatively — minority leaders were moving too fast, the problem with ghetto youths was inherent sloth, inferior IQ and 'a lifelong commitment to the "black lifestyle"' (59). Legislative action authorised the billions needed for the cure and Congress budgeted the cuts by cutting defence spending. Targeting provisions limited access to the treatment for victims of the Cloud. Civil rights litigators filed lawsuits challenging the exclusion of minority youths, but these were dismissed on a variety of procedural grounds. The treatment proceeded with a high level of efficiency and attracted patriotic pride: the nation and its most privileged youth returned to normalcy.

This clearly casts doubt on the idea that progress of blacks might come from a common crisis, but, for Geneva, it just reflects the way in which government benefits were distributed during the Great Depression, or the racial hostility and discrimination accompanying the gains made by blacks during World War II [both explained in notes page 60 — in the first case, even relief was administered in a way that discriminated against Negroes, and blacks were discriminated against in the military which positively undermined their morale]. More recent responses to recession shows a better response than crises that affected black unemployment alone, but not much. In the case outlined by the Chronicle, targeting might be seen as racial classification, although the Supreme Court has not got a great record here, and racial antagonism is seldom used to justify rigorous scrutiny [a case covered the exclusion of Japanese Americans on the basis of their race]. Overall, blacks seeking to enforce their rights tend to 'always present courts with "special situations"' (61) requiring political sensitivity, usually reserved for white concerns [one example applies to the Brown judgement requiring special  '"all deliberate speed"' for implementation]. Some racial classifications have been struck down, but some segregation schemes have been upheld if it was judged that they resulted in separate and equal facilities for blacks. Only in 1954 was it recognised that 'separate facilities were "inherently unequal"' (62).

There have been some horrible cases of statutes barring interracial marriage, for example which fell foul of laws preventing '"suspect classifications"' but not until the mid-1960s, where they were still being applauded in the deep South, and a black man in Alabama was convicted 'under an Alabama anti-miscegenation law' who had married a white woman, and the Court 'refused to review the conviction' [! — apparently that was a year after Brown]. It could be argued that there were '"strong considerations of expediency"' involved here, and that modern courts would not repeat these judgements, but Geneva insists that modern cases have continued the patterns of upholding suspect classification — she thinks that the Court only strikes down racial classifications if they 'facially discriminate [ie on the face of it?] , cannot be justified by crisis, needs 'all the protection of socio-economic stability' and can be 'invalidated without creating too much opposition' (63). [Much of the precedents cover protection for Japanese Americans, it seems]. There were cases involving laws or policies that 'impacted heavily on blacks but did not explicitly mention race' (64), accompanied by a shift away from the actual suspect nature of the measure, the harm it might cause, towards the '"intentions" and "purposes" of those who enacted the measure' (64). The burden of proving intent is great in most cases and challenges have to usually prove that the policy 'is an act of outright bigotry… or obvious racial hostility'. Many decisions 'convey unintended signals to blacks and whites as to how the Court weighs the relative interests of the two races' (65), and there is a clear intent not to upset whites any more than is necessary.

In the case of the Amber Cloud, the Court could easily argue that there was not a racial classification being enacted, but simply a distinct remedy for one form of widespread ill, and that the 'differential racial impact… was entirely fortuitous, rather than invidiously intended'. If there was racial discrimination, it was by the Cloud. Nevertheless, the Court would clearly realise that there was a moral problem in withholding from the black community a known cure, and a concern for the image that the nation was presenting to Third World peoples. However, this ignores the debates just after the abolition of slavery, where abolitionists were challenged by ['pragmatists'] demanding who will pay to free the slaves and cure the millions of black children from the heritage of slavery, who would meet the costs.

There is also the issue of a fundamental personal right to a minimum level of health, just as could be argued for a minimum educational level, which prevents significant social costs. However, the Court seems not very impressed with this argument in recent cases. It is one of those examples as with so many civil rights principles where there is a symbolic value, 'but in practice it provides no protection at all' (67). We might at least gain further knowledge about the problems of modern racism?

The last Chronicle. This was based on a memory of the slaves travelling to the USA in appalling conditions in slave ships, and whether those original travellers could anticipate arguments for civil rights in the land which is being transported. A former lawyer travels back to Ghana and finds a model ship submerged in the sand on a beach, a model of a slave ship. Inside were scrolls describing how human beings accommodated themselves to desolation and despair. The lawyer returns to the USA and teaches the message of the slaves scrolls, via healing groups. This encourages the members of the congregation to 'shed the marks of racial oppression' by reading the history of slavery in America, gory, brutal, filled with murder, mutilation and rape, but still permitting the humanity of their ancestors to survive. The modern readers experienced the 'secular equivalent of being born again and left the healing groups determined to achieve at levels that would justify the faith of the slaves, in the form of a competitive '"we will show them"' (70). The congregation grew, healing sessions spread and were successful, so that 'the marks of historic oppression — crime, addiction, self-hate — eroded and a desire to excel increased. Unemployment dropped, community enterprises flourished black family life was reinvigorated, blacks excelled at school.

A great many white people became alarmed as large numbers of blacks and pass them. Affirmative action programs were disbanded and imposed explicit ceilings on the number of black candidates replace them. Violent attacks began on the adherents of the healing movement and there was a campaign to find evidence of wrongdoing or subversive activity.

Finally, the answer to this growing black success was found in labelling the movement as the preaching of racial hatred, grounded in the evil of the system wiped out long ago, ignoring brotherhood across racial boundaries. Racial toleration laws were enacted banning teaching that promoted racial hatred by focusing on the past. Severe penalties were enacted. Teaching was banned. Whites perverted the law but white economic and military power was marshalled against them and challenges to racial toleration laws failed.

Overall these optimistic teachings proved too much and we return to the past via negotiations with white community, a form of surrender, there was mass renunciation of the lessons of the healing groups.

There was apparently some historical basis for this that some newly freed blacks did indeed make impressive educational and political gains after the end of the Civil War and that did serve to 'deepen and intensify the hostility of southern whites' (72). It is also true that black leaders and groups who have tried to rid blacks of the slave mentality have been persecuted — Marcus Garvey, for example or the Black Muslims, Paul Robeson, Dubois, Martin Luther King and Malcolm X. Malcolm X was particularly interested in decolonisation. The Chronicle suggests that too much success in competition threatens black survival.

However some poor whites relieve their frustration 'by feeding on the myth of their superiority' (73) but many blacks 'engage in self-destructive and antisocial behaviour as an outlet for their despair'. They have certainly learned that they cannot gain acceptance by becoming super achievers. For lawyers, the issue is how can the courts protect black people who want to overcome the disabling effects of racism [apparently there are parallels to this Chronicle charting attempts to overcome the racial tolerance levels and defend the constitutional rights of free speech and religion and association and how the Court has not defended them]. In general, free speech rights are broad in theory but more limited in fact and politically threatening speech has long been subject to very variable levels of protection. For example the Cold War has eroded first amendment rights as the distinction between military secrets and information kept secret to enhance the government's reputation has been blurred [very familiar in the UK]. Imagine if there was considerable challenge by black people at every level of the social ladder — a great deal of white hostility will rise and this lack of public sympathy would affect the Court. [Apparently there have been precedents in the past where specific protests have been ruled illegal in the name of regulations designed to control public speech in general by preventing '"boisterous and threatening conduct", in this case provoking white hecklers (75)]. The Court has also not enforced regulations if it felt that they would be ignored at the local level (76).

Formal equality is no help, except to policymakers and to the economic hierarchy. Black people are still set apart as a separate category. A colourblind constitution is preposterous. Black people are protected 'only when those efforts leave vested interests undisturbed' (76). It might be possible to approach the issue differently, in actually preventing interference with overachievement, or other activities by black people in the name of racial healing, as a further protection against the injuries of slavery [which is agreed to be unlawful]. It could be argued that blacks cannot 'purge self-hate' [and thus cease to be a threat] unless they develop black pride explaining that their deficiencies are the result of white racism, a 'dangerous truth' yet an essential one (77 – 8). It could further be argued that this healing needs to be conducted in public forums as opposed to what goes on already in more dangerous private, small group all-black settings [there is some parallel here with sexual freedom, possibly even connected with Roe versus Wade and the rights of poor women to enjoy the same access to abortion as rich ones, which I don't fully understand].

There is a social cost of ignoring the black underclass and this may be rising, and the Court may feel compelled to act in this area in the name of the nation stability, although the current Court has not shown any indication to do this, and there is opposition to Roe [!], denying that the Court should be taking the moral high ground. There would certainly be substantial social reordering if racial healing were protected, and the states themselves might still have a compelling interest in resisting it.

Would not whites, even elite whites, see racial healing as beneficial, so that blacks would become properly productive members of society rather than burdens producing 'large costs of crime, poverty, illiteracy, and poor health'? (80). It would be a benefit, and there is some recognition that change would, but there would be disruption to settled economic arrangements, especially to the legitimisation of the position of lower class whites. [CF the case made by JS Mill for the UK,arguing that social reform was actually in the interests of the elite, that it  would eventually protect the English establishment from harm -- one specific  but limited case that helped convince them was the Cholera Epidemic of 1836 that threatened London. No problem when it raged in the East End but it spread along the Thames to the Houses of Parliament and  that led to support for spending on health and sewage reform).

Do the powerful actually need the heavy subordination of blacks to secure their position? Do they not have ideologies like consumerism, religion and 'consumer–packaged nationality that integrates patriotism with religion… [that can]… anaesthetise the populace'. Perhaps the time is right to push for another landmark decision, perhaps advocating racial healing?

[The story ends with the mysterious disappearance of Geneva, confirming that the whole thing has been a fantasy of his own. Although he finds a final message. She concludes there might yet be hope. The courts do at least offer a potential shield against 'blatant discrimination' and do protect individual rights (82). They do minimise the worst decisions. There is no option but to carry on with affirmative action problems. 'At least we know more about them and can minimise their alienating consequences. A common crisis could still arise to unite people, and the need for people of colour might still be realised. We have to keep looking for an answer. It would be a luxury to insist on an intellectually gratifying one, while most people just 'must do the best we can']

In the epilogue, he conjures Geneva again at a meeting of the Bicentennial Committee, who gives a speech urging people to talk about the slave history of the Constitution and how the basic mistake of the framers  had to be accepted and corrected. But it had a bad reception and her right to tell the members anything was seen as 'effrontery'(83).