When Equality Ends: Stories of Race and Resistance

Overview

Richard Delgado is one of the most evocative and forceful voices writing on the subject of race and law in America today. The New York Times has described him as a “pioneer” of critical race theory, the bold and provocative movement that, according to the Times “will be influencing the practice of law for years to come.” Stanley Fish calls his previous book, The Rodrigo Chronicles, a “stunning performance.” In When Equality Ends: Stories About Race and Resistance, Delgado, adopting his trademark storytelling ...

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Overview

Richard Delgado is one of the most evocative and forceful voices writing on the subject of race and law in America today. The New York Times has described him as a “pioneer” of critical race theory, the bold and provocative movement that, according to the Times “will be influencing the practice of law for years to come.” Stanley Fish calls his previous book, The Rodrigo Chronicles, a “stunning performance.” In When Equality Ends: Stories About Race and Resistance, Delgado, adopting his trademark storytelling approach, casts aside the dense, dry language so commonly associated with legal writing, and offers up a series of incisive and compelling conversations about race in America. The characters, a young professor of color, an aging veteran of many civil rights struggles, and a brilliant young conservative, tackle a handful of complex legal and policy questions in an engaging and accessible manner.Has U.S. society quietly ended its commitment to minorities and to racial equality? In these new chronicles, Delgado searches for an answer. The book explores the main normative premise of Alternative Dispute Resolution; examines doctrinalism and legal formalism; questions whether regulation and the free market have failed to alleviate poverty in the colonias settlements of the Southwest; and asks whether Title VII and civil rights laws are necessary in today’s legal system. From an examination of the positive role that racial mixture and multiple consciousness will have on America’s future to a look at the harmful impact that new human reproductive technologies are likely to have on minorities, Delgado tackles a number of timely and provocative issues. Written for both students and general readers, When Equality Ends: Stories About Race and Resistance provides a highly accessible introduction to critical race theory and the new approach to civil rights.

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Editorial Reviews

Booknews
Delgado (law, U. of Colorado) resumes the storytelling style of his earlier books to present a series of conversations about race in the US. His characters, a young professor of color, an aging veteran of many civil rights struggles, and a brilliant young conservative, tackle a handful of complex legal and policy questions. No index. Annotation c. Book News, Inc., Portland, OR (booknew.com)
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Product Details

  • ISBN-13: 9780813335780
  • Publisher: Basic Books
  • Publication date: 1/28/1999
  • Pages: 224
  • Lexile: 1110L (what's this?)
  • Product dimensions: 6.30 (w) x 9.32 (h) x 0.92 (d)

Meet the Author

Richard Delgado is the Derrick A. Bell Professor of Law at the University of Pittsburgh. He is the author of When Equality Ends (Westview Press), The Rodrigo Chronicles, and The Coming Race War? And Other Apocalyptic Tales of America After Affirmative Action and Welfare. Delgado is the winner of eight national book awards and is a frequent television and newspaper commentator on race and civil rights.Jean Stefancic is research professor of Law at the University of Pittsburgh Law School and Derrick A. Bell Scholar in Law. She is the author of No Mercy: How Conservative Think Tanks and Foundations Changed America's Social Agenda, and a frequent contributor to the literature on race and civil rights.

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Read an Excerpt




Chapter One


Rodrigo's Book Bag


Recent Conservative Thought and the End of Equality


"Professor! You're back!" Rodrigo leaped to his feet, extended his lanky frame, and shook my hand fervently. "We heard you might be coming. What good news! Sit down. Did the authorities give you any trouble?"

    "Not at all," I replied, setting down my travel bag and plopping down on one of the few uncluttered spots on my young friend's couch. "I breezed right across. They didn't even make me open my suitcase. I gather you didn't get my letter?"

    "No, but Laz got a card and mentioned it to Giannina. So we knew you might be coming."

    "You'll probably get it next week. The mails are glacially slow. It's one of the few things that take a little getting used to about my new place. I'm glad you're in town."

    "It's been a while," Rodrigo said. "How's the grandchild?"

    "She and her mother are both fine. They named the little one Gianna, after your Giannina, I think. I'll be seeing them later this evening, but thought I'd drop in on you since it's on the way."

    "We were hoping the lure of grandchildren might bring you back. How long are you staying?"

    "My visa's good for six months, but I won't stay that long. I'm helping my son-in-law lay tile for their new patio so my daughter and the baby can go out there when the weather's good. I hope this isn't a bad time. I tried calling from the airport, but your number was busy."

    "Not at all. Giannina's ata wedding rehearsal, but I know she's dying to see you. Can you join us for dinner?"

    "I'm not expected at my daughter's place until nine," I said, looking at my watch. "When will Giannina be free?"

    "In about twenty minutes. We agreed to meet at a little place around the corner. If you've got time, I'd love to tell you about an incident that happened here just last week."

    "What happened?" I asked, picking up my bag.

    Rodrigo motioned me to follow him and locked his office door. As we rode the elevator down to ground level, he began: "It's really quite appalling. Someone defaced the lockers of some students of color, including my own research assistant's. I know this kind of thing happens all the time, but what's unusual is that this time the perpetrators got caught. One of them had a qualm of conscience after a town meeting called by the dean. He came forward and named his three confederates."

    "Sounds like it had a happy ending," I said as we stepped out onto the busy sidewalk in front of Rodrigo's law school. "Was any punishment imposed?"

    "The hearing's next week. Three of them confessed and said they're sorry. I doubt they'll get more than a reprimand and some sort of community service. But the fourth—an undergraduate—is an interesting case. He refused to apologize, saying that he stands by what he wrote. He's citing The Bell Curve and Robert Bork's new book. Can I help you with that bag?"

    I gestured that I was okay. "Now I've heard everything," I said. "A defense of truth! This new crop of conservatives is getting brazen. Even moderates like Dinesh D'Souza brag that it's now acceptable to say things—about the genetic inferiority of blacks, for example—that were unthinkable a few years ago."

    "This is the place," Rodrigo said, stopping to scan a menu posted on the window. "I hope you like Ethiopian."

    "Sounds fine to me," I said. "Do they provide forks and knives, or will we be eating with our hands?"

    "You have your choice," Rodrigo replied, peering through the glass. "And, it looks uncrowded."

    We stepped inside. "Two for dinner?" The waiter asked.

    "Three," Rodrigo replied. "One will be joining us soon."

    Minutes later we were seated in a comfortable side booth in the homey restaurant. "I'll keep an eye out for Giannina," I said, indicating I could see the door. "And so, what do you think will happen to your unrepentant defacer?"

    "It's anyone's guess," Rodrigo replied. "He's being represented by one of those conservative legal foundations. They plan to make a test case out of it, arguing that if the student had written `Malcolm Lives' or `Workers of the World, Unite,' nothing would have happened. And they're prepared to argue that what the four did write on the lockers—`Special Admit' and `One Standard Deviation'—either was true or fell within the range of fair comment."

    "What do you know about the unrepentant one?"

    "He's a writer for the campus conservative paper that just started up last year. They've been publishing a series of exposés on the black professors at my university. It's been creating quite a stir. Now it looks like it's the law school's turn."

    "I'm sorry to hear that," I sympathized.

    "As bad as the whole incident has been, it's gotten me thinking about equality," Rodrigo said. "I've been reading those two books the defacer cited and have just picked up D'Souza's latest." Rodrigo pulled a thick red and black book from his book bag.

    "Oh—The End of Racism," I said. "I'm almost done with that one myself. The other two I've read. Bork, as you know, offers his usual dyspeptic assessment of multiculturalism, affirmative action, and pop culture, all of which he thinks herald the decline of civilization and the West. In his view, our only hope is to revitalize the culture and ideas that made Europe and the West great—competition, liberty, and respect for the classics. The West has little to learn from other cultures, especially African ones, which he seems to believe have produced no great music, science, or technology—little except a good recipe or two," I concluded, wryly indicating the menu, which both of us had been scanning with interest.

    "It's frightening to think he could have been appointed to the Supreme Court. He takes every cultural difference as an indication of inferiority"—Rodrigo gestured at the diners next to us who were eating with their hands—"ignoring that practices such as sitting on the floor, eating like that, or praying five times a day may be fully adaptive within some other society and that our versions are not necessarily better merely because they work for us."

    "And you've been reading the Murray-Herrnstein book, as well?" I coaxed.

    "Re-reading it, actually," Rodrigo replied. "Now that the undergraduate defacer has made an issue of it, I thought I'd better have another look."

    "It's a little subtler than Bork's," I offered. "But no less disparaging of other cultures."

    "Indeed," Rodrigo said, raising a hand to let the waiter know we were ready to order. "Beginning with the premise that IQ is the prime determinant of success in a competitive society like ours, Herrnstein and Murray reason that the gap in resources, education, jobs, and lifestyle between the bright and the less bright will only widen as the job market changes. With elimination of many blue-collar jobs and the advent of an economy based on technology and information, the haves and the have-nots will move farther and farther apart. Since race and IQ are linked, according to Herrnstein and Murray, we are doomed to live in a society increasingly split along racial lines. In their last chapter, they predict that America will soon have a seething, crime-ridden underclass, mostly of color, unable to find meaningful work; they speculate that we may have to wall off the inner city in what they call a `high-tech and more lavish version of the Indian reservation.'"

    "Unbelievable," I replied. "It reminds me of Peter Brimelow's suggestion that we cordon off the entire Mexican border. Oh, here's our waiter."

    Rodrigo ordered a savory-sounding lamb dish for himself and kabobs for Giannina. After some deliberation, I ordered my usual vegetable curry ("Doctor's orders—I'm supposed to cut down on meat"), and the waiter departed.

    "And so, you're also reading D'Souza," I continued. "What do you make of him?"

    "I'm nearly finished," Rodrigo replied. "Like Bork, he argues for a color-blind society, but with a twist. Reasoning that diversity, affirmative action, and multiculturalism are all forms of racism, he urges his readers to refrain from enshrining difference in government programs of any sort. Also like Bork, he believes other societies have little to offer the West. The best way to integrate nonwhite groups into society is to encourage them to give up attachment to `inferior cultures' and fully embrace the Western version as earlier immigrant groups have done."

    "That also reminds me of Brimelow," I said. "Maybe they were members of the same study group."

    Rodrigo laughed. "It is a little like him, although D'Souza focuses mainly on American blacks, not on immigrants from Mexico and Latin America. And he differs from Brimelow and the others in that he outlines the case against racism toward blacks—albeit only as a way of challenging preferences in any form. In the early part of his book, where he reviews the history of racism, he expounds some highly dubious premises of his own—such as that African society was backward and savage, and that the slave trade may have done blacks a favor by forcibly bringing them here. He's generally careful not to impute biological inferiority to African Americans and other minority groups. In that sense, he's a little kinder than the others. But he leaves no doubt that he considers black culture inferior to the European kind and that programs that ignore this inferiority simply perpetuate it in a new kind of racism."

    "Oh, there she is!" I said, half-standing and waving to the dark-haired young woman who had entered the restaurant and was looking around. "Giannina—over here."

    "Perfect timing," Rodrigo said, giving his wife a warm hug. "I was worried we had ordered too early. How was the rehearsal?"

    "Fine. They liked my poem," Giannina replied. Then, giving me a warm smile and a hug, "Welcome back. We heard you were coming. How's the family?"

    "All fine. I'll be seeing them later. I understand you're in law school now."

    "I am. Not in Rodrigo's, but in the one across town. What have you two been talking about?"

    "The controversy at his school. And also about three books he's been reading, all by conservative authors."

    "Oh, Bork, Herrnstein, and, what's the other one?"

    "D'Souza," I responded. "Have you read it?"

    "No, he's been hogging it ever since we got it last week. He says he needs to read it before the hearing."

    "I'm nearly finished," Rodrigo said, guiltily. "I promise I'll let you have it by this weekend. Brimelow, too, if you want it."

    "Thanks, but I've already read him, and once was enough. Although hailed by conservatives when they first came out, all four books have proved controversial. I kept thinking, `Wait a minute,' after practically every sentence. They're tough going for someone of my persuasion. Mmmm—are those for us?" Giannina asked, as the waiter put a series of savory-smelling dishes before us. "Lamb kabobs, my favorite!" Rodrigo smiled.

    After a few minutes in which we ate in silence, Rodrigo looked up. "This whole business—the incident at the law school and the flurry of conservative books—has got me thinking about the role of equality in our society."

    "So you said. I, for one, am all ears."

    "Me, too," said Giannina. "But before you start, I hope you don't mind ushering tomorrow. One of the wedding party came down with the flu."

    Rodrigo took a big draught of his tea, commented good-naturedly that that was the least he could do since he couldn't write poetry, and began:


Rodrigo's First Theory: Surplus Equality—
The Case of African Americans


"The basic problem is that we're stuck with constitutional guarantees of equality that are becoming increasingly inconvenient, even embarrassing. You can already see beginnings of this retrenchment in the courts."

    "I assume you mean all the recent changes in equal protection doctrine," I interjected. "Like new, tougher intent requirements, tighter proof of causation, and manipulation of standing and res judicata law, among others—all of which make it harder for minorities to sue for discrimination?"

    "Yes, but the retrenchment reaches beyond the courts," Rodrigo said. "Decisions like the ones you mentioned are just the surface manifestations of something deeper."

    "Namely?" Giannina asked, leaning forward.

    "All the little, incremental cutbacks are only the tip of the iceberg. Conservatives in think tanks and foundations have begun to see the commitment to equality, enshrined in the Declaration of Independence and three constitutional amendments, as an inconvenience, an anachronism, a little bit like the Second Amendment. Meanwhile, our system is in the process of forsaking that commitment."

    "Forsaking it?" I exclaimed. "I certainly hope you have some documentation, Rodrigo! For someone like me, who has dedicated his entire life to working for civil rights and racial justice, that's a stunning indictment. If you're right, we all might as well pack up and go home."

    "I wouldn't go that far," Rodrigo replied. "But we should know what we're fighting against. I don't mean to be dispiriting."

    "Forget dispiriting. If it's true, it's true, and we'll just have to deal with it. Let's hear your evidence."

    "My thesis breaks down into two parts, corresponding to separate mechanisms for attenuating the equality guarantees. The first shows how equality in our system is inherently and necessarily unstable. Without strenuous efforts, it fades over time. The second explains how we are shrinking the very notion of equal citizenship. The two mechanisms correspond, roughly, to blacks on the one hand, and Latinos on the other—although they overlap. Indeed, they work together in an unholy alliance. The latter even constricts equality of opportunity. Are you ready?"

    Giannina and I both nodded emphatically. Rearranging his dishes slightly to give himself more room, Rodrigo began: "Have you two heard of the theory of surplus value?"

    Giannina and I looked at each other. "Of course," she replied. "Attributed to Karl Marx, it holds, in one version at least, that in any closed system, such as a factory, capitalism is on a collision course with itself. Because the owner of a plant takes out a certain percentage as profit, believing himself entitled to it as a return on his investment, not enough money is paid out in wages for the workers to buy the products they make. On a larger scale, this is true of countries, as well. That's why capitalism inevitably leads to disparities of wealth and, eventually, colonialism. According to Marx and Engels, capitalist societies must take over new countries to serve as markets and sources of raw materials and cheap labor. Otherwise, everything collapses. Of course, capitalism proved more resilient than they thought. Still, Marx's theory, though discredited in some quarters, is widely regarded as one of the four or five most powerful ideas in all social science. It supplied the theoretical rationale for socialism and paved the way for the modern labor movement, as well as other important reforms of the social-welfare state."

    Giannina paused, so I turned to Rodrigo: "What does this have to do with the host of recent books promoting theories of racial inferiority, such as The Bell Curve? I gather you think there's some connection."

    "Have you ever considered that Marx's theory might have an analog?" Rodrigo asked.

    "You mean a theory of some other kind of surplus?"

    Before Rodrigo could answer, the waiter interrupted to ask how we were enjoying our meals. I noticed a slight accent in his English. We nodded—"Fine." As he departed, Giannina quipped, "Speaking of surpluses, I think we have a culinary one. These portions are huge. I'm afraid I'm going to have to take half of mine home."


The Relation of Liberty and
Equality in Welfare Capitalism


"I can help you finish it later, if you like," Rodrigo volunteered. Giannina rolled her eyes at the famous appetite of her rail-thin husband, who shrugged and continued as follows:

    "My theory has to do with the relationship between equality and liberty. Everyone knows we have a liberty-based system that, in the economic sphere at least, is committed to free-market capitalism. Yet we are also committed to equality. The Declaration of Independence holds that all men are created equal. The Constitution requires equal treatment of citizens in voting, political representation, and other areas."

    "Yes, and many people recognize that the two values interfere with each other, to some extent," Giannina interjected.

    "True," Rodrigo acknowledged. "But what few realize is that each is internally inconsistent, in light of the other. As we mentioned earlier, Marx theorized that capitalism is on a collision course with itself. If he and his followers are right, profit cannot maximize itself without contradiction."

    "That's the theory of surplus value," I said. "And I gather you think something similar checks promotion of equality?"

    "Yes. I call it the theory of surplus equality."

    "Surplus equality?" Giannina said, with a skeptical look. "I assume you mean something more than the idea that too much leveling—through taxation for example—is bad for free enterprise?"

    "I do," Rodrigo replied evenly. "And that's where the books we were discussing come in. My theory is that our society must rationalize a larger and larger disparity—measured by the difference between equality of results and equality of opportunity. Because we want to believe that our country gives every person an equal chance to succeed, we must justify social stratification on other grounds. We turn to genetics since it allows us to explain why whites hold most of the wealth. People can then say that whites deserve to keep their wealth and power. People can claim that—after all—whites are biologically superior."

    "Hmmm," I said. "I think I need to hear more. I read that the United States just overtook Great Britain as the most divided society in the Western world. Even Bork noted this. And we've certainly seen a great deal of blaming of the poor for their own condition, with tales of welfare abuse, Mexicans crossing the border to have babies, and, of course, the books you mentioned. But isn't this just a more or less inevitable consequence of deregulation and the more laissez-faire economy the public seems to want these days?"

    "I think it's more basic than that, so that even if the Democrats took over, the situation would be difficult to reverse. Do you remember what we said about pro-rata equality—equality of results?"

    "Yes, the notion that economic success and failure should be spread equally among all groups of people—that's the kind of equality conservatives love to hate," I said. "They much prefer the other kind, equality of opportunity, since it enables them to rationalize disparities in wealth and lay blame at the doorstep of poor people's work habits and family structures. But I still don't see why you think our national commitment to equality is on a collision course with itself. Isn't the deplorable state of the inner city only contingently, not necessarily, the case? It might right itself if we all worked harder. We could resist what the conservatives are saying. We could create social supports for the poor to decrease disparities in wealth and increase equality."

    "I wish it were so," Rodrigo replied. "But my theory says it's unlikely. Instead, the plight of the indigent will worsen over time, so long as our system is committed to both equality and free-enterprise capitalism. Just as the gap between workers and capital will continue to grow, our commitment to equality for nonwhite groups and the poor will, ironically, assure their continued degradation."

    "Our commitment to equality will assure their continued degradation?" Giannina replied. "I think you need to spell things out a little more."


How Our National Commitment to Equality
Necessitates Increasing Dehumanization of the Poor
and, Ultimately, Biological Theories of Inferiority


"Here's the idea," Rodrigo began. "Our society is supposed to be equal. That is, everyone is supposed to have a decent level of comfort, not too far below what others have. But that cannot happen: Free-market capitalism and the profit motive cause society to become more stratified over time. Industrialized nations must colonize; workers cannot purchase what they make, and so on."

    "Every system must have winners and losers," I pointed out.

    "Must they?" Giannina queried. "Can't all systems, including capitalist ones, try to combat stratification by adopting antitrust laws, welfare and social security programs, and progressive tax rates? Haven't we, in effect, done this?"

    "To a degree," Rodrigo conceded. "But the disparity continues to grow, flying in the face of our other great national ideal—equality. Looking around us, we see cities full of gangs, deteriorating buildings, crack houses, and schools so demoralized that teachers transfer out as soon as they get enough seniority. How can this happen in a nation that prides itself on equal treatment? We can only explain it by blaming the poor. We coin physical or cultural theories of their inferiority, asserting that the poor must not want to work or to take advantage of their opportunities. We assign an increasing degree of inferiority to them precisely as our society becomes more and more stratified. They do not deserve to be equal, we tell ourselves, because they are not really like us. Something is wrong with them. There must be, precisely because of our commitment to the second great ideal, equality."

    "Are you saying the poor are worse off in a system like ours that believes in equality for all?" Giannina asked.

    "Yes," said Rodrigo matter-of-factly, "considerably worse off than under a system that emphasizes just one or the other value. Capitalism requires an underclass. It requires colonies to exploit. Yet our commitment to equality makes us intensely anxious when these things happen—they imply that our ideology may be false—that maybe everyone really doesn't have an equal chance to advance and rise. But we refuse to confront this possibility, instead labeling those others as inherently inferior, as unable to rise, no matter what. That way we can still pretend to embrace both free markets and equality. Thus, my theory of surplus equality: More equality inheres in our national principles than can be accommodated at any time. Someone, usually blacks and Latinos, must end up constructed as unequal."

    "And by virtue of their makeup," I added, shaking my head sadly.

    "Right," Rodrigo replied. "If the group were merely contingently poor and miserable, that would stand as a contradiction to our commitment to equality. We would have deserving, energetic, ambitious, intelligent people—much like us—who were starving and desperate. This would be intolerable. We would have to tax ourselves radically to alleviate their plight, if we could not explain it away by dismissing them as inferior, lazy, undeserving, lascivious, not very intelligent, and so on."

    "Which we have done," Giannina added.

    "Let me see if I understand you," I said. "You say that equality in the aspirational sense—equality of result—is the very source of inequality, that the very commitment to it injures minorities because our system is capitalist and expansionist, and whites got here first. We can't mistreat our underclass without finding them innately, biologically inferior—not like us. So they end up worse off than they would be if we had no such commitment."

    "Nations without a commitment to radical egalitarianism have been much kinder to slaves and prisoners of war," Rodrigo pointed out. "Some of the great military societies of the ancient world made far better use of their captives for precisely this reason. They could assign them responsible jobs, such as tutoring the captors' children, because they did not need to deem them innately inferior. Having no commitment to equality, they could cheerfully exploit without having to disparage and demonize. But because free-market economics causes inequality to accelerate over time, we are compelled to assign more and more traits of hopeless inferiority to the losers in our midst. Just as early Industrial Revolution era societies required colonies, today's society requires books like The Bell Curve that tell us the poor are that way because of who they are. We get to hold on to our belief in democracy and sleep well nights, too," Rodrigo concluded.

    "And the beauty of it," I added, "is that the Equal Protection Clause remains perfectly intact. We can continue to pay it homage even in the face of deepening social division, poverty, and racial animosity. And the reason is that we tell ourselves equality doesn't mean literally giving everyone the same amount—say, $30,000 a year. Rather, it means giving that other person what he or she is due."

    "Equality of opportunity," Giannina emphasized.

    "Precisely," I continued. "We tell ourselves that equality only guarantees that people receive what they deserve because of their merit, intelligence, energy, and resourcefulness. And then we arrange that this quantum decreases over time as distributive inequality increases because of capitalism—because of what is happening on the other side of the value divide."

    "Two precisely counterpoised values, each with interlocking internal contradictions," Rodrigo mused.

    "And the pair maintained nicely in balance through a system of popular imagery, books, novels, jokes, stories, and other narratives," Giannina observed. "In a more generous time, the public image of the minority was that of noble warrior, like Martin Luther King, Cesar Chavez, or Malcolm X."

    "That was when the pie was expanding," Rodrigo continued. "Now there's not enough to go around, and so elite groups make sure that if anyone suffers, it won't be they. But because our system is geared toward equality, they can't straightforwardly pass laws and measures that hurt the poor and working classes. They have to demonize them first, show they are not deserving of what one might think a person should have in an advanced, affluent society like ours."

    "But Rodrigo," I interjected, "I still can't see how having a political commitment to equality can be anything but good. Suppose you could live in either of two societies. Society A has a commitment to equality. Its constitution contains an equal protection clause. Society B has no such thing. As a person of color, where would you prefer to live?"

    "In Society B, all other things being equal," Rodrigo replied. "This assumes that both societies are capitalist and have an economic system based on free-market principles, as opposed to, say, socialism."

    "Okay," Giannina responded. "But even accepting those assumptions, aren't blacks and Mexicans better off in Society A because if they are discriminated against, they can go to court, invoke the national values, and gain redress?"

    "In theory, yes," Rodrigo replied. "Although Mexicans will have difficulty winning such suits due to something I call the black-white binary. Mexicans in America occupy a sort of never-never land. Not really considered a minority, they are nevertheless subject to discrimination in housing, education, employment, and a host of other areas."

    "You're part Latino," I said to Rodrigo. "You once told me that even though you look black and identify as such, your father's family immigrated here via the Caribbean and still speaks perfect Spanish. Assuming you identify with your Latino roots as well, maybe you can give us your thoughts about equality and this group."

    "I will," Rodrigo promised. "But if I could first return to your point, Giannina, about legal redress, consider the following: A black person comes to court trying to prove discrimination. He has a Ph.D., an M.D., and credentials exceeding those of Bill Cosby's fictional hero of TV fame. This paragon has been denied a position for which he is amply qualified, in favor of a white person. What happens?"

    "I suppose you are going to say the black superstar loses," Giannina said. "But why? Is the judge biased?"


How the Dehumanization Is Effected


"He or she doesn't have to be, in any conscious sense," Rodrigo replied. "And the same goes for the jury, the attorneys, the witnesses, and all the other participants in the event. Each has been raised in our culture, which has ingrained in their psyches a host of images, pictures, and narratives that render the black superstar one-down. Maybe he is good—but too pushy. Maybe he got where he is by affirmative action. Maybe he applied for the position to make trouble—he wanted a lawsuit, not a job. Maybe the white candidate was actually superior, and the black one a spoiled affirmative action baby who can't take disappointment. And where do all these pernicious images come from?" Rodrigo cued, watching us expectantly.

    "From the broader society?" I ventured. "From the system of free expression that enables moviemakers, utterers of hate speech, cartoonists, and others to trade at blacks' expense?"

    "Yes. And this has been picking up lately, gaining in virulence and incessancy—"

    "Because of your paradox," Giannina and I both said at the same time, then laughed. I motioned her to continue. She then elaborated, "Because our system produces increasingly greater gaps in wealth and comfort, with folks of color at the bottom, courtesy of racism. Then the theory of surplus equality kicks in. It's like Zeno's paradox, but in reverse. The distribution of goods and wealth becomes so different from what formal equality would dictate that we need to construct the losers as inherently inferior. That way they really aren't equal, cannot legitimately expect a fair share, and should be happy with what they have."

    "Dinesh D'Souza says that the institution of slavery did the slaves a favor," I recalled. "A few years ago, it would have been unthinkable to say something like this. Today, hardly anyone bats an eye."

    "Not to mention the other books we were talking about, and yet others in the same vein," Rodrigo added. "Plus an increasing tide of hate speech on campuses and attacks by the right on programs like diversity, affirmative action, political redistricting, and school desegregation."

    "Precisely what your theory would predict," I agreed, a little reluctantly.

    We were all silent a moment, absorbing the bleak quandary Rodrigo had so remorselessly painted for us. The waiter arrived to clear our dinner plates. "Would you folks like some dessert?"

    "I think we'd like to see the menu, right?" Rodrigo answered, raising his eyebrows at Giannina and me. The waiter placed three dessert menus in front of us and began to take away the dishes. "I think I'll have the lemon sorbet," Giannina said.

    "The flan for me," Rodrigo added.

    "The same," I said. Then, after a short pause, I asked, "You know, Rodrigo, you and I were talking about something similar once before. Do you recall our discussion of free speech and the First Amendment?"

    "I do."

    "We agreed that our system of free expression has a powerfully apologetic, after-the-fact effect. Even though the poor and minorities have little access to it because they cannot afford microphones, TV access, press agents, and so on, First Amendment purists are fond of saying—in the hate-speech debate, for example—that this great amendment must remain unfettered. Supposedly, this will benefit minorities and the poor, even though hate speech is almost entirely directed against them and they are the ones asking for relief. Free speech actually turns out to be of greatest benefit to the powerful and wealthy. Conveniently for them, it contains exceptions—such as copyright, defamation, official secrets, and words of conspiracy—whenever speech threatens the interest of a privileged group. It also perpetuates conflict between, say, skinheads and minority groups, by leaving hate speech protected. Do you think your equality theory taps a similar insight?"

    "In a way," Rodrigo replied. "Like all marketplace mechanisms, free speech enables life's winners to declare the race results fair and just. The winners' ideas must be better than the losers', since they competed and won. If members of other groups are poor and miserable while we are well-clothed, warm, and comfortable, well, that's how it must be in a competitive society."

    "All this reminds me of something I've been thinking about recently," Giannina remarked. "I assume the two of you have heard of cognitive dissonance."

    When we both nodded, she continued, "Although early Marxists thought egalitarian Western institutions, like the U.S. Constitution, would become increasingly criticized as the disparity between the wealthy and the poor worsened over time, this has not happened to any great extent. Jack Balkin pointed out that people will resist changing their beliefs in the face of inconsistent evidence, preserving, as long as possible, their ontological stake in the former belief. This is especially so in connection with legal and political principles such as equality of opportunity. Not only is this principle central to a free-market economy, it absolves successful individuals of any responsibility for maldistribution of resources. That's why brazen statements like D'Souza's resonate well—they are part and parcel of a system of collective denial."

    "So you're saying we construct the less fortunate as inferior beings, rather than face the hard fact that equality and free-market liberty are at odds, in order to reduce dissonance?" I added.

    "Right, and don't forget that not only are equality and free-market liberty at odds with each other; they are also inconsistent with themselves, if you take things to their logical conclusion," Rodrigo said.

    "And as you pointed out, speech is the main mechanism that holds everything together," Giannina observed. "Your theory requires an increasingly negative social construction of blacks to preserve the fiction that we are simultaneously a generous, egalitarian nation and a free-market one. Thus, we have books like The Bell Curve, movies depicting blacks as criminal, hapless, or lazy, and other similar scripts."

    "It's the beauty of the marketplace," Rodrigo seconded. "It all fits together, the fulcrum being, ironically, our national commitment to equality."

    The waiter arrived with our desserts.

    Again we ate in silence for a few seconds, then I said, "Rodrigo, at first I thought your theory was paradoxical and off-the-wall. But now, I'm half-convinced. It explains much of what we've been seeing lately—the renewed ugliness, the spate of books that label black culture pathological. But earlier you mentioned you had some ideas about other minority groups, such as Chicanos and Puerto Ricans. What does your theory say about them?"

(Continues...)

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Table of Contents

Acknowledgments
Introduction
1 Rodrigo's Book Bag: Recent Conservative Thought and the End of Equality 1
2 Rodrigo's Road Map: Is the Marketplace Theory for Eradicating Discrimination a Blind Alley? 27
3 What's Wrong with Neoliberalism: The Problem of the Shanty 55
4 Rodrigo's Chromosomes: Race, Biology, and the Replication of Elites 79
5 Latinos and the Black-White Binary 109
6 Conflict as Pathology: What's Wrong with Alternative Dispute Resolution 127
7 Rodrigo's Book of Manners: How to Conduct a Conversation on Race 143
8 Rodrigo's Committee Assignment: A Skeptical Look at Judicial Independence 163
9 The Problem with Lawyers 189
10 Rodrigo's Notebook: Race, Resistance, and the End of Equality 223
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