Review- Rothstein, “The Color of Law”

Richard Rothstein, “The Color of Law: A Forgotten History of How Our Government Segregated America” (2017) – This book has come to constitute part of the new canon for antiracist activists, or, anyway, people looking to heed the call to “educate yourself.” It covers an important part of American history — the creation and maintenance of our regime of residential segregation and everything it entails — and as Richard Rothstein points out, you won’t learn about this sort of thing in standard high school American history textbooks. I remember teaching community college students — mostly kids of color — about how the government backstopped, in many instances created, housing segregation, and I got a lot of surprised looks. They knew about the segregation- they didn’t know about the causes. This book serves a valuable public purpose.

The main idea Rothstein, a law professor, looks to upend is the idea that there’s something natural about residential segregation by race. He shows how government policy, from World War One onward but ramping up around World War Two, reaffirmed existing segregated residence patterns and often created them where they did not exist. Like most aspects of American awfulness, the creation of our segregated reality came about as something of a kludge, a mashing together of private and public, local and federal, written and unwritten policy. Presumably, historians debate over how much weight to give private versus governmental actors, but Rothstein makes clear that the federal government (along with state and local governments) was there every step of the way. For war production in both world wars, the federal government (acting through private builders and real estate people) built huge public housing works for defense workers, and kept them segregated, even after desegregating many key defense industries in WWII. Most famously, the Federal Housing Administration institutionalized redlining, the designation of neighborhoods by race. Here as in so many other instances, the government both tailed private actors — especially the real estate moguls building the new postwar suburbs — and led them, for instance by declaring even pre-existing integrated neighborhoods bad loan risks. Even when things like discriminatory housing covenants were outlawed, the damage persisted and got worse. Even when black people were able to surmount these difficulties and buy a home in a white neighborhood — and these black people were generally at least a notch or two above their white neighbors on the profession/class scale, given how much more expensive real estate was for them — police forces stood by and let white mobs terrorize the new homeowners, when the cops didn’t join in themselves.

The postwar suburban experience acts in many respects as the crux of the story. It’s not just that black people missed out on living in white suburbs. Appreciating home values built white wealth — I know for a fact houses bought by previous generations in the postwar period act as socioeconomic anchors for otherwise downwardly mobile white families I know of — and levered open the wealth gap between white and black America. Then there’s all the add-on effects that result from the absurd amount of things our society predicates on real estate values: black people either miss out on jobs in the suburbs they couldn’t live in, or pay higher transportation costs. Black homeowners pay more in upkeep for dilapidated housing stock, proportionately higher property taxes (decent housing black people are permitted to live in is generally more expensive), and are often the targets of subprime loan banksters. Black renters paid proportionately more in rent or lived in depressing housing projects. Black children go to segregated schools underfunded by depleted tax bases. On and on. Meanwhile, white (and increasingly non-black PoC) suburbanites can pat themselves on the back for their good life choices in avoiding poverty and crime, secure that all the privileges they had and have are “natural.”

Rothstein places a lot of chips on the supposed unconstitutionality of all of these structures. This makes sense, as he is a law professor, but I wonder at the effectiveness of this argument. It seems to me to join a series of tropes that take on load-bearing weight in this generation of (relatively) mass-market antiracist books, and that might not be able to bear up. I’m thinking here also of Ibram Kendi’s definition of antiracism as believing there is nothing wrong with black people, or the mother of them all, the (re)definition of the word “racism” to mean the upholding or reenforcing of oppressive race-based power structures. I basically agree with the latter rhetorical move and it seems to be catching on, but such maneuvers risk fundamental miscommunications with interlocutors who do not accept your premises. In the case of the constitutionality of segregation, Rothstein points to the Fifth, Thirteenth, and Fourteenth Amendments. Segregation violates due process and equal protection clauses, he argues, and moreover the intent of the Thirteenth and Fourteenth, two of the Reconstruction amendments, were to abate the consequences of slavery. Anything that goes against that goal goes against them, and courts and government officials from the downfall of Reconstruction in 1877 onward have been going against the Constitution.

I’m no lawyer, but these arguments seem to range from plausible (the application of due process) to very thin. The Reconstruction amendments only mention slavery to ban it and make no reference to any specific race of people. Again, we come to the kludge of American institutional life- the Constitution was kludged together, and is a vague document in many cases, and the Reconstruction amendments had to please racists and free marketeers in the Republican Party at the time and so they’re vague, too. As you so often get with monotheism, the people who insist The Book sanctions something awful are at least part right.

Luckily, unlike Rothstein, I don’t place many chips on the US Constitution. I guess I see it a lot like the federal highway system: some impressive engineering (for its day) kludging disparate elements together, in some cases vaguely approximating the form of something that should exist and usable for some purposes, but ultimately built for ends we will need to get past to proceed into a better future. We can house everyone, safely and equitably, and we should. All of the things we predicate on real estate, from education to job prospects, also belong to everyone regardless of where they were born or where they live. I don’t know whether such a scenario would result, in the short or medium term, in racial integration in neighborhoods and schools (I tend to think in the long term, real socialism would erode the significance of race). From the cheap seats, I get the impression people of color are less dying to have white neighbors than they are struggling to gain substantive equity in society. I am suspicious of anti-integrationist arguments from the left — they seem to think generations of civil rights campaigners were sell-outs or morons, and it just generally raises my hackles, especially when white people do it — but in general, place less emphasis on integration than on redistribution. As it turns out, the Constitution isn’t super helpful for either goal. Oh well. ****

Review- Rothstein, “The Color of Law”

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