'The Color of Law: A Forgotten History of How Our Government Segregated America' by Richard Rothstein
"The significant problems we face cannot be solved at the same level of thinking we
were at when we created them." - Albert Einstein
Richard Rothstein’s opus The Color of Law: A Forgotten History of How Our Government Segregated America* cites the varied and many publicly recorded ways that the United States’ government (across all of its branches), along with state and local affiliates, used its heft and authority to reinforce residential racism and, by extension, racial wealth inequality in this country. It is a welcome effort in a context incessantly racist precisely because government officials continue to deny this incontrovertible fact. On page 215 Rothstein reports:
When Chief Justice John Roberts wrote that if residential segregation “is a product not of state action but of private choices, it does not have constitutional implications,” he set forth a principle. But the principle supported his conclusion—that government remedies for segregation were impermissible—only because he assumed an inaccurate factual background: that residential segregation was mostly created by private choices.
The author then enumerates in the preceding 200+ pages and 12 chapters precisely how the federal government frequently and regularly established standards and enforced guidelines which barred Black families across the country from participating in the American dream of homeownership. This dream was 1) only possible because of the backing of the federal government, and 2) only available to white families. It concentrated $120BB of residential real estate wealth in white hands for just the first 30 years alone of the Federal Housing Administration’s existence (and exponentially more, thereafter). While I’m glad Mr. Rothstein undertook the task to prove the error of Chief Justice Roberts’ assertion, this is how projects such as The Color of Law perpetuate the problem: 1) it didn’t take the necessary next step to denounce Roberts’ egregious negligence as the Principal of the United States’ Supreme Court (under whose watchful eye all of the pieces of legislation enacted which prove the Chief Justice wrong were public) for making such an errant statement in the first place, but more importantly nor 2) did it duly account for the harm sustained by the prejudiced party—Black people in America—resulting from deliberately debilitating said party economically, politically and socially, as was always intended, by excluding it from the privilege and prosperity of homeownership enjoyed perfunctorily by white America.
Yes it is productive and incredibly valuable for a scholar to listen with a critical, though constructive hear to the most senior jurist in the land and a) notice that the august justice is incorrect, then b) roll up his sleeves to set about aggregating the necessary proofs. For example, Rothstein highlights the terms of FHA sponsorship for the construction of suburbs throughout the nation which stipulated at the financing level for the subdivision, if not the entire suburb (rather than at the individual mortgage level for each home) that they should be “racially exclusive white enclaves.” After WWII, when the Veteran’s Administration followed suit with its own nation-wide home construction campaign, it adopted the same FHA-established terms to house veterans, dictating such factors as “1) construction materials, 2) design specifications, 3) proposed sale price, 4) the specific neighborhood’s zoning restrictions [for example, that construction not be near a power plant or a land fill], and 5) A COMMITMENT NOT TO SELL TO AFRICAN AMERICANS (caps mine; pp. 71-72)”.
The United States was born out of racism and continues to perpetuate racism as a core part of its innerworkings. The “three-fifths of all others…” clause ratified at the very beginning of the Constitution consecrated America’s commitment to racial apartheid (Article 1, Section 2). The fundamental lack of awareness regarding this truth is where Rothstein stumbles. While I do believe it is constructive to refute Roberts’ claim, it feels somewhat Sisyphean to take ten years to assemble the body of evidence to prove…what had to have already been known. In striving so ardently to—correctly—prove the SCOTUS Chief Justice wrong, it is excluded from the discussion that there continues to be the injured party, whose harms have consistently gone unaddressed…and certainly not redressed—amid entire galaxies of white communities which ably availed themselves to the benefits underwritten by the Federal Government as a matter of course. These dynamics construct and maintain two distinct realms in this country delineated by race; asymptotically delimiting the supported vs. those deprived. And it is curious to me why/how white families could have been so heavily subsidized by the government in the first place since they weren’t the bodies who bore the brunt of bondage or had otherwise been the most grossly abused in society, by society. What debt was owed whites that they should be gifted in excess of $120bn of private property?
“Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.” -Albert Einstein
Rothstein’s argument attempts to decouple the American government from the American people. It is as though the proverbial left and right hands—neither purportedly knowing what the other does—are not attached to the same body, nor are otherwise serving the mutual interests of their larger corporeal master. He goes out of his way to ignore the will of the collective white American citizenry and its influence on all governmental policy, be it federal, state or local. And because this aspect of his thesis is so farcical in the first place, his text sometimes feels as much like dry science fiction as actual legal scholarship (like much of American legal scholarship, to my mind). The legal expert observes:
But because of slavery’s legacy, the Constitution gives African Americans a special degree of protection. The three constitutional amendments—the Xlll, XlV, & XV—adopted after the Civil War were specifically intended to ensure that African Americans had equal status. When government regulation is so intrusive that it blesses systematic racial exclusion, regulators violate their constitutional responsibilities and contribute to de jure segregation (p. 101).
Meanwhile, the 13th-15th Amendments have been thoroughly trammeled and wholly ignored virtually since their ratification as proof that the white American public a) does not respect or abide by law where upholding Black citizenship is concerned, so therefore b) could not have been unduly influenced by federal (or state or local) law or policy with respect to race except when such laws are already aligned with their own proclivities and interests. The United States Government did not impose racism on the American populace as Rothstein’s argument implies, so much as it paroxysmed more powerfully than secessionists in an unsuccessful attempt to overcome the Union’s deep racist roots then eventually capitulated and yielded to the will very much alive across white communities All. Over. America. to institutionalize de jure what was already de facto in the first place: the pauperization, disenfranchisement and ultimate subjugation of Black and Brown people, considering them citizens or not, at will, depending on white convenience and advantage.
There is an implicit clemency afforded whites when discussing blatant and overt (frequently criminal and brutal) campaigns of racism and terror they have conducted against Black and Brown people in the United States with which we need to come to terms as a citizenry and which, unfortunately, is still echoed in The Color of Law. Within the American zeitgeist for centuries whites have been given a pass to behave viciously and violently toward Blacks and other Colored populations with no reprisals and often in a manner that proves profitable and perhaps even pleasurable for the offender, yet this behavior not only goes unpunished, but further gets explained away as whites’ not being able to help themselves with respect to how they maintain and perpetuate a racist society—they think what they were doing is normal and natural, and therefore right. (See the Look Magazine confession of Emmett Till’s acquitted murderers: http://www.pbs.org/wgbh/americanexperience/features/till-killers-confession/) It is akin to deflecting the wrong of an assailant’s behavior by invoking the willfulness of the victim (‘he/she chose to behave/dress/be/do in a manner so as to warrant/welcome the crime committed against him/her’). In such an atmosphere, which certainly has persisted past the passage of Amendments 13-15, neither the Black person, nor her possessions—including her family—are protected by any level of government. Rothstein’s writing adopts the same passive posture as has the US government consistently when it comes to defending and protecting the interests and persons of Black people against the rabid and rapaciousness of overt and covert white supremacy. This passivity is evidenced in the glossing over/complete denial of horrifying campaigns against Black people and the omission of a need for remediation—a la a flagrantly erroneous conclusion drawn by the chief justice presiding over the highest court in the land with regard to circumstances his office is complicit in creating and which explicitly harmed Black people. Racism is a crime. These campaigns were so notorious and brazen, and the absence of any real redress glaringly and deafeningly apparent, overlaid with a hyper-prosecution of Blacks—DURING THE EXACT SAME TIME SPAN—that the only way to understand racism in America is as alive and ever-present. And for the record, even if racial inequality is borne out of “private choices” as the Chief Justice posits, those “private choices” were impoverishing and terrorizing, as they were intended to be, and should have been adjudicated anyway as clear commission of crimes against Black people, impeding or abrogating all together their constitutional rights to domestic tranquility and pursuit of prosperity.
This is not to dismiss categorically Rothstein’s effort; on the contrary, his insights are incredibly valuable to furthering the cause toward actual racial equality in America. They spotlight the multiplicity of ways all levels of whiteness in this country publicly, privately and politically collude regularly and repeatedly to impede Black and Brown access to its capital structure. I use ‘collude’ in the present indicative tense deliberately: the human rights’ violations constituted by white supremacy in this country cannot be preterit when there have been no meaningful efforts by any levels of whiteness to redress the incredible expense racism continues to cost Black people. If it is possible for racism in this country to disappear, it will be only when the victims of racism have been remediated. Rothstein recounts a multitude of incidents involving white individuals, white organizations and white businesses which all a) received generous economic benefit from the government (homeownership assistance, employment opportunities and protection, adequate education both for white adults and children—all to the exclusion of Blacks, then b) when laws/regulations were enacted to include Blacks in these same “blessings of liberty…[already] secured to…[white people and their] posterity” (per the Preamble to the Constitution), c) whites simply refused to comply…(no three strikes, no mandatory minimum sentences, no real enforcement of any kind). This is America.
"Put your hand on a hot stove for a minute, and it seems like an hour. Sit with a pretty girl for an hour, and it seems like a minute. THAT'S relativity." -Albert Einstein
Rothstein begins to touch upon the economic cost of racism for Blacks in the latter chapters of the book, but it is clear from the way he crafts his discussion that he does not even fully comprehend what a forensic accounting of racism’s cost to Black people would be. I think his first glaring omission is the license white citizenry has to elide, eschew and just abjectly disregard the rule of law in a way that Black. People. In. This. Country. Have. Never. Experienced. The apartheided asymmetry in the way that the law affects Blacks vs. whites is the fulcrum upon which my entire complaint about Rothstein’s scholarship (as well as Roithmayr (https://www.reflectionandreform.com/reviews/2017/4/27/reproducing-racism-how-everyday-choices-lock-in-white-advantage-by-daria-roithmayr); and to some extent Freeman, Jr. https://www.reflectionandreform.com/reviews/2017/8/27/locking-up-our-own-crime-and-punishment-in-america-by-james-forman-jr) rests: legal scholars and experts are reporting on a subject about how the law has consistently been broken by local citizens, or even worse, amended to accommodate the malice and cupidity of whites to the complete detriment of Black people—a population ALREADY ABUSED BY THE LAW for never having had its civil rights, agency, or property protected in the first place…the purported point of law!??!?!—and every scholar seems to just continue about his/her merry way…compiling facts and data, publishing. The author presumes a virtue about a) white citizenry at large and b) American governance (federal, state and local) that is not only unfounded, but wholly impossible exactly because the American hegemony is a vicious, self-serving behemoth which uses the law as a weapon to strong-arm political and economic advantage for its own. The framework of justice is perverted and contorted into a torture chamber deployed to exploit 1) at anyone else’s expense, and 2) never against itself. This hegemony is peopled and powered by private individuals, the overwhelming majority of whom are white (77% according to the most current census information https://www.census.gov/quickfacts/fact/table/US/PST045217).
The renunciation that I wanted to hear from Rothstein against Roberts was with respect to Roberts acceptance that racial inequality definitively did occur, prejudicing Black people because of private choices. This means necessarily that the government failed its Black citizens by forsaking the Constitutional protection afforded after 1870 to preserve Blacks people’s right to property. White people should never have been able to make “private choices” which so dramatically devastated Black people’s pursuit of prosperity. Absent private property (and in many ways, as intended, privacy and citizenship) and corralled into over-crowded housing in cramped communities with constrained and/or corrupted commerce, where or how would
Black people be able to synthesize the same ingredients for success and prosperity as white Americans? It is not as though Blacks could generate wealth by ideating in their semi-attached garages, experiment with technology, develop operating systems… What material wealth could have been passed down from one generation of Blacks in this country to another, ever?
Contrary to what Chief Justice Roberts opined, the fact that the government corrupted moral and civil righteousness to accommodate the racist will of itself/its people from at least the time of its establishment of
the FHA means that yes it is/they are responsible for fixing the problem of asset inequality based upon race that the nation and its citizenry collectively created...and from which whites collectively profited monetarily and socially. In sum, I do agree with Rothstein’s implied assertion that because the United States’ Government acted to establish and reinforce racial inequality to the detriment of Black people in America, the United
Contrary to what Chief Justice Roberts opined, the fact that the government corrupted moral and civil righteousness to accommodate the racist will of itself/its people from at least the time of its establishment of
the FHA means that yes it is/they are responsible for fixing the problem of asset inequality based upon race that the nation and its citizenry collectively created...and from which whites collectively profited monetarily and socially. In sum, I do agree with Rothstein’s implied assertion that because the United States’ Government acted to establish and reinforce racial inequality to the detriment of Black people in America, the United States’ Government has an obligation to affirmatively act to repair the damages it/its people cause for its Black citizens. It is inexcusable that the Chief Justice (and to a lesser degree even the author) should pretend that there is some meaningful division between the state and its people where the history of the
pauperization of Blacks is concerned. To be sure, the ghettoization of American
urban housing had two distinct authors: 1) the will of the American white people and 2) that of the policy-maker, be it municipal, state or federal (comprised of American white people). In any case, Black people a)
would have not had the opportunity to express their own will with respect to how best to attain prosperity, nor b) would have viable representation or advocacy at any level of society to protect their own best economic, social or political interest, in stark contrast to their white counterparts thanks to the apartheid upon which this
country is based. It is preposterous that there could ever be any confusion about the identity of the Chief Justice’s employer and on whose behalf he labors: ultimately, the American [white] citizen.
“I am Legion…for we are many.”—Mark 5:9
*Rothstein, Richard. 2017. The Color of Law: A History of How Our Government Segregated America. New York: Liveright Publishing Corporation.
