| Exclusionary Rule|
by Glenn C. Loury
Hard Questions Column
The New Republic
November 4, 1997
In the opening pages of his defense of free expression, On Liberty, John Stuart Mill warns of "a social tyranny more formidable than many kinds of political oppression" what he calls "the tyranny of prevailing opinion and feeling." Often, Mill argues, it is the velvet glove of social seduction, rather than the iron fist of legal repression, that poses the more formidable threat to a vigorous debate on sensitive questions.
In fact, there really is no such thing as "free" speech. To voice an opinionon abortion, the Clinton fundraising scandal, or trade with Chinais to raise questions about ones underlying political values, and this can be costly. Ones friends can quickly become ones enemies, and vice versa.
This is particularly true in an environment of partisan conflict. We may dismiss the arguments of a declared political opponent by saying that the critic merely seeks to discredit our movement, but, when one of our own makes a similar argument, no such defense is available, and our opponents can exploit the existence on internal dissension to their advantage. The "insider critic," therefore, is that he gives aid and comfort to his enemies. So, it should come as no surprise that such critics are often accused by their colleagues of being disloyal. (What kind of Jew would see merit in Arafats position? What "real" Democrat would support a capital gains tax cut?) This explains why, once a consensus on some vital issue is established among politically like-minded individuals it becomes nearly impossible for those identifying with "the movement" to challenge "the party line."
I have observed this difficulty first-hand. Nearly 15 years ago, I began to write essays sharply critical of how the civil rights leadership was responding to the growing underclass crisis. I quickly found that I had made enemies of a number of colleagues and associates, both blacks and whites. People began to call me a "black conservative," and it was not meant as a compliment. The question became, "Whose side are you on?" It was argued that, with Ronald Reagan in the White House busy turning back the clock or racial progress, only an enemy of the interests of African Americans would openly criticize the efforts of the traditional black leadership. But, it was precisely because of the existence of a determined opposition that vigorous dissent from within the ranks of the faithful was so important. Otherwise, our intellectual defenses may prove too weak to withstand the partisan onslaught.
My reaction to being rejected by the racial progressives was to join "the other side." I became a soldier in the War of Ideasa neoconservative combatant in the culture conflicts of the last decade. And so I remain, though with increasing unease. The view from the right is that the universities, the media, and the bureacracy are in the hands of a benighted liberal establishment that must be swept from the stage of history. The issue of race looms large in this conflict, for the core ideological dispute is over the necessity and the possibility of progressive social reform. So, the plight of the black poor is a major front in the War of Ideas. Persistent racial inequality provides the left with an indictment of the status quo, even as the intractibility of this disparity in the face of various reform efforts helps convince the right that a socially engineered egalitariansm is a utopian dream. But, it is here that my discomfort begins, for it has become increasingly clear to me that the conservative line on race is morally untenable.
Opposition to racial progressives, particularly on the issue of affirmative action, is now a key test of authenticity, and of political loyalty, on the right. Yet, affirmative action, however prudently employed, has never been, and can never be, anything more than a marginal instrument for addressing the problem of racial inequality. Conservatives who bill their crusade against racial preferences as the Second Coming of the civil rights movement display a ludicrous sense of misplaced priorities. Making a totem of color-blindness, even as the social isolation of the urban black poor reveals how important "color" continues to be in American society. So, there is good and sufficient reason to criticize those who begin and end their discussion of racial issues with the insistence that affirmative action must go.
Yet, such criticism raises deeper questions. When the civil rights struggle ended, victorious, a quarter-century ago, there was a clear need to ensure that the consequences of a century of second-class citizenship would not long endure among the black lower classes. Nothing more than a token effort was ever made to mobilize the American public behind this goal. The reason, it seems, is that while second class treatment at law for Negroes was inconsistent with American political ideals, the nasty, brutish and short lives of a sizable minority of the descendants of those Negroes can be rationalized as reflecting their deficiencies, rather than revealing any flaw in "our way of life." Nowhere is the idealogical character of this rationalizing process more clearly revealed than in the celebration of immigrant success, over and against native black failure, which is so popular on the right. The former proves the openness and health of the system, even as the latter, however sadly, reveals the inadequacies of some to whom the system has now been fully opened.
But what morally reflective person could embrace this view as a governing philosophy for our nation, going into the next century?