Academic journal article Constitutional Commentary

Race Matters

Academic journal article Constitutional Commentary

Race Matters

Article excerpt

SHOULD RACE MATTER?: UNUSUAL ANSWERS TO THE USUAL QUESTIONS. By David Boonin. (1) Cambridge, Cambridge University Press. 2011. Pp. vii + 441. $99.00 (cloth), $34.99 (paper).

One frequently hears that America has a race problem. We agree, but the race problem we identify is not what is usually meant by those who invoke it. It is not discrimination, intentional or otherwise, but rather obsession with race that is America's more consequential "race problem" today. America has vanquished slavery, segregation, and long-standing racial discrimination only to succumb to an almost equally destructive race obsession. Despite the biological arbitrariness of dividing a single, interbreeding biological species into "races," despite the sorry history legally and socially of the use of race, and despite the Civil Rights Movement's original ambition to substitute the content of character for the color of skin as the basis of decision making, America today is in many ways as race conscious as it was in the era of Jim Crow.

For that reason we welcome David Boonin's Should Race Matter? Boonin takes up five topics that constitute a good portion of the current obsession--reparations, affirmative action, hate speech, hate crimes, and profiling--and he subjects each to philosophical scrutiny. Boonin is sober and fair-minded in tone, and purports to be careful and comprehensive in method. Unlike many discussions of race, Boonin's tries to shed light, not heat. He deserves to be read by everyone who takes a serious interest in public policy as it bears on race.

Boonin's book has its limitations, as we will suggest. Moreover, Boonin discusses only race, not sex, ethnicity, nationality, religion, disability, or sexual preference, although most of the policies he considers have been urged or actually extended beyond race to some or all of these other categories. Nonetheless, Boonin's analyses of these policies as they bear on race would have direct implications for these other categories. Given that Boonin takes 350 pages to examine five racial policies, we think limiting his focus to race was quite justifiable.

Although we believe Boonin's is a worthwhile treatment of contemporary racial policies, we take issue with him on several points. We think that his arguments in support of affirmative action and hate crimes are incomplete and thus unpersuasive, and we consider his case for reparations a failure on its own terms. Nonetheless, we admire the effort at fair-mindedness and the care with which he makes the case for these policies.

I. HATE SPEECH

We begin with the topic on which Boonin and we are in full agreement: hate speech. Boonin is opposed to bans on racial "hate speech" because he believes such bans can only be justified by repudiating current free speech doctrines that we would and should be loath to reject. In his exemplary two-chapter discussion of the issue, he canvasses the major rationales that are offered to support bans on racial hate speech and finds them all wanting. In the first chapter on this subject (Chapter Six), Boonin analyzes arguments that try to assimilate racial hate speech to categories of expression that are already deemed unprotected speech by today's constitutional free speech doctrines. Not all racial hate speech is a true threat; and true threats are already prohibited (pp. 210-13). Not every instance of racial hate speech constitutes "fighting words," which are insults rendered face to face and likely to provoke a violent response (pp. 216-17). (4) Racial hate speech cannot be assimilated to the libel of some corporate entity (pp. 217-25), nor is every instance of it a case of actionable harassment (pp. 226-29). In sum, a broad ban on racial hate speech could not be justified under current free speech doctrines.

In Chapter Seven, Boonin then considers and rejects justifications for banning racial hate speech as such, rather than as instances of other categories of legally unprotected expression. …

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