Conclusions
The history of America's relationship with its black members has and continues to be one of the most fundamental challenges to a nation founded on principles of equality and justice. In the 1960s, American society largely accepted responsibility for that history, concluding that legalized discrimination could no longer be tolerated and that its injurious effects would require affirmative efforts to correct. Societal support for remedial efforts has waned since that time in the belief or hope that America's discriminatory history is just that--history. Many believe that the effects of societal discrimination have largely dissipated or are too indeterminate, that present society is not fairly chargeable with the cost of remedying discrimination in which its members did not personally participate, and that the persistence of disadvantage among black people must increasingly be attributed to their own choices. Although Americans once viewed them as a societal obligation, we increasingly view efforts to remedy the conditions experienced by blacks as unjustified and, indeed, as unjust.
The claim that remedying past societal discrimination is morally prohibited, and not just unnecessary or undesirable, is not limited to the political realm. The Supreme Court has turned to morality to inform its interpretation of the constitutionality of affirmative action to remedy past discrimination. The Court reasons that affirmative action designed to remedy societal discrimination, at least through racial preferences, is unconstitutional because it is immoral.
This Article has sought to take seriously the moral concerns purportedly animating the conservative judicial and political movement against affirmative action, using legal tools of analysis to illuminate the primary issues involved. It has argued that principles relied on by opponents of affirmative action--that racial discrimination is immoral and that its victims should be made whole--support a moral obligation on the part of American society to remedy the effects of past societal discrimination against black Americans. The plausibility of the case for a societal obligation, at the very least, raises doubts about the opposing position that politically enacted remedial efforts are morally prohibited. Such uncertainty about the moral status of remedial affirmative action implies uncertainty about its constitutional status, uncertainty that arguably should be left to the political process to resolve. American society should, therefore, be constitutionally permitted, if not required, to take responsibility for the legacy of past discrimination.
The limits of this claim warrant reemphasis. This Article has not attempted to prove that society is legally obligated to remedy past societal discrimination, and acknowledges the disputability of a moral obligation as well. Nor has it claimed that society is exclusively responsible for the status of blacks. There may be, moreover, instrumental concerns not considered here with some kinds of remedial policies. The claim of this Article is that the principles that raise moral concerns over affirmative action, as well as concepts developed in the law for resolving questions of causation and responsibility, suggest that American society bears some responsibility for the inferior position of black Americans that has resulted in part from America's history of racial discrimination. If this argument has overlooked or underappreciated important points that negate society's responsibility, I invite others to respond. If not, and opponents of such responsibility persist in their opposition, then I ask: What, really, are their concerns?
In conclusion, we return to a question raised in the opening of this Article: Will the color line be the problem of the twenty-first century? Perhaps. However, coming to terms with our racial history need not evoke fear or dread if the nature of society's responsibility and its implications are properly understood. To the extent current society is obligated to redress the effects of past discrimination, such responsibility stems from justice, the fulfillment of which should give us pride, not shame. Such a commitment, moreover, would neither negate the personal responsibility of those black Americans who experience the detrimental effects of past discrimination, nor imply personal blame on the part of current members of society who must bear the cost of society's obligation. American society ought to address those conditions that perpetuate immiseration among a disproportionate number of our fellow Americans of the black race. Such efforts may include, indeed must include, holding accountable those entitled to our support. A principal harm of past discrimination is hopelessness and self-destructiveness. Holding people responsible for their actions is an important factor in remedying these cultural and psychological conditions. But it is not enough to punish individual wrongdoers and provide only superficial opportunities that the damage of discrimination realistically precludes many black people from even attempting to grasp. We as a society need to invest effectively in building the self-esteem, aspirations, and achievements of black children, families, and communities. And we must persist in the face of failure until we succeed. We know what to do; we need the political will, and patience, to do it. There is virtue in the effort. In so doing, the problem--the challenge--of the twenty-first century can be the pride of the next.
[d1]. Professor of Law and Barron F. Black Research Professor, University of Virginia; Director, University of Virginia Center for the Study of Race and Law; Visiting Professor of Law, University of Michigan (2003-04).
