Violence Within: On Peter Irons’s “White Men’s Law”

THE RECENTLY COMPLETED Supreme Court term illustrates the salience of race in the United States. The point is not just the particular decisions, as important as they were. Instead, a key takeaway is that the issues show little evidence of being resolved. No matter what the justices ruled, Americans could continue to debate and contest the issues the court examined: fairness to Native Americans; the question of who should be permitted to immigrate to this country and who forced to leave; and, perhaps more than anything else, whether and how African Americans should be integrated into the opportunities the nation has historically offered some of its members.

At one level, it seems puzzling that the United States still confronts the question of race. Twice in our relatively short history, the nation reconstructed itself with the goal of putting African Americans on a level playing field. First, from 1866 to 1875, the Reconstruction Amendments, and related laws, among other things, ended slavery, recognized the state and federal citizenship of Black people, and provided for equal protection of the laws. But equality did not materialize. Rather, the states and the federal government imposed an astonishingly comprehensive system of racial discrimination on African Americans and other nonwhites. Second, roughly between the Supreme Court’s prohibition of segregation in Brown v. Board of Education in 1954 and the Civil Rights Act of 1968, federal law put teeth into the promises of the previous century. No longer would it be the privilege of schools, employers, landlords, hotels, restaurants, and registrars of voters to say “White Only.” In 1968, a Black president would have been inconceivable (it was a gag in the song “Colored Spade” in the 1968 Broadway musical Hair), but in 2008, one was elected.

More than 50 years after the high watermark of the second Reconstruction, Peter Irons persuasively contends in White Men’s Law: The Roots of Systemic Racism (2021) that the United States remains afflicted by systemic racism. The book is terrific: readable, well documented, and infuriating in the history it recounts and the challenge it presents. Irons effectively uses the words of participants, including politicians, judges, slave masters, and those they oppressed. A lawyer and scholar active in the Civil Rights Movement of the 1960s, Irons is the ideal author for a book about race in the United States. In a sense, he is also a maker of American history. He had his own conviction for Vietnam-era draft evasion set aside after uncovering documents showing the prosecution was based on political retaliation. Using those research skills, he developed evidence that the defendants in the Supreme Court’s decisions upholding the incarceration of Japanese Americans during World War II, Fred Korematsu and Gordon Hirabayashi, had been convicted based on tainted testimony and evidence. Federal courts set aside their convictions as well.

White Men’s Law shows that one notable cause of the nation’s frustrating distance from racial equality is the persistent unwillingness of some white people to obey the law, or of the law to hold white people to account when they believe that violence is warranted. The book begins with the story of a lynching. This form of extralegal violence normally went unpunished; it would be unreasonable, after all, to expect local police and elected officials to investigate and arrest themselves. The thousands of lynchings were not all in the South, or all of Black victims, but they were disproportionately so and frequent enough to assure the community that they were an available tool of governance. It was also a one-way street: whites sometimes lynched whites, but one searches in vain for a time or place when Black people dominated the government and economy and white people lived in fear of arbitrary violence from their superiors.

The story of the destruction of Black political participation after the Civil War was in the same vein. About an eighth of the US population was of African ancestry, with most in the former Confederate states: the group’s majority could be found in Louisiana, Mississippi, and South Carolina, and over 40 percent in several other states. In free and fair elections, they would have had substantial political power. That possibility was temporarily realized when the former Confederacy was occupied by the US Army, and the right to vote was protected regardless of race. Many formerly enslaved persons were elected to office by their peers, and served capably. But violent resistance by adherents to the old regime aimed to prevent Black people from voting, holding office, or bearing arms. In some places, Black people and their defenders were massacred, again, without accountability. A century later, the response to court-ordered integration of schools and interstate bus stations was massive resistance and mob action.

Another persistent theme of the book is insufficient, inconsistent attachment to moral principles. Washington, Jefferson, and Madison, Irons points out, owned enslaved persons but believed slavery was immoral, giving rise to a case of cognitive dissonance so severe it continues to cause headaches to this day. An early draft of the Declaration of Independence condemned King George III for protecting the slave trade, but this was thought to be hurtful to Georgia and South Carolina, so it was removed. The existence and economic importance of slavery shaped the Constitution, in particular counting each enslaved person as three-fifths of a person for purposes of apportioning Congress and the electoral college, and providing for the return of fugitive slaves. The slave states did not achieve this legal protection by themselves. Every man, every free state, that voted to ratify the Constitution either supported slavery in principle or, though opposed, considered as more important the good things that might be accomplished by living with it. A similar prioritization explains the end of Reconstruction: Northern voters and politicians had run out of energy to protect the Black vote. After the 1874 and 1876 elections, it was time to turn the page on the participating of African Americans in government.

The courts are another bad actor. Supreme Court decisions in the 1870s and 1880s made it difficult to prosecute violence against Black voters. In the Civil Rights Cases (1883), the court struck down a federal law requiring equal access to public accommodations; Congress had no such power, said the Supreme Court, because it could only regulate “state action.” Private people could do what they wanted. Justice John Marshall Harlan dissented, as he did in the court’s decision in Plessy v. Ferguson (1896), where the majority upheld segregation in public accommodation.

Irons lays much of the responsibility for segregation and discrimination at the feet of powerful white men. Yet, he makes clear that the white working class got their cut. In discussing the Great Migration to the North, the book notes that white immigrants “responded to the influx of Blacks to Detroit with suspicion and hostility, born of ignorance and lack of prior contact.” Irons also recounts the 1943 episode where, “after the Packard Motor Car Company promoted three Blacks to work along side Whites on the assembly line,” 25,000 white workers “walked off their jobs.” What motivated many racists was not ignorance but, rather, acute awareness of the advantages flowing from keeping the best jobs, schools, and neighborhoods available to white citizens only.

Like with World War I, their service in the US armed forces during World War II hardly altered the situation of Black people. The Cold War, however, introduced a new set of considerations. As legal scholars Derrick Bell and Mary L. Dudziak have recounted, the Department of Justice began to argue in courts after the war that segregation helped the Soviet Union by providing the basis for anti-American propaganda that had the unfortunate quality of being accurate.

But once again, the courts pulled up short. After Brown, the court ordered integration with “all deliberate speed”; in practice, this meant that 10 years or more passed in some districts before a single African American student attended a formerly all-white school. Assuming the court was sincere about its desire to end segregation in 1954, the flexible remedy offered ample time to come up with ways to avoid actual integration. Later, the court under Chief Justice Warren Burger limited interdistrict desegregation orders. A method had been devised to end segregation without integration: whites could move across the district line, a task made easier by decades of federal encouragement of segregation in public and private housing.

The systemic racism identified in the book’s title is of two types, both significant. One aspect of this racism encompasses racial attitudes. As recently as 2016, 55 percent of white Republicans and 26 percent of white Democrats agreed that Black people “lack the motivation and willpower to lift themselves out of poverty.” Oddly enough, the idea that Black people just aren’t trying to “lift themselves out” exists side by side with claims that they are genetically less intelligent. The common denominator is the comforting point that Black disadvantage is not the result of mistreatment; white people bear no responsibility.

The other component of systemic racism is the structure of society. Irons tells us that 80 percent of the African American population lives in metropolitan areas, and that “every one of the twenty-four metropolitan areas […] with more than a million residents” is considered hyper-segregated. The story of African American education begins with its prohibition during the slave era, followed by de facto or de jure separate and unequal schools in many places, and then bitter opposition in many places to desegregation. Perhaps controversially, but plausibly, Irons, a professor himself, cites standardized test scores (the SAT and National Assessment of Educational Progress) as a measure of the effects of the discrimination experienced by today’s students and their ancestors. That is, current and past systemic racism has resulted in real differences in educational attainment. On the NAEP, Black students are overrepresented in the Below Basic category, and underrepresented as Proficient or Advanced. “[I]t’s totally unrealistic to assume that any kids in the Below Basic category on the NAEP exams, even if they are granted a high school diploma, will be able to attend college, much less graduate with a degree in any field.” The consequence is reflected in a grim, predictable chart of occupations in which Black people are under- and overrepresented. Generations of disadvantages have compounded into educational and financial disadvantage.

The book does not offer a detailed road map of remedies, but there is a tone of possibility. The book was completed at a particular moment—the epilogue is dated April 2021. Irons was encouraged by presidential candidate Joe Biden’s acknowledgment of Jim Crow and systemic racism in his ultimately successful campaign, and that the January 6 insurrectionists were being prosecuted. But many Americans’ willingness to rethink racial attitudes in the wake of George Floyd’s murder and the Black Lives Matter movement is once again going hand in hand with reactionary response. It is worth a look at the database assembled at UCLA School of Law. Legislation enacted or pending across the country would prohibit his book from being taught to children, or would even authorize its removal from a public library. The final chapter of this story has not been written, and may never be. But it is clear that rather than debating or disproving the existence of white men’s law, many would prefer to decree that it does not exist, a circumstance which bodes ill for serious consideration of the important questions of justice raised by this book.

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Gabriel “Jack” Chin is a teacher and scholar of immigration law, criminal procedure, and race and law at the UC Davis School of Law.