The Coming Race War

And Other Apocalyptic Tales of America after Affirmative Action and Welfare

Richard Delgado

• Publisher: NYU Press
• Year: 1996
• ISBN:
  9780814721032
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

In The Washington Post, Julius Lester praised Richard Delgado's The Rodrigo Chronicles: Conversations about America and Race as free of cant and ideology.... an excellent starting place for the national discussion about race we so desperately need. The New York Times has hailed Delgado as a pioneer in the study of race and law, and the Los Angeles Times has compared his storytelling style to Plato's Dialogues.

In The Coming Race War?, Delgado turns his attention to the American racial landscape in the wake of the mid-term elections in 1994. Our political and racial topography has been radically altered. Affirmative action is being rolled back, immigrants continue to be targeted as the source of economic woes, and race is increasingly downplayed as a source of the nation's problems. Legal obstacles to racial equality have long been removed, we are told, so what's the problem?

And yet, the plight of the urban poor grows worse. The number of young black men in prison continues to exceed those in college. Informal racial privilege remains entrenched and systemic. Where, asks Delgado in this new volume, will this lead? Enlisting his fictional counterpart, Rodrigo Crenshaw, to untangle the complexities of America's racial future, Delgado explores merit and affirmative action; the nature of empathy and, more commonly, false empathy; and the limitations of legal change. Warning of the dangers of depriving the underprivileged of all hope and opportunity, Delgado gives us a dark future in which an indignant white America casts aside, once and for all, the spirit of the civil rights movement, with disastrous results.

CHAPTER 1
Empathy and False Empathy: The Problem with Liberalism

Rodrigo Returns and Accounts for His Recent Activities

I was sitting in my darkened office one afternoon, thinking about life. To tell the truth, I was missing my young friend and protege, Rodrigo. Not long ago, I had consigned him to the Great Beyond. But now, I was flooded with regret and sadness. I missed his brashness, his insouciant originality. Odd, I had not thought of myself as sentimental. How could I have allowed him to succumb to the critique of narrativity in “Rodrigo’s Final Chronicle?”¹ Now a young law professor at a well-known university in the Midwest, Rodrigo had sought me out for career advice, nearly three years ago, during a return trip to the States. The son of an African-American serviceman and an Italian mother, the brilliant and audacious young scholar saw the United States with new eyes.

Despite our age difference—he was then just embarking on an LL.M. (graduate law) program at a major law school in the same city where I teach—we had become good friends, discussing civil rights, law and economics, relations between the sexes, and many other subjects over the course of the next two years. I had gotten a great series of articles out of our meetings. He had pushed my thinking, challenged me to explore new realms of thought, helped dispel some of the loneliness of this godawful job. And now, he was gone.

I was just getting ready to drag myself out of my funk, turn on the light, and resume reading the pile of seminar papers that had awaited me since my return from the American Association of Law Schools (AALS) annual meeting, when I heard a shuffling sound outside my door. A brown envelope materialized on my carpet, pushed through the crack by someone whose footsteps I now heard disappearing down the hall. “I’m here,” I shouted.

“Oh, I didn’t see your light,” a familiar voice said.

I turned on the switch and opened the door. “Rodrigo!” I exclaimed. “I was just thinking about you. What are you doing here?”

“I brought you a note explaining how I got back after that incident at the AALS. I didn’t want it to be too much of a shock. I also brought you a book—a magazine, actually.”²

“Come on in. What on earth happened to you? I was afraid I would never see you again.”

Rodrigo picked up the envelope from the floor, laid it on the corner of my desk, then glanced at my couch. “Do you have a minute?” He gestured toward the pile of neatly typed student papers in the center of my desk. “It looks like you’re busy.”

“Quite the contrary,” I assured him. “These grades aren’t due for another week. What happened to you? And, before you begin, can I offer you some coffee?”

Rodrigo nodded enthusiastically, and as I busied myself measuring the water and grounds for my office espresso maker, he began.

“Do you remember, Professor, where we were when the lights went out?”

“Yes, we had been talking, rather late at night as I remember, in that basement dive in the giant AALS hotel. We were discussing the critique of narrativity and legal storytelling, and in particular that section meeting where several of our colleagues attacked the new forms of scholarship as nonlegal, unfair, even exclusionary.³ Others questioned the role of student-run law reviews. You had just said something about how we are all creatures of our own narratives, which immediately filled me with alarm. Then, the lights went out.”

“I figured it was the kids playing at the video arcade next to our booth, and that the lights would be back on again in a matter of minutes.⁴1 saw you put your head down, assumed you were tired, so got up to stretch my legs and walk outside. I thought of leaving you a note, but didn’t.”

“When I woke up, you were nowhere to be seen. Cream and sugar, right?”

Rodrigo nodded. “Yes, please.”

“I was afraid you had deconstructed yourself, allowed yourself to become a casualty of Farber, Sherry, Tushnet, and the critique of narrativity.”⁵

“Nothing so fancy, Professor, although I think you’ll enjoy the story. In fact, what took place prompted me to come see you. Aside from reassuring you that I haven’t expired, I wanted to discuss something. If you’re up for it, that is.” Rodrigo looked up solicitously. “It’s late.”

“I’m going strong,” I demurred. “Besides, I’d love to know what happened. The coffee’s ready.”

I handed Rodrigo a steaming mug of espresso, he stirred in creamer and his trademark four teaspoons of sugar, and continued.

“You won’t believe this, but I was kidnapped.”

“Kidnapped? Are you serious?”

“I am. Do you remember those kids who were playing at the video games along the wall?”

“Sure. They borrowed change from us once. I remember that they looked at you closely, but thought nothing of it at the time. So what happened?”

“It turns out they were not kids at all, but members of an anti-British terrorist group. This I only found out later. I had just stood up when, quick as a flash, there was a cloth bag over my head, my hands and feet were being tied, and I was carried outside and into a car. The whole thing took maybe thirty seconds.”

“My God!” I exclaimed. “What happened then? And why were they after you?”

“This requires some memory on your part, Professor. Do you recall how I got back to the U.S. that first time?”⁶

“I do,” I said. “It was a neat little two-step maneuver. After being deported back to Italy, you resettled in Ireland, using your law degree and taking advantage of the liberalized guest worker provisions in the European Community. You got a job as a paralegal in Dublin, hung around coffeehouses for a while, then got back to the United States by means of a private bill.” ⁷

“With a little help from the Irish Immigration Society and a certain famous U.S. senator who sponsors these bills routinely. But do you remember what I did first, Professor?”

“I’m not sure.”

“I think I mentioned this to you before. I bought a title of nobility from a down-at-the-heels member of the British aristocracy.⁸ I really wanted to get back and start my LL.M. studies, and didn’t want to take any chances. It turned out my investment was probably unnecessary—my U.S. forebears and Italian law degree were probably enough—but that small act led to my adventure.”

“You mean your kidnappers thought you really were the third duke of Crenshaw?”

“They did. It turned out that the group was a collection of exiles just chafing for something to do. And when they heard from headquarters that someone on their list was apparently right here in the U.S., they decided to pick me up and give me a going-over.”

“But of course their grievance was not with you, but with the real duke of Crenshaw, the one who sold you the title.”

“Apparently he was a royalist and something of a bad actor, from the liberationists’ perspective, at least. The whole thing didn’t become clear until they got me to their hideaway.”

“Did you have to do some fast talking?”

“The team that commandeered me did. You should have seen their faces when they took the bag off my head and saw a black man instead of a light-skinned English aristocrat! Their leader was furious. They tried to explain that the restaurant had been dimly lit. They got out the photos. I actually do look slightly like the duke, except for skin color. I met him briefly when I paid for the title— we’re about the same height, weight, and age. So, their mistake was understandable.”

“What happened when they got through blaming each other?”

“That’s when I had to talk fast. One of them wanted to give me a hard time for having bought the title of nobility in the first place. ‘A little would-be Englisher’ he called me. I could see trouble coming, so I explained to them how I was a leftist and a race reformer. I think I even mentioned I was a disciple of yours. I told them I had wanted to get back to the States because it was my homeland and I had a mission here. They looked dubious at first, then finally gave in when I compared critical race theory to their own antiroyalist movement. We ended up drinking Irish whiskey and singing songs. After a while, they swore me to secrecy for seventy-two hours and drove me back to the hotel. I tried to look you up, but you had already checked out and headed back to the airport/’

“It’s quite a story/’ I said. “Reminds me of a certain professor’s adventure in ‘Small World.’ “⁹

“The parallel did strike me,” Rodrigo acknowledged. “Although at the time I wasn’t sure it would turn out so well.”

“Well, I’m very happy you’re back and in one piece.”

While Rodrigo took a swig of his coffee, I took the opportunity to ask: “But you said you had something you wanted to talk to me about. Did it have to do with your kidnapping?”

“It did, in a way. And also with that magazine I brought you. The whole thing got me to thinking of the role of empathy. The republicans who snatched me, even though they were at first taken aback, came around quickly when they learned I was a fellow reformer. At first, I was afraid they’d just push me off a bridge somewhere. But we ended up comparing notes. It turned out we had a surprising amount in common.”

“They identified with your struggle, and you with theirs, in other words.” I was silent for a moment. “So, the critique of narrativity caused you to disappear, but empathy brought you back. Kind of pat, and, I must say, a little upbeat for a young crit like you. Or am I reading you correctly?”

“You and I did talk about the role of empathy once before, Professor. We agreed it is getting in shorter and shorter supply, particularly with respect to minorities of color.¹⁰ Yet I was able to connect quickly with my captors, once they got over their shock of finding a black man under the bag when they expected a blueblood English aristocrat.”

“Maybe there’s some level on which marginalized people of all sorts can understand each other,”¹¹ I suggested. “And so, do you think this is something our people can tap in these troubled times, when society seems to be devoting less and less attention to our needs, the Republican right is in full cry, affirmative action is under attack, and welfare programs are being cut left and right?”

“No,” Rodrigo said quickly. “I believe the opposite is the case. May I start with a thought experiment that occurred to me as the terrorists were driving me back to the hotel?”

“I’d love to hear it.”

Rodrigo’s Inquispro Example and What It Shows about the Possibility of Reliance on Empathy as a Source of Succor for Outsider Groups

Rodrigo drained his coffee cup, and looked up. “Imagine, Professor, that some scientific genius develops a computer called Inquispro, which is aimed at making things easier for our overworked court system. Inquispro is able to scan any segment of space and time and tell us what happened.”

“So, we wouldn’t have to rely on witnesses and fading memories,” I said. “That sounds like a big help.”

“Not only that, but Inquispro knows all the substantive law. We would program it so that it knows the elements of every cause of action or crime.”

“So, if Smith accuses Jones of negligence, for example, in failing to clear his sidewalks of snow, we could simply ask the computer to apply the elements of a negligence cause of action to what happened when Smith slipped in front of Jones’s house the day of the accident.”

“Exactly,” Rodrigo replied. “And so with all the other causes of action in the law books. Inquispro could methodically go through all the cases filed, solving them in a fraction of a second each.”

“This would obviously be a great boon to our overworked judiciary,” I said. “Not to mention witnesses and jurors, none of whom would be necessary. There wouldn’t be much need for lawyers or law professors, either, although I suppose someone would have to program the computer so it would know what substantive law to apply.”

“What else would you have to program the computer with, Professor?” Rodrigo looked at me quizzically.

I hesitated a moment. “It wouldn’t need much civil procedure.” I was silent while Rodrigo looked at me expectantly.

“Do you remember our recent conversation, Professor, in which we talked about white-collar and black crime?¹² We discussed the role of discretion and leniency for the sorts of crimes that are committed by corporate executives, suburban youth, and governmental figures.”

“Of course,” I said. “Everyone knows what happens—the inner city black youth guilty of stealing hubcaps or selling a small amount of drugs is sent away for a long period while the well-regarded white figure receives probation or a light sentence—even though the latter’s crimes may be more serious, in both a monetary and a physical-safety sense.¹³ And so this is the type of thing your computer could not take into account.”

“I’m afraid not,” Rodrigo replied. “And so, after a while, society would rebel. We would insist on programming sentencing discretion and plea bargaining laxity into the computer. Otherwise automobile executives would receive long sentences when one of their badly designed cars killed someone. Savings and loan executives would receive fifty-year sentences. And so on.”

The impact of what Rodr...