Sometimes you write a book to tell people what you think. But sometimes you write a book to find out what you think. Several years ago, a chance encounter with a student prompted me to realize that although I had been teaching and writing about a wide variety of issues in applied ethics for well over a decade, I had never taught, written about, or even thought much about anything having anything to do with race. I felt bad about this. I wondered what I would think about such issues if I did think about them. So I decided to write a book.
The result was Should Race Matter?(Cambridge University Press, 2011), a critical discussion of what struck me as the five most interesting and important issues in the area: slave reparations, affirmative action, hate speech restrictions, hate crime laws, and racial profiling. Lacking any kind of preconceived theory to apply to these problems, my approach was entirely Socratic: start with premises that virtually everyone on both sides of each debate already accepts and see where they take you. They ended up taking me to a somewhat idiosyncratic combination of conclusions. Not many people, for example, defend both slave reparations and racial profiling. I did. People tend to treat hate speech restrictions and hate crime laws as peas in a pod: you’re for them or you’re against them. I argued against hate speech restrictions but in favor of hate crime laws. And opponents of affirmative action typically claim that it’s impermissible while defenders of the practice typically insist that it’s obligatory. I decided that they’re both wrong. As the publicity materials for the book put it, “Boonin arrives at an unusual and unorthodox set of conclusions, one that is neither liberal nor conservative, color conscious nor color blind.”
But I’m writing here to let you in on a little secret. The book is actually more unified than it might at first appear. While I think it’s correct to say that its set of views as a whole is neither liberal nor conservative, and while there is no overarching theory connecting its five largely independent discussions, I do think that there is a coherent philosophy that could be used to justify all five of its seemingly disjointed conclusions. The book’s subtitle was “Unusual Answers to the Usual Questions,” but it could just as well have been “How to Be a Bleeding Heart Libertarian About Race.” I don’t have space in a single blog post to give this claim anything like a satisfactory defense. But I will briefly sketch out what I have in mind here and encourage those of you who are interested to take a look at my book and to be open to the possibility that the five conclusions I defend in it represent precisely what a bleeding heart libertarian should think about these issues.
I’ll start with perhaps the easiest case of the five in terms of figuring out what a libertarian should think: hate speech restrictions. Virtually everyone on both sides of that debate agrees that there should be a presumption in favor of freedom of expression and that the burden of proof lies with those who would impose such restrictions. Surely a libertarian would concur. In my two chapters on hate speech, I argue that traditional justifications for speech restrictions (that the words involve threatening to harm someone, for example, or that the words are libelous) cannot be successfully extended to justify hate speech restrictions and that the more novel kinds of argument that could justify such restrictions (that the words are hurtful, for example, or in some sense subordinate people or silence them) have implications that virtually everyone would reject. Virtually everyone on both sides of the hate speech restriction debate, for example, would agree that you should have the right to tell your brother that you hate him, that Rush Limbaugh should have the right to tell his listeners that women should stay at home and raise children, and that a minister should have the right to tell his congregants that abortion is a sin, but I argue that each of these attempts to justify hate speech restrictions is incompatible with the existence of at least some of these rights. These are all rights that any self-respecting bleeding heart libertarian would surely insist on recognizing, too, and so, perhaps not surprisingly, my arguments in those chapters establish that bleeding heart libertarians, in particular, should oppose hate speech restrictions.
But what about hate crime laws? Race-based hate crime laws take ordinary crimes like vandalism and assault and add an extra amount of punishment for them in cases where the offenders select their victims because of the victim’s race. Many people who oppose hate speech restrictions think that doing so commits them to opposing hate crime laws as well. This is because they view the extra amount of punishment that is added to the offender’s sentence as punishment for the offender’s offensive thoughts and rightly believe that people should not be punished for having offensive thoughts. In my treatment of hate crime laws, I develop a detailed response to this objection. The response is grounded in the claim that there are sufficiently parallel cases in which virtually everyone on both sides of the debate will agree that it is perfectly appropriate for the state to take an offender’s mental state into account when deciding on an appropriate sentence. The only difference between first degree murder and negligent homicide, for example, is a difference between the mental states of those who commit them, and virtually everyone agrees that if there is going to be a state and the state is going to punish people for breaking the law, then it’s appropriate for the state to inflict more punishment in the former case than in the latter case. Bleeding heart libertarians should be on board with this claim, too, and so if the arguments in my chapters on hate crime laws are successful, they show that bleeding heart libertarians have good reason to stop worrying and learn to love hate crime laws.
The claim that the United States government owes reparations to the current generation of black Americans because of the unjust harms that were inflicted by slavery and Jim Crow laws in the past is widely associated with a kind of collectivism that is presumably anathema to bleeding heart libertarians: white people as a group mistreated black people as a group in the past therefore white people as a group have inherited a responsibility to do something for black people as a group in the present. The fact that I personally had nothing to do with inflicting any of these past harms strikes many people as a perfectly good reason to conclude that I shouldn’t be made to pay anything toward rectifying them, and it may well seem to be a particularly good reason from an individualist libertarian perspective. In the two longest chapters of my book, though, I argue in some detail that the reparations position can be successfully defended without appealing to any kind of objectionable racial collectivism. Starting from a simple case like one in which I vandalize your car and incur an obligation to compensate you for the harm I have caused you, I try to show that none of the differences between this case and the case of the lingering harms that continue to be caused by the legacy of slavery and Jim Crow can be used to undermine the case for slave reparations.
Two differences between the car vandalism case and the slave reparations case are particularly likely to lead many libertarians to be deeply suspicious of the position I take on this subject. In the vandalism case, the person who is harmed is the same person as the person who is owed compensation while in the slavery case, the people who were harmed are not the same people as the people who are said to be owed compensation. And in the vandalism case, the person who owes the compensation is the same person as the person who caused the wrongful harm while in the slavery case, the people who are said to owe the compensation are not the same people who caused the wrongful harms. These are indeed significant differences, but I think that they can be shown to be irrelevant by appealing to claims that are fully compatible with libertarianism. Suppose, for example, that fifty years ago, the government wrongfully buried toxic waste in a residential neighborhood and that doing not only harmed the people who lived there at the time but also caused lingering effects that continue to harm the people who live there today. I see no reason for a libertarian to deny that the current residents would have a legitimate claim to compensation for suffering these harms even if they were born after the wrongful act that caused the harm took place. And suppose that a treaty that the United States government ratified fifty years ago commits it to defending a particular ally who is currently under attack. I see no reason for a libertarian to believe that the country’s obligation to defend this ally expired when the particular individuals whose signing of the treaty generated that obligation died. Since libertarians will surely find the claim that I would owe you restitution for vandalizing your car to be uncontroversial, and since I think I can show that this case is relevantly similar to the reparations case by appealing to claims about cases like the toxic waste and the treaty obligations that libertarians will also accept, I believe that my defense of slave reparations is actually one that bleeding heart libertarians should be perfectly comfortable with.
The slave reparations position is widely viewed as considerably more radical than the view that we have an obligation to practice affirmative action. Virtually everyone who supports the former view supports the latter view while even many who support the latter view are skeptical of the former view. But while I believe that the former view is correct, I believe that the latter view is mistaken. In the two chapters on the subject in my book, I argue that affirmative action is not obligatory although it is permissible. In short, it’s morally optional. This is a view that seems to leave supporters and opponents of the practice equally dissatisfied, but as with the other positions I take in the book, I attempt to show how it follows from a number claims that virtually everyone on both sides of the debate already accepts. In defending the claim that race-based affirmative action is morally permissible, for example, I appeal in part to the claim that it is permissible for a grocery store (whether private or part of a military base) to hire a person with Down syndrome to bag the groceries even if she is clearly less efficient than other applicants and that it is permissible for a public or private university to take the geographic origin of its applicants into account when deciding which ones to admit. In defending the claim that race-based affirmative action is not morally obligatory, I appeal in part to the claim that geography-based affirmative action isn’t morally obligatory either, and to the claim that organizations that are evaluating candidates have no obligation to take other forms of potentially unfair disadvantage into account in doing so, like giving preferential consideration to a somewhat less qualified white college applicant whose high school career was hindered by the fact that his father was sent to jail for a crime he didn’t commit over a somewhat more qualified white applicant who suffered no such disadvantage during his high school years. It seems clear to me that bleeding heart libertarians should accept all of these claims along with others that I appeal to in those chapters. And so it seems clear to me that this middle of the road view is the position on affirmative action that bleeding heart libertarians should take.
Perhaps the hardest sell for some libertarians in my book will prove to be its defense of the claim that, at least under certain circumstances, it is permissible for the state to engage in racial profiling. The strongest arguments against racial profiling appeal to the claim that it violates one or the other of two fundamental rights that we have against the government: the right against unreasonable searches and seizures, and the right to equal treatment. Surely bleeding heart libertarians will strongly endorse the existence of these rights, and this may well seem to show that they should be strongly opposed to racial profiling. But in the concluding chapters of my book, I argue (among other things) that neither right can be used to ground a satisfactory argument against racial profiling. If the right in question is interpreted in a way that renders it strong enough to rule out racial profiling, it will also rule out other practices that virtually everyone will agree are perfectly acceptable. If the right is interpreted in a way that permits these other practices, it will also permit racial profiling. In developing this kind of argument, I appeal in part to the claim that the following are permissible things for the government to do: inspect the bags of every person who attempts to board an airplane at a public airport, take race into account when casting someone to play Abraham Lincoln and Frederick Douglas in a play to be performed at a national historical site, and include race when circulating a description of a criminal suspect being sought by the police. I believe that, at least upon reflection, bleeding heart libertarians will agree that these practices are all permissible. If I’m right about that, and if the arguments in my book are correct, then bleeding heart libertarians should reluctantly come to the same conclusion that I reluctantly came to: there turn out to be no convincing arguments against the permissibility of racial profiling.
I said at the outset that Should Race Matter? takes a Socratic approach, arguing from premises that virtually everyone already accepts to conclusions about a variety of race-based controversies. I’ve tried here to briefly sketch a set of reasons for thinking that the seemingly disparate positions that I defend in that book could all be unified under the umbrella of a bleeding heart libertarian approach to racial issues. If I’m right about all of this, though, you might well wonder: does this mean that premises that virtually everyone already accepts can be used to justify bleeding heart libertarianism? That’s a good question. I’m not sure what to think about it. Maybe I should write another book.
UPDATE (7:23 AM PST): The version of this post that went up originally was a draft version. The final version is up now – please note the added paragraph on reparations.