Author:Ramirez, Steven A.

"[T]he arc of the moral universe is long but it bends toward justice."

--Dr. Martin Luther King, Jr., Our God is Marching On!, 25 March 1965, Montgomery, Alabama. (1)

"I'm convinced that racism is a permanent part of the American landscape."

--Derrick Bell, Faces at the Bottom of The Well: The Permanence of Racism, 1993. (2)


The assessment of the permanence of racism and racial hierarchy within a society necessarily implicates two separate factors. (3) The first factor requires a firm understanding of the precise mechanisms and institutions through which such forces operate to replicate racial hierarchies over time. (4) The second factor must assess the potential of legal innovations that could operate to disrupt the replication of socially significant race-based outcomes. (5) This Article undertakes that assessment and concludes that America's racial hierarchy need not operate permanently given demographic and economic realities. Of course, politics matters much to this assessment; nevertheless, law can condition the body politic and the expression of political pressure in a pro-diversity direction.

Recent learning suggests that the root of much racism lies in the manipulation of innate tribalism as an instrument of political power. (6) Specifically, neuroscientific studies show that race-related stimuli can trigger emotional brain responses of fear in racially conditioned humans. (7) These responses illustrate the operation of implicit or explicit bias at a neurological level. (8) Viewed in this context, racism could well prove to operate as a mechanism for governing elites to divide their opponents and consolidate their power. (9) Thus, racism may be a permanent feature of human civilization--and if racism should wane, governing elites would quickly substitute other mechanisms that exploit human fears and emotional responses to threats and create divisions among the disempowered. (10)

In the U.S., any political pressure for racial reform must contend with the electoral college and the U.S. Senate, which operate to benefit rural rather than urban interests today, and historically operated to benefit slave-holding states. (11) Votes in less populous states hold more electoral sway than votes in urban states. (12) This effectively means that white votes in the U.S. hold more electoral sway than votes in urban communities of color. (13) Minority communities also suffer from coordinated efforts to suppress their voting power. (14) Race appears to be hard-wired into the American political system with roots extending to the pro-slavery constitution. (15)

Further, the Supreme Court nearly always weighs in favor of the powerful and further concretizes racial hierarchies. (16) With respect to race, the Court twisted the Fourteenth Amendment long ago to favor entrenched economic power rather than disempowered minorities, such as the freed slaves of yesteryear. (17) Left as is, the Court will continue to resist whatever political pressure for racial reform that emerges. (18) Elites may depend upon the Court to continue to act as a brake on democratic efforts to put race in the rearview mirror of U.S. history. (19) The history, institutional structure, and nature of the Court forms another basis for concluding that, at least in America, racism will persist for many years, and our racial hierarchy will enjoy a long-life expectancy. (20)

We argue that the central problem arises from the need for humans to join tribes to enhance their chances of survival. (21) In other words, tribalism finds its roots in an evolutionary imperative to band together in cooperative enterprises. (22) Nevertheless, tribalism could also impede the ability of humans to address a myriad of problems plaguing humanity within nation-states and beyond. (23) As human civilization becomes more complex and interconnected we posit a new humanism must emerge to reduce tribalism. (24) Indeed, this essential humanism must emerge immediately to address urgent problems facing humanity. (25) With respect to problems of race, a new Americanism and ultimately a new humanism must emerge.

New legal innovations can secure the type of educational and behavioral progress that Americans and humanity must make to overcome its racist past and work to resolve extra-tribal challenges. (26)

Specifically, law can facilitate cultural diversity and break down tribalism. (27) While such legal innovations appear straight-forward, they would require a degree of political willpower currently missing in the U.S. (28) Nevertheless, law can operate to condition political realities in a way fundamentally accommodative of further innovations to limit and diminish the continued sway of race as a socio-economic reality and source of political power. (29) We articulate political conditions supportive of this outcome.

Part I of this Article will show that while race is a social construct, it retains tremendous social power in America in accordance with the predictions of Derrick Bell, fifty years after landmark legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In sum, the U.S. continues its longstanding racial hierarchy today. Part II will suggest that race continues to hold sway in the U.S. through both explicit and implicit bias, and that law can operate to overcome these impediments to human development, as Martin Luther King suggests, through initiatives to comprehensively embrace cultural diversity. Recent studies in neuroscience fully support this central point. Part III will assess whether the U.S. has the political will necessary to mitigate race as it currently exists or will exist in the near future. While the Supreme Court will likely act (as always) to uphold the current hierarchy, demographic realities and economic truths will ultimately operate to diminish the influence of race in American society. The Article concludes that while the U.S. may still have many fits and starts ahead in wrestling with America's original sin, ultimately the value of cultural diversity and the changing demographics in our nation will impel a diminution in the sway of race under current legal and political realities.


    Today in the U.S., race remains an idea with tremendous social power to deter human development within our society. (30) Race operates only as a social construct. (31) Because race responds to the needs of power elites its social construction and the patterns of racism accompanying it differ from place to place and from time to time. (32) Thus, every ten years when the federal government undertakes its census, it constructs new racial categories from whole cloth based upon new cultural and social realities. (33) Mainstream science rejects race as a scientifically defensible means of categorizing or containing human genetic diversity. (34) Instead, geneticists find genetic diversity and similarity better defined by reference to discrete local populations based upon geography rather than traditional notions of race. (35) As one prominent geneticist stated: "The more we learn about humankind's genetic differences ... the more we see that they have almost nothing to do with what we call race." (36) Thus, all racial disparities arise from social realities and legacies of oppression rather than any putative innate racial differences. (37)

    The U.S. legal system today--with the Supreme Court leading the way--imposes a legally constructed racial hierarchy upon U.S. citizens that is economically costly, immoral, socially corrosive, and politically unsustainable. (38) This morally reprehensible and economically suicidal reality promises to continue as far as the eye can see, at least insofar as the judiciary is concerned, and fundamentally subverts the possibility of social justice secured under law. (39) Instead of any vision of racial justice, the U.S. judiciary frustrates any political pressure for racial reform. (40) As one scholar recently stated:

    Nor has it been unusual in our history for the Supreme Court to stand at the forefront of racial injustice. In fact, except for a short period in our nation's history, 1954 to 1965, from Brown v. Board of Education to Mapp v. Ohio to Gideon v. Wainwright to Baker v. Carr, the United States Supreme Court has promoted or facilitated injustice against African Americans. (41) Maintenance of a socially constructed racial hierarchy within any society entails huge costs because race necessarily involves the mass destruction of human potential and human capital. (42)

    The vibrancy of the undeniable racial hierarchy poses a key question haunting America today: will the U.S. ever dismantle the legal foundations of its racial hierarchy? Race must pervade America's consciousness or it would rebuke its racial disparities and reform a system (defined and framed under law) that produces such mass misery, death and oppression. (43) This Part of this Article will highlight the misery our legal system produces as part of the racial fabrication plaguing our society. (44) In fact, one high-profile economist now posits that America is devolving into a two-tiered society, with most Americans living in conditions similar to a non-developed nation, thanks in large part to continuation of racial oppression. (45) Further, this Part will seek to quantify the staggering macroeconomic costs of this continued racial fabrication under law in a last-ditch effort to convince those with power and influence over this process--the judiciary in particular--that if morality and justice cannot prevail on the issue of racial fabrication and its accompanying oppression, perhaps a desire to avert economic suicide and Third World status for their...

To continue reading