Legal Commentary

Approaching Arguments That Have A Racist Past

By Orin Kerr

Like Eugene, I received an e-mail recently from a student who will be a 1L at Harvard Law School this fall. Like the student who e-mailed Eugene, this student is somewhat worried about the environment he?ll find when he enrolls. He writes:

I?m an incoming student at Harvard Law next year. And even though I?m neither interested in nor well-informed about whether Jews are greedy moneylenders, I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it. I have no idea what I would say if someone asked me if I could categorically rule out the possibility that Jews tend to be greedy moneylenders. But the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

My advice to this student would be to recognize that some arguments have to be approached with great caution not because of their logic but because of their history. After an argument is used in a particular way for a few centuries, that argument is going to be heard by many others in light of its past. Sure, some listeners will hear the argument on its own terms without any historical baggage. And I assume that?s the way you?ll intend it. But others will assume that you?re well-versed in the history. If you make the argument without any caveats, those listeners may wonder if (or even assume that) you share the racist beliefs of the people who made that same argument in the past. 

Let me be clear: That doesn?t mean the entire topic is taboo. And it doesn?t mean that you shouldn?t express any opinion on the topic at all if it comes up. But it does mean that you should recognize that the argument has a racist history, and that you need to go out of your way to establish your good faith and distance yourself from that racist history. So make the argument, or ask the questions, if you like. But just recognize that the history of that particular issue will create a lot of suspicions about your motives unless you make a clear and sustained effort to show others that you recognize that history and condemn it. It?s not easy, I realize. It requires judgment and tact. But you?re going to be a Harvard Law student, and I?m sure you?re up to it.

Full post as published by The Volokh Conspiracy on May 01, 2010 (boomark / email).