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Legal Commentary

: Discriminations

Where Is Diversity When You Need It?

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As regular (and even irregular) readers of DISCRIMINATIONS know all too well, I spend a great deal of time and text criticizing ?diversity,? which I put in scare quotes to distinguish ?diversity? as it is practiced today ? it is usually nothing more than naked racial preference ? from true diversity. But in a largely unrecognized colossal historical irony, the fundamental principle that today?s ?diversity? violates is actually a product of the real diversity that lay the foundation for much that is uniquely American about the American experience.

That principle, perhaps the most fundamental American core value, is that citizens have a right to be treated by their governments without regard to race, creed, or color. Stated another way, the state must treat its citizens equally, which in practice requires it to be neutral. When I assert that that value is fundamental, however, I don?t mean that it is a moral command, derived from Natural Law. I believe it is a principle that was forged by our history.

I tried once before, at some length, to explain what I mean. And since I think the argument is important, I hope you will indulge me in repeating a part (but believe it or not, only a part) of that earlier post:

Race and Sects in American History

....

One of the most cherished myths of American history is that our foremothers and forefathers fled the Old World for the New to escape religious bigotry and build a new society based on religious freedom. In fact, the Puritans? strongest complaint against the Old World was that it was too tolerant, that it was swimming in a sea of such moral sloth and corruption that it had lost all interest in purifying the church. The New World appealed to them because it was empty (except for the ?heathens? ripe for conversion), and they could establish Godly communities the way they were quite certain God intended.

And yet within several generations religious toleration had broken out all over. Despite the best efforts of the Puritan divines, diversity could not be denied. The Baptists and Quakers proved irrepressible. Mennonites appeared, and Methodists sprouted like weeds in the wake of itinerant ministers. Even many Congregational churches split asunder as revivalist ?New Lights? walked out and founded competing congregations.

What happened? Unintended and unplanned, America began to happen. What Voltaire said cynically about England came to be celebrated here: ?If there were one religion . . . , its despotism would be terrible; if there were only two, they would destroy each other; but there are 30, and therefore they live in peace and happiness.?

Toleration developed not because it was valued but because it was necessary. ?Freedom came to the Western world,? wrote Reinhold Niebuhr, one of our greatest theologians, ?by the inadvertence of history. Toleration was an absolute necessity for a community which had lost its religio-cultural unity and could find peace only if toleration and freedom were accepted.?

America discovered, however, that toleration alone was not sufficient. Strict neutrality was also required, a prohibition against the state favoring any of the contending sects. As Justice Hugo Black wrote in Zorach v. Clauson (1952), ?it is only by isolating the state from the religious sphere and compelling it to be completely neutral that the freedom of each and every denomination and of all nonbelievers can be maintained.? Or as the Court held in Abingdon School District v. Schempp (1963), ?the government is neutral, and, while protecting all, it prefers none.?

But if the very structure of American society requires a principle of neutrality that in turn requires a separation of church and state ... , should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time ?ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history.? (POST-ETHNIC AMERICA, Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as ?divisive? today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.

The diversity that provides the constitutional (and hence Constitutional) necessity for government neutrality has not come only from our multiplicity of religious sects, however. It has also come, in waves, from a multiplicity of peoples ? that is, from immigrants who bring with them many shards of different cultures. And therein lies what is shaping up to be another colossal historical irony: one of the largest threats to true diversity today comes from our massive, monolithic Hispanic, largely Mexican, immigration that is so ardently defended by the most vociferous advocates of ?diversity.?

In that regard let me refer you to ? no, let me all but insist that you read ? an absolutely superb article by Jerry Kammer, ?It?s Not All about Nativism: Historian John Higham?s Widening Views on Modern Efforts to Limit Immigration.? Kammer is a Pulitzer Prize and George Polk Award recipient currently a senior research fellow at the Center for Immigration Studies, and John Higham, who died in 2003, was perhaps the foremost historian of American immigration of his generation. His Strangers in the Land: Patterns of American Nativism, 1860-1925 (1965, 2002) is still widely regarded as the classic, standard text on American nativism.

As immigration scholars Peter Skerry and Noah Pickus have noted, John Higham?s Strangers in the Land ?continues to be widely and approvingly cited by those concerned with underscoring the history of prejudice and intolerance toward newcomers in the United States.?

Yet, Skerry and Pickus also noted that Higham explicitly rejected efforts to frame as nativists those who favor more restrictive immigration policies.

You really must read Kammer?s article for a thorough exposition of Higham?s views and, more to the point, how his views evolved after the publication of his masterpiece. Here, I want to emphasize only one patch of Higham?s mosaic, his view that unrestricted immigration threatened to undermine the very diversity of which immigration had long been a leading source.
As Congress debated immigration policy in the 1980s and 1990s, Higham warned that U.S. policies were promoting divisiveness by limiting the diversity of immigration sources that had helped the country avoid the ethnic cleavages that beset other countries.
Higham?s analysis of the beneficial effect of the infusion of diverse immigrants is strikingly similar to the analysis described above of the close relationship between religious diversity and religious freedom, as well as to my attempt to apply that model to race policy. As described by Kammer (citations omitted):
Higham testified during the run-up to two major rounds of debate over immigration ? first before a congressional committee in 1986, later before Barbara Jordan?s U.S. Commission on Immigration Reforn in 1993. He said the history of immigration offered cautionary lessons.

The United States had avoided ethnic divisions because of the powerful effects of assimilation, the internal mobility of American society, and the diversity of its immigrants, Higham said.

While immigrants tend to cluster in ethnic communities, ?these communities undergo continual erosion through assimilation, especially in the third generation,? Higham said. ?Consequently, the proportion of the American people who feel significantly conscious of foreign origins has always been limited.?
....
Discussing the benefits of diversity in the immigration flow, Higham observed that ?America?s immigrants have differed from those drawn to other new countries most strikingly in the variety of peoples who have come here.? While conflict had arisen in other countries whose immigration favored particular nationalities, ?[t]he United States has escaped any such cleavage not only because our many ethnic minorities have differed too much from one another to form a compact body.?
....
Higham contended that U.S. immigration policy at the time he wrote was not adequately advancing values that he regarded as key: the diversity of immigrants and the innovation that creative immigrants had infused into the nation?s economic life.

On the first theme, Higham complained in 1986 that the existing law?s emphasis on family reunification ?tend[s] to reinforce and perpetuate existing patterns of migration.? He noted disapprovingly that in the previous year 73 percent of green cards (which grant permanent residence) had been issued to relatives of persons already in the United States. He quoted the observation of journalist James Fallows that such policy ?in bestowing benefits on certain families simply because an uncle or cousin managed to immigrate in the past ? closes the door on the classic immigrant, the independent man or woman who sets out to make a new life.?

In short, from early on in our history diversity fertilized the soil out of which the uniquely American ?without regard? principle grew. Now ?diversity? is poisoning that principle, and the social comity that depends upon it.

Full post as published by Discriminations on June 02, 2010 (boomark / email).

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