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The importance of taking law seriously
Among the reviews of my book, I have noticed two main lines of criticism. First of all, there’s the argument that I didn’t explain everything. Oliver Traldi in Quillette asks “does the federal government require corporations to make rainbow-colored versions of their logos, or tweet in support of black trans women?” No, it certainly does not, although I think I do a good job of explaining how civil rights law led to HR and DEI, which have more immediate impacts on how corporations address political controversies.
Relatedly, there is the argument, made by Traldi, Eric Kaufmann, and others, that I don’t take ideas seriously enough. Sasha Ivanov, writing in Aporia, says that we should blame Christianity and classical liberalism (see here and here for my comments on the post).
To justify his interest in proximate causes, Hanania cites the example of the Russian Revolution: “To understand why Russia was communist in 1960, it is more useful to study 1917 and the years immediately after than it is to look at the doctrines of the Russian Orthodox Church and the culture of eighteenth-century peasants”. He concludes that changing policy is a political project, “one that depends on a small group of individuals changing the nature of the regime they live under”.
But a small group cannot gain control or influence policy without certain prerequisites. The Russian Revolution was preceded by decades of radical movements, involving thousands of assassinations. These were carried out by political zealots, who were not incentivized by self-interest, but were “possessed” (as Dostoyevsky said) by a revolutionary spirit.
Any policy change, regardless of whether it is bloody like the Bolshevik Revolution, or “mostly peaceful” like the 1960s Civil Rights Movement, requires a community of people who are ready to fight for their ideals, and who command power – either in numbers, wealth, or threat of violence. At the heart of it all, there needs to be a convincing ideology/religion for the new community.
It’s annoying when a critique raises an objection that you think you’ve already answered, but since it is the author’s job to make himself clear, I take responsibility for apparently not having done so.
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My view is that of course ideas matter, but there are a lot of ideas out there in the world, and politics usually determines which ones have a lasting impact. In the area of foreign policy, there has always been a marketplace of ideas, with some in favor of the US having a global leadership role and others against it. The more interventionist side has since 1945 always won. Why is that? It’s not enough to say “well, they had ideas,” because their opponents had ideas too! One could argue that the American Protestant tradition required such a result, but this is a just-so story, and doesn’t explain more isolationist periods in our history. My first book sought to provide a framework that can explain a kind of path dependency in US foreign policy. I don’t put forth much discussion about why the US got into World War II or the causes of the Cold War, but one of my main arguments is that given the nature of the American political system and the interests that have been created, it has become very unlikely that anti-interventionists will ever be given a chance to triumph in the marketplace of ideas.
After Iraq, there was a general pessimism about the US role in the world, and for a decade or so starting in the late 2000s, people who questioned whether we needed to be so involved in global affairs could get more of a hearing. That ended with the rise of Trump, whose skepticism about the rules-based international order created a backlash among elites, and then the Russian invasion of Ukraine, which killed that trend once and for all. Do interventionists just have better ideas? Maybe, but notice how even in the decade or so after it was clear that the global war on terror was a major failure, there really wasn’t any American retrenchment. Although he seemed to have himself been taken in by many anti-interventionist arguments, Obama expanded NATO, bombed Libya, armed the Syrian rebels, and didn’t preside over any kind of scaling back of US commitments overseas. This is because vested interests dominate the marketplace of ideas, and one needs a historical and institutional perspective to understand why.
Likewise, it’s true that in my book I don’t focus most of my attention on why the Civil Rights Act was passed in the first place, or what caused the Great Awokening starting around 2010. This isn’t because I think ideas are unimportant. Rather, it’s that politics — broadly defined to include court decisions and bureaucratic maneuvering in addition to elections — is the process through which we determine which ideas and impulses get translated into power and the impact they have on the real world. In the example above with regards to the triumph of communism, Russian radicals of the late nineteenth century may have ended up as nothing more than a historical footnote if not for the events of November 1917.
Throughout all of American history, the question of black people and their role in society has been a source of bitter division. It was probably inevitable that there would be a broad liberalization on race in the second half of the twentieth century, as the country experienced fast economic growth and our politics were nationalized. The central question addressed in The Origins of Woke is why this concern with the plight of blacks took the forms it did. This includes expanding to cover the made-up category of “Hispanics”, bringing in women under the same kind of regime, and creating an HR bureaucracy within major institutions to enforce the new rules. To understand all of that, you need to know a bit of bureaucratic and legal history.
One thing that my book does over and over again is show that many parts of wokeness were found in law before they made an impact on the broader culture. See the figures below showing the rise of the terms Hispanic, Latino, and AAPI, and the declines or stagnation in the discussions of more particularist identities. Note the logarithmic scales on y-axes.
Maybe it’s all a coincidence, and we would have started saying “Asian American Pacific Islander” even if the government had not constructed this category in the 1960s and 70s. But I really doubt it. In addition to discussing how we divide people by race, I show that the disparate impact standard was legal doctrine before society began to believe everything was racist, and make a direct historical connection between civil rights law and the rise of HR.
This speaks to another critique that people make of the book, which is that Europe also has something akin to wokeness, without our history of civil rights law. Yet it seems that the fact that what we may call “wokeness” in Europe tracks closely with their prohibitions and regulations, while our version does with our own, is strong evidence for the view that culture is downstream from law. Of course Europe has its own version of wokeness as law. They’re called hate speech provisions, and they have a massive distortive influence on the politics of the continent, making life more difficult for the far right.
In France, you can be arrested for saying the wrong thing about blacks or Muslims, but corporations mostly stay out of politics, and government employees are recruited through competitive exams that don’t generate much controversy. Meanwhile, here in the US, you can be a Nazi and march through Skokie, and politicians can indulge in open bigotry, yet we have low standards in government hiring, and even private institutions have become extremely politicized, through the process I describe in which civil rights law led to HR, which developed its own outlook that shifted the internal cultures of organizations.
In some ways, France and the US are similar. We both have dark-skinned underclasses that are responsible for a disproportionate share of crime, and occasionally riot as a result of tensions with law enforcement. I don’t think civil rights law is responsible for that – we’ve had this in America since the 1960s. But wokeness as we understand the term, which at its heart involves an obsession with demographic bean counting in all areas of life, is certainly less common and all-consuming in Europe than it is here, despite Americans being better off in terms of free speech rights when they’re not at work and subject to Title VII.
I agree that culture does influence law, just as law influences culture. It’s important to understand both processes. The reason I chose to focus on the causal impact of law in my book is that it has been extremely underrated. I’ve been reading articles and books on wokeness or political correctness for decades now. They are practically all obsessed with ideas, and replacing them with better ones. Very few prominent works deal with the legal roots of many of the problems we face. People talk about Caldwell in this context, but if they do they didn’t read his book, because while it mentions the Civil Rights Act it contains very little about the legal regime we live under.
The Origins of Woke was written in the context of a debate in which I saw culture and ideas getting about 90% of the attention, and law maybe 10%. My view is that we need a corrective, as I’d put law at maybe 60% and culture and ideas at 40%. These numbers are made up, but what I’m trying to make clear is that what government does is actually important, and has many downstream societal effects that most people can’t even begin to imagine.
I particularly reject what I call “ideaism,” which is the belief that you can explain the world by looking at what thinkers have said or ideological doctrine without knowing all that much about historical or policy specifics. The Aporia review mentioned above is a particularly extreme representative of this view. One reason to doubt such theories is that they’re always retrospective. No one in the 1960s ever said “You know, I just read Marcuse and, given his influence in intellectual circles, I can predict that in future decades we’ll have a country where you can’t have standardized tests in hiring and corporations will praise dead black criminals, but capitalism will be safe and economic inequality will be just as extreme as ever.” In contrast, Goldwater did in fact foresee the ultimate impacts of the Civil Rights Act:
To give genuine effect to the prohibitions of this bill will require the creation of a Federal police force of mammoth proportions. It also bids fair to result in the development of an “informer” psychology in great areas of our national life — neighbors spying on neighbors, worker spying on workers, businessmen spying on businessmen, where those who would harass their fellow citizens for selfish and narrow purposes will have ample inducement to do so. These the Federal police force and an “informer” psychology, are the hallmarks of the police state and landmarks in the destruction of a free society.
As far as predictions go, that’s pretty good! Particularly the line “those who would harass their fellow citizens for selfish and narrow purposes will have ample inducement to do so.” With the benefit of hindsight, one can always find a way to connect the Inflation Reduction Act to Foucault or something, but such theories strike me as both unlikely to be true and practically impossible to falsify. We don’t have recurring moral panics about race and sex primarily because of something any philosopher has said. Moral panics exist in many cultures and the legal regime we live under determines the forms that our own ones take.
To the extent ideas matter, I think what is important is usually more likely to be intuitions and emotions than high-minded philosophy. People feel bad about the plight of black Americans. So they adopt the idea of “let’s help them and be sensitive towards their feelings.” When a bureaucrat twists the law in his preferred direction, thus proving the importance of “ideas” in forming public policy and culture, he is more likely to be relying on simple heuristics like this than any kind of well thought out ideological doctrine.
Ideology may have more of an influence among an intellectual vanguard, which can be small but nonetheless exert disproportionate influence. Such people have of course always had a role to play among the American left. Individuals committed to communist and Marxist ideals have been influential in the civil rights movement since its beginning. But one thing such leftists get right is that power itself is the goal, and the way you ultimately effect change. That requires knowing specific things about the way the world works, and engagement with the political process.