Yuvraj Joshi, University of British Columbia Faculty of Law, has posted Racial Equality Compromises, which is forthcoming in the California Law Review:
Can political compromise harm democracy? Black advocates have answered this question for centuries, even as most academics have ignored their wisdom about the perils of compromise. This Article argues that America’s racial equality compromises have systematically restricted the rights of Black people, and have generated inequality and distrust, rather than justice and unity. In so doing, these compromises have impeded the achievement of a multiracial democracy.
Using unpublished archival documents, the Article examines how Black advocates throughout history approached compromises on equal rights. It examines how figures like Booker T. Washington, W. E. B. Du Bois, Martin Luther King, Jr., Bayard Rustin, and Fannie Lou Hamer conceived of historic compromises, what kinds of compromises they were willing and unwilling to make, and when they were prepared to sacrifice more ambitious goals for modest gains. This historical account shows that even “compromising” figures distinguished between principled and unprincipled compromises, and how pressures from “uncompromising” Black activists sometimes facilitated more just and effective outcomes—findings that prove useful for modern-day equality debates.
The Article then examines court decisions that have been central to making and breaking America’s racial equality compromises. This legal analysis reveals that American society is currently constrained by previous judicial compromises that have both failed to secure equality and curtailed society’s ability to battle inequality. Competing forces—from a Black Lives Matter movement demanding racial justice to a Roberts Court ready to unravel longstanding equality precedent—are now driving the United States to reconsider these earlier compromises. Unfortunately, the problematic features from the racial equality compromises of the past are recurring in those proposed for the present.
Ultimately, this Article investigates how past compromises might help us approach present and future ones. It describes common democracy-constraining features of compromises, including their disregard for fundamental humanity, drawing of false equivalences, exclusion of subordinated groups, emboldening of dominant groups, and endangerment of long-term change. The Article applies this framework to current debates over policing, voting rights, the Senate filibuster, and Supreme Court reform, and, using lessons from history, cautions against accepting democracy-constraining features in these contexts. This Article thus reconsiders the value of compromise by learning from Black advocates who lived through the consequences of past equality compromises.
--Dan Ernst
