At the AALS conference last week there was a panel on Derrick Bell's legacy. It's looks like it was terrific. Here's the description from the AALS program:
This 2012 Annual Meeting is a first opportunity for AALS to acknowledge the debt legal education owes to Professor Derrick Bell (1930-2011), the first African American professor at Harvard and a world-renowned scholarteacher-activist. His signature written work includes his path breaking1973 casebook Race, Racism, And American Law, his 1985 Harvard Law Review Foreword, "The Civil Rights Chronicles," and his numerous books--And We Are Not Saved; Faces at the Bottom of the Well: The Permanence of Racism; Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (2004); Confronting Authority: Reflections of an Ardent Protester; Ethical Ambition: Living a Life of Meaning and Worth. Not only did he enrich our scholarly debate. He acted to confront our complacency with the racial and gender status quo.
This panel reviews his legacy and discusses the relevance of that legacy for our present and future. That legacy includes his critique of law as a limited path to equality for African Americans, his critique of Brown’s integration remedy, his work to diversify law school student and professorial ranks, the founding of critical race theory which examines the role of law in the maintenance and elimination of racial subordination, his specific narrative and interdisciplinary scholarly innovations, his pedagogical commitment to place students at the center of the learning process, his commitment to the mentoring of a broad scholarly community, and his insistence that conscience, morality, and protest remain an integral part of academic duty.
They had an all-star cast on the panel: Linda S. Greene of the University of Wisconsin, John C. Brittain, of the University of the District of Columbia, Pat K. Chew of the University of Pittsburgh, Frederick D. Greene of the University of Dayton School of Law, Kevin L. Hopkins of The John Marshall Law School, Gerald Torres of the University of Texas, and Patricia J. Williams of Columbia.
I thought that I'd use this as a chance to post a little bit about two pieces of Bell's scholarship that I think are not so frequently spoken about.
The first part cribs from a post from years ago on Bell's intellectual forerunners in regard to his interest convergence hypothesis.
Professor Derrick Bell was famous for, among other work, the “interest convergence” theory: that white people will support racial justice only to the extent that there is something in it for them. That is, only to the extent that there is a “convergence” between the interests of the white people and racial justice. Perhaps the best-known application of this thesis involves the 1954 decision in Brown v. Board of Education: the idea is that the Supreme Court supported Brown because it served the United States’ cold war agenda of supporting human rights. Moreover, it was a decision that was largely imposed (in Bell’s picture) on the south by people in the north. Thus, the interests of those who were devising the decision converged with the interests of the black plaintiffs.
There’s a lot that can, should, and has been, said about this. For instance, it implies a close connection between judges and the interests of the white community more generally. Second, there is relatively little room for judges to have autonomy to make their own decisions. Third, it also denies the African American community much of a role in shaping law. I’m planning on talking a lot more about the ways that African American intellectuals set the agenda for constitutional development in the twentieth century soon. (A quick take of my ideas appears here.)
While I disagree with the strong version of his thesis, I have to agree with a weaker version of it: that the will of the majority tends in the direction of its self-interest. Bell’s ideas channel that of another great political theories, James Madison. Madison was one of the co-authors of a series of newspaper articles supporting adoption of the Constitution known as the “Federalist Papers.” One of Madison’s great concerns was about the influence of “factions.” In Federalist 10 Madison addressed the problem of factions and in particular the problems with factions have a majority–that the majority will allow its interests to dominate the “public good”:
When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.
Madison wondered how the effects of factions might be limited:
Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.
Madison wrote more fully about the problems with the self-interest of factions in an essay written on the eve of the Constitutional Convention in 1787, Vices of the Political System of the United States. Madison asked what would restrain a majority “from unjust violations of the rights and interests of the minority, or of individuals?” Well, only three things and he found none of them very powerful:
1. a prudent regard to their own good as involved in the general and permanent good of the Community. This consideration, although of decisive weight in itself, is found by experience to be too often unheeded. It is too often forgotten, by nations as well as by individuals that honesty is the best policy. 2dly. respect for character. However strong this motive may be in individuals, it is considered as very insufficient to restrain them from injustice. In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame. Besides, as it has reference to public opinion, which within a particular Society, is the opinion of the majority, the standard is fixed by those whose conduct is to be measured by it. The public opinion without the Society, will be little respected by the people at large of any Country. Individuals of extended views, and of national pride, may bring the public proceedings to this standard, but the example will never be followed by the multitude. Is it to be imagined that an ordinary citizen or even an assemblyman of R. Island in estimating the policy of paper money, ever considered or cared in what light the measure would be viewed in France or Holland; or even in Massts or Connect.? It was a sufficient temptation to both that it was for their interest: it was a sufficient sanction to the latter that it was popular in the State; to the former that it was so in the neighbourhood. 3dly. will Religion the only remaining motive be a sufficient restraint? It is not pretended to be such on men individually considered. Will its effect be greater on them considered in an aggregate view? quite the reverse. The conduct of every popular assembly acting on oath, the strongest of religious Ties, proves that individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets.
Obviously Madison is talking about legislatures rather than courts, but Bell and Madison are running on closely parallel tracks. They both emphasize the role of self-interest (or group interest) in politics. What interests me here is that Bell’s thesis has a distinguished parentage. But also I think it’s important to think about ways that the Constitution–that Madison designed–regulates the expression of self-interest. I’m not as pessimistic as Bell and Madison, though that likely just means that I’m wrong!
The second thing I want to talk about is Bell as a meta-historian -- as someone who wrote big picture history. He wrote about things like the relationship of slavery to the American Revolution and to freedom. Here I want to talk about another extremely unexpected connection. First, though, something about Edmund Morgan's 1975 book American Slavery -- American Freedom. In that he looked to colonial Virginia and the seeming paradox that the American Revolutionaries there owned a lot of human beings. How, Morgan asked, could the slaveholders also be the people who so boldly sought independence? Morgan's answer seemed rather abstract to me at the time I first read that book as an undergraduate student back around 1985: that the Revolutionaries' experience with slavery taught them just how bad slavery was.
There's a long lineage to Morgan's question -- Edmund Burke remarked on the southern colonies' emphasis on liberty in his speech on conciliation with the colonies in 1775. He contrasted sentiments about freedom in slave societies with sentiments of freedom in societies where there was widely diffused freedom. And Burke explained the southern colonies' preference for freedom because freedom was something associated with nobility:
It is that in Virginia and the Carolinas, they have a vast multitude of slaves. Where this is the case in any part of the world, those who are free, are by far the most proud and jealous of their freedom. Freedom is to them not only an enjoyment, but a hind of rank and privilege. Not seeing there, that freedom, as in countries where it is a common blessing, and as broad and general as the air, may be united with much abject toil, with great misery, with all the exterior of servitude, liberty looks, amongst them, like something that is more noble and liberal.
Burke concluded that "the haughtiness of domination combines with the spirit of freedom, fortifies it, and renders it invincible." And at other times in American history -- particularly in the years leading into Civil War -- others have spoken about the odd allignment of slavery and freedom. And, in fact, proslavery theorists in the 1830s and 1840s justified slavery because it helped promote the idea of freedom among white people. And some proslavery writers invoked Burke's speech as evidence of the positive effects of slavery. Thus, William and Mary professor Bevereley Tucker lectured to his students about the ways that slavery gave a rough equality to white people and how it promoted the idea of freedom among them.
Now, to bring this back to Professor Bell.... Bell, like Morgan, interprets the origins of Americans’ respect for freedom in their experience with slavery. Slavery unified the interest of white people and thus – though they might have differing interests based on class – they had a unified interest based on race. It was slavery that created the American idea of freedom – and that sustain the Republic economically and ideologically.
There is a great deal to be said about Bell as a meta-historian, as a person whose mind swept across the centuries and revealed important truths in political theory and history. I hope we remember that as one of his many legacies.