We should recognize the progress we’ve made on discrimination

The welcome adoption of Juneteenth as a national holiday celebrating the end of slavery proves what should have been obvious for at least a generation — namely, that we are no longer a systemically racist nation. To the contrary, we have become a systemically anti-racist nation, albeit with far too many pockets of residual racism, particularly in certain areas of life. But our essential systems — our laws, politics, media, education, religion, corporations — have all become discernibly anti-racist, in every meaningful sense of that term.

By “systemically” racist and anti-racist I mean to describe how these important instruments of governance impact on the role of race in America today. A comparison with the not-so-distant past will make my point.

When I was born in 1938, the United States was systemically racist, sexist, homophobic, anti-Catholic, anti-Asian, anti-Hispanic and antisemitic. The bigotry came from the top down. It was an accepted part of the greater American system of governance. It was enforced, or at least tolerated, legally. It was systematic in the sense that that it was pervasive, acknowledged and accepted by our political and legal structure.

Discrimination, approved by the majority of Americans and tolerated by law, determined who could run for president, be admitted to or become the head of elite universities, immigrate, live in certain neighborhoods, be hired by many corporations and the largest law firms, be accepted in various social and athletic clubs, play major professional sports, be appointed a Supreme Court justice. There was systematic, pervasive and legally permitted discrimination in favor of white, Protestant, heterosexual men. All others were, at best, second-class citizens, with some being third- and fourth-class. 

Many of the most important benefits of our political, economic and social systems were withheld, in whole or in part, from individuals based on race, religion, ethnicity, gender, sexual orientation and other invidious factors. The discrimination against African Americans was the most systemic, since it was part of our constitutional history. But the discrimination against other groups was systemic as well.

In 1922, Harvard’s most prominent Jewish professor, Harry A. Wolfson, proclaimed that being born Jewish was comparable to being born “blind,” “deaf” or “lame.” It meant being deprived of “many social goods and advantages,” he said. He urged his Jewish students to “submit to fate,” as if they had been born hunchbacked. He also urged them not to “foolishly struggle against it” because “there are certain problems of life for which no solution is possible.” What Wolfson was telling his students was that antisemitism was systemic, unchallengeable and permanent. I can imagine an African American leader in 1922, and even later, telling his students the same thing. Both were right back then. 

In the 1920s, ’30s and even ’50s, we still had Jim Crow laws, racist immigration restrictions, and rules that permitted discrimination of all sorts. A liberal president, Franklin D. Roosevelt, ordered the detention of thousands of American citizens based exclusively on their race and national origin. We were a systematically bigoted nation, and our Constitution, born of compromise with slavery (which Martin Luther King aptly characterized as a “birth defect”), accepted this bigotry. Even after the enactment of the 13th, 14th and 15th Amendments to the Constitution, the courts refused to implement the demand for equal protection of the law until the second half of the 20th century — and then only with “deliberate speed,” which was more deliberate than speedy.

The second half of the past century, following World War II, saw major changes in law, practice and attitudes.

We have seen the end of lawful segregation as well as the election of Catholic and Black presidents and vice presidents. For generations, the Supreme Court was comprised entirely of white Protestants. Then a handful of Catholics were appointed, and a “Jewish seat” was established, but it remained a dominantly white Protestant male institution. Now it has five Catholics, three Jews, three women, one African American, one Latina and one white Protestant. Jews, women and Blacks have become presidents of many major universities. Neighborhoods can no longer be “restricted.” Corporations, law firms, businesses and most private clubs are not allowed to discriminate. All sports leagues are integrated. Many groups that were previously discriminated against have members in Congress, in state legislatures and in other elected or appointed offices. Most universities and many other institutions have race-based affirmative action programs.

We have a long way to go in eliminating the residues of bigotry from our institutions — some, such as law enforcement, more than others. But compared to 1960, it is difficult to conclude that the racism that remains in this country — and it is still considerable, especially in some areas — can be fairly categorized as “systemic.”

To the contrary, what has become systemic over the past 60 years is anti-racism. The laws have changed. Policies have changed. Practices and attitudes have changed, though not enough. We are a very different country systemically. Racism no longer has the imprimatur of law, politics, religion or the media. It comes primarily from the bottom up, rather than the top down. In 1960 and before, candidates and other leaders would proudly proclaim their racist beliefs. Today, those who still harbor such beliefs need to hide them precisely because racism is no longer systemically accepted, as it was as recently as 60 years ago.

So, no, we are not the systemically and top-down racist country we once were. We have become a systemically top-down anti-racist country with far too much bottom-up racism that we must end, especially in some important areas like law enforcement. But let’s not deny the real progress we have made as we celebrate our newest national holiday.

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump for the first Senate impeachment trial. He is author of the recent book, “Cancel Culture: The Latest Attack on Free Speech and Due Process,” and his podcast, “The Dershow,” is available on Spotify and YouTube. You will find him on Twitter @AlanDersh.