Belmont Club

Caging the Gyro

One of the central questions in the novel, The Great Gatsby is whether it is ever possible to fix the past. To make it all come out the way it should have. Nick and Gatsby were having a conversation about whether Daisy liked the party he threw. Gatsby wanted to start over again.

He wanted nothing less of Daisy than that she should go to Tom and say: “I never loved you.” After she had obliterated four years with that sentence they could decide upon the more practical measures to be taken. One of them was that, after she was free, they were to go back to Louisville and be married from her house — just as if it were five years ago.

“And she doesn’t understand,” he said. “She used to be able to understand. We’d sit for hours ——”

He broke off and began to walk up and down a desolate path of fruit rinds and discarded favors and crushed flowers.

“I wouldn’t ask too much of her,” I ventured. “You can’t repeat the past.”

“Can’t repeat the past?” he cried incredulously. “Why of course you can!”

Nations sometimes want the same thing as Gatsby. To make the iniquities of history go away; to make up for slavery or dropping the Atomic Bomb on far away peoples a long time ago. And in so doing they unconsciously perpetrate new ones. Ilya Somin at the Volokh Conspiracy examines an interesting brief brought by Asian-Americans in Fisher vs Texas involving the University of Texas. “In the brief, four Asian-American organizations call on the justices to bar all race-conscious admissions decisions, arguing that race-neutral policies are the only way for Asian-American applicants to get a fair shake.”

Somin seems to argue that it alright to use public policy to right wrongs; that it is acceptable to pursue the ends of “compensatory justice” but not some abstract goal like “diversity”. He writes:

To avoid misunderstanding, I should reiterate that I have some sympathy for the compensatory justice rationale for affirmative action, and do not believe that such policies are categorically unconstitutional. I also have significant reservations about the Fisher case in particular. My general position is the exact opposite of current Supreme Court precedent, which holds that racial preferences can be used to promote “diversity” but not compensatory justice for minority groups that have been the victims of massive “societal” discrimination.

Let us grant the premise for the sake of argument: we want compensatory justice. But it still raises one logically obvious problem. How do you know when the compensatory justice process has returned things to “normal” and thereby know when to stop? What is normal. Unless some reference exists, like an artificial horizon in an airplane, then there is no objective way to tell when the thing is flying constantly above the earth.

The problem with compensatory justice is that someone must always pay for the compensation. That gives rise to other obligations. Unless there are identifiable ways to determine when the accounts are squared, then it never stops. There is no reason in principle why future generations of Asian-Americans can’t sue to compensate them for all the “stolen diplomas” or all the “missing careers” caused by affirmative action to compensate Latinos or African-Americans.

“It went too far. They were overcompensated. We paid surplus reparations.”

And should their demands for re-compensation prosper, what prevents African Americans and Latinos in turn from embarking on a new round of affirmative action to fix the consequences of the fix that was caused by the original fix? At what point is the government relieved from the duty to apply compensatory justice by observing that the ends of compensation have been reached?

Simply doing nothing, as the Asian-American petition suggests, does not help with the central question of determining the artificial horizon. When “four Asian-American organizations call on the justices to bar all race-conscious admissions decisions” the result will almost certainly be that these “race-neutral policies” will net Asians more seats at universities than they otherwise would. And here we go again.

There is no use in pretending the problem can be settled scientifically or “fairly”. The  question of when normal has been reached it seems, is ultimately a political one.  It’s over when the body politic says the ends of compensatory justice have been served.  But Somin partially identifies at least one obstacle to reaching a normal state by linking to his colleague David Bernstein.

The obstacle to ever reaching normal is the “ethnic spoils system”.

Bernstein uses the Elizabeth Warren incident, in which a white person identifies as a “woman of color” to illustrate the pernicious effects of an ethnic spoils system. An ethnic spoils system is not operated in order to attain “compensatory justice” but to create opportunities for gigs; to a permanent system of privileges for one group over another.

That’s the whole point of an ethnic spoils system. Not to make things fair, but to get mine.

Bernstein shows that politics in fact drives “affirmative action”. Although the historical evil of slavery is often cited as the reason for compensatory justice, in Texas, where Hispanics are in the majority, they then become the designated victim group.

Affirmative action is generally justified by reference to the African American experience (a justification I have some sympathy with), but if you are running a university in a state like Texas, where Hispanics are a huge political force (and 37% of the population), you need to throw them into the mix as well for political reasons (largely at the expense of Asian Americans, who are a much smaller percentage of the population). Native Americans, however, as a tiny percentage of the electorate, can be safely ignored.

According to this reasoning, the four Asian-American groups should forget filing briefs. Instead they should simply embark on a crash program of population increase, by whatever means, after which they can fix the problem by simply ramming their own version of affirmative action through the legislature by overwhelming vote. Then they can get the goodies. After all, if Elizabeth Warren can successfully claim the compensatory justice as a native American, then any ethnic group can concoct whatever stories it likes after the fact, just for appearances.

What neither Berstein nor Somin explicitly point out, yet what is most crucial, is that an ethnic spoils system, unlike the flight controls of a well-designed airplane, has no natural neutral.  It’s a nonstop card game. Any society run along those lines becomes a zero sum game and in it, the very notion of compensatory justice becomes anachronistic on its face. What meaning could compensatory justice possibly have in a society designed along ethnic spoils? The concept itself vanishes along with such other notions as “equality”, “merit” or “fairness”.

That’s not to say such a society can’t work.  Lebanon, for example, is giving it a try.  You could argue that the Ottoman Empire long operated according to this method. You were a Turk, an Armenian, a Greek, a Kurd, or a Jew … but there was never an equivalent to concept of American.  The Ottoman Empire had its merits, but it was never going to be America. At least not America as conceived.  But if you can’t always get what you want, if you try sometimes, you can get what you need.

Of course we can change the past.

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