The State of Black Progress: Confronting Government and Judicial Obstacles

The State

OF

Black Progress

Introduction by Star Parker

© 2024 by Star Parker and Marty Dannenfelser; the individual chapters, the individual authors

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FIRST AMERICAN EDITION

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA IS AVAILABLE

Information for this title can be found at the Library of Congress website under the following ISBN 978-1-64177-341-6 and LCCN 2023058714.

Edited by Star Parker and Marty Dannenfelser

CONTENTS

Introduction by Star Parker

1 Counter-Reconstruction: A Lingering Injustice

W. B. Allen

2 Bread into Stones

Janice Rogers Brown

3 The Dignity of Private

vs. Public Insurance

Grace-Marie Turner

4 The State of Black Health Care in America

Sally C. Pipes

5 How Brown v. Board of Education Erased a Beacon of Black Excellence

Ian V. Rowe

6 K–12 Education: The Imperative of Empowering Parents

Leslie Hiner

7 How Public Housing Has Harmed Black America—And Still Does

Howard Husock

8 Federal Housing Programs and Their Unintended Consequences

Edward J. Pinto

9 The Impact of Economic Stability in Marginalized Zip Codes

Craig Scheef

10 Marginalized Communities Didn’t Just Happen

Curtis Hill

11 Social Security Robs Black Americans of Their Lifetime Savings—There’s a Better Way

Stephen Moore

12 Social Security Reform and Market Alternatives

Raheem Williams

Contributors

Notes

INTRODUCTION

by Star Parker

In the 1860s, black America was promised emancipation but continued to experience subjugation. In the 1960s, black America was promised equality but was frequently exploited. Racial discrimination played a role, but misguided progressive policies and reparationist ideology played a bigger one. By failing to live up to American ideals, our nation undermined the opportunity for many black Americans to realize the American Dream.

Black Americans have now arrived at the height of their cultural prominence. In politics, entertainment, academics, and nearly every sphere of influence, black issues dominate the discussion. Yet the average black American is suffering worse than ever from the blight of poverty, physical and mental health struggles, lack of opportunity, and failing schools. Anti-American sentiment and societal resentment are at an all-time high.

The Center for Urban Renewal and Education (CURE) has partnered with scholars and luminaries who believe that what has been lost can be recovered. If our nation recognizes the history of our current predicament, embraces America’s founding principles that made her an economic powerhouse, and commits to a program of restorative fiscal, education, and social welfare policies, black Americans can overcome the struggles that most impact their communities.

The State of Black Progress details the role of government and the courts in overcoming racial discrimination, but explains how they have since become key obstacles to black progress in America. The contributing scholars address this dilemma in light of American values and the history of constitutional jurisprudence.

The book is comprehensive in scope, covering black history in our nation from America’s founding to current times. The authors address the history and current state of affairs for black Americans on education, health care, housing, community development, and private investment including Social Security reform. They explain how we got here and offer concrete policy solutions that highlight the importance of equal opportunity, personal responsibility, and limited government.

Dr. William Allen, Emeritus Professor of Political Philosophy and Dean of James Madison College at Michigan State University and former Chairman of the United States Commission on Civil Rights, details black history in America from Reconstruction to the present. Dr. Allen says policies that separate out community members, rather than integrating them (e.g., targeted admission, contracting, appointment procedures) ought to be abandoned and replaced by practices that work hand-in-glove with self-motivation to profit from a breadth of opportunity consistently offered and made highly visible.

Janice Rogers Brown, a former judge on the United States Court of Appeals for the D.C. Circuit, argues that the U.S. Supreme Court in its 1873 Slaughterhouse decision subverted the protections in the Fourteenth Amendment, turning what was meant for bread into a stone. In commenting on a later Supreme Court decision, Judge Brown said, In the Framer’s constitution, equality and liberty were two sides of the same coin—complements, not opposites.

Grace-Marie Turner, President of the Galen Institute, testifies regularly before Congress and has been instrumental in developing and promoting ideas to transfer power over health care decisions to doctors and patients through a more competitive, patient-centered health sector. Turner’s essay, The Dignity of Private vs. Public Insurance, argues that the Left has a disguised agenda and sees Medicaid as a platform upon which to build their government-run health care system.

Sally Pipes is President, CEO, and Thomas W. Smith Fellow in Health Care Policy at the Pacific Research Institute. Her essay, The State of Black Health Care in America, traces how federal welfare programs have failed black American enrollees by saddling them with subpar health care coverage and penalizing them for trying to climb the economic ladder. She offers market-based solutions that will benefit Americans of all races—black Americans in particular.

Ian Rowe is a Senior Fellow at the American Enterprise Institute (AEI), where he focuses on education and upward mobility, family formation, and adoption. He is the cofounder of Vertex Partnership Academies, a network of character-based International Baccalaureate high schools in the Bronx. With his book Agency, Mr. Rowe seeks to inspire young people of all races to build strong families and become masters of their own destiny. His essay addresses an unintended consequence of the U.S. Supreme Court’s historic Brown v. Board of Education decision—the demise of the privately funded Rosenwald schools that educated more than 700,000 black children over four decades. Mr. Rowe’s dedication to equal opportunity and strong families has led him to the forefront of a movement for rigorous, character-based education.

Leslie Hiner is Vice President of Legal Affairs for EdChoice, leading their Legal Defense & Education Center. In her essay, K–12 Education: The Imperative of Empowering Parents, Leslie explains how the COVID-19 experience has caused many parents to become painfully aware of something Frederick Douglass recognized more than 100 years ago: When children do not receive a proper education, there is no light or liberty.

Howard Husock is a Senior Fellow in Domestic Policy Studies at AEI. Mr. Husock’s essay, How Public Housing Has Harmed Black America—And Still Does, argues that public housing advocates (as far back as Eleanor Roosevelt) have ignored the possibility that government intervention has helped create the ‘problems facing inner cities’ and that steering blacks time and again into subsidized housing deepens those problems. He believes it is far better for government to do what it is meant to do: to take the steps [e.g., safe and clean streets, good schools, available parks and recreation] required to ensure that poor neighborhoods are good neighborhoods and can serve as the launching pads for upward mobility.

Edward Pinto is Senior Fellow and Director of the Housing Center at AEI. Pinto argues that after spending incalculable sums of money, after many millions of foreclosures, and after the destruction of large areas of our cities, the federal government has little positive to show for its attempts to help black households and neighborhoods. He believes there is a growing consensus that the best way to make housing more affordable is to increase supply, not to ease credit, increase government subsidies, or suppress interest rates. Pinto says even a few progressive think tanks and cities have come around to this view.

Craig Scheef cofounded Texas Security Bank in 2008 and serves as Chairman and CEO. Mr. Scheef’s essay, The Impact of Economic Stability in Marginalized Zip Codes, argues that poverty is manmade and reversing poverty is man-made, as well. Scheef says that free enterprise has proven to be the vastly superior economic system for reversing poverty and that socialism and communism have proven to be responsible for creating poverty. He suggests that each stakeholder in the free enterprise ecosystem (e.g., nuclear family, all areas of education, investors, financial institutions, entrepreneur/business owners, all levels of government) needs to know its role and responsibilities. Poverty is reversed and marginalized zip codes are stabilized when the stakeholders of the free enterprise system fly in formation, Scheef says.

Curtis Hill has served as Attorney General of the State of Indiana and as chief prosecuting attorney in Elkhart County, Indiana. In his essay, Marginalized Communities Didn’t Just Happen, Hill says, Our American values of freedom and equality can be realized through instilling conservative principles into our daily practices with our families, faith communities, and the work that we commit to in transforming our local communities.

Stephen Moore is a Senior Economist at FreedomWorks, a Distinguished Fellow at the Heritage Foundation, and a Fox News analyst. In his essay, Social Security Robs Black Americans of Their Lifetime Savings—There’s a Better Way, Moore says, Few federal programs have had a more a deleterious effect on the economic advancement and wealth accumulation opportunities of minorities in America than Social Security. He further states, Every year we wait to give workers the option of choosing an individual 401(k) type of account, the potential for building up ownership and wealth is further diminished.

Raheem Williams is a former CURE Senior Policy Analyst and a member of the Louisiana Advisory Board for the U.S. Commission on Civil Rights. His essay, Social Security Reform and Market Alternatives, argues that Social Security has arguably done nothing to reduce racial wealth inequities by forcing the limited funds that people of color have into a subpar retirement program. He says today’s Social Security status quo has not allowed low-income black workers to accumulate the savings necessary for a secure retirement or to provide their children with an equal opportunity for a more prosperous future.

The State of Black Progress highlights the interaction between public policies and community development. It aims to explore the latest scholarship into the character, shape, and tendencies of life in the United States for black Americans.

Given the right set of policies and incentives, including minimal interference by government, Americans of all races can make substantial progress. Where problems exist, and where progress is disappointing, invariably, government has been the problem, not the solution.

I

COUNTER-RECONSTRUCTION: A LINGERING INJUSTICE

W. B. Allen

The term racial equality falsely describes the human situation, inasmuch as there is no such thing as an equality of races. There is rather only one race—the human race—within which there is a moral equality of persons. The advent of Reconstruction at the end of the Civil War aimed to reinforce that central truth, a truth embedded in the realization that every human person is subject to the rigorous exactions of nature. Reconstruction began with the broad argument made by Senator Lyman Trumbull (Illinois) in favor of the Freedmen’s Bureau Bill. In defense of that legislation, he reminded that:

Before the Civil War the slave states had slave codes which denied to slaves certain legal rights which all of the free persons had. Slaves had no right to sue or be sued in court; they had no right to make or enforce contracts; they could not testify in any case in which a white person was a party; they could not obtain or own real or personal property; they did not have the same legal protection as free persons; and they were subject to punishments and offenses to which free persons were not subject. Even children, women, and aliens (with the exception of owning real estate) had these rights, and in most of the slave states free Negroes had almost all of these rights.

The rights enumerated in Trumbull’s bill were, in general, only denied to slaves. Trumbull’s theory was that the amendment abolishing slavery gave Congress the right to pass laws eliminating state laws which denied rights common to all persons except slaves, who were considered unpersons. His position was that those laws incidental to the status of a slave were badges or signs of slavery, and that in abolishing slavery Congress could abolish laws made to keep persons unemancipated. This theory becomes clearer when it is kept in mind that a person who cannot make a contract, such, for example, as a contract to work (without which he cannot get a job), who cannot buy or own property (such as food or clothing), who cannot own or lease real property (such as a home), and who cannot sue in court or otherwise obtain legal protection of his person or property, or recover his wages, must necessarily be dependent on someone else for his food, clothing, and shelter.… The only other person so dependent is an infant, who is considered in law an unemancipated minor.¹ (Emphasis added.)

The legislative process initiated with this argument carried through the Fourteenth and Fifteenth Amendments and several civil rights bills shepherded by the Republican majority in Congress. Throughout the entire process, stout resistance arose from the former Confederate states as well as from skeptical parties in the North. The resisters consisted of those who deliberately sought to preserve the subordinate status of American blacks (the freedmen in particular) and also others who were motivated by fear of racial intermixing. Throughout the process, the resisters never gave voice to an underlying theory in accord with which they sought to direct policy. But they had a clear tacit theory, a theory of Counter-Reconstruction.

Ulysses S. Grant ascended to the presidency in 1868 and took up the mantel of Reconstruction with a vigor worthy of Lincoln himself. Grant met at first with violent resistance throughout the unreconstructed South. He accomplished much in the face of that resistance to empower freed persons to assume the full status of citizenship in the United States. His accomplishments, however, proved elusive in the face of continuing resistance, and once the initial wave of the Ku Klux Klan and white supremacists was overcome, the resisters settled into patterns of civil, political, and legal subterfuge to accomplish the purposes sought through rampant violence initially. The resisters acquired the abetting support of wearied and cynical Northerners (Democrat and Republican) who wished to reintegrate the South politically without continuing to safeguard the rights of black citizens. Consequently, by the end of Grant’s second term, Reconstruction was all but entombed though discernibly dead.

What replaced Reconstruction was no longer direct and immediate violence (though very much of that would persist for another sixty years), but a deliberate attempt to construct a wardship relationship of blacks to the non-black majority, to be superintended at first by secessionists returning to political authority and, eventually, by the entire national political architecture. That wardship is what I have designated Counter-Reconstruction theory, and that is the theory of the dependent, unemancipated minor identified by Trumbull in the foregoing passage. It is reminiscent of the argument by John Stuart Mill, to the effect that peoples in their nonage could not be vested with rights of autonomy or self-government. As such, the theory goes beyond the legal terms of citizenship evinced by Trumbull and embraces a general cultural perspective that holds peoples in their nonage to be excluded from the privileges and opportunities of an advanced culture. Such theories remain present today in those forms of social science that argue concerning descendants of Africa in particular that they bear the continuing influence of non-individualist, animist cultures and are not capable of performing and achieving in individualist, rational cultures such as those spawned in Europe. The aim (and theory) of Reconstruction had been directly opposed to this theory, and it is for that reason that we now term the response to Reconstruction Counter-Reconstruction. For the latter theory proposes quite opposite terms of association for life in the community, terms in accord with which some are confined as wards of the others (hence, wards of the State).

To surface the theory of Counter-Reconstruction we must distinguish it from the practices of violent intimidation, disguised peonage, and deliberate segregation. All of those practices had racial animus at their foundations, but they were also part of a broader pattern of resistance to the goals of Reconstruction. Those broader goals are highlighted above in the passage from Trumbull’s argument—namely, real emancipation and not just freedom from slavery, understood as elevation from the condition of infantile dependence. In other words, the theory of Reconstruction was to clear the path for the formerly enslaved to emerge into full, self-respecting independence and mature citizenship (real emancipation and not just liberation). The theory of Counter-Reconstruction sought to perpetuate the status of dependent wardship, a guardian class established in permanent authority to oversee dependent cultural minors. In that respect, the Counter-Reconstruction theory aimed to create for American blacks a de facto status equivalent to the legally defined status of American Indians as dependent sovereigns (albeit without a fig-leaf pretense of sovereignty).

The theory of Counter-Reconstruction, accordingly, required the development of the infrastructure of civil polity (as opposed to terrorist intimidation) under the aegis of which the participation of American blacks in the civic and cultural life of the nation could be regulated by a guardian authority in which American blacks did not exercise a determining authority or even influence. (Note: This generalizes the denial of personal agency to individuals to the communal experience of an entire segment of society.) The first signs of that infrastructure emerged in the area of public education (the enforced segregation of public transit being an inessential dimension of the system precisely because, while it sought to exclude American blacks from valuable resources, it did not directly deprive them of means of self-advancement). In public education, on the other hand, the means were found to enforce differential standards of personal development, the point of which was to deprive American blacks of the necessary tools of self-advancement. And that system became especially meaningful when, in the guise of offering education, enforcement of Jim Crow restrictions led jurisdictions in the South especially to co-opt the indigenous educational efforts that had sprung up in the aftermath of slavery. The thousands of Rosenwald schools founded under the aegis of Booker T. Washington and Julius Rosenwald² were brought within the ambit of majority-directed public school systems, starved of resources, and developed as reservations in which American blacks were to receive an education short of emancipatory development (no Greek and Latin; no silk and satin). Under the guise of providing necessary resources, in other words, the architecture of a permanent wardship was created.

What this review means is that we have been mistaken to speak in terms of Reconstruction and Post-Reconstruction. Reconstruction failed precisely because the theory of Counter-Reconstruction prevailed. Now, more than 150 years later, the reality that shapes the state of Black America is the enduring presence of Counter-Reconstruction theory driving public policy. That is, the relationship between the larger culture and American blacks remains the relationship of guardian to ward. It has been disguised because of the intervention of benign guardianship rather than malign guardianship. It has as a result seemed to be a different system, one that has responded to legal challenges and social developments to overcome the most egregious injustices of the earlier phase of Counter-Reconstruction. But that apparent change only disguises the underlying reliance upon guardianship to govern relations. That was signaled in Brown v. Board of Education,³ when Chief Justice Warren wrote that, respecting freedmen, Education of Negroes was almost non-existent, and practically all of the race were illiterate. In proportion as that observation increasingly became the foundation of common opinion on the subject, principled discussion of civil rights (not just liberation but full emancipation) became less likely. Warren’s observation was not true in any meaningful or non-trivial sense. Nevertheless, it served to perpetuate the myth of a backward people needing help to catch up instead of the truth of a people being held back. That is the perspective—the disadvantaged group perspective—that ultimately infected all discussion of civil rights, even after the designation of so-called disadvantaged groups had been extended beyond American blacks. On that foundation, the guardian-ward relationship was cemented in public policy. A concrete example of this cultural edifice occurred once when I had a seat-mate on a commuter flight in the Midwest. He was the president of a major research university who, in the course of our conversation, referred often and glibly to our minorities. He was not conscious of the possessive denotation and meant no offense. It was merely second nature for him to think and speak so.

To understand the relevance of these observations to the current state of black America, we can revisit the fundamental meaning of civil rights as I have previously expressed it, and we begin with what all mankind would likely recognize. Thus, the dictionary definition of civil rights stands: "the rights that belong to all individuals in a nation or community touching property, marriage, and the like. In that definition the term rights may be further expanded to mean legitimate claims, following the definition of right as law—as a claim or title or interest in anything whatever that is enforceable by law."⁴ This definition applies with minimal distinction of regimes intruding and therefore without the host of recent complications in the United States that create the impression that civil rights have somewhat to do with pluralism or so-called racial equality. Previously, the generic definition was thought to exhaust the meaning of the term in the United States. Witness James Wilson’s pithy version of the early 1790s:

Under civil government, one is entitled not only to those rights which are natural; he is entitled to others which are acquired. He is entitled to the honest administration of the government in general: he is entitled, in particular, to the impartial administration of justice. Those rights may be infringed; the infringements of them are crimes.⁵

When distinguishing between natural rights and acquired rights (the latter coming to be for the sake of the former), we readily discern a fair play formula that is well captured by an ethic of non-discrimination on the part of public officers. In the context of racial tensions in the United States, the ethic of non-discrimination came to assume particularly the form of prohibiting to public officers recourse to race in the performance of their duties.

The ideal of holding race irrelevant in the administration of government in general and in the administration of justice in particular eventually spawned parallel concerns respecting gender, religion, ethnic background, age, and physical or mental handicap. Disadvantaged groups had been extended beyond American blacks. This proliferation did not fully occur, however, until after the equal opportunity standard implicit but fundamental in the ethic of non-discrimination had been challenged by an implicit equality of results standard. That challenge appeared most openly and decisively in President Lyndon Johnson’s commencement address at Howard University in 1965. In that speech, Johnson maintained that the equality of opportunity defended only the year before in the landmark 1964 Civil Rights Act was not enough. Black people in particular, he maintained, required positive efforts on their behalf in order to enable their enjoyment of the rights otherwise enjoyed by mature citizens. In this, however, Johnson reinforced the Counter-Reconstruction theory. For the idea that equality was not enough rested upon the assumption that black people could not do what people in an advanced culture had done—namely, advance by dint of their own exertions.

Those dynamics were reinforced in Bakke v. University of California⁶ by Justice Lewis F. Powell’s introduction of the diversity rationale, in which that Virginia patrician no less than the Texas redneck affirmed a continuing guardianship by the majority culture. And what appeared to be an opening chink in the underlying Counter-Reconstruction theory proved to be an illusion, when Justice Sandra Day O’Connor’s 2003 Grutter v. Bollinger opinion mused about the possibility of a looming emancipation from dependent minority status in 25 years. It was after that nod in the direction of the original goal of Reconstruction that a powerful stream of Diversity-Equity-Inclusion emerged to reinforce the claims of Counter-Reconstruction.

In light of the definition offered by James Wilson, one could properly inquire what more than an ethic of non-discrimination is needed for any individual to enjoy the honest administration of government in general and the impartial administration of justice in particular. That question would expose Johnson’s premise of equality of results and also an unannounced redefining of civil rights to include an active role on the part of government to produce and maintain an equality of result (now termed equity and founded upon positive discrimination). That is by now far more nearly the operational definition of civil rights in the United States. It entails a permanent wardship for American blacks and a permanent guardianship for the larger society.

This radically untenable and unstable relationship further requires the guardian authority to reduce ever larger segments to the same wardship status, in order to maintain its continuing authority. For the evident differences in treatment between the wards and the non-wards will unavoidably feed resentments and social pressures for reform. Only when all citizens are wards can there be any hope for stability on the theory of Counter-Reconstruction.

We have abundant evidence of these dynamics in the relevant polling of opinions and attitudes that focus on the differential estimates of the value of American citizenship on the basis of race. The Pew Research Center routinely analyzes American trends with recourse to a randomly selected panel of participants who respond to surveys. In Pew’s last published survey⁷ on Divisions in Americans’ Views of Nation’s Racial History—and How to Address it, one observes a stark divide between blacks and others along the most important dimension of analysis. By a factor of two to one black respondents "say that in order to ensure equality for all Americans regardless of their racial or ethnic backgrounds, most major U. S. institutions need to be completely rebuilt because they are fundamentally biased against some racial and ethnic groups. (Emphasis added.) That telling response is a measure of alienation from the majority culture. It would be a mistake, however, to think that it measures capacity to function in the majority culture. What it measures is an intelligent response to the manifest evidence that the majority culture propagates dependence that can only be seen as disadvantage." That necessarily means that no matter what material advances occur, the persistent cultural relationship will always convey disadvantage.

Moreover, this measure of alienation explains the phenomenon of a deficient expression of patriotism in black communities. It would be surprising if people who believed that the entire civil polity needs to be refounded were to express patriotic attachment to