( 176 ) Black Rights/White Wrongsmay seem, to be endorsed by whites and not forced on them by black
threats. So appeal to the kind of considerations acceptable to Rawlsian
“public reason” becomes crucial: factual claims and social- scientific analy-
ses about the history of white domination in the United States and the
various ways in which its legacy continues to manifest itself in the pres-
ent. In the original choice of Rawls’s two principles of justice, the choosers
behind the veil were limited to “general facts about human society.”^69 Now,
in the legislative stage of what Rawls calls “the four- stage sequence,” they
are permitted knowledge of “general facts about their society” that inform
the enactment of “just laws and policies,”^70 and it is here (on this reading
of Rawls) that the case for aggressive use of FEO would be made. But such
factual claims and social- scientific theoretical analyses are going to be sub-
ject to the Rawlsian stipulation that they fall under the category of “the
presently accepted facts of social theory,” “the methods and conclusions
of science when not controversial.”^71 And if we know anything about the
history of race in the United States we know that such matters are going to
be hugely controversial.
At every step of the way, from post- bellum Reconstruction in the
1860s– 1870s to the 1950s– 1960s period of civil rights legislation dubbed
by some the “Second Reconstruction,” whites have opposed measures of
racial progress and racial justice, a consistent zigzag pattern of advances
against “massive resistance” followed by later retreat.^72 As early as the
period immediately after emancipation, arguments were already being
made that the freedmen needed to stand on their own feet and not be cod-
dled by the state. And today, of course, “color- blindness” is the hegemonic
view among the white majority, who believe that the legacy of racism has
long since been largely overcome— and that, if anything, it is whites who
are more likely to be the victims of discrimination.^73 Divisions on race-
related matters, whether specific events or public policy, have produced
some of the largest public opinion gaps in recent decades, from the O. J.
Simpson acquittal to the Katrina “social” disaster. As Donald Kinder and
Lynn Sanders concluded years ago, in their classic Divided by Color, race
creates “divisions more notable than any other in American life”: “Political
differences such as these are simply without peer: differences by class
or gender or religion or any other social characteristic are diminutive by
comparison.”^74
The point is, then, that were Shelby to accede to the Rawlsian stipulation
to leave controversy at the door, he would immediately be depriving himself of
the weapons he needs to win his case. The data about the white/ black wealth
gap, great differentials in incarceration rates, continuing employment dis-
crimination, and so on, can all— even when not challenged outright— be
given alternative explanations than the ones Shelby (and I) would favor.
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