( 174 ) Black Rights/White Wrongsbecause of deontological constraints “imported” across the border from
ideal theory.^63 For Taylor (following Christine Korsgaard), the three con-
straints under which non- ideal theory must operate are (a) consistency
with the “general” conception of justice (equal distribution of social val-
ues, unless unequal distribution advantages everyone, thus permitting
trade- offs); (b) the “reflect[ion of ] the priority relations of ideal theory”
in the attempt to bring about ideal conditions (seeking first the condi-
tions required for the priority of BL, then for the priority of FEO, etc.);
and (c) “consisten[cy] with the [deontological] spirit of the ideal theory,”
thereby ruling out consequentialist policies such as a moratorium on the
hiring of white males “until racial and gender parity has been achieved.”^64
The first would not be an obstacle to strong affirmative action, while for
the second, Taylor suggests, we can just stipulate that “the conditions for
the priority of [BL] have already been attained.”^65 I will follow him in this
stipulation for now but will soon argue that in actuality, the attainment of
such conditions involves complicated considerations that would require far
more extensive discussion than he provides.
For Taylor it is really the third constraint that poses the difficulty. Taylor
contends that strong affirmative action violates Rawls’s pure procedur-
alism, since we do not have the knowledge of “what the counterfactual
results of a ‘clean’ competition would look like unless we run one,” and “we
would need precisely this knowledge to carry out the requisite outcome
compensations.”^66 But such objections would apply even more strongly to
the attempt to invoke the counterfactual wealth distributions that would
have resulted from an alternate non- discriminatory timeline, one not so
profoundly marked as our own by decades of exclusion from good jobs,
promotions, bank loans, federally underwritten mortgages, home owner-
ship in decent neighborhoods, transfer payments from the state, and so
forth. If Taylor is correct that FEO would not even permit strong affirma-
tive action, it certainly would not permit the more radical redistributivist
program— the transfer of wealth— that Shelby seeks to extract from it. For
the counterfactuals here are even more indeterminate and speculative.
Yet I would claim that there is a problem more basic still, one that raises
questions about both Taylor’s and Shelby’s diagnoses and prescriptions.
Taylor says we can stipulate that “the conditions for the priority of [BL]
have already been attained” and Shelby speaks of applying FEO for redis-
tributive purposes in “a well- ordered society in which the basic liberties
[are] secure and their fair value guaranteed.” But (a question for Shelby)
how could the society be well ordered in the first place given this history of
structural white domination and its likely legacy? And (a question for both
Taylor and Shelby), insofar as the basic liberties include the right to private
property, how could the “attainment,” the “securing,” of these liberties for
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