RetRIevINg RaWLs foR RacIaL justIce? ( 175 )the black population have been achieved without addressing the correction
of the huge property differences between the white and black populations?
For reparations advocates, existing property distributions are illegiti-
mate because they rest on a history of racial discrimination and its cumu-
lative intergenerational result over decades, or centuries if you go back to
slavery, which violated the BL rights of blacks. Neither Taylor nor Shelby
wish to move fully on to the terrain of non- ideal rectificatory theory, prefer-
ring instead to adapt FEO (a principle of ideal theory) to non- ideal condi-
tions.^67 But trying to make such an argument within the existing Rawlsian
framework causes considerable strain to it, not merely because of the unre-
solved issue of whether the norm of pure proceduralism was really intended
by Rawls to apply to the determination of non- ideal justice but because the
correction of BL violations would seem— by the very lexical priority rela-
tions both authors emphasize— to need to be dealt with first, even before we
get to the question of the applicability of FEO. So how can this be achieved
by employing a different and lexically subordinate principle?
Moreover, such transfers will be quite different in kind from the equal-
ization of opportunity under ideal conditions putatively already agreed
to behind the veil. Whether wealth is going to be transferred out of white
hands directly, by expropriation, or indirectly, by taxation, whites are going
to object that such transfer would violate their property rights. So apart from
the issue of fuzzy counterfactuals, a debate within “public reason” between
whites and blacks will need to take place that is not going to be the same as
the debate over the acceptance of progressive taxation for the purposes of
“keep[ing] property and wealth evenly enough shared over time” in what is
a “property- owning democracy.”^68 Rather, it will be a matter of convincing
whites that they have benefited from “unjust enrichment,” that their current
holdings are unjust, and that corrective redistribution is therefore justified
on those grounds. But that would require precisely the debate that Taylor
and Shelby, through their refusal of an explicitly rectificatory framework,
are trying to sidestep. Instead, they both rely on FEO, Taylor with nega-
tive, Shelby with positive, conclusions, but both outcomes problematically
related to the lexical priority of BL that both authors claim to be acknowl-
edging. In the final section I will point out another crucial implication of
this lexical relationship.
Non- Controversiality as a Screening Factor for “Public
Reason”The marshaling of the evidence necessary to make Shelby’s case also runs
into difficulties. We want these measures of racial justice, radical as they