Challenging recent trends both in historical scholarship and in
Supreme Court decisions on civil rights, J. Morgan Kousser
criticizes the Court's "postmodern equal protection" and
demonstrates that legislative and judicial history still matter for
public policy.
Offering an original interpretation of the failure of the First
Reconstruction (after the Civil War) by comparing it with the
relative success of the Second (after World War II), Kousser argues
that institutions and institutional rules--not customs, ideas,
attitudes, culture, or individual behavior--have been the primary
forces shaping American race relations throughout the country's
history. Using detailed case studies of redistricting decisions and
the tailoring of electoral laws from Los Angeles to the Deep South,
he documents how such rules were designed to discriminate against
African Americans and Latinos.
Kousser contends that far from being colorblind,
Shaw v.
Reno (1993) and subsequent "racial gerrymandering" decisions
of the Supreme Court are intensely color-conscious. Far from being
conservative, he argues, the five majority justices and their
academic supporters are unreconstructed radicals who twist history
and ignore current realities. A more balanced view of that history,
he insists, dictates a reversal of
Shaw and a return to the
promise of both Reconstructions.