S3 E1: What Happened to the ‘Promised Land’?

Harvard Law School professor Randall Kennedy discusses past and present visions for a “promised land” on race, and what law can do to shape it.

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Show Notes: What Happened to the ‘Promised Land’?

Randall Kennedy

Randall Kennedy is Michael R. Klein Professor at Harvard Law School, where he teaches courses on contracts, criminal law and the regulation of race relations. He served as a law clerk for Judge J. Skelly Wright of the U.S. Court of Appeals and for Justice Thurgood Marshall of the U.S. Supreme Court. He is a member of the bar of the District of Columbia and the Supreme Court of the United States. Awarded the 1998 Robert F. Kennedy Book Award for Race, Crime, and the Law, Kennedy writes for a wide range of scholarly and general interest publications. His other books are “For Discrimination: Race, Affirmative Action, and the Law” (2013), “The Persistence of the Color Line: Racial Politics and the Obama Presidency” (2011), “Sellout: The Politics of Racial Betrayal” (2008), “Interracial Intimacies: Sex, Marriage, Identity, and Adoption” (2003), and “Nigger: The Strange Career of a Troublesome Word” (2002). A member of the American Law Institute, the American Academy of Arts and Sciences, and the American Philosophical Association, Kennedy is also a trustee emeritus of Princeton University.

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Risa Goluboff: If 2020 has shown us anything, it’s that we are a nation divided …

Protestors: Justice! … When do we want it?! … Now!

Leslie Kendrick: The increasingly urgent calls for criminal justice reform and defunding the police, are met with “back the blue” protests and calls for law & order …

Protestor: Back the blue!

Protestor: What is a blue life? They can go home and take them suits off. I can't take this black off.

Risa Goluboff: Black Lives Matter activists demanding to be heard, are facing down white supremacist groups claiming “all lives matter” …

Protestor: I don’t think it’s right for me to be called a Nazi for saying that my life matters, his life matters, his life matters.

Leslie Kendrick: If nothing else, this past year has shown us how far we are from the ‘perfect union’ envisioned in our Constitution …

Protestors: Shame! Shame! Shame!

Risa Goluboff: It raises the question: what would an equitable society look like? Or to put it another way: what is the American version of the ‘promised land’ each of us is yearning for?

Leslie Kendrick: And can the law help us get there?

Congressmen: USA! USA! USA!

Risa Goluboff: Welcome back to Common Law and the start of our third season, I'm Risa Goluboff, the Dean of the University of Virginia School of Law.

Leslie Kendrick: And I'm Leslie Kendrick, the Vice Dean.

Risa Goluboff: Leslie, I'm really excited to get this season underway. And today we’re talking about racial justice, but we have so much to talk about in the realm of law and equity. We’ll be talking about education, criminal justice, family, economics and more. And we have just an amazing group of faculty from law schools across the nation who are on board to help us have these conversations. So for today's episode, we have a giant in the field of race and the law who will help us set the stage for the whole season.

Leslie Kendrick: Professor Randall Kennedy of Harvard law school has centered his work on the intersection of racial conflict and legal institutions in American life. He's the author of half a dozen books, including “Race, Crime and the Law” and “The Persistence of the Color Line: Racial Politics and the Obama Presidency.”

Risa Goluboff: Welcome to Common Law, Randy.

Randall Kennedy: Thank you.

Risa Goluboff: When Leslie and I were talking about how to start this season, we both remembered the National Faculty Workshop that you had done this summer at UVA where you talked about your essay on visions of racial promised lands. And the way you talk about the visions, and the visions you open up, they seem to us the perfect way to start our season and really open up our aperture as we start thinking about law and equity in a lot of different contexts this year. That reference to racial promised lands is from a speech given by Martin Luther King, Jr. on the last night of his life. So let’s take a listen to that first.

Martin Luther King, Jr.: Like anybody I would like to live a long life, longevity has its place. But I’m not concerned about that now. I just want to do God’s will. And he has allowed me to go up to the mountain and I’ve looked over and I’ve seen the promised land. I may not get there with you, but I want you to know tonight that we as a people will get to the promised land.

Risa Goluboff: So tell us, Randy, what is the promised land for King? Where does he think we need to get when it comes to race in America?

Randall Kennedy: Well, Martin Luther King Junior is an interesting figure in this because he was torn. “I’ve seen the promised land.” But he didn't tell us much about the promised land. And prior to that speech, he had made other speeches in which his view of America had darkened. He had become more skeptical of America and American possibilities.

Risa Goluboff: On the other hand, Martin Luther King, Junior was also the leading proponent of what you call “the optimistic tradition” in the 20th century.

Randall Kennedy: That’s right!

Risa Goluboff: Anyone who’s heard his iconic “I Have a Dream” speech from 1963 can detect that optimism.

Martin Luther King, Jr.: I have a dream that one day this nation will rise up, live out the true meaning of its creed: we hold these truths to be self-evident, that all men are created equal.

Randall Kennedy: He spoke of his feeling that racial justice was possible in America.

Martin Luther King, Jr.: I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. I have a dream …

Leslie Kendrick: One thing that I find fascinating is that your title is "Racial Promised Lands?,” plural, and then question mark. And you're opening up this entire vista of potential racial promised lands, including some that I would not have thought of as a form of racial promised land. I wonder if you could talk to us a little bit about some of the visions that you enumerate.

Randall Kennedy: You know, there's certain African-Americans who people focus on. I certainly have. Frederick Douglas, Martin Luther King Jr., you know, Barack Obama …

Risa Goluboff: Thurgood Marshall.

Randall Kennedy: Thurgood Marshall! The great Thurgood Marshall! Thank you very much. Mr. Civil Rights himself. And typically speaking, we talk about a rather truncated spectrum of ideas. So for instance, in race relations law classes and legal academia, we don't say a whole lot about white supremacist promised lands. We'll mention, you know, John C. Calhoun maybe, you know, briefly we'll mention, you know, a George Wallace briefly, but we don't really take them very seriously. We don't, we don't read their speeches.

George Wallace: In the name of the greatest people that have ever trod this earth, I draw the line in the dust …

Randall Kennedy: I talk about George Wallace, 1963, and he says …

George Wallace: … and I say segregation now, segregation tomorrow, and segregation forever.

Randall Kennedy: Segregation forever. The ideas animating white supremacy, very important ideas.

White supremacists: White lives matter! White lives matter!

Risa Goluboff: As we know so well here in Charlottesville from what happened in the summer of 2017, white supremacy is something that is very much still alive in the United States today and it’s been something that’s always been a part of this nation, even though it was born in democracy.

Randall Kennedy: I mean, the United States of America has been, and to a large degree still is a pigmentocracy. So if you're trying to get a grasp of race relations and race relations law, it seems to me that you have to take on board people who were outwardly, openly unapologetically, proudly white supremacist. But what about Marcus Garvey?

Marcus Garvey: Can we do it?

Audience: Yes!

Randall Kennedy: … who was a Black nationalist who basically said to African-Americans listen, the United States of America is a white man's country. That's not going to change.

Risa Goluboff: Right! Marcus Garvey said that Black Americans should basically create their own government, or leave the country altogether.

Marcus Garvey: America under George Washington did it. Africa with 400 million Black people can do it. If you can not do it, if you are not prepared to do it, then you will die!

Randall Kennedy: What about the nation of Islam under the honorable Elijah Muhammad? I mean, you know, he thought that it was a delusion to think that Black people would ever be viewed as truly equal citizens of the United States.

Elijah Muhammad: We don’t want nothing but the freedom to get somewhere to ourselves and own some of this earth that we can call our own.

Risa Goluboff: And in 1966, there’s Stokely Carmichael, right? He gives a speech, which he later turns into the book Black Power. And in that speech, he basically says racial integration is a delusion.

Stokely Carmichael: This country has been feeding us a thalidomide drug of integration and that some negroes have been walking down a dream street talking about sitting next to white people and that that does not begin to solve the problem.

Randall Kennedy: And in fact, he says that integration is white supremacist in what he views as its assumption that things that are white are good and Black people ought to try to essentially, you know, become like white people.

Stokely Carmichael: We were never fighting for the right to integrate. We were fighting against white supremacy.

Randall Kennedy: These people too, warrant attention. There have been many people who have followed them. Those ideas are still very much part of our cultural landscape. So Black Power is an important “promised” land for some people.

Leslie Kendrick: In talking about various promised lands, you talk about the contemporary moment, arguments and debates about prison abolition, defunding the police, that these are also visions of promised land. What are your views on that?

Randall Kennedy: Well, in the past couple of years, there's really been a remarkable flowering of what I would call “utopian thinking.” I like the impulse actually of utopian thinking to some extent, because, well, you know what? I say that, and to tell you the truth, I'm so conflicted! Because there’s, there's one aspect of utopian thinking I really like is they're asking, “what do we want?” And I really think that that is important. And I don't think that actually we do that enough.

Risa Goluboff: That strikes me as right. You know, a lot of what we think about when we talk about race relations law is what we DON’T want, what the constitution prohibits, what you’re now allowed to do.

Randall Kennedy: That’s right. You know, we don't want slavery, we don't want segregation. We are in favor of ANTI-discrimination. We're in favor of ANTI-subordination. All of that is anti. All of that is negative. We go into classes and we think about what will courts allow? We think about the 13th, 14th, and 15th amendments as if that was all that was possible. And utopian thinkers, forget all that! If you could wave a magic wand, what would you want? And I think that's good.

Leslie Kendrick: Your article brought out a nice symmetry between that and Stokely Carmichael's piece, What We Want, which is …

Randall Kennedy: That's right!

Leslie Kendrick: ... the same type of affirmative vision to say, I don't want to focus on the anti, I want to focus on what is the affirmative vision here, this is what we want. And there's something very compelling about that.

Randall Kennedy: There IS something very compelling about it. And thinking about it has made me go back to various speeches, cases, laws, and made me think about this. So for instance, a speech that I've been thinking about lately is the speech that John F. Kennedy gave. And in this speech, he's clearly talking to white people. There's no two ways about it. He's talking to white people.

John F. Kennedy: If an American, because his skin is dark, cannot eat lunch in a restaurant open to the public, if he cannot send his children to the best public school available …

Randall Kennedy: He says, when you look at what Black people are doing, when you look at them dissenting, when you look at them protesting, and when you try to assess what they're doing, ask yourself the following question:

John F. Kennedy: Then who among us would be content to have the color of his skin changed and stand in his place? Who among us would then be content with the counsels of patience and delay?

Randall Kennedy: If you were in their shoes, what would you want, how would you want the United States structured? It seems to me that that idea of reciprocity — that’s on my mind now. And I think it's partly on my mind because of the prodding of the folks who have been utopian minded.

Leslie Kendrick: I'm curious. You mentioned Thurgood Marshall earlier, and you clerked for Justice Marshall and of course one important strain of his legal work and his legal legacy is integration, integrationist arguments that he was making and prevailing in. And yet there is this concern that integration can lead to race blindness of a kind that sort of reinforces white supremacy, or does not allow people to see or to adopt a more kind of anti-subordination framework. So I wonder what you learned from him, and if you think there are limitations in the promised land that he was working toward.

Randall Kennedy: I clerked for Thurgood Marshall in the 1983 Supreme Court term. And late in the term, there was a death penalty case. And he was on the losing end. He had just issued the dissent. And I remember saying to Justice Marshall, Justice Marshall let me ask you this: you're losing a lot of the cases about which you're the most concerned that you know, that, that really grab your passions the most. Do you get discouraged? I mean, you're losing, you know, most of them to tell you the truth. Are you discouraged? He said, no, I'm not discouraged.

Randall Kennedy: He said, you got to remember this: for most of my time as a practicing attorney, my lead case was Plessy versus Ferguson. That was my go-to case because Plessy versus Ferguson set forth separate but EQUAL. And he said, I tried to ring as much equality out of separate but equal as I possibly could. He said, we're far away from Plessy versus Ferguson now. So no. I’ve seen change in my life. I've seen change in my life. I think we can get more change through intelligent, persistent effort. That was Thurgood Marshall and that's why I admire him so.

Risa Goluboff: I wish I had had the privilege of knowing him. I know him only as a historical figure. So that story makes me wonder what role the law plays in these various visions of the promised land. Obviously for legal liberals, for folks like Justice Marshall, the law can be a tool of progress. But I think for many of the other visions, the law is really a tool of oppression. Or maybe it's both, I don't know, but so I'm curious how you think about that and where does the law fit into these visions?

Randall Kennedy: Well, the law is very important. The law sets the boundaries of legitimacy. In my classes, I struggle with this because there are many students who’d say, well, you know, what does it matter? What does Brown versus Board of Education matter if you have lots of school systems in which there's still racially identifiable schools? You have the white schools over here and you have the Black schools over here and you have the Latino schools over here. And one of the things I say back to them is, oh, it matters. It matters even when the law is being violated. And let me give you an example. Early 1960s.

Reporter: The University of Mississippi …

Randall Kennedy: Meredith versus Fair.

Reporter: It’s a hundred years since Lincoln freed the slaves, and a Black man is trying to enroll.

Randall Kennedy: James Meredith applies to the university of Mississippi, Ole Miss.

Reporter: When Air Force veteran James Meredith tries to register, the police lines are drawn, U.S. Marshalls blocked.

Randall Kennedy: If he’d applied 15 years earlier, Ole Miss would have told James Meredith, “you are not white, so sorry, we’re going to exclude you.” But, Brown versus Board of Education is decided.

Reporter: Ruling in five cases in which five negro children sought the right to go to the same schools as white children, the court said: separate educational facilities are inherently unequal.

Randall Kennedy: Now, what do the officials at the University of Mississippi say? They make up all sorts of cockamamie, ridiculous lies to exclude James Meredith. And the court system catches up with them. The court system says admit him, and he breaks the color barrier.

Reporter: And James Meredith becomes a duly registered student at the University of Mississippi.

Randall Kennedy: The boundaries of legitimacy have changed. That made a difference for James Meredith. That has made a difference for hundreds of thousands of people after him. So I think that the question of the law is very important because again, the law sets the boundaries of legitimacy.

Risa Goluboff: If I remember correctly, President Kennedy addressed that issue and he did it in a way that I think is pretty prescient today.

John F. Kennedy: Americans are free, in short, to disagree with the law, but not to disobey it. For any government of laws and not of man, no man, however prominent or powerful, and no mob, however unruly or boisterous, is entitled to defy a court of law.

Randall Kennedy: In America, there is a struggle. The law has been on the side of oppression — that's true. There’s no two ways about that. On the other hand, the law has also been on the side of liberation. And that's why I tell law students they have a strategic role and an important role to play in all of this.

Risa Goluboff: So I'm curious … when you talk about this new moment and the folks you're talking about now and their utopianism -- you know, defunding the police, and prison abolition, rather than using language like “reform,” do you put them as optimists or pessimists? Because I sense from them that their urgency is in part about pessimism that we haven't actually moved as far as, say, Thurgood Marshall had thought, or as far as Randy Kennedy might think, and that it's harder to make progress than anyone might've thought before. And so on the one hand, I could see this as a pessimism: we haven't come nearly as far, maybe we can never get there. And on the other hand, utopian suggests we have a place we want to get to, and we see it out there …

Randall Kennedy: Yeah.

Risa Goluboff: … and we're heading toward it.

Randall Kennedy: I think you make a very interesting point. I think it's sometimes hard to tease out. I mean, some of the people that I have in mind talk about revolution and they suggest that racial equality is impossible under present circumstances under the present regime. Anti-discrimination law, and in fact, even anti-subordination law, isn't going to cut it. We're not going to get there if we just use the tools that one hears about in our Con Law classes. So in, in that sense, they are pessimistic. On the other hand, they're out in the streets …

Protesters: Hey hey hey ho, these racists cops have got to go!

Randall Kennedy: … they're organizing …

Protesters: Black lives matter! Black lives matter!

Randall Kennedy: … they're obviously putting a lot of energy into changing things …

Protesters: No justice, no peace!

Randall Kennedy: And that suggests that they believe that things can be changed. And so, in another sense, they are optimistic. I mean, so it's a funny stew.

Protesters: No justice, no peace!

Randall Kennedy: I suppose that one reason why that way of structuring ideas about race, the optimism/pessimism is perhaps so much in my mind is partly autobiographical. My father, whom I revere, was a thoroughgoing pessimist. My father viewed the United States of America as a white man's country. He did not think that Black Americans would ever be truly welcomed in the United States. And I grew up hearing that view. Now he's a wonderful man. And so he left room open for disagreement and I eagerly seized that room. And for most of my life, I have been an optimist.

Risa Goluboff: So that seems to be a tease Randy. You say you’ve been an optimist for most of your life, that leads me to wonder, an optimism about what? I mean, after you’ve done all this researching and thinking about these various iterations of the promised land for your essay and now for your book, have you come to your own conclusion about what the promised land looks like?

Randall Kennedy: I began this essay feeling a little bit ashamed that I didn't have more of a blueprint to offer. But now that I've done this work, I'm thinking, well, maybe it's not all together so bad that we don't as a nation have a blueprint. Maybe it's good that we have a loose structure. It allows for a tremendous amount of pluralism. Yes, it allows for some things that are quite awful. It allows, for instance, for you to have organizations that are expressly white supremacist. At the same time, our system allows for the counter. At the end of the day, I suggest that maybe what we have has a certain virtue to it. And I … I put down my pen at that point. I feel a little bit ill at ease because there's a part of me that's thinking, am I just being complacent? Have I just figured out a, you know, a fancy way of being accommodationist? There is that fear in my mind. On the other hand, you know, it seems to me that there, there is a good caution that one should have about trying to be too ambitious and trying to be too definitive. So I leave it a bit up in the air.

Leslie Kendrick: Racial Promised Lands with an S because there's something good about it being pluralistic.

Randall Kennedy: Yeah. There's one other aspect of that title, though. It has a question mark at the end. That question mark … will we get there? Can we get there? It's, you know, it's, it's, it's disturbing to have to ask the question, but we do have to ask the question. And, you know, we are speaking in November 2020, and I would have to say to you that, um, this year has been a very taxing, very disturbing year for me. I think I'm still in the optimistic camp, but I'm a chastened optimist. I thought we had progressed more on the racial front than we have. I was mistaken.

Leslie Kendrick: So one thing that your article raises is this idea of affirmative visions and promised lands, and there's a particular line in it that I just want to say is going to stick with me. So, one thing that you write is: "much is written about what we repudiate, much less is written about what we desire.” And that's an important thought to carry with us going forward. And it's been really, really informative and interesting to talk with you more about the affirmative visions in your paper. So thank you.

Randall Kennedy: I really appreciate it. I've enjoyed the conversation.

Risa Goluboff: Thank you so much for talking with us, Randy.

Randall Kennedy: Thank you so much.

Risa Goluboff: This has been terrific.

Randall Kennedy: Be well. Bye bye.

Leslie Kendrick: That was Professor Randall Kennedy of Harvard Law School. The essay we talked about — Racial Promised Lands? — will be the final chapter in his next book, available in the fall, titled “Say It Loud . . . And Other Essays on Race, Law, History and Culture.” Well, Risa, that was a great first interview for this new season. That was just really fascinating.

Risa Goluboff: I totally agree. And I, I have so many thoughts, you know when we're thinking about our riff and I have too many thoughts to nail down but in thinking about the promised land, or the promised lands with a question mark, I want to really talk about what role law plays. One thing that is so striking to me we talked with Randy about is law liberatory or oppressive, but I think that for the abolitionists and for the Black Lives Matter movement in this moment, law's a little bit irrelevant. Law has kind of failed and what they're trying to do exists in a large part outside of law, going directly to the source of institutions, of individuals, of corporations and not using the law as a mediating institution to insist upon equity or equality in a particular realm, but to go straight to the source, and kind of marginalize law, and certainly litigation at the very least.

Leslie Kendrick: That’s really interesting and I have a feeling we’ll hear a lot of different views about that in a lot of different contexts over the rest of the season.

Risa Goluboff: Alright, should we talk about our season?

Leslie Kendrick: Yes! Let’s talk about our new season.

Risa Goluboff: So one of things I'm really excited about is our title is kind of a double meaning: law and equity. And it refers back to a time in Anglo-American legal history when we actually had two different systems: the system of law and the system of equity, and when a legal remedy was inadequate, there were a whole other set of remedies and procedures that were the equitable doctrines that were separate from the legal ones. So legal ones were more rigid, they were more rule like; equitable doctrines enabled for a greater degree of discretion on the part of the court. So once upon a time, these were literally two different systems that one had to choose, as one was thinking about what kind of case they were going to bring.

Leslie Kendrick: And you know, a kind of troubling implication of the old law and equity distinction was that equity had to exist independently because the law wasn't always equitable. And, you know, something that I think we're going to explore through the course of the season is law's relationship to equity, to racial equity, to economic equity, to gender equity.

Risa Goluboff: I bet there are, you know, at least some listeners who think, well, why equity, right? Why is that the word you chose? And clearly the double meaning is part of why we chose that. But it is also really notable, I think, that right now, the conversation is really asking questions that are about the meaning of equality and the meaning of equity. And this goes to big, deep, theoretical questions about what does equality mean? And does equality mean, you know, treating likes alike? Sometimes equality seems to suggest treating unlikes alike, and I think that's where equity comes in, is to say that when people are differently situated, treating them alike is actually to do a disservice and to render an injustice. And so we need to be thinking about the circumstances under which people don't have access to the same resources, don't have access to the same opportunities and equity is the way people are increasingly talking about what is required in order to do justice in those situations.

Leslie Kendrick: Actually, you know, Randall kind of brought up this distinction between law and equity and recognized that the law itself has some limits. And I do think that's something that we'll probably talk about, you know, how does law relate to equity? And it's not always that law facilitates equity. Sometimes they stand in a little bit of tension with each other.

Risa Goluboff: It'll be interesting to see as we go through this season to what extent has the law succeeded in marrying both law and equity together.

Leslie Kendrick: So, Risa, one last thing. You said offline that you really want to make a point to ask each of our guests this season what THEY think about the transition from equality to equity.

Risa Goluboff: Yes! In fact we asked Randall Kennedy that question, and here’s what he said about equity, versus equality - which he calls egalitarianism.

Randall Kennedy: Egalitarianism has a lot good about it. On the other hand, you can have a sort of egalitarianism that can become actually doctrinaire, that can become a bit encrusted. When you think about equity, it's malleable, it's attentive to circumstances. It's not rigid. And so, frankly, I'm drawn to the idea of equity. I like it.

Risa Goluboff: I think that’s a perfect note to end on.

Leslie Kendrick: Me too. That wraps up this episode of Common Law. We hope you’ll join us next time, and throughout the season, for more explorations of law and equity and how it shapes our lives.

Risa Goluboff: If you want to find out more about Randall Kennedy’s work on race in America and much more, visit our website, Common Law Podcast Dot Com. You’ll also find all our previous episodes, links to our Twitter feed and more.

Leslie Kendrick: If you enjoy the podcast, we’d love it if you’d leave a review on Apple Podcasts, Stitcher — or wherever you listen to the show.

Risa Goluboff: We’ll be back in a couple of weeks with University of Virginia Law professor Deborah Hellman, an expert on discrimination theory. She has recently turned her attention to the algorithms that increasingly dictate our decisions.

Deborah Hellman: And what the algorithm is doing is it's just carrying that bias forward sort of bias in, bias out. It's just automating the bias.

Leslie Kendrick: We can’t wait to share that with you. I’m Leslie Kendrick.

Risa Goluboff: And I’m Risa Goluboff. See you next time!

CREDITS: Common Law is a production of the University of Virginia School of Law, and is produced by Emily Richardson-Lorente and Mary Wood. Archival audio from this episode came from the Lexington Herald Leader, WFLA News Channel 8, ABC 7 Chicago, the Daily Texan, NBC News, Euronews, Bangor Daily News, and the Independent.