Harris' Distributive Justice vs. Lockean Individualism: Substantive Implementation

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I found Harris’ “Whiteness as Property” to be an incredibly compelling and well illustrated piece, providing both conceptual and substantive arguments–though I wish I could have read more on implementing affirmative action programming. While it is not the author’s job to provide a completely flushed-out procedure, I do wonder how affirmative action will effectively be situated into a legal system that is still white-dominated and white-benefitting. Harris produced this piece in 1993. Racism continues to persist within the United States legal systems. In a 2018 report to the United Nations, the Sentencing Project provided vast empirical evidence on racial inequities within the “colorblind” American judicial system. I’m curious as to how crucial solutions such as affirmative action can be substantively instituted into our system whereas “the levels of white resistance dictate(d) the parameters of the remedy.” (Harris 1756) 


A persistent reliance on what Harris’ calls “formal equality” under the law has left Black Americans and other marginalized communities decidedly unequal. Harris argues that law denies minority group identity when the claimant attempts to (re)affirm their rights. This, she writes, is based partly on a strict institutionalized adherence to a Lockean notion of individualism. And such an adherence is fundamentally based on whiteness’ reputation privilege: individualism is beneficial because “being regarded as white is a thing of significant value.” (Harris 1734) As such, liberal individual right protections are regarded as sufficient “formal equality” by white institutions. This “pseudo-objective posturing” by the legal system causes “the basic premise that definition from above can be fair to those below.” (Harris 1762) Supreme Court cases Bakke, Croson, and Wygant reaffirm this position. In each decision, the court found that the 14th Amendment’s Equal Protection Clause afforded special constitutional security to the white complainants. The white experience was made as “the referential base line,” in securities lawfully afforded to Americans. (Harris 1775)


If a white property-protecting society assumes that equality laws are sufficient for all, regardless of race, then corrective and distributive justice programming for minorities will always be seen as unfairly advantageous. A premise that all people are leveled in experience and opportunity thus refuses to acknowledge that encouraging “Black identity does not involve the systematic subordination of whites.” (Harris 1785) With these arguments of Harris in mind, I have two worries. I. With distributive justice, such as affirmative action methods, how can benefits be measured “in the absence of the distortion of racial oppression.”? (Harris 1784) What is the method for quantifying remedy should racism never have existed? And II. What methodology can allow these methods of justice to flourish when the system itself regards it not as justice, but as attempts to establish undue dominion? 

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