This book is either irrefutable evidence against a multicultural society or the last-ditch plea of someone who is very concerned with the problems posed by multiculturalism but: who wants to make a go of it nevertheless. It may well be both.

Lani Guinier’s essays ask how far democracy must go to accommodate itself to groups that perceive themselves as a permanent minority. Consequently, the ghost of the greatest American statesman of the 19th century, John C. Calhoun, hovers over these pages; yet Calhoun is not alluded to once in the entire volume. One reason for this may be that Lani Guinier is—at least she claims to be—a democrat, while Calhoun was a republican through and through. Another may be the very different interests for which they speak. But Calhoun’s absence, given Guinier’s concerns, is strange nonetheless.

An ever-present theme in Guinier’s book—that race continues to matter in American life—is something that virtually everyone acknowledges in private but seldom addresses in public. This is not surprising. Race all too frequently overlaps cultural considerations, and this means that anyone short of the abstract zombies one finds in the writings of John Rawls (and John Locke) considers it in his calculations of such things as where to live, where to take his recreation, and where to send his children to school. Lani Guinier knows this. She also knows that, all too often for her tastes, black Americans come out on the short end of the stick. This is the situation she wants to change. But her analysis of the present system and its shortcomings suggests yet one more piece of evidence for the claim that multicultural America is not working; indeed, it is falling apart. We must ask whether the solution to this dilemma is, as Professor Guinier would give us, what she calls more democracy.

The fathers of the United States, through the framing of the Constitution in 1787, created a constitutional republic, drawing upon their knowledge of the dualism implicit in human nature and eschewing a plebiscitary democracy. Such things bear remembering. For in constituting the nation in this way, our fathers rejected the view that man is intrinsically good and that all he needs for self-government is a voice in the legislature. This latter view, which is found in the work and disciples of Jean Jacques Rousseau, finds exposition in the long line of American panderers to that abstraction “The People.” We find it in the worst aspects of Jefferson’s thought, the whole political career of Andrew Jackson, the impious blathering of Abraham Lincoln, and later on as an almost-literal article of faith for the Progressive movement and one of its favorite sons, Professor Woodrow Wilson. Government by sentimental impulse picks up the pace with the New and Fair deals and really takes off with the New Frontier, the civil rights movement, and the Great Society. Throughout this parade of naiveté, participation in the public trust is equated with wise governance, and ignorance is masked by the universal circus into which this kind of politics degenerates.

Lani Guinier places herself in this grand tradition, and at the same time, by republishing an article that calls certain aspects of this legacy into question, confuses us as to her purposes. On June 4, 1993, upon the withdrawal of her name for consideration for the position of Assistant Attorney General for Civil Rights, she said, “I have always believed in one person, one vote,” and denied having written anything inconsistent with that principle. But in her essay “Groups, Representation, and Race-Conscious Districting,” we read that “the heavy reliance on one-person, one-vote jurisprudence to develop a theory of democracy fails both as a theory and as an adequate doctrinal protection of either individual or group rights.” This in the course of laying the groundwork for her argument that a “one vote-one value” system should be adopted in order to “achieve political equality and political fairness.” Guinier’s goal in this context, she says, is to make voting “a positive-sum experience in which all voters actively participate in selecting their representative.” One of the ways she suggests we go about this “reform” is by adopting a “cumulative voting” system, letting all voters on local and state levels distribute a number of votes among various alternatives as they see fit. By forming coalitions and clustering votes, then, groups with strong enough and specific interests in a particular political outcome would be able to have at least a partial say in determining policy and laws. Lani Guinier seeks “equal opportunity to influence legislative outcomes regardless of race.”

These arguments are based upon a conviction that different ethnic groups in the United States have a definite sense of cohesiveness and that, for minorities, this sense of belonging becomes frustrating when, at the polls, they constantly find themselves being outvoted. Representation “within territorial districts is implicitly about representation of group interests, not just individual access. However, the future of such group representation—like the future of the group itself—lies less inside geographic boundaries and more within the cultural and political community forged by group consciousness and group identity. Empowerment for a group as well as for an individual comes from an active assertion of self-defined interests. A group is represented where it has the opportunity to speak out and not just to be spoken for.”

These are legitimate concerns. Most significant of all, the sociological foundation for these concerns is a far more accurate depiction of American life as it is lived and experienced than the democratic globaloney abstractions that the heirs of Father Abraham and the Logothete Woodrow would have us accept as faith. Guinier’s concerns bring out, and bring out well, one side of the racial divide that is balkanizing America into little Bosnias. For her efforts to suggest some ways in which a sense of comity within the body politic can be reached, and people allowed a voice, Lani Guinier should have been commended, not lynched, in the pages of the Wall Street Journal. Her nomination forced the problem of race in the United States to the front of public debate for a brief moment; and that moment, coming as it did in the wake of the L.A. riots and the canonization of “motorist” Rodney King, was more than America could take.

There should be no mistaking the direction in which Lani Guinier in Janet Reno’s Justice Department would have taken America. For Guinier is not only a statist, but a statist with a moral mission. Her work is difficult to evaluate precisely because it advocates sensible procedures to allow for a greater degree of political participation and inclusion, while imposing the mechanism for establishing this on an already malfunctioning system. For if anyone has a system that is designed to rake in the boodle for them, it is the current holders of official victim status in these United States.

All of which makes Lani Guinier’s fundamental complaint more confusing, since it has been largely to satisfy persons like herself, namely Puritans in the pursuit of collective virtue, that we have come to this epoch in our national life. It seems that Professor Guinier’s fundamental point of contention is that the present system of governance is unfair: unfair not because we do not elect enough blacks to elective office, but because blacks do not get what they want when it comes time to consider what does and does not get passed as legislation. This is the point she emphasizes, time and again, through the turgid legal prose in which so much of this book is written.

One gets the strong impression that, in her dismissal of what is generally perceived to have been the Reagan agenda on civil rights matters. Professor Guinier is less concerned with the individual virtues and decentralized power that support self-government than she is with making sure that the people on whose behalf she thinks she speaks get their piece of the action. She thereby indicates that much of the classical concerns of government, namely the preservation of a framework of liberty and federalism within which virtue may be pursued and the highest aspirations of human existence accomplished, are not fundamentally of any great interest to her. Such can be inferred from her cavalier dismissal of the case made by the Reagan administration against one of her most cherished goals, which is to hold the line against federal retrenchment in the sphere of civil rights, a sphere in which so many “gains” have been made in recent decades.

Thus, in the course of this book, one is finally forced to ask whether Lani Guinier and those who share her concerns have been reading the same newspapers and experiencing the same history as the rest of us these past 30 years. For, far from having seen the officially designated oppressed classes among us receive the short end of the stick, we have witnessed an era in which being “oppressed” has become a lucrative business. In the name of civil rights, our property rights have been invaded, our right to speak freely and truthfully infringed, merit has been discarded for appearance, and law itself has been made the servant of power-maximizing politicians who would prosecute policemen for doing their job while letting the barbarians who infest our streets run free. Headlines to the contrary, Guinier is no “quota queen”; her work seeks to go beyond the present order of things. It seems clear, however, that she thinks the present system is an improvement on the way things were. That she could arrive at a conclusion so different from that of most of the readers of this journal, and indeed most of America, is not reason to celebrate our diversity. It is, on the contrary, yet another “firebell in the night” heralding the balkanization of America, a development that, if unchecked, will yet vindicate Stephen Douglas’s prophecies as to where Mr. Lincoln’s theorizing would lead us.

 

[The Tyranny of the Majority: Fundamental Fairness in Representative Democracy, by Lani Guinier (New York: The Free Press) 324 pp., $24.95]