The University of Akron IdeaExchange@UAkron Akron Law Publications The chooS l of Law January 2007 The evD il in the Details: On Intelligent Design, Racial Conspiracy Theories, and the Theology of Whiteness Brant T. Lee University of Akron, [email protected] Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/ua_law_publications Part of the Legal Education Commons, and the Property Law and Real Estate Commons Recommended Citation Brant T. Lee, The Devil in the Details: On Intelligent Design, Racial Conspiracy Theories, and the Theology of Whiteness, 26 Quinnipiac Law Review 57 (2007). This Article is brought to you for free and open access by The chooS l of Law at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Publications by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. LEE - FINAL EDIT - 26-1 4/11/2008 11:23:32 PM THE DEVIL IN THE DETAILS: ON INTELLIGENT DESIGN, RACIAL CONSPIRACY THEORIES, AND THE THEOLOGY OF WHITENESS Brant T. Lee* I. INTRODUCTION: THE PUZZLE OF RACIAL INEQUALITY It is a central problem in the great American conversation about race to explain persistent racial inequality. The dominant narrative1 tells us that, historically, racial inequality was caused directly and simply, by explicit and intentional racial discrimination based on unreasoning race hatred.2 The paradigmatic examples are slavery and segregation; the icon is Bull Connor.3 Together, the Civil War and the civil rights movement comprise America’s delivery from this original sin. In law, this redemption4 is reflected in the Emancipation Proclamation5 and in * Associate Professor of Law, University of Akron School of Law. Thanks to Crystal Klein and Jill Spindler for research assistance, and to the faculty of the University of Akron School of Law for feedback at the presentation of works in progress. I am grateful to the Momus Group—Sarah Cravens, Stewart Moritz, Elizabeth Reilly, and Tracy Thomas—for their support, encouragement, and constructive criticism. My deepest gratitude always to Marie B. Curry. 1. On the role of narrative in framing justice claims, one classic treatment is by Robert Cover. See Robert M. Cover, The Supreme Court, 1982 Term—Forward: Nomos and Narrative, 97 HARV. L. REV. 4 (1983), reprinted in NARRATIVE, VIOLENCE AND THE LAW: THE ESSAYS OF ROBERT COVER 95 (Martha Minow et al. eds., 1992). See also Reginald Leamon Robinson, Race, Myth and Narrative in the Social Construction of the Black Self, 40 HOW. L.J. 1 (1996). 2. See, e.g., RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 1 (1992) (describing successes in changing historic “and often hateful” patterns of discrimination). 3. Birmingham Police Commissioner Eugene “Bull” Connor personified White Southern resistance to integration. See DAN T. CARTER, THE POLITICS OF RAGE 115-17 (LSU Press 2000) (1995). 4. See Cover, supra note 1, at 34, reprinted in NARRATIVE, VIOLENCE AND THE LAW: THE ESSAYS OF ROBERT COVER 95, 131 (Martha Minow et al. eds., 1992) (“‘[R]edemptive constitutionalism’ [applies when] sharply different visions of the social order require a transformational politics . .”). But see Sumi Cho, Redeeming Whiteness in the Shadow of Internment: Earl Warren, Brown, and A Theory of Racial Redemption, 19 B.C. THIRD WORLD L.J. 73, 75 (1998) (defining racial redemption as a process under which Whiteness 55 LEE - FINAL EDIT - 26-1 4/11/2008 11:23:32 PM 56 Q L R [Vol. 26:55 the fulfillment of the Civil War-era constitutional amendments6 through Brown v. Board of Education7 and the antidiscrimination legislation of the civil rights era.8 Within this narrative, race discrimination is the problem, and it is an individual character defect.9 Applying methodological individualism consonant with law and economics analysis, racism is defined as an irrational preference, or “taste,” an individual sin of commission.10 But we have all had the light revealed to us. And slowly, the old ways are said to be dying away. Continuing racial inequality is seen as a dwindling vestige of this tainted past. As race discrimination fades, racial inequality will surely follow. This is the hopeful sentiment expressed by Justice O’Connor in upholding a narrowly tailored race- conscious law school admissions program: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”11 But we are living through the fifty-year anniversaries of many of the landmark events of the civil rights movement, and by many convincing analyses,12 deep and pervasive racial inequality persists. How can such inequality persist in the modern, enlightened era? The exhausted contestants in this arena are racism and merit. Although color-blindness has clearly prevailed as the dominant cultural paradigm,13 people of color continue to sense that the equal “retains its fullest reputational value”). 5. President Abraham Lincoln, THE EMANCIPATION PROCLAMATION (Jan. 1, 1863) (“[A]ll persons held as slaves within [the rebellious ] States . are, and henceforward shall be free . .”). 6. U.S. Const. amends. XIII (prohibiting slavery), XIV (guaranteeing equal protection and due process), and XV (protecting the right to vote). 7. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954) (holding that state laws establishing separate public schools for black and white students deny black students equal educational opportunities). But see Cheryl Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993) (arguing that the response to Brown served to preserve the value of Whiteness). 8. See, e.g., Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964); Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (1965). 9. See GARY S. BECKER, THE ECONOMICS OF DISCRIMINATION 13-18 (2d ed. 1971). 10. Id. 11. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (upholding law school affirmative action program on narrow diversity grounds). 12. See generally, ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992). With regard to wealth, see, e.g., MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH, WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY (1995). See also DALTON CONLEY, BEING BLACK, LIVING IN THE RED: RACE, WEALTH AND SOCIAL POLICY IN AMERICA (1999). 13. See ANDREW KULL, THE COLOR-BLIND CONSTITUTION (1992). LEE - FINAL EDIT - 26-1 4/11/2008 11:23:32 PM 2007] THE DEVIL IN THE DETAILS 57 opportunity14 that color-blindness was supposed to deliver has never arrived.15 With the limited vocabulary that the mainstream narrative offers, however, racial equality advocates have had to theorize increasingly subtle forms of unconscious or hidden racism.16 Whatever the substantive merit of these theories, they have come up against a mainstream public mindset in which the majority of people, unsurprisingly, are convinced that they are not the evil racists of legend.17 Rather than confronting whatever forms of racism remain, this majority has instead adopted the philosophy, grounded in the rhetoric of classical economic theory, that impartial markets determine outcomes based on merit. A. Agency in Evolution and Economics: The Blind Watchmaker and the Invisible Hand The goal of this article is to loosen the stranglehold that the above dominant paradigm has on our collective imagination. It examines the mainstream philosophy of merit and impartial markets by raising the seemingly incongruous comparison of such philosophy to the public debate over Intelligent Design and evolution. The two debates (racism versus impartial markets, and Intelligent Design versus evolution) turn out to have much in common. Each debate stems from the effort to understand observed complexity, be it racial inequality or biological systems. At a superficial level, the analogy is clear: in each debate, one side appeals to causation by a person or agent of some kind.18 We struggle to understand what we observe in the world, and we think, “somebody must be behind this.” 14. See Owen Fiss, A Theory of Fair Employment Laws, 38 U. CHI. L. REV. 235 (1971). 15. See Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978). 16. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action,” 94 CAL. L. REV. 1063 (2006). I do not dispute that significant hidden or unconscious racial discrimination occurs. To my mind, these and other advocates have persuasively set out convincing explanations of how actual racial bias continues to be a cause of racial inequality. This essay, however, proceeds along a different line of thinking. Hidden and unconscious racism does not explain all of what is happening. 17. See David Benjamin Oppenheimer, Understanding Affirmative Action, 23 HASTINGS CONST. L.Q. 921, 946-51 (1996) (describing survey results regarding racial attitudes of white Americans). 18. See infra Part II. LEE - FINAL EDIT - 26-1 4/11/2008 11:23:32 PM 58 Q L R [Vol. 26:55 Intelligent Design advocates thus search for evidence of an agent, a Divine Creator who brought into being the Universe and all of its creatures.19 William Paley famously argued that when one finds a fully functioning watch on the sidewalk, one reasonably assumes a watchmaker.20 Modern Intelligent Design proponents continue to argue in this vein, that the complexity and precision of the biological world cannot be explained without reference to the direct intervention of a Divine Watchmaker, or God.