One of the most distinctive hypotheses of critical legal theory is the interest convergence hypothesis. Here is Professor Bell’s statement from his 1980 Harvard Law Review article. In this article, he was responding to arguments made by Herbert Weschler. I have bolded some words for emphasis:
Whites may agree in the abstract that blacks are citizens and are entitled to constitutional protection against racial discrimination, but few are willing to recognize that racial segregation is much more than a series of quaint customs that can be remedied effectively without altering the status of whites. (522)
and
Whites simply can-not envision the personal responsibility and the potential sacrifice inherent in Professor Black's conclusion that true equality for blacks will require the surrender of racism-granted privileges for whites. (523)
Before we evaluate, please note that Bell’s argument is a mix of empirical and doctrinal points. Empirically, Bell is making a very straightforward argument about what Whites actually do. In support of this point, Bell offers a well-known example: “The extent of this unwillingness is illustrated by the controversy over affirmative action programs, particularly those where identifiable whites must step aside for blacks they deem less qualified or less deserving.” (522) In terms of doctrine, Bell argues that White resistance undermines Weschler’s legal arguments. In this post, I will only focus on the empirical point, not the legal points.
First, there is a very fundamental way in which Bell is clearly correct. If people view their own well-being in terms of racial privilege, then they won’t support policies that improve the well-being of Blacks. One might call this the “zero-sum” racial psychology. Also, this is consistent with a median voter theory understanding of policy. If the median voter is a “zero-sum” racist, they definitely won’t support pro-Black policies and we probably won’t get them.
Second, the empirics on this get very sticky once we move on from this basic point. For example, how does the interest convergence thesis deal with the Brown and the Warren court? Wasn’t the Warren court a mainly White institution that ordered desegregation? The courts then followed with busing and various school funding decisions. Also, the Eisenhower administration approved the dispatch of the 101st to Little Rock. Perhaps the interpretation that best fits the interest convergence hypothesis is that these reforms were motivated, in part, by Cold War politics. For example, Mary Dudziak’s book, Cold War Civil Rights, makes this argument.
For me, the biggest counterexample to Bell is the Civil War. Once could argue, and many do, that the Civil War was not about Black rights, but about state rights. Here, I’ll just note that I disagree and move on to a different point. If the Civil War was indeed fought to end slavery, then how does that fit with the interest convergence hypothesis? Perhaps the strongest argument is that somehow Northern White elites benefited, but you would also have square with the fact that hundreds of thousands of mainly White union soldiers died and, of course, Lincoln himself was shot dead by a Confederate sympathizer.
American history in the decades following Bell’s article have painted a complex picture. Yes, there is absolutely a conservative right-wing part of the electorate that would love to see civil rights rolled back. A significant part of the population basically resists any reform that benefits Black Americans. At the same time, we’ve seen the rise of antiracist culture and it’s found a strong foothold in American institutions. Also, a number of the pro-Black policies opposed by social conservatives, such as affirmative action, tend to be fiercely defended by a large population of progressive Whites. A pro-Bell interpretation is that this is really just some sort of status signaling by Whites, but maybe a simpler answer is available. The preservation of White privilege isn’t the only factor that drives politics. Sometimes, people do genuinely want change, even if it doesn’t directly benefit them. In other words, people are complicated!
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The south & the north were fighting for different things in the war. The south was convinced that the north was out to end slavery, and could not trust a Republican administration not to do so. Lincoln was explicit that he was fighting to preserve the Union rather than end slavery, but the south didn't think they could have both.