284. What Racial Categories Say About Discrimination in America feat. David E. Bernstein

Most Americans have had to do it at some point: check the box that most closely describes how you identify your race or ethnicity. But those categories can be limiting. How did America settle on the specific categories that are in use? And what does it mean for how the country works on a sociological level and a legal one? 

David E. Bernstein is a law professor at the Antonin Scalia Law School at George Mason University. He’s written several books and scholarly articles dealing with legal history and legal interpretation, such as Classified: The Untold Story of Racial Classification in America and Rehabilitating Lochner: Defending Individual Rights against Progressive Reform. 

David and Greg discuss both of those books in a sweeping conversation about the history of race in America, why certain categories or groups were established, and how the idea of progressivism can look starkly different depending on the time period.  

*unSILOed Podcast is produced by University FM.*

Episode Quotes:

Why are educated people so comfortable with simplistic narratives?

01:04:15: For academics, I think that once a narrative becomes established, it's really hard to fight against it. You're a young academic writing your Ph.D. thesis, you're writing your initial articles. Yes, you might want to be the Dragon Slayer who proves the new thesis and everyone else was wrong. But you better do that really well. So if you do a half-baked job, don't persuade people that much. People can say, "Oh, you're just a nut; you're just someone on the fringe, and you don't know what you're talking about." It's a lot easier to go along with the accepted narrative, add your little piece to it, add your little extra research, get tenure, and live your happy life. So I think most people are go along to get along people, they're not especially independent-minded or interested in upsetting the apple cart.

On the identity entrepreneur issue

12:05: The identity entrepreneur issue—there are several layers to it. There are people who could choose one of many identities and choose whatever happens to be the most convenient for their particular purposes.

Why are classifications so influential?

16:13: One reason these classifications are so influential is that the census uses them. And it's not just that the census uses them. The census is the font of all data for researchers.

Are Americans becoming less prejudiced?

39:59: I think what we have in the long run is a cultural battle that's sort of beneath the surface that no one talks about between what's going on at the grassroots, where Americans are less prejudiced than they've ever been. 95% of Americans have no objection to interracial marriage, compared to 4% in 1958. That's quite a difference.

Show Links:Recommended Resources:

• The Rise of the Unmeltable Ethnics
• Lochner v. New York
• Buchanan v. Warley
• Affirmative Action
• What Blood Won’t Tell: A History of Race on Trial in America 
• Rachel Dolezal
• Desi Arnaz
• Ted Williams
• Lefty Gomez
• Hank Greenberg
• Jackie Robinson
• Dred Scott v. Sandford
• Michael Shermer and Skeptic Magazine 

Guest Profile:

• Faculty Profile at George Mason University
• Contributor’s Profile on The Federalist Society
• David E. Bernstein on Twitter

His Work:

• David E. Bernstein on Google Scholar
• Scholarly Papers 
• Article on Tablet Magazine
• Classified: The Untold Story of Racial Classification in America
• Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law 
• A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case
• Rehabilitating Lochner: Defending Individual Rights against Progressive Reform 
• You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws
• Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Constitutional Conflicts)