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Themes
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LitCharts assigns a color and icon to each theme in The Color of Law, which you can use to track the themes throughout the work.
De Jure vs. De Facto Segregation
Segregation and the Preservation of Racial Caste
Racism, Profit, and Political Gain
Separation of Powers, Legal Activism, and Minority Rights
Summary
Analysis
Rothstein begins by outlining how “most of us” think about the racial segregation of American society: people assume that white residents gradually leave a neighborhood when black families move in, that racist real estate agents and bank redlining help make neighborhoods more and more homogeneous, and that African American people’s general lack of education and income has prevented them from moving “up” to the suburbs. But Rothstein says that this is only “a small part of the truth.” Explicit government policies were a far more important and enduring cause of this segregation, which came not from the sum of “individual choices,” but rather from a “systematic and forceful” nation-wide policy enacted by government at all levels. Racial segregation in the United States is de jure, not de facto.
Rothstein immediately and unambiguously presents the central argument of his book: although most Americans believe in the myth of de facto segregation, they are wrong, and throughout this book he will provide extensive evidence that segregation is actually de jure. While the classes who are largely responsible for and benefit from segregation, like suburban white professionals, often consider it impolite to acknowledge the reality, virtually everyone who lives in (or has ever visited) the United States can clearly see that its cities are starkly divided between poor minority neighborhoods and wealthy white suburbs. The question is not whether the United States is segregated, but why. Rothstein does not mean to suggest that the factors usually associated with segregation—like differences in education and income—are not real contributors to it, but rather wants his readers to look at the causes behind these factors, which have often been government policies.
Themes
Systematic housing discrimination is also illegal: it violates not only the Fifth and Fourteenth Amendments to the Constitution, but also the Thirteenth, which both outlaws slavery and gives Congress the power to enforce this through legislation. One way Congress did so was the 1866 Civil Rights Act, which outlawed anything that “perpetuated the characteristics of slavery.” The Supreme Court decided this did not include fair housing, but from a contemporary perspective, this is plainly absurd: denying “decent housing” to African American people was a means of “perpetuat[ing] second-class citizenship,” a status that is clearly “a relic of slavery.” In fact, the Supreme Court changed its mind and endorsed this new interpretation in 1968, although the Fair Housing Act had just been passed by President Lyndon Johnson’s government and became the main basis for legal claims against discrimination in the United States.
Although many assume that Americans have chosen segregation, so there is no reason to do anything about it, to Rothstein segregation clearly needs to be reversed because it is a way of “perpetuat[ing] second-class citizenship” for African American people. This status descends directly from slavery, and shows how racism—not only in terms of individuals’ beliefs, but also in terms of systematic biases in the economy and legal system—is still central to the workings of American society. Therefore, by showing (first) that segregation is caused by the government and (second) that it sustains “second-class citizenship,” Rothstein establishes that the courts should stop segregation and that Congress should pass laws to undo it. Although this book is largely written for a general audience, it is also explicitly aimed at lawyers and judges: his argument about the unconstitutionality of segregation is meant to be used, and hold up, in court. This is why Rothstein emphasizes how each specific form of de jure segregation specifically violates the Constitution’s promise of equal protection before the law.
Themes
Rothstein explains that his book focuses on “consistent government policy that was employed in the mid-twentieth century to enforce residential racial segregations.” He believes that these policies always were and always will be unconstitutional, and while it would be very difficult to desegregate through the judiciary, it would be easy to do so through policy. Rothstein insists that such policy change is necessary from a moral standpoint as well as a constitutional one.
Since the different branches and levels of government have worked together to segregate the United States, Rothstein also thinks they must cooperate to integrate it. However, he also notes that the courts cannot create new laws, but rather only stop existing ones that prove unconstitutional, which means that legislative action is necessary in the specific case of residential segregation (which cannot be undone simply by a court ruling). This speaks to the broader question of how a government can protect minority groups’ rights: although a well-functioning judiciary can protect them from the worst excesses of legislative and executive actors, it can only do so after the fact.
Themes
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Rothstein emphasizes that segregation emerged from numerous laws, across jurisdictions, that “combined to create a nationwide system of urban ghettos, surrounded by white suburbs.” Courts recognized this through the 1970s, but then the Supreme Court decided in a 1974 case about Detroit that the city’s segregation was the result of “unknown and perhaps unknowable factors.” (They had evidence that this segregation was deliberate, but the narrow majority chose to ignore it.) This thinking has continued, with Supreme Court justices continuing to blame “private choices” for American segregation in the 21st century. Rothstein’s central motive is to show that this isn’t true; in reality, the state blocked African Americans from “integration in middle-class neighborhoods” and should therefore remedy this segregation. Some blame a more nebulous “structural racism,” which the government should still have to address. But for Rothstein, it is clear that “most segregation” was “open[ly] and explicit[ly] government-sponsored.”
The Court’s strange but enduring about-face on the question of segregation’s causes shows that even the judiciary is not apolitical, and even damning evidence is not always adequate to convince people who are not disposed to take it seriously. This also foreshadows how the nation as a whole has progressively forgotten that segregation is de jure. This is a notable change since the 1970s, when this was common knowledge. This reaffirms the importance of Rothstein’s book at this moment in American history and shows that simply speaking the truth is not sufficient to create social change: judges, politicians, and middle-class Americans have a vested interest in preserving segregation, so they all tend to look the other way instead of confronting it. Blaming “structural racism” is a way of doing this: Rothstein does not mean to deny that such racism exists, but rather to note that blaming something vague and unidentifiable is easier (and much less meaningful) than blaming and demanding change from the actors who actually caused segregation: federal, state, and local government agencies, in cooperation with the real estate industry and the American white middle class.
Themes
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Rothstein clarifies his terminology. He uses “we” to refer to all Americans. Instead of the euphemistic “inner city,” he uses “ghetto,” a technical term for “a neighborhood where government has not only concentrated a minority but established barriers to its exit.” Talk about racism is full of similar euphemisms—people say “diversity” instead of “racial integration,” and use “people of color” in order “to pretend that the nation did not single out African Americans in a system of segregation specifically aimed at them.” Because racism pervades white America, words for African American people “eventually sound like terms of contempt,” which forces “African Americans [to] react and insist on new terminology,” in a repeating cycle. Rothstein will use “African American,” occasionally “black,” and, when historically appropriate, “Negroes.” While language changes, racial caste remains a constant structuring force in America’s history and present.
Rothstein again emphasizes that American political correctness is often really a way for middle-class white people to avoid confronting the reality of racial caste and inequality in the United States; by refusing to speak the truth, they can avoid confronting it. In this sense, while the term “ghetto” is often seen as derogatory, Rothstein uses it in its literal, historical sense, which establishes a connection between the systematic oppression of African American people by the United States government and the long history of governments persecuting minorities by denying them rights and freedoms that are supposed to be widely shared. (His point about racial caste, a term popularized by legal scholar Michelle Alexander, has a similar purpose.) Although it is easy to see what was wrong with these historical examples, Rothstein challenges Americans admit that the same kinds of injustices are unfolding here and now. Truly recognizing this injustice requires taking substantive action to stop it—even if it requires personal sacrifice on the part of some people.
Themes
