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J. Morgan Kousser. Colorblind Injustice: Minority Voting rights and the Undoing of the Second Reconstruction. Chapel Hill: University of North Carolina Press, 1999.

In Colorblind Injustice, J. Morgan Kousser examines the evolution of voting laws, judicial decisions, and political manipulations from the first Reconstruction through the modern day, seeking to establish the institutional conditions under which equal voting rights would be possible for minorities in America. He contends that the present "colorblind" ideal set forth by Shaw v. Reno (1993) and similar Supreme Court opinions is a pretense for partisan bias; to return to the path of equal opportunity, Shaw must be reversed. Underlying this, however, Kousser argues two things. First, institutional stability is necessary to protect the rights of smaller groups; and second, historians have a role to play in shaping public policy.

As Kousser himself writes, Colorblind Injustice "is not a work of history, but also a work about history" (8). Confronting the influence of postmodernism on the field, he issues a call to historians to "reclaim" policy history from lawyers and journalists. Thus Colorblind Injustice is both an argument for this reclamation and a structural model for how policy history can and should be done. It is at once an historical study, a legal analysis, and a policy memorandum. Reviewing change in electoral institutions in the "totality of circumstances" that only a historian can provide, it methodically lays out how and why Shaw undermines minority voting rights and builds a case for a recommended set of standards for shaping future voting law.

The book opens with a comparative history addressing the question of what conditions are conducive to equal opportunities for minorities in America. By contrasting the first Reconstruction following the Civil War to a second Reconstruction following World War I, Kousser seeks to discern why the latter succeeded where the first had failed, and how to avoid a racist backlash like the one that followed the first Reconstruction. Five case studies follow as individual chapters, each drawn from a federal case for which Kousser provided expert testimony. Chapters focus on Los Angeles, Memphis, Georgia, North Carolina–where Shaw was decided–and Texas, respectively. These cases cut across time and space to provide in-depth, empirical evidence that electoral institutions have consistently been manipulated to discriminate against blacks and Latinos, and to question the legal standards set for the by the Shaw line of opinions.

Finally, Kousser provides a judicial review of relevant Supreme Court rulings, addressing them in terms of what legal standards are practicable and propitious to improving and protecting voting rights for minorities. Chapter seven focuses on intent and effect tests in equal protection cases, demonstrating how intent can be usefully evaluated. Chapter eight looks specifically at the Shaw line of cases, assessing the motivations for the conservative justices that formed the Shaw majority, and pays special attention to swing vote Sandra Day O’Connor. This is the heart of the policy discussion, offering both descriptive and prescriptive analysis. In the end, Kousser draws the study together to argue that there is no such thing as "neutral." To further equal opportunities for minorities, race must be a consideration in redistricting and voting rights. Shaw must be reversed.

Yet the goal Colorblind Injustice seeks to accomplish is more complex than it first appears. In tying the attainment of equal voting rights for minorities in America to the reversal of Shaw, it is essential that the reader implicitly accept that institutions–particularly the Supreme Court–are as significant in shaping everyday reality as Kousser argues. He clearly establishes institutional conditions that he feels to be precursors to minority success: institutional stability, a color-conscious system and active protectionist measures. Would these factors translate into equality, however? It is clear that institutions heavily shape what is perceived as reality, and are perhaps the most tangible mechanisms for doing so, but his dismissal of culture is problematic.

"Culture is fragile. Institutions are tough," he writes (367). This is true, but in the sense that an oak is strong and a willow is weak–the one is resilient where the other is flexible. Kousser’s example only serves to emphasize this: "Only by passing the Thirteenth Amendment in 1864 could abolitionists make sure that slavery, the strongest economic and social institution in the nation’s history, would never revive" (367). Yet, even as slavery was dismantled as an institution, the culture it left behind can still be felt in the South today. His assertion leads to dubious claims, such as an arguably reductionist view of racism. Can racist action be reduced to power relations? Can it be understood without culture? It is important to note in this, however, that Kousser is reacting to specific postmodernist, ethnocultural, and symbolic anthropological concepts of culture, each of which carry their own baggage. Kousser links Shaw v. Reno to postmodernism in order to refute them both. He argues that Brown, White v. Register, and Gingles reflected "practical political science," while Shaw reflected cultural studies (395). In practice, however, Colorblind Injustice does not dismiss culture as much as its rhetoric implies.

Overall, however, Kousser offers a sophisticated analysis that is thoroughly researched, and most of all, contains a pragmatism that is refreshing. The broad mastery Kousser provides in so many diverse arenas is inspiring. For quite some time, the humanities and social sciences have been experiencing an interdisciplinary shift, requiring their practitioners to be equally versed in a variety of bodies of knowledge, approaches, and skills. Kousser is a veteran in the field of political history, and is adept at performing analyses pertaining to history, law, policy, and the social sciences. The Supreme Court in fact reversed Shaw v. Reno on April 18, 2001, yet Colorblind Injustice remains a meaningful contribution to historical thought for the interdisciplinary model it provides.

Ironically, historians have criticized this aspect of Colorblind Injustice, questioning its fit within the historical literature. David Colburn remarks that it is less a historical study of race-based redistricting than a legal analysis demanding the reversal of Shaw. Michael Les Benedict similarly finds the study at odds with itself, and notes that Kousser is "both historian and historical actor, a protagonist in the historical drama, hoping to affect the result and shape the denouement." Underlying both of these criticisms is the question: does applied history have a place within the field? Colorblind Injustice is an explicit and implicit call to historians to take an active role in public policy. "Too much public policy today is justified in the basis of causal/partial history," Kousser reproves. "At the same time, too many historians today have lost their nerve, doubting that one can ever attain truth…(9)". Colburn and Benedict both acknowledge the call, but are reticent to accept it as judicious.

They are right to be cautious. Accepting Kousser’s call would be a bold step, and it raises a number of intricate questions. First, postmodern influence has permeated historical thought to the degree that Kousser’s claim to access "truth" and to seek to get history "right" is almost shocking. Is there a truth out there to access? Whose truth is it? Kousser refers to his analysis as "truth," but he does accept that there are different visions of reality. "Whites and blacks, whose neighborhoods are now more segregated from each other than they were in 1900, see the world differently," he states, "because, unfortunately, they still largely inhabit different worlds" (9). What he rejects is the view that truth is impossible to achieve, so why bother trying. Rather, he would applaud John Tosh’s words from The Pursuit of History: "If the ambition to know the past is completely surrendered, we shall never be able to determine how the present came to be."

David Colburn asks, "do historians jeopardize their scholarly integrity by consciously employing their research to affect social causes and political issues?" This question is hardly surprising, and in many ways is symptomatic of just what Kousser describes. As Kousser himself might ask, is it better to leave policy history to ‘experts’ untrained in the field? What is the use of academic history if it is cut off from those who need it most? Colburn’s question can be seen as more revealing of the need for professional historians to be involved in public policy decision making than for them to maintain their distance. Tosh writes, "The problem, of course, is to determine at what point present-mindedness conflicts with the historians aspiration to the past." Yet is the alternative to leave the task with those without the rigorous methods and standards of the professional historian, without sufficient structure in which peer review can provide quality control? Kousser’s work is not a narrative of past events, but an argument in response to current questions. The irony here is that this complaint is analogous to the colorblind/color-conscious debate Kousser addresses. If neutrality is not possible, is it better to proceed on a level conscious of potential shortcomings, and thus explicit in attempts at correction? Kousser would clearly argue yes.

Next, how effective is comparative history as a method to elucidate causation? One reviewer at a symposium on Colorblind Injustice dismissed a good portion of the study with the comment that the circumstances of the two Reconstructions were too different to compare. It requires an historian to pick out causal factors from a myriad of choices based upon comparison to a time that, admittedly, can never precisely match up. Yet, comparative history is an almost structuralist analysis in which the context of one period is understood by not being another. Accepting this as the cognitive structure by which we understand the world denotes that history is always understood this way; the question lies in the degree to which comparative history reveals new ideas rather than just confirming or disabusing preconceptions.

Finally, in 1993 Hugh Davis Graham issued a provocative critique of policy history, much of which is tacitly answered by Colorblind Injustice. Graham charges history with being ill-equipped for public policy. Historians prefer descriptive to prescriptive practice, giving the negative advice of what should not be done instead of predicting what should be done. Yet Colorblind Injustice offers direction for how policy historians might move past this impasse and demonstrates how it can be done. He gives negative advice, but goes a step further, offering prescriptive advice of what should be done as well. The whole of chapter seven is dedicated to establishing a method historians and judges can use to ascertain intent. To an historian this may appear as egotism. The field is habitually concerned with understanding, explaining, and analyzing: why did things happen the way they did? Policy history requires a further step, one historians are equipped to offer, but that lies beyond the murky depths that separate academia from policy–recommending future action.

This gives rise to the question: should history attempt to predict the future? Most criticisms of predictive theories in the social sciences revolve around their inability to grasp all factors needed to foretell human behavior. Instead, history seeks to understand the why and how in events leading up to present choices. This should not be undervalued. As for Hugh Davis Graham’s critique that history offers ‘negative advice,’ this is true, but limited. History is also suggestive, offering an enormous range of examples for how problems have been resolved in the past. Kousser attempts to predict the future, but as current events played out, the Supreme Court undermined his speculation by heeding his advice and overturning Shaw.

By Rachel Van