Eugene Volokh criticizes the use of the term “anti-Semitic in effect” to criticize those who oppose the very existence of the state of Irsael. He proposes a standard of judgment: “racism, sexism, and anti-Semitism require intention, either to harm a group or at least to treat it differently.” He elaborates, with examples:

If you want to raise taxes in America because you want to transfer money from white rich people to non-white poor people, that’s racist; if you want to step up criminal law enforcement because you want to put more blacks in prison, that’s racist (we can set aside for now the question whether those policies will indeed have those effets). What makes these attitudes bad is precisely that they seek to treat people worse because of their race or ethnicity. …. When, however, talk turns to “anti-Semitic in effect” or “racist in effect,” this must refer to conduct that does not involve an intent to harm people or treat them differently. Presumably it means simply advocating a policy that in effect bears more harshly on one group than on another.

I think the test as proposed turns out to be both over- and under-inclusive. On the side of under-inclusion, what about a policy so disadvantageous to some group that it couldn’t be plausibly be defended except by treating the interests of that group as of negligible importance? That is arguably the case for proposals to disestablish the state of Israel, or the mirror-image proposals to expel Palestinian Arabs from the West Bank. Antebellum support for slavery in the United States had something of the same character. Even if those proposals are made or supported by people who don’t actively hate Jews, Arabs, or blacks, respectively, racism would seem to be implicit in them. Perhaps “racist in effect” is an unfortunate phrase here, and we should substitue “implicitly racist” in its place.

The standard would be analogous to the “recklessness” standard in criminal law: something more than merely negligent or inadvertent, but less than deliberate or intentional. (The parallel isn’t exact, because in the criminal-law case knowledge of the likely effect of an action is a tougher standard than recklessness.)

On the other hand, to call all policies that deliberately pick out some groups for advantage as “racist” seems greatly over-inclusive, because it fails to distinguish between policies intended to help a group and policies intended to harm a (complementary) group.

One of the goals of Reconstruction was to help former slaves, all of whom were black. I think it would stretch the language all out of shape to call that a “racist” goal. People could, and did, support that goal without being at all hostile to whites.

Given the choice between two policies, each of which would shrink income inequality in the contemporary United States to the same extent, but one of which would do more to shrink the racial game in income, I would, other things equal, tend to support the one with the racially redistributive effect, because I think that blacks and non-blacks in the U.S. would be better off if the extent of systematic racial disadvantage inherited from slavery and Jim Crow were diminished. Thus I would support a policy to “transfer money from white rich people to non-white poor people,” but not for what I think could reasonably called “racist” motives.

A desire to help people of type X is not inevitably associated with hostility to non-X’s. And it is the hostility, it seems to me, whether conscious or merely implicit, that makes a policy racist or subject to some parallel term of criticism.


Matthew Yglesias has some reflections on the relevance of double standards to judging racist intent.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: