Should it be illegal to be racist? Should we try to legally ban racism itself? This is a hot question because of what’s at stake. People can become heated easily at the prospect of putting racists in prison. This isn’t the high school debate/re-enactment of defending slavery while discussing the Civil War. This was a question that puts whites at risk more than non-whites.
Short answer, you can’t make racism illegal because it is too generic and malleable. It can be expressed in too many subtle ways. Sad to say, it can be too elusive to be caught by the law. Banning racism is like trying to ban hate. You can’t ban emotion, and actions can only be limited so much. Here’s some reasons and analogies why.
It’s not illegal to hurt someone. That would be too generic. How do you define hurt? If you adhered to an extreme sort of Christianity, you literally wouldn’t hurt anyone and would even allow others to kill you, as Jesus did. Then could you punish that person, for that would be hurting them in return? It’s turning the other cheek in all cases, an absolute form of submission that is not possible for mere humans.
From a legal standpoint car accidents showing how making it illegal to hurt someone can be difficult to enforce. You can go to prison for a lifetime for involuntary manslaughter if you kill someone in a car accident. Though even that is subject to qualification. If you killed someone in the car accident, but the victim in the other car was drunk, then you do not go to prison for the collision. You can be justified for shooting an intruder in your home, or for screaming and clawing while being raped. Legally you can hurt people.
Racism in some ways has been made illegal, when the actions are more overt. It’s illegal to beat someone up because of the color of their skin. You cannot deny people the right to vote because of their race, nor make laws with the intent of doing so. To make a decree that racism is illegal ignores the intent of laws and targets individuals. It is not just black and white; racism is not just individual, it can be institutional, and collective.
Banning racism prevents efforts to counter discrimination such as with affirmative action. It crates the assumption that those not arrested are law abiding and hence no racism exists. This further blurs the reality that whites have built up a history of advantages over time. It ignores the institutional and cultural biases.
Racism could be hard to catch if unintentional, though ignorance of the law is not an excuse. Still, it leaves it up to the victim to decide what is offensive, if it is to work at all. People say things to me all the time that are racist, but no one would think of imprisoning them for it. We cannot define the plethora of ways racism can be expressed and then pretend we have it fully defined. It is not something we can leave to the law alone. Racism is de facto not just de jure. We must take the battle to it’s source. It lives in our culture and history, not just your neighbor or what you do while walking down the street towards someone who is Chinese instead of European, or Mexican instead of Indian.
All said, let me punt this to you. What types of overt, or institutional types of racism could be made illegal? What would be reasonable and useful to have in the law?