NEIGHBORS ARE RARELY GOOD, AND EVEN MORE RARELY THERE WHEN YOU NEED THEM

OESTERHOUDT STRIKES

I reserve especially harsh criticism for insurance companies. In the past, I have mocked them in satires and rebuked them in essays. I know what insurance companies are all about: Demand money from you, then stubbornly refuse to pay when disaster strikes. Neither cockney-speaking GEICO® geckos nor ditzy discount-dishing Progressive® saleswomen nor confident black men telling me "Allstate's® stand" will ever persuade me that insurance companies are anything other than what I already know: Insatiable, vicious, unsympathetic private profit machines that capitalize on human qualms about the future.

Insurance companies advertise all the time. I use insurance advertising as a thematic backdrop for my criticism. I analyze insurance advertising to show inconsistencies between messages and practices. For example, I have analyzed GEICO®'s vacuous advertising several times to show that commercial actors rarely provide the most essential information to consumers, like information about prices, risks and even services. Rather, they merely create "visual candy" that forges a mental link between the product and the company. This implants a sensory impression in the viewer, which then yields an increased likelihood that he will remember the image when it comes time to buy insurance. This has nothing to do with educating the consumer about advantages and disadvantages between competing products. It is merely a cynical ploy to trigger a mental reflex to buy something in particular circumstances.

But this is what advertising is all about. It is not about education or even information. It is about sensory perception. For commercial actors, the end is always profit. To make a profit in the free market, you need customers. To get customers, you need to convince people to part with their money. To make customers part with their money, you need to make sure they know you have something they need or want. Advertising does that: It merely advises potential customers that a company has something they need or want. It shows it to them in a memorable way. It plays to their senses. Once it makes an impression, it increases the chance that they will spend their money in the right place. And that fulfills the profit goal.

Still, my purpose today is not to analyze sensory mechanics in American advertising. Rather, I am writing today to take a hard look at a particular advertising message on its own terms. In the end, I will reveal its absurdity.

Insurance companies use slogans to reinforce their visual advertising. In addition to leaving a visual impression with consumers, they also leave an audible one. For example, GEICO® not only hammers a visual connection between geckos and car insurance. It also pairs the image with the ever-repeated phrase: "Fifteen minutes could save you fifteen percent or more on car insurance." Allstate® uses the phrase: "You're in good hands." And State Farm® matches its imagery with: "Like a good neighbor, State Farm is there." Sometimes State Farm even sings the slogan to make sure you remember it. Hey, they need to make sure you reflexively think State Farm® when you need some insurance. And people remember tunes a lot better than just spoken words.

"Like a good neighbor, State Farm is there." What a curious slogan. It reflects an incredibly naïve view of human nature. And that's ironic, because State Farm obviously does not hold that view. I know for a fact it doesn't. I have litigated cases involving State Farm, and I can tell you firsthand that they do not treat claimants--or their opponents--as "good neighbors." In fact, they treat them as mortal enemies whom they would rather see die than pay a red cent.

What is a "good neighbor," anyway? Do people really like their neighbors? Do neighbors actively help each other in this society? It sure doesn't seem so to me. In that light, I find it bizarre that State Farm adopted a slogan that equates its insurance service with the service you can expect from a "good neighbor." In my experience, I have generally found that my neighbors could not give a damn about whether I lived, died or prospered. Some have said hello. Some have not. Actually, most did not. Most just went to work, came home, locked their doors, attended to their own shit and went to bed without even looking at me in the hallway.

In fact, most of my relationships with neighbors over the years have been negative. If they knock on my door, it's usually to complain about something I'm doing. They never stop over to check on me or to ask how my life is going. They never volunteer to help me with anything. To the contrary, they just grumble about me and spread gossip if they suspect me doing something "inappropriate."

And they certainly don't make house calls if I'm suffering a crisis. If I have a problem, they'll never know about it. Even if they did, I seriously doubt they would rush in to help me.

And why should they? American law says that we are not our brothers' keepers. If you pass a person dying on the street, you have absolutely no legal obligation to render assistance, even if you're a doctor. That reflects our society's views about "neighbors" much more than any corny State Farm slogan. That is why I find it flat-out laughable for State Farm to equate its insurance service with the "help" you can expect from a "neighbor" in the United States. You might as well say that you won't provide any help at all, because that's how much help you'll receive from your neighbor. In truth, your neighbor is much more likely to complain about you or even report you to the authorities than help you in a pinch.

This is the world we inhabit.

If this is the level of support we can expect from neighbors, what can we expect from State Farm? State Farm says that it will be "there" for you "like a good neighbor." Well, no neighbor has never been "there" to help me with anything, let alone a "good" one. By that standard, I guess that means that State Farm will leave you hanging just the way your neighbors do.

But State Farm has a greater legal obligation to help than some undifferentiated neighbor. After all, if you pay money for a State Farm insurance policy, you enter into a contractual relationship. Contracts mean that two people promise to do things for each other on pain of legal penalty. Contracts create legal duties to act or refrain from acting. Neighbors have no such duties. In that sense, if you buy insurance from State Farm, you are buying something more than a neighbor's obligation. You are enlisting services for a fee. You are engaging in commerce. You are creating a legal relationship. If State Farm acts like a "neighbor" after you hire it as a "servant," it would violate its legal duties to you. Hey, you signed a contract so that State Farm would give you more than a neighbor would give. But that's still not that much, because neighbors have no obligation to give you anything at all.

Of course, State Farm does not want you to think this way. It wants you to think that neighbors help each other when they are in need. In fact, it wants you to accept the fantasy that your neighbors will actually sacrifice themselves to help you for no reward. That is an extremely Christian delusion; and State Farm fully exploits it. After all, Christian doctrine advises us to "love our neighbor as ourselves" and to help those in need without expectation of reward. State Farm taps into that notion to cast itself as a "magnanimous patron," not a profit-hungry private corporation. And State Farm knows that many consumers equate the term "neighbor" with selfless Christianity.

This is cynical exploitation at its worst. While Christ might have helped his undifferentiated neighbor without hope of reward, most neighbors are not Christ-like. In fact, experience tells us the opposite.

State Farm is no exception. During Hurricane Katrina, State Farm acted exactly like the neighbors I know: It refused to help out at all when people really needed help. State Farm wiggled out from paying "hurricane damages" because it said its policies did not cover flooding. In my own experience practicing law, I recall a case in which State Farm refused to pay its own customer's $60,000 medical bill because it disputed the doctor's belief that the injury was "permanent." So it left its "neighbor" holding the bag with a $60,000 bill and a deformed arm--even though the "neighbor" dutifully paid his premium every month. How's that for service?

But that's how neighbors treat each other. So I guess State Farm was just doing as it advertised: It was just acting like a neighbor.

I find it utterly shameless for State Farm to exploit Christian overtones in the word "neighbor" to lull customers into thinking it actually cares about their welfare. No private corporation cares about anything beyond its quarterly profits. That is the law. Corporations owe no duties to anyone except their own shareholders; and shareholders could care less about magnanimity toward non-shareholders. They want money; and they don't really care if they're "nice" about getting it.

Commerce and Christianity just don't mix. State Farm knows that. It simply proceeds on the assumption that consumers are too stupid to understand the same thing.

Then again, most advertising functions on that premise. If people were too smart, it would really hurt business.

HEALTH CARE REVOLUTION : MY LONG-TERM PLAN

A REFLECTION

I’ve been doing some promoting lately. Whenever I meet people, I try to get a feel for their social leanings. If I think they might like my blog, I tell them about it. I’m even thinking about advertising in some newspapers. But I know everyone won’t like it. In fact, I like that idea.

When I talk to people who have spent some time reading my catalogue, I hear familiar refrains: “Do you plan on writing anything for mass consumption? Do you plan to write a novel? A play? A book?” In truth, I have never wanted to be popular. I don’t want to be John Grisham. I don’t want to compromise my ideas in order to write something that is “conventionally pleasing.” I don’t want anyone to transform my writing into Hollywood adaptations, and I don’t care if Oprah Winfrey finds my essays compelling. She’s welcome to enjoy my essays; I just don’t thirst for her recognition. That’s all I mean. She’s welcome to like my writing. But nothing will make me write a lighthearted romantic comedy, like the New York Fire Department Captain who wrote a feel-good novel in his spare time. I just can’t do it. It’s hard for me to be frivolous. It makes me sick, actually.

Still, I have larger designs. For one, I want to compile all my satires into a “pamphlet.” I think my satires all dwell on consistent themes. They all mock powerful people and their pretentious, condescending arguments. I plan on editing my satires and organizing them in such a way that they could be read as a “book.” My essays travel over more varied ground, but I think they, too, could be organized into a relatively consistent format. In this sense, I think my blog already qualifies as a “book.” I just need to hash the ideas together and bind it up.

Second, I want to write a longer piece. I really like novels. But I don’t like English and American novels (with some exceptions, of course). I like German and Russian novels. There is an immense difference. German and Russian novels generally have loose, skeletal plots that merely provide a framework for dark, philosophical expositions. English and American novels generally go heavy on plot and light on philosophy. I’ve written before that I don’t like plot. If I want plot, I’ll read a newspaper or police report. When it comes to literature, I want something more, something challenging and daring. Sappy love stories don’t interest me, nor do swashbuckling commercial success stories. These are conventional stories. When I talk about love and commercial success, I’m usually mocking them. Dostoevsky and Kafka did, too.

So what kind of novel will I write? For two years, I’ve been mulling a novel about a new American revolution. What better way to make mordant observations about society than through a fictional revolution? I’ve said before that revolutions excite me because they represent times during which old orders collapse and the law fails. They spark radical changes in values. They make powerful people scurry and run. They force people to rethink their lives. That’s exciting. By the same token, I’ve written that revolution will not happen in America because too many people are “relatively pleased” with their lives; they don’t want to think differently. After all, enough people have homes, cars and televisions to risk everything for a shot at “something better.” So they let existing power structures persist, no matter how subtly pernicious.

But this broaches a question: What would push Americans over the edge? What would make Americans risk everything to reshape their society? What kinds of pressures and injustices would spur significant numbers to risk armed revolt against the old order? And how would the old order respond to those revolts? I always thought health care would be a good metaphor here. I envisioned an America—maybe forty years from now—in which wealth and power disparities grew to intolerable levels. In this unequal society, some people have access to miraculous medical treatments, while others die on the streets. I thought injustices involving health care would provide a good literary vehicle for a “fictional revolution.” Eerily, I thought these things long before the current “health care crisis” and the irrational debate it has unleashed in recent months.

My novel will pursue familiar, satirical themes. I often write about health care on my blog because it is a proxy for numerous subsidiary themes, including inequality, fairness, justice, death, money, commerce, profit, American life, hypocrisy and compassion. It touches upon life, yet it intertwines with money and profit. It touches upon our deepest humanity, yet it is also a commodity. No matter how you slice the health care issue, some people live and die because they can’t pay. That provides plentiful opportunities for commentary. Emotions run high in the health care debate because people worry about getting sick and dying. They become irrational when they think government might impede their access to a doctor, or because government tolerates a system in which they cannot afford to ever see one. I can envision emotions running so high over this issue, in fact, that revolution could ensue. We just need the right internal and external circumstances to make enough people angry and desperate. My novel will describe those circumstances.

I don’t think my novel will be gloomy. I often worry that readers find my writing too bitter and too scathing. Yet every time I try to make it less biting, I find I do not fully address the issue. I write satire because I see hypocrisy and injustice everywhere. You can’t take down injustice and hypocrisy with kid gloves. My writing might appear bleak because it reflects a bleak world. I don’t intend to depress when I write; I follow the old Russian tradition in this regard: I laugh through tears. I find so many injustices perversely funny. Maybe I’m unusual for thinking that. I don’t know. But I know I don’t intend to be gloomy. I can control my intentions, and every time I write a satire, I intend to provoke laughter about something that is really quite abominable about our society. When I write my novel about “the American revolution of 2048” it will aim to provoke laughter as much as it provokes a good, hard look at our society.

Anyway, these are my long-term plans. In the meantime, I plan to continue posting on the blog as I always do. This blog is my laboratory. Here new ideas spring forth and bubble up to the surface. Sometimes they are rough and undeveloped. Other times they pick up where an earlier one left off. No matter what, they are insights into my mind. I am proud that I have created this testament. I have reduced so many thoughts to writing over the past year. If I hadn’t, who knows how many thoughts would simply have vanished into time? Thoughts tend to do that. If you don’t seize them and develop them, they escape you. My blog helps me rein them in and keep them. After all, life is one immense distraction. It can blow you off course before you even know what’s happening to you.

Thanks to everyone who tunes in to read my latest stuff.

THE CONSTITUTION IS NOT "COLOR-BLIND"

AN ESSAY

Yesterday I used satire to illustrate the foolishness in typical conservative reasoning about race in American life. I especially targeted the conservative exasperation with “affirmative action programs” that allegedly “keep old questions alive” by focusing on “past discrimination” against disadvantaged groups in American society. According to conservative reasoning, the Fourteenth Amendment to the United States Constitution bars governmental distinctions based on race, no matter whether those distinctions aim to help or hinder minorities. My satire attacked this reasoning on a simple premise: When discrimination affects whites, they have nothing to complain about. While it may hurt a white person’s feelings to lose a job or university seat to a black man, the fact remains that African-Americans do not have the same practical opportunities in American society as whites. History shows that “real racial equality” in American life is at best a farce, no matter what the law says. History caused the problems; and it will perpetuate them. Contrary to conservative rhetoric about race, racial problems did not disappear when the Civil War ended, nor did they disappear when the Supreme Court abolished state-sponsored segregation in 1954. Legal fiat does not produce practical reality. Yet this is precisely what conservatives believe: They think that legal equality translates immediately into practical equality. And when they see blacks arguing that life is still unfair for them, they say: “Haven’t we given you enough? Get over it, will you?”

Telling black Americans to “get over the race problem” in America is like telling an incurable cancer victim to “get over” cancer. Racism and race-based prejudice are alive and well in America. This country was born in racism and has lived its life in racism. Racism sustained our economy before the Civil War and mutual recriminations about racism have dominated our outlook ever since. Contrary to every conservative assertion, history has everything to do with continued racial problems in America. Until 1865, African-Americans were not legally “people” under the Constitution. Killing a slave resulted in a property damage suit, not a murder prosecution. After Emancipation, blacks in the South achieved illusory “legal equality” but still faced summary lynchings and mob justice. And as a practical matter, they faced every imaginable disadvantage in society. They could not live where they wanted. They had no skills and no education to win favorable employment. In short, they "advanced" from slavery into a permanent economic and racial underclass. Although Congress and the States made determined efforts to equalize the playing field for African-Americans, it does not take a genius to see that an average black man’s life circumstances barely resemble an average white man’s life circumstances in America. Blacks occupy prisons in far greater proportions than whites. They live in generally much worse housing. They generally earn far less income. And they are generally homeless in greater proportions than whites, too. These problems are endemic; they are not going away, no matter what Congress does. Our law has apologized for “official” racism. But its legacy—and its evil, practical cousin, actual racism—lives on. Just walk into a “black neighborhood” in an American city. Why are the “black neighborhoods” so poor? Why do they breed so much more poverty, hopelessness, joblessness and crime? Why is virtually every homeless person in New York City and Chicago black? Why is virtually every violent crime suspect on television black? The eye does not lie. Legal equality has not solved the race problem in America. There is something much more pernicious going on here.

Yet conservatives think that legal apology is enough to right the historical wrongs of slavery and State-sponsored segregation. They think that problems experienced in past generations do not spill over into modern generations. This is fatally mistaken. Slavery and Jim Crow made indelible impressions on their subjects. Black people in the United States have come to expect bad treatment in life, as well as unfairness, poor opportunity and likely failure. The law used to “officially” brand them inferior. Now they are inferior “in effect” because they do not have the social capital to fully assimilate into a culture that rejects their values. White American society is profoundly judgmental. It expects certain values from its members; if they do not have these values, they can expect ostracism and condemnation. It expects deference, some education, politeness and a remotely “decent upbringing.” But these values represent generations of work and comfortable heritage; if an “outsider” does not meet the criteria, he can expect no sympathy from “mainstream” American culture. In essence, white American society institutionalizes racism on a subconscious level. Even if most white people consider themselves “progressive,” “liberal,” “open-minded” and even “solicitous about black problems,” they typically live in all-white circles and practice all-white values. They do not see black people in familiar settings, nor do they really understand what it is like to grow up in a society with no practical opportunity. If anything, they see black people as “foreign curiosities,” not social equals. They might even admire black Americans for some special talent. But they still live in a radically different culture. Most white Americans will never grasp just how much historical weight an average black American carries on his shoulders every day. After all, most white Americans grow up with a sense that “anything is possible” in life. Black Americans, on the other hand, generally grow up thinking that they are playing a rigged game. “Legal equality” sounds great. But when you grow up destitute, surrounded by crime, without an education or a stable home, achieving “proper success” according to dominant white bourgeois values is sheer fantasy.

Reminding black Americans that they are “legally equal” is something akin to opening a magic door suspended 1000 feet above the ground, then saying: “OK, now it’s up to you to get in there.” It just doesn’t happen absent a miracle.

But conservatives can’t escape their own perspectives. They think that as long as the law treats everyone the same, it doesn’t matter what historical burden you carry. They think everyone born in America is an “American” with exactly the same advantages and opportunities as everyone else. They think that our Constitution is “color-blind” and that “race does not matter anymore.” That is easy to think when you are born with all the real, practical social advantages that make success possible under the unforgiving white American bourgeois value regime, such as maintaining a stable family, getting an education and enjoying affluent living quarters. Against this background, they cannot evaluate the issues from an average black man’s social perspective. This is why they fundamentally misinterpret continuing racial ills in the United States. They do not think black people need help because they “law has already made them equal,” so there is “nothing more to discuss.”

Interestingly, this conservative myopia is not new. Since the Civil War, our Supreme Court has defined itself by grappling with the race problem in the United States. Most people know about Plessy v. Ferguson, 163 U.S. 537 (1896), the case in which the Supreme Court held that State-sponsored segregation was permissible despite the Fourteenth Amendment’s “equal protection” guarantee because the Constitution did not guarantee “social, as distinguished from political, equality…[nor was it intended] to abolish distinctions based upon color.” Id. at 543-544. In conclusion, the Court reasoned that States could lawfully segregate the races as long as the facilities were “legally equal.” Id. at 551-552. Further, such distinctions did not imply that blacks were “inferior” to whites. Id. Justice John Marshall Harlan famously dissented from the Court’s reasoning. He wrote: “In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Id. at 559. Segregating the races, according to Harlan, stamped black Americans with a “badge of inferiority,” which in turn violated the “equal protection guarantee” under the Fourteenth Amendment.

Many scholars applaud Justice Harlan’s resistance to the majority in Plessy. In law school, our professors always voiced their support for his refusal to certify the “separate but equal doctrine.” Years ago, I agreed with them. But now, I see flaws even in Justice Harlan’s position. His arguments about a “color-blind Constitution” and “equality before the law” have been misappropriated and misunderstood in the century since Plessy. In recent Supreme Court cases, conservative justices have used Justice Harlan’s rhetoric to actually invalidate State efforts to help black people win employment in public contracting. See, e.g, Richmond v. J.A. Croson, 488 U.S. 469 (1989); Adarand Constructors v. Pena, 515 U.S. 200 (1995). In short, conservatives on the Supreme Court have used Justice Harlan’s language—which in Plessy expressed sympathy for blacks in America—in order to strike down legislation for discriminating against whites. For these conservative justices, a “color-blind” Constitution is a two-edged sword: It means that government cannot discriminate against anyone, even if it is trying to help the very groups that have traditionally suffered discrimination in American history.

This infuriates me. No one likes discrimination, but when discrimination falls upon whites—in order to remedy the gross historical wrongs inflicted on blacks—I see no problem. And I disagree wholeheartedly with the contention that the Constitution is “color-blind.” If the Constitution were color-blind, the Fourteenth Amendment would have been unnecessary. This country fought a Civil War over slavery because the racial problems it created stood in hypocritical contrast to the bold “equality principle” that supposedly defines us. By 1861, America could no longer argue in good faith that “all men were created equal” when it made some men property. The Civil War acknowledged that slavery represented an injustice in a country committed to justice—at least on paper. The Fourteenth Amendment represented an attempt to remedy past wrongs by helping black Americans find their way into American society. In essence, it was a discriminatory amendment; it assumed that Congress and the States would pass laws intended to help black Americans escape their historical disadvantages and make progress toward true equality. In that sense, Justice Harlan was wrong to suggest that the Constitution is “color-blind.” The Fourteenth Amendment implicitly required government to consider race to erase the entrenched legacy of racism in the United States. It implied that race was relevant in America. And it implied that government could not solve the problem without making some distinctions based upon race. The Fourteenth Amendment, then, is essentially remedial; it aims to remedy the legacy of slavery. More to the point, it even empowers Congress to enforce “the provisions of this Article…by appropriate legislation.” See U.S. Const. Amd. XIV, § 5. Such “appropriate legislation” includes favorable discrimination intended to carry out the Amendment’s remedial purpose.

For some reason, the conservatives do not understand this. Instead, they pry Justice Harlan’s mistaken “color-blind” language from its contextual moorings to argue that government can never consider race, even when it is attempting to fulfill the Fourteenth Amendment’s avowedly remedial purpose to help blacks. Justice Scalia often cites Justice Harlan’s “color-blind” shibboleth to support his position that “State and local governments” may never “discriminate on the basis of race in order (in a broad sense) ‘to ameliorate the effects of past discrimination.’” Richmond v. Croson, 488 U.S. 469, 520 (Scalia, J., concurring in the judgment). He thinks that any racial discrimination—even to advance the “benign purpose of compensating for social disadvantages,” and no matter whether it falls upon blacks or whites—is categorically impermissible. Id. Thus, if government believes that blacks need assistance in a social area in which they have suffered historical discrimination, government cannot adopt legislation intended to improve the situation, because that would “discriminate against whites.” And according to Justice Scalia, the Fourteenth Amendment does not tolerate discrimination against whites in just the same way it does not tolerate discrimination against blacks.

I think this reasoning fails to comprehend the Fourteenth Amendment. Congress and the States ratified the Amendment because they recognized that America had a one-way race problem: Whites dominated blacks and subjected them to every imaginable disadvantage. To correct that imbalance, the Amendment authorized government to adopt legislation intended to help blacks, even if that meant discriminating (in a literal sense) against whites. Despite all huffing and puffing to the contrary, whites have never lost their dominant position in American society. They never will. The fact that they must suffer some “abstract” discrimination once in a while will not change their dominant position. Yet Justice Scalia seems to think that any discrimination—even if it is abstract and has no bearing on white people’s unassailable dominance in American society—violates an Amendment that impliedly authorized “abstract” discrimination against whites so that blacks could stand at least a chance to achieve some practical equality in America. Considering the issue in this light, it may seem fantastic that Justice Scalia believes this. But he is not alone: At least three other Justices have expressly signed on to his deeply flawed belief that the Fourteenth Amendment is “color-blind.”

Neither our Constitution nor our society is “color-blind.” And contrary to Justice Harlan’s assertion, the United States does “tolerate classes between citizens.” Although the law does not make black Americans “property” anymore, it is evident that black Americans still do not enjoy the same average advantages as white Americans. Legal equality does not translate into practical equality. Worse, I believe that the United States has no interest in securing equality for all. This is why I believe that Justice Harlan’s rhetoric about “a classless, color-blind society” is totally unfounded. No one wants to be equal in America. Americans want to outdo one another. They want to be unequal in wealth, power and status. They want to be “better” and “more privileged” than their neighbor, not “the same.” Whether or not black people achieve equal advantages means absolutely nothing to an average white man who just wants to make money and go home at night. For most white Americans, the fact that blacks have “technical, legal equality” is more than enough. They can “sort through the rest” on their way to success. This, of course, completely overlooks the monumental social handicaps blacks still face in our country. White Americans might empathize with these handicaps, but they really don’t care all that much about them. After all, whether a black man suffers does not affect whether a white man keeps working at his career. White Americans simply say: “They do not live like us, and it makes no difference to me. I need to get to work.” That indifference allows them to turn a blind eye to continuing racial inequality in America. It just really does not matter to an average white American.

If equality were really a concern, black Americans and white Americans would all go to prison in the same proportion. Black Americans and white Americans would live in relatively comparable housing and there would be just as many “bad white neighborhoods” as “bad black neighborhoods.” Black Americans and white Americans would all score about the same on standardized tests, and both races would earn roughly comparable incomes. Yet blacks and whites are not equal in these practical realms. Legal equality has not translated into practical equality. Classes do break down along racial lines. America does tolerate “classes” and “castes.” Sadly, those “classes” and “castes” reflect a fundamental racial divide more than 140 years after a Civil War intended to mend it. No matter what Justice Scalia says, racism is alive and well in America. And it affects blacks in a way that no white American can ever imagine.