During his campaigns and presidency, Donald Trump has emphasize a “law and order” approach, focusing on supporting police, increasing funding for law enforcement, and taking a tough stance on crime and civil unrest. His rhetoric, as well as others in his administration, frames civil disturbances as challenges to public safety, while highlighting the need for stricter enforcement of laws. The Trump approach has drawn both support from those prioritizing security and criticism from those concerned about policing practices and racial justice implications. However, the criticisms are not merely misplaced, but largely hail from an left-political standpoint corrupted by critical race theory. Those advocating the standpoint purport to speak for a community that is far from monolithic.
While I was in graduate school at the University of Tennessee, Randall Kennedy, a left-liberal law professor at Harvard, published Race, Crime, and the Law (1997). This book impacted my understanding of the problem I was tackling in my dissertation, Caste, Class, and Justice: Segregation, Accumulation, and Criminalization in the United States, which concerned the problem of the racialization of the criminal law and its enforcement. (Kennedy is the author of several books, including his 2002 Nigger: The Strange Career of a Troublesome Word. Troubling, and often comically, Kennedy faced restrictions on citing the title while on tour promoting the book.)
While much public attention has focused on police misconduct, biased prosecutions, and unfair sentencing, Kennedy argues that these are only part of the picture. He contends that a deeper and more pervasive injustice is what he terms “racially selective underprotection.” In his words, “blacks have suffered more from being left unprotected or underprotected by law enforcement authorities than from being mistreated as suspects or defendants.” (In a January 2024 essay, Ever Wonder What Progressives are Trying to Accomplish with Their Social Policies?, I argue that the systematic underprotection of blacks in America’s cities is not accidental.)
For this position, Kennedy was heavily criticized by those who were socializing critical race theory (CRT) at the time. CRT is an ideology that sees enforcement of the criminal law through the lens of “systemic racism.” With this concept, public safety was interpreted as racially-motivated government oppression. CRT advocates saw Kennedy’s commitment to colorblindness—that is, equal treatment before the law regardless of race—as a betrayal of the black movement, rooted in New Left politics, to define social relations primarily in terms of race. They needed Kennedy on their side, they lamented, but he was getting in their way. (Kennedy analyzes this phenomenon in his Sellout: The Politics of Racial Betrayal, published in 2008.)
Yet Kennedy’s argument in Race, Crime, and the Law is compelling and backed by a mountain of evidence. He documents that black Americans are “doubly victimized” by crime—first by the offenders who prey disproportionately on black communities, and second by the legal system’s neglect in providing them equal protection. As he puts it, “the principal injury suffered by African Americans in relation to criminal matters is not overenforcement but underenforcement of the laws” (emphasis mine). This observation reframes the debate: the problem is not only that black citizens are policed too harshly in some contexts (Kennedy admits there are problems here), but also that they are too often abandoned when they most need protection.
By highlighting this imbalance, Kennedy urges a broader conception of racial justice—one that demands not just fair treatment of black defendants, but also adequate protection of black neighborhoods. His argument is what inspires my moral assertion that public safety is a human right. Kennedy’s thesis thus challenges reformers to balance concerns about over-policing with the pressing need to address crime and insecurity in neighborhoods that have historically been underserved by law enforcement.
Given the hysteria surrounding Trump’s program of enhancing law and order in America’s crime-ridden inner cities, a program that has yielded positive results in Washington, DC, yet has been resisted by Democrat leaders in California, Illinois, and other blue states, it appears that Kennedy’s critics won the argument on the left. Thus, one finds, despite Kennedy’s left-liberal bona fides, his arguments routinely portrayed as conservative. His friendly criticisms of affirmative action and DEI, crucial for finally realizing America’s foundational principle of equal treatment, have made him a frequent target for the black Brahmin class I identified in my essay, The Mark of Progressive Racism: The Infantilization of the Black Proletariat, published earlier this week.
freedom and reason 