FIRST READING MODULE: POST RACIAL AMERICA?
SECOND READING MODULE: RACE, LAW, AND NATIONAL IDENTITY
THE AMERICAN RACIAL LEGAL ORDER
Origins
· US CON and early law provide norms and precepts to maintain a slavery regime
o Concepts:
§ Inferiority, racial purity, property, powerlessness, discouragement of manuition and subjugation of free blacks, limitation of the capacity to resist, sexual dominance
Slavery and the judiciary
· Slavery requires uncontrolled authority of the slave’s body
· “slavery trinity”
o absolute dominion is critical the value of the slaves as property, ensures the security of the master, and ensure public tranquility
· Norms of slavery regime put forth through both positive law (CON, slave codes) and case law
· Norms and precepts of slavery regime
o Natural inferiority
o Promoting racial purity, coupled with sexual dominance
o Idea of property
o Powerlessness
o Discouraging manuitions
o Disabling free blacks and slaves
o Disabling black resistance
o Hindered black exposure to culture and education
· Case law…using violence and cruelty to promote the slavery trinity
· Not just judges and legislators advancing the norms of slavery
o Also, senators and local officials
§ Sen. Hammond (SC)…every good society needs a mudsilled labor pool to perform menial labor…mudsilled theory
· Slaveocracy
o Pigmentocracy
· Juxtaposition of freedom/liberty and racial oppression
· Fugitive slave provisions
o Property rights
· Up until 1850, national authority was thought to be the main means for regulating the racial order
· Growing sense of awareness of the moral implications of slavery
o What do you do when law runs up against your perception of the good?
§ Revolutionary means to achieve revolutionary ends? … radical
Indian Nations and the emerging Indian identity
· Assimilation v. removalism
· SC’s power is limited in race case
o The limit of force comes on the enforcement side (within the executive)
· BIG QUESTION…Can 19th century federal Indian policy be viewed as ethnic cleansing?
· New concepts
o Formation of conflicts
§ States become the oppressors of minority rights
§ National authority is called to extinguish this inequitable policies
o Assimilation
§ Not considered for black slaves
§ Understand assimilation as predatory assimilation
§ With race it is typical asymmetrical assimilation, rather than bilateral blending
· Whites will not become more Indian
§ Qualified assimilation coupled with segregation
o Pluralistic association
o Formation of an Indian state
o Development of essentialism in notions of race
§ Diversity if Indians is conflated into the noble savage
§ Diversity of whites is conflated into the American
§ Diversity of Negros is conflated into blacks
o Racial discourse is becoming increasingly phallocentric
§ No mention of women
o Racial discourse is becoming formalized through law
§ Legal morality makes up for the lack of morality in race relations
· Tocqueville was wrong about Indians perishing, even though their population has decreased considerably
· Does slavery dishonor blacks? Does the conquering of Indian nations dishonor Indians? Does it dishonor dominant society for treating these peoples this way?
o This leads into the next section…the question of honor
Race and reconstruction: reshaping the constitutional order
· Remnants of the civil war still linger
o Tea Party
o Attempted celebration of Confederate history month in VA
o Flying of the Confederate flag next to the SC state capital
§ NAACP is still “the enemy”
· Perpetuation of racial and political conflict over the maintenance of Confederate rhetoric and imagery
o Reconstruction also served as one of the most contentious periods of American history. Issues:
§ Race and national identity
§ Federalism
§ Construction of a historical narrative
· Views
o (1) Negative portrayal (traditional view)
o (2) Revisionist view of reconstruction (1960s; prevailing view)
§ both traditionalists and revisionists agree that reconstruction methods were radical and that the congressional/constitutional transformations were revolutionary
o (3) Post-Revisionist
§ reconstruction wasn’t nearly as radical or revolutionary
· Why do people still battle of Reconstructionist history?
o Why do we still focus on the Civil War?
§ I.e., things like confederate reenactments, Tea Party rhetoric, Southern nostalgia
§ Romantic sense of loss associated with the “farmers/underdogs” of the Confederacy fighting on their front lawns
· The war was about Confederate liberty from big government (much like the American revolution)
§ Sense of recognition with rebellious movements
§ Southern honor/dignity
· Reconstruction’s reshaping of the constitutional order…based on giving rights to individuals….abolition of slavery; elevation to citizenship; equal protection clause; due process clause; voting rights
o Emancipation Proclamation
o Thirteenth Amendment
§ black codes ensued
· remember: there was no moral condemnation of slavery
o thus, the underlying notions of black inferiority maintaining the slavery regime were not condemned. So in a sense, notions perpetuating black inferiority were not morally condemned. Thus, black codes could be more restrictive than not.
o Civil Rights Act of 1866
§ Effectively overrules black codes
§ Civil rights v. political rights v. social rights
o Presidential Veto Message
§ Johnson…granting blacks citizenship signaled preferential legal treatment for blacks
o Fourteenth Amendment
o Fifteenth Amendment
· Timeline
o 1865-1867…Presidential Reconstruction
§ before ratification of 14th Amendment
§ conservative as possible
o 1867-1870…Radical Reconstruction
§ there are arguments that if Johnson was not so obstructionist we would not have gotten so much done in Radical Reconstruction
o post-1870
§ violence and resistance to the race movement
§ rise in terrorism
§ Republicans may have been abolitionists, but many were still racists
o 1876-1877…End of Reconstruction
§ troops are removed from the South as a means for President to get elected
§ South is back of the hands who opposed Reconstruction to begin with
Judicial interpretation of reconstruction efforts
· Slaughterhouse Cases
· Civil Rights Cases
· Court offered a very narrow interpretation of the rights offered by the Reconstruction Amendments
· The SC offered a very conflicted kind of analysis in its approach to the Reconstruction Amendments
· Take away of judicial response to Reconstruction
o It appears as though the SC is going to offer a very narrow reading of the rights under the CON as provided by the 13th and 14th Amendment
o States will be the primary guarantors of civil rights in the 19th century, but states did not care too much about protecting the rights of newly emancipated blacks
o “equal protection was reduced to merely slogan” – Bernard Shaw
o this created a moment of depression reducing the punch of transformations produced by Reconstruction
o However, Strauder signified a case in which the punch was not reduced
· Strauder
The Reaction against reconstruction
· Paternalism couched in a rhetoric of inferiority planted a seed that grew into the manifestation of blacks’ rights deprivation on grounds for racial inferiority
· Where are we along lines of judicial interpretation post-Reconstruction?
o The interpretation of the Reconstruction Amendments is narrowly construed
o But, it also includes hostile, patronizing rhetoric that harps on the slavery precepts of the time
· RECONSTRUCTION IS OVER…TRANSITION TO THE NADIR PERIOD
· Plessy is the centerpiece for nadir period, the low period
o Race distinction v. race discrimination
o Expressive function of law
o Separate but equal
§ Race distinction must be a reasonable one
o Whiteness as property
o Upside of Plessy majority
§ The policy of equal but separate is recognized
§ While Plessy creates the pigmentocracy that perpetuates oppression, it also gives the key to its undoing so long as the segregated accommodations are shown to be unequal
o Harlan dissent
§ Colorblind constitutionalism
· Segregation regime…two concepts proving that segregation was not a better policy than desegregation...
o Myth of autonomy
§ Racial separation with whites running the show
o Lynching
§ Lynching is the brook of fire that everyone must cross to understand race relations in our culture
· Giles
o Disenfranchisement of black voters
· Many of the achievements of the Reconstruction period were undone in the Nadir period because of both violence and judicial interpretation
· What is the state of race at this time?
o The problem is a jurisprudential one
§ Classical legal jurisprudence (where we are in the 19th century)
§ Legal realism…shift in the jurisprudence in the 20th century…
Race and second reconstruction: a legal realist victory?
· …What accounts for this shift in race relations and jurisprudence?...Second Reconstruction
o immigration, migration, professional legal reformers, WWI and II, national identity, intellectual struggles, social events
· Buchanan
· Legal realism…using law as an instrument to produce social outcomes
o It was good that we took the classical approach in Buchanan because social norms did not push for racial equality and thus legal realism would not have produced a positive outcome at the time
· Smith
o Piercing public/private distinction
o Remarkable transition in Shelly and Smith
· Shelley
o The SC explodes the private v. public distinction
o You cannot square Shelley with the old constitutional order
§ This constitutional order acts as an instrument for the Court to produce explicit policy determinations
· A move away from formalism
· Recap
o Legal realism opens up argumentative possibilities
o Collapsing of public/private distinction and collapsing of the private sphere
o Changes in American society through immigration and migration
o War
§ WWI, WWII, Cold War
o Athletics
§ Integration of baseball
o National identity
Foundation of modern era race relations
· Brown I
o Moving toward a more legal realist approach
o Landmark decision, but purports to deal with “separate but equal” only within the context of public education
o The reliance on social science is critical to the decision
o What was wrong with the Brown decision?
o Principle: Segregation runs foul of the equal protection clause in so far as it disallows blacks’ participation in the democratic process
o We know that Brown is correct because it lacks principle grounding
· Bolling
o Current context trumps historical context
· Brown II
· Cooper
o SC holds that we interpret the CON and you follow
· Recap
o Brown brought about a massive shift in…
§ The legitimacy of segregation policy
§ Jurisprudence
· Move to legal realism from a more classical approach
o Critiques of Brown
§ People question the constitutional grounding of the legal analysis in Brown
§ Use of dubious social science studies in the opinion
· Studies inferring feelings of inferiority amongst blacks
o The impact of Brown was not nearly as dramatic as we would have liked in terms of the integration of public education
Foundation of the modern era of race relations
· The reoccurring pattern of white superiority and black inferiority remain intact after Brown
· King
o Distinguishing between just and unjust laws
· Peterson
o Is there state action everywhere?
§ Remember Shelly. Peterson highlights the public/private distinction put forth in Shelly.
§ Outlaw of segregation in public places is solidified in the Civil Rights Act of 1964.
o Peterson enlarged the public sphere and shrunk the private sphere
· Civil Rights Act 1964
· Heart of Atlanta
o Commerce Clause argument
· Katzenbach
o Congress has grounds to invalidate voting laws because the 15th is self-executing on its face, and Congress has the authority to act specifically as put forth in
· The Second Reconstruction…The Civil Rights Era
o Bracey views its impact as seminal
§ There are a number of real gains worth highlighting
o People disagree and believe that the Civil Rights Movement wasn’t that big of a deal
§ Civil rights movement came at the expense of the legal process and legal system
§ Some people say that there really hasn’t been a whole lot of change accomplished by the Civil Rights Movement
§ Norms of privilege remain in a system that is purportedly race neutral on its face
RACE AND PERSONAL IDENTITY
What is “race?”
· In the legal spectrum, race is at best inconsistently defined and at worst completely incoherent
o Race is radically underconceptualized
· Before we were concerned with however government ruled on issues of race, where now we are more thoroughly involved in individuals’ self-determination of their race in cohesion with the law
· “the absurdity of race”
· How is race viewed within the law?
o Race may have biological aspects
o Race may have sociopolitical aspects
· If law is going to treat people differently on the basis of race, then the law must find some kind of cognizable racial classification system…
Early efforts to litigate racial categories
· Legal interpretation takes place within a field of pain and death
· The discretion of judges to assign racial classifications proved expansive (in the case of the Indians) and pernicious (in the case of the Chinese)
What about the “others?” The pitfalls and possibilities of a multiracial census
· Some argue that race is such an absurd construct that it should be abandoned
· Should we do away with racial categories?
Early efforts to delineate who exactly may become part of “we the people”
· Progressive racial movements will always be deemed as radical when viewed in juxtaposition with constitutional history; however, in reality, it is only radical to maintain the slave-holding, inferiority-perpetuating status quo when juxtaposed with the CON, a document premised on liberty for all
· DS subverts the promise of America as an open political community
o Community began to be defined be exclusion rather than inclusion
o Race is to be explicitly discussed and considered in the American political community
o The struggle for citizenship became nothing more than a race war
· …thus, as a society with politics so deeply rooted in race, it is not so hard to understood why we can’t shake they notion of race now
· Taney evokes concepts of community in Dred Scott
o Taney concludes that Negroes should be excluded from the relevant political community i.e. citizenships