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
  • 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”
  • 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
  • Natural inferiority
  • Promoting racial purity, coupled with sexual dominance
  • Idea of property
  • Powerlessness
  • Discouraging manuitions
  • Disabling free blacks and slaves
  • Disabling black resistance
  • 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
  • Also, senators and local officials
  • Sen. Hammond (SC)…every good society needs a mudsilled labor pool to perform menial labor…mudsilled theory
  • Slaveocracy
  • Pigmentocracy
  • Juxtaposition of freedom/liberty and racial oppression
  • Fugitive slave provisions
  • 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
  • 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
  • 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
  • Formation of conflicts
  • States become the oppressors of minority rights
  • National authority is called to extinguish this inequitable policies
  • 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
  • Pluralistic association
  • Formation of an Indian state
  • 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
  • Racial discourse is becoming increasingly phallocentric
  • No mention of women
  • 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?
  • This leads into the next section…the question of honor

Race and reconstruction: reshaping the constitutional order

  • Remnants of the civil war still linger
  • Tea Party
  • Attempted celebration of Confederate history month in VA
  • 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
  • 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
  • (1) Negative portrayal (traditional view)
  • (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
  • (3) Post-Revisionist
  • reconstruction wasn’t nearly as radical or revolutionary
  • Why do people still battle of Reconstructionist history?
  • 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
  • Emancipation Proclamation
  • Thirteenth Amendment
  • black codes ensued
  • remember: there was no moral condemnation of slavery
  • 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.
  • Civil Rights Act of 1866
  • Effectively overrules black codes
  • Civil rights v. political rights v. social rights
  • Presidential Veto Message
  • Johnson…granting blacks citizenship signaled preferential legal treatment for blacks
  • Fourteenth Amendment
  • Fifteenth Amendment
  • Timeline
  • 1865-1867…Presidential Reconstruction
  • before ratification of 14th Amendment
  • conservative as possible
  • 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
  • post-1870
  • violence and resistance to the race movement
  • rise in terrorism
  • Republicans may have been abolitionists, but many were still racists
  • 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
  • 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
  • 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
  • “equal protection was reduced to merely slogan” – Bernard Shaw
  • this created a moment of depression reducing the punch of transformations produced by Reconstruction
  • 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?
  • The interpretation of the Reconstruction Amendments is narrowly construed
  • 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
  • Race distinction v. race discrimination
  • Expressive function of law
  • Separate but equal
  • Race distinction must be a reasonable one
  • Whiteness as property
  • 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
  • Harlan dissent
  • Colorblind constitutionalism
  • Segregation regime…two concepts proving that segregation was not a better policy than desegregation...
  • Myth of autonomy
  • Racial separation with whites running the show
  • Lynching
  • Lynching is the brook of fire that everyone must cross to understand race relations in our culture
  • Giles
  • 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?
  • 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
  • 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
  • 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
  • Piercing public/private distinction
  • Remarkable transition in Shelly and Smith
  • Shelley
  • The SC explodes the private v. public distinction
  • 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
  • Legal realism opens up argumentative possibilities
  • Collapsing of public/private distinction and collapsing of the private sphere
  • Changes in American society through immigration and migration
  • War
  • WWI, WWII, Cold War
  • Athletics
  • Integration of baseball
  • National identity

Foundation of modern era race relations

  • Brown I
  • Moving toward a more legal realist approach
  • Landmark decision, but purports to deal with “separate but equal” only within the context of public education
  • The reliance on social science is critical to the decision
  • What was wrong with the Brown decision?
  • Principle: Segregation runs foul of the equal protection clause in so far as it disallows blacks’ participation in the democratic process
  • We know that Brown is correct because it lacks principle grounding
  • Bolling
  • Current context trumps historical context
  • Brown II
  • Cooper
  • SC holds that we interpret the CON and you follow
  • Recap
  • Brown brought about a massive shift in…
  • The legitimacy of segregation policy
  • Jurisprudence
  • Move to legal realism from a more classical approach
  • 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
  • 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
  • Distinguishing between just and unjust laws
  • Peterson
  • 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.
  • Peterson enlarged the public sphere and shrunk the private sphere
  • Civil Rights Act 1964
  • Heart of Atlanta
  • Commerce Clause argument
  • Katzenbach
  • 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
  • Bracey views its impact as seminal
  • There are a number of real gains worth highlighting
  • 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
  • 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?
  • Race may have biological aspects
  • 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
  • Community began to be defined be exclusion rather than inclusion
  • Race is to be explicitly discussed and considered in the American political community
  • 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
  • Taney concludes that Negroes should be excluded from the relevant political community i.e. citizenships
  • No citizenship, no subject matter jurisdiction
  • Taney’s originalist argument is the cement that holds this entire opinion together
  • Marshall says we should not be so quick to celebrate the CON because it is not conducive to equality
  • Marshall wants to promote the idea of a living CON
  • By subscribing to Taney’s view of the CON, Marshall created a problem in the civil rights movement in that it portrays the movement as radical and innovative rather than merely making good on constitutional rights suppressed by radical and innovative oppression
  • Stoddard calls for the inhibition of the great flux of immigrants
  • Isolationist
  • Stoddard focuses most of his fear and consequent oppression on Asians
  • Three available criteria for racial determination…either way the Court is going to rule against you
  • (1) scientific/ethnographic
  • (2) framers’ perspective
  • (3) popular conception
  • two ways of maintaining racially exclusionary preferences
  • naturalization and inhibition of immigration

THIRD MODULE: APPROACHES TO RACIAL REGULATION

  • Four paradigms concerned with thinking about race
  • Free choice/no government intrusion (minimal intrusion)….anti-discrimination (where we are today)…pluralism/diversity (identity politics regime…some parts of our current regime is here)…critical race theory (maximal intrusion; deep consciousness; maybe some tax and transfer; deeply nihilistic…maximal government intrusion is highly unlikely)
  • As we move up the continuum, there is more government intrusion

“LAISSEZ FAIRE”/MINIMAL GOVERNMENT INTRUSION

  • Friedman
  • two important contributions
  • (1) racial discrimination is analogous to a taste
  • (2) Market discipline will get rid of race prejudice
  • Bork
  • Unjust to impose morality through law
  • When it comes to racial discrimination, the problem is that not everybody believes it is immoral
  • Epstein
  • Law and economics approach
  • Recap
  • Attractions of this libertarian model
  • Clear architecture
  • Not a lot of bureaucracy
  • Racial discrimination can be understood as a rational decision
  • Racial discrimination perceived and understood as a taste
  • Consistent with overarching capitalist regime
  • Reliance on market discipline to correct racial injustice
  • With minimum government intrusion, there becomes an incentive for self-improvement
  • Whites…maximization of efficiency through hiring
  • Minorities…make themselves more contractible
  • Based upon an ideology of human decency; anti-government intrusion
  • People will figure out the right thing
  • At least by searching for the greatest degree of efficiency
  • Criticisms of this libertarian model
  • It seems odd to treat racial discrimination as a mere taste
  • It seems to have more effects
  • It is about social structuring and repositioning people at the bottom of this social structure
  • Seems to treat racial discrimination as rational/legitimate
  • Until people of color have made themselves worthy of being contracted with
  • Sense of market failure within the context of racial discrimination
  • People have been more than happy to discriminate and bear the heavy cost of doing so
  • Where there is market failure, there is a need for intervention
  • Transformation would not be progressive
  • Transformation would be gradual was seen as a plus in the model
  • The incentive for self-improvement can be understood as creating a pre-condition for futility
  • There is nothing one can do, so might as well give up and accept disenfranchisement
  • Lacks any moral condemnation of racial discrimination
  • Criticisms seem to outweigh the upsides for the freedom to contract/minimal government intrusion model
  • Big critiques
  • No real moral condemnation of racial discrimination
  • Moral imperative
  • Lack of a sense of urgency
  • However, there is still space for elites to buy out of the new morality that opposes racial discrimination
  • E.g., social clubs still discriminate

THE ANTIDISCRIMINATION MODEL

  • How do the notions of moral imperative and urgency play out under this model?
  • King
  • Moral imperative
  • King criticizes gradualism
  • Urgency along with a moral imperative
  • This produces the emergence of the antidiscrimination model…which is where we are today

Anti-discrimination model

  • Model anchored in the antidiscrimination principle
  • What is the antidiscrimination principle?
  • (1) The principle that disfavors classifications and other decisions and practices based on race or ethnic origins
  • General formulation of antidiscrimination principle
  • Bradford Reynolds
  • Would prohibit even benign race distinctions
  • (2) The principle that disfavors classifications and other decisions and practices against racial minorities…racial distinctions that don’t disfavor racial minorities remain operative
  • Narrow formulation of antidiscrimination principle
  • Brest
  • Allows for affirmative action and other benign race distinctions
  • Need to be interrogated, but not presumptively invalid
  • Bayard Rustin
  • Focused on a broad antidiscrimination principle coupled with a radical redistribution of wealth on the basis of class

Recap