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Racism and the Law

by: Fletcher Hoeger IV

Racism and the Law SPSC 484

Fletcher Hoeger IV

GPA 3.61

Marilyn Davis

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Marilyn Davis
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This 7 page Class Notes was uploaded by Fletcher Hoeger IV on Tuesday October 20, 2015. The Class Notes belongs to SPSC 484 at Spelman College taught by Marilyn Davis in Fall. Since its upload, it has received 28 views. For similar materials see /class/225518/spsc-484-spelman-college in Political Science at Spelman College.


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Date Created: 10/20/15
Chapter 2 Racial Uses of American Law made by Congress enforced by the President amp interpreted By the Court THE ARGUMENT OF CH 2 The maintenance of slavery was an equal exchange of principles 1 Judgment of Black civil rights protection before and after the Civil War CH 2 on American racism amp the uses of history argues that the maintenance of slaveryits recognition amp protection see Article amp 4 of the Const p 38 were the basic equal exchange or substitution for the establishment of American constitutional govt s commitment to the protection of basic rights of liberty A The hist outline of the CH Raises the question of whether slavery was so established in the political and legal fabric of America that Congress trying to act after the Dred Scott decision p31 36 and before the Civil War would have been unstable to end it through legislation It took a Civil war a defeated South to be punished for its disloyalty to get the Civil War Amendments a 13 ended slavery b l4life liberty amp property c 15 B Dredd Scott a The intention of the ISI Cong Of the United States pg 34 i 3 5ths Compromise ii Naturalization Law if you are not white you can t be a citizen iii No state practice that blacks are not citizens pg 32 C Another question the chapter raises is whether unacknowledged forces with power greater than the postCivil War Amendments scope amp the Civil Rights Laws of the l9Lh amp 20Lh centuries pp4547 diluted the protection form discrimination Blacks expected from laws and policies intended to have this purpose 1 The issue for discussion on reading the CH and the suggested reading by Whittington is this Could Congress have ended slavery in 1858 John PropertyFirst says no even though he opposes slavery John N believes Lincoln was a Senator before a President Did Lincoln speak out for or against Dredd Scott AGAINST Pierce in of ce but Buchannan was just elected when case was Steven Douglas was the person Lincoln was debating against for the Dredd Scott decision If anything is wrong slavery is a wrong institution 7 Lincoln Could Congress have ended slavery in 1883 John Property First says no even though he opposes slavery John believes that the rst American priority must be absolute protection of property rights including property rights in slaves John s justi cation is based on at least four facts m 1 42 authority derived from The structure of the Constitution division of powers check and balances restriction of the vote and limited powers of elected of cials served to protect the socioeconomic status quo Slavery was an especially pro table form of property Even though persons is used in Article I and IV and at least 10 other provisions the status of slaveholders is addressed and protected As a matter of constitutional law preCivil War Supreme Court decisions like Dred Scott protected slavery in most cases Congress lacked the authority to eliminate slavery prior to the rati cation of the 13111 Amendments in 1865 The structure design words and instructions of the document kept the Congress from having authority 1787 1808 slavery Abigail abolitionist says yes read the Constitution to see that Congress had the authority to eliminate slavery by law in 1858 Use the Constitution to set slaves free Her justi cation is based on at least 3 facts The Commerce Clause Article 1 SS 8 allows Congress to bar or strictly regulate the interstate shipment of slaves and the produce of slavery 0 Hammer vs Dagenhart Child Labor Case 1918 A direct tax or federal head tax imposed by Congress would have eroded the pro tability of slavery in relation to industrial wages Congressional powers of taxation and spending and the necessary and proper clause allowed Congress to establish a manumission program of emancipation o Dredd Scott did not get citizenship rights but he did get set free 0 Manumission program setting slaves free 2 Recognition of groups or forces with power greater than law Politicians and justices were willing to Ignore these and other Constitutional provisions and the privileges and immunities doctrine as well as subordinate the moral issue of slavery to property concerns in order to preserve the Union 11 Government Protection of Black Civil Rights during Reconstruction A Civil War Amendments Their use To get through litigation rights protection Legislative intentions and enforcement 4547 13Lh End of slavery b 14mAcc rdmgto the Civil Rights Cases of 1881 see p 1748 51 249555557558 amp 560 the intent was to prohibit all state legislation and action which abridges privileges and immunities due process amp equal protection of the laws c 15Lh Partisan support for the northern legislature and the president d vision of Reconstruction B Civil Rights of 1866 1870 1875 legislative intentions amp enforcement a Groups that adversely affected the enforcement of the Civil War Amendments E included 1 Conservatives including radical Republicans in the Congress who worded the Amendments Compare the CRA 1866 with the 14Lh Amendment p46 2 The president and his military strategy and southern planters 3 The Congress which left major responsibility for Black rights protection to the states 4 What year did Lincoln get assassinate b These groups promoted the nonenforcement of the Amendments therefore the Reconstruction Acts of 1866 1870 amp 1875 were needed to protect Black rights Their legislative intentions are I CRA 1866 to enforce or give positive citizenship pg 46 I CRA 1870 to enforce or give broad rights protection against conspiracies p 250 I CRA 1874 to prohibit private discrimination in public accommodations p 557 Enforcement of Amendments and Civil Rights Acts c Racial Law d Civil Rights cases 1883 7 poorjudgeship ithe end of reconstruction e An uncertain Judicial protector of Rights In spite of ambivalence on the part of the three groups cited above motivations spurred them to encourage some level of enforcements of the Amendments One motivation was Political realities of economic and partisan pragmatism a prevention of a renewal of the economic dispute that led to the Civil War and b maintenance of Republican party control in the South and in Congress The expectation was that promised protection of Black rights through the l4Lh amp l5Lh Amendments would generate Black electoral support for white Republicans and it did C Did the president enforce and the Court upholds civil rights constitutional amendments and legislation The answer is offered in the concept racial law m Court s inter quot of the quot litV of 39 39 is called racial law RACIAL LAW The President had a constitutional obligation to enforce the civil rights acts however he was able to ignore this obligation because virtually no Supreme Court decision at this time interpreted the laws to mean that Blacks had legal political social and economic rights that must be protected See pp 47 amp 48 the Court handed down decisions that actually contributed to the violation of A39A u A civil rights through narrow internretations of the C and Congressional legislation that were intended to protect those rights The Court interpreted the law using a conservative in a classical liberal philosophy established order ideology from Darwin and protected economic interests rst The mind of the Court had an economic focus and accompanying ideology that encouraged judicial protection of propertied interests CIVIL RIGHTS CASES OF 1883 This set of cases is an economically ideologically motivated response from the Supreme Court The cases were test cases for the 1875 CRA What is the purpose oftest cases The test the constitutionality of legislation and executive actions The 1875 CRA extended protection of Blacks to include private discrimination in public accommodations The Court said this C 39 39 intention was quot imml because the Mg J protects against state discriminatory action onlv A weakness of the 1875 CRA was its purpose to protect social rights as distinguished form civil rights Civil rights are positive acts of government designed to protect persona against arbitrary or discriminatory treatment by government or individuals not just or only state action Civil Rights are the rights you want to protect As social rights were the ones talked about the Court made sociological interpretations which seemed more important than civil rights Cases like the CRC Plessy amp Brown focused on social relations not equality in the majority decisions Why is the Court s social focus problematic When the Court focuses on social rights to solve legal problems of racism it fails to deal with civil rights so that private persons are then free from govemment s regulatory control Moreover the Court in its Civil Rights Cases majority opinion operated under a strict interpretation of federalism a system of government in which the national and state levels of government have direct legal authority over their citizens in particular policy areas in their private actions Yes broad Nomarrow where the 14Lh Amendment means only prohibition of state action not private action In many of the cases cited in the Bell casebook the Court uses governmental discriminatory activity not private discriminatory activity reasoning to decide discrimination cases Most racial acts are private acts Too many racial acts fall through the safety net of rights protection when the state action concept is narrowly used to interpret the law Did the Harlan dissent in Civil Rights Cases solve this problem Yes Mr Justice Harlan said judicial courage must come first in decision making The useful answer or issue in his dissent in the Civil Rights Cases is Since the due process clauses of the 5Lh Amendment and the 14Lh Amendment are the same private discrimination may be reached through the 5Lh Amendment that is through its national authority which contains no state action limitation AN UNCERTAIN RIGHTS PROTECTOR With the exception of Harlan s dissenting opinions at this time and after the Court was an uncertain rights protector In spite of this record African Americans since 19111 century have looked to the Court for racism remedies Why is this true 1 There was no other neutral method of redress of grievances the president and Congress made political decisions to remain in office See Whittington There were judicial victories with Guinn vs Us in 1915 Smith v Allwright in 1944 and Baker v Carr in 1962 voting rights case N a Baker V Carr III Confronting Racism Though Compensation A Reparation to gain selfdetermination through ghting for compensation and a place in history B Emigration p 65 C Racism Hypo 216 7 African Americans and the Afrolantica Opportunity Are there other ways by which we can eliminate raciallybased injustices There are two reasons why reparation has been suggested to confronted racism p 56 1 Reparations are a financial entry into firstclass citizenship 2 Reparations are compensation for exploitation Are reparation proposals a vision or a legal possibility Pp 5762 IV Summarized History The summarized history in Chapter Two suggests three lessons about race and racism in American policy making America s dilemma is solving the racial problem Pg 275 Thinking Like a lawyer critical race theory 7 Derrick Bell Lessons from Bell Progress Toward racial justice We make progression because dominant ppl have needs When we give in we are sacrificing our rights Lesson 1 Apparent progress toward racial justice is mainly a cyclical process in which barriers lowered on one era reemerge as more sophisticated more effective policies that subordinate Black status Example 7 The status of slaves in the 17m 18m and much of the 19Lh century evolved into Jim Crow segregation after a brief Reconstruction period of 1865 7 1875 Lesson 2 Blacks only achieve significant progress when our goals coincide with the perceived needs of whites This is a critical race theorv Lawyer that talk about critical race theory Refer to pages in Thinking Like a Example 7 Prez Lincoln s executive order The Emancipation Proclamation was a gain for Black freedom when the president recognized the ending slavery would help to preserve the Union In addition employment opportunities for Blacks sometimes improve during times of war Unfortunately these gains almost never survive the crisis that prompted them Lesson 3 When whites resolve their differences it is through compromises that involuntarily sacri ce the rights of Blacks This is a second critical race theorv quot EX 1 When the 1876 presidential election was in dispute threatening a renewed civil war the HayesTilden Compromise was reached northem troops were withdrawn from the South and the fate of newlyfreed Blacks was left to the former masters EX2 7 When working class whites exchanged their continued support of elite policy makers for of cial segregation Plessy v Ferguson 1896 working class white status gained at the expense of Black status EX 3 7 T get southern support for the Constitution in 1787 the framers made the classic sacri ce of Blacks by putting no less than 10 p 39 39 in the J to 39 and protect property in slaves


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