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Racial Uses of American Law: The Maintenance of Slavery and the Protection of Civil Rights, Study notes of Political Science

Spelman CollegePolitical Science
Prof. Marilyn A. Davis

The historical relationship between american law, slavery, and civil rights protection. It argues that the maintenance of slavery was a fundamental 'equal exchange' for the establishment of constitutional government's commitment to basic rights of liberty. The document raises questions about whether slavery was deeply entrenched in american politics and law, making it difficult for congress to end it before the civil war. It also discusses the limitations of post-civil war amendments and civil rights laws in protecting blacks from discrimination. The document concludes by considering whether congress could have ended slavery in 1858 and the role of the government in protecting black civil rights during reconstruction.

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2010/2011

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Chapter 2
Racial Uses of American Law
(made by Congress, enforced by the President & 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 & the uses of history argues that the maintenance of slavery-its
recognition & protection (see Article ! & 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 (p.31-36) 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. 14-life, liberty & property
c. 15-
B. Dredd Scott:
a. The intention of the 1st 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 post-Civil War Amendments’ scope & the Civil Rights Laws of the 19th
& 20th centuries (pp.45-47) 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?
2. John Property-First says no; even though he opposes slavery, John
believes
pf3
pf4
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Chapter 2

Racial Uses of American Law

(made by Congress, enforced by the President & 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 & the uses of history argues that the maintenance of slavery-its recognition & protection (see Article! & 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 (p.31-36) 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. 14-life, liberty & property c. 15- B. Dredd Scott: a. The intention of the 1st^ 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 post-Civil War Amendments’ scope & the Civil Rights Laws of the 19th & 20th^ centuries (pp.45-47) 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? 2. John Property-First says no; even though he opposes slavery, John believes
  • Lincoln was a Senator before a President- Did Lincoln speak out for or against Dredd Scott? AGAINST
  • Pierce in office 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.” – Lincoln Could Congress have ended slavery in 1883? John Property-First says no ; even though he opposes slavery, John believes that the first American priority must be absolute protection of property rights…including property rights in slaves. John’s justification is based on at least four facts:  America was founded mainly to protect vested (authority derived from ownership) property interests. The structure of the Constitution (division of powers, check and balances, restriction of the vote and limited powers of elected officials) served to protect the socioeconomic status quo.  Slavery was an especially profitable form of property.  Even though person(s) 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 (pre-Civil War Supreme Court decisions, like Dred Scott, protected slavery in most cases), Congress lacked the authority to eliminate slavery prior to the ratification of the 13th^ 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 justification 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 o Hammer vs. Dagenhart [Child Labor Case] - 1918  A direct tax or federal head tax imposed by Congress would have eroded the profitability 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. o Manumission program (setting slaves free)
  1. Recognition of groups (or forces) with power greater than law:

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 14th^ & 15th^ 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. The Court’s interpretation of the constitutionality of legislation 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 & 48: the Court handed down decisions that actually contributed to the violation of civil rights, through narrow interpretations of the Constitutional amendments 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 first. 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 of test 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 Congressional intention was unconstitutional because the 14 th^ Amendment protects against state discriminatory action only. 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 & 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 government’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. No=narrow.), where the 14th^ 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 5th^ Amendment and the 14th^ Amendment are the same, private discrimination may be reached through the 5th^ 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 19th^ 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.
  2. There were judicial victories with Guinn v.s U.S. in 1915, Smith v. Allwright in 1944, and Baker v. Carr in 1962 (voting rights case).

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 sacrifice the rights of Blacks. This is a second critical race theory assumption. Ex 1- When the 1876 presidential election was in dispute, threatening a renewed civil war, the Hayes-Tilden Compromise was reached; northern troops were withdrawn from the South and the fate of newly-freed Blacks was left to the former masters. Ex2 – When working class whites exchanged their continued support of elite policy makers for official segregation (Plessy v. Ferguson 1896), working class white status gained at the expense of Black status. Ex 3 – T get southern support for the Constitution in 1787 the framers made the classic sacrifice of Blacks by putting no less than 10 provisions in the document to recognize and protect property in slaves.