One of the most discordant features of the national “conversation on race” we find bobbing in the wake of the Ferguson, Missouri incident (in which a white police officer shot and killed a young black man) is, as New York Times columnist David Brooks has noted, the attempt to tie the discussion back to the civil rights-era struggles of the 1950s and 60s. But this is almost a category error in my view because those struggles were legal struggles that took shape over the course of the hundred years following the American Civil War. What we are dealing with now is something else. To help us figure out what that “something else” might be, we need to look back at the history of slavery in the United States and how a legal narrative evolved to combat its pernicious legacy.
Slavery was legally institutionalised – albeit obliquely and euphemistically (the word “slave” and its cognates appear nowhere) – in the United States’ Constitution. In short, there was no clear consensus – an unambiguous public narrative, if you will – about the morality or practical desirability of slavery. In fact, much evidence suggests that the Constitution’s drafters were so divided on the subject that they mostly set the matter aside for later resolution.
After the other two branches of government had failed to resolve the slavery question, the United States Supreme Court entered the fray in Dred Scott v. Sanford, which has proved to be one of the most vilified decisions in Supreme Court history. Dred Scott, who had admittedly once been a slave brought a trespass suit in federal court against John Sanford. He claimed that the federal court had “diversity of citizenship” jurisdiction over the suit because he was a citizen of Missouri and Sanford was a citizen of New York. Scott asserted that he became free by virtue of his residence in two states in which slavery was banned. Sanford countered that even if Scott were free, that did not make him a “citizen” of Missouri and, therefore, the federal court had no jurisdiction to hear Scott’s case. Chief Justice Roger Taney’s majority opinion in Dred Scott held that Scott, as a member of a “subordinate and inferior class of beings”, could not, ipso facto, be a “citizen” of any state within the meaning of the Constitution.
A civil war, three Constitutional Amendments, and a host of enabling acts later, there was no longer doubt that blacks were legal persons entitled to the full range of Constitutional protections. But what that range entailed was a different matter. Plessy v. Ferguson, which was decided nearly forty years after Dred Scott, showed how the narrative of difference had not been erased and could still trump the grand public narrative of America as a bastion of freedom and equality.
In 1890, Louisiana passed a statute requiring railways to provide “equal but separate accommodations for the white and colored races”. Plessy, who claimed to be seven-eighths white, was prosecuted for refusing to leave a “white” passenger car. The gravamen of Plessy’s suit was that Louisiana’s legislation could not be justified under even a minimal ‘reasonableness’ standard. But the majority disagreed, holding that anything negative about the law came not from the law itself but from, essentially, blacks being overly sensitive in perceiving the law as insulting to their humanity!
It took another fifty-plus years for the Supreme Court to undo the separate but-equal mischief wrought by Plessy and its progeny. That happened in Brown v. Board of Education of Topeka, a case in which the plaintiffs challenged the constitutionality of state laws permitting schools segregated by race. Justice Warren, writing for a unanimous court, started from the premise that the historical record surrounding adoption of the Fourteenth Amendment was generally “inconclusive” and – because of a developing public narrative concerning the importance of public education – largely irrelevant: “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”. In other words, separate but- equal was inherently unequal and could no longer stand as a matter of Constitutional law.
Each of these cases turned on an important and easily discernible (though hotly disputed) legal question: was Dred Scott a “citizen” within the meaning of the Constitution; did Louisiana’s separate-but-equal law violate Plessy’s constitutional rights; and did the legally sanctioned, racially segregated schools of Topeka, Kansas constitute a violation of fundamental rights? Of course just because these cases can be framed in legal terms doesn’t mean – as American Legal Realist and Critical Legal Studies scholars have posited – that the decisions themselves were not merely reflections of the political and policy preferences of the majority author judges. But the point is that the cases read as if some issue is being resolved as a matter of legal inevitability.
It seems that Southern writer William Faulkner was both astute and prescient when, in 1956, he suggested that the law could set in motion great social change, but that prevailing attitudes had to catch up as well: “Stop now for a moment. You have shown the Southerner what you can do and what you will do if necessary; give him a space in which to get his breath and assimilate that knowledge; to look about and see that (1) nobody is going to force integration on him from the outside; (2) that he himself faces an obsolescence in his own land which only he can cure; a moral condition which not only must be cured but a physical condition which has got to be cured if he, the white Southerner, is to have any peace, is not to be faced with another legal process or manoeuvre every year, year after year, for the rest of his life”. (Faulkner’s “A Letter to the North” was published in Life magazine on 5th March 1956.) What Faulkner saw here was that an odd reversal was taking place: law, which is typically a conservative institution, was assuming the vanguard position and popular sentiment had to be dragged along.
Numerous conceptually similar cases targeting discrimination that was backed by the force of law (or in wilful disregard of it) appeared in the decades following Brown, but by the late 1970s, the Jim Crow laws (so-called after a character in minstrel shows) that had categorically barred blacks from voting, finding employment, and obtaining education had been effectively dismantled. Nowadays, though, we are faced with social issues that the law is ill-equipped to handle. Are whites unreasonably scared of blacks? Why do so many black children grow up in single-family homes? Why do some minority groups eschew the benefits of education that other (even minority) groups embrace? These questions implicate moral, psychological, and sociological issues that the law cannot solve. (Congress cannot pass a meaningful law that would make certain whites less fearful of blacks or hope to define every “micro-aggression” or “microinequity” that it would be desirable to banish from social and professional interactions between the races.) And, more often than not, these issues are rooted as much in class as in race - what Brooks calls “visceral attitudes about competence” that elites hold towards the poor.
None of this is to say that wise policy decisions that result in beneficial legislation and court decisions cannot ameliorate some of the difficulties suffered by racial minorities and the poor. But there are fewer and fewer clean legal issues facing lawmakers (e.g., de jure segregation) that can hope to have anything like the social ramifications of Brown.
So where does this leave us? Certainly it leaves us outside the walls of law. Possibly it leaves us in literature’s domain, that great storehouse of insights into right conduct across cultures and over time. But perhaps, although the thought greatly upset Faulkner’s intermittent hero Isaac McCaslin in Go Down, Moses, the solution will only come to pass through time and its capacity to obliterate all racial and ethnic distinctions: “Chinese and African and Aryan and Jew, all breed and spawn together until no man has time to say which one is which nor cares”.