The Problem of Race in America

Justice Taney attempts to analyze the question of who was considered a citizen at the time the Constitution was being written, in order to determine who might be considered a citizen during the time of the trial, forty years later. He briefly examines western hemispheric slavery, painting a seemingly sympathetic picture of the “unhappy” African people, almost fatalistic when he calls them “unfortunate,” but concludes that it’s just how things are. He even observes how no nation was more adamant in their ruthlessness than the English, and by proxy, the Americans. He tells us, “They not only seized them on the coast of Africa and sold them or held them in slavery for their own use but they took them as ordinary articles of merchandise to every country where they could make a profit on them and were far more extensively engaged in this commerce than any other nation in the world.” He argues that the Founding Fathers were perfectly aware of the fact that their words would be understood to exclude people of African descent. They spoke, “in the ordinary language of the day, and no one misunderstood them.” Taney understood “people” and “citizen” in the way Aristotle might have — as members of a political community. He is even able to point to two places in the Constitution that would seem to allow for slavery’s existence. When I read Taney’s arguments, I am struck more by the horrifying injustices of slavery which are mentioned casually and would seem to acknowledge just how deeply ingrained and tightly interwoven white supremacy is in this culture.

In the case of Dred Scott, it was completely feasible that the court might have declared slavery itself unconstitutional and ended it six years before the Emancipation Proclamation. They might have begun from the premise that Dred Scott was a human being, and when presented with the same facts, come to a vastly different outcome. They might have, but they didn’t. Without putting it so succinctly, the Dred Scott decision effectively upheld white supremacy and declared any ambiguities about black civil rights completely void. It’s disturbing when one considers the implications of such a ruling, and admits that there has never been a specific Supreme Court case to overturn the legal precedent that was set.

In Abraham Lincoln’s opening questions regarding those who apparently resisted the Dred Scott decision, he asks, “…who resists it? Who has, in spite of the decision, declared Dred Scott free and resisted the authority of his master over him?” This could almost be read as a radical call to action. He addresses the profound nature of the ruling when he presents the twofold nature of the American judicial system: “to determine the case decided; and, secondly to indicate to the public how other similar cases will be decided…” Mr Lincoln rightly calls the decision “erroneous” and mentions how the same court has overturned its own rulings in the past. He addresses the fact of partisan biases on the part of the judges and how much of the ruling had been based on, “assumed historical facts which are not really true.” He gives the example of the National Bank to show how things which might at one time be considered constitutional may at other times be considered unconstitutional. He quotes Jackson as saying, “Mere precedent is a dangerous source of authority.” Alexis de Toqueville likewise criticises the idea of legal precedent and presents it as unique to English and American culture. Lincoln rejects Taney’s interpretation of history, and shows how five of the thirteen colonies had free black voters at the time of the framing of the Constitution who had helped with the creation of the Constitution itself. This is an important piece of information when it comes to interpreting the word “citizen.” Lincoln dismisses the notion that things are getting better for black Americans and suggests that, in fact, they are worse.

Although Lincoln’s opinions become problematic when he speaks of the, “natural disgust in the minds of nearly all white people at the idea of an indiscriminate amalgamation of the white and black races,” his overall attempt at effecting social change is very progressive. I agree with Lincoln’s mission, and yet I can’t help but wonder if his approach to history isn’t also slightly manipulative of facts. Can we accept the obvious hypocrisy of slave owners writing that “all men are created equal.” Might Lincoln’s parody of Taney actually be close to the truth: “that all British subjects who were on this continent eighty-one years ago were created equal to all British subjects born and then residing in Great Britain.” Lincoln’s mission is obviously to change people’s hearts and minds, but I shy away from an overly romanticised portrayal of the Founding Fathers. I believe white supremacy is very much at the root of this country’s history and we are blind to its effects unless we remain rigorously aware of it. Even Lincoln’s admittedly progressive views would also seem to open the way for segregation to be viewed as “natural” and maybe even compassionate as we see in the Plessy v. Ferguson case.

Because the court in the Dred Scott case was turned, not towards the question of human rights, but rather, the question of private property, we can see how crucial economics is in an understanding of western hemispheric slavery. Capitalism is necessarily exploitive and can be plainly seen to be the true origin of all slavery. “The plainest print cannot be read through a gold eagle,” Lincoln tells us, and I would agree. To understand moneyed interests is to understand bourgeois politics. Slavery would continue indefinitely, Lincoln posits, as long as a profit can be made.

In the case of Plessy v. Ferguson, the profit motive is not as clear. The questions are more nuanced. The problem of race is at the center, but it was construed to be a question of interstate commerce. One can see that the problem of race is much bigger than just the existence or abolition of slavery. The fourteenth amendment may have formally abolished slavery, but the precedent that was set by the Dred Scott decision was very specific: black people are without legal rights in this country. In many ways, Plessy v. Ferguson was poised to test the boundaries of this concept.

One of the most obvious problems with dichotomies are individual cases whose indiscernibility or ambiguity renders the entire dichotomy meaningless. In the case of Homer Plessy who was white-presenting but declared to be in violation of segregation because of “one-eighth African blood,” we have a Creole person who didn’t fit neatly into either category. His very existence, and the presence of others like him, would seem to be enough to render the idea of race invalid. Of course, the court didn’t see things this way.

Justice Brown begins by refuting the idea that segregation violates either the thirteenth or fourteenth amendments. Segregation, he believes, cannot be said to be the same as slavery, and public separation does not nullify legal equality. He says, “Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of one race to the other.” I disagree. To publically separate people for no other reason than race absolutely suggests that the two groups are not equal. If they are equal, why are they being separated? Surely no equal peoples are separated in such a manner. In fact, what’s conspicuously absent from the Plessy ruling is any sort of justification for segregation at all. It would seem the burden of proof would be to justify why American citizens are being segregated. He does not say it will be safer, more moral, or make any claims of any sort. He looks at different ways that segregation may be said not to abridge specific precedent or previous legal understandings about race, but gives no concrete reason why it should persist. He essentially leaves the determination about whether someone is black or white up to the state to decide.

Justice Harlan’s dissent is perfect. He says, “In respect of civil rights common to all citizens, the Constitution of the US does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.” He feels that, in destroying the economic institution of slavery, the thirteenth amendment implicitly forbids placing restrictions on people based on previous conditions of bondage. The thirteenth and fourteenth amendments, Harlan claims, “removed the race lines from our governmental system.” He demonstrates how ridiculous it would be if white people were divided up along similarly arbitrary lines. He correctly predicts that the Plessy case will be as notorious as Dred Scott.

A key moment in Mr Harlan’s dissent comes when he says, “Sixty millions of whites are in no danger from the presence here of eight millions of blacks, the destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under sanction of law. What can more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which in fact proceed on the grounds that colored citizens are so far inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as it was enacted in Louisiana.” Here, Justice Harlan touches on the real crux of the issue: white fear of retribution. What was conspicuously absent from the Plessy ruling, what I suspect lurks in the very back of white mass consciousness: a spectre of historic atrocities so horrid, the guilt of which cries out for retribution and manifests as direct fear and angst. White people are terrified of black people, because they know black people have a right to be angry. In the same paragraph, he dispels once and for all the notion that separate could ever be equal. He saves the best argument for last when he shows how Asian people, who might be considered more different culturally than African American people, are still allowed to ride in train cars with white passengers. This serves to perfectly illustrate how segregation was about a very specific historical relationship between white and black people in this country who are “indissolubly linked,” not separated by some immutable natural law, as Taney, Brown and even Lincoln would have us believe.

In the case of Brown v. Board of Education, Justice Warren rightly discards precedent in favor of analyzing “public education in light of its full development and its present place in American life throughout the nation.” He acknowledges that “separate but equal” is an arbitrary doctrine created by the court and which can likewise be destroyed by the court. He calls education the “most important function of state and local governments” and shows repeatedly that separate is never equal. Warren recognizes the importance of the courts as it relates to black rights in the future and boldly steps where neither Brown nor Taney were willing to tread, when it comes to how we interpret what it means to be a “citizen” and what it means to be black.

In the bigger picture, these three court cases, and their dissents, represent a public dialog about the rights of black people in this country. Dred Scott establishes as legal precedent the idea that black people in this country are without recourse to legal rights. It specifies people of African descent, so although the thirteenth and fourteenth amendments abolish slavery and guarantee citizenship, neither addresses the rights of black people with the same specificity as the Dred Scott case did in prohibiting them. What do we make of the lack of any legal precedent establishing black rights? Plessy v. Ferguson and Brown v. BOE both show how this dialog continues as we seek to define the rights of black people. As the dialog progresses, white supremacy finds new ways to to sublimate itself and abstract the rights of black people into other distracting issues such as property rights or interstate commerce. The fictitious “negro” of the guilt-ridden white consciousness is continually reshaped and distorted to suit the mass imagination.

One could look at the present state of police violence and the end result of trials, if they even go to trial. An NYC grand jury refused to indict Daniel Panteleo for killing Eric Garner. The death of Kendra James didn’t even prompt a public inquest. The four men who killed Amadou Diallo were all acquitted because, apparently, it is sufficient defense to say that four white men were so scared of a single man from West Africa that they were right to kill him. Maybe what we desperately need is a court case that establishes the civil rights of black people specifically. In the most recent video to catch mass public awareness, Earledreka White is pulled over and calls 911 to request that another officer be present to witness the interaction, because she didn’t feel safe. What white person can say they have feared for their life during a routine traffic stop? When the police shot Charles Kinsey, he was lying on the ground, hands in the air. “Why did you shoot me?” He called out. The officer’s reply is startling in its honesty. “I don’t know.” It feels like a redaction of the entire dialog from Dred Scott until today into two simple phrases. Although I call it a dialog, it is important to never lose sight of the real and very harmful effect of white supremacist ideologies on people of every race. If we are going to grow into a nation of actual realized equality, we must look to the origins of legal inequality and how historic Supreme Court cases such as Dred Scott and Plessy v. Ferguson have publicly defined the relationship between races and contributed to present conditions.