The Law and Race in the United States
An Outline for Understanding


INTRODUCTION

The whole body of "law" in the United States is composed of rules or laws made by legislative bodies (Congress, state legislatures, city councils, etc.), of regulations that are established to implement (or administer) legislation, and of decisions of courts at various levels when people challenge or question the law or its implementation.

The Constitution of the United States provides the framework for all of our laws, and is the most fundamental statement of the rules which govern our society.

Constitution of the United States of America

Article I, section 2 specifies that members of the House of Representatives and "direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."

Article I, section 9 reflects the compromise on slavery in the new nation: "The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight (1808), but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."

Article IV, section 2 represents another compromise between "free" and "slave" states. It prohibits slaves from obtaining freedom by successfully reaching a "free" state: "No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

Article V sets out the process for amending the constitution, but specifically precludes amendment of Article I, sections 2 and 9 prior to the year 1808; this is another "slave compromise".

Ratification of the Constitution was made dependent on adoption of the Bill of Rights, the first ten amendments. None of those amendments touched on issues of race.

Along with the Constitution, the Declaration of Independence is often cited as one of the nation's seminal documents. It does not refer specifically to race, but many find difficulty in reconciling its pronouncement that "all men are created equal" with the fact of slavery in the young nation.

Declaration of Independence


THE CONSTITUTION AND EARLY COURT DECISIONS

As noted above, the Constitution made several compromises reflecting the differing attitudes of the states on slavery. This led to some early conflicts; attempts were made to resolve them through legislation, and through the courts.

Fugitive Slave Act of 1850
http://www.yale.edu/lawweb/avalon/fugitive.htm

The Fugitive Slave Act legislated the return of runaway slaves to their owners, regardless of whether they were found in "slave" or "free" states. The act provides an extensive legal structure for enforcing the requirement of Article IV, section 2 of the Constitution, and lays out penalties for those impeding its enforcement. The necessity to do so reflects the growing conflict between opponents and proponents of slavery in the U.S.

The issue ultimately appeared before the Supreme Court, producing one of the most famous of the early race cases, Scott v. Sandford, known to history as the Dred Scott Decision.

Scott v. Sandford (1857)

Discussion of the case can be found in USIA's Basic Readings In U.S. Democracy.


THE CONSTITUTION'S "CIVIL WAR AMENDMENTS"

While the U.S. Constitution has endured largely unchanged since its adoption in 1788, there have been some amendments over its more than two hundred years. During the course of America's Civil War (1861-65), slavery was outlawed in the states of the Confederacy when President Lincoln signed the Emancipation Proclamation.

Emancipation Proclamation

The U.S. National Archives offers an overview of the history and ramifications of the Proclamation from Prologue, Summer 1993 http://www.nara.gov/publications/prologue/franklin.html.

After the war, slavery was abolished throughout the United States and certain changes were necessary in the Constitution. These amendments are called the "Civil War Amendments."


THE JIM CROW LAWS AND SEGREGATION

Jim Crow Laws

The period after the Civil War was called the Reconstruction Period. Social tensions, especially in the former confederate states, reflected the difficulty of adjusting to the dramatically altered status of a previously oppressed group who now constituted a new majority in many areas. By the mid 1880s a new series of laws began to be seen which segregated the white and non-white races. Beginning in rail transportation, these Jim Crow laws soon spread to a wide range of public facilities and accomodations.

It was a challenge to this emerging practice of segregation, or separation of the races, which produced one of the most important Supreme Court decisions on race in this period. In Plessy v. Ferguson the court's majority accepted the idea of "separate but equal" facilities, in effect pronouncing segregation legal. Associate Justice Harlan's strong dissent, "Our Constitution is colorblind," is included in the opinion linked to below, and an article about the dissent is at http://www.uofl.edu/library/law/harlan/harlthom.html.

Plessy v. Ferguson (1896)
http://laws.findlaw.com/US/163/537.html


THE CIVIL RIGHTS MOVEMENT IN POST-WAR AMERICA

The modern civil rights movement in the United States has its roots in events following World War II. In 1954, the U.S. Supreme Court reversed earlier rulings which permitted separate public facilities for people of different races. In Brown v. Board of Education, the Court said that the very act of separating people meant that persons were treated unequally, and that was a violation of the Constitution.

Brown v. Board of Education (1954)
http://laws.findlaw.com/US/347/483.html

For background material and a case summary, see http://brownvboard.org/. For the National Park Service's Brown v. Board of Education National Historic Site, see http://www.nps.gov/brvb/ and NPS's expanded page at http://www.nps.gov/brvb/home.htm. Established by public law in 1992, this historic site, located in Topeka, Kansas, commemorates the landmark Supreme Court decision. The site will be housed at Monroe Elementary School. Monroe was the segregated school attended by the lead plaintiff's daughter, Linda Brown, when Brown v. Board of Education of Topeka was initially filed in 1951.

The Civil Rights Movement of the 1950s and 1960s reflected concern about three different ways in which the law touched on issues of race. Civil Rights (rights exercised by citizens of a society) was one of those areas; Discrimination was the second and Equal Protection was the third. For more information, see Civil Rights and Discrimination Law Materials at http://www.law.cornell.edu/topics/civil_rights.html; for Equal Protection Law Materials visit http://www.law.cornell.edu/topics/equal_protection.html.

By the mid sixties, the administration of President Lyndon Johnson had taken on a commitment to the creation of a "Great Society" (the name that collectively describes the Johnson administration's initiatives to create a more just and equal nation). A major focus of the administration was passage of specific laws to guarantee civil rights and equal protection and outlaw discrimination. These landmark documents include:


THE STATES AND "AFFIRMATIVE ACTION"

The programs collectively known as "affirmative action" quickly developed both critics and defenders, and arguments continue today. Defenders see these policies as an important option for trying to redress the legacy of hundreds of years of discrimination and injustice. Critics of the programs see them as the application of the very thing they are meant to correct; racial discrimination. As the legislatures, courts and society as a whole seek to find a balance, a body of legislation, court decisions and interpretation has been generated which reflects this difficult process. An ongoing discussion of the issues is available at the Affirmative Action and Diversity Project at http://aad.english.ucsb.edu/.

Below is a list of specific cases in the still evolving story of affirmative action:

In California in 1996, citizens opposed to affirmative action sought to amend the state constitution by adding to the ballot a restriction which came to be known as Proposition 209.

Modeled after California's Proposition 209, the State of Washington's Initiative 200 passed in the November 1998 mid-term elections.

In November 1999, Florida Governor, Jeb Bush issued Executive Order 99-281. Approved by the board of regents and the Florida Cabinet in February 2000, the education component of the One Florida Initiative ends the use of race and ethnic preferences in state university admissions and, in place, guarantees admission to students at public high schools who finish in the top 20 percent of their class.