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As the country with a complex ethnic composition, the racial discrimination and inequality issue exists in the U.S. persistently from the establishment of this country. As we know, the historical origin of the negative social position of minorities, especially blacks, was slavery. During the slavery era, slaves were treated as livestock without citizen rights. In the paper, I use my Week 10, 2, 8, 7, and 5 journals to express my understanding of this history, involving four themes: concepts central to critical race theory, specific law or policy demonstrating the relationship between racism and law, historical forms of racial inequality, and particular remedies the law has developed to abolish slavery and racial segregation.
In my Week 1 journal, I mentioned the Dred Scott v. Sandford (1857), which was inevitable when talking about slavery and racial inequality. The main issue in this case is that whether the descendants of slaves, when the state abolished slavery, could be deemed as citizens of the state? The court stated that Scott could not be a citizen for five reasons.
First, the originalism— the framers didn’t intend to include salves within the meaning of “citizen” or “people”. Second, the meaning of citizenship during the drafting of the constitution hasn’t changed cannot be naturalized (Han, Week 2, Page 15). What’s more, philosophy of race and sovereignty denied slaves as human beings, and deemed them as private the property of the slave’s owners. In addition, even in free states, racial difference in economic classes led blacks a very disadvantaged position in society.
Ironically, the Declaration of Independence states that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness” (Declaration of Independence). But the court even didn’t grant blacks’ right as a human, not to mention citizens.
To self-help, a common mechanism for this minority who lacks economic and political power is the protest, also known as civil disobedience. Civil disobedience is a “right of opposition”. When minorities felt the unjust treatment of the law, they can apply this right. But is not rabid. As Martin Luther King illustrates, “One who breaks an unjust law must do it openly, lovingly and with a willingness to accept the penalty” (Bell 656). Its purpose is not to create chaos or riots, but aims to arouse the majority’s conscience to realize that the law is injustice with the highest respect to the law. King thought that it was necessary to distinguish the just and unjust law. He would obey the just law since it was moral, but he also needed necessary power to disobey and bring unjust, immoral law, into a higher moral law. However, it is a controversial issue among scholars. Since civil disobedience is a coerciveness, and it forced law to change, Professor Charles Fried argues that the resolution should be “fair procedure” but not coerciveness. What’s more, Fired also states that “the law should be beyond coercion, that is, the law should be absolute and transcendentally present… the law should not countenance any violence” (Bell 658). Despite Professor Fried’s statement, Cover and Derrida hold a similar statement that legal interpretation is coercive and the law itself is violence. As Derrida explains, we are trained to think the law as an authority and we are forced to obey the law in most of the time. It impresses me a lot. I believe that law and policy cannot fit everyone’s profit and their existence is to maintain the order of society. When it cannot maintain the peace, it should be forced to change. In addition, we cannot deny the achievement and progress the civil disobedience had made. For example, I remember in the Week 10 in-class discussion, we discussed Greensboro sit-ins, an nonviolent protest to against segregation in Greensboro’s lunch counter, finally made Woolworth department store chain abrogate the racial segregation in lunch counter. In my opinion, I prefer statements of King, Cover and Derrida. I think the era is changing with time goes by and the laws and statutes need to change to fit the requirement of the society. We cannot say that the prior statute was wrong, but they couldn’t reach the current requirement so we need to overturn them and create new laws. Since society is developing, we need some innovators, like Martin Luther King, to raise the problem and stimulate development.
The critical race theory also illustrates that the law itself is coercive and protects the majority’s rights. It is also the reason why we need civil disobedience. Critical race theory provides a legal point of view analyzing race and racism from the aspect of the social power structure. To my understanding, it believes that the power structure in our society is based on white privilege and white supremacy, placing minorities, colored people, in a persistent marginal position. Moreover, liberalism and meritocracy, which claim that everyone is capable of earning power and right through hard work, are fancy stories only for those who have already had rights and power since they ignore the systematic inequality in racism issue. Although the legal discourse professes that the law and policy are racially neutral, colorblind, and advocate democracy, they are actually self-benefit to the dominant group. In the very beginning of our reading, Bell also uses three key points to explain this statement. First, “serious difference between whites are often resolved through compromises that sacrifice the rights of blacks” (Bell 27). What’s more, “what appears to be progress toward racial justice is, in fact, a cyclical process”, and “significant progress for black is achieved when the goals of blacks coincide with the perceived needs of whites” (Bell 27). As I mentioned in Week 1 journal, this was obvious that the reason for northern white leaders to implement emancipation was to fulfill their own profit, but not to liberate slaves from conscience.
In the historical process of racial inequality, many specific laws and policies demonstrated this relationship between racism and law. One of the classical examples is blacks’ voting right. Following the post-reconstruction era, many disenfranchisement provisions were established across the states, trying to deprive the black’s voting rights legally. In my Week 8 journal, I used the grandfather clause and the poll tax as instances, which deterred poor and illiterate African American former slaves and their descendants from voting, excluding poor and illiterate whites. Furthermore, some individual states published local law to re-drew the city’s boundary in order to exclude black voters. In Gomillion v. Lightfoot (1960) case, after the Civil Rights Act of 1957, African American voters consistently increased in Tuskegee, a city in Alabama, and approached to white registered voters. Worried about the domination of African American, local whites lobbied the legislature to redefine to the boundary of the city. Then, the local legislature published the local law shaping regions into a twenty-eight-sided figure, excluding almost all black voters, but no whites. Similar to this case, Shaw v. Reno (1993) also tried to separate black voters from white. After the 1990 census, North Carolina needed to be redistricted. The Department of Justice rejected its plan which divided blacks into a separate area. Then, the state resubmitted a second plan which included two majority-minority districts that throughout the state and connected various area of major black residents. However, the court held that these two states were both unconstitutional and these strange figures actually “cannot be understood as anything other than an effort to separate voters into different districts in the basis of race” (Bell 963).
Not only the political phase exists racial discrimination, but also minority’s daily life had historical forms of racial inequality. As I mentioned in Week 7 journal, housing and property barrier was a classic instance. Bell points out that “housing is not only shelter, but it also represents status” (365) because living environment determines the friends and neighbors one keeps, which are potential value of the property. What’s more, under the housing segregation, blacks tended to live in more perilous and foul living condition places which did harm to people’s health. Realizing these facts and aiming to achieve racial equality, the Supreme Court prohibited housing segregation as early as 1917 under the Fourteenth Amendment in Buchanan v. Warley (1917) case. Buchanan was a white and he sold his house to Warley who was black. While Louisville state had an ordinance forbade blacks to live in the area that the majority was white and vice versa. On the grounds that eight out of ten houses was occupied by whites in Buchanan’s house block, Warley was not allowed to live in there. In the court, the unanimous decision held that Louisville’s ordinance violated the Due Process Clause of Fourteenth Amendment and is unconstitutional. What’s more, the court also limited the state-mandated housing segregation. Nevertheless, residential segregation was still produced through many other methods, like restrictive covenants. The Supreme Court ruled in Shelley v. Kroemer (1948) that when restrictive covenant as private contract was valid, but violated the Fourteenth Amendment when it was state action. I raised my own opinion in Week 7 journal that it is hard to change the public’s mindset to enforce social equality when the court allows an individual’s prejudicial conduct. In addition, we cannot separate private from public exactly. Since the house was sold publicly, how we could determine the contract as private?
Although it was true that racial discrimination existed historically, we never stop pursuing the equal rights between different races and had developed some remedy to abolish slavery and racial segregation. Through my Week 4 and Week 5 journal, the history of the Civil Right Act was able to reflect this controversial process. In Civil Right Act of 1875, it affirmed “the ‘equality of all men before the law’ and prohibited racial discrimination in public places and facilities such as restaurants and public transportation” (Encyclopaeda Britannica), trying to reach a substantive racial equal society. While Civil Right Case of 1883 invalidated it and the court decided that taverns and hotels were owned by the individual, so they are private, and the Congress didn’t have the right to regulate the conduct of private parties. However, as Justice Harlan advocated, those private places served public functions, and in Civil Right Act of 1964, Title II prohibits “discrimination because of race, color, religion, or national origin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment” (Department of Justice). This process marks the development and effort we has made to achieve racial equality. In addition, for the voting right I mentioned before, the Supreme Court started to invalidating disenfranchisement provisions to protect blacks’ voting rights since 1915 and the decisions of two cases, Gomillion v. Lightfoot (1960) and Shaw v. Reno (1993) also manifested the accomplishment we had made. Moreover, we also established the Voting Rights Act of 1965 to remedy the discrimination in voting rights.
In conclusion, the historical racial discrimination does influent the social structure nowadays, and minorities stayed in a very disadvantaged position for a long time. But we cannot deny the effort we had made to achieve an equal protection society. In my opinion, laws and policy have to change with the development and requirement of the society. The racial inequality is much better than it was before and it is not impossible that it would be eliminated in the future.
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