Black, White and Shades of Grey - Part 1, Race and Social Justice: The Constitution, Civil War, and "Badges and Incidents" of Slavery

In 2008, when the U.S. elected its first black President, it seemed like the country had done something to at least partially counterbalance the fact that it was born out of a Constitution that contained several provisions sanctioning slavery.  

But it seems like on a daily basis, the newspapers are full of stories that show that race is still very much alive as a social justice issue.

This is part one of a series of posts dealing with race and social justice.

The Racist Constitution

Winston Churchill said, “Democracy is the worst form of government, except all the others.” 

I think it more accurate to say:  

If you have money and are in the majority, being in a democracy is a pretty good place to be -- but if you don't have money or are in the minority, it may not be as congenial as you would like, and may be dangerous and unfair, although it is still probably better than most alternatives.

In particular, the injustices borne by African-Americans has defined this country in many ways and is a rough measure of our "moral arc."

Perhaps the most notable example of our country failing to live up to its aspirations comes at the very beginning of its existence, in the U.S. Constitution itself.

Did you know that there are three separate provisions in the Constitution that sanction slavery?  And that none of them actually mentions the word "slavery," as if the Founding Fathers knew these provisions would one day be an embarrassment?

The first reference is Article I, section 2, which is the clause that defines slaves as three-fifths a person and explains the apportionment of representation and taxation.  It reads:

“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."

The second reference is Article I, Section 9, which deals with issues of importation and taxation of the slave trade:

"The Migration and 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, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

The final reference in the Constitution is the escaped slave provision, found in Article IV, Section 2:

"No Person held to Service or Labour 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 Labour, but shall be delivered up on Claim of the Party to whom Service or Labour may be due."

I realize that these "concessions" were necessary to ensure the Constitution was adopted, but still have always been fascinated by the existence of slavery in a document that embodied so many high-minded ideals and showed so much foresight.  

As Thomas Jefferson said relating to the existence of slavery in America, “I tremble for my country when I reflect that God is just; and that his justice cannot sleep forever.”

The Civil War

More than 620,000 men died in the Civil War, making it by far the most costly war America has ever been involved in.

Abraham Lincoln, noting the obvious, said, "We were proclaiming ourselves political hypocrites before the world, by thus fostering Human Slavery and proclaiming ourselves, at the same time, the sole friends of Human Freedom." 

Lincoln's views on slavery by the end of his life were clear, but his views on African-Americans, like Jefferson's, were conflicted and complicated.  The former slave, author and orator, Frederick Douglass, gave perhaps the most accurate assessment.  On April 14, 1876, he spoke before a white audience at the unveiling ceremony of a monument to Lincoln (not the Lincoln Memorial, which was built much later, but a more modest monument which seems not to have survived):

"It must be admitted, truth compels me to admit, even here in the presence of the monument we have erected to his memory, Abraham Lincoln was not, in the fullest sense of the word, either our man or our model.  In his interests, in his associations, in his habits of thought, and in his prejudices, he was a white man.

“He was preeminently the white man’s President, entirely devoted to the welfare of white men.  He was ready and willing at any time during the first years of his administration to deny, postpone, and sacrifice the rights of humanity in the colored people to promote the welfare of the white people of this country....

“You are the children of Abraham Lincoln.  We are at best only his step-children; children by adoption, children by forces of circumstances and necessity. … for while Abraham Lincoln saved for you a country, he delivered us from a bondage, according to Jefferson, one hour of which was worse than ages of the oppression your fathers rose in rebellion to oppose....

“We were at times grieved, stunned, and greatly bewildered [by Lincoln's delays and apparently half-hearted efforts on our behalf]; but our hearts believed while they ached and bled. … We saw him, measured him, and estimated him; not by stray utterances to injudicious and tedious delegations, who often tried his patience; not by isolated facts torn from their connection; not by any partial and imperfect glimpses, caught at inopportune moments; but by a broad survey, in the light of the stern logic of great events, and in view of that divinity which shapes our ends, rough hew them how we will, we came to the conclusion that the hour and the man of our redemption had somehow met in the person of Abraham Lincoln.

“It mattered little to us what language he might employ on special occasions; it mattered little to us, when we fully knew him, whether he was swift or slow in his movements; it was enough for us that Abraham Lincoln was at the head of a great movement, and was in living and earnest sympathy with that movement, which, in the nature of things, must go on until slavery should be utterly and forever abolished in the United States. …

“I have said that President Lincoln was a white man, and shared the prejudices common to his countrymen towards the colored race.  Looking back to his times and to the condition of his country, we are compelled to admit that this unfriendly feeling on his part may be safely set down as one element of his wonderful success in organizing the loyal American people for the tremendous conflict before them, and bringing them safely through that conflict.  His great mission was to accomplish two things: first, to save his country from dismemberment and ruin; and, second, to free his country from the great crime of slavery.  To do one or the other, or both, he must have the earnest sympathy and the powerful cooperation of his loyal fellow countrymen.  Without this primary and essential condition to success his efforts must have been vain and utterly fruitless.  Had he put the abolition of slavery before the salvation of the Union, he would have inevitably driven from him a powerful class of the American people and rendered resistance to rebellion impossible.  

"Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined.”

The entire speech can be viewed here, and a blog entry describing Lincoln's relationship with Douglass and parsing this speech can be viewed here.

Post-War Amendments

After the war, three amendments to the Constitution were passed which changed the fundamental nature of the Constitution and our country.

Michael Zuckert below provides an insightful summary of the amendments and their times:

"The 13th Amendment was adopted in the immediate wake of the Civil War and had the simple and relatively straightforward task of forbidding slavery anywhere in the United States.  The original Constitution contained no constraints on the power of the states to institute (or not to institute) slavery and the amendment took that power away from the states.  It was an attempt to give constitutional embodiment to the central natural right—the right to liberty.

"The Congressional Republicans who pushed the amendment through did not conceive of it as the first in a series, but expected it to suffice.  However, there were several severe legislative challenges from the defeated former slave states that required the Republicans to revisit the issue.  A series of laws called Black Codes was passed in most of the former confederate states, which laws did not in so many words return the freedmen to the state of slavery, but did clearly discriminate against and disadvantage them.  The 13th Amendment contained a clause empowering Congress to enforce its provisions by appropriate legislation, and a debate arose in Congress over whether legislation overturning the Black Codes was appropriate legislation under the Amendment.  The result of the debate was the passage of the Civil Rights Act of 1866 and the adoption by Congress of a new draft amendment—the 14th Amendment.  The amendment was thought to be desirable for two reasons: first, there were those who had their doubts about the constitutional legitimacy of the Civil Rights Act under the 13th Amendment.  But, second, many thought it desirable to build directly into the Constitution express protection against laws like the Black Codes.

"The relevant parts of the 14th Amendment had five main clauses: (1) a clause defining who are citizens; (2) a clause providing protection against state abridgments of “the privileges or immunities of citizens of the United States”; (3) a clause forbidding the states to deny to any person life, liberty, or property without due process of law; (4) a clause imposing a duty on states not to deny “equal protection of the laws” to any person within their jurisdictions; and (5) a provision granting Congress the power to enforce the amendment.

"The due process clause provides the best initial insight into the role of natural rights in the amendment.  It prohibits the deprivation by states of “life, liberty, or property” without due process of law.  The list of things protected is, not by coincidence, identical to the standard list of the natural rights of the person.  Prior to the 14th Amendment, there had been a due process clause in the Fifth Amendment, which had been authoritatively held by the Supreme Court in the case of Barron v. Baltimore to place a limit on the powers of the general government when dealing with these natural rights, but not to limit the states of the union in any way. In other words, the Constitution provided protection for natural rights against the general government’s violation of them, but no protection against a state’s violation of them.  Natural rights were thus only partially protected by the original Constitution; the Constitution was “incomplete” in that it did not extend protection to natural rights against all governmental entities that might threaten them.

"The 14th Amendment began to remedy that situation of incomplete protection for natural rights by extending its prohibition of violations of rights to include states as well as the general government.  The language of the amendment makes the connection to natural rights clear when it extends due process protection to all “persons,” not just “citizens,” who are the beneficiaries of the privileges or immunities clause. Natural rights belong to persons, all human beings considered as legal agents regardless of their citizenship, i.e., membership (or not) in any particular political community.

"The equal protection clause is clearly connected to the due process clause by virtue of the punctuation in the text and by virtue of the application to persons also.  The Constitution provides that states shall not deny equal protection to persons within their jurisdiction.  The natural rights philosophy again makes clear what this clause is attempting to accomplish.  According to that philosophy of government as formulated by John Locke, human beings should be thought of as initially living without any political connection or any political authority over them.  They are equal by virtue of possessing rights and of the fact that no individual possesses a claim by nature or by divine grant to rule any other person.  Rights in this situation are insecure, however.  The solution is the social contract, whereby previously politically unconnected and free individuals establish government to make their rights more secure.  Government has two complementary tasks in its rights-securing function.  On the one hand, it should not itself threaten or invade the rights of its citizens (or of anybody, for that matter); on the other hand, it must do something positive—it has a duty to supply protection to the rights of persons within its territory.

"The first of these two tasks is addressed by the due process clause; the second by the equal protection clause. Just as the original Constitution set no duty on the states not to infringe rights, so it set no duty on states to protect rights either.  States were legally free, as far as the Constitution was concerned, to deny rights by their own actions, or by failing to prevent others from doing so.

"As should be clear, the equal protection clause is in the first instance about protection of rights by law.  It is secondarily about equality of protection.  There must be some standard to assess whether the states are supplying sufficient protection, for unlike the duty not to deny rights, the duty to protect rights is open-ended.  At first Congress considered language requiring “full protection of the laws,” but it soon became apparent that this was not a reliable standard, for one can always imagine yet more protection by states (such as more policemen or a larger budget for rights-protection).  “Equal protection” provided a far more manageable standard, for it requires states to supply to all classes or groups in the community the same level of protection that it supplies to its most favored members.  In enforcing this provision, both Courts and Congress would then have a standard they could apply.

"The privileges and immunities clause obviously does not provide for natural rights.  It applies to citizens, not persons, and it protects special kind of rights, “privileges” and “immunities,” that by their nature lack the universality of natural rights.  Likewise, the 15th Amendment does not protect a natural right; it casts the Constitution’s protection around the right to vote, but merely (and uniquely in the three amendments) denies the States the right to abridge the right to vote on the basis of race.  States may abridge the right to vote on any other standard but race.  The distinction between the natural rights protected by the 13th and 14th Amendments and the voting right protected by the 15th was a common one in the rights thinking of 19th-century political philosophy.  In the 19th century, four different types of rights were regularly identified—natural, civil, social, and political—which have different statuses and claims to protection.  While all human beings without exception possess natural rights, political rights such as the right to vote, (i.e., rights to share in the governance of the community) are not natural and universal but are, it was thought, subject to the deliberate decision by the community about who should possess the power to share in community governance.  The 15th Amendment expresses the judgment of the community that race is not a valid basis on which to premise the right to vote but it leaves open the legitimacy of denying that right on the basis of other criteria, e.g., literacy.  As it happened, the intention of the amendment was for a long time circumvented by clever use of the openings for denying voting rights on other bases, high-jacking them to deny rights of racial minorities."

Eric Foner, the great historian of the Reconstruction, wrote that these amendments:

"[R]eflected the intersection of two products of the Civil War era—a newly empowered national state and the idea of a national citizenry enjoying equality before the law.  These legal changes also arose from the militant demands for equal rights from the former slaves themselves.  As soon as the Civil War ended, and in some places even before, blacks gathered in mass meetings, held conventions, and drafted petitions to the federal government, demanding the same civil and political rights as white Americans.  Their mobilization (given moral authority by the service of 200,000 black men in the Union Army and Navy in the last two years of the war) helped to place the question of black citizenship on the national agenda.

"The Reconstruction Amendments, and especially the Fourteenth, transformed the Constitution from a document primarily concerned with federal-state relations and the rights of property into a vehicle through which members of vulnerable minorities could stake a claim to substantive freedom and seek protection against misconduct by all levels of government.  The rewriting of the Constitution promoted a sense of the document’s malleability, and suggested that the rights of individual citizens were intimately connected to federal power.  The Bill of Rights had linked civil liberties and the autonomy of the states. Its language—“Congress shall make no law”—reflected the belief that concentrated power was a threat to freedom. Now, rather than a threat to liberty, the federal government, declared Charles Sumner, the abolitionist US senator from Massachusetts, had become “the custodian of freedom.”  The Reconstruction Amendments assumed that rights required political power to enforce them.  They not only authorized the federal government to override state actions that deprived citizens of equality, but each ended with a clause empowering Congress to “enforce” them with “appropriate legislation.” Limiting the privileges of citizenship to white men had long been intrinsic to the practice of American democracy.  Only in an unparalleled crisis could these limits have been superseded, even temporarily, by the vision of an egalitarian republic embracing black Americans as well as white and presided over by the federal government.

"Constitutional amendments are often seen as dry documents, of interest only to specialists in legal history.  In fact, as the amendments of the Civil War era reveal, they can open a window onto broad issues of political and social history.  The passage of these amendments reflected the immense changes American society experienced during its greatest crisis.  The amendments reveal the intersection of political debates at the top of society and the struggles of African Americans to breathe substantive life into the freedom they acquired as a result of the Civil War.  Their failings—especially the fact that they failed to extend to women the same rights of citizenship afforded black men—suggest the limits of change even at a time of revolutionary transformation.

"Moreover, the history of these amendments underscores that rights, even when embedded in the Constitution, are not self-enforcing and cannot be taken for granted.  Reconstruction proved fragile and short-lived.  Traditional ideas of racism and localism reasserted themselves, Ku Klux Klan violence disrupted the Southern Republican party, and the North retreated from the ideal of equality. Increasingly, the Supreme Court reinterpreted the Fourteenth Amendment to eviscerate its promise of equal citizenship.  By the turn of the century, the Fourteenth and Fifteenth Amendments had become dead letters throughout the South. A new racial system had been put in place, resting on the disenfranchisement of black voters, segregation in every area of life, unequal education and job opportunities, and the threat of violent retribution against those who challenged the new order.  The blatant violation of the Fourteenth and Fifteenth Amendments occurred with the acquiescence of the entire nation. Not until the 1950s and 1960s did a mass movement of black southerners and white supporters, coupled with a newly activist Supreme Court, reinvigorate the Reconstruction Amendments as pillars of racial justice.

"Today, in continuing controversies over abortion rights, affirmative action, the rights of homosexuals, and many other issues, the interpretation of these amendments, especially the Fourteenth, remains a focus of judicial decision-making and political debate.  We have not yet created the 'perfect republic' of which Stevens dreamed.  But more Americans enjoy more rights and freedoms than ever before in our history."

"Badges and Incidents of Slavery" and Enforcing Social Justice

Passing the amendments was one thing, but how to enforce "equality" and the other rights granted?  Most people in the South and North were just as racist as before the war, and now they were facing an influx of cheap labor from former slaves.

Congress passed numerous statutes with the intent of providing "teeth" and enforcement power to the new amendments, one of which was the Civil Rights Act of 1871 (codified as 42 U.S.C. § 1983).  This statute provided a civil cause of action against anyone who violated any one else's Constitutional rights.  However, although section 1983 is now the primary statute relied upon to enforce federal rights, it had little effect in the post-Civil War period and truly only became an effective means of enforcing rights in the late 20th century, with the Supreme Court's decision of Monroe v. Pape, 365 U.S. 167 (1961). 

In 1875, Congress passed another Civil Rights Act, which provided that:

"[A]ll persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude"

The Bill of Rights prohibits the infringement of rights by the federal government.  The Civil War amendments prohibit violations by the states.  (At the present time, most of the the Bill of Rights prohibitions have been "incorporated" into the Fourteenth Amendment and applied to the states).  With the exception of the Thirteenth Amendment, all rights guaranteed in the Constitution apply only against the federal, state and local governments.

Because of this, Congress attempted with the Civil Rights Act of 1875 to use the Thirteenth Amendment as a means to authorize legislation prohibiting personal and non-governmental discrimination, such as private movie theaters or restaurants refusing to serve blacks.  The argument was that the Thirteenth Amendment gave authority to Congress not only to enforce the prohibition of slavery, but also to enforce the eradication of the "badges and incidents" of slavery.  

In an example of the Supreme Court being on the "wrong side of history," like the Dred Scott decision (1857) (where the Court ruled in part that a slave did not possess standing to bring an action in federal court because he was not a "citizen," but rather property), the Court ruled in the Civil Rights Cases (1883) that the Civil Rights Act of 1875 was unconstitutional, holding that its prohibitions against private discrimination exceeded the powers of Congress under the Constitution.

Eighty-five years later, the Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) reached nearly the opposite conclusion, interpreting the Civil Rights Act of 1866 to prohibit private discrimination and upholding the act as so interpreted under the Thirteenth Amendment.

Usually legal writing is dry, but some times it falls into a sort of poetry.  In these cases dealing with the Thirteenth Amendment, there is a beauty to those opinions that was ahead of their time, such as Justice John Marshall Harlan's famous dissent in the Civil Rights Cases , 109 U.S. 3 (1883) (a group of five similar cases consolidated into one issue for Supreme Court review), excerpted below:

"The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial.  I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism.

"It is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.

"Constitutional provisions, adopted in the interest of liberty and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom and belonging to American citizenship have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law....

"The terms of the Thirteenth Amendment are absolute and universal.  They embrace every race which then was, or might thereafter be, within the United States.  No race, as such, can be excluded from the benefits or rights thereby conferred.  Yet it is historically true that that amendment was suggested by the condition, in this country, of that race which had been declared by this court to have had -- according to the opinion entertained by the most civilized portion of the white race at the time of the adoption of the Constitution -- "no rights which the white man was bound to respect," none of the privileges or immunities secured by that instrument to citizens of the United States.  It had reference, in peculiar sense, to a people which (although the larger part of them were in slavery) had been invited by an act of Congress to aid in saving from overthrow a government which, theretofore, by all of its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them.

"These are the circumstances under which the Thirteenth Amendment was proposed for adoption.  They are now recalled only that we may better understand what was in the minds of the people when that amendment was considered, and what were the mischiefs to be remedied and the grievances to be redressed by its adoption....

"The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an institution resting upon distinctions of race and upheld by positive law.  My brethren admit that it established and decreed universal civil freedom throughout the United States.  But did the freedom thus established involve nothing more than exemption from actual slavery?  Was nothing more intended than to forbid one man from owning another as property?  Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide?  Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which, by universal concession, inhere in a state of freedom? ….

"That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power to enforce by appropriate legislation the Thirteenth Amendment may be exerted by legislation of a direct and primary character for the eradication not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable…..  

"My brethren say that, when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men's rights are protected.  It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws.  The statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of every race and color.  What the nation, through Congress, has sought to accomplish in reference to that race is what had already been done in every State of the Union for the white race -- to secure and protect rights belonging to them as freemen and citizens, nothing more.  It was not deemed enough "to help the feeble up, but to support him after."  The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens.  The difficulty has been to compel a recognition of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained.  At every step in this direction, the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable,

'for it is ubiquitous in its operation and weighs perhaps most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.'

"Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship.  At some future time, it may be that some other race will fall under the ban of race discrimination.   If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant.  The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude.  To that decree -- for the due enforcement of which, by appropriate legislation, Congress has been invested with express power -- everyone must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy either of the recent changes in the fundamental law or of the legislation which has been enacted to give them effect."

Interestingly, Harlan's grandson, John Marshall Harlan II, also became a Supreme Court Justice and wrote an equally famous dissent, in Plessy v. Ferguson , 163 U.S. 537 (1896)(which found that "separate could be equal" and was overruled by the seminal Brown v. Board of Education, 347 U.S. 483 (1954), which found that in the context of U.S. race relations separate is inherently unequal).  In his dissent, he wrote:

"In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.  Every true man has pride of race, and under appropriate circumstances which the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper.  But I deny that any legislative body or judicial tribunal may have regard to the race of citizens which the civil rights of those citizens are involved.  Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state but with the personal liberty enjoyed by everyone within the United States....

"It was said in argument that the statute of Louisiana does not discriminate against either race but prescribes a rule applicable alike to white and colored citizens.  But this argument does not meet the difficulty.  Everyone knows that the statutes in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.   Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers.  The thing to accomplish was, under the guise of giving equal accommodations for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches.  No one would be so wanting in candor as to assert the contrary. 

"If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each....

"The white race deems itself to be the dominant race in this country.  And so it is, in prestige, in achievements, in education, in wealth, and in power….  But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.  There is no caste here.  Our Constitution is color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.   The humblest is the peer of the most powerful.  The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved....

"The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.  It cannot be justified upon any legal grounds

"If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race.  We boast of the freedom enjoyed by our people above all other peoples.  But it is difficult to reconcile that boast with the state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law.  The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done...."

Below is a District Court opinion from 1972, also showing a rhythm and an artistic obscurity of expression usually associated with poetry:

“'What does the beating of black litigants in this case have to do with the ‘badges and incidents’ of slavery?  How can the attitudes of defendants be related to the institution of slavery which was eradicated more than 100 years ago?'  The answer is that these racist acts are as related to the incidents of slavery as each roar of the ocean is related to each incoming wave.  For slavery was an institution which was sanctioned, sustained, encouraged and perpetuated by federal constitutional doctrine.  Today’s conditions on race relations are a sequelae and consequence of the pathology created by this nation’s two and a half centuries of slavery."

(Pennsylvania v. Local Union No. 542, 347 F.Supp. 268, 299 (E.D.Pa. 1972)).

An excellent law review article discussing the history of the terms "badges" and "incidents," by Jennifer Mason McAward, can be reviewed on the University of Pennsylvania Law School's webpage.

In any event, despite the slowly upward slanting arc of Constitutional Law as it applies to race, the newspaper is full of stories of police brutality against African-Americans, with little or no criminal consequences to the police officers, with resulting riots and civil unrest.

These stories will be the topic of my next blog.