W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Brooklyn Sawyers Belk Safety and Litigation Counsel, Lyft, Inc. Visiting Professor, University of Tennessee College of Law
WORDS MATTER – JOIN THE CONVERSATION The U.S. Supreme Court’s (USSC) words in two historic cases illuminate America’s history with race that influenced today’s race relations. Achieving successful race relations starts with addressing that history and moving forward. Words matter: Join the conversation! The slave trade brought millions of Africans to the U.S. to be bought and sold as chattel—reducing humans to merchandise in slave traders’ eyes. Those who challenged a system as “American as apple pie” suffered. In Dred Scott v. Sandford, 60 U.S. 393 (1857), the USSC held that slaves’ descendants could not be citizens. The Court explained, “In no nation was this opinion more firmly fixed or more uniformly acted upon than by the [English], who seized them on [Africa’s coast and sold or held them] in slavery for their own use, but [also] took them as ordinary articles of merchandise to every country where [profit could be made].” The USSC added, “The opinion entertained and acted upon in England was naturally impressed upon the colonies they founded.” The Court explained that, Africans “had for more than a century been regarded as beings of an inferior order, and altogether unfit to associate with the white race,” “so far inferior that they had no rights which the white man was bound to respect,” and that “the negro might justly and lawfully be reduced to slavery for his benefit.” The Court added, “And, accordingly, a [negro] was regarded by them as an article of property,” and “[held, bought, and sold] as such, in [all] thirteen colonies . . . No one seems to have doubted the correctness of the prevailing opinion of the time.” In 1861, America engaged in a great civil war, in part, over slavery and intertwined economics. In 1863, the Emancipation Proclamation ended slavery in rebellious states, followed by three Constitutional Amendments. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment granted former slaves’ citizenship and created certain equal protections. The Fifteenth Amendment granted voting rights and prohibited states from disenfranchising voters. If the Scott Court was wrong, but the post-Civil War Constitutional Amendments course corrected, explain the Plessy decision. Is it inexplicable accentuating the law’s corrective inabilities at the time? In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court found separate, but equal railway cars constitutional, and while the Fourteenth Amendment established legal racial equality, separate treatment did not imply African American inferiority. The Court reasoned that the statutes implied legal distinctions between the races–distinctions founded in skin color and that “must always exist so long as white men are distinguished from the other race by color.” Other case quotes include, “If the races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary
6
consent of individuals;” “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences;” and, “If one race be inferior to the other socially, the Constitution cannot put them upon the same plane.” The dissenter argued that the Constitution is color-blind, the U.S. has no class system, and all citizens should have equal access to civil rights. While novel for the time, someone’s words differed, and words matter! Plessy’s rhetoric is offensive—creating the separate, but unequal doctrine ensuring Jim Crow segregation—inapposite the nation’s Constitutional equality guarantees. Despite these Constitutional advancements, Jim Crow era provisions allowed race-based atrocities— including murder—to persist for almost another century, which is longer than most individual lifetimes. Eventually, USSC civil rights decisions, including Brown v. Board of Education, 347 U.S. 483 (1954) and the 1960s Civil Rights and Voting Rights Acts brought change. Why did it take almost a century to enforce the Constitution? Perhaps, the USSC answered that question in Scott and Plessy, making these dated decisions relevant. In Christianity, there are generational curses and blessings—things passed down generationally. From England to the colonies and, once in the colonies, race-based division became something engrained, fixed, and acted upon uniformly. Did that disappear with time or laws; or rather, was race-based division passed down further, even to today? Words matter! If alive, Emmett Till’s mother might explain that Till, her child on vacation in Mississippi, allegedly—the accuser recanted— violated a Jim Crow practice, and a person’s false accusations led to Till’s murder. His murderers gouged out his eye, beat, shot, and threw him into the Tallahatchie River, with a cotton gin fan attached as a weight. Till’s mother had an open casket funeral. Thereafter, Jet Magazine published photos of Till’s body, a Jim Crow brutality. Yet, the jury deliberated for under an hour returning an acquittal. If still too dated, consider the 2000 Alabama Interracial Marriage Amendment to amend Alabama’s 1901 Constitution’s interracial marriage prohibition. Yet, it only passed with around a 60 percent approval—to remove a Jim Crow era law contrary to the USSC’s Loving v. Virginia, 388 U.S. 1 (1967) precedent. Born in 1908, 1913, and 1955, my prior two generations spanned Jim Crow—a Plessy-mindset world. Born post-Brown, my mother still attended segregated schools—the USSC’s “all deliberate speed” integration forced her from segregated to integrated schools, and the associated trauma infected her education, self-esteem, and worldview until she died carrying that pain.
DICTA
October 2021
