Shades of Freedom: Racial Politics and Presumptions of the American Legal Process (Race and the American Legal Process a. Leon Higginbotham, Vol 2)

Few individuals have had as great an impact on the law--both its practice and its history--as A. Leon Higginbotham, Jr. A winner of the Presidential Medal of Freedom, the nation's highest civilian honor, he has distinguished himself over the decades both as a professor at Yale, the University of Pennsylvania, and Harvard, and as a judge on the United States Court of Appeals. But Judge Higginbotham is perhaps best known as an authority on racism in America: not the least important achievement of his long career has been In the Matter of Color, the first volume in a monumental history of race and the American legal process. Published in 1978, this brilliant book has been hailed as the definitive account of racism, slavery, and the law in colonial America. Now, after twenty years, comes the long-awaited sequel. In Shades of Freedom, Higginbotham provides a magisterial account of the interaction between the law and racial oppression in America from colonial times to the present, demonstrating how the one agent that should have guaranteed equal treatment before the law--the judicial system--instead played a dominant role in enforcing the inferior position of blacks. The issue of racial inferiority is central to this volume, as Higginbotham documents how early white perceptions of black inferiority slowly became codified into law. Perhaps the most powerful and insightful writing centers on a pair of famous Supreme Court cases, which Higginbotham uses to portray race relations at two vital moments in our history. The Dred Scott decision of 1857 declared that a slave who had escaped to free territory must be returned to his slave owner. Chief Justice Roger Taney, in his notorious opinion for the majority, stated that blacks were "so inferior that they had no right which the white man was bound to respect." For Higginbotham, Taney's decision reflects the extreme state that race relations had reached just before the Civil War. And after the War and Reconstruction, Higginbotham reveals, the Courts showed a pervasive reluctance (if not hostility) toward the goal of full and equal justice for African Americans, and this was particularly true of the Supreme Court. And in the Plessy v. Ferguson decision, which Higginbotham terms "one of the most catastrophic racial decisions ever rendered," the Court held that full equality--in schooling or housing, for instance--was unnecessary as long as there were "separate but equal" facilities. Higginbotham also documents the eloquent voices that opposed the openly racist workings of the judicial system, from Reconstruction Congressman John R. Lynch to Supreme Court Justice John Marshall Harlan to W. E. B. Du Bois, and he shows that, ironically, it was the conservative Supreme Court of the 1930s that began the attack on school segregation, and overturned the convictions of African Americans in the famous Scottsboro case. But today racial bias still dominates the nation, Higginbotham concludes, as he shows how in six recent court cases the public perception of black inferiority continues to persist. In Shades of Freedom, a noted scholar and celebrated jurist offers a work of magnificent scope, insight, and passion. Ranging from the earliest colonial times to the present, it is a superb work of history--and a mirror to the American soul. Contents......Page 18 Preface......Page 8 Acknowledgments......Page 14 Introduction: From Total Racial Oppression to Shades of Freedom......Page 24 The Scope of This Volume......Page 25 "A Black Man Did It": Commonalities of Perception......Page 26 "It's a Long Road"......Page 29 The Role of the Supreme Court......Page 31 The Road Ahead: Still Many "Miles to Go"......Page 32 1 My Forty-Year Journey in Formulating the Precepts......Page 36 The Most Enduring Precept......Page 40 The Object of Hate......Page 43 The Stages of Development of the Precept of Inferiority......Page 48 Last Among Equals......Page 51 Blackness As Sin......Page 52 4 The Ideology of Inferiority (1662–1830)......Page 61 Determining Status by Sex, Marriage, and Racial "Purity"......Page 67 Redeeming the "Inferior" Through Religion and Civilization?......Page 78 Punishment, Murder, Malice, and Inferiority......Page 82 Abolition and Uncle Tom: Political Posturing Without Challenging Notions of Inferiority......Page 86 Dred Scott v. Sandford: The Legal Defense of Inferiority......Page 94 The Framers' Intentional Non-disclosure of Their Legitimization of Slavery and Their Implementation of the Precept of Black Inferiority......Page 101 Conflicting Assessments of a Constitution that Sanctioned Slavery......Page 104 The Emancipation Proclamation and the Thirteenth Amendment......Page 106 The Civil Rights Act of 1866......Page 108 Had "The long sickness . . . come to end"?......Page 114 The One Pervading Purpose......Page 116 The Beginning of the Judicial Betrayal of African Americans......Page 120 The Political Betrayal: The 1877 Hayes-Tilden Election Compromise......Page 124 8 The Supreme Court's Sanction of Racial Hatred: The 1883 Civil Rights Cases......Page 127 The Inferiority Precept and Public Accommodations......Page 128 The Impact of the Precept of Inferiority in the Supreme Court's Review......Page 131 "Ain't I a Woman?"......Page 132 Sallie Robinson's Treatment as an Inferior......Page 135 The Supreme Court's Implicit Acceptance of the Precept of Inferiority......Page 137 9 The Supreme Court's Legitimization of Racism: Plessy v. Ferguson: A Case Wrongly Decided......Page 141 A Circular Journey......Page 142 Should Someone Seven-eighths White Be Sent to Jail for Sitting in the "Whites Only" Compartment?......Page 144 The Majority's Legitimization of Racism......Page 145 Was the "Underlying Fallacy" of Plessy's Argument Solely in the Mind-Set of African Americans, Perceiving Themselves as Inferior?......Page 147 Justice John Marshall Harlan's Dissent: Was It an Omniscient Egalitarian Pronouncement or Was It a Muted Racist's Statement?......Page 148 The Consequences of the "Separate But Equal" Doctrine......Page 150 10 Too Inferior To Be Their Neighbor......Page 152 Race Matters......Page 160 Racism in the Courts as Symptoms, Signals, and Symbols of Racism in the Broader Society......Page 178 Segregated Spectator Seating......Page 181 The Barriers of Standing......Page 183 Race-Segregated Restrooms......Page 184 Failure to Accord Black Witnesses the Civilities Customarily Accorded to White Witnesses......Page 186 The Denial of Standing to a Lawyer Seeking to Assert His Client's Right to Be Addressed with the Civilities Accorded to Whites......Page 187 Examples of Racially Discriminatory Courtroom Treatment Resting on Derogatory Myths About African Americans as a People......Page 188 Judicial Conduct......Page 198 12 Limiting the Seeds of Race Hatred: The Charles Evans Hughes Supreme Court Era (1930–1941)......Page 201 Segregation and the Congressman: "It didn't make a damn bit of difference who I was"......Page 203 Race Discrimination at the Citadel of Justice......Page 204 "The Prejudices Which Judges Share with Their Fellow-Men"......Page 205 The Gulf Between Two Justices......Page 206 The Criminal Justice Process......Page 208 Education......Page 213 The Right to Vote......Page 215 The Hughes Court in Retrospect......Page 217 13 Voting Rights, Pluralism, and Political Power......Page 218 The Antebellum Period: Pennsylvania and the Northern Responses......Page 219 The Reconstruction Era......Page 221 Post-Reconstruction North Carolina History......Page 223 The Persistence of Significant Political Racism in North Carolina in the Last Four Decades......Page 227 North Carolina's Racial Politics Disproportionately Harm African Americans......Page 230 Epilogue......Page 232 Appendix: The Ten Precepts of American Slavery Jurisprudence......Page 244 The Problem of Categorization: Precept, Commandment, or Declaration......Page 245 Why Ten Precepts?......Page 247 The Interrelationships of the Precepts......Page 248 The First Precept: Inferiority......Page 249 The Second Precept: Property......Page 250 Problems of Formulation......Page 251 The Post-Civil War Impact of the Precepts......Page 253 The Quest for Universal Human Rights......Page 254 Articles published by A. Leon Higginbotham, Jr.......Page 256 Notes......Page 262 A......Page 328 B......Page 329 C......Page 330 D......Page 332 E......Page 333 F......Page 334 H......Page 335 I......Page 336 K......Page 337 L......Page 338 M......Page 339 O......Page 340 P......Page 341 R......Page 342 S......Page 343 U......Page 346 W......Page 347 Z......Page 348 Table of Cases......Page 349 In Shades Of Freedom, Higginbotham Provides A Magisterial Account Of The Interaction Between Law And Racial Oppression In America From Colonial Times To The Present, Demonstrating How The One Agent That Was Entrusted To Guarantee Equal Justice Under The Law - The Judicial System - Instead, More Often Played A Dominant Role In Enforcing The Inferior Position Of Blacks, And, On Some Occasions, Eradicated Racial Injustice. The Precept Of Racial Inferiority Is Central To This Volume, As Higginbotham Documents How Early White Perceptions Of Black Inferiority Slowly Became Codified Into Law. Perhaps The Most Powerful And Insightful Aspects Center On A Pair Of Famous Supreme Court Cases, Which Higgingbotham Uses To Portray Race Relations At Two Vital Moments In Our History. The Dred Scott Decision Of 1857 Declared That Under The United States Constitution, Blacks Were So Far Inferior That They Had No Rights Which The White Man Was Bound To Respect. Higginbotham Reveals The Tragedy That, After The Civil War, And Even During The Reconstruction Period, The Courts Construed The New Constitutional Amendments With Such Hostility That The Dream Of Freedom Was Buried By Judges With Black Robes, Politicians Posing As Statesmen, And Vigilantes In White Hooded Robes. In The Plessy V. Ferguson Decision Of 1896, Which Higginbotham Terms One Of The Most Catastrophic Racial Decisions Ever Rendered, The Supreme Court Legitimized Racial Segregation Under The Deceptive Rationale Of Separate But Equal, Which, In Practice, Became Always Separate And Never Equal. Higginbotham Also Documents The Eloquent Voices That Opposed The Openly Racist Workings Of The System, From Reconstruction Congressman John R. Lynch To Supreme Court Justice John Marshall Harlan To African-american Scholar W.e.b. Du Bois And Charles Hamilton Houston, William Hastie, And A Few Other Lawyers - Both Black And White, Jew And Gentile - Who Confronted The Legitimization Of Racism. To Establish The Nexus To Decades Of Racism In The Past, He Asserts That, Even Today, Racial Bias Still Permeates The American Consciousness. He Shows How Six Recent Events Reveal That Many Public Perceptions Of Black Inferiority Persist To This Day. Introduction: From Total Racial Oppression To Shades Of Freedom -- 1. My Forty-year Journey In Formulating The Precepts -- 2. The Precept Of Inferiority -- 3. The Ancestry Of Inferiority (1619-1662) -- 4. The Ideology Of Inferiority (1662-1830) -- 5. The Politics Of Inferiority (1830-1865) -- 6. The Constitutional Language Of Slavery: From Non-disclosure To Abolition, 1787-1866 -- 7. The Dream Of Freedom And Its Demise -- 8. The Supreme Court's Sanction Of Racial Hatred: The 1883 Civil Rights Cases -- 9. The Supreme Court's Legitimization Of Racism: Plessy V. Ferguson: A Case Wrongly Decided -- 10. Too Inferior To Be Their Neighbor -- 11. Unequal Justice In The State Criminal Justice System -- 12. Limiting The Seeds Of Race Hatred: The Charles Evans Hughes Supreme Court Era (1930-1941) -- 13. Voting Rights, Pluralism, And Political Power -- Appendix. The Ten Precepts Of American Slavery Jurisprudence -- Articles Published By A. Leon Higginbotham, Jr. A. Leon Higginbotham, Jr. Includes Bibliographical References And Indexes. In Shades of Freedom, Higginbotham provides a magisterial account of the interaction between law and racial oppression in America from colonial times to the present, demonstrating how the one agent that was entrusted to guarantee equal justice under the law - the judicial system - instead, more often played a dominant role in enforcing the inferior position of blacks, and, on some occasions, eradicated racial injustice. The precept of racial inferiority is central to this volume, as Higginbotham documents how early white perceptions of black inferiority slowly became codified into law. Perhaps the most powerful and insightful aspects center on a pair of famous Supreme Court cases, which Higgingbotham uses to portray race relations at two vital moments in our history. The Dred Scott decision of 1857 declared that under the United States Constitution, blacks were "so far inferior that they had no rights which the white man was bound to respect." Higginbotham reveals the tragedy that, after the Civil War,and even during the Reconstruction period, the courts construed the new Constitutional amendments with such hostility that the dream of freedom was buried by judges with black robes, politicians posing as statesmen, and vigilantes in white hooded robes. In the Plessy v. Ferguson decision of 1896, which Higginbotham terms "one of the most catastrophic racial decisions ever rendered," the Supreme Court legitimized racial segregation under the deceptive rationale of "separate but equal," which, in practice, became always separate and never equal. Higginbotham also documents the eloquent voices that opposed the openly racist workings of the system, from Reconstruction Congressman John R. Lynch to Supreme Court Justice John Marshall Harlan to African-American scholar W. E. B. Du Bois and Charles Hamilton Houston, William Hastie, and a few other lawyers - both black and white, Jew and Gentile - who confronted the legitimization of racism. To establish the nexus to decades of racism in the past, he asserts that, even today, racial bias still permeates the American consciousness. He shows how six recent events reveal that many public perceptions of black inferiority persist to this day. In the sequel to his award-winning study, In the Matter of Color, a professor of jurisprudence at Harvard traces the relationship of the American legal system and racial oppression from colonial times to the present. UP.