A Liberal
Dose
February 24,
2022
Troy D.
Smith
“Justice
Deferred: Race and the Supreme Court”
People who are terrified by critical race theory almost
always prove unaware of what it actually is: a legal studies framework that
examines how race has been affected (and, in part, created) by law. It is
patently inaccurate to claim that race and the law have not gone hand-in-hand in American history, or that the effects of
that relationship are not felt in the present.
This is demonstrated in a recent history book that I have
mentioned in these pages before –Justice Deferred: Race and the Supreme Court by Orville Vernon Burton and Armand Derfner. In roughly 350 pages, it traces
the intertwined story of race and law, from the colonial period to the 2020s.
(Full disclosure- Vernon Burton was my grad school co-adviser and mentor.) The
authors make a sobering point early in the work: for three hundred years, the
law was used to justify racial oppression and maintain white supremacy, and
then for four decades (the 1930s to the 1970s) it was used to fight against,
and try to turn the tide of, that oppression. This was followed by another
half-century (the 1970s until now) of largely walking back the gains made in
that forty-year period. For the vast majority of American history, the law -as
ultimately interpreted by the Supreme Court -has, in fact, served to buttress
racism rather than to dispel it.
Slavery, after all, was legal for most of that time -and
protected by law. The infamous Dred Scott decision of 1857 said that even free
black people “had no rights the white man was bound to respect.” Even when
slavery was ended after the Union victory in the Civil War, Southern states had
repressive slave codes and, starting after Reconstruction, legally enforced
segregation which the Supreme Court upheld in Plessy v Ferguson (1896). SCOTUS ruled in the 1820s and 1830s that
Native Americans had never had the right to own their own land, and that they
were “domestic dependent nations” whose relationship to the United States
“resembles that of a ward to his guardian.” In 1889 SCOTUS upheld the Chinese
Exclusion Act of 1882, which banned Chinese people from immigrating to the
U.S., saying the country had a right to prevent “vast hordes of its people from
crowding in on us.” In 1922 the Court ruled in Ozawa v. United States that immigrants must be, not only white so
far as skin tone, but specifically Caucasian. The following year, when Indian
immigrant Baghat Singh Thind’s counsel pointed out that people from India are
technically Caucasian, the Court ruled that they weren’t white enough to be
U.S. citizens, Caucasian or not.
Many advances toward racial equality were then made over the
following decades, especially during the Civil Rights era. However, the authors
point out that, after 1970, the question became “Are discriminatory results of a law enough for the Court to
strike it down, or is proof also required that the people who wrote and passed
the law intended it to discriminate?”
Conservative justices in recent decades have almost always taken a very narrow
view of that question, with the least latitude possible, even when they give
extremely broad latitude to questions of religion or the second amendment. In
other words, they have been strict constructionists only when it suits them,
and not on a consistent basis -the inconsistency coming on questions of race.
The book ends by observing that American democracy is not a
thing that is broken, but rather a thing that is unfinished. That simple
statement, whose truth seems so obvious to some, is somehow threatening to
others. So threatening that, despite the historical accuracy of everything I
have cited from this book, it is a discussion that would currently be illegal
for high school teachers to have in Tennessee, and, if some have their way,
might even be illegal in college history classes.
On second thought, maybe things are becoming broken.
--Troy D. Smith,
a White County native, is a novelist and a history professor at Tennessee Tech.
His words do not necessarily represent TTU.
A list of other historical essays that have appeared on this blog can be found HERE
Author's website: www.troyduanesmith.com
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