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Equality means different things to different people

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Equality means different things to different people. Choose three instances where a person, an institution, or a social movement articulated a distinct vision of equality. For each instance that you choose

? Describe the distinct vision of equality that was articulated;

? Explain why the person, institution, or movement who articulated the vision favored it

? Specify the ways that this vision of equality differs from the other two instances that you have chosen.

For the three instances please write about the (1) Civil Rights movement, (2) The Reconstruction era, and (3) The British Constitution in the Colonies

just use the attatched files for refrences and include parenthetical citations. No Works cited page needed.

Class 3 This is a course in constitutional history. We begin today with the history that led to the creation of that constitution. Specifically, we start in England. [Slide 1: England 1600 map.] In 1603, Queen Elizabeth of England died without a lineal heir. As a result, the English crown descended to her cousin, who happened already to be King James VI of Scotland. [Slide 2: Image of King James VI of Scotland] Thus, the kingdoms of Scotland and England suddenly shared a single king. The kingdoms nonetheless remained distinct, with each having its own parliament. King James soon suggested that all Scottish subjects be treated as English subjects and that all English subjects be treated as Scottish subjects. Basically, he wanted to let people from either kingdom move to the other and be treated as if they had been born there. [Slide 3: Close-up of on England, Scotland, and Ireland in 1600 Map] The English Parliament was wary. King James’s proposal would mean that people subject to the jurisdiction of the Scottish parliament could move to England and be subject to the English parliament instead. Ditto with Scottish and English courts. The objecting members of parliament were concerned with maintaining the national borders between England and Scotland. They wanted them to be two nations that happened to share a king, not two kingdoms that had now become one Some English worried that their new king, who was also the King of Scotland, would attempt to replace English law and liberty with something foreign and inferior. In response, they began to lionize English law. They spoke of English law as a timeless framework that guaranteed liberty. They said that continental civil law, by contrast, did not do this. This was not true. English law, like all, law, had changed in the past and would change in the future. The differences between English law and continental law also weren’t all that large. Instead, the English were inventing a national legal culture that valued liberty. It remained to be seen if that self-conception would become reality 1 Notice that what the English were not trying to do here was export their liberty and legal culture to Scotland. They sought to protect themselves, not benefit others [Slide 4: Calvin’s Case.] In 1608, a case known as Calvin’s Case arose in the English courts. The issue in the case was whether a person born after James became King of England (i.e., after 1603) could hold land in England. Calvin would be allowed to hold the land if he were a natural subject of England. He would not be able to otherwise. The court held that Calvin was a natural subject of England because he was born after King James became King of England. To understand this case, you have to understand that two metaphors involving the king’s body were central to political theory at the time. Polities at the time were often described as bodies politic. The king was the head of this artificial or corporate body. Thus, James was the head of a Scottish body politic that included the Scottish parliament. He was also the head of a separate English body politic that included the English parliament. The king also had a natural body, just like each of us does. The question in Calvin’s Case was whether Calvin was born a subject of James’s natural body, hence a subject of both England and Scotland. Or whether he was born a subject of the king’s artificial body or body politic, and thus a subject of only Scotland. The court decided that Calvin was born a subject of the king’s natural body and thus a subject of both England and Scotland. The case also provided a theory of when people became subjects in general. It held that birth within the realm and allegiance of the king made one a subject. That meant that if you were born in a kingdom over which the king exercised authority and you were born owing what we would today call allegiance to the king, you were a subject of the king. [Slide 5: Global map of British Empire from 1660] By 1608, England had already begun occupying land outside of the British isles, including in Virginia. As this map from a few decades later shows, the British Empire was in 1608 on its way to a situation where the king would be the nominal head of lots of lands outside of England. Under Calvin’s Case, anyone born in any of these other colonies would also be a subject of England. Prior to Calvin’s Case, the question of who was a subject in the colonies of the king was being settled by statute. This case stopped that process. Instead, it 2 answered the question by common law. Common law was the law that judges in what were known as the common law courts declared. The notion was that these judges discovered law that had long been recognized and practiced in England. But of course they were often inventing novel law as well. But what this meant was that it was judges rather than legislators who were working out the details of who was a subject. Note that this meant that inhabitants of Scotland or Virginia could move to England and be treated as Englishmen. But it did not mean that they would be treated as Englishmen in Scotland or Virginia. English common-law courts had jurisdiction that was limited to particular places. Their jurisdiction or authority did not extend to the New World. At this point, access to the common law meant access to the common law courts. There were rules that those courts enforced, and you got the benefit of those rules only if you got into those courts. As a result, when Calvin’s Case was decided, nobody thought that it meant that Virginians got all the same law and liberties of people living in England. [Slide 6: The first and last page comprising of the table in Sir Edward Coke’s Institutes of the Laws of England] To get a sense of what I mean, take a look at this “Table”. It contains 76 entries in total. It appears in the Fourth volume of Sir Edward Coke’s Institutes of the Laws of England. Sir Edward Coke authored Calvin’s case. His Institutes of the Laws of England were until William Blackstone, more than a century later, the preeminent attempt to describe the law of England. This table lists all the courts he plans to discuss in this volume. Each court had its own rules and law. According to Coke, this Table was also a “map” of sorts. The notion was that one’s rights varied depending on where one stood. Yet, there was already some notion of constitutionalism in the years after Calvin’s Case. It wasn’t all a technical matter of what court you were in. It was just that constitutionalism was very fluid in the British empire at this time. The legal historian Daniel Hulsebosch speaks of constitutions in this period “not as documents but rather as relationships among jurisdictions and people mediated through highly charged legal terms.” That’s worth breaking down a bit. The idea is that constitution in this period loosely meant the use of legal sounding language that carried great cultural salience in debating and discussing how this or that person related to this or that form of official authority. We speak of the British Constitution as unwritten. That is accurate in one sense. It is not nearly so written as the U.S. Constitution, which is a single 3 text. The British constitution was not a single text. But much of what it was thought to contain was written. Certain great documents, like the Magna Carta, were included. There were treatises, pamphlets, and judicial opinions that gave it meaning. When we say that the British constitution was unwritten, we mean in part that it was much written. No single writing defined it, so many helped to. As England expanded into an empire, its jurisdictional diversity grew. Different parts of the British Empire were governed in different ways. England had an English parliament, common law courts, etc. Scotland had its own parliament, at least at first. The overseas colonies like Virginia had governments that had stronger executives. If England was coming to be seen as a common law monarchy, the same could not be initially said of Virginia. At first, the English understood England to be protecting liberty at home. They did not think the colonies got the full benefit. Instead, something less than a full set of English liberties crossed the Atlantic Ocean. But the colonies received more than nothing. The colonists especially thought they were heirs to England’s constitutional culture. Calvin’s Case became very influential throughout the British Empire in the decades that followed. This was partly because it was published. [Slide 7: Portrait of Sir Edward Coke] This was also partly because it was by Coke, who was such an authority. It was partly because it provided an account of who was a British subject. And it was partly because it played into the notion that the British were more committed to liberty than anyone else. Though Coke did not say that one took all the rights of the common law with one to foreign lands and foreign courts, he did say in Calvin’s Case that Englishmen who migrated to the colonies should have the same ability to hold property as Englishmen in England and that they should benefit from parliamentary government. What happened next was that local courts in the North American colonies began to hear disputes. Their decisions could be appealed to a body known as the Privy Council in England. Over time, the local courts adopted as their own the rules and procedures that English common law courts used. The result was that what had once been the law that Englishmen received when they went to the common law courts became the common law that Englishmen received anywhere. 4 In both England and the colonies, the next step was a process of forgetting. What really happened was that the king had let common-law courts exercise his authority in routinized ways and then courts in the colonies had done that too. Now, subjects conceived of the rules that these courts implemented as rights that had existed forever and were constitutive of the liberty that all Englishmen “owned” as their birthright. This concocted history served a political purpose: expanding and safeguarding liberty It’s worth stepping back for a moment and noting that though we are ignoring most of the history of the British isles, it was extraordinarily rich. [Slide 8: Painting of the English Civil War, The Death of Sir William Lambton at the battle of Sir William Moore] For instance, in the middle of the 17th century there was an English Civil War that led to the execution of the King, the temporary rise of government solely by parliament, and then a restoration of the monarchy. Since we’re keeping our eyes on the North American colonies, one thing to note about this shift is that it means that parliament is becoming more powerful in the British Empire. In 1707, the Scottish and English parliaments merged to form Great Britain. Now, there was arguably one monarch and one parliament for the realm. As the parliament became more powerful, many began to see the rights that the common law afforded Englishmen as a bulwark against the growing power of parliament. If we are being parochial in the sense of looking at the colonies in North America to the relative exclusion of events in England, we are also taking a blinkered view in another way. [Slide 9: Map of British Empire from 1754]. Here is the British Empire in 1754, shortly before the American Revolution. It is bigger, but is still mostly a collection of dispersed coastlines. You can already see, however, that the key holdings are in Africa, Europe, and the Americas. The only other place is a few bits of South Asia. [Slide 10: Map of all empires circa 1770]. Here is how the world looked from the perspective of empires just a few years before the American Revolution. You’ll notice that a handful of countries in Europe have carved up most of the Americas. Some inland areas remain untouched. And some of these claims are more aspirational than real. England certainly has not locked up control of all of these lands, for instance. 5 You’ll notice that we’re starting to see some colonization in south and south east Asia. Also, Russia and China control huge swathes of land, but it’s mostly contiguous. What I want to focus you on is how England is part of a European trend that’s occupying the American coasts and looping in the African coasts. [Slide 11: Map of slave trade during this time] That is because the European powers are engaged in promoting a massive slave trade from Africa to the New World. You can see that literally millions of people are flowing across the Atlantic in slave ships. Slaves worked in all sorts of industries, but the driving force behind the trade was agricultural work. In much of the Americas, work in sugar cane fields predominated. In the British colonies in North America, tobacco and cotton were major crops. This map gives historical totals, so it includes many people who made the socalled Middle Passage from Africa to the United States in chains after the American Revolution. But it’s still helpful. Everywhere, slavery was a brutal and wicked institution. In some places, however, it was normal to literally work slaves to death. Here, slaves died before having enough children to reproduce their population. To ensure a steady labor supply in such places, planters often continually imported new slaves to replace those who died. You can see that the total number of slaves imported into the United States was much less than in some other areas. But slaves often survived and had children in the United States. By emancipation in 1860, there were nearly 4 million slaves in the United States. At the time of the American Revolution, slaves comprised about 20% of the total population of the colonies. [Slide 12: Historical painting of George Washington with slave laborers] All of this is a long way of saying that slavery was a major institution in the colonies in the years before the American Revolution. It existed throughout the colonies, not just in the South in these years. Most people encountered slaves in their day-to-day lives. We began by talking about who was a subject of England. The notion was that everyone was a subject or a foreigner. But in fact, there was this other group of people, slaves. Later in the course, we’ll focus much more on the experiences of slaves and their descendants. For now, what I want to call your attention to is that when white colonists thought about their relationship to the government, the relationships that they saw around them were alien, subject, and slave. It is perhaps no surprise then that the colonists began to think about how their relationship to the crown and parliament and those of the slaves around them differed and were similar. They began to describe denials of liberty as a 6 form of slavery. This was no metaphor. They saw people stripped of their rights, reduced to bondage, and treated as property on a regular basis. They knew how oppressive tyranny could become. This did not lead most colonists to favor ending slavery. But it did contribute to the jealousy with which they came to guard what they perceived as their natural-born rights. At this stage, we can return to the notion of constitution. [Slide 13: Image of cover of Hulsebosch’s “Constituting Empire] I don’t make you read a ton of history books in this course, but I do like you to know where what I’m telling you comes from. So here’s Hulsebosch’s book. I mentioned him earlier. Writing of the seven decades in the 18th century before the American Revolution was on the forefront of people’s minds, he also wrote: “The English constitution was not a thing. Rather, it was a cultural commons, a customary repository or rhetorical strategies that could be invoked to assert powers, rights, and duties, as well as simply to make sense of the political landscape. . . . [T]he primary source of this constitution remained the English common law. In addition, the reasoning process used to analyze the constitution was similar to that used for more mundane legal problems.” The notion here is that though Englishmen did not yet speak much of constitutional law, they did imagine that the English constitution included foundational customs, rules, and legislation. What precisely it contained was debatable, but the common law exercised a strong gravitational pull. This meant that people presumed that the constitution and the common law were similar to one another. And people used legal reasoning like that of common law courts to debate and analyze the constitution. One key dynamic during these decades was that of under-theorized actions. For instance, the North American colonies had colonial assemblies and courts. One might see this as the king’s gift. But many colonial residents thought that these institutions were their right, part and parcel of their rights to the common law and to consent to be governed. Notice how different understandings of what is going on would not produce conflicts so long as both sides could more or less agree on immediate actions. If you saw a colonial court as the king’s gift, you would want people to respect it. If you saw it as the right of the colony, you would also want people to respect it. Both sides could demand respect for the court without agreeing on why. 7 In fact, there were not just two views of what was going on, there were four. Back in England, the Parliament that everyone agreed could legislate for the colonies at least on some issues (like regulation of trade and imposition of tariffs), began to equate the complex, ambiguous, and multi-faceted British constitution in terms of a simple rule: Parliament wins. Its view was that the long struggle in England had been about restraining the power of the king. Parliament was the good guy in this historical drama and the crown was the bad guy. What parliament did was democratic. It represented the will of the people and popular sovereignty. It was thus inherently constitutional. A second constitutional view came from imperial officials on the ground in the colonies. These were people who traveled from England to the colonies and whose job it was to carry out British policy in the colonies. Their view was that the constitution was designed to knit together the entire empire. They imagined that there was one constitution for England and a second, imperial constitution. One could determine what was constitutional under the imperial constitution in part by asking what would unify the empire and make it function. In the population centers of the colonies, a third view took shape. Here were people we can term creoles, by which I mean people who were born in the colonies. Creoles were thus different from people born in England who them migrated to the colonies. Among many creoles, a vision of the constitution developed that stressed local autonomy and self-government. There were many models for this in England. For instance, counties in England enjoyed degrees of autonomy. This autonomy could be and was theorized in lots of ways. Finally, there were colonialists who lived at the edges of the colonies. They were dispersed, with less access to communication and transportation and with fewer neighbors nearby. No unified, coherent constitutional theory emerged from these areas, but these were people who valued the common law and were ready to make constitutional arguments on discrete issues when the need arose. Often, various constituencies’ interests aligned. But sometimes they clashed. One notable area where they might clash involved American Indians. For imperial agents, the need to knit together the whole empire meant taking into account American Indians’ trust, cooperation, and sense of justice. For individual settlers operating largely beyond the reach of colonial governments, the goal could be simply to grab land however one could. As 8 each side pursued its interests, the language of common law and constitutionalism swirled about. So why didn’t the potential for conflict explode into civil war long before 1776? One answer is that all sides had a strong interest in preventing that result, which would mean bloodshed, uncertainty, and a denial by colonists of deeply felt identities as Englishmen. If we take a look at the Privy Council, which was the body that reviewed decisions by colonial courts, we can see how this worked itself in practice. [Slide 14: Cover of Mary Bilder’s “The Transatlantic Constitution”] The best work on this process focuses on Rhode Island, so we’ll focus there too. It’s contained in Mary Sarah Bilder’s The Transatlantic Constitution, another book I don’t make you read. In Rhode Island, colonial institutions generally got the first bite at the apple. Colonies could write, pass, and enforce their own laws. Colonial courts could decide cases. Only afterward, when something already done in the colonies was appealed, would the Privy Council weigh in. [Slide 15: Painting of Privy Council from between 1650 and 1770] Some shared assumptions underlay what happened as decisions were appealed and ruled upon. In London and in the colonies, the colonists were understood to be English subjects and part of the British empire, thus an extension of the realm of England. It was understood that the constitution or law had to permit the entire empire to function, and that this required both that core features of English law remain in place and that things vary in the colonies in important ways. To cash this out, the notion developed that reasonable “divergence” between colonial approaches and those in England was okay, but that colonial laws could not be “repugnant” to English law and traditions. These were very vague terms. In terms of stitching together the empire, that vagueness was for the best. In fact, it was nuance and context rather than simple rules that always applied everywhere that predominated in Privy Council decisions. This was partly because the Privy Council did not have to offer extensive reasons for its decisions, so theoretical concerns could be sidestepped. This was partly because lack of clarity allowed everyone to remain engaged in the game. Nobody was a permanent loser. Nobody’s view of the constitution was expressly rejected. This lack of clarity also created space for the Privy 9 Council to change its views over time. As circumstances changed, so too could the legal presumptions of the Council. Both sides in this system worked to damp down conflict. Rhode Island lawyers would carefully explain how this or that colonial innovation was a necessary divergence that in no way undermined the empire or showed disrespect for English norms. The Privy Council sought to mitigate rather than accentuate conflicts. For decade after decade, compromise proved possible, even desirable. What changed? [Slide 16: Drawing of protests against Stamp Act] In 1765, the British Parliament required that certain printed materials in the colonies be printed on paper that had been given an official stamp. The stamp cost money, so this was essentially a tax on published writing. This was a new kind of tax. It was imposed to raise money for the British treasury and did not seem to be about regulating trade or accomplishing other goals that the parliament had already established as within its purview. The colonists responded with widespread disobedience. They bullied stamp officials in the colonies until they resigned their commissions. As a result, the stamp act never really produced much revenue. It’s worth noting that the tax itself wasn’t a big deal. The worry in the colonies was not about paying a small amount of money. The worry was about permitting a legislative innovation to go into practice that was at odds with what the colonists understood to be the constitution. Recall earlier how I mentioned four kinds of constitutions. At this stage, we’re seeing a conflict between the Parliament in London and the colonists in the population centers. So it’s those two groups’ visions of the constitution that are at issue. Parliament’s constitution is simple. Whatever parliament says is constitutional. As you’ll recall, the colonists have a different view. As we have discussed, their view began very vague and slowly began to cohere into something similar to the common law, reliant on reasoning like that used in the common law, and protective of notions of local autonomy. That is still pretty vague. By 1765, these notions have solidified a bit further. [Slide 17: Cover of John Philip Reid’s “Constitutional history of the American Revolution”] 10 Here, the classic work, which we again avoid reading, is Reid’s Constitutional History of the American Revolution. The colonists perceived the constitution as one of prescriptive, customary rights. They understood the constitution to be a limit on what the government could do to the people. On this view, the government in London didn’t grant rights. Instead, it was limited by rights. Put differently, parliament and the crown were creatures of law, not creators of law. They could act only so far as the constitution permitted them. This, of course, raises the question of how one was to know what the constitution permitted and what it did not. The core authority to which the colonists turned in deciding what the constitution permitted was custom. On this view, what had been done before was constitutional. What had been consciously refrained from was unconstitutional. The best evidence of constitutionality was when parliament passed a law and it was acquiesced in. That was why the colonists worked so hard to make sure that the Stamp Act was not successfully implemented. They argued that parliament had never before taxed the people of a territory that did not have representation in parliament for purposes of increasing funds in the British treasury. At bottom, this was partly a fight over representation. Last week we talked a bit about how the United States is a republic. We don’t have nationwide votes on what to do. We choose representatives who then decide on policies. England had a similar system, albeit an even less democratic one. As parliament became more powerful and the king less powerful, the idea was that parliament represented the people as a whole. Within England, this was a bit doubtful. Women could not vote. Children could not vote. Most men also could not vote. One had to be fairly elite to vote. But the idea was that even though one couldn’t vote, one was virtually represented because people who shared your interests had chosen the parliament and served in it. Maybe you were a veteran who didn’t get to vote, but other veterans voted, so your interest was represented. The question over taxing that divided the colonists and the parliament had to do with how virtual representation could be. Both sides agreed that there would be no taxation without representation. Both sides agreed that women could be taxed even though they didn’t vote for parliament, because men with similar interests voted. According to parliament, the colonists also enjoyed virtual representation, even though they sent nobody to parliament. The colonists thought that England and its colonies often had opposed interests, so that nobody in England represented the colonies’ interests. The best evidence that the colonists could get that the Tax Act was unconstitutional was to force parliament to rescind it. When parliament 11 enacted a law and then rescinded in the face of resistance it was strong customary evidence of unconstitutionality. Parliament understood this type of reasoning well enough and still understood it to be sufficiently powerful, that they were unwilling to simply rescind the failed Stamp Act. So instead, they rescinded it and passed the Declaratory Act of 1766. This was an act that primarily declared parliament to be supreme. But because it did not require the colonists to do anything, they did not see it as a potential precedent that they had to resist. Instead, it merely represented parliament ensuring that it had not conceded the issue. A year later, parliament enacted some new laws. One act suspended the general assembly of New York until it expended funds in the specific way that parliament requested. The goal was to show that parliament had the power to require that the colonial assemblies act as parliament saw fit. If so, then parliament would have established the constitutionality of its legislating directly for the colonies on any topic whatsoever. That would include the power to tax and much more. If the New York Assembly didn’t expend funds as requested, parliament declared, it would not meet. The New York Assembly expended the funds but without citing the act of parliament, which both sides understood to be an action calculated to avoid creating a precedent of compliance. Parliament dropped that matter. A second law imposed taxes on paper, paint, lead, glass, and tea. These items were ones that existing laws required the colonists to buy from Great Britain. Unlike the requirement that colonists buy goods only from England, which the colonists understood as a regulation of trade, the colonists understood these new laws as another attempt to tax the colonies for the benefit of the English treasury. Again, the colonists attempted to boycott and disrupt the new tax to avoid creating a precedent. [Slide 18: Drawing of the Boston Massacre] As tensions rose between the colonists and British troops, one standoff resulted in British soldiers firing shots into an angry and less-than-whollypeaceful crowd. Several Bostonians died and several more were injured. This is important for this course. We have so far spoken about the shifting meanings and content of constitution and law at a fairly abstract level. People thought one thing. Perhaps the colonists had a particular view. But it is important to remember that societies are made up of lots of individuals. The 13 colonies did not embark on a revolution against undemocratic authority in England because a handful of elites in the colonies told them to. Rather, as anger with London built, we begin to see mob activities like which 12 culminated in the Boston Massacre. Farmers and tradesmen joined with professionals and men of means in opposition to British policies. One emphasis in this course that will gain steam in weeks ahead will be on how ideas that circulated among more modestly situated members of the nation also gained constitutional traction at times. This is an early example, though not our focus right now Keep in mind that broader participation did not mean universal participation. Many colonists were loyal to the empire. Others in the colonies, especially slaves, had quite limited opportunities to participate in early protests against British rule. Back to the main story line. The British were again caught between a law they could not enforce and the knowledge that repeal would only strengthen the colonists’ hand. Again, they replaced rather than repealed. This time, they left in place only one tax, which was on tea. The 1773 tea act required that once a ship entered harbor, it must pay a duty on tea within 20 days or have its tea confiscated. Either outcome would set a precedent for parliament’s power to levy the tax. For the most part, the colonists were successful at preventing ships from unloading tea or staying in colonial harbors for more than 20 days. But one ship in Boston found itself caught. One law required it to remain in harbor until it unloaded its tea. The tea Act said that it had to either pay a duty on its tea or let it be confiscated. [Slide 19: Painting of the Boston Tea Party] Just before the 20th day arrived, Bostonians staged the Boston Tea Party. By dumping the tea into the ocean, they were able to prevent the tea from being either confiscated or dutied. No precedent was created. Again, note how a complex legal development and a more popular and performative protest merge together here. The British responded in 1774 with what the colonists came to call the Intolerable Acts. As the name suggests, the point of possible compromise with parliament had passed. One law from parliament shut down Boston Harbor until the city repaid the value of the tea. Others altered the charter government of Massachusetts, permitted British soldiers charged with crimes be tried in London, required some private quarters be opened to British soldiers, and created a government for the newly British colony of Quebec that had no elected government. The colonists’ response was now to ask the king to intervene. The colonists viewed the empire much as Coke had in Calvin’s case. They saw a single 13 human being, the king, who was the head of multiple bodies politic. One was Great Britain, for Scotland and England had unified decades before. Each of the colonies was another on this view. Thus, Virginia had its own representative assembly and its own independent relationship with the king. The colonists now asked the king to restrain the British parliament and to revitalize his relationship with each of his colonial bodies politic. Parliament was horrified. It had spent centuries attempting to limit the power of the king. The arrangement proposed by the colonies would vastly increase the power of the crown just at the moment that the king was finally well reigned in. But the king was not receptive. The king had the same understanding of the constitutional monarchy of the United Kingdom as parliament did. Whatever the formal power of the crown, the king refused to intervene contrary to parliament. The colonies convened the first continental congress, at which representatives from the colonies met together. Revolution now seemed inevitable. Why did parliament provoke this crisis? First, as you will soon see, there is a tendency to see one’s own legal interpretation as natural, right, and even inevitable. But parliamentarians were good lawyers, so they should have known better. Second, it was in their self-interest to centralize power. Third, the colonies were far away. It was easy to be ignorant of their views and downplay their importance. Fourth, parliament itself was not super democratic. Patronage (the granting of favors and offices for political support) structured much politics. It was an elite-dominated game. The notion of broad-based public opinion was only just coming to be influential. Fifth, this was not what we now refer to as an inside-the-beltway world. Parliamentarians were not primarily creatures of London. They returned to their localities for much of the year, when Parliament was out of session. They were thus much more parochial than a term like “imperial planner” might suggest. Sixth, parliament was pretty divided and ineffective in these years, so it probably didn’t think of itself as much like a unified monarch. Seventh, parliament’s new view was in fact quite different from how the English had talked about the constitution a century before. It can sometimes be hard to admit it when one is changing law. The illusion of continuity is powerful. Eighth, for parliament to really take the colonies’ concerns seriously, they would have to see themselves as the colonists saw them – as potential tyrants. That act of imagination might be hard for anyone. Let me conclude with a couple of points. First, we have seen today something we’ll see much of in future weeks: how constitutional meaning changes. 14 Sometimes these changes are obvious to all and happen all in a moment. Sometimes they are slow and imperceptible to contemporaries. We also saw how constitutional consensuses can shatter, sometimes quietly and slowly. I hope that the view of what it meant for a law to be constitutional during this pre-revolutionary period felt unfamiliar. We now get to see how the modern U.S. system evolved out of these origins. One thing that will remain constant, however, is the way that individuals grab onto legal and constitutional concepts and try to muster them to their own causes. That is, lawyers and others (even mobs!) capable of legalistic arguments will continue to matter. A second thing that we see here that we will keep our eye on in weeks ahead is the extent to which law is a special discourse in the United States. It structured politics, rallied popular support, even altered geopolitics and brought about war. Next class we turn to the question of the constitutionalism that revolution wrought. 15 Class 23 & 24 You’ll recall that a few classes back I argued that an empire had risen phoenix-like from the smoldering ashes of Reconstruction. So too did the modern Civil Rights Movement, albeit at greater delay. Today’s class and the one that follows are going to be about what may be the most celebrated Supreme Court case in history, Brown v. Board of Education (1954). As many of you surely know, it declared racial segregation in public education to be illegal and spelled the death knell for all legally condoned invidious racial discrimination. What some of you will know and others may not, is that there has also been a broad reconsideration of the value of Brown, with many now arguing that it was relatively insignificant or even on balance harmful. My goal in these two classes is to draw together recent scholarship on the case – its causes and effects – to provide you a sense of how it came to be and how it was implemented. As we have so often seen, the case will emerge as the product of constrained choices. We’ll start before the Civil Rights Movement began to rise again after the Supreme Court turned its back on black voting rights in the 1903 case of Giles v. Harris. Initially, the results of federal abandonment for African Americans were awful. [Slide: Historical image of early-20th century image of poor black Southern sharecroppers] Blacks in the rural U.S. South increasingly came to face a version of a Jim Crow racial and economic caste system that was fully integrated in public and private. African Americans were coerced into taking on crushing debts and forced under penalty of law to labor to repay those debts. Their personal belongings were seized in further payment along with their cars. Trains and bus companies colluded with planters to prevent farm laborers from fleeing. Laws prevented workers from withholding their labor and planters from competing with each other for laborers. Police, judges, and juries were all white. Extralegal violence was a constant threat. Despite limits on Southern blacks’ mobility, a six-decade long great migration of African Americans from the South to Northern cities began around 1910. Although life in the North was better, it remained structured by racial and economic oppression. Blacks faced racial discrimination in job training, job hiring, union membership, and wage levels. Notice how Jim Crow acted as a psychological, material, legal, violent, public and private system. 1 [Slide: Covers of Resa Goluboff’s NAACP book The Lost Promise of Civil Rights and Mark Tushnet’s NAACP book The NAACP’s Legal Strategy against Segregated Education, 1925-1950] Six years after Giles v. Harris, in 1909, W.E.B. Du Bois helped found the National Association for the Advancement of Colored People, or the NAACP. You likely know the NAACP as the organization that won Brown v. Board of Education. These two recent books have provided us with new insight into that account. What they stress is that the path to Brown was more experimental, open-textured, and contingent than we have previously thought. Among the NAACP’s founding goals was to end race discrimination in employment. But as many of you know, the expertise it developed was in law. It thus early in its existence worked out a division of labor with a sister organization, the National Urban League. The League would focus on economic equality. As one NAACP speaker put it in 1914, the NAACP was “concerned with legal equality only, and proposes to let economic equality take care of itself.” Similarly, the NAACP ceded political lobbying to the National Negro Congress. Soon, the NAACP had placed legally enforced discrimination in education and housing at the top of its agenda. [Slide: Historical image of Great Depression] Then came the major event after World War I, the Great Depression. Prior to that time, unions were on the defensive, and conservative politics were ascendant. The Supreme Court tended to lean in favor of laissez faire policies, which meant policies of letting the free market work itself out without interference from government. The Great Depression changed all that. In a period of sustained, extremely high unemployment, it became apparent to many that the market would not take care of itself. Hunger, homelessness, misery, and hopelessness reigned. Franklin Delano Roosevelt became President on the promise to the American people of a New Deal and a vigorous response to the Depression. Part of that response was to appoint to the bench liberal justices who would approve his ambitious policy agenda despite its many interferences with the market. As a result, during the 1930s, a conservative Supreme Court gave way to one that was quite liberal on economic matters. As workers struggled to unionize and gain a voice, many thought that the legal vanguard would be collective workers’ rights. Less clear was where race would fit into this new reality. 2 One reason to be hopeful that African Americans might get some judicial relief had to do with the ideology of liberalism at the time. Most people who favored President Roosevelt’s New Deal were also liberal on race. Though Roosevelt didn’t choose justices because of their views on race, his preferences for liberals meant that he ended up placing on the Court men (and it was all men) who were relatively liberal on racial matters. [Slide: Historical image of Scottsboro boys and their Communist counsel] For the NAACP, the Great Depression also brought competition for the loyalties of black constituents. As the Depression hit black workers particularly hard, organizations stepped forward to represent them, including the Communist Party. This is an image from the infamous Scottsboro boys case in which nine black teenagers were accused of raping two white women. Both the NAACP and the Communist Party assisted in their defense, and it became an instance of the organizations’ competition for preeminence on the issue of black rights. The NAACP responded to the Depression more broadly by taking modest steps into the economic sphere. It supported boycotts aimed at increasing black employment. It lobbied the Roosevelt Administration to include blacks more fully in New Deal programs and to require unions to integrate. (The effort to integrate unions was unsuccessful during these years.) It’s worth remembering that the NAACP didn’t have any master plan. It was improvising as it went, testing out a strategy, deciding whether it worked, and then adjusting. In the 1930s, the NAACP put great effort in the area of education. You’ll recall that Plessy v. Ferguson had in 1896 permitted segregation, so long as the separation was equal. As we’ve seen, however, the segregation was not at all equal. The NAACP hoped to break the back of segregation by requiring it to be equal at great cost to the South. To do so, it began by demanding equal pay for black teachers and equal graduate-school educational opportunities for black students. Both sets of campaigns proved tricky. Litigating university cases was slow and intricate. Teacher pay cases were initially promising, but then school boards learned to hide their racial discrimination behind ostensibly race-neutral evaluations. The NAACP was also feeling its way to an effective doctrinal line of attack. Between the late 1930s and the early 1950s, the meaning and promise of civil rights was profoundly up for grabs. Jim Crow was an enormous, multifaceted structure of oppression that could be attacked in innumerable ways. It was far from clear what the destruction of Jim Crow would mean. As you’ll recall, the end of slavery marked the start of the fight over the meaning of 3 freedom. Similarly, what it meant to dismantle Jim Crow and what would follow it was a matter of great controversy and uncertainty. The outbreak of WWII, however, brought renewed legal activism around African Americans’ economic plights. [Slide: Historical image of Civil Rights Pamphlet to U.S. Dept. of Justice] In the 1940s, the newly created Civil Rights Section of the Department of Justice took up the cause of the economic plight of African Americans in the rural South. They did so in large part because other federal agencies already dealt with urban and industrial employment issues, especially those in unionized or potentially unionized industries. With no similar federal agency concerned with agricultural workers, the Civil Rights Section stepped into the breach. Rather than focus narrowly on race discrimination by government officials, it also attempted to tackle economic oppression broadly, including by private individuals. To do so, it drew upon the Thirteenth Amendment, which permitted Congress to enforce the constitutional ban on slavery. At the same time, the NAACP made a formerly unseen commitment to economic issues. With the Civil Rights Section tackling rural issues and federal agencies available to hear any claims that the NAACP brought on industrial and urban issues, the organization focused its efforts on industries associated with urban areas and unionization. It particularly focused on segregated railway unions and on race discrimination in railroad employment. This was partly because black workers were more outraged to suffer economic insecurity during a war that seemed to be lifting everyone else’s economic fortunes. The NAACP also knew that workers’ rights were still at the forefront of national politics, so this was a way to tie black rights to the rising political tide of the day. The strategy also brought in new members, helping transform the NAACP into a truly mass organization rather than a middle-class black one. Thurgood Marshall of the NAACP announced that race discrimination in voting and employment were the two most pressing problems facing African Americans. “When those problems are solved,” he predicted, “other questions will settle themselves.” With it too early to make voting a sustained focus, he in 1943 announced that employment and union discrimination cases were “the type of case which must be filed.” This was sensible. President Roosevelt had made economic rights central to his Administration. The most visible African American protests and the most significant federal acts on race both concerned work. At the same time, the NAACP continued to attack official segregation in housing, graduate education, and transportation. 4 Economic cases often involved a tension between ending segregation and advancing blacks’ material economic interests. In unionization cases, this could come up when the organization had to choose how to approach unions that were segregated, but did let blacks have unionization benefits. These could bring substantial economic advancement to blacks, but ran flatly against the NAACP’s anti-segregation commitments. [Slide: Historical image of NAACP case over teacher wages] Similarly, when the NAACP sued over the lower salaries that black teachers teaching at black schools received, it aimed at higher wages, not ending segregation. By the time World War II ended, the NAACP thought that the future of work cases was very bright. NAACP interventions had increased the number of African Americans employed in industry. Any number of violations of black rights appeared amenable to lawsuit. The challenge was identifying an approach that would not require endless litigation to succeed. Suing each segregated unions and workplaces was unworkable. After years of litigation, the NAACP had brought black teacher pay up to 65% of white teacher pay, but future suits would be expensive and time consuming given how easily school boards could mask their discrimination by using disingenuous merit criteria. Of course, suing each segregated graduate or professional school was also not feasible. What the organization needed was a way to attack a pillar of race discrimination head on. Plessy seemed a promising target. [Slide: Historical Image of Herman Sweatt registering for classes after Sweatt v. Painter (1950)] The turning point came in 1950, when the NAACP won two landmark education lawsuits. One was Sweatt v. Painter in 1950. Herman Sweatt was a black applicant to the all-white University of Texas School of Law. Rather than admit him, Texas opened a black law school for him to attend. Texas argued that this new law school was equal, in part because its smallness meant that Sweatt would get lots of individualized attention. But the Supreme Court was unconvinced. It noticed that the new school had fewer books, fewer faculty, no law review, and no moot court. It lacked the reputation and alumni that helped make the white law school what it was. And it lacked the opportunity to interact with whites, who accounted for the vast majority of lawyers, witnesses, and judges in Texas. [Slide: Historical image illustrating McLaurin v. Oklahoma (1950)] 5 The second case was McLaurin v. Oklahoma. George McLaurin was an African American graduate student. Although he had been admitted to the white graduate school, he was segregated in the classrooms, library, and cafeteria. The Court declared such segregation unconstitutional and ordered it to allow him to attend. Although the Court did not overrule Plessy, its decisions all but announced that separate could never be equal in higher education. On the one hand, these suits created a sense of doctrinal momentum that the organization wanted to capitalize upon. But the wins also raised expectations throughout the now mass membership of the NAACP. What was needed next was a big blow against segregation that would affect the lives of all African Americans. In short, segregation in public elementary and high schools would have to be challenged. These victories accelerated a trend that was already underway. As the NAACP made these cases its focus, it began to turn away from the notion that its goal was general black advancement, including black economic advancement. Instead, it turned toward seeing its goal narrowly as the end of official discrimination. This had doctrinal implications. Rather than pursuing doctrinal avenues that helped the poor and African Americans, such as a general right of access to employment, it pursued lines of attack narrowly focused on ending racial discrimination. In doing so, it now saw education as the path forward. Thus, in 1950, the NAACP declined promising new lines of attack on union segregation, segregation in government employment, and race discrimination in union contracting. By 1951, the NAACP had also relegated labor to a lower priority than ending segregation in transportation, health, housing, recreational facilities, public gatherings, and places of public accommodation. Labor was no longer a vehicle with which to attack Plessy. Around the same time, the Department of Justice underwent a reorganization that handed its civil rights docket from the Civil Rights Section to the Solicitor General’s office. The Solicitor General is the U.S. official who argues before the Supreme Court. Seeing the direction in which the justices were headed in 1948-50, the Solicitor General joined the NAACP in seeking to build on doctrinal momentum. It abandoned the Civil Rights Section’s concern with economic injustice and nongovernmental discrimination and instead focused narrowly on race discrimination by government actors. Why didn’t labor cases prove more promising in the late 1940s? The economy entered a downturn, which reduced the power of labor to push its agenda. 6 Anti-communism boomed as the cold war got underway, which made any hint of labor radicalism dangerous. As anti-communists targeted the NAACP and mainstream labor unions, the two sets of organizations were made common cause in defense. That made addressing the problem of segregated unions politically difficult. We’ve already discussed how Roosevelt’s decision to preserve his economic reforms by appointing liberals to the Supreme Court had the effect of bringing to the Court white men who were also relatively liberal on race. But other factors also accounted for African Americans’ legal gains and prospects in the years leading up to Brown v. Board of Education. [Slide: Nazi Poster portraying Jews] First of all, World War II had made racism increasingly illegitimate. A war against the racial ideology of Nazism followed by shocking images of the Holocaust had fundamentally delegitimized racism as a political ideology in the United States. In border states, cracks began to show in Jim Crow, as the occasional pools, religious schools, medical societies, lunch counters, theaters, and stores desegregated in the late 1940s. [Slide: Cover Image of Mary Dudziak’s book Cold War Civil Rights] The Cold War was another key part of the context from which Brown emerged. If you were brought up like me, you learned of Brown as a case that culminated the NAACP’s decades-long legal strategy of educating the Court about discrimination and nudging it toward repudiation of segregation. Mary Dudziak, who was a long-time professor here at SC, influentially challenged that view as simplistic. Instead, she argued, Brown must also be understood as a Cold War case. As she and others point out, segregation was a major Cold War issue in the 1950s. As much as 50% of anti-U.S. Soviet propaganda focused on race discrimination. When the Department of Justice weighed in on segregation in public education, it spoke to the Supreme Court only of the deleterious effect of legal segregation on foreign relations and the effort to defeat communism. U.S. papers celebrated anti-segregation cases as useful for international relations. International papers noticed such decisions and declared them influential vindications of U.S. ideals. The NAACP researched overseas reactions to desegregation cases because it knew such evidence could help advance its civil-rights agenda. The State Department made desegregation cases part of its overseas propaganda. Justices too expressed awareness of and experience with segregation as an important issue in how people overseas saw the U.S. 7 Having committed itself to a frontal attack on segregation in public education, the NAACP pushed a series of cases. In 1952, the Court heard argument in four cases it had consolidated together. Two of the cases came out of South Carolina and Virginia. There, the lower courts had faced segregated schools and decided that the black schools were inferior. It had ordered that the schools be equalized. In the interim, it had not required integration. That can seem odd at first, but recall that the problem under Plessy was not separation itself, but unequal separation. The remedy for that injury was equalization, which is what the court ordered. A third case came out of Delaware. There, the court also faced unequal segregated schools, but rather than simply order equalization, it ordered integration with the possibility of a return to segregation once equalization was achieved. The fourth case, for which the final decision was named, was out of Topeka. There, the court found that the schools were equal in all tangibles but that segregation itself has a detrimental effect on black children. You’ll recall that Plessy had held that if blacks thought segregation stamped them with a badge of inferiority, that was because of how they viewed the matter, not because it actually did. Consistent with that precedent, the lower court declared itself unable to remedy the harms of intangible inequalities flowing from segregation. [Slide: Book Cover of Michael Klarman’s From Jim Crow to Civil Rights] After arguments, the justices were divided as to what to do. Michael Klarman’s attempt to reconstruct their initial positions is perhaps the best we have. When the justices met for their conference together after the arguments, they decided to depart from their normal practice and not take a tentative vote in the case. Yet some took notes, which help us understand their preliminary views. We’ll begin with the justices who seem to have been clearly in favor of ending segregation. Justice Hugo Black hailed from the Deep South, where he had at least for a time been a member of the Ku Klux Klan. Nonetheless, he straightforwardly declared himself ready to vote to end segregation. William Douglas was equally firm. He declared: “No classifications on the basis of race can be made.” Harold Burton agreed: “Segregation violates equal protection.” That said, he, “would give plenty of time in this decree.” Sherman Minton was also ready to overturn Plessy. In his words: “Classification on the basis of race does not add up. It’s invidious and can’t be maintained.” 8 Two justices seemed ready to come out the opposite way. Chief Justice Fred Vinson saw two reasons to affirm Plessy: A long line of judicial precedents now supported the result; and the framers of the Fourteenth Amendment had supported segregated schools in Washington, D.C. Stanley Reed was even more supportive of segregation. He declared that “Negroes have not thoroughly assimilated” and that segregation was “for the benefit of both races.” Finally, three justices appeared to be undecided. Felix Frankfurter was reluctant to overturn decades of president and declare scores of laws unconstitutional. Yet he also suggested a willingness to disapprove segregation when he turned to the question of how to remedy the problem. His immediate solution was that the Court ask both sides to present further arguments so that the justices would have more information and more time to deliberate. Justice Robert Jackson began his remarks on a skeptical note: “There is nothing in the text that says this is unconstitutional. There is nothing in the opinions of the courts that says it’s unconstitutional. Nothing in the history of the 14th Amendment says it’s unconstitutional. On the basis of precedent, I would have to say segregation is ok.” He also, however, indicated the “segregation is nearing an end” and that if desegregation were to be allowed to proceed slowly, he “would go along on that basis.” Tom Clark took a stand similar to Jackson’s. He favored an opinion that would “delay action” and “give lower courts the right to withhold relief in light of troubles.” Otherwise, “I would say we had led the states on to think segregation is OK and we should let them work it out.” Rather than reach an immediate, fractured decision, the justices followed Frankfurter’s advice and ordered re-argument. In the interim, Chief Justice Vinson died. According to Frankfurter, this was “the first indication I have ever had that there is a God.” California Governor Earl Warren was chosen to replace him as Chief Justice. [Slide: Newspaper headline announcing Brown decision] At the 1953 conference following re-argument, Warren announced that he was ready to overturn Plessy. That meant that there were now five votes – a majority – for that result. The other four now had three reasons to come aboard. First, all anticipated that there would be a tremendous backlash among white Southerners. A unanimous court might blunt that to a degree. Second, three of the justices who had been reluctant the year before had 9 seemed caught between what they perceived as their judicial role to act only in limited cases and their predilection to overturn segregation. With the result now predetermined, they may have felt freed from the responsibility of casting the deciding vote. Third, several justices cared a great deal about implementation of the order. By joining the majority, at least conditionally, they gained influence over that question. [Slide: Separate But Equal clip] In 1954, the Court announced its decision, which you are reading for this week. One oddity of the opinion you may have noted is that it seeks to pivot away from Plessy’s finding that there was no harm from segregation per se by citing “modern authority.” The Court does not simply declare that segregation was transparently motivated by an attempt to establish a system of racial caste that was antithetical to equality. Doing so would have been to say that Plessy was wrong the day it was decided. Instead, they argue that recent social-scientific insights lead them to depart from this aspect of Plessy’s reasoning. The problem is that this argument is only as strong as its social science, and this was an emergent field. Hence, it was easy to poke holes in the particular studies upon which the Court relied, most notably the doll study in the clip I just showed. Those who opposed integration did just that in the years ahead, and very vocally. Another oddity is that the opinion does not announce what is to be done about segregation. Instead, that question was set for further re-argument. The decision that came in 1955 boiled down to the notion that desegregation was to proceed with “all deliberate speed.” That was a far cry from the immediate desegregation that the NAACP had demanded. The reasons for this weak decree seem to include a desire to prevent violence, a worry about issuing an order that would not be followed, and a degree of racism among the justices. It was a bad sign that Florida legislators broke into cheers when they heard the news. In practice, the decree meant that almost no desegregation happened for the next decade. [Slide: Historical image of brutality against civil rights protestors, 1963] But that does not mean that Brown had no effect. The Court’s weak decree emboldened Southern proponents of segregation, who launched what has come to be known as massive resistance. Southern politics began to turn more heavily on race, demagogues pushed moderates to the sidelines, it became normal to declare Brown illegitimate and to speak in violent tones about never permitting it to be enforced. Although chains of causation are hard to trace, that militant defiance was also visible in the savage responses 10 of many southern whites to civil rights protests. In an irony of history, it was this Southern white savagery that galvanized Northern white opinion in favor of civil rights (to the degree that it was galvanized). This was one way that Brown helped drive the civil rights movement forward. [Slide: Book cover of Gerald Rosenberg’s The Hollow Hope] If desegregation had gone nowhere a decade after Brown, why has it come to be remembered as such a landmark case? That was the question that Gerald Rosenberg asked in the Hollow Hope, which argued that courts alone can’t change the world. Hopefully I’ve convinced you that law and courts can be part of social change, even if they can’t be divorced from context while remaining influential. What I want to turn to now is one reason that Brown has been remembered. Desegregation did make huge progress in the second decade after Brown. [Slide: Graph representing percentage of Southern Black Schoolchildren Attending School with Whites] The spark was the Civil Rights Acts of 1964 and 1965, followed by a series of federal funding conditions. Suddenly, segregated districts faced federal lawsuits and losses of federal dollars. The results were dramatic and immediate. As you can see, there were almost no southern black kids in school with whites before this legislation. By 1972, more than 90% of black students attended schools with whites. It’s tempting to say that this means that courts did nothing. But, in fact, as the federal political branches pushed harder for integration, the Supreme Court and federal courts also became more aggressive. [Slide: Historical image of desegregation busing] Confident that their orders would be enforced, courts flexed their muscle, ordering busing, hiring, student reassignment, and other immediate actions. In 1968, the Supreme Court declared that desegregation must be comprehensive and immediate. [Slide: Front cover of Gary Orfield et. al., Brown at 60] As Gary Orfield and his collaborators have documented, the broad commitment to integration was short-lived. The last major congressional action in support of desegregation was in 1972. The last major Supreme Court opinion advancing the cause of desegregation was in 1973. 11 Progress not only stalled, but began to erode. Just as the Court had helped drive the political commitment to desegregation in the late 1960s and early 1970s, it afterward played a key role in unraveling that progress. In the mid-1970s, the Court prohibited most so-called multi-district desegregation decrees. This ruling alone crippled much of desegregation, because school districts tended to be much smaller than metropolitan areas. In Detroit, for instance, after white families fled the city school district for suburban ones, federal courts found that the districts themselves were so racially homogenous that intra-district integration was basically impossible. In the early 1990s, a series of Supreme Court decisions encouraged federal courts to dissolve desegregation decrees by lowering the requirements for declaring victory. In the new millennium, the Court added that voluntary desegregation plans were themselves race discrimination and so would often violate the Constitution. Of course, as in so much we’ve seen, the new legal trend never wholly displaced the old one. Even six decades after Brown, hundreds of districts remained subject to desegregation decrees. [Slide: Graph showing Southern Desegregation and Resegregation for Black Students, 1954-2011] This graph shows the rise and partial fall of integration in the U.S. South. When Brown v. Board was decided, no black students attend majority white schools. By 1989, 45% of Southern black students did. Today, that number has fallen to just under a quarter – the same level at which they were at in 1969. The rollback has reversed key gains, but has also left large gains intact. [Slide: Table displaying Percentage of Black Students in 90-100% Minority Schools, 1968, 1988, 1991, 2001, and 2011] This table reveals the stunning progress made and retained in the South in terms of desegregation. As late as 1968, more than ¾ of black students attended schools that were 90% or more nonwhite. That number fell to less than ¼ in 1988 and remains barely more than a third today. Whereas the South was far and away the most segregated region in 1968, it now sends the lowest percentage of black students to schools that are 90% or more minority. Racial concentration in the northeast, by contrast, has significantly worsened since 1968. [Slide: Table showing Most Segregated States for Black Students, 2011-12] Here we have a state-by-state ranking of what percentage of black students attend majority white schools, what percent attend schools that are 90% or 12 more minority, and what percentage are exposed to white students. California ranks near the bottom on every measure. What about Latinos in all this? Well, there were many fewer Latino students in many of the most segregated states in the 1950s. Of course, Texas and Florida were important exceptions. Federal courts tended to focus on African American students. Except in Denver and Las Vegas, federal desegregation decrees never had much long-term impact on Latinos’ segregation. This was partly due to nearly two decades of post-Brown uncertainty as to how Latinos should be treated separately from Black and White students. [Slide: Table showing percentage of Latino students in 90-100% Minority Schools, 1968, 1988, 1991, 2001, and 2011] One result of this is that Latino segregation rates did not tumble from 1968 to 1988 as did black segregation rates. Instead, they stayed steady or even grew. And while the South is the most desegregated region for blacks, it is not a positive standout here. [Slide: Table showing Most Segregated States for Latino Students, 2011-12] If California was bad on black racial concentration in schools, it is terrible on Latino racial concentration. On every measure, California is the worst state in the country or the second worst one. There are two reasons to think that partial re-segregation matters. First, segregation of Black and Latino children is almost always also segregation by poverty. Black and Latino students tend to attend poor schools. White and Asian children tend to attend middle-class schools. Second, a large body of research now shows that attendance in integrated schools is correlated with substantial gains in educational and later-life outcomes for students from all backgrounds. Next week, we’ll turn to another pocket of the race and education story: affirmative action. There, the question will be whether members of historically subordinated groups can be given any boost in admissions to higher education. It will be helpful to keep this history in mind as we turn to that next week. 13 Class 12 You have just consolidated your knowledge of the events leading up to the Civil War. While you were away, that bloody conflagration started in 1860. Most southern slave states seceded from the Union. Shots were fired. The North mobilized behind newly elected President Abraham Lincoln to prevent the dissolution of the Union. We pick up today with the war underway. Today, we know that the Civil War obliterated slavery. We also know that by the end of the century there would be a racial caste system in place in the United States, especially the former confederacy. But as the war raged, it was neither clear that all African Americans would soon be free or that the freedom that they secured would come to mean less than they hoped. Our topic today is the end of slavery and the federal attempt to usher in a new age of freedom, a process broadly known as Reconstruction. To start, it is important to realize that the destruction of slavery was not one of the initial aims in the North as it fought the South. In fact, some slave states fought with the North rather than joining the Confederacy. [Slide: Map showing which states were Union and Confederate and which permitted slavery circa 1860-1861] Delaware, Kentucky, Maryland, and Missouri all permitted slavery but stayed in the Union. Virginia split on the issue, created modern-day West Virginia. Slavery was rare there, but legal. Instead, the story of the beginning of the end of slavery is one of slaves seizing freedom and creating momentum for it. [Slide: Cover of Ira Berlin et al., Slaves No More] This work was pioneered by Ira Berlin and his collaborators, who mined Reconstruction and Civil War records to provide us an entirely new view of the period. Their work of recovery has fundamentally altered the source base available to historians. One of their first and most important insights was that slaves freed themselves. Just as before the war, news reached slaves through words overhead from whites and from networks between slaves and free people of color. As word came of Yankee (i.e., Northern) troops coming near, some slaves lay down their tools and fled plantations for the Northern lines. Initially, the North refused to permit African Americans to enlist and join the fight against the South. But as Northern casualties mounted and the war dragged on, the policy was relaxed. By the end of 1862, African Americans in slave states had begun to join Union lines. This quickly created 1 a dramatic feedback loop. As news continued to circulate, slaves on plantations learned that African Americans were donning uniforms in the Northern army. This encouraged many more to flee to the Union side and seek to enlist. At the same time, African American Union soldiers sought out opportunities to visit plantations and urge slaves to abandon their owners. The soldiers often helped those willing to leave to flee. Soon the trickle of slaves into the Union army had become a flood out of bondage. [Slide: Historical image of an African American union soldier] Military service was not just a path to freedom for African Americans. It permitted them to become liberators as well as liberated. It introduced them to the broader world; brought basic education; exposed them to the working of law. Most importantly, it was an opportunity to perform freedom. Martial service was traditionally a marker of citizenship and dignity. Plus, facing former masters in lethal battles was as concrete an expression of the equality of men as was possible. Opportunities for black enlistment also sounded the death knell for slavery in the border states. Able-bodied slave men fled plantations in waves to join the Union ranks. Military recruiters and abolitionists encouraged and facilitated the flight. Slave owners sought relief from Washington, but national sentiment was turning against slavery, border states had a weaker bargaining position than at the outbreak of the war, and the additional military manpower was badly needed. Slave owners tried to stem the tide through brutality: locking up slaves’ clothing at night; punishing family members of those who fled; punishing those who fled and failed. But brutality could not save slavery. Instead, whole slave families fled at once, often taking up residence on unoccupied land outside army encampments. The slave owners’ tactics caused much misery. But it did not turn back the tide. As the war progressed, President Lincoln issued a partial emancipation proclamation. In theory, it only freed slaves in areas still rebelling against the Union. But news of emancipation proved more powerful than its limits, spurring still further flights to freedom and demands for it by one-time slaves. [Slide: Table of Black Men Serving in the Union Army] By the time the Civil War ended in 1865, slavery was in shambles. Now the question was what would be the meaning of freedom. Many former slaves demanded that they be given portions of the property on which they had 2 toiled without recompense for decades. The federal government briefly experimented with this idea, but soon backed away from it. There were also not to be substantial reparations paid to slaves. Instead, the federal government moved most aggressively to secure the legal trappings of freedom for one-time slaves. First came the Thirteenth Amendment [Slide: Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been dully convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2: Congress shall have power to enforce this article by appropriate legislation “The one question of the age is settled” – antislavery Congressman Cornelius Cole “What is freedom?” “Is it the bare privilege of not being chained? If this is all, then freedom is a bitter mockery” – James A. Garfield] A slave system that had struck many as all but impregnable a half dozen years ago, was wiped out in 1865. But it was far from clear what was to replace it. Some abolitionists thought that their struggle had been won and that it was time to fold up shop. Others saw only a start to the long struggle over freedom. Section 2 of the Thirteenth Amendment embodied the conflict. If one thought emancipation meant robust freedom, then Section 2 empowered Congress to act in sweeping ways. If one thought it meant merely an end to bondage, then its meaning was quite circumscribed. Former slaves and their neighbors of color who had been free before the war moved quickly to establish their autonomy from the whites around them. Free blacks before the war had created churches, schools, and mutual benefit societies, that black communities now consolidated and strengthened. Slaves had secured modicums of autonomy in the spheres of family and religion. These now also became focal points of black life. The newly expanded free black community also began to develop its own political culture. And against a history of only being able to travel with a pass, many African Americans exercised their freedom of movement, albeit not to the extent in most cases of traveling beyond a few miles. In the months after the end of the war, African Americans flexed their political muscle through mass meetings, parades, and petitions demanding 3 civil equality and the right to vote. This required no little bravery, as waves of violence by whites against blacks swept through the South. [Slide: Cover of Eric Foner’s Reconstruction] Our understanding of this period owes much to Eric Foner, whose magisterial Reconstruction transformed our understanding of the period to one of great hope and intense black activism. Back in Washington, Abraham Lincoln was assassinated, elevating Andrew Johnson to the presidency. He quickly moved to hand control of the South to the white population there. To stabilize labor relations to the detriment of the freed slaves and to preserve as much of the racial caste system as they could, they instituted black codes in late 1865 and 1866. Egregious features included rules prohibiting blacks from leaving plantations or bringing guests onto them without the master’s permission. Black children were seized for involuntary apprenticeships. Courts sought to enforce labor discipline. Northern Republicans were horrified by the black codes and the waves of violence against blacks. The so-called Radical Republicans observed that no powerful segment of southern whites could be trusted to protect black rights. Black suffrage, they concluded, was the only answer. Although many Northerners were less convinced that black political rights were a good idea, they recognized black service in the Civil War and did agree that former slaves must have personal liberty and be able to compete as free laborers. The Radical Republicans gained control of Congress in 1866. They quickly seized control of Reconstruction from President Johnson. First, they enacted the Civil Rights Bill of 1866, which recognized African Americans as U.S. citizens (overturning Dred Scott), spelled out their rights to make contracts, bring lawsuits, and enjoy a wide array of other civil rights. In 1867, Republicans passed a new Reconstruction Act that divided the South into five military districts. New state governments would only be created and recognized by Congress if they enacted state constitutions providing for universal manhood suffrage, won popular state-level approval of the state constitution, and ratified the Fourteenth Amendment. The former confederate states complied. [Slide: Fourteenth Amendment: Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall 4 any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.] So, what was the Fourteenth Amendment? At the time the provisions that were thought most important were those defining who was a citizen, guaranteeing citizens’ privileges and immunities, and permitting Congress to enforce the amendment. Today, the equal protection and due process guarantees are the most important parts, but that is a more modern development. First, the citizenship provision. It essentially codifies the jus soli rule. Like the old jus soli rule, birthing within the sovereign’s domain while owing the sovereign allegiance makes one a natural-born subject. Because we’re a republic, it’s a citizen rather than a subject. We also see the shift from allegiance to jurisdiction that had been occurring throughout the antebellum era. Who is born in the United States and not subject to its jurisdiction? Children of ambassadors and, importantly, Indians whose primary allegiance is to their tribes. The rule overrules the Dred Scott holding that African Americans cannot be citizens. It insists that they are citizens both of the United States and of the state in which they reside. Second, the privileges or immunities provision. The primary author of this language was Congressman John Bingham. He insisted that it brought all U.S. citizens the full protections of the Bill of Rights, which are the first eight amendments of the Constitution. Before the Civil War, the Bill of Rights protected Americans from the federal government. It did not limit state governments. According to Bingham, the Fourteenth Amendment made the Bill of Rights applicable to the states. But perhaps it was broader. An old and influential case had held that the rights of citizenship included broad access to property rights, which suggested a much more substantial set of rights. Third, the Amendment envisioned congressional enforcement. Thus, it seemed to empower Congress to transform southern society to bring about its vision of meaningful black citizenship. At the state level, Southern constitutions created by delegates elected by voters who included former slaves ended up being further protective of black rights. 5 [Slide: Rebecca Scott, Degrees of Freedom] Rebecca Scott’s study into Louisiana’s experience illustrates the point. She closely studies the voter registration rolls in one Louisiana Parish and finds that Black Union veterans were particularly quick to register once the Union Army took control of the registration process. Initially, there was some question as to whether Confederate veterans would be able to vote, but as it became clear that they would be, their names appear with increasing frequency on the rolls. When the elections for a constitutional convention were held in September 1867, Republicans had close to a clean sweep. [Slide: “The First Vote,” Cartoon, Harper’s Weekly, 16 Nov. 1867] Some sense of the momentousness of the moment was captured by this Harper’s Weekly cartoon. In a state in which slavery had maintained a handful of years before, around half the delegates to the new constitutional convention were men of African ancestry. As these men began drafting the new constitution, they drew on their knowledge of the political traditions in France and Haiti. One measure of the radicalism of the document they created is their guarantee that citizens of the states enjoy the same civil, political, and public rights. The first two of these were familiar. Civil rights were the rights associated with participating in society, but not in governing it. Chief among them were contracting, property, and access to courts. Political rights were those relating governance, primarily office-holding and voting. On traditional accounts, the third type of rights were social rights. These were thought to be beyond the power of the government to demand. In polite company, one would say that this meant one could choose with whom to have to dinner because that occurred in the private sphere. But the power of the category was its association with the taboo of interracial sex. White supremacists sought rhetorically to tie integrated education, integrated public transportation, and other such things to interracial sex through invocations of social rights and undesirable intimacy. But now the delegates to the Louisiana Constitutional convention looked backward and abroad for the new category of public rights. Public rights pushed back against this by drawing a line between the right to equality in such public arenas as streetcars, stores, hotels, amusements parks etc., and one’s home. It guaranteed standing in the public sphere along with the juridical equality of civil rights and the exercise of voice and electoral power embodied in political rights. The roots of the term included Christian notions of all as part of the body of Christ; and French, American, and Haitian revolutionary struggles 6 for equality. Here, African American delegates pushed the legal boundaries of equality outward even further than the Fourteenth Amendment. According to one Louisiana activist, the new Louisiana Constitution demonstrated that men of color would not consent to their own humiliation. In fact, in the years immediately afterward, former slaves transformed their state’s new organic document into concrete gains. With courts willing to enforce laborers’ rights, sugar workers won judgments requiring planters to pay workers before settling other debts. This protected workers in years when planters did not earn enough to cover all their costs. Such access to courts also made written contracts more powerful tools for workers. Former slaves now bargained for and won higher wages and various privileges. At the same time, African Americans voted, and the Republicans won elections. The government militia also included African Americans, which served as a source of respectability and stature for blacks as well as a defense force against the Klan and similar groups. The 1868 presidential elections were a bit of a shock for northern Republicans. The famous Civil War General Ulysses Grant won the presidency, but only a plurality of the total votes cast. He ran strongly among African Americans in the South, but struggled to a degree in the North. It became clear to Republicans that black voting strength in the South was key to their success. Shortly after the election, they set to work drafting and achieving ratification of the Fifteenth Amendment. [Slide: Fifteenth Amendment: Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2: The Congress shall have power to enforce this article by appropriate legislation.] Ratification came in early 1870. Northern support for black voting was limited, and the amendment reflects the ambivalence. It does not create a positive right to vote. Instead, it bars discrimination because of race in voting. It was thus a tool on behalf of black voting in the South, but far from a guarantee. Finally, in 1875 the federal Congress enacted a civil rights act that barred racial discrimination in public accommodations like hotels and amusement parks, on public transportation, and in jury service. 7 Next week, we will turn to the Southern white reaction against Reconstruction. But first, I want to call your attention to the remarkable degree to which Reconstruction was a legal policy. Although Congress did create a Freedman’s Bureau to facilitate the reconstruction of the former confederacy in the Radical Republicans’ image, the Bureau was underfunded and understaffed, did not have anything like the sustained and wide-ranging powers that one might imagine such a project would require. It was always envisioned as temporary. It shut down in 1872. Also, Congress did not require large-scale reparations for slaves. It did not pursue land reform that would have made former slaves property holders. And it did not prosecute most former Confederates, impose civil disabilities on them, or permanently deny them the vote or access to political office. Instead, it enacted amendments and legislation that declared blacks to be formal equals of whites. Initially, African Americans seized onto the opportunities provided by these new laws. By the end of Reconstruction, 1,500 African Americans had held elected office. Our next two classes will be lessons in the limits of this approach. Perhaps law alone can sometimes wholly reconstruct the world. After the Civil War it did not. 8 Class 6 The last quarter of the 18th century and the first three or decades of the 19th century are sometimes referred to as the age of revolutions. The American Revolution of 1776 inaugurated an extended period of rebellion and regime change. Before that revolution had culminated in the ratification of the Bill of Rights, two other interrelated revolutions were under way. One in France and one in Haiti. Both occurred within the French Empire. One transformed that global power. The other culminated in independence from it. Together, the American, French, and Haitian revolutions transformed Atlantic understandings of empire, rights, governance, and constitutionalism. The American Revolution showed that colonists of European descent could found and maintain a republic more democratic than the empire from which they split. It transformed notions of the sovereignty of the people from theory to what is now the longest-running experiment in popular governance in the world. The French Revolution went further in some ways. Unfolding in the heart of Europe, it eventually overthrew a monarchy, moved to upend society, placed ambitious declarations of universal rights at the forefront of its movement, and aimed to spread its innovations. The Haitian Revolution was more dramatic still. The largest and only successful slave revolt that the Atlantic World has ever known, it involved men and women uprooted from diverse parts of Africa and condemned to bondage rising up across divisions of ethnicity, language, and culture to overthrow what had once appeared to be an almost invincible regime of oppression. In its place, they would found the black nation of Haiti, which remains the second-oldest independent nation in the Americas to this day. Slavery would never seem inevitable again. [Slide: Map of French Empire circa 1754] In tracing these events, we will mostly move back and forth between France, especially Paris, and Haiti. To provide some background, here is a map of the French empire from just before the French and Haitian revolutions began and just before the American Revolution culminated in ratification of a new Constitution. The key thing to notice is that France controls this portion of this island here, known at the time as Saint-Domingue. That portion of the island is today called Haiti. The remainder of the island is today the Dominican Republic. Saint Domingue was sometimes referred to as the Pearl the Antilles because of the enormous wealth produced there through the cultivation of sugar. Recall that slavery was central to the profitability to southern portions of the new United States. It was also producing profits for 1 England on the island of Jamaica, right there. But the model for wringing profits from slave-based agriculture was Saint-Domingue. [Slide: Drawing of a sugar plantation from DuBois’ book, Avengers of the New World] Slavery in Saint Domingue was as brutal as it was profitable. During the 18th century, nearly 800,000 slaves were placed onto ships headed for the island. Perhaps 100,000 of them died en route during the brutal middle passage. By 1790, nearly 50,000 slaves were arriving each year. In total, Saint Domingue accounted for about 10% of the total trans-Atlantic slave trade. Yet despite nearly 1MM slaves in total reaching Saint Domingue by the end of the 18th century, only half that number resided on the island as slavery gave way to uprising. The problem, one woman remarked, was that “They are always dying.’ In fact, half of new arrivals died within a few years. On some plantations, half of newborn slave children died before reaching adulthood. Death rates among slaves were nearly twice as high as birth rates. Planters calculated that it was more profitable to work slaves to death and buy new ones than to invest in adequate food, clothing, medical care, and working conditions. The society that formed around slavery was far from monolithic. The most powerful members were the landowners, for land meant agriculture, which meant profit. Slaves, and eventually everyone on the island, called these men the blanc blancs, or the white whites. Other white residents were known as the petit whites. Such men might act as overseers of slaves. Finally, there were free people of color, including some who had served in the American Revolution. By necessity of occupying an astoundingly vulnerable position, slaves became expert at finding ways to negotiate their situation. They developed and defended customary rights, most importantly that to a small garden plot of land. They gained permission to go to town occasionally, socialize, worship, keep profits from their garden plots, and buy and retain occasional possessions. Smaller numbers of slaves simply ran away, joining bands in the mountains who raided plantations. Owners and their agents understood the danger of slave autonomy and were careful to take steps to counteract it. Public whippings, at times supplemented with tortures like burning and rubbing salt into wounds were calculated to cow observers as much as offenders. 2 FRENCH REVOLUTION [Slide: Book cover of Peter McPhee’s The French Revolution, 1789-1799] As slaves in Saint Domingue suffered and maneuvered, a revolution began in France. The underlying causes of the revolution were complex and remain subjects of intense debate among historians. But the basic events can be briefly summarized. In April 1789, an Estates General that King Louis XVI had called began meeting in Versailles. Estates General were rare events where the three non-royal estates in France – the clergy, the nobles, and the Third Estate of the people – met at the same time. Property restrictions on the franchise and indirect voting by which the people chose delegates who then chose the deputies to the Estate resulted in relatively elite non-nobles filling the Third Estate. Members of the Third Estate soon discovered that they were largely united in opposition to absolutism and privilege, both of which were strong currents in monarchical and quasi-feudal France. As liberal members of the other estates began to join the meetings of the Third Estate, Louis ordered the deputies from all the estates to gather together in the assembly of the Third Estate. But this apparent victory masked a likelihood that Louis would simply dismiss the Assembly. That result was avoided by an uprising in Paris among the working people, most of whom had not been permitted to participate in choosing deputies to the Third Estate. This uprising included the storming and taking of the Bastille, the prison in Paris where political prisoners were held. As news of this unprecedented challenge to royal and noble authority spread, village militias throughout France turned on local nobles and sought to dismantle the feudal system. The revolt came to be known as the Great Fear. [Slide: Historical Image of French Assembly circa 1789] This popular uprising reinvigorated the Assembly, which abolished serfdom, feudalism, and unpaid labor, and planned to render taxation more equitable. Then, on August 27, 1889, the Assembly enacted the Declaration of the Rights of Man and Citizen. Its language suggested that all human beings possessed a broad set of inalienable rights. You’ll recall that the Declaration of Independence, Constitution, and Bill of Rights in the United States also employed soaring, universal declarations of the self-evident rights of man. There, those claims had coexisted with slavery. Although all recognized the contradiction, the U.S. Constitution permitted and even strengthened the institution of slavery. In the early days of the French Revolution, it remained highly uncertain what policy France would take toward slavery in its imperial possessions. More broadly, it was unclear whether the universal 3 rights and civic equality that the Declaration promised in universal terms would extend to women or the property-less. Yet the Declaration promised to reshape French society, and it was to that the Assembly turned. By mid-1791, Louis had become disgusted with the resolution, which had altered church structure and limited his own power. On June 21, he repudiated the direction that the Revolution had taken and fled Paris. Six days later, he was captured and returned to Paris, a humiliating reversal. With little alternative, on September 14 Louis promulgated a new Constitution. France was a constitutional monarchy in which the king shared power with a legislature elected via a restrictive property franchise. By 1791, Le Cap was the largest port in Saint-Domingue. Slavery had made Saint Domingue a place worth docking. Le Cap’s population rivaled Boston. The ships who passed through its harbor brought goods and news. [Slide: Map of the Town of Le Cap, 1789] As France turned toward revolution, planters became fearful of the impact on their society. They sought to control the flow of information into the colony, clearly aware of how easily information could travel among plantations and slaves once unleashed. They also maneuvered in Paris to defeat attempts by representatives of free people of color in Saint-Domingue to gain equal rights. After gaining control of a key committee, they won passage of a March 1790 decree reaffirming the status quo. Far from a step toward emancipation, the early French Revolution had refused even to abolish racial distinctions among the free. To those who might have their eyes set on ending slavery, the decree declared that “all those who worked to incite uprisings against the planter will be declared guilty of crimes against the nation.” In response, a key political leader among Saint Domingue’s free people of color raised an armed force and demanded equal rights. He self-consciously compared himself to those of the Third Estate in France and the planters to the nobles and clergy whose views had been all but ignored during the revolution. The powers that be put down the revolt and tortured and executed its leader, heightening tensions between free whites and free people of color in Saint Domingue. Back in Paris, the brutal treatment alienated some from the planters’ cause but fell far short of ending support for slavery in Paris. [Slide: Bay of Le Cap] Although it is hard to reconstruct the origins of the Haitian Revolution, it appears that nighttime meetings among slaves were underway by August 4 1791. At the final meeting, it seems that one slave repeated a rumor that the king had guaranteed slaves three free days each week, but that the planters had denied it to the slaves. If so, it would not be the first time that the king had decreed better treatment for slaves that the planters failed to implement. The rumor was not true, but the slaves were not wrong that they might be able to conjure up an alliance between the metropole and royalty with which to contest the power of the planters in Saint Domingue. It is worth noting that embrace of the king was not a rejection of the French Revolution. At this stage, France was a constitutional monarchy. Some sense that the insurgents attempted to reconcile these two authorities could be seen in one insurgent leader’s flag that decorated the tricolor flag of the revolution with the fleur-de-lis of the crown. Royal symbols also had two additional advantages. For many slaves, the most immediate resonance of kings were not European monarchies, but the religious and political leaders they had known in Africa and the slave leaders who had arisen in Saint Domingue and taken on the moniker of king. Also, the other half of the island, Santo Domingo, was under the control of the Spanish crown, so positioning themselves as...