“In order to get beyond racism, we must first take account of race. There is no other way.”
—Justice Harry Blackmun, University of Calif.
Regents v. Bakke (1978)
In cases decided every day across America, the theory of color blindness said to govern the judicial process is a reflection of the flawed notion that the mere mention of race is somehow racist. Consequently, the law serves up yet another legal fiction, which obscures the complexity of real life, in furtherance of a false and fatal simplicity.
There can be no sustained study of American law without coming face to face with the racism that drenches judicial thought, in a clear, unapologetic tone that leaves no question as to the objectives of the court.
It is obvious that the objection on the part of Congress is not due to color, as color, but only to color as an evidence of a type of inferior civilization that it characterizes. Yellow and bronze, as racial colors, are the hallmarks of Asian despotisms. It was deemed that the subjects of these despotisms—with their fixed and ingrained pride for their particular culture, which accepts the subordination of the individual and community to the supreme personal authority of the sovereign, as the embodiment of the state—were not well suited to further the success of a republican form of government. Hence they were denied citizenship.
The anti-Asian bias that oozes out of the 1921 decision Terrace v. Thompson (U.S. District Court, Washington), for example, which is clothed in a kind of quasi-sociological justification, actually justified laws in Western regions that outlawed the sale of land or property to Japanese people, on the basis of ineligibility of citizenship. Until the 1950s, the Chinese and other Asians were denied naturalization.
Despite our pretensions of being “color blind,” scholars assure us that, over a century after the Chinese Exclusion Act of 1884 became law, the court case that upheld the Act remains good law to this day.
The U.S. Supreme Court majority in Chai Chan Ping v. U.S. (1889), found “the presence of foreigners of a different race in this country, who will not assimilate with us” to be properly excludable. For over a century, such decisions that made whiteness the sole prerequisite for U.S. citizenship, and explicitly excluded people it deemed “nonwhite,” had, at their very core, not “color blindness,” but color consciousness distorted by a profound sense of white supremacy.
It is fitting here to note that in 1935, the two countries that had racial restrictions on naturalization in common were Hitler’s Germany and the United States of Americas. Color blindness?
For the better part of two centuries race has been at the very heart of law in the United States. It remains so despite the latest fashion of the legal fiction of “color blindness.” How people are treated in court, how they are charged, and how they are sentenced are direct reflections of what race and ethnicity they are and how such traits are regarded by white America.
Several years ago, a prominent American law professor asked his students to imagine they would wake up the next day as Black folks. The white students reasoned that such a “disability” required monetary damages of a million dollars a year for life.
Why damages, unless color does matter? Unless whiteness is a valued property which, when lost, demands a premium payment? And Black is devalued?
Americans are blind to everything but color.
A HISTORY OF BETRAYAL
October 29, 1998
United States history is a study in denial, for much of what is taught as history in the schools of the nations bears little relationship to the lives lived by millions of men, women, and children on the land we now call America.
Most schools teach that which is safe, and mostly false; so much so that shock and disbelief are usually the result of telling a history that reveals that many of the men called “Founding Fathers” were enslavers, visceral racists, and, in a word, creeps.
Dedicated to the erection of a “white man’s republic” (as supported in the 1857 Supreme Court opinion by Chief Justice Roger B. Taney in Dred Scott v. Sandford), many of the nation’s leaders, congressmen, and presidents were virulent racists who made every effort to deny any semblance of justice to Black freedmen in the hellish aftermath of the Civil War. How many Americans know that more than 37,000 Black men died while serving in the Union Army? The people who fought to preserve the union, who fought against secessionists and enslavers, returned to a South where virtually every promise made to them was shattered and broken, often by the very government they had fought to defend. While the war was raging, General Sherman assigned thousands of acres to freedmen, on the land that was vacated by white enslavers or confiscated. These lands, on which more than 40,000 freedmen and their families tussled with the earth to create a life, were summarily snatched away from them by the U.S. government. In October 1865, General Howard traveled to “Sherman land” to revoke titles to lands confiscated during the war, in order to return them to their previous white owners.
General Howard’s instructions to the so-called freedmen? “Put aside your bitter feelings,” and “become reconciled” to your old enslavers. The people who had suffered indignity and bondage for centuries, who worked to enrich the national economy, told the U.S General: “No, never,” and “can’t do it.”
Howard Merrimon, formerly enslaved in Mississippi, described the condition of emancipated Black folk during the period of the Great Betrayal, 1865–1866:
No land, no house, not so much as place to lay our head. . . . Despised by the world, hated by the country that gives us birth, denied of all our writs as a people, we were friends on the march. . . . brothers on the battlefield, but in the peaceful pursuits of life it seems that we are strangers.9
Abolitionist Wendell Phillips aptly noted that without the vote, Blacks would be doomed to a “century of serfdom.”10 He wasn’t far wrong.
Blacks fought and died for the Union, and after the war they were forsaken, treated as if they were the enemy of the very nation that they had fought and bled for. Here, in the aftermath of carnage, white supremacy was the law, and Blackness was a crime. That was the reality that leads to today, the history that created the days and nights of this very hour.
When the United States was formed, it was constituted by an act of compromise that left half of the nation slave, and the other half of the nation “free.” A hundred years later, and even after the raging horrors of war had ripped the nation apart, a new compromise was reached between the North and South. In the words of one supporter of President Andrew Johnson, that compromise was based on this central tenet: “Keeping the Nigger down.”11
For a century after “Emancipation,” Black folks, in the main, were denied every substantive right of the U.S. citizen: voting, holding office, jury service, freedom of travel, freedom of assembly, freedom to collective bargaining, etc.
Far from free or equal, Blacks found themselves condemned to a new life where the state took the place of the slave master, and did everything in its power to control Black labor in the interests of the landowner’s class.
For most of American history, so-called “law” was merely white whim. Black life, considered cheap in slavery, became “free” and worthless in “freedom.” As historian Eric Foner notes:
Sheriffs, justices of the peace, and other local officials proved extremely reluctant to prosecute whites accused of crimes against blacks. To do so, said a Georgia sheriff, would be “unpopular” and dangerous while an Arkansas counterpart told a [Freedman’s] Bureau Agent that to take action against a planter who had defrauded freedmen “would defeat him in the coming fall election.”12
That was the reality that leads to today. The roots of a repression that still block sunlight, and makes Black life so hellish still.
LEGALIZED