Copyright © 1999 by Paul F. deLespinasse, Adrian College
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Footnotes are at the end of the chapter.
"The language of the Declaration of Independence is
equally conclusive. .. `We hold these truths to be
self-evident: that all men are created equal; that they
are endowed by their Creator with certain inalienable
rights; that among them is life, liberty, and pursuit of
happiness; that to secure these rights, governments are
instituted, deriving their just powers from the consent of
the governed.'
"The general words above quoted would seem to embrace
the whole human family, and if they were used in a similar
instrument at this day, would be so understood. But it is
too clear for dispute, that the enslaved African race were
not intended to be included, and formed not part of the
people who framed and adopted this Declaration; for if the
language, as understood in that day, would embrace them,
the conduct of the distinguished men who framed the
Declaration of Independence would have been utterly and
Flagrantly inconsistent with the principles they asserted. ..
"Yet the men who framed this Declaration were great men-
high in literary acquirements-high in their sense of honor, and
incapable of asserting principles inconsistent with those on which
they were acting. They perfectly understood the meaning of the
language they used, and how it would be understood by others;
and they knew that it would not, in any part of the civilized world,
be supposed to embrace the negro race." (Chief Justice Roger Taney,
Dred Scott v. Sandford ,1857)
Reformers must always work in bad circumstances. No society where circumstances are ideal would need reformers.
U.S. race relations before the mid-twentieth century were certainly not ideal, and there were few reasons to expect improvements. Treatment of black people was bad, attitudes towards black people were uniformly negative, and the oppression of black people by political institutions contradicted everything that was and is known about good government.
Later chapters will argue that antidiscrimination laws were a perverse solution to America's racial problems, that they are not genuine laws at all, and that they ought to be repealed or possibly struck down as unconstitutional. But we can understand how these laws came into existence if we consider the historical legacy of race in the U.S. The antidiscrimination laws were not an overreaction to the situation. Indeed, if the antidiscrimination laws were only a matter of overreacting to the racial problems which led to their enactment, there would be much to be said in their favor. At the time the main antidiscrimination laws were passed, the racial situation was so bad that anything less than overreaction might have seemed pathetically inadequate.
The depressing story of the importation and exploitation of slaves during the colonial and formative years of the United States is well known. By 1787 slaves had become such important parts of the economy in southern states that the constitutional convention, meeting in Philadelphia, found itself unable to do anything about them despite the profound hostility to slavery of many of the founding fathers.
Towards the end of the 20th century, Thurgood Marshall, the first black person to sit on the U.S. Supreme Court, maintained that the convention members did not deserve the commendations that were being heaped upon them during celebration of the 200th anniversary of the Convention. The Convention had failed to outlaw slavery. It had even tilted in favor of slavery by delaying the power of Congress to forbid importation of new slaves and by requiring non-slave states to return runaway slaves to their owners.
Defenders of the founding fathers noted that if the proposed new Constitution had outlawed slavery, it could never have been ratified by the number of states needed for it to go into effect. And without the "more perfect union" established by the new Constitution, prospects for abolishing slavery in the southern states would have been even less promising than they were under the Constitution. In any event, slavery had already gotten such a grip on parts of the country that leaders had to make compromises with it if they were going to get anything done. Already, in 1787, circumstances were very bad.
The new Constitution did not put an end to the slavery issue. It simply changed the political environment in which the issue would be confronted. Initially, the slave states had the political clout needed to prevent legislation or constitutional amendments reducing, regulating, or abolishing slavery. Their representation in the House and Senate was adequate to prevent antislavery amendments to the Constitution from being proposed, since such proposals require a two-thirds majority in each house. If any such amendment had slipped through Congress, the slave states were also in a position to prevent the amendment from being ratified. Ratification, after all, required consent of 3/4 of the states.
But what if new states were added to the union so as to upset the political balance in Washington, D.C.? For a while, admission of new states was held up by fears all around that the balance would thereby be tipped. Then Congress broke the roadjam, agreeing to the "Missouri Compromise" which purported to balance the admission of slave and non-slave states so as to guarantee that neither the slave states nor the non- slave states would be put at the mercy of the other.
Tensions, however, continued to accumulate around the slavery issue. In 1856 the U.S. Supreme Court threw the country into an uproar with its ruling, in Dred Scott v. Sandford, that the Missouri Compromise was unconstitutional. (Footnote 1) The Court also ruled that even a free black person could not be a citizen and that Congress had no power to naturalize such a person. The Dred Scott decision greatly upset the antislavery people, and it also destroyed any interest the slaveowners might otherwise have had in making compromises with their opponents.
Things soon boiled over. The Civil War broke out. Hundreds of thousands of men died, still more were injured, and huge amounts of money were spent by the federal government. From President Lincoln's perspective, the North's military objective was not to abolish slavery but rather to hold the union together. However as a military measure Lincoln proclaimed emancipation of all the slaves in the south, and the remaining slaves were freed by the Thirteenth amendment, added to the Constitution at the end of the war in 1865. (Footnote 2)
Was war the only way slavery could have been ended in the U.S? It would theoretically have been possible for the U.S. government to abolish slavery by using its eminent domain power. Eminent domain is the power to take private property for a public purpose. Under the Fifth amendment, such private property can only be taken if just compensation (fair market value) is paid to the owners of the private property which has been taken.
So why didn't Congress just decide to free all the slaves and compensate their owners as required by the Takings Clause? As Henry George noted, England had used this approach to end slavery in the British West Indies. (Footnote 3) Certainly one obstacle to doing this would have been the expense to the government of buying up all the slaves. At the beginning of the Civil War there were four million slaves and their average market value was about $1,600. The total cost of seizing them and compensating their owners would therefore have been about 6.4 billion dollars. In those days, that would have been a very large amount of money.
To put this figure in perspective, however, we must note that the estimated cost of the Civil War in dollars alone, and to the North alone, was $6.5 billion. Thus the actual cost of liberating the slaves through war was $1625 each, which was slightly more than it would have cost to do the job peacefully via eminent domain. Even if we placed no value on the 364,000 people killed in the war, the war was not a cheap way to free the slaves.
Unfortunately, the advantages of ending slavery peacefully are more apparent now than they would have been at the time. Few people expected a Civil War. Nobody expected the war would be so long, so bloody, and so expensive. Before the fact, most people would have compared the calculated costs of emancipation via eminent domain, not with the costs of the upcoming Civil War, but with the costs of doing nothing. Eminent domain would therefore have seemed intolerably expensive and even an inspired leader would probably have found it impossible to sell it to the people.
After the Civil War there was a brief period when extensive improvement in the situation of black people seemed possible. The Thirteenth Amendment abolished slavery, wiping out the residual stench still lingering from the Supreme Court's Dred Scott decision. The Fourteenth Amendment made the freed slaves U.S. citizens, required that they be given the "equal protection of the laws" and provided that they, like everyone else, not be deprived of life, liberty, or property without due process of law. The Fifteenth Amendment prohibited denying the right to vote on grounds of race "or previous condition of servitude." Radical Republicans in Congress enacted various civil rights laws to protect the black people from discrimination by state governments.
At the same time, there was considerable resistance and efforts to sabotage the "Reconstruction" of the country that the radical Republicans were attempting. Reconstruction came to an end as a result of a compromise settling the outcome of the closely contested presidential election of 1876. Victor Rutherford B. Hayes only won a minority of the popular votes but was awarded some disputed Electoral College votes in return for agreeing to put an end to Reconstruction.
The decade of racial progress that ended in 1876 was followed by a protracted era of reaction. Jim Crow "laws" requiring segregation and prohibiting racial mixing were enacted one after another. Separate entrances to buildings, separate drinking fountains, separate seating sections in courtrooms, even separate Bibles for swearing-in courtoom witnesses, were required. What could not be achieved by means of "law," which was actually quite a lot, was supplemented by pure private terror and intimidation undertaken by groups such as the Ku Klux Klan. With an eye on the election returns, even the courts began to back off from the effort to accord black people equality under the law.
Finally in 1896 the courts went over the brink. Plessy v. Ferguson involved a challenge to a state-mandated separation of the races on privately-operated railroad cars. The Plessy Court ruled that it was perfectly constitutional for a state to require separate facilities for different races as long as the facilities provided were equal. In so holding, the Supreme Court brushed off claims that such rules violated the equal protection clause of the Fourteenth Amendment. A valient dissent by Justice John Marshall Harlan [the Elder] proclaimed that:
There is no caste here. Our constitution is color- blind,
and neither knows nor tolerates classes among citizens.
In respect of civil rights, all citizens are equal before
the law. . . . . It is therefore to be regretted that
this high tribunal, the final expositor of the
fundamental law of the land, has reached the conclusion
that it is competent for a state to regulate the
enjoyment by citizens of their civil rights solely upon
the basis of race. . . . . In my opinion, the
judgment this day rendered will, in time, prove to be
quite as pernicious as the decision made by this
tribunal in the Dred Scott Case. . . . (Footnote 4)
Although the Plessy decision, unlike Dred Scott, was not followed by a war, Harlan's dissent turned out to be right on the mark. The scene was now set for half a century of race relations stagnation.
A little progress was achieved in some dimensions during this period. For example, the Supreme Court struck down several systems in which only white people were allowed to vote in Democratic Party primary elections. These "white primaries" were in southern states where Republicans were very unpopular due to their reform efforts during the Reconstruction period. The Democratic nominee therefore invariably won the general election. Those black voters who were able to get registered in spite of discriminatory procedures and who dared to cast a ballot in spite of KKK terrorism therefore had little clout if they could vote only in general elections which rubber-stamped the real choices made in the Democratic Party primary elections.
But these occasional victories were cancelled out by setbacks in other directions. For example, during Woodrow Wilson's administration from 1913 to 1921 racial segregation became required in federal office buildings in Washington, D.C.
During this same period of stagnation, non-governmental intimidation and violence against black people intensified. Mob rule and lynchings of black people suspected of crimes against whites, not unknown in previous eras, now became all too common. Government's treatment of black people during this period was thus both a reflection of private prejudice and a reinforcement of it. Since government was fairly democratic for white people, it tended to act in ways indicated by the attitudes and values prevailing among these people. Unfortunately, these attitudes and values were not favorable to black people.
But government also forced white people who did not agree with the prevailing prejudices, or whose economic interests might have motivated them to rise above any prejudices they did share, to refuse to associate with black people. This is a point which is critically important. If private prejudice had been sufficient to keep black people "in their place" and prevent voluntary associations (trade, employment, etc) between white people and black people, there would have been no need for the white bigots to bring government into the picture at all. As we will see in chapter 6, in a market economy racial prejudice often comes into conflict with economic self-interest. Business as well as politics can make "strange bedfellows"! Consider, for example, professional athletics, where even a bigoted team owner will now gladly employ black players if it will put her team in a stronger position.
Extreme situations often provide excellent opportunities to learn things that might be harder to understand in normal times. World Wars I and II and the Cold War were, among other things, opportunities to learn important things about government, human nature, and the role of law and order (or the lack thereof) in life. The Depression of the 1930's paved the way for great advances in our understanding of how economies work. Likewise, American experience with racism prior to the mid-1950's is a gold mine for serious political and social analysis.
Treatment of black people in America during this period contradicted everything that we know about good government. It contradicted a concensus that lurks just below the surface in the apparently diverse works of mainstream western political philosophers. It is a wonderful case study of how not to govern!
Before considering what is good or bad about particular governments, we need to have some concept of the basic nature of government. Unfortunately, we are not likely to gain any deep understanding of government's basic nature from daily political discourse, from news coverage, or from the "civics" courses to which we routinely subject secondary school students. Government is a uniquely unpleasant subject if we look it squarely in the face. But if we are too squeamish to face the facts about government, we will never understand it well enough to deal with it realistically in our day to day lives.
Those who would appreciate laws and sausages ought not to watch them being made! So says a popular saying, commonly attributed to Otto von Bismarck, who engineered the unification of Germany back in the nineteenth century. Few who know the details of legislation or sausage-making would disagree. But the same generalization also applies to government itself: the process by which it is "made" is not a fit topic for discussion at dinner in polite society.
Robert Nozick sarcastically speaks of "normative sociology": "the study of what the causes of problems ought to be."
If X is bad, and Y which also is bad can be tied toBy analogy, I suppose that there can be a "normative political science": the study of what the causes of government ought to be. Since we regard government as good, we seem to want the way in which government comes into existence also to be good. In the history of political philosophy, a prominent example of normative political science has been "social contract" theory.
X via a plausible story, it is very hard to resist
the conclusion that one causes the other. We want
one bad thing to be caused by another. (Footnote 5)
Philosophers who have employed "social contract" rhetoric include Thomas Hobbes, John Locke, Jean Jacques Rousseau and John Rawls. They all maintain that government was created by a social contract unanimously agreed to by all of the people in a country, that it ought to have originated from such a contract, that it is as if it had originated from a contract, or at least that it ought to be as if it had originated from a contract!
Social contract theory begins, reasonably enough, with the idea of a "state of nature," an anarchy, a situation where there is no government. The theory then tries to explain how a government could have or should have come into existence under such conditions. But social contract theory will not withstand critical scrutiny. It assumes that government is created by human actions which are intended to bring it about, which is not even plausible. Remember that these actions are supposed to take place in a situation where there is no government and never has been one. The people who supposedly intend to create a government cannot have any idea of what a government would be like, since they have never seen one, lived under one, or even read about one.
If you do not know what you are trying to get, there is no conceivable way you could intend to get it! It is no wonder that there is no historical evidence that government actually originated as a result of any such contract , since it could not possibly have come into existence this way.
The idea that government actually was created by unanimous agreement of the people to be governed is admittedly only the most extreme form of social contract theory. But the more moderate versions of social contract theory are also unconvincing. It makes no sense to argue that government should have originated from a social contract if such an origin is impossible. So all that is left is the claim that government is as if it had been created by such a contract, or that it ought to be as if. The latter claim is actually premised on the observation that actual governments do not look as if they had been created by a social contract, a point with which I can only heartily agree.
Meanwhile, one useful element of social contract theory remains: the concept of a state of nature, a society in which there is no government and (in the pure case) never has been. It is obvious that such a state of nature must have existed at some time in the past. It is equally obvious that governments now exist. How can we explain the transition, given that explanations in which government was created deliberately by human actions will not do, since nobody could conceive of such a thing without having experienced it or something rather close to it?
A basic feature of the state of nature is an opportunity it presents us to live well without having to work. Taking advantage of this opportunity requires moving only slightly beyond the state of nature, so it is not impossible for us to visualize it before somebody has actually done it. The obstacles to the intentional creation of a government therefore do not apply here.
Of course to live well without working means to consume goods and services without producing them ourself, and also without producing some other goods or services that can be used to induce other people to trade with us. We might try begging-- convincing other people to share the fruits of their labor with us without expecting any reciprocity on our part. But, as Adam Smith pointed out in The Wealth of Nations, begging is not a reliable way to obtain goods and services. If begging won't do, and we want to avoid working, our only alternative is to steal what we want or to threaten other people with dire consequences if they do not hand over what we want. Stealing itself looks too much like work, so our clear preference will be to start a protection racket.
To make the protection racket work, we need to set up a small organization of like- minded people. Collectively, then, we can beat up or kill any unorganized individual who fails to recognize that we have made him an offer he can't refuse. In effect, we will tell people: do what we tell you or we will kill you!
Offering people something they want, in return for their transferring something we want to us, would require us to work to produce something the other people would want. But our protection racket instead offers to refrain from doing something that the other people do not want if they will give us what we do want. Since we are organized and they are not, our victims have only three choices: First, they can resist and we will kill them. Second, they can knuckle under and pay us to leave them alone. Third, they too can get organized so as to have the strength necessary to resist our demands without getting killed. But now that we have brought the possibility of living well without working to their attention, their organization may be unable to resist the temptation to rip-off the unorganized people in their vicinity.
Protection rackets, then, can spring up spontaneously in the state of nature. We do not have to assume anything that is outside the limits of human nature and human psychology to imagine this happening. Of course a protection racket is not a government. It smacks more of organized crime than it does of government. But it does have some interesting similarities to government. And it can be the first link in a long chain of developments whose ultimate result is government as we know it, even though government as we know it was not the goal of most of the people whose actions produced the links in the chain. (Footnote 6) We may consider the original protection rackets to be, not governments, but proto-governments.
Standard definitions of government note that it distinctively claims a monopoly of the right to impose sanctions--deprivations of life, liberty, and property-- on people. Protection rackets also threaten people with sanctions if they do not do what they are told to do. Mao Tse-tung noted that "All political power grows out of the barrel of a gun." Taking "gun" metaphorically rather than literally (real guns are a recent development), the power of the original protection rackets also grew out of the power of the gun. George Washington said that "Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master." (Footnote 7) The power wielded by the racketeers also is fearsome.
Once we postulate the development of protection rackets in the state of nature, we are in a position to understand how modern government developed even though nobody intended to bring about any such result. We need merely imagine that people, both inside and outside of the protection racket organizations, act on the basis of self-interest perceived with a modest degree of insight. It is in the interest of the racketeers to exploit and oppress the people whose work supports them in their leisure. But it is not in their interest to exploit them so harshly as to kill off the "geese" that are laying golden eggs for them. Enlightened racketeers will be quite willing to kill people occasionally in order to keep other people suitably intimidated. But the racketeers have no interest in killing people just for the sheer joy of it, and they do have a certain interest in the welfare of their victims just as the shepherd has an interest in the lives and health of his sheep.
On the other hand, the victims of a protection racket have an interest in encouraging their oppressors to moderate their demands. Temperamental racketeers who are prone to shout "Off with his head!" upon any provocation will be shunned if people have any choice at all as to which protection racket they will "subscribe" to, as it were. Far to be preferred are racketeers who are content to lay down some simple rules about how much tribute everyone must supply them and then clobber only people who do not comply with the rules. It is not hard to imagine that protection rackets might even compete with each other, some offering less oppressive terms than others in order to attract clients who regard their oppression as preferable.
Legitimate government, protection rather than a protection racket, can be seen as the unintended final result of a series of deliberate human actions each of which was taken with other goals in mind. It can be traced back to the protection rackets which spring up like "asparagus in May" ( Footnote 8) in the Garden of Eden that is sometimes called the state of nature. It is the result of prolonged, intelligent resistance by the victims of the racketeers which results in lesser degrees of oppression and greater limits on the freedom of the racketeers to abuse people arbitrarily. Nobody set out to create modern governments intentionally, but to borrow an expression from Adam Smith it is as if an "invisible hand" led everyone concerned to act in ways that produced government as their ultimate result.
A distinction between genuine laws and pseudolaws can help us visualize how mankind raised itself up from protogovernments to more or less legitimate modern governments. A genuine law is a general rule of action enforceable by sanctions. A rule is general only if it applies to everybody under the jurisdiction of a government without any exceptions. A pseudolaw is like a law in that it is enforced with sanctions. But it differs from a real law in that it is not a rule of action, it is not a general rule, or it is not a rule at all. In the civil rights context, an obvious example of a pseudolaw would be the infamous old rule that black people had to ride in the back of the bus.
In the beginning, all was pseudolaws! The protection racket was based on the principle that people had better do what the racketeers told them to or else. It is doubtful if there were any rules at all, and if there were any rules they certainly were not general rules of action. Protogovernments thus can be described as organizations that employed 100 percent pseudolaws and 0 percent laws.
It was obviously in the interest of the people victimized by the racketeers to resist and attempt to minimize their injuries. Clearly, they would be better off if the racketeers could be persuaded to lay down some groundrules and refrain from injuring anybody who complied with the rules. The alternative, after all, was a situation where the racketeers would do whatever they felt like doing on a completely ad hoc basis with no rhyme nor reason to it. By threatening to rebel, forcing their oppressors to use up scarce enforcement resources, or to run away and seek to live under the control of some less oppressive racketeer organization, people could sometimes get concessions from their protogovernment. A process of gradual movement away from complete reliance on pseudolaws thus began.
In all likelihood, the first rules themselves were pseudolaws. Nothing prevented the gangsters from announcing one set of rules for the people around them, and a different set of rules for themselves. But the existence of even these imperfect, non- general rules still limited the racketeers' ability to inflict sanctions on people. People could protect themselves by complying with the rules that applied to them. They were therefore a step in the right direction.
At some point somebody must have noticed that the ability to keep two sets of law books gave the ruling racketeers an awful lot of wiggle room. They would gladly impose rules on the people that they themselves would never want to have to comply with. Soon, people who were intelligently resisting the gangsters began to insist that there should only be one set of rules which would apply to everybody. This was an excellent strategy, because protection racket members would never impose harsh rules on themselves no matter how willing they were to do so to other people. The principle that rules punishable by sanctions should be general rules thus began to be recognized. And to the extent the reforms succeeded, genuine laws gradually began to replace pseudolaws.
The history of government is thus the history of the gradual emergence of legitimate government from organized crime. The road along which we have traveled has led us from pseudolaws towards a society which relies entirely on genuine laws. I will refer to this movement from pseudolaw to law as "the main road to political progress." In the world's more fortunate countries, we have now traveled far enough along this road that we can begin to guess what a society without any pseudolaws might look like. In this context an old expression, "the rule of law," takes on a new meaningfulness. The present book is based on the assumption that mankind ought to complete its journey along the main road to political progress and create a society without any pseudolaws, a society literally characterized by the rule of law.
Let us now return to my previous assertion that treatment of black people in the period before the mid-twentieth century flew in the face of everything we know about good government. Good government, based on the rule of law, can only impose sanctions on people who have violated general rules of action. Remember that "sanctions" includes all deprivations of life, liberty, or property. During the period of slavery, the black people were deprived of liberty, not on the basis of actions violating laws, but because they had been physically attacked and brought to America as slaves or because they had been born into that status.
Once slavery was abolished, black people continued to be treated in ways that contracted the basic principles of good government. Jim Crow "laws" were, of course, pseudolaws rather than real laws. Mandatory segregation of the races in schools, transportation, businesses, places of entertainment, even government buildings did not treat the black people on the basis of general rules of action. Members of the white population who supported the harsh rules imposed only on black people would never have supported the same rules if they had been applied across the board.
The oldest two-dimensional classification in political science comes down to us from Aristotle. In one dimension it classifies governments in terms of how many people govern: one person, a few people, or the many. In the other dimension, it distinguishes between governments in which those who rule (be they one, a few, or many people) govern solely in their own interests and those in which rule benefits the general interest. Governments which seek merely the welfare of those who govern are, per Aristotle, bad; those which seek the general welfare are good. There are thus three bad forms of government: Tyranny, bad government by one man; oligarchy, bad government by the few; and (amazingly to the modern ear) democracy, bad government by the many. Aristotle apparently smelled an odor of mob rule when he said "democracy." The corresponding good forms are monarchy, aristocracy, and "polity."
Aristotle's use of "democracy" to describe a bad form of government, though it contradicts modern usage, contains a useful idea when we are thinking about the historical plight of black people in the United States. During the century after the Civil War when oppression of the black people by governments was rampant, the country was reasonably democratic. Government certainly was sensitive to the feelings of the bulk of the population, which was white. But the policies pursued by U.S. governments during this period on the whole did not promote the general interest, for it rarely took the interests of the black part of the population into account. In spite of the Fifteenth Amendment, black voting was rare, especially in the South. But this lack of black voting by itself could not have produced the racial oppression that was so obvious during this entire period. If government had confined itself to enacting and enforcing genuine laws, general rules of action applicable to everybody, the fact that black people were not voting would not have been so important since oppressive general rules would not have been supported by the white people. It appears, then, that democracy is not by itself sufficient to guarantee good government. This conclusion is fully compatible with Aristotle's argument.
A more recent political philosopher, Reinhold Niebuhr, once maintained that "social cohesion is impossible without coercion, and coercion is impossible without the creation of social injustice ...." (Footnote 9) Niebuhr therefore thinks we should try to minimize the amount of coercion. We need not disagree with the first part of his assertion. But it is not the quantity of coercion that is the problem; it is the circumstances and forms in which it can be used. Coercion--"sanctions"--need not create social injustice if it can only be employed to enforce general rules of action. When pseudolaws are found, however, there will be plenty of injustice.
Without doubt, U.S. race relations before the middle of the twentieth century were an unholy mess. And would-be reformers found themselves in political circumstances which themselves were a part of the general mess.
Political power, for example, was entirely in the hands of the white portion of the population. The black people who would be the biggest beneficiaries of reform had--de facto--almost no political clout. Their predicament was aptly described by Supreme Court Justice Harlan F. Stone in his famous "footnote four" in U.S. v. Carolene Products Co. (Footnote 10) ; they were "a discrete and insular minority" in circumstances which "curtail the operation of those political processes ordinarily thought to be relied upon to protect minorities . . . ."
Even those white people who wanted to do something about the mess had to contend with a general public opinion regarding reforms which ranged from mild support, to disinterest (a large number of people), to violent hostility. And these were the feelings of the voters to whom white politicians had to appeal in order to win election or re- election.
One advantage enjoyed by the reformers was the conflict between the way things were and the general principles in which most Americans professed to believe: "equality before the law," "equal opportunity," "democracy." The reformers were able to appeal to people's sense of shame and desire not to be seen as hypocritical; they could point out that on matters of race the population of the United States was not practicing what it preached. This technique turned out to be especially useful in appealing to the courts.
Courts, after all, pride themselves in principled adjudication and consistency in their decisions. And best of all, U.S. federal courts are well insulated from voter retaliation when they make unpopular rulings. Federal judges serve for "good behavior," which is tantamount to life. They cannot be thrown out by the voters. Although impeachment of federal judges is technically possible, it has rarely been successful. No Supreme Court justice has ever been removed by this process. The courts thus were institutions to which civil rights advocates could turn with some hope even when they were suffering from so many political disadvantages.
Justice (later, Chief Justice) Stone may have been inviting reformers to bring appropriate cases to the courts when he wrote "footnote four," which appeared in a case which had nothing whatever to do with race. The Carolene Products decision found the Court backing away from finding unconstitutionality in legislation which regulated the economy. But Stone hinted broadly that the Court might see things differently when it came to "statutes directed at particular religious ...or national ... or racial minorities . . . ." His point did not escape notice in civil rights circles.
As we will see, the civil rights movement understandably did look to the courts for relief. And the movement played its cards remarkably well in the courtroom, scoring many notable victories. However by having recourse to the courts, the movement was playing with constitutional fire. Ultimately, reform via litigation produced some very serious side effects.
Racist policies in American government contradicted both democracy and the rule of law. Paradoxically, both democracy and the rule of law would also be threatened by some of the judicial methods that were developed in the struggle against racism.
_________________________________
1 19 Howard (60 U.S.) 393 (1857)
2 Thirteenth Amendment: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly 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. [December 18, 1865]
3 Henry George, Progress and Poverty .New York: Robert Schalkenbach Foundation, 1955, p. 359.
44 163 U.S. 537 (1896)
5 Robert Nozick, Anarchy, State and Utopia. New York: Basic Books, 1977, p. 247.
6 For a classic exposition of this idea see Charles Tilly, "War Making and State Making as Organized Crime." In P.B. Evans, D. Rueschemeyer, T. Skocpol (Eds.), Bringing the State Back in.Cambridge: Cambridge U. Press, 1985, pp. 169-191.
7 Respectfully Quoted: A Dictionary of Quotations Requested From The Congressional Research Service. Washington, D.C.: Government Printing Office, 1989, p. 147.
8 Deems Taylor (Ed.), A Treasury of Gilbert and Sullivan. New York: Simon and Schuster, 1941, p. 396.
9 Reinhold Niebuhr, Moral Man and Immoral Society. New York: Scribners, 1932, p. 231.
10 304 U.S. 144 (1938).