Law, Lawyers and Race

Critical Race Theory from the US to Europe

Mathias Möschel

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317811510
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Critical Race Theory (CRT) is virtually unheard of in European scholarship, especially among legal scholars. Law, Lawyers and Race: Critical Race Theory from the United States to Europe endeavours to fill this gap by providing an overview of the definition and consequences of CRT developed in American scholarship and describing its transplantation and application in the continental European context.

The CRT approach adopted in this book illustrates the reasons why the relationship between race and law in European civil law jurisdictions is far from anodyne. Law plays a critical role in the construction, subordination and discrimination against racial minorities in Europe, making it comparable, albeit in slightly different ways, to the American experience of racial discrimination. Anti-Semitism, Islamophobia, anti-Roma and anti-Black racism constitute a fundamental factor, often tacitly accepted, in the relationship between law and race in Europe. Consequently, the broadly shared anti-race and anti-racist position is problematic because it acts to the detriment of victims of racism while privileging the White, Christian, male majority.

This book is an original exploration of the relationship between law and race. As such it crosses the disciplinary divide, furthering both legal scholarship and research in Race and Ethnicity Studies.

Chapter 1

Critical Race Theory

The historical context

Critical Race Theory (CRT) is the product of a specific geographical history and context. In order to better understand some of its theoretical underpinnings, analyses, and critiques it is necessary to outline the broader historical framework in which CRT developed. In fact, one of the most important points raised by CRT scholars is that context matters, meaning that legal analysis must occur within a certain socio-historical context and should not be based exclusively on abstract, de-contextualised, formalised reasoning. Providing a picture of the broader context in which CRT developed not only serves as useful background information but helps explain the pre-conditions and underlying forces that made this theory and movement emerge.

To this end, two separate timelines are crucial in order to explain the intellectual genealogy of CRT. The first timeline will provide a brief overview of how law has historically constructed, affected, and subordinated (racial) minorities in the United States. More explicitly than in Europe, race in the United States has been robustly constructed by and through law. The description of how this occurred, nevertheless, will be positioned and critical, focusing on minority/critical scholars and judges who have interpreted this process. This is clearly not a glorious chapter in the history of American law but rather a dismal record of how law was, and according to CRT scholars continues to be, an actor or accomplice in racial subordination. It is not to say that other legal scholars are not aware and do not condemn cases like Dred Scott,¹ Plessy,² or Korematsu,³ just to name a couple of the most disturbing ones. However, the first major difference between minority/critical scholars and mainstream liberal and conservative scholars lies in the assessment of how much influence and relevance those cases continue to have in the twenty-first century. One of CRT’s main points is that the events and interpretations provided back then have managed to inform, shape, limit and influence legal arguments today. The second major difference between how those early decisions have been interpreted and read is that the liberal and conservative narrative tends to portray American law as evolving positively, as correcting these shameful judicial errors by means of landmark cases such as Brown v. Board of Education⁴ or through civil rights legislation. CRT scholars and other more critical academics are much less optimistic in their assessment of this history. They highlight the backlashes that followed after some emancipatory moments in the history of American racial minorities. For instance, the constitutional amendments and protective legislation in favour of former slaves, which passed into law after the Civil War, suffered significant setbacks due to a narrow interpretation by American courts. In the same way, modern civil rights legislation enacted in the 1960s has been voided of most of its transformative potential according to a similar dynamic.

The second timeline will briefly deal with the history of legal movements in the United States. It is impossible to understand the emergence of CRT without understanding the theoretical background of the legal movements and debates preceding it. Compared to the timeline, where a less conventional account of American case law is used to set the frame, the second timeline provides a somewhat more traditional account of modern American jurisprudence, which nevertheless provides an explanation of the broader legal–academic context in which CRT evolved.

1.1 Timeline 1 – history of American racial minorities

American law has dominated, shaped, and constructed the life of racial minorities in the United States. Arguably, law has played a pivotal role in the construction of races and is responsible for the introduction and maintenance of slavery, segregation, and other forms of subordination. Minorities are particularly aware of how law has shaped and, in most cases, negatively affected their lives.

Without pretending to provide an exhaustive history, the first timeline of this chapter will outline the most salient aspects of the racial subordination of minorities at the hands of the law in the American context. Indeed, as will be illustrated, law has played an instrumental role in creating, justifying, and perpetuating the subordination on the basis of the presumed racial superiority of those who identified as, or were themselves constructed as, the White majority. Nevertheless, the discrimination experienced by racial minorities has run along slightly different lines, depending on the way in which those groups were constructed and subordinated. In order to address such differences and to provide a more nuanced picture, separate sections are dedicated to the particular experience of African Americans, Native Americans, Asian Americans, and Latinos.

1.1.1 African Americans

The best known example of how law subordinated racial minorities is the fate of African Americans.⁵ Slavery, lynching and segregation belong to America’s darkest chapters. Beyond actual practice, law systematically created, legitimised and enforced these acts, starting from the very document which proclaimed that ‘all men are created equal’ and guaranteed ‘liberty, life, and the pursuit of happiness’ to everyone: the Constitution of the United States of America. Without entering into the details of how it came about that only Black people could become slaves whereas White people could become indentured servants at worst, the American Constitution based itself on and employed a social and legal reality, which had evolved and emerged from the arrival of the first slave ships on the East Coast.⁶ While the word ‘slavery’ never explicitly appears in the American Constitution, the founding document nonetheless incorporates the institution of slavery into its architecture, leading some to contend that the Constitution was pro-slavery.⁷ This occurred mostly pursuant to a political compromise between Southern and Northern states, where the former successfully maintained a racialised economic and social system, in which slavery played an important role. However, the North also had an interest in maintaining the slavery system. For example, a custom duty of up to ten dollars per slave was introduced to raise public revenues. Moreover, it was the Northern states that reaped economic gains and commercial interests in terms of revenue and goods generated from the plantations in the South. The compromise between the North and the South, which sacrificed moral arguments over economic and political reasons, already emerged prior to the entry into force of the American Constitution. An earlier draft of the Declaration of Independence, submitted by Thomas Jefferson to the Continental Congress, included among the charges against the King that he had enslaved people who had never offended him in violation of the principles of liberty and freedom. The Southern delegation pressed for the deletion of that specific charge since the colonists themselves were implicated in the slave trade. An inclusion of this claim might have made it more difficult to justify the continuation of slavery once ties to England were severed.⁸

The political compromise between North and South over slavery became entrenched in the Constitution itself; the so-called Apportionment Clause treated a slave as being equivalent to three-fifths of a person for purposes of apportioning representatives and taxes among the states.⁹ By means of this clause the Southern states attempted to increase their power in Congress. Since the South had by that time a significant number of slaves, counting slaves to determine how many representatives a state could send to Congress would mean more power at the federal level. This led to a paradoxical result. Slaves, on the one hand, were treated like property, were considered inhuman, and did not count as citizens, which prohibited them from voting. On the other hand, when advantageous, slaves were counted as three-fifths of a person for apportionment purposes. A second aspect of the political compromise over slavery, which emerged from the American Constitution, is the Fugitive Slave Clause.¹⁰ This clause ensured that when a slave escaped to another state, he must be returned if claimed by his master. The U.S. Supreme Court enforced this clause when Northern states tried to limit its applicability by criminalising the forcible removal of African Americans from the state for the purpose of enslaving them.¹¹ The effect of those decisions was pro-slavery. It extended the reach of this institution into the Northern states since slave owners were constitutionally granted the right to enforce their property claims in those states as well. Last but not least, the American Constitution also stated that the migration or importation of slaves into the existing states would be legal until at least 1808.¹² The combined effect of those constitutional provisions meant that the people who were supposed to be protected by the Constitution did not include those with skin of the wrong colour.

Slavery and legal subordination, which were enshrined in the American Constitution, were mostly enforced and perpetuated at the state level. The most efficient instruments established by individual states were the so-called Slave Codes. Slave Codes were designed primarily to defend the property interest of the owner in his slave. The statutory characterisation of African American slaves, commonly referred to as, in the language of the court at the time, ‘Negro’ slaves, as property was confirmed by one of the most heinous decisions of the U.S. Supreme Court: Dred Scott v. Sandford.¹³ That case involved Dred Scott, a slave who had been taken to a free territory by his master and who attempted to sue for his freedom arguing that residence in a free state had made him free. In its decision ruling against the plaintiff, the Supreme Court held that the Missouri Compromise, which prohibited slavery in the portion of the Louisiana Purchase Territory north of Missouri, was unconstitutional because it deprived slave owners of their property without due process. The Court also held that under the Constitution a slave was property, equivalent to any ordinary article of merchandise, for which the right to traffic was guaranteed to the citizens of the United States. The Court concluded that ‘Negroes’ were not intended to be included as citizens under the Constitution but were regarded as beings of an inferior order altogether unfit to associate with the White race, either in social or political relations; and so far inferior, that they had no rights which the White man was bound to respect.

Slavery was formally abolished after the American Civil War (1861–1865) with the introduction of the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution. Nevertheless, in spite of these constitutional amendments and federal legislation granting former slaves citizenship, equality, and certain other rights¹⁴ during the brief Reconstruction period, which spanned from approximately the end of the Civil War until 1877, their plight scarcely changed. This can be traced back to the resistance to this emancipation at the state level, which played out in several ways.¹⁵ For instance, at the statutory level many States introduced the so-called ‘Black Codes’ which strongly resembled the pre-Civil War Slave Codes. Thus, Black Codes limited the rights of African Americans to own or rent property, to give testimony in court, and also permitted imprisonment for breach of employment contracts or for vagrancy. These laws were aimed at former slaves who, after acquiring freedom, started moving in search of a better life for their families and/or employment opportunities. Criminalising certain behaviour in order to literally get former slaves off the road or to force them to stay in an employment contract also had the added benefit of ensuring that there would be a continued supply of cheap African American workforce in the form of convict labour. In some ways this was worse than slavery, given that de facto the former slaves were doing exactly the same thing as before but without any of the limited protections that a slave master might grant as a property owner who wanted to maintain the value of his property. Additionally, it meant that sanctions, which under the old system had been administered directly by the slave owners, were now part of the state’s competence, thus further increasing the law’s involvement in perpetuating racial discrimination and subordination.¹⁶ Another way in which freed slaves were denied their rights was through inaction from both the states and the federal government. The most visible example of this inaction is the so-called ‘Hayes-Tilden Compromise’ of 1877, which officially ended the short-lived Reconstruction period. In fact, during a very narrow presidential election, which almost sparked another civil war, a political compromise was reached. The compromise included the withdrawal of the remaining federal Northern troops from the Southern states, which up to that point had appeared to be providing some sort of protecti...