Professional Documents
Culture Documents
Spring 2013
4/1/13
Theory of Law and Race:
o My theory about law and race in American legal history is
that as soon as race comes in the law drops out
Judges are essentially just making policy and then
rationalizing it in rhetorical terms
**I want to focus on these rhetorical strategies and
tactics- what are they trying to establish and what
are they trying to avoid
Ex, Boon we see massive techniques of
avoidance
What are the objectives of these people/ to what extent have
they seen the consequences of what theyre doing? To what
extent are they constantly adjusting their techniques? Courts and
litigants are constantly adjusting to political reality and perceived
social change
o Idea that SCOTUS interprets the equal protection clause of
the 14th is nice but theyre doing something different
o How do these white male judges constitute the idea of
color for purposes of legal liability? What do they say is
significant about the idea of race?
Antebellum Period
o Judges commonly used the words negro and slave
interchangeably
o The law is highly dynamic- dont assume that even
particular judges lock in their positions early and retain
them
Focus on NC for 2 reasons:
o 1. Geography- western half of thes ttae is mountainous,
little saveholding
o 2. NC only has one good port- Wilmington, so slave ships
didnt arrive in NC bc outerbanks made it too problematic
so most of the NC slaves came from Virginia or SC,
economy depends in NC largely on farming or naval stores,
so slaves werent as useful as in the big plantation states
Plantation Justice- there were more than 4500 criminal trials
involving whites, but only 160 involving slaves because generally
just left to plantation justice- slave code of 1750 provided for the
power of slave courts to make punishments for inapproproiate
public behavior by slaves, but they almost always just left it to
masters of the slaves
I.
- Note the
Because the in this
racialized
case is a white stranger
language and
rather than hirer or
interchangeability of
master, then Weaver is
the terms Negro
not directly on point.
and slave.
- Slaves that respond to
force in a disrespectful
fashion and then in a
physical fashion to any
white person should bear
the consequences of his
temerity.
- Now the system is
beginning to be at
conflict with itself
Masters want their
autonomy but at the
same time want the
value of their property
to be protected.
State v Piver (1798), p2 Only case that gives us some inkling of the
actual altercation. Slave shoved a boy and the boy shot the slave
court finds this is manslaughter under Act of 1791, which is afforded
no punishment at this time.
o CLASS ANALYSIS
NOTE racialized language Slave and Negro are used
interchangeably. Even in statutes.
First statute is in mid-16th c. Not racial.
Only common law analogy Not racial.
Common impulse of law
o 2 % of NC population at this time is free and
black.
o 75% of NC population is white.
This is manslaughter because the was pushed and could have
been hurt if he had not caught himself with his hands.
Slaves that respond force in a disrespectful fashion and
then in a physical fashion to any white person bear the
consequences of their temerity.
Controversial 1. Seemed to fly in the face of at least the
ambitions if not the technical apparatus established by the
legislature in 1774 and 1791. 2. Masters begin asserting
themselves. System is in conflict with itself.
Prompts the sustained discussion of the issues in State v
Boon.
Conflict Masters want autonomy as well as
having the value of their property protected.
o Ultimate fear at this time is slave rebellion.
o Growing theme in first quarter of 19th c.
White Strangers
1.Slight Provocation SufficientState v Piver (per curiam)
(1798): A slave was walking down the road, and a thirteenyear-old boy threatened to shoot him. The slave shoved the
boy, and the boy shot him. The boy is acquitted because it is
manslaughter.
a. Interchangeability of Slave/Negro: The court
interchangeably uses the word slave and negro, despite
the fact that over 2 percent of the population is free black.
This is a rhetorical trick later used by Ruffin.
b.Controversial Decision: This decision was controversial
because masters objected to the idea that white strangers
should be able to kill perfectly good slaves. The master
also fears that gratuitous cruelty from white strangers will
break down the system. It prompted sustained discussion
in Boone.
MY NOTES
o Not Weaver because Piver is a STRANGER- boy 13/14
shoots slave in the back
o This shows real tension at the end of the century, if you
have strangers who can go around shooting slaves, this is
problematic not just because of their value but because
could incentivize slaves to rebel
o Court says there was provocation here so thats
manslaughter, but nothing in the 1791 act about
manslaughter, so go on your way
o This really shows you how reluctant the NC judges are to
start superintending black/white alterncations in superior
courts
State v. Boon
State v
Boon
(1801), p4
Common
law does
not apply
to slavery,
only use
statutes.
MY NOTES
o 1820- the other two cases are in 1823
o Tackett is not long after the Missouri compromise of 1820this makes slavery again the hottest political issue- if
Missouri comes in as a slave state then someone else has
to come in as a free state (Maine), value of salves go up/
the market increases
o Tackett= Love triangle- holy trinity of violence in the
south sex, race, and alcohol
o Tackett (white D), was having an affair with free black wife
of Daniel (deceased/ slave), Lotty- was kept aka
molestaition- rumor that she was being sexually abused by
Tackett
o They both threatened to kill eachother somewhere along
the way
o Tackett shot Daniel in the crotch- designed to humiliate and
incapacitate
o Judge Daniel SHOCKING gives a color-blind jury chargevery good judge correctly reading the act of 1817- so
charges it the way he would charge a case between two
whites hes basically punting the case upstairs with this
jury instruction
o Death sentence given to Tackett- obvs pretty surprised/
appealed
o Evidence that becomes CENTRAL ground for overturningDaniel (slave) was impudent to all whites, rather than just
the prisoner, so its basically a presumed provocation
o Court is categorizing pro-systemic good v. anti-systemic
bad slaves ****Tacketization of Provocation- take
everything into account, thrown into the jury box,
whatever they decide will be fine because were not
going to review their findings as long as they take
everything into account- but as to the provocation/
trubulence of the slave, thats to the fact finders- its
a way of lowering their profile and localizing law
State v Reed 1823
State v Reed
(HENDERSON
1823), p20
Life and limb
exception. Killing of
a slave is a common
law offense that is
probably established
prior to the statutes
enacted that were
considered in the
prior cases.
Temporary Hirers
1. Extending Common Law Murder to Hirers and Slaves
State v Reed (1823): The prosecutor indicted a white person
under common law for the murder of a slave.
a. TaylorExtending Common Law to Slaves: Judge
Taylor argued that the common law provided a sufficient
basis for indicting the hirer.
b.HallCommon Law Inapplicable: Judge Hall argues that
in the US the common law does not apply to slaves. This is
consistent with Halls position in Boone, and it would allow
the NC Supreme Court to avoid difficult issues about the
sufficiency of provocation.
State v Hale
(TAYLOR 1823),
p22
Finds that battery
committed on a
slave by a white
stranger with no
justification is an
indictable offense
under the
common law.
Trial judge:
DANIEL
- Language on RHS
p23 about the how
the is poor white
trash and such
actions by such
individuals is likely
to produce even
more chaos and
vigilantism.
-
D.
White Strangers
Master class is saying this is what puts our slaves at risk- have to
protect good workers- courts saw nothing wrong with what the
victim had done (cut across a lawn) and they saw recklessness
on the part of the D
Although Henderson sustains the manslaughter, the sentence is
only 6 months hard labor because he confessed right away- think
of this as an unfortunate rather than a wicked place, there would
have been no evidence against D except that he confessed- this
is a theme to watch for- when violence occurs, how does the
perpetrator respond- flight, denial, confession, etc- the reaction
weighs not only on punishment but on liability
II.
State v John Mann (RUFFIN 1829), p25 Most famous case in the
law of slavery. Finds that battery committed on a slave by owner or one
vested with equivalent authority is not an indictable offense.
a. ISSUE Whether a cruel and unreasonable battery on a slave by the
hirer is indictable.
b. ANALYSIS Rearticulates general principle that authority of master
over the slave is absolute, and that there is no room for the court to
intervene. Although Hale established that a battery committed by a
stranger onto a slave is indictable, it is not indictable when the is the
owner or one vested with equivalent authority. Judge shows a lot of
remorse over this holding.
c. CLASS ANALYSIS
i. Harriet Beecher Stowe praised RUFFIN for his opinion for not
calling something terrible something good. But are these
crocodile tears?
1. Look to first paragraph Another way of saying that this
kind of case does not belong in our court. Dripping with
cold disengagement.
2. Well-educated, large plantation. Had more slaves than
anyone else.
3. RUFFIN knew what he was doing here. See LHS p27
Dealing with law of plantation which is like the law of
the ship when the captain is in control. He is in complete
control and common law would be foolish to intrude into
this relationship. Also see RHS p27.
a. One of the earliest slippery slope cop outs by a
judge.
b. Anomaly of hiring makes this visible. Wont
change operation of system, and the law is the
last mechanism to intrude in that respect.
ii. Hirer maimed temporary slave with a gun while shes fleeing.
These factors within 5 yrs would put John Mann behind bars for
manslaughter.
iii. RUFFIN has tried to use a lot of ameliorist language that
HENDERSON and others have worked to set up.
iv. Attorney General argues that this issue was determined in Hale
(Hall). RUFFIN argues this is not Hale because this is a de facto
master. Thus, this defense does not lie at common law.
1. See LHS p27 Death struggle of master and slave is
inextricable. Who can ameliorate or untangle it? Only
God can fix this.
2. Most masters dont gratuitously slay their property and
are careful not to hire their property to people such as
John Mann. But, they all also suffer the frustration that
leads to the inevitable violence against the slave.
v. Slaveowners were furious with this opinion because it
made them look bad.
1. Abolition movement hasnt started yet.
2. Growing fear of slave insurrection.
3. Mann is vulnerable on political grounds because paints
slaveowners in a way that they disagree with.
o
o
o
o
o
o
o
- Trial
judge:
DONNELL
III.
State v Will
(GASTON
1829), p34
Temporary hirer chases
disobedient slave and
fatally shoots him in the
back. The slave runs and
ends up stabbing the hirer.
He is convicted of murder in
the lower court. Reversed.
Slaves are
considered property,
and thus to reverse the
decision below would
be to interfere with
ones property rights.
GASTON Recognizes
the need for a double
standard.
- However, follows the
precedent of Reed in
stating that There is
no legal limitation to
the masters power of
punishment, except
that it shall not reach
the life of his offending
slave. RHS p55.
- States that if the
overseers shot had
been fatal it would
have been at least
manslaughter, and
probably murder.
- However, note that
the provocation being
indictable is not the
criterion for whether
an act constitutes legal
provocation.
- Points out that it
cannot be that if the
lives he is a murderer
but if he dies he is not.
- Finds Mann not to be
on point because that
case is limited to the
holding that cruel and
unreasonable battery.
- Refuses to find the
rule that if a slave
commits unlawful
violence against his
master or one with
equivalent authority
then it must spring
from unlawful malice.
IV.
C.
State v Hoover
State v Hoover (RUFFIN
1839), p59
Master beat a slave who
was pregnant over a period
of four months to such an
extent that she died. Jury
instruction was only for
manslaughter and the Court
disagreed.
V.
as well as of the
beatings themselves
in RUFFINs opinion.
- This case was
opportunistic
Other slave owners
wanted this case
tried so system
could defend itself.
State v John Hoover (RUFFIN 1839) (Trial Judge: DICK), p59 Master
beat a female slave who was pregnant over a period of four months to
such an extent that she died. Jury instructions included instructions for
manslaughter that the Supreme Court disagreed with, however, because
the master was convicted of murder in the lower court, the verdict merely
remained unchanged.
i. While the court will give great leniency to the master when the beating
took place during the course of disciplining, if the beating has the
character of cruelty and the slave dies as a result, then the master
may be held to murder.
j. Court shows absolutely no sympathy for the master in this case.
k. CLASS ANALYSIS
i. Master was hung for killing his slave and was not pardoned by
the Governor.
1. Formal Violates what HENDERSON said in Reed.
Master has right to extract services and labor from the
slave, but he must not kill the master. Moreover, Will just
told us that Mann does not overrule Reed.
2. Practical John Hoover is bad for the system, and gives
everyone in the entire system a bad name. Chance to
show how humane the common law is.
ii. RUFFIN has the opportunity to re-categorize this case, and does
not even make this a fine-tuning of legal categorization.
iii. Nasty remarks about the .
iv. Probably the baby was interracial and Hoovers, and the brevity
of the record reinforces that idea.
v. Facts of the case made a mockery of the line that RUFFIN had
tried to draw in Manns Case and to modulate in Wills Case.
Even Master Cannot Torture and Kill SlaveHoover (1839) (Ruffin): Hoover killed his pregnant
slave after extracting her confession through severe beatings.
a.
Gives Slavery Bad Name: Even Ruffin declares this illegal, saying that the acts lay
beyond the pale of civilization, perhaps worried that masters like Hoover would
give slavery a bad name.
b.
Proves Mann Untenable: This case proves that the line the NC Supreme Court
drew in Mann was untenable. Even Ruffin is unwilling to allow torture and murder
of a pregnant woman to remain solely an internal matter on the plantation.
MY NOTES
o RUFFINIAN NIGHTMARE
Trial judge:
DICK
- Highly
detailed
factual
record
(goes
through
testimony of
each
witness).
strangers beating up
on one of the slaves
for no reason and
one of the other
slaves delivers a
mortal blow to one of
the strangers. Held,
conviction of murder
reversed.
Highly detailed
factual record (goes
through testimony of
each witness).
Opens up by
appeasing slaves
Convincing proof of the
due subordination and
good conduct of our
slave population, and to
suggest that, if any
departure from the
known and ordinary
rules of the law of
homicide is to be made,
it is called for to a very
limited extent.
The here is
prosystemic.
Despite the rhetorical
niceties of PEARSON and
NASHs opinions, the
outcome will probably
be the same as RUFFINs
because in the end it is
determined by a jury
and the jury is likely to
be comprised of
slaveowners.
NOTE that Caeser is
the only American case
that cites the friend
exception.
RUFFINs dissent is
nakedly racist.
i.
j.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
iii.
Case Law: He reads Hale and Tackett as establishing
a rule that the common law must be adapted to the
community with which it deals. The ordinary rules of
provocation do not apply. He reads Jarrott as saying that
a slave must reasonably think there is a mortal threat to
respond with force, and the slave cannot respond to
simple batter with deadly force. The problem with this
reading is that Jarrott said the law forbids white stranger
correction, and Jarrott says the difference between
ordinary and life-threatening battery is a question for the
jury.
iv.
Degree of Provocation: The critical question is
whether the assault on Dick was serious enough to
threaten his life. Ruffin bears a heavy burden of proof to
justify withholding that issue from the jury entirely. He
must proves that a reasonable jury could only reach the
conclusion that the assault threatened Dicks life.
v. Preserves Judges Flexibility: Ruffin does not want to
make the rules too clear or trial judges will lack the
flexibility to make the system work. This partially
explains his reading of Hale and Tackett.
vi.
Preventing Secession: Ruffin said judges must
manage the system to preserve national institutions or
prevent secession. Ruffin was a unionist and thought
slavery was enshrined by the Constitution.
MY NOTES
o RUFFIN says slavery is a NATIONAL INSTITUTION
Saying this because the whole rhetoric of the 1840s
is that of the security of national institutions
o Then we have the facts and judge Dicks decision- 2 of
which are surprising:
1. He saying that the beating was ordinary battery so
the Q of provocation doesnt get to the jury
*so for the first time find that the question of
whether its ordinary or extraordinary battery is
one of law
2. Instructed to find that it is BY LAW a deadly
weapon- saying its not within your discretion to
decide wehther in these circumstnaces its a deadly
weapon whereas in the previous case Gaston said it
was the jurys decision
o Hes the most reversed judge in the NC superior ct system
and has an animous for slaves who kill whites, even if
theyre poor whites, better to have them with him than
against him
State v. George
Penultimate sentence of the opinon says if such evidence were
received, crowds would always assemble when there was a
charge of the commission of a horrid crime, in order to extort a
confession- aka tried to lynch mob this guy to get a confession
out of him but thats not legit
NORTHERN COURTS
Chilling parallels
School segregation
debated at this time,
to maintain the segre
of SUMNERs argume
rendered moot by the
- While SUMNER fel
lose by bringing this
One of the most
the country upheld
- Pragmatic and fina
SUMNER to the caste
argument MARSHA
-
B. Northern Courts
I.
VI.
A.
TANEYs opinion
depends on the original
understanding of the
framers when they ratified
the Constitution Clear
that they did not intend
for African Americans to
be citizens.
- Argues that any other
outcome would threaten
the legitimacy of the Court
Any other rule of
construction would
abrogate the judicial
character of this court,
and make it the mere
reflex of the popular
opinion or passion of the
day.
-
CURTIS (dissenting)
Counters TANEY with his
own historical analysis.
However, qualifies his
dissent. Although African
Americans may be citizens,
not all citizens have equal
rights, etc. States have
power to decide what
rights go with what kind of
citizenship.
II. Dred Scott v Sandford (TANEY 1857), p116 Held Dred Scott did not
have standing to sue his master in court as a citizen of Missouri, being a
descendant of slaves, and thus could not sue for his freedom.
a. Citizens are those who define the body politic, and who exercise
sovereign power of the state. TANEY relies on a very originalist
understanding of the word citizen, and relies on how the Framers
defined the term at the time of the adoption of the Constitution.
i. Notes that at that time, slaves, and African Americans in
general, were considered a subordinate race, and thus not
considered to be within the purview of the definition.
B.
II.
Fourteenth Amendment
I.
Background Volatile
politics between the
North and South.
- MILLER wanted to
preserve the Union.
- MILLERs opinion is
dripping with irony and
paradox.
- Often taught as
Supreme Courts missed
opportunity to construe
the Privileges or
Immunities clause of the
14th broadly.
- South saw these
amendments as the
creation of Northern
carpetbaggers.
- Analytical approach
is reminiscent of
Boon.
- Federalism point
Court does not want to
become arbiter of all
state legislation.
- Court is wary to do
Dred Scott again Does
not want to be subject
to political winds (not
decided along partisam
lines).
-
i.
iii.
iv.
v.
vi.
A.
Legislation
B.
Privileges and ImmunitiesSlaughterhouse
Cases (1873)
1. Facts: The Louisiana statute granted a monopoly to certain
butchers in order to reduce health and sanitation problems.
The plaintiffs argued that this deprived them of the privilege
or immunity of earning their living as butchers.
2. Adopts Historical Definition: Millers majority chose a
narrow set of historically defined rights. Miller looks to the
purpose of the Fourteenth Amendment and argues that it is
exclusively about slavery. These included the right to hold
title to land, the right to travel, and the right to habeas
corpus.
3. Avoid Superintending Exercise of Police Powers: The
implication is that the Court will not engage in Dred Scott
again and tack out into the wind of shifting political ideas.
The states will be permitted the flexibility to exercise their
police powers.
3. Other Possible Interpretation of Privileges and
Immunities
a. Delegates Power to Congress: The most expansive
interpretation was that the Fourteenth Amendment gave
Congress and the Supreme Court the power to define the
privileges and immunities of citizens, and the former slaves
must share in them equally.
b.Incorporation: The Clause could incorporate the first
eight amendments of the Bill of Rights and impose them as
a matter of constitutional requirement against the states.
Strauder v. West Virginia
Strauder v West
Virginia (STRONG
1879), p140 Held
statute excluding blacks
from juries violated Equal
Protection Clause of 14th.
Unanimous decision
(in order to be
unanimous, the opinion
had to address 15th
Amendment issues).
- STRONG holds that
the 14th secures to
African Americans civil
rights (formal legal
status and capacity as
under Civil Rights Act of
1866) including political
and social rights.
- States that the fact
-
Racial and
paternalistic language
reminiscent of RUFFIN.
NOTE that this was
typical of the political
rhetoric of the day.
- Meant to provide the
South with a roadmap
for evasion Can
impose other
requirements that
prevent blacks from
voting, serving on juries.
- Catholic bashing
-
III.
iv. NOTE that the Court does not question limits on jurors based on
other characteristics, such as gender, property owning status,
and age.
v. The 14th does not specify which rights it seeks to protectthis
implies that it is to be interpreted as broadly as possible. Any
State action that denies this immunity to a colored man is in
conflict with the Constitution. p144.
vi. Holds that 14th 5 is enough to justify passage of 641 of the
Revised Statutes, which states that when any civil suit or
criminal trial is pending and the civil rights of one of the parties
is denied or violated, then the suit may be removed to the next
Circuit Court of the United States.
c. CLASS ANALYSIS
1. STRONG was a GRANT appointee for political reasons.
i) Also a nut case.
ii) Resigned from the Court and lived for another 15 years.
iii) Christian societies and after resignation and tried to pass a religious
amendment stating that Jesus is the governor of nations.
2. To what extent is the Court acting in an utterly cynical fashion in
Strauder
i) Strauder was convicted of murdering his wife with a hatchet.
3. Court was interested in drawing a bright line.
i) What if S was white?
ii) Real victim of WV provision was the potential juror.
iii) Look at other Supreme Court decisions May need to show actual
prejudice.
iv) Can S get a fair trial with exclusion of blacks from jury pool?
(1) Emphasize case is not about blacks being on jury as remedy for
this sort of case.
(2) Instead, cannot exclude them from jury pool.
(3) Why help the axe murderer?
(a) P142 Racist, paternalistic language reminiscent of
RUFFIN.
(i)
Mirrors debate that had been going on between
SUMNER and HOWARD in Congress.
(ii)
Piggybacking on political rhetoric that had been
equivalent of Federalist Papers of the Reconstructionist
era.
(b) Need to show Equal Protection Clause not simply about
blacks. 2 big steps
(i)
Strauder About race.
(ii)
Yick Wo About all minorities.
(c) Strauder Assumed that if blacks become majority, whites
will be able to make similar claims.
(d) Scant record of protection of Chinese.
(i)
In struggle for rights compared to artificial entities.
(4) Civil Rights p142
(a) Civil Rights Act of 1866 Make and enforce contracts, give
evidence, property (formal legal status and capacity).
(b) Political rights Run for office, vote, not to be discriminated
against on the basis of race while voting (could include jury
service as part of polity).
(c) Social rights Right not to be excluded from 1st class
transportation and other public places.
C.
Unanimous opinion.
The Equal Protection
Clause applies equally to
the Chinese (14th is
about minorities).
- Though the law itself
be fair on its face and
impartial in its
appearance, yet, if it is
applied and administered
by public authority with
an evil eye and unequal
hand, so as practically to
make unjust and illegal
discriminations between
persons in similar
circumstances, material
to their rights, the denial
-
Unanimous opinions
do not change the social
fabric Here the Court
finds that if the state
can show reasonable
ground for the
discrimination, the
Court will uphold it.
- Another reason for the
Courts unanimity is that
the petitioners are
losing their livelihood.
Civil rights at this time
look more like
commercial rights.
- Strauder and Yick
Wo help to establish the
Courts position that
-
D.
V.
ii) Reinforced by the Civil Rights Cases (1883) Civil Rights Act of
1875, insofar as Congress tries to reach private discrimination in
public accommodations, Congress has gone too far and beyond the
authority conferred upon it by the 14th Amendment, which only
prohibits discrimination through state action. Only one dissent
(HARLAN).
iii) BRADLEY There will come a point when newly freed slaves will
cease to be the favorites of the law.
iv) BRADLEY (1876) Civil Rights Act of 1875. Advocating to his
colleagues a concept of lines of demarcation for the 14th
Amendment, and that the idea of civil and political rights were
limited to the Civil Rights of 1866 and the 15th Amendment.
v) Plessy v Ferguson is a non issue when it was decided. NY Times
included it in the Railroad News.
vi) Tourgee was up against a mindset that had locked into place for a
half a decade. Tourgee was asking for something that this Supreme
Court was never going to give.
3. Interesting question about the litigation The composition of the New
Orleans Committee to attack the segregation on the railroads.
i) Plessy was 7/8 white. HARLAN had a brother who was a slave, and
was white as can be.
ii) HARLAN owned slaves, condemned 13th Amendment as a politician,
and argued that the Civil Rights Act of 1866 was unconstitutional.
Sole dissenter in Civil Rights Cases and Plessy v Ferguson.
iii) Tourgee is a very famous carpetbagger, has written an expose of
the KKK, and the most prominent figure to take on the case.
(1) Immediately suggests having someone who can pass for white
be the plaintiff. Runs the risk of splitting the group (dominantly
Creoles, and also a number of dark skinned African Americans
in group).
(2) Two of the Civil Rights Cases also involve plaintiffs such as
Plessy, because these are the ones who have the most to lose.
Tourgee argues that the principal loss here was the property
right of being treated as white.
(a) No precedent to call the capacity to pass for white as a
property right.
(b) Same argument that SUMNER made in Roberts The
odious idea is the act of separation. That is what constitutes
the violation. BUT he has used someone who is used to not
being discriminated against.
(c) If he were really trying to bring SUMNERs point home, then
he would have presented a plaintiff who was African
American and dark-skinned male, and a African American
woman who is a nurse to a white child.
(i)
Irrationality.
(ii)
Absurdity of exceptions made.
(d) THUS, Tourgee starts out bass-ackward.
4. Precedents Slaughter House Cases (privileges or immunities, went
the other way).
i) Argues this is not police power. Cf Yick Wo,
ii) Argues that Slaughter House is wrong.
iii) If that is the law, what is there to prevent a State from enacting
the old rule of slavery jurisprudence, that insulting words from a
colored man p176 RHS.
iv) Argues that the act of separation itself is the violation. See
MARSHALLs arguments in Brown v Board of Education.
v) Problem of the New South to an outsider is that the New South
wants the old Negro Jim Crow is all about keeping the African
Americans in their place.
5. Remember, you have to have reasons.
6. Notwithstanding the disaster of Tourgees brief Nature of the
argument that Tourgee made invites the rhetorical response that
BROWN supplied (legitimation of Jim Crow and recognition of the
principles underlying Jim Crow).
i) Letter to Louis Martinette Wrong in every sentence in terms of
where the law is moving.
ii) BUT he was still ready to push forward, as were his clients. Political
judgment was better to make a stand and lose, than to not make a
stand at all.
b. Brief for Plaintiff in Error
1. Errors by the lower court
i) 13th and 14th Amendments.
ii) Exercise of police power.
iii) Regulation of domestic commerce.
iv) Enforces substantial equality of accommodation supplied to
passengers of both races.
ii. Such segregation perpetuates a distinction based on race and
thereby places a badge of inferiority and servitude on the
African Americans.
iii. Such a statute does not enforce substantial equality of
accommodation among the railroads passengers.
iv. Not within the states police powers.
1. The federal government has the power to inquire into
and decide upon the force, tenor and justice of all
provisions of State laws affecting the rights of the
citizen. p171.
2. Slaughter House Cases Formulated theory of exclusive
police power by the state.
3. Strauder v West Virginia The Court concluded that the
14th Amendment would prevent discrimination as a
right.
4. Police powers Hard to define. Regulations necessary
to secure the physical health and moral welfare of
society.
5. Rule The Courts definition of the relation of the 14th
Amendment to the States power to enact and enforce
police regulations is, that it has the sole power and
sovereignty to do so, as long as it does not distinguish
against the rights of color citizens as such. p172.
6. Impairs the rights of octoroons to be classed among the
whites.
v. Violates equal protection and due process.
1. By denying the plaintiff in error the right to ride and
associate with the whites, the state is denying the
plaintiff in error of property (analogous to a right of
action or of inheritance) in violation of the Due Process
Clause.
vi.
vii.
viii.
b. Brief
i.
ii. Analogizes to a Mississippi statute that was the model for this
statute. The MS statute was held constitutional because it did
not interfere with Congresss regulation of interstate commerce.
iii. Moreover, the statute did not force anyone into servitude, and
thus did not violate the Thirteenth Amendment.
iv. Regulation of civil rights is clearly with the purview of the
states police power.
v. Equality of accommodation does not mean identity of
accommodation.
vi. 14th Amendment is only violated when the States attempt to
legislate and establish an inequality.
vii. Color is not a term that is as hard to define as the plaintiff in
error contends.
viii. And any passenger of the white race insisting on going into a
coach or compartment set apart for the colored race, is guilty of
exactly the same offense as when a passenger of the colored
race insists on going into a coach or compartment assigned and
set apart for passengers of the white race. p190.
c. Supreme Court Opinion.
i. ISSUE Constitutionality of Louisiana Act providing for
separate railway carriages for the white and colored races
under the 13th and 14th Amendments.
ii. 13th Amendment A statute which implies merely a legal
distinction between the white and colored racesa distinction
which is founded in the color of the two races, and which must
always exist so long as white men are distinguished from the
other race by colorhas no tendency to destroy the legal
equality of the two races, or reestablish a state of involuntary
servitude. p194.
1. Purpose of the 13th was to abolish slavery as it existed
prior to the Civil War. Slaughter House Cases.
2. The 14th Amendment was later passed when Congress
recognized that the 13th did not protect African
Americans from laws passed by the Southern states to
impose upon African Americans extra disabilities (Black
Codes).
3. The Civil Rights Cases held that the refusal of
accommodation by a single owner of an inn was not
enough to constitute a violation of the 13th Amendment
because to have the 13th Amendment and the slavery
argument apply in such instances would be to run the
slavery argument into the ground. p194.
iii. 14th Amendment
1. The main purpose of the 14th Amendment was to
establish the citizenship of African Americans, to give
definitions to federal citizenship, and to protect those
privileges and immunities of federal citizenship.
Slaughter House Cases.
2. Clear that it is within the States police power to require
separation of the races in certain places, and that such a
distinction would not prove to brand one race inferior to
the other.
3. Segregation has been well-established as within the
states police power. See Roberts v City of Boston. Also
consider the state statutes forbidding interracial
VII.
IX.
II.
A.
B.
MY NOTES
o *Panic of 1893 the worst depression the country had ever
experienced, also damaged any interest the country had in
protecting black rights
o Hard to imagine a less favorable tribunal than the one they
(Turgee defending Plessy) faced in Plessy
o What are the three worst mistakes Turgey makes in his
brief?
1. Uses rhetorical questions so kind of arguing
against himself
2. He seems to be trying to reargue the civil rights/
slaughterhouse cases- its not like the civil rights
cases were supportive so its weird that hes trying to
use them
3. THE REAL VICE OF PLESSY V FERGUSON from a
LEGAL STANDPOINT- p. 160- all that the 14th requires
is reasonability just has to be a reason, almost
sounds like ruffin
o 1895 Frederick Douglas dies and thus the most elegant
voice for blacks is dead
o *Look to Harlans Dissent in Plessy
o Cummings shows that the court was simply reflecting,
rather than inspiring or directing the attitudes of the day
o High schools were essentially non-existent for Blacks- as
late as 1916 Georgia, LA, MI, AL had ZERO
HARLAN is mainly
looking to cut the losses
from Plessy NOTE that
he does not mention
customs and usages.
- HARLANs possible
motivation If you
force integration in the
South at this point, kill off
the common education
movement and blacks
will be worse off due to
white flight.
- Follows SHAW and
Roberts except does not
get to the issue of caste
and social stigma.
- This case was not
going to be successful
Only one new Justice
since Plessy.
-
C.
Educational Segregation
1.Education at Turn of the Century: The common school
movement was just taking hold in the South, and the idea of
educating blacks was controversial. Tennessee, Kentucky, and
Missouri were the first states to establish black schools and
taxed blacks to pay for the schools. By 1915, the southern
states were spending much more on white education than
black education. The black education that existed focused on
industrial training rather than high schools.
Berea College v. Kentucky, 211 U.S. 45 (1908) was a significant case argued before
the United States Supreme Court that upheld the rights of states to prohibit private
educational institutions chartered as corporations from admitting
both black andwhite students. Like the related Plessy v. Ferguson 163 U.S. 537 (1896)
case, it was also marked by a strongly worded dissent by John Marshall Harlan.
TheSupremeCourtruledinfavorofthestate.JusticeBrewerdeliveredthemainopinionthatas
thecorporationinquestionwascharteredunderthelawsofthestateofKentucky,itwaswithin
therightsofthestatetomakesuchprohibitiontothecollege.Whilethestatemightnothavethe
righttothusrestricttheactionsofprivateindividuals,thatportionofthelawwasaseparateissue,
andnotunderdirectconsideration;andthattherightsandrestrictionsonindividualswerenot
necessarilythesameasforcorporations.
HarlanDissentImoftheopinionthatthisisanarbitraryinfringementontherightsofliberty
andproperty.
JusticeHarlanvigorouslydissented,arguingthattheformaltitleofthelaw,"AnActtoProhibit
WhiteandColoredPersonsfromAttendingtheSameSchool,"andthenatureofitsprovisions
madeclearthatnosuchdistinctionbetweenindividualandcorporaterestrictionexistedinthe
intentionsofthelegislators,andthattheseparateconsiderationofthoseaspectsofthelawwasnot
appropriate.Harlanfurthermoredeclared,"Thecapacitytoimpartinstructiontoothersisgivenby
theAlmightyforbeneficentpurposesanditsusemaynotbeforbiddenorinterferedwithby
Governmentcertainlynot,unlesssuchinstructionis,initsnature,harmfultothepublicmorals
orimperilsthepublicsafety.Therighttoimpartinstruction,harmlessinitselforbeneficialto
thosewhoreceiveit,isasubstantialrightofpropertyespecially,wheretheservicesarerendered
forcompensation.Butevenifsuchrightbenotstrictlyapropertyright,itis,beyondquestion,part
ofone'slibertyasguaranteedagainsthostilestateactionbytheConstitutionoftheUnitedStates."
[edit]Subsequent developments
Theresultoftherulingwastoallowstatestoprohibitintegratedschoolinginprivateinstitutions,
aswellasinpublicschools.KentuckyeventuallyamendedtheDayLawin1950toallow
voluntaryintegration,shortlypriortotheBrownv.BoardofEducationcasewhichstruck
downracialsegregation.
[edit]
United States v. Shipp
Background
Lynchings were the
primary concern of the
NAACP at this time.
NAACP worked for 30
years to get lynching to
be a federal crime but
their attempts were
unsuccessful. Main
problem was establishing
state action.
- Lynchings at this time
were very violent and
highly publicized.
- Court felt that they
needed to create a
legal structure that
could maintain the
social structure of Jim
Crow But the question
is to what extent did they
overestimate the
importance of the legal
structure in keeping the
social structure from
collapse?
United States v Shipp (1906) Now the biggest threat to blacks is
lynching.
a. CLASS ANALYSIS
1. NAACP is formed in 1910 in order to do something about lynching.
i) Usual ground for lynching was murder. Most number of lynchings in
any one state during this period is MS (573). 532 blacks, 41 whites.
Most whites in any one state is in TX (143).
ii) Wasnt simply the violation of DP that HOLMES gives you. Violent,
highly publicized. Particularly true in cases involving accusations of
rape (mutilation).
iii) NAACP worked for 30 yrs to make lynching a fedl crime, but they
never succeeded.
iv) Bill was tricky because their had to be state action. liability on the
part of sheriffs, marshals, policemen who knowingly and
intentionally to allow the lynchings to occur. Can this kind of
inaction be penalized constitutionally? ROOSEVELT not ready to
make a stand on lynching.
2. Shipp was convicted and the court deliberated for 5 months about
what his penalty should be for intent. HOLMES who was not a ravid
interventionist argued that contempt of court was so egregious that
one year in jail was necessary. FULLER knew that he could not get the
unanimous court for that position, and instead compromised 60 days in
jail. Met by a brass band and 10,000 wellwishers when he got out of
jail.
IX.
is Chattanooga
sheriff.
- Only time the Court
has ever held a
criminal trial.
- The contempt of court
was so egregious in this
case that they found
against the s.
-
X.
3. Court needs to create a legal structure that can maintain the social
structure of Jim Crow. To what extent did they overestimate the
importance of the legal regime? They thought that if they took the
legal legitimacy of Jim Crow, the structure would collapse.
III. Criminal Rights Cases
A.
Lynching
X.
XI.
6. What emerges from McCabe is the first full blown engagement of the
Court with a state imposed segregation statute that is based on equal
protection grounds and addressed as such. Difference in issue in
McCabe as opposed to Plessy.
i) McCabe Involves luxury cars rather than standard coach cars.
(1) Argument that OK makes is that the statute requires separate
but equal, but when it comes to luxury cars, theres so little
demand by African Americans such that when that rare demand
comes, it would be inconvenient to require railways to have
such cars.
(2) NOTE that no African American had never asked for such a car.
This is the evidence of the bad lawyering (attacked statute
before it went into effect). Mere allegation that African
Americans did want this.
(3) Lower court blows past this standing issue and instead goes
straight to the merits.
(4) HUGHES Starts off talking about merits, and then like RUFFIN
with crocodile tears, dismisses the case.
(5) NOTE that the Justices concur in the result but not in the
opinion.
(6) The remarkable dicta about the merits is remarkable because
seems to say that if the lawyering had been done right, they
would have won the case. NOTE that HUGHES does not mention
Plessy at all in the opinion!!!
(a) HUGHES gets away with this by recognizing that equal
protection protects to individual rights and not group rights.
(b) Substantial equality test replaces the reasonableness test
Suggestion in this opinion that rhetoric allows by inference
is that accommodations need not be equal, but need be
pretty damn close.
(c) Feud with HOLMES Initially planned a dissenting opinion
in this case because thought HUGHES had gone too far in
the substantial equality argument.
(d) HOLMESs concurrence Argued that HUGHES was looking
for an exacting standard of equality.
(e) Basically, HUGHES turns OKs argument on its side and says
that OKs argument (not a lot of demand for the luxuries)
implies that discrimination is occurring.
(f) Sends signal that the Court will take the equality side of the
separate but equal doctrine seriously.
(i)
Bright beacon for the NAACP and that their litigation
strategy has some hope (political strategy had already
been abandoned).
(ii)
WILSON federalizes Jim Crow in 19141915.
Between McCabe and Buchanan v Warley Birth of a Nation. Breakthrough
film that use of the scope of filming, nature of the scenes, how the story was
being told. Changes the possibilities of filmmaking for generations.
a. Problem is that the story told is repatious blacks during Reconstruction
who lust for white women in the South and is drunk. KKK is only salvation
for the South.
b. Adaption of book The Klansmen. In NYC alone showed that it sold 850,000
tickets.
c. Reason for its success was that it received quasi endorsement of President
(screened at White House).
MY NOTES
o What
DAYs opinion is
sloppily drafted.
- This case was
planned and litigated
perfectly. Shows the
NAACP what it can do
if it carefully
strategizes.
- Real importance
White desire to
segregate moves from
zoning ordinances to
private covenants (not
struck down until Shelley
v Kraemer).
- Message
Questions of
substantiality of
equality and
deprivation of rights
can be litigated and
resolved under the
constitutional schema
the Court is prepared
to create and enforce.
-
consideration, may be
freely admitted. But its
solution cannot be
promoted by depriving
citizens of their
constitutional rights
and privileges. P249.
XII.
HOLMES (dissenting)
Never filed.
- Argues that Court
should not be in the
business of resolving set
up cases (BUT shouldnt
he notice that McCabe;
Plessy; Dred Scott are all
set up cases?)
- Strict view of what the
cost to the is.
Buchanan v Warley (1917), p239
a. CLASS ANALYSIS
1. Importance is underscored when compared to McCabe Planned and
litigated perfectly.
i) White plaintiff.
ii) Pitch the focus on the case on the deprivation of a property right.
The most conservative and unassailed view of what equal
protection stands for.
iii) Wants to make sure that black buyer wants to buy it to live in it in
order to trigger the ordinance. Court falls for it hook, line, and
sinker.
2. DAYs opinion is sloppily drafted.
3. Real importance is not that it struck down segregation ordinances, but
instead that white desire to segregate moved from zoning ordinances
to private covenants that are not struck down until 1948 (Shelley v
Kraemer and Hurd v Hodge). Shows that careful litigation strategy can
win for the NAACP and the NAACP triples its membership in one year.
4. By the late 1920s Movement to get money from Progressives to
engage in direct frontal attack on Jim Crow.
5. DISSENT/HOLMES Never filed.
i) This is a set up case and we should not resolve set up cases.
McCabe, Plessy, Dred Scott. This is probably something he would
say in front of his colleagues.
ii) Strict view of what the cost to the plaintiff is.
6. As soon as race enters the picture, technicality flies out the door.
7. Remember 14th at least stands for the rights in Civil Rights Act of
1866.
8. Supreme Court is saying that these cases of question of substantiality
of equality and deprivation of rights can be litigated and resolved
under the constitutional schema we are prepared to create and
enforced.
9. What happens is that the charge (NAACP) is delayed because these
cases improve economic dislocation and changes behavior and forces
reorientation of strategy. WWII also intervenes.
XIII.
Cases for Friday Gong Lum raises question of if Chinese girl can be
classified as colored. In these cases, the important aspect is the rhetoric.
Patterns of Jim Crow justice.
a. Note the evidentiary tools.
b. What moved the Court is its disgust.
c. Court is saying things that otherwise would have been inconceivable at the
turn of the century.
d. Must note the changes that occur between the seminal cases (e.g.,
between Brown v Board of Education and Plessy v Ferguson.
MY NOTES
o Buchannan is clever because picked white Ps property
rights- capitalizes on Lochner and Yick Wo
o Clearly this ordinance was unneeded (because no one
was going to sell their home to a black person
anyways), so they were only passing these ordinances
for votes- so that these politicians could brand
themselves as anti-black
o What did you think of Justice Holmes circulated but
unfiled opinion on p. 327
o The threat of violence was so common and pervasive
that this ordinance was just window dressing
Moore v. Dempsey
Moore v Dempsey
(HOLMES 1922), p252
Based on Frank v
Mangum If a trial is
Background These
cases start to attract
controlled by public
passions and is a farce,
then deprives s of
constitutional rights.
- Big obstacle for
HOLMES granting habeas
corpus here relying on
Frank is that cannot get
habeas corpus relief if
complaining about
evidentiary rules or trial
problems. If you have
had a trial and there
have been corrective
processes, then due
process requirements
have been fulfilled.
- NOTE that it is only
the essence of due
process that is
required.
- HOLMES gets out of
this two ways 1) Finds
that if the trial was a
farce then jurisdiction
was ousted. If the trial is
so mob dominated then
it is as if nothing
happened and therefore
prisoners are being
unlawfully held. 2)
Neither lower court
provided adequate
correction. Not clear if he
is overruling Frank here.
international attention as
to the carriage of
Southern justice.
- Local officials had to
try and show the
integrity of the system.
- NOTE the sarcasm
that HOLMES has for the
justice that was carried
out by the lower court.
- McREYNOLDS begins
by questioning the
reputability and the
credibility of the
witnesses.
- NOTE that
McREYNOLDS dissent is
cut and pasted from
Frank. Thus, not very
convincing.
McREYNOLDS dissent
This is Frank (lower court
did provide corrective
processes and thats all
that needs to be shown).
Fear of opening the
floodgates.
XIV.
Moore v Dempsey (HOLMES 1922), p252 Held that the trial of five
African Americans under the threat of mob lynchings deprived them of their
constitutional rights to due process.
a. ANALYSIS
1. Mob would have lynched the defendants but the localized committee
investigating the matter promised justice.
2. Trial was 45 minutes long with no witnesses for the defendants and the
jury was all white.
3. Political upheaval and public pressure forced the Governor to set an
execution date.
viii) Became cause celebre because the whites involved and the
involvement of the National Guard, and brevity of the trial.
(1) Newspapers evaluating criminal justice system Just as racist
as the other whites. Round of self-congratulation in the local
papers that there was no lynching.
(2) Same thing happens in Scottsboro Boys cases. Local officials
performed admirably in assuring both the safety of the
prisoners and the integrity of the trial system.
(3) Impossible to imagine how biased the Southern criminal justice
system was.
(4) 499 Cases from Alabama and MS with closing arguments
that should be hung and be hung in a lawful way because
they killed a white mans black man.
(5) Principal cause of lynching Perpetuation, particularly by black
men, of the hideous crime of rape.
4. Problem for the majority in granting habeas corpus Frank v
Mangum which involved a Jew in Georgia who had been accused of
rape and suffered a mob dominated trial who sought habeas corpus
and who was denied. The ground of denial in Frank that HOLMES must
confront in Moore is Frank says that you cannot get habeas corpus
relief if complaining about evidentiary rules or trial problems. If you
have had a trial and there have been corrective processes, then due
process requirements have been fulfilled.
i) Remember that in Hurtado said that Due Process Clause did not
require grand jury indictments.
ii) Due Process Clause of 14th does not require states to prohibit selfincrimination.
iii) It is only the essence of due process that is required.
iv) NOTE that HARLAN dissented in both cases.
v) Frank reaffirmed trend of judicial review.
vi) HOLMES finds 2 ways out
(1) Must have a fairly precise legal ground that grants relief in
cases such as this one but does not turn the federal writ of
habeas corpus and does not turn federal courts into parallel
court for appealing all state criminal convictions. Similar to
Bush v Gore in its limited holding.
(a) If the lower courts trial was a farce then jurisdiction was
ousted.
(b) If its so mob dominated so that nothing that goes on can be
taken seriously, then its as if nothing happened and
therefore prisoners are being held unlawfully.
(2) Correction p254 Neither lower court provided adequate
correction. Does he overrule Frank here?
(a) Position in Frank was that it was a farce.
(b) Between that and the failure of the corrective process, the
Court would be inclined to read Moore in subsequent cases
as saying that
(3) McREYNOLDS dissent This is Frank. There was a corrective
process here and we do not need to go further. If we do this, we
will do nothing but this. Basically saying that this is as good as
the process will get. Must expect this degree of tumult to occur.
vii) Mid 1950s Great controversy of WARREN court is whether to
have federal courts review state court criminal proceedings. One of
the first watershed opinions of BRENNAN.
B.