The Law

For centuries, the widespread belief in a hierarchy of human value has fueled the misguided notion that people are either superior or inferior based on the color of their skin. Throughout our nation’s history, this racial bias has manifested in many destructive ways. The structural racism that lurks silently in laws, institutions, and policies has brought harm to families and communities, as the unequal treatment of children and adults of color decidedly affects their health, education, housing, and employment, while limiting their opportunities for success.

One pillar supporting this legacy of racism has been the legal framework forged when the union formed in 1776. Alfred and Ruth Blumrosen, using primary sources and original documents, show that the colonies didn’t unite for freedom. In Slave Nation, they argue that when, in 1772, the High Court in London freed fifteen thousand slaves in England, slaveholders in the colonies feared the emancipation of their own slaves and advocated for independence in order to protect their right to continue the human bondage.1 Racism has been deeply embedded into our legal system since the United States Constitution pronounced that slaves would be counted as only three-fifths of their actual numbers, essentially setting the value of their humanity as less than that of whites.

This underscores a fundamental flaw in our society: the belief in a hierarchy of human value was central to the very conception of the United States. The only way for this fallacy to endure through the ages is with a morally corrupt legal system leading the way, one that has made a hallmark of the use of force to sustain the caste system. Thus, racism is more deeply entrenched in the legal system than in any other of our institutions. As Gail Christopher of the W.K. Kellogg Foundation puts it, “You couldn’t keep people down without making it illegal for them to be up.” Moreover, history is littered with examples of how the tainted legal system bled into not only criminal justice and policing, but also civil law, governance, and public policy.

Racism’s legal legacy

Beginning in the colonial period, Native Americans were methodically forced from their ancestral lands in the East to what became Indian Country west of the Mississippi River—a practice that was formally codified in 1830, when President Andrew Jackson signed into law the Indian Removal Act. After the Civil War, Jim Crow laws were established in cities and states that enforced racial segregation and resulted in unequal access to public services such as education. For decades, scattered throughout the country were “Sundown Towns”—cities, towns, and even neighborhoods within whose boundaries white residents declared that blacks and those of other races were not allowed after dark. The discriminatory restrictions were enforced by threats, violence, and local ordinances.

In contemporary times, whites and people of color have similar rates of illegal drug use, but people of color are incarcerated at higher rates than whites for similar crimes. Racial profiling is so widespread that “DWB,” which stands for “driving while black,” has entered the language. Punishment rather than rehabilitation is the driving force behind policies to achieve “law and order,” code words for the social control of people of color. Video recordings of the police shootings of Walter Scott, Lequan McDonald, and other unarmed black men, along with the deaths in police custody of young blacks like Freddie Gray and Sandra Bland, have broadly raised awareness that having dark skin remains a significant barrier to equal treatment under the law.

Clearly, the legal system plays a prominent role in perpetuating racism. In White by Law: The Legal Construction of Race, Ian Haney López demonstrates how the law has utilized racial hierarchy throughout our history.2 He notes, for example, that in 1790 the US Congress limited naturalization to white persons only, establishing a racial criterion for citizenship that was applied until 1952. And today, there is a racialization of the immigration debate, as Congress remains deeply divided over how to reform immigration policy.

For its part, the US Supreme Court has swayed inconsistently through the decades, by turns supporting and obstructing efforts to achieve racial equity. The landmark decision that opened the way to school desegregation, Brown v. Board of Education of Topeka (1954), was preceded by Dred Scott v. Sandford (1857), the landmark decision that decreed that a slave was his master’s property and that African Americans were not citizens, and by Plessy v. Ferguson (1896), which upheld the constitutionality of “separate but equal.” In 2013, the Supreme Court dealt a severe blow to civic participation by minorities with a ruling that struck down key portions of the Voting Rights Act. In Give Us the Ballot, Ari Berman describes the strong opposition to the Voting Rights Act that has grown since its enactment in 1965. “The revolution of 1965 spawned an equally committed group of counterrevolutionaries,” he writes, noting that these forces have controlled a majority on the Supreme Court in recent years.3

And even when a Supreme Court decision is positive, as in Brown v. Board of Education, subsequent laws can dilute the impact. In fact, the language of the Brown decision itself, which called on states to desegregate “with all deliberate speed,” enabled a vague interpretation of the timeline for implementation. Throughout the country, school funding remains unequal today, with those schools serving black, Latino, Asian American, and Native American children often drawing fewer resources.

Still, at times, the nation has shown the will and courage to address racism. President Reagan issued a formal apology and signed the Civil Liberties Act in 1988, a measure that provided compensation to more than a hundred thousand Japanese Americans, or their family members, who had been incarcerated in internment camps during World War II. Last year, city officials in Goshen, Indiana, sought to heal the wounds of the past by issuing an apology and asserting that the city no longer supports the transgressions that had made Goshen infamous as a “Sundown Town.” In the 1960s, the civil rights movement led to the enactment of a series of laws banning public discrimination. African Americans were no longer barred from certain restaurants, some schools were integrated, and fair housing laws created more living options. In August 2016, the US Department of Justice announced plans to phase out the use of private prisons, concluding they are less safe and less successful at rehabilitating prisoners. This policy change will eliminate an incentive to incarcerate people in order to sustain or increase profit.

Notwithstanding such positive developments, however, the nation still has not fully addressed the root cause of the racism ravaging communities of color: the widespread belief, both conscious and unconscious, in a racial hierarchy of value.

A new vision for our legal system

As part of the W.K. Kellogg Foundation’s Truth, Racial Healing & Transformation (TRHT) enterprise, the Law Design Team is exploring ways to eradicate racism from the nation’s legal system—including the criminal justice system, the civil justice system, the policies and practices that drive both systems, and the laws and regulations that govern every aspect of our nation. What will our legal system look like after its role as a vehicle for fostering racism is acknowledged, and after it has been transformed to ensure that it promotes racial equity and protects the rights of everyone?

The Law Design Team is focused on envisioning a legal system that does not inspire fear in people but, instead, is embraced as a system designed to keep us all safe, regardless of our skin color. The creation of such a system, and the adoption of new policies and practices to enact such a vision, will take us a long way toward building a society that cherishes our common humanity. Following are several key elements of the Law Design Team’s vision:

• The diversity of the law enforcement community should reflect the diversity of the population as a whole, particularly within communities of color. Bringing a full range of perspectives to bear in difficult situations would contribute to more equitable outcomes.

• Community members should believe that they can resolve issues informally or through conflict resolution, rather than depending exclusively on the courts. Residents would then feel that they are a part of the legal system, rather than clients of it.

• More equitable standards should define the use of the terms “legal” and “illegal” in regard to immigrants.

• A violent and dangerous criminal should be differentiated from someone engaged in bartering or trading on the streets for economic survival. (Eric Garner was selling loose cigarettes when he was accosted and killed by police officers in New York.)

• Understanding unconscious bias should be a key goal of the training provided to all law enforcement officials. While some of these officials may hold racist beliefs, their actions are likely byproducts of a society rampant with mistrust and misconceptions related to race.

• Law schools should make the history of racism in the United States, and especially racism in all aspects of the legal system, a key subject area, and institutions that accredit lawyers should take attitudes on race into consideration as part of the certification process. Moreover, law school should be made more affordable, and barriers to entry should be reduced.

Under this new vision for our legal system, legislative proposals would undergo an equity impact assessment similar to existing environmental impact assessments. There would be a greater recognition of the role that mental illness plays in criminal behavior. There would be no private, for-profit prisons or other predatory institutions that incentivize incarceration. All citizens would view our legal system as delivering justice, rather than punishment. More money would be spent on counselors in schools than on police officers. We would have sensible gun control laws, and all states would uniformly define hate crimes. All people would have access to free legal representation in civil matters, and access to high-quality legal representation in criminal matters would not be based on ability to pay. Economic status would not determine how long someone stays in jail.

This new legal system envisioned by the Law Design Team would lead to greater stability in communities and families, significantly narrow economic inequality, substantially diminish negative racial stereotypes, and create the conditions that would enable us to live in a more harmonious and mutually respectful environment.n

Notes

1. Alfred W. Blumrosen and Ruth G. Blumrosen, Slave Nation: How Slavery United the Colonies and Sparked the American Revolution (Naperville, IL: Sourcebooks, 2005).

2. Ian Haney López, White by Law: The Legal Construction of Race, rev. ed. (New York: New York University Press, 2006).

3. Ari Berman, Give Us the Ballot: The Modern Struggle for Voting Rights in America (New York: Farrar, Straus, and Giroux, 2015), 10.

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