# 7 Class: Race--2-27-12

2-27-12

Lecture # 7: Law & Social Policy: Race

1. Reading (60 words) (Judith Peoples)
His son is excluded from the school where the sons of Europeans come to be educated. At the theatre, any amount of gold could not buy him the right to take his seat beside his former master; in hospitals he lies apart. The black is allowed to pray to the same God as whites but not at the same altars. Tocqueville 402

404-408: difference between the left and right banks of the Ohio. Read in Class # 3 by Nicholas Laughlin and John Brown:  begin the class with reading from pages 405-408. On page 405 begin with "But the truth of this..." and read through the first 4 paragraphs on 406 ending with '.... the proceeds of their work.'  Resume reading at page 407 with the words "The influence of slavery..." and continue through the first two paragraphs on page 408.

2. Summary of Class #6: The Death Penalty (in 250 Words or Less)

In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty. Here’s what we’ve learned:

In 1972 the Supreme Court ruled that the death penalty, as administered in the United States, was unconstitutional. Numerous reasons were cited but none commanded majority support. It is fair to say that the animating themes of the decision were that the death penalty, as administered, was illegal because it was: (1) cruel and unusual punishment (with two justices believing that death penalty was cruel and unusual punishment per se) and (2) arbitrarily applied. 74. While the death penalty was too broken to use, it was not too broken to fix. In 1976, the court declared it was fixed though incorporation of a guided discretion template crafted by the American Law Institute as part of the model penal code. In 2009, the ALI withdrew its support for the template it created and said it doesn’t work. Since reinstatement of capital punishment, the Supreme Court has used the 8th amendment to outlaw execution of mentally retarded and juveniles and limited the class of crimes eligible for the death penalty to aggravated murder and treason. 173 words


3. Lecture #7: Race. DV 5 minutes
Tocqueville assessment of the race problem in the United States (pp398-426) is grim. If Tocqueville were a biblical prophet, he would describe Slavery as American’s Original Sin—its’ Fall from Grace, the reason for its eviction from the Garden of Eden. He predicted violence in the South if freedom were not granted to Negroes and an abuse of freedom by Negroes if it were. He thought slavery was cruel to the slave but fatal to the master; that slavery was abolished in the interest of the whites not the Negroes.

[“Slavery in the United States is destroyed in the interest, not of the Negroes, but of the whites.” P 403. As further advances were made, people began, therefore to perceive that slavery, as cruel as it was for the slave, was fatal to the master.” P 405.]

He had a cynical and bleak prediction for the future:
“The Negroes may remain slaves without complaining but once they join the ranks of free men they will soon be indignant at being deprived of almost all the rights of citizens and, not being able to become equals of the whites, they will soon declare themselves their enemies.” Page 423.

What would Tocqueville have thought about the election of Barak Obama? What do we think about the election of Barak Obama? Will events subsequent to the election of America’s first African American president prove or disprove Tocqueville troubling predictions? Does the election of President Obama conclusively prove that Tocqueville was wrong? Or has Mr. Obama’s term as president exacerbated racism and perhaps given it new cloaks and new daggers to continue its iniquitous work? And has racism enlarged its scope in the last many decades to take in new ethnic and religious groups?

Our focus in this Class #7 is race; especially in the context of public and private education. We are interested in the outcome of Brown v. Board of Education ruling that school segregation was illegal but given the mandate of this course and its mission we are even more interested in how the court approached the problem and translated a new and compelling social policy into constitutional policy and action. And we are interested in last weeks’ news story that the United States Supreme Court will revisit the legality of affirmative action and perhaps change the current state of the law which allows university’s to take race into account in its admission policies to remedy the past effects of racial discrimination.

The power of the judiciary to declare laws unconstitutional is a special characteristic of the American judiciary. Tocqueville noted its uniqueness among governments and judicial systems. Hamilton and Madison believed the power to declare laws unconstitutional was an essential component of an independent judiciary that would ensure that the civic and political objectives of equality, freedom and liberty could coexist in the republic.

As a legal proposition, it may be said that the constitution is the ultimate source of law in America. As a political proposition, it may be said, as Tocqueville has in fact said it, that social conditions are the ultimate sources of law in America.
Here is a provocative question: can the constitution ever be UNCONSTITUTIONAL? Here’s another, less provocative but quite perplexing nonetheless: does the constitution ever contradict itself? Is it possible for constitution to be inconsistent? If so, what is the judiciary to do with conflicting or inconsistent or outright unacceptable constitutional provisions when exercising its power of judicial review?

Our review of death penalty decisions taught us that even though capital punishment may be expressly authorized in the constitution (by expressly stating the government may deprive a citizen of life and liberty in accordance with due process of law) it may also become cruel and unusual punishment per se or as applied if the evolving standard of decency declares it to be so…Our review of the death penalty cases introduced a more subtle form of conflict within the constitution and that is the requirement of guided discretion in administering the death penalty (Justice Scalia denies any conflict). The constitution requires both objective standards in order to avoid arbitrariness but also requires subjective, judgmental, deliberative and discretionary standards in order to remain just and in accordance with evolving standards of decency that mark the progress of a civilized society. Can you imagine death penalty administration becoming an algebraic equation? Law is not arithmetic. And yet, discretion is eroded with too much guidance and guidance is undermined by discretion.

Racial segregation, indeed slavery, is expressly authorized by the constitution. And while the 14th Amendment was adopted in the 19th century, it was not construed as prohibiting racial segregation until many years later.

So how does the court deal with overruling express constitutional mandates that have become unconstitutional not merely as applied but inherently? We will look to Brown v Board of Education to guide us.



4. Student Assignments

Class Assignments #7:  Race
2-27-12

Readings: Judith P.

1. Nathan B: Dred Scott v. Sandford 60 U.S. 393 (1857)
2. Brad Corbin: Plessy v. Ferguson 163 U.S. 537 (1896)
3. Jacob Giesecke: Brown v. Board of Education 347 U.S. 483 (1954).
4. Zac Ricjards: Korematsu v. U.S. 214 (1944). [Also germane to Lecture #10]
5. Cathy Barnes: The Federalist Papers No. 54 (Madison) on why slaves are counted in the census for purposes of congressional representation pp. 334-338
6. John Brown: Tocqueville “The Position of the Black Race in the United   States” pp.398-426
7. Nicolas Laughlin: Chemerinsky Chapter 9, Section 9.1.1 pp.684-685, 691 (first two paragraphs only), Section 9.3.1 “Race Discrimination” pp. 706-726
8. Molly: affirmative action case accepted by U. S. Supreme Court for 2012 argument.