White Men's Law, page 1
White Men’s Law
Books by Peter Irons
The New Deal Lawyers
Justice at War: The Story of the Japanese American Internment Cases
The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court
Justice Delayed: The Record of the Japanese American Internment Cases (edited, with an introductory essay)
May It Please the Court (four volumes of edited and narrated excerpts of SupremeCourt oral arguments from original audio recordings, with accompanying books of transcripts)
Brennan vs. Rehnquist: The Battle for the Constitution
Jim Crow’s Children: The Broken Promise of the Brown Decision
A People’s History of the Supreme Court
War Powers: How the Imperial Presidency Hijacked the Constitution
God on Trial: Dispatches from America’s Religious Battlefields
The Steps to the Supreme Court: A Guided Tour of the American Legal System
White Men’s Law
The Roots of Systemic Racism
PETER IRONS
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press
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© Peter Irons 2022
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You must not circulate this work in any other form and you must impose this same condition on any acquirer.
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CIP data is on file at the Library of Congress
ISBN 978–0–19–091494–3
eISBN 978–0–19–091496–7
DOI: 10.1093/oso/9780190914943.001.0001
This book is dedicated to
Eleanor Holmes Norton
Henry “Hank” Thomas
John Lewis
Rev. James Lawson
Philip Randolph
These remarkable people each offered me guidance and inspiration during a critical period of my life, setting me on a course for social justice on which I am still traveling. Mentors and models, they each exemplify the challenge set by Horace Mann in 1859, exhorting the graduates of my alma mater, Antioch College, “Be ashamed to die until you have won some victory for humanity.” Their many victories for humanity should inspire us all, as they have me.
Contents
Preface: Some Words about Words
Prologue: “They’ve Got Him!”
1.“Thirty Lashes, Well Laid On”
2.“Dem Was Hard Times, Sho’ Nuff”
3.“Beings of an Inferior Order”
4.“Fighting for White Supremacy”
5.“The Foul Odors of Blacks”
6.“Negroes Plan to Kill All Whites”
7.“Intimate Social Contact with Negro Men”
8.“I Thanked God Right Then and There”
9.“War against the Constitution”
10.“Two Cities—One White, the Other Black”
11.“All Blacks Are Angry”
12.“The Basic Minimal Skills”
Epilogue: “Rooting Out Systemic Racism”
Source Notes and Suggested Reading
Index
Preface: Some Words about Words
What Does “Systemic Racism” Mean?
fair question for a book on the topic. My short answer (a longer answer is this book itself, to be not quite facetious) stems from the fact that every social system (often defined by national boundaries, as in “the American system”) is made up of separate but interlinked and interdependent institutions, both public and private, that are designed to meet one or more needs of the public; the most important include education, business enterprises and employment, government at all levels, healthcare, the legal system (including policing, courts, and imprisonment), and even religion.
Each of these institutions, from their inception in colonial times (and modeled, with adaptations, on the English institutions the colonists brought with them) was established, maintained, and perpetuated by White men, who have never constituted a majority of the American population; as of January 2021, non-Hispanic White males numbered 102 million in a total population of 330 million, less than one-third. White men, of course, had completely dominated the parallel institutions in England, and the colonists had no thoughts of relinquishing their control of power; it hardly entered their minds. One institution, however, prompted the White men who controlled colonial governments to codify in law their complete control of an important form of “property” on which the colonial economy relied, especially in the agricultural South: Black slaves who could, as the Supreme Court later ruled, be “bought and sold as an ordinary article of merchandise.” Every social and political institution in colonial America either excluded Blacks entirely, or subjected them to discrimination in the allocation of benefits such as education, without which Blacks could never escape poverty. Barring the education of Blacks by law, as most southern states did, was the paradigm of systemic racism, continuing with inferior Jim Crow schooling, exclusion from jobs requiring verbal and numerical skills, and consignment for many to lives in decaying inner-city ghettos, with “law and order” enforced by often racist police, prosecutors, and judges. This virtual millstone around the necks of generations of Black Americans has made the effects of systemic racism a continuing national crisis.
Even the adoption of a Constitution and Bill of Rights designed to govern “We, the people of the United States” did not change any of the institutions that excluded or discriminated against Blacks (and White women). And not even the end of slavery and promises in the Reconstruction constitutional amendments of “equal protection under the law” elevated Blacks to the legal or social status of Whites, as victims of a social system and its component institutions that rewarded Whites and punished Blacks for their skin color alone.
Social institutions, of course, are not “real” in any material sense. They are composed of individuals who set their policies and practices, and others who implement them. Over time, as individuals come and go (through death or retirement), and as social and political movements arise in response to factors such as immigration, technology, and economic upheaval, the goals of institutions change. But long-established and entrenched policies and practices remain, particularly at lower levels of decision-making, in which racial bias, both implicit and explicit, is common (and often unremarked) in dealings with customers, clients, and students. The many studies that have documented the discriminatory effect of these biases rebut the claims that shift blame to “a few bad apples” (such as racist cops) who violate the professed “color-blind” policies of their institutions. But the “bad apples” are in fact the poisoned fruit of institutions that fail to recognize the racism at their intertwined roots and whose institutional cultures (like the “blue wall of silence” that protects racist cops from exposure and discipline) are slow to change, even as the broader society responds to the demands of racial and ethnic minorities for equal status with the shrinking White majority. Growing in size and strength since the 1950s, the civil rights movement launched legal and political attacks on school segregation and racist denials of voting rights that forced most institutions to shift from exclusion to inclusion of Blacks and other minorities, at least as official policy.
But the damage inflicted on Blacks by these institutions, and the social system as a whole, had already been done. Despite the good intentions of reformers, systemic racism had placed Blacks well behind Whites in measures such as education, employment, life expectancy, and access to healthcare. Redressing those disparities will require, in my opinion, a multigenerational effort to “root out systemic racism” in all public and private institutions, as President Joe Biden has stated as a primary goal of his administration. As this book recounts, the grip of “White men’s law” on Black Americans has persisted over four centuries and will be difficult to dislodge. This challenge was well-expressed in 2018 by the U.S. Conference of Catholic Bishops, an institution that has pledged to combat racism in all its forms: “Today’s continuing inequities in education, housing, employment, wealth and representation in leadership positions are rooted in our country’s shameful history of slavery and systemic racism.” But with Americans now bitterly divided over issues of racial justice, systemic racism will continue to disadvantage those who were once legally designated the “property” of White men. To be blunt, the cold hands of dead White men still maintain, through the laws and institutions they created and perpetuated, their grip on power and their legacy of White supremacy, however much disavowed by today’s vote-seeking politicians. To deny the persistent reality of systemic racism, as traced in this book over four centuries of American history, makes the deniers part of the problem, not of its long-term solution.
Who Is “White” and Who Is “Black”?
Every author who addresses racial
Most people know that racial categories are not totally discrete. And some recognize that such categories are socially constructed, acknowledging the obvious overlap between races, such as mixed-race people, but allowing people (particularly in filling out census forms) to identify themselves as “one-race” persons. For example, in the 2010 U.S. census, 97.1 percent of respondents checked the “one race” box. The census found that 72.4 percent of respondents claimed to be only White, 12.6 percent identified as Black, 4.8 percent as Asian, 0.9 percent as Native American or Alaskan Native, and 0.2 percent as Native Hawaiian or Pacific Islander. In addition, 6.2 percent checked “Other,” with no indication of what “other” race they might be. That leaves 2.9 percent (roughly one out of thirty-three respondents) who identify as “two or more” races, or mixed-race.
But there are at least two problems with these numbers. One is that most of those who identify as mixed-race base that on going back just one or two generations, that is, to their parents or grandparents, with more than one race among them. However, studies by geneticists, going back many more generations, show that some 6.9 percent of Americans are mixed-race, although 61 percent identify as one-race on census forms. Another study showed that 12 percent of Whites in South Carolina and Louisiana had African ancestry, and that 23 percent of Blacks in those states had White ancestry, obvious consequences of either consensual or forced sex between Whites and Blacks.
In fact, going back nine generations, or roughly two hundred years, gives each of us 512 direct ancestors. Studies show that the average White American has at least one Black ancestor among these 512, and at least one Native American. Dig the generational tree to its roots, of course, and we are all “out of Africa.” The point of these numbers is that virtually every American is technically mixed-race, even those who proudly call themselves “pure” White. Actually, although I’m designated as White, my skin is brown and so is yours, in varying hues from light to dark, with no agreed-upon midpoint to separate races. So why use terms that don’t actually describe our skin colors, none of which is “pure” white or black? Those who adopted them, some four centuries ago, were “White,” the color they associated with virtue, purity, innocence, while “Black” warned of danger, impurity, depravity—terms much preferred by racists rather than, say, “lighter” or “darker” people. And much easier for them to portray dark-skin people as completely lacking in the qualities associated with Whiteness. Racism, in fact, requires this binary division to avoid “pollution” and “mongrelization,” terms often flung by race-baiting politicians of the Jim Crow era (and even beyond). But, to repeat, the colors black and white do not match anyone’s skin color.
A second problem with terminology is that the terms “White” and “Black” to denote racial categories were first used in the late seventeenth century, with the racialization of slavery, to distinguish White slave owners from their Black chattel property. Before that time, hardly anyone considered it necessary to describe differences between people by skin color. After that time, especially in drafting laws governing owner-slave relations, these racial terms became important in ensuring the complete distinction between races, a necessary distinction for slavery’s defenders.
Most racially prejudiced people, I’m sure, have no interest in studies by physical anthropologists and geneticists. But these scientists show that light-skin (read “White”) people emerged only some eight thousand years ago, just a drop in the bucket of the emergence of modern humans of the species Homo sapiens, roughly 350,000 years ago in Africa. In other words, there have been “White” people for only a bit more than 2 percent of the entire time our species has been around; for 98 percent of that time, all humans had dark skin of various shades. I’m not a geneticist, so I won’t delve into the very few genes, out of the roughly twenty thousand we each have, that determine skin color, except to note that geneticists have identified two (SLC24A5 and SLC45A2) that play major roles. These genes, which decrease production of the dark-skin pigment melanin, mutated as people from the Central Asian steppes migrated to northern Europe and Scandinavia. The light-skin genes help to maximize vitamin D synthesis; those migrants didn’t get enough ultraviolet radiation-A (UVA, which comes from the sun) to do that, so natural selection over many generations favored those northerners with light skin, and also favored lactose tolerance (which darker-skin people had less of) to digest the sugar and vitamin D in milk, which is essential for strong bones.
So, in the end, our “race” depends largely on how close our ancestors lived to the equator: those closer to that line got more UVA, and those farther from it made up for getting less UVA by developing lactose tolerance to benefit from the vitamin D in milk. That’s a pretty thin reed with which to construct an ideology of “White supremacy” and to justify the kidnapping and enslavement of darker-skin people through force of arms. But that’s what happened, all because of a handful of genes that determine visible attributes such as skin and eye color, hair texture, and facial features, and despite the fact that White people share 99.9 percent of their genes with Black people and those of other socially constructed races. Unfortunately, privileged White men have seized on that handful of genes to develop an ideology and create institutions whose tragic consequences in racial violence and inequality have prompted this book.
As an addendum, let me note that, just as there are no “Black” or “White” races, the terms “Hispanic” and “Latino” do not denote a “racial” group. In fact, members of this group in Mexico and Central and South America have a wide range of skin color, from very light to very dark, a consequence of sexual mingling between White Europeans, Black Africans brought to South America and the Caribbean as slaves, and indigenous people: Aztecs, Maya, Incas, and Amazonians. In Brazil and Cuba, to which many more slaves were imported than to the United States, many residents are distinctively black in skin color. And many in Argentina and Chile, to which many Germans emigrated, are blond and have fair skin. This book does not primarily focus on Hispanics, but prejudice against them is obviously based on their “brown” skin color as much as language and culture, which vary widely. But whether White, Black, or “other,” Hispanics in the United States encounter prejudice and discrimination, and the resultant inequality, as a direct consequence of the need of many White Americans to reserve racial supremacy and “purity” for themselves. Skin color has long been the defining characteristic by which most people view themselves and others. There would be no need for this book if it were not. But sadly, it still is.
What about the “N-Word”?
The news has recently been filled with articles about journalists, professors, and commentators whose use of what we today refer to as “the N-word” has been called into question. Many of these episodes revolve around issues of authorial agency, of impact and sensibility, and of the different contexts in which that word lands when spoken and written.
I’d like therefore to explain my approach to the use of the word, reproducing it in full in several chapters of this book. Everyone, of course, knows what that word is and what it has meant historically, as a hateful slur on Black people. But that is where agreement ends and where those who agree on its history sometimes disagree on its usage today. For instance, is it any less hateful and hurtful if it’s used in a book, in quotations from people—including Black people—who have used it at some time, even in the distant past? Or is historical exactitude—and insistence on reproducing the historical record exactly as it exists—a sufficient reason to include it as spoken or written when it lands even in this context—and perhaps especially in this context—so harshly to contemporary ears? Should the word be referenced or elided (e.g., “N-word” or “n-----”) since, after all, the reference will be clear to everyone?
