According to the United States Constitution, “all men are created equal” and recent events have brought the nation closer to that reality. Senator Barack Obama is the ultimate recipient of a combination of the struggles and aspirations of all those heroes who preceded him, including the dream and drumbeat of Dr. Martin Luther King Jr.; and the legal mastery of Justice Thurgood Marshall—from Dred Scott to the Civil Rights Era and beyond. (The Senator’s life preparation, unlike any other presidential candidate in U.S. history, traverses the good and bad; Black and White; poor and rich; American and foreign; grassroots and scholarly; religious and secular. That Obama was born in Hawaii, spent time in Indonesia, grew up in Kansas, then moved to the Southside of Chicago, have given him a well-rounded grasp to be able to manage the tremendous task he is about to undertake—from presumptive nominee, possibly to the presidency. He is also a constitutional lawyer.)
After the Constitution came the Bill of Rights, and when legal slavery ended, discrimination rose up in various forms, and by various names including segregation, jim crow, reconstruction and institutional racism. The latter is built slowly, insidiously and at a constant pace that can go on endlessly, unnoticed, untouched and seeping into the fabric of society. It builds at a constant pace over long periods.
The “equal-ness” to which all men (and women) are guaranteed—not only by law, but by right—is only as meaningful as the ability of those in power to live by it themselves, and to enforce it so that others can enjoy its full meaning and protection. Justice Thurgood Marshall, the greatest constitutional scholar of the 20th century, had the ability to extract and convey a meaningful and practical application of every life, from the text of the Constitution, and relate it to the wrongs that were wrought from the same document. (Whereas, some saw the glass half empty [a non-existent reality], Marshall saw the reality of the glass half full).
Throughout the centuries, the Constitution has sometimes been regarded in its original intent, but Marshall saw its evolution and the reality of its present status when he stated, “When contemporary Americans cite ‘the Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct over two centuries ago.”
From Congressman John Conyers’ House Resolution (H.R.)-40 and Silis Muhammad’s U.N. petition, to Randall Robinson’s, “The Debt” and Councilman Bernard Parks’ resolution supporting H.R.-194 calling for an apology for slavery, these measures are all in some way challenging the residual effects of what the Constitution and the law were complicit in afflicting on an entire people for centuries. Even the balance of power was not so balanced after all, fairness notwithstanding, the law has evolved. The following reveals the past, present and a vision of the future.
THE LAW VERSUS THE CONSTITUTION
The Amistad Decision (THE UNITED STATES VS THE LIBELLANTS AND CLAIMANTE OF THE SCHOONER AMISTAD). A group of Blacks who had been kidnapped from Africa and sold into slavery took over the ship, “the Amistad” on which they were being transported along the coast of Cuba around 1839. The navigator deceived the Africans, who thought they were heading back to Africa, and steered the ship to the United States where they were taken into custody. In 1840, a federal court in Connecticut found that the transporting of Africans across the Atlantic had been illegal. However, the U.S. appealed and the matter eventually reached the U.S. Supreme Court which affirmed the lower courts’ ruling on March 9, 1841, and the Africans traveled home the following year. (A few years ago, Debbie Allen co-produced a movie based on the events of the historical schooner, “Amistad.”)
[AMENDMENT XIII: ABOLITION OF SLAVERY – 1865]
Dred Scott (DRED SCOTT VS JOHN SANDFORD) Historically noted as one of the most insidious decisions of the U.S. Supreme Court. In 1857 the Court stated (brief meaning), “Any person descended from Black Africans, whether slave or free, is not a citizen of the United States, according to the U.S. Constitution.” This was literally interpreted to mean that Blacks were not considered human beings and did not have any rights that Whites had to respect. It further reinforced the three-fifths clause of the Constitution and remained law of the land for almost 100 years until the Brown case in 1954. (Recently, professors and students at one of the nation’s prestigious law schools did an enactment of the Dred Scott case gauging its residual effects relative to the present.)
[AMENDMENT XIV: CIVIL RIGHTS – 1868]
Plessy v Fergusson (HOMER PLESSY VS JOHN FERGUSON) This decision enshrined the “separate but equal” provision of public accommodations by state governments upholding the constitutionality of racial segregation under the Equal Protection Clause. Plessy was a passenger on a train using a coach where —“according to an 1890 Louisiana law” that provided separate railway carriages for Whites and “Negroes” – he was prohibited, even though he had bought a ticket for that coach. He challenged the state law and it reached the U.S. Supreme Court. The Court ruled “separate but equal” accommodations for “Negroes” constituted a “reasonable” use of state police power. One justice said the decision was as pernicious as the Dred Scott’s.
[AMENDMENT: BLACK SUFFRAGE – 1870]
Powell v Alabama (OZIE POWELL, ET AL VS THE STATE OF ALABAMA) The events that triggered this case—known as the “Scottsboro Boys”—occurred when nine Black men were falsely accused of raping two White women. Their convictions were held to be unconstitutional because they were denied (proper) legal counsel in violation of the 14th Amendment’s Due Process Clause. They were only given access to counsel immediately prior to the trial with no time to plan an adequate defense. The U.S. Supreme Court ruled, “The failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.” Subsequently, there was no defense. (This was Alabama in 1932.)
Shelley v Kraemer (SHELLEY ET UX VS KRAEMER ET UX ET AL) This case was consolidated from two cases – one in Missouri and the other in Michigan. However, the ruling had a direct effect on a case in the Los Angeles Superior Court against Frank Louis Drye. (They were among the ranks of a growing number of Black Americans fighting racial housing covenants) U.S. Supreme Court struck down the enforceability of restrictive covenants that denied a person from owning or occupying property based on his/her race. According to the Court, it was prohibited by the Fourteenth Amendment. (Attorneys Thurgood Marshall and Loren Miller argued this important civil rights case before the Court.)
[EXECUTIVE ORDER NO. 8802 Prohibited discrimination in the Defense Industry – 1941]
The Brown Decision (OLIVER BROWN ET AL VS BOARD OF EDUCATION OF TOPEKA, ET AL) Prior to this case, “separate but equal” (segregation) was the law of the land—enshrined, codified and institutionalized by two previous cases: Dred Scott and Plessy. The Brown Case combined five similar cases from different states/jurisdiction into one class action hearing, all NAACP-sponsored. In addition to “Brown,” the other cases were Briggs v Elliot (South Carolina); Davis v County School Board (Virginia); Gebhart v Belton (Delaware); and Bolling v Sharpe (Washington D.C.).
Plaintiffs had accused the system of racial separation, masquerading as “separate-but-equal,” providing “separate” but “never equal” treatment of Black and White Americans and perpetuating inferior services, treatment and accommodations for Black Americans. The U.S. Supreme Court ruled racial segregation was unconstitutional and in direct violation of the 14th Amendment because separate facilities were inherently unequal. Also, the Court stressed that corrective measures should be addressed with “all deliberate speed.”
It was the most important decision in the Court’s history and there were tremendous social implications that still reverberate 50 years later. Not everyone readily accepted it as the law of the land. The so-called rule-of-law was met with resistance at all levels and in high places including public and elected officials in Virginia (a senator), Arkansas (the governor), Florida (the legislature) and Alabama (the governor).
In 2004, legal scholars, Professors Charles Ogletree and Derrick Bell each reflected on the “Brown” case in “Reflections on the First Half Century of Brown v Board of Education” and “Brown v Board of Education and the Unfulfilled Hopes for Racial Reform,” and those books would not have been necessary or possible had the “Brown” case done all that Marshall had envisioned it would do—strive toward a more perfect union.
[EXECUTIVE ORDER NO. 9981 Ended segregation in the Armed Forces of the United States – 1948]
Loving v Virginia (RICHARD PERRY LOVING, MILDRED JETER LOVING VS THE STATE OF VIRGINIA) Plaintiffs Richard Loving was White and Mildred Jeter was Black. They were residents of Virginia but were married in Washington D.C. because of the Racial Integrity Act of their home state that banned marriage between a White person and a non-White person. They returned to Virginia after being married and were charged though they were married in another jurisdiction. They pled guilty, received a suspended sentence on the condition that they leave the state. The trial judge proclaimed, “Almighty God created the races White, Black, Yellow, Malay and Red, and He placed them on separate continents. But for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.”
The U.S. Supreme Court disagreed and stated, “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race.” (Mildred Jeter Loving recently died at the age of 68.)
EXECUTIVE ORDER NO. 10730 Ended segregation in Little Rock’s (Arkansas) Central High School – 1957]
Civil Rights Act(s) Though there were Civil Rights Acts of 1860 and 1875 that legally gave equal rights guaranteed by the Constitution to all Americans, it was not until massive marches, protests and sit-ins of the 1950s and 1960s accompanied the demand for the rights, some enforcement followed. The Civil Rights Act of 1964 was subdivided into 11 titles from Title I to Title XI covering the fundamental activities that had been arbitrarily denied Black people for centuries including voting, public accommodations, employment, and the courts. Unlike most of the previous acts, the President took an active part in its declaration and announced the signing of the bill to the nation on television.
EXECUTIVE ORDER NO. 11053 Authorized the use of federal troops in integrating the University of Mississippi – 1962]
The Bakke Case (REGENTS OF THE UNIVERSITY OF CALIFORNIA VS ALLAN BAKKE) This case arouse after Bakke, a White student was denied admission to the UC-Davis Medical School after Blacks students, with similar scores, were placed ahead of him. There was a special program for economically and/or educationally disadvantaged applicants and several White students, including Bakke, applied but were all rejected. He wrote a letter to the Dean claiming the program amounted to a racial and ethnic quota, to no avail. So he filed a lawsuit against the university. It reached the U.S. Supreme Court that held that while affirmative action systems are constitutional, a quota system based on race is unconstitutional. However, the ruling affirmed the constitutionality of affirmative action programs giving equal access to “minorities.”
Grutter v Bollinger (BARBARA GRUTTER VS LEE BOLLINGER, ET AL) The case of Grutter from the University of Michigan Law School had shades of the Bakke case 25 years before. Grutter was rejected by the law school and she filed suit alleging that the university had discriminated against her on the basis of race in violation of the 14th Amendment of the Constitution and Title VII of the Civil Rights Act of 1964. The U.S. Supreme Court ruled the university law school admissions program that gave special consideration for being a certain racial minority did not violate the 14th Amendment. Justice Sandra Day O’Connor stated, “The path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity.”
Obama’s closeness to becoming the first Black President of the United States—has devoured the “originalism” or strict adherence to the original “text and meaning” of the Constitution, as espoused by at least two current justices of the U.S. Supreme Court. According to the civil rights and social activism of Dr. King Jr. and the legacy of Marshall, who reportedly said, “The government they (the Framers) devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights we hold as fundamental today.”
Another legal scholar, Judge A. Leon Higginbotham, Jr. remarked in the epilogue of his book, “In the Matter of Color,” referring to a conversation he had with Chief Justice Earl Warren (who led the Court during the “Brown” decision), “The impact of our heritage of slave laws will continue to make itself felt into the future. For there is a nexus between the brutal centuries of colonial slavery and the racial polarization and anxieties of today. The poisonous legacy of legalized oppression based upon the matter of color can never be adequately purged from our society if we act as if slave laws had never existed.” Obama has shattered many of the myths.
“Legends” is the brainchild of Danny J. Bakewell Sr., executive publisher of the Los Angeles Sentinel. Every week it will highlight the accomplishments of African Americans and Africans.