RACE AND ETHNICITY
America was founded on two horrific examples of racial inequality that continue to stain the historic record: the slavery of African Americans and what many historians deem the near-genocide of Native Americans (Baptist, 2016; Dunbar-Ortiz, 2015). What is sometimes forgotten in remembering these two historic monstrosities is that American law at the federal, state, and local levels helped them to happen.
Regarding slavery, Article I of the U.S. Constitution allowed slaves to count as three-fifths of a person for electoral purposes. Earlier, the various colonies developed a body of so-called slave law that, among other things, regulated the buying and selling of slaves and stipulated that slaves could not own property or even marry (Friedman, 2004). In the South, a key aim of the criminal justice system was to help prevent slaves from escaping and to punish those who did try to escape (Walker, 1998). In 1850, the U.S. Congress passed the Fugitive Slave Act, which made it a federal crime to help slaves escape and to help escaped slaves remain free. Six years later, the U.S. Supreme Court ruled 7-2 in its notorious Dred Scott case that slaves and free blacks were not U.S. citizens and thus did not enjoy the legal protections given by the Constitution to citizens. The majority opinion said in part that African Americans have “for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race . . . ; and so far inferior, that they had no rights which the white man was bound to respect” (quoted in Burns, 1998:282). After the Civil War ended slavery, the South adopted the so-called Black Codes, which discriminated against freed slaves in many ways. Reconstruction in 1866 eliminated these codes, but legal racial discrimination and segregation returned to the South after Reconstruction ended in 1877.
Turning to Native Americans, American law provided the foundation for the activities over many decades that took land away from Native Americans and, worse, caused the deaths of untold numbers of their ranks. These efforts reduced the numbers of Native Americans from about 1 million in the early 1600s, when European settlers first arrived to these shores, to less than one-fourth that number by 1900, a fraction of what would have been expected through normal population growth (Venables, 2004). Beginning in the late eighteenth century, government authorities coerced Native Americans to sign legal treaties, in which they gave up their land and agreed to be confined to reservations (Samuels,
2006). The Congressional Removal Act of 1830 enabled the forced relocation of Native Americans from the Southeast to west of the Mississippi River. This relocation took the form of the heartbreaking Trail of Tears, as the relocated Native Americans had to walk for hundreds of miles, without thousands dying en route. In 1903, the U.S. Supreme Court ruled in Lone Wolf v. Hitchcock that Congress could nullify the land treaties and take land without compensation from Native Americans (Wildenthal, 2002).
These short summaries of African Americans’ and Native Americans’ histories only begin to illustrate the many ways that American law reinforced their maltreatment and subjugation. But as these summaries demonstrate, these two groups’ distressing histories cannot be fully understood without appreciating the role that law played for many decades in the human suffering they experienced.
American history is replete with many legally caused injustices against other racial and ethnic groups. For example, federal legislation in 1882 banned immigration from China, and several states back then banned marriages between Chinese and whites (Friedman, 2004; Lee, 2003). During this era, fear of and hostility toward Chinese immigrants and African Americans fueled laws that banned opium and cocaine (Musto, 1999). Whites irrationally feared that the Chinese were using opium to lure young white children into sexual slavery and that African Americans who used cocaine could acquire super strength and become invulnerable to bullets. During the 1930s, fear by whites that marijuana use would make Mexican Americans rape and murder whites fueled federal legislation that banned marijuana use.