Racism, Culture, and the Legal Sanction of Inequality and Colonial Rule
(This is taken from the Introduction of a Law Journal Article I’ve been writing, based in part on my LL.M. Thesis, submitted to the Faculty of The George Washington University Law School, Washington, D.C.)
Throughout the history of the United States, membership in “we the people” [1] has been a contested question. “Race,” wealth, religion and gender have been the main criteria upon which that civic membership[2] has been determined.[3] There has been a historical tension between liberal, democratic ideals and illiberal, exclusionary ideologies. Among the bases of exclusion from the American polity, “race” appears as the most glaring and enduring. I am interested in the confluences between American law and culture, as well as Americans’ sense of identity and the idea of “race.” [4] That includes the social dynamics which yield a particular relationship between law and culture, wherein the first reflects the second, while it also influences the same.
Humans, qua social beings, are shaped in profound ways by ideas. [5] Events are important, whereas ideas are the currency through which humans assign meaning to events, as well as to aspirations and community membership. Some ideas, and the attitudes and actions they foster, are resilient, which helps explain the stability of human cultures. Called memes, those ideas –which are transmitted from person to person and lodge themselves in the members of a culture– can have long lives, spanning many human generations. [6] Thus, in principle, it is possible to trace back the core of cultural notions, biases and practices, even several hundreds of years ago and to disparate places. One set of ideas that has shaped American culture revolves around the notion of racial hierarchy, pursuant to which the worth of human beings and their place in the social structures and in the political community hinge upon their “race.” The idea of race, its ubiquity in American history up to the present day, and its role in Americans’ sense of identity are matters still relevant and worth pondering.
The beginning of the journey of race as an idea is usually traced to sixteenth century England. The attention then shifts to the colonial era, in the early seventeenth century. Those points of departure allow for the study of primal circumstances which arguably contributed to shape what is now the United States. By the middle of the eighteenth century, new circumstances contributed to the attraction exerted by liberal and democratic ideas.[7] But those ideas would have to compete with potent exclusionary notions rooted in earlier colonial times and even farther back in time, which in turn would determine in great part the limited fashion in which American society and the dominant groups would be willing to implement the equality creed of the Declaration of Independence. [8] Since then, the American saga has been characterized by the coexistence of liberal and democratic ideas with ideas that support the notion and implementation of a social and civic hierarchy, which enshrines as genuine “Americans” those who feature the ascriptive trait of being “white.”
Since the outset, Americans would thus embark in a journey of exclusion, their illiberal answer to the question of who are the legitimate members of the political community that coalesced in the United States. [9] After all, individuals and cultures often hold contradictory ideas and practices. Also, perhaps no rational notion is “self-evident” to humans qua emotional and pragmatic beings who, in turn, have made theirs illiberal ideas which do not allow much room for a thorough internalization of liberal ones; while qualifications to the principle that “all men are created equal” would be rationalized and articulated in order to maintain the existent sociopolitical and economic order. Before there was a whole ideology under the banner of what is known as “racism,” its predecessors were race prejudice and, before it, tribal distrust or enmity. [10] That is, before race was a circulating concept, there was prejudice toward “others,” particularly in the context of self-proclaimed exceptionalism. [11] It is important to consider whether ideas of exceptionalism require “others” with which to make a favorable comparison.
It is plausible to argue that notions of superiority provided the rationale, not only for the subjugation of Native Americans, but also for the enslavement of Africans. After all, profits –made possible by cheap, abundant land and by the unfree labor of Africans– began to yield considerable wealth. Few things quell moral scruples as profit does. Once exploitation makes wealth possible, all kinds of rationalizations follow, provided that rationalizations emerge as necessary or convenient. [12] Moreover, it seems that humans do not invent on the spot a whole set of ideas in support of bias against other humans or to justify their ill treatment of “others.” Instead, they rely on ideas already in circulation, which in turn are intelligible to a wide portion of their interlocutors, allowing for common ground and tacit understandings.
The displacement and killing of Native Americans, the enslavement of Africans, the mistreatment of Asian and Latin American immigrants, the Jim Crow Era, the acquisition of overseas colonies in 1898 and the subjugation of their inhabitants: All that took place in an ideological context that featured the notion of race and the classification of human beings according to a racialized and racist view of human beings. American law sanctioned all that, and more. [13] There is a continuum here, which remains unbroken to this day, despite changes in circumstances. Bad ideas and cultural maladies die hard. It is striking to identify the persistence of ideas and practices, displaying a permanence and power which accounts for the stability of cultures. [14]
Race has been at the heart of the American schizophrenia of holding illiberal ideas and behavior, as well as a liberal and democratic creed. That seeming contradiction can be understood using Rogers M. Smith’s “multiple traditions approach.” [15] Under that light, it is not at all surprising that societies, as well as individuals, simultaneously hold contradictory ideas and behave accordingly, creating in the process a sense of normalcy that allows the contradictions to become part of their cultural common sense. That way, the contradictions and inconsistencies tend to become invisible, undetected, and unproblematic. It is also important to ponder to what extent the survival of certain ideologies is due to, or aided by, human proclivities, both psychological and cultural, as well as to the cold realities produced by the exercise of power as domination, which appears time and time again as an adversary of empathy and compassion, and a foe of notions of equality and human dignity.
In 1898, the United States of America acquired overseas territories, while making clear its intention of keeping them indefinitely as colonial possessions. Those lands were inhabited with relatively dense populations. Beginning in 1901, the United States Supreme Court issued the Insular Cases, decisions holding that such imperial policy did not offend the Constitution, sealing the fate of peoples with which the members of the Court never had contact. In those decisions, that Court relied on the characterization of those peoples as members of “alien races,” in order to justify treating them as colonial subjects under the plenary power of Congress. The Court thus reproduced and validated a racist view of humanity (there are different human “races” and some races are “superior” to others), creating a doctrine that has enabled to this day the denial to “alien races,” such as Puerto Ricans, of the possibility of self-determination, government by consent or separate nationhood. To this day, the Insular Cases survive through its resilient racialized ideas, which in turn sanction political subordination and colonialism. [16]
By acquiring “overseas” colonies, the United States displayed a tension between the political and economic impetus behind expansionism and imperialism –in an ideological context that includes at its core a racist view and interpretation of social reality, history, and politics– and the official discourse of constitutionalism, which encompasses the notions of equality, political participation, and government by consent. The American imperial policy has been another instance of the carving of exceptions to democratic ideas and practices. The Puerto Rican elites were naïve in expecting a liberal treatment from the United States government, blinded as they were at first by the light of the supposedly liberal institutions and mentality of the Colossus of the North.
Relying on the notion of race and on racial categories to determine who is fit to be a civic member of the nation was not new to the Court, or to the United States government. Indeed, it was already a salient feature of American culture, politics and law. Prominently, in Dred Scott v. Sandford, [17] the Supreme Court ruled that the descendants of Africans, slaves and non-slaves alike, had been excluded from “the people” that declared independence in 1776; as well as from “the people” that enacted the Constitution of 1787. The Court also excluded them from civic membership altogether, holding that they were not “citizens” of the United States. [18] That decision, which the Court and others had thought would put an end to the sectional controversy over slavery, had the contrary effect of exacerbating the differences between abolitionists and those who were intent on the survival of slavery and its nationalization.
One of the outcomes of the Civil War, or the War of the Rebellion, [19] was the formal emancipation of the slaves. The great tragedy of the supposedly freed humans, who saw emancipation as a new beginning, was the rapid dashing of their hopes by a legally-sanctioned regime of inequality, terror, and quasi-slavery, which was explicitly and unapologetically based on the notion of “race” and outright racism. When the United States took Puerto Rico from Spain as a spoil of war, the American-style apartheid had already received its legal benediction. The same justices that decided Plessy v. Ferguson in 1896 would also provide legal clothing to colonialism, beginning in 1901.
Except for the Philippines, the United States still retains the other colonies it acquired in 1898: Puerto Rico and Guam. Puerto Rico is the most populated of the remaining overseas “possessions,” which include American Samoa and the U.S. Virgin Islands, acquired in 1917. Today, the inhabitants of Puerto Rico continue living under the laws of the United States, while the U.S. executive and judicial branches exercise their jurisdiction, as they do in the 50 States. But the residents of Puerto Rico have no political rights and thus do not participate in Presidential and Congressional elections. That makes Puerto Rico one of the last colonies on the planet.
Footnotes
[1] The Declaration of Independence of July 4, 1776, begins by announcing to the world the existence of “one people,” urged by “the Course of human events … to dissolve the political bands which have connected them with another.” The United States Constitution, signed by its drafters on September 17, 1787, begins stating that “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
[2] Citizenship, or civic membership, is a status endowed with what are known as political rights. Citizenship allows humans living in a place organized under a government to participate in the decisions of that polis. That includes, not only the right to vote, but the possibility of holding public office, notably as legislator, judge or as a decision maker in the executive department. See Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History 13–14 (1997). Those who lack those rights enjoy no “full civic membership.”
[3] The United States “has not marched single file down a single straight liberal highway … What has been continuous is a series of conflicts arising from enduring anti-liberal dispositions that have regularly asserted themselves, often very successfully, against the promise of equal political rights contained in the Declaration of Independence and its successors, the three Civil War amendments. It is because slavery, racism, nativism, and sexism, often institutionalized in exclusionary and discriminatory laws and practices, have been and still are arrayed against the officially accepted claims of equal citizenship that there is a real pattern to be discerned in the tortuous development of American ideas of citizenship. If there is permanence here, it is one of lasting conflicting claims.” Judith Shklar, American Citizenship: The Quest for Inclusion 13–14 (1997). Professor Smith stresses that “many Americans through much of U.S. history have not possessed equal political rights.” Civic Ideals, supra note 2, at 14.
[4] The quotation marks used here imply that race is an artificial, although admittedly powerful, cultural construct. There is no such things as “races.” In any event, there is only one, human “race.” The artificiality of “race,” however, seems to be directly proportional to its cultural impact and its effective use by lawmakers, policymakers, and judges. As Kermit L. Hall reminds us, law has been at the center of the historical domination exerted in the United States over their “black” population, those human beings with relatively more melanin whose ancestors were forcibly brought from Africa to be enslaved, and over humans of other groups: “The legal history of race relations is one of the most tragic and complicated stories in American history. There is simply no doubt that white Americans have repeatedly used the law to implement public policies based on racism. Blacks, Chinese and Native Americans have all suffered.” Race Relations and the Law in American History ix (Kermit L. Hall, ed. 1987). Melanin is the broad term for pigments produced by the human body, which are responsible for skin, hair, and eye pigmentation. Albinos have very little or no melanin. Everyone else’s bodies produce those pigments in different degrees. Hence the differences in pigmentation.
[5] A culture is comprised of a set of ideas, which in turn cause their holders to behave in particular ways, thus bolstering their sense of a shared collective identity. David Deutsch, The Beginning of Infinity: Explanations that Transform the World 369 (2011). Ideas are information, stored in brains and affecting human behavior. Id. Most ideas that define the world’s cultures, including the inexplicit or unarticulated ones, have a long history of transmission –analogous to the transmission of genes– from one person to another and from generation to generation. Like genes, some types of ideas are replicators. Called memes, those ideas sometimes fail to replicate themselves perfectly –they are usually modified, however slightly, by those who receive the information before transmitting it further. In that way, ideas –and cultures– evolve. Id. For Deutsch’s full exposition of the evolution of cultures, see id., at 369–397. A legal scholar defines meme as “a unit of cultural information, that is to say, a concept or idea that is shared within a population of individuals through social (as opposed to genetic) transmission.” Simon Deakin, Evolution for Our Time: A Theory of Legal Memetics 1 (2002).
[6] After all, “[t]he world’s major cultures –including nations, languages, philosophical and artistic movements, social traditions and religions– have been created incrementally over hundreds and even thousands of years.” The Beginning of Infinity, supra note 5, at 369. The word “meme” was first coined by biologist Richard Dawkins. See Richard Dawkins, The Selfish Gene 192 (1976). Dawkins defined it as “an entity that is capable of being transmitted from one brain to another.” Id., at 196. Since then a whole discipline, known as memetics, has developed. Scholars from many fields, including law, have explored the implications of Dawkins’ idea to different aspects of human cultures. The biologist himself had stated that, “ [i]f the meme is a scientific idea, its spread will depend on how acceptable it is to the population of individual scientists; a rough measure of its survival value could be obtained by counting the number of times it is referred to in successive years in scientific journals.” Id., at 194. Memetics raises “the possibility that there are evolutionary mechanisms which are specific to the cultural realm. Here, ‘culture’ is broadly defined to include those human practices (of which law is one) which depend upon the existence of shared knowledge and understanding among a given population of actors.” Evolution for Our Time, supra note 5, at 1.
[7] For purposes of this article, liberalism is the ideology that stresses individual rights and equality. Central to liberalism is the notion that human dignity is boundless –that is, irrespective of nationality, gender or social position. Democracy, or democratic republicanism, is the ideology stressing that governments are instituted to allow individual expression and prosperity and to advance the common good. It includes principles like government by consent of the governed, representative governance and limits to the exercise of power. In the 18th century, republicanism “was a theory of politics that stressed the need for citizens to guard against the corruption that occurred when rulers were not answerable to the citizens.” David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification 12 (2009). For the role of both sets of ideologies in the civic identity of the United States, see Civic Ideals, supra note 2, at 35–36. Liberalism and democracy, however, have had competition from illiberal, exclusionary notions, inasmuch as “liberal and democratic republican ideals have offered few reasons why Americans should see themselves as a distinct people, apart from others.” Id., at 38.
[8] The drafters of the Declaration of Independence famously proclaimed that they “hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” Given that slavery was not abolished until after the Civil War, Professor Jones points out that the United States was “founded on contradiction and compromise.” James M. Jones, Prejudice and Racism 29 (2nd ed. 1997).
[9] In the sixteenth century, the European speakers of the different vernaculars had begun to substitute their primary sense of identification and membership with the larger Christian “community,” a process catalyzed by the Reformation. The “imagined community” of Christendom eventually gave way to multiple, newly imagined “national” communities. The emergence of nations and nationalism has been traced to the invention of the printing press, the Reformation, Martin Luther’s use of the printed word to spread his ideas in languages other than Latin, and the fact that most prints were in the hands of entrepreneurs looking for profit, which prompted them to eventually ditch Latin and embrace the vernaculars of Europe in order to widen their clientele. See Benedict Anderson, Imagined Communities (2nd rev. ed. 2006). What gradually emerged was a sense of identity along linguistic and “national” lines, a process that was taking place while many Europeans were encountering peoples from Africa and America. A sense of identity and contrast based on “race” would emerge with the European interaction with African and Native Americans. The worldviews of those Europeans determined in important ways how they would perceive and treat human beings from other continents. Prejudice was an important component of the uneven, violent contact between Europeans –with their “guns, germs, steel” and their Christian worldview– and the Natives and Africans, who purportedly fitted European notions of “barbaric peoples and heathens” with no proclivity for “civilization.”
[10] Ideology is “the set of perceptions, assumptions, ideas, beliefs, explanations, and values dominant at a given time and place or within particular social groups or movements.” Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico 35 (2001).
[11] Prejudice and racism have both a negative and a positive dimension, inasmuch as they “describe ways in which people devalue, disadvantage, demean, and in general, unfairly regard others. In this sense, they refer to negative attitudes about, and negative treatment of, people who belong to other groups. Prejudice and racism are also concepts that encompass the ways in which people value, advantage, esteem and, in general, prefer and positively regard people who are like themselves or belong to their own group. Therefore, prejudice and racism are processes by which people separate themselves from others who are different in certain ways and attach themselves more closely to people who are like them in certain ways.” Prejudice and Racism, supra note 8, at 7.
[12] Professor Cottrol points out that “the legal history of race in the United States … involves more than the histories of those we have come to call black and white. The law has regulated the statuses of other groups –peoples of indigenous descent, and those whose ancestors came from Latin America and Asia as well,” Robert J. Cottrol, The Long, Lingering Shadow: Slavery, Race, and Law in the American Hemisphere 1 (2013). Thus the importance of studying “the role of law in creating and sustaining systems of racial hierarchy.” Id., at 3.
[13] Slavery was essential to the economy of the colonies, and later of the entire new nation, not only of the South. Morality and liberal notions were no ramparts against keeping slavery, in no small part because everything that affects economic interests is often “negotiable.” Principle gave way to practical considerations. See, e.g., Edmund S. Morgan, American Slavery, American Freedom 5 (1976) (pointing out that the connection between American slavery and freedom includes the use of tobacco profits to finance the American War of Independence, a crop produced with slave labor). Jones asserts: “This country was founded and grew on the back of black labor.” Prejudice and Racism, supra note 8, at 31. The South, both before and after the Civil War, “provided the cotton for Northern mills” and was otherwise vital to the economy of the North, providing “a market for Northern manufacturers, farmers, and financial services.” Williamjames Hull Hoffer, Plessy v. Ferguson: Race and Inequality in Jim Crow America 14–15 (2012).
[14] After all, “the past is a stubborn thing. History can impose burdens on a society long after its members have felt the desire to move on.” The Long, Lingering Shadow, supra note 12, at 211. A psychologist calls attention to Erich Fromm’s concept of a “culture’s social character,” by which it is meant “the shared constellation of personality and character traits disseminating from a society’s dominant modes of inculturation, all of which serve to forge common values, priorities, ethics, lifestyles and worldviews, and even the so-called ‘will of the people.’” John Schumaker, The Personality Crisis (Dec. 14, 2018) in https://newint.org/features/2018/11/01/human-personality.
[15] See Civic Ideals, supra note 2, at 17–18. Since the creation of the United States, and notwithstanding “several major interpretations of American civic identity that have massively influenced modern scholarship,” but which are “deficient in important respects,” id., at 17, there have existed certain “ideological and institutional traditions of political identity … [which] do not define civic status by consent or by universal rights. Instead, they provide elaborate, principled arguments for giving legal expression to people’s ascribed place in various hereditary, inegalitarian cultural and biological orders, valorized as natural, divinely approved, and just. That is why a multiple traditions approach to American political culture is necessary.” Id., at 18.
[16] The United Nations Charter includes among the purposes of the United Nations the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” U.N. Charter, Article 1(2). See also Articles 55, 56 & 73. On December 14, 1960, the U.N. General Assembly issued a resolution declaring that “the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of World peace and cooperation.” G.A. Res. 1514(XV).
[17] 60 U.S. 393 (1857).
[18] Dred Scott, 60 U.S., at 407.
[19] See, e.g., The Long, Lingering Shadow, supra note 12, at 109.
