Is The Discussion of Race in Law Separate From History
Ex Parte:
The system of jurisprudence within the United States has had a long history of supporting the every changing social norms of society. As decades ebb and flow along, certain politics, ideas, theories, and doctrines become antiquated. Unlike most disciplines however, The law operates in a manner that requires the person who is reviewing it to take into account the ideas of the day in the determinations of the cases. At the present we exist in a time where social mores are changing. Now Millenials, who the youngest of us were born in 1995, are entering the political and legal fields as the largest voting group and also one to place new burdens and challenges on the justice system as technology and information proliferates at a pace prior unseen.
But the legal profession moves slowly in comparison to other fields. It also does not move in a uniform fashion. The fashion of law makes it operate in a fashion where time knows law only in performance and not in scholarship. Some of the oldest doctrines that were in place before the Mayflower set sail from the British Isles still exist in the United States. Even more interesting is that some of the doctrines that apply here in the United States, no longer apply in most common law jurisdictions. The history of the law itself is a topic that can be talked about for an extended period which I do not seek to go into with this piece.
To front the discussion, it comes from a discussion had with some of my colleagues who attend law school with me. The colleague posited that "[...] this is not a history or social science class, it is a law class about the law as it now. Historical cases that are no longer binding are relevant for the purposes of law school and the legal profession. Now the Civil Rights Cases of the 19th Century are a little more relevant because they still effect how government discrimination and private discrimination are treated with a distinction legally speaking..." In looking at this question it sparks the issue of whether or not the law should be viewed in a vacuum or be looked at in the context of history.
While the law is an anachronism in itself at times, history has had a way of showing why the legal principle change (or fails to change). The changing of the DSM IV by removing homosexuality as a disease was instrumental and striking down anti-LGBT regulation and laws and eventually led to the support of landmark cases such as Lawrence v. Texas (2003) and Obergefell v. Hodges (2015). Historical changes in the sociological scheme have been instrumental in helping with the decision reached in Roe v. Wade (1973). Starting with the sexuality studies of Alfred Kinsey performed in the 1950's it led the way to the the advent of the birth control pill in 1960 and the sexual revolution of the late 1960's and early 1970's.
(Dred Scott, pbs.org)
Race and ethnicity and it's history have also had it's effect on law. The first three landmark cases regarding it in the United States were the famous Dred Scott v. Sandford (1856) and Plessy v. Ferguson (1857) decisions. Less famously, the "Civil Rights Cases" of 1883 also give us the legal basis that has yet to have been overturned. The Dred Scott case led to the promulgation of the 13th and 14th amendments abolishing slavery and granting citizenship rights that were not fully actualized until Brown v. Board (1954) which overturned Plessy and the enactment of the Civil Rights Act of 1965.
History has had a hand in each decision, and merely looking at the cases in a vacuum separate from the law in regards to racial politics is frightening. While neutrality in the law is an ideal, that is all that it merely is: an ideal. This is why when people make the argument of "the Supreme Court is not a political body and hence, should not be politicized" the argument fails because the means of appointments and promulgation of rules and regulations are all based on the politics that conceive such rules.
( source: www.brownat50.org)
Similarly, when people are asked to remove the historical context out of cases, they make less sense. How much sense would it make if we removed the historical context of Dred Scott, then we would never understand why this man is claiming he is free, we would never understand the importance of why where the case was bought (Missouri) is so important to the happenings of what is to come. We would never understand the future implications of what is going on. And even better, we would never be able to use the law in a way to make it equitable for everyone because we would never know where the inequities lie.
It is a scholarly disservice to divorce one from the other and it is also a disservice to state that students in the Law like my shelf should have to divorce myself from having certain feelings. Most people take up their causes in the legal profession to support their beliefs and goals. Whether they want to amass and maintain family wealth by working in the corporate sector or to help effect change by working in the public sector doing litigation work, each person in the law uses the history to frame their own opinions and gain connections to cases that would otherwise just be an onerous reading.
For us to examine race and ethnicity in the legal realm, we must learn that to learn of your past is to empower the changes and the prevention of further inequities. When Justice Thurgood Marhsall read the cases during his tenure at Howard University School of Law from 1930 to 1933, he had to refer to history. It was this history that prompted him to be instrumental in overturning Plessy v. Ferguson in 1954 when he acted as counsel on the Brown v. Board case. Looking at Justice Marshall's ascent to his position in the Supreme Court of the United States was spurred by a career founded by passion that was sparked by the history of injustices which he thought to remedy and became instrumental in doing. In the 32 cases he argued as a lawyer in front of the Supreme Court on civil rights he won 29 of them, spurred on by looking at law and race in tandem with history.
In short, viewing history in a vacuum to the law is problematic to the idea of social change. If we did not understand history, then the law would not move at the pace that it does today. We would still be making decisions that are not based on scientific merit and simple testimony rather than on ascertained fact or evidence. In relation to race and ethnicity, it is problematic to not look to history because two two results can come from the nonfeasance. The first issue is performing the same acts out of ignorance that limit equitable rules for everyone that allow discrimination to proliferate. The second issue is not setting the stage for the law to be an agent of change in the same manner that protesting for Black Lives Matter does. It is erroneous to believe that law should operate in a vacuum by itself and being black and conscious about the history only empowers one to learn the law and how to work in the system to effectively change the prior miscarriages of justice.
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