Racism and the Early American Legal Process, 1619-1896
| Published date | 01 May 1973 |
| Date | 01 May 1973 |
| DOI | http://doi.org/10.1177/000271627340700102 |
| Subject Matter | Articles |
1
Racism
and
the
Early
American
Legal
Process,
1619-1896
By
A.
LEON
HIGGINBOTHAM,
JR.
ABSTRACT:
An
understanding
of
the
early
American
legal
process
is
central
to
dealing
with
the
racial
disparities
of
today.
From
1619
to
1860
the
American
legal
process
was
one
which
expanded
and
protected
the
liberties
of
white
Americans—while
at
the
same
time
the
legal
process
became
increasingly
more
harsh
as
to
the
masses
of
blacks,
with
a
steady
contraction
of
their
liberties.
The
United
States
Constitution
sanctioned
slavery,
so
that
under
federal
law
the
slave
"had
no
rights
which
the
white
man
was
bound
to
respect."
Though
the
Emancipation
Proclamation
and
the
Thirteenth,
Fourteenth,
and
Fifteenth
Amendments
significantly
expanded
the
actual
rights
and
options
of
blacks,
nevertheless
from
1865
to
1896
the
legal
process
failed
to
effectuate
the
full
potential
of
the
rights
intended
and
assured
under
the
constitutional
amendments.
A.
Leon
Higginbotham,
Jr.,
has
been
a
U.S.
District
Judge
for
the
Eastern
District
of
Pennsylvania
since
1964.
He
is
also
an
Adjunct
Professor
of
Sociology
at
the
Uni-
versity
of
Pennsylvania
Graduate
School
and
a
Lecturer
in
Law
at
the
University
of
Pennsylvania
Law
School.
He
was
formerly
a
commissioner
of
the
Federal
Trade
Commission;
Vice-Chairman,
The
National
Commission
on
the
Causes
and
Prevention
of
Violence;
Commissioner,
Commission
on
Reform
of
Federal
Criminal
Law;
and
Commissioner,
Pennsylvania
Human
Relations
Commission.
He
is
a
graduate
of
Antioch
College
and
Yale
Law
School
and
has
thirteen
honorary
degrees
(
LL.D.’s
).
2
THE
ANNALS
OF
THE
AMERICAN
ACADEMY
This
Fourth
of
July
is
yours,
not
mine....
The
sunlight
that
brought
light
and
healing
to
you,
has
brought
stripes
and
death
to
me.
-Frederick
Douglass
1
Good
gracious!
Anybody
hurt?
No’m.
Killed
a
nigger.
Well,
it’s
lucky,
because
sometimes
people
do
get
hurt....
-Mark
Twain
2
Under
the
United
States
Constitution
a
black
man
had
no
rights
which
the
white
man
was
bound
to
respect;
...
the
negro
might
justly
and
lawfully
be
reduced
to
slavery
for
his
benefit.
He
was
bought
and
sold,
and
treated
as
an
ordinary
article
of
merchandise
and
traffic,
whenever
profit
could
be
made
by
it.
This
opinion
was
at
that
time
fixed
and
universal
in
the
civilized
portion
of the
white
race.
-Chief
Justice
Roger
B.
Taney
3
NE
of
the
tragedies
of
today’s
racial
polarization
is
that
blacks,
who
have
been
the
major
victims
of
historic
racial
deprivations,
are
now
in
some
strange
way
being
held
account-
able
for
those
very
conditions
which
they
did
not
create,
which
they
did
not
want,
but
were
forced
to
take.
Today’s
paradox
is
that
great
political
capital
is
made
over
busing
or
open
housing
and
the
black crime
rate.
Yet
there
is
scarce
recognition
that
these
problems
have
reached
their
present
volcanic
level
partially
because
of
the
massive
racist
deprivations
which
the
American
legal
system
sanctioned
through
slavery,
in
the
words
of
Chief
Justice
Taney,
&dquo;whenever
a
profit
could
be
made.&dquo;
Further,
few
are
willing
to
recognize
that
today’s
problems
are
also
related
to
the
failures
of
the
American
legal
proc-
ess
to
fully
implement
the
Thirteenth,
Fourteenth,
and
Fifteenth
Amendments
in
the
post-Civil
War
era.
RACISM
AND
LEGAL
HISTORY
4
Because
of
its
appropriate
efforts
to
assure
equal
justice
to
blacks,
the
great
Warren
Supreme
Court
was
steadily
barraged
by
irresponsible
diatribes;
many
of
the
critics
inferred
that
&dquo;all
would
be
well&dquo;
if
the
legal
process
could
turn
back
to
those
good
old
days
of
&dquo;strict
construction&dquo;
and
purported
neutrality.5
As
to
the
racial
issues,
1.
"On
the
Meaning
of
the
Fourth
of
July
to
the
Negro,
1852,"
in
Philip
S.
Foner,
The
Life
and
Writings
of
Frederick
Douglass
(New
York:
International
Publishers,
1950),
vol.
2,
p.
189.
2.
Adventures
of
Huckleberry
Finn
(New
York:
Harper
&
Brothers,
1884),
pp.
306-7.
3.
Dred
Scott
v.
Sandford
,
393,
412
(1857).
4.
This
article
is
a
condensation
of
some
of
the
materials
in
chapters
1-8
of
an
unpub-
lished
monograph,
Race and
the
American
Legal
Process
in
the
United
States
,
by A.
Leon
Higginbotham,
Jr ,
and
David
Rigney,
Es-
quire,
as
used
at
the
University
of
Pennsyl-
vania
Law
School
and
the
University
of
Penn-
sylvania
Graduate
School
of
Arts
and
Sciences.
I
am
greatly
indebted
to
David
Rigney
for
his
scholarly
efforts
in
our
joint
research
projects;
however,
he
is
not
responsible
for
the
conclusions
which
I
have
reached
herein.
In
addition
to
its
development
in
Race
and
the
American
Legal
Process
in
the
United
States
,
the
theme
of
this
article
has
been
fur-
ther
developed
by
A.
Leon
Higginbotham,
Jr ,
in
chapters
in
several
books
including:
"The
Black
Prisoner:
America’s
Caged
Canary,"
in
Hugh
Davis
Graham,
ed,
Violence,
The
Crisis
of
American
Confidence
(Baltimore,
Md:
Johns
Hopkins
Press,
1971),
chap.
7;
"Is
Yesterday’s
Racism
Relevant
to
Today’s
Cor-
rections?"
in
Outside
Looking
In,
monograph
(Washington,
D.C.:
Law
Enforcement
Assist-
ance
Administration,
1-21;
and
Wil-
liam
C.
Menninger
Memorial
Lecture,
Men-
ninger
Foundation,
Topeka,
Kansas,
1969;
also,
"Law
Enforcement
and
Justice,"
in
H.
B.
Yoshpe
and
F.
R.
Burdette,
eds,
National
Urban
Problems
(Washington,
D.C.:
Indus-
trial
College
of the
Armed
Forces,
1970),
chap.
8.
5.
For
a
collection
of
cases
and
articles
in-
volving
the
northern
and
southern
resistance
to
Brown
v.
Board
of
Education,
347
U.S.
483
(1954),
see
T.
I.
Emerson,
D.
Haber,
and
N.
Dorsen,
Political
and
Civil
Rights
in
the
United
States
(Boston:
Little
Brown
&
Co.,
1967),
vol.
2,
pp.
1264-68,
1273-76.
See
also
the
"Southern
Manifesto,"
Congressional
Record
102
(March
12,
1956),
pp.
4459-64,
as
signed
by
nineteen
senators
and
seventy-
seven
representatives.
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