Vol. 13 No. 7 (July 2003)

RACE ON TRIAL: LAW AND JUSTICE IN AMERICAN HISTORY by Annette Gordon-Reed (Editor). New York: Oxford University Press, 2002. 234 pp. Cloth $55.00. ISBN: 0-19-512279-8. Paper $19.95. ISBN: 0-19-512280-1.

Reviewed by Daniel Lipson, Department of Political Science, Kalamazoo College. Email: dlipson@kzoo.edu .

Throughout our nation's history, few events have captured Americans' attention more than "race on trial." Whether DRED SCOTT, PLESSY, BROWN, LOVING, KOREMATSU, the O.J. Simpson trial, or last month's GRATZ and GRUTTER cases on the University of Michigan affirmative action policies, cases and controversies regarding slavery, segregation, miscegenation, internment, violent crime, police abuse, and affirmative action have struck a chord in the American character.

Most of the cases in Annette Gordon-Reed's RACE ON TRIAL: LAW AND JUSTICE IN AMERICAN HISTORY have been thoroughly examined by legal studies scholars. Indeed, much of the groundbreaking work by legal studies scholars has moved legal scholarship forward by examining what is lost by relying on seminal court cases as the central source of legal data, uncovering the law as it operates in practice after courts issue their rulings and in areas where there are no court rulings. Yet this volume returns to the formal analysis of court cases.

Gordon-Reed acknowledges the important drawbacks in "studying the operation of law – created, practiced, and administered as it is by elites – as a firm guidepost to what is actually going on in a culture" (p.4). Nonetheless, this important critique of an elite-based analysis of formal law is sidelined, as the book focuses on twelve trials.  She defends this formal case method of legal and racial analysis by asserting that "cases – trials in particular – provide critical insights into the values, mores, obsessions, and aspirations (lived up to and not) of members of the community at particular moments in history" (p.4). The remaining chapters could be improved through greater attention to the ways in which a law-in-action approach would supplement or challenge the authors' analyses.

The goals of RACE ON TRIAL are ambitious, but the chapters don't comprehensively "prove instructive in telling us what to hope for and what we must, at all cost, struggle to avoid... and to better chart a course to discover who we are and who we want to become" (p.13). Gordon-Reed also claims that the chapters "help explain where we have been, where we are now, and what our future might be" (p.12). The volume is quite successful in explaining where we have been but – as a legal history book – provides much less in the way of description of where we are now or prediction of what our future might be.

The primary contribution of RACE ON TRIAL is to compile chapters on twelve well-chosen trials that connect individual litigants' life stories with their historical and political context. Compiling analyses of these cases into one volume is in itself a contribution for undergraduate teaching – this book would be a useful addition to courses on legal history, constitutional law, and race and the law. The selections in this volume provide a rich description of the historical, legal, political, and economic context surrounding a wide range of seminal cases in addition to a carefully selected assortment of lesser-known cases.

Howard Jones' chapter, "The Impact of the AMISTAD Case on Race and Law in America (1841)," provides a fascinating analysis of the legal intricacies of "the only instance in history in which captured Africans brought to the New World won their freedom and returned to their homeland" (p.14). Jones weaves together the complex legal drama of a clash between property rights and human rights that incorporated international treaties in addition to domestic laws of Spain and the United States. This chapter demonstrates how this case served as a central site of the battle between abolitionists and defenders of the institution of slavery.

The primary limitation with the Jones chapter is that the title is misleading. An argument about the impact of AMISTAD on race and law would have required a very different research project. The Jones chapter is not an explanatory piece about the impact of AMISTAD on race and law. Rather, this chapter provides a detailed and fascinating description of the impact of race and law on the AMISTAD case.  Jones spends less than one page discussing the impact of the case, and these two concluding paragraphs make controversial claims without evidence. For example, Jones writes that "the Amistad decision contributed to the public's growing knowledge of the slave trade and slavery, thereby helping to lay the basis for the abolition of slavery by the Thirteenth Amendment more than two decades later" (p.24). While this is very plausible, the chapter would benefit from more attention to evidence for such a claim.  Despite this limitation, Jones provides a beautifully written, rich description of a complex and important case about race in America that illuminates the fundamental clash between property rights and human rights. His chapter demonstrates immense knowledge about an incredibly complex case and controversy.

If the title of the Jones chapter can be criticized for being more ambitious than the article, Xi Wang's title may be guilty of not being ambitious enough. The title of the article is simply "The DRED SCOTT Case (1857)." As is the case with the other chapters, Wang's essay brings to life the individual litigants by telling the stories leading up to, and including, the landmark cases. As Wang points out,

"Although Dred Scott is considered the most famous litigant known in American constitutional history, his true identity is not completely known. Like many other victims of slavery, Dred Scott had been deprived of not only his rights as a human being but also of his history" (p.27).

The contribution of Wang's chapter is to shed light on the identity of the litigant.  Whereas the Taney Court turned this case into a referendum on the inferiority of African Americans and the moral soundness of slavery in general, the arguments by Scott's various attorneys did not broadly challenge the constitutionality of slavery. Instead, Scott's counsel sought to show that he was legally entitled to freedom because of his residence in a territory that banned slavery. Slavery was made illegal in Illinois and the Wisconsin territories by three congressional laws, and yet the Supreme Court ruled that Scott remained the property of his owner (p.29). The DRED SCOTT legal case became a referendum not only on the legality of slavery, but also on federalism, original intent, and citizenship.  Wang does a fine job of integrating an explanation of the litigation and the life story of Dred Scott, while positioning the court case within the larger political and cultural context of ante-bellum America. Indeed, he weaves a fascinating tale of the most famous litigant in perhaps the most infamous court decision in American legal history.

Annette Gordon-Reed's chapter, "Celia's Case (1857)," tells the story of a slave "who did the one thing most feared by southern slaveowners: she... killed her master after years of sexual abuse" (p.48).  Gordon-Reed notes the paradoxical role of sexual contact between master and female slave: "Despite its prevalence, southern society professed extreme disdain for sex across the color line, which suggests that there should have been a strong interest in placing some limits on the use of slaves as sexual objects" (p.50). In practice, slave owners could avoid social stigma so long as they practiced discretion. To this day, "there is no recorded instance of a white man, master or otherwise, being punished for raping a slave woman" (p.50).  Having been purchased at the age of 15 in 1850 (p.49), and enduring her master's sexual abuse for five years, Celia resisted his advances by striking him with a stick, killing him (p.51). In her desperation, Celia attempted to cover up the death by burning her master's body in a fireplace (p.51). The chapter traces the predictable injustices that unfolded in this Missouri trial, and like Wang's chapter on Dred Scott, Gordon-Reed's essay brings to life the human story of slaves who are remembered instead as archetypes.

The most fascinating chapter in this collection is "Race, Identity, and the Law: PLESSY v. FERGUSON (1896)." While PLESSY tends to be remembered as an unsuccessful challenge to the immorality of segregation, according to Thomas J. Davis, the "mixed community" litigants’ primary objection was to the very idea that the state could classify their racial identity (p.62). 

The Citizens' Committee to Test the Constitutionality of the Separate Car Act, dominated by French-speaking Creoles who "celebrated their mixed African, European, and Indian descent," challenged the dichotomous racial classification that served as the basis of the pre-civil war racial order (p.61). The defense "wanted to argue not for or against the legal fact of Plessy's being colored or white but against the fact that any law could reasonably categorize Plessy as either colored or white" (p.70). Long before the era of identity politics, the counsel for the Comite des Citoyens contended that "no reasonable law could exist to categorize Plessy, or anyone else, as colored or white or as a member of any race because race was indefinable; it was not a physical fact but, rather, a social construct" (pp.70-71). As evidence of this claim, the defense pointed out that states differed in their categorizations of colored persons – for example, the rule in Ohio was "the preponderance of blood," and North Carolina relied on "any visible admixture of black blood" (p.71).

It took 58 years for the Supreme Court to dismantle the PLESSY "separate but equal" doctrine. As Davis notes, the "PLESSY defense had finally won, but not on the ground it had most wanted.  The courts from highest to lowest continued to ignore the reality of race and underlying questions such as who was to decide Homer Plessy's identity, the identity of any person of mixed heritage, or the identity of any person, period – the person or the government?" (p.74).  In light of GRUTTER and GRATZ (2003) on the University of Michigan affirmative action policies, Davis' closing sentence is insightful and powerful: the question of who will determine racial identity "has continued to unsettle the nation because it continues to put race on trial" (p.74). Davis' chapter provides a fascinating analysis of the role multiracial identity and multiculturalism played a century before the height of the "culture wars" in a seminal case that is not often remembered for this focus. 

Denise Morgan's "Jack Johnson Versus the American Racial Hierarchy (1913)" shares with Gordon-Reed's and Davis' chapters a focus on the social and legal stigmas attached to citizens who dared to deviate from the expected behaviors within the American racial order. Whereas slave Celia resisted her master's sexual violence, Johnson threatened the racial order in other ways.  Indeed, as the first black heavyweight boxing champion, he challenged the eugenic wisdom that blacks were inferior athletes (p.79).  Although many blacks saw Johnson's victory as a victory for the community, he was merely satisfied as an individual boxer to defeat his opponent (p.80). Moreover, Johnson's marriage to three white women didn't gain sympathies on either side of the color-line. Johnson "explicitly renounced black women," instead, preferring the company of "white girlfriends [who] worked as prostitutes" (p.84).

Morgan's chief argument in this chapter is that blacks praised reluctant heroes like Jack Johnson for their successes in destroying myths of biological inferiority and "consistently appealed to race as a basis of social and political solidarity" (p.78). Johnson, however, "spent his life working to prove the insignificance of race" (78).  Morgan illuminates at once the significant investment of the larger community (white and black, elite and non-elite) in maintaining and reinforcing the color-line and the lengths to which one individual black celebrity went to reject it.

Gabriel Chin's chapter, "Twenty Years on Trial: Takuji Yamashita's Struggle for Citizenship (1922)," focuses on a Japanese law graduate's efforts to practice law. His race prevented him from naturalizing, and he couldn't join the bar because he was not a naturalized citizen. Yamashita appealed to the Washington Supreme Court, arguing eloquently that state and national law forbid his exclusion from the bar on account of his race. In one respect, the story of Yamashita is a tragedy – he never did reach his goal. Nonetheless, like so many other protagonists depicted in this volume, Yamashita was a trailblazer, setting the stage for others to follow in his footsteps with fewer roadblocks in their way.

P.J. Ling's chapter, "A White Woman's Word – the Scottsboro Case (1931)," retells the sordid story of racist, all-white juries convicting black male defendants despite clear evidence of innocence.  The case made its way to the U.S. Supreme Court twice. As was the case with Jack Johnson and as would be the case with O.J. Simpson, the Scottsboro case put black men (and boys, in this case) on trial for alleged sexual violations of white women. Despite medical evidence that contradicted the two white women's claims of sexual assault, three sets of juries convicted all of the defendants.  Ling highlights the power of racism and anti-Semitism (in addition to the anti-communism and patriarchy) in the early 20th century Southern courtroom but concludes that the trials actually planted seeds for progress in the South:

Nearly a hundred white Alabamian jurors were blind to every other fact, but the more desperately they defended white supremacy, the more they railed against outside interference, the more vulnerable they made the southern way of life. Patrician southerners grew increasingly ashamed and liberals nationally grew ever more embarrassed as echoes of European anti-Semitism and authoritarian injustice reverberated around an American courtroom. The nation, rather than simply race, had been put on trial, and for nine young African Americans, it had failed (p.137).

To borrow from the language of Denise Morgan, Fred Toyosaburo Korematsu was a "reluctant hero." As Roger Daniels says in "KOREMATSU v. UNITED STATES Revisited: 1944 and 1983 (1944)," Korematsu "just wanted to be left alone" (p.139). Most legal scholars recognize Korematsu as the man who challenged the World War II era Japanese-American internments before the Supreme Court. However, according to Daniels, Korematsu defied the existing racial order in his everyday life long before his court case: "he was employed in manufacturing and had been a member of a largely white trade union; he had an interracial romance; and, as near as we can tell, almost none of his associations outside of his family were in the ethnic community" (p.140).

Mark Tushnet remembers BROWN v. BOARD as a case that "placed a second branch [on the side of civil rights], leaving Congress as the sole holdout" (p.160). In "BROWN v. BOARD OF EDUCATION (1954)," Tushnet traces the legal and cultural history that preceded this landmark case, noting that racial segregation "was put under additional stress by the international military and ideological competition with the Soviet Union, which presented itself, particularly to people in Africa and Asia, as the true defender of real equality for all people and pointed to segregation as an illustration of the hypocrisy of the U.S. claim that its system of democratic governances should be emulated" (p.162). Tushnet highlights the importance of grassroots political and legal mobilization by civil rights groups, the death of Chief Justice Vinson, and Chief Justice Warren's masterful skills in securing a unanimous decision (p.172). Tushnet's summary of BROWN captures the core dynamics preceding and during the landmark case.

The chapter could benefit from greater attention to the debate over the impact of this landmark case. At one point, Tushnet appears to side with Rosenberg's HOLLOW HOPE argument that Congress (especially with the 1964 Civil Rights Act) was more responsible for dismantling segregation than was the Court in BROWN. At another, however, he seems to agree with McCann’s (1994) assessment, suggesting that the Court's decision to side with the President in favor of civil rights put pressure on Congress to join the rights revolution.

In "Interracial Marriage on Trial: LOVING v. VIRGINIA (1967)," Peter Wallenstein recounts the trauma suffered by two young newlyweds – a white husband and black wife – that originated when three policemen entered their bedroom, arrested them, and took them to jail. In 1958, this was the reality for Mildred Jeter and Richard Loving in Virginia. The Lovings won their case after nine years living as "defendants, felons, exiles, fugitives, litigants, and even as prisoners – all for the crime of interracial marriage" (p.179).  Dismissing the Virginia courts' decisions that ruled against the Lovings, Chief Justice Warren's unanimous opinion struck down the miscegenation laws. Today, the vestiges of support for miscegenation are withering away; even fringe institutions (e.g. Bob Jones University) that oppose interracial romance and marriage are succumbing to public pressure. As Wallenstein notes, Alabama's law was the last to go – voters repealed it in November 2000.

Whereas the LOVING, PLESSY, Scottsboro, and Jack Johnson cases will catch readers' attention by demonstrating the progress of the civil rights struggles in this country, Ball's chapter will likely resonate with readers in how little constitutional law has changed between BAKKE (1978) and the 2003 GRATZ and GRUTTER cases. In 1978 as in 2003, a fractured Court issued a confusing, split decision.  In both, the Court largely upheld the constitutionality of affirmative action while striking down individual procedures.

Overall, this chapter on BAKKE thoroughly summarizes the seminal case that defined the constitutional status of affirmative action for the past quarter century (until last month). That said, Ball's analysis falls a bit short. First, he holds to the conventional wisdom that a popular majority oppose race-based affirmative action, citing an October 1977 Gallup Poll as evidence. Public opinion and affirmative action scholars have demonstrated, however, that survey questions on affirmative action are remarkably sensitive to question wording; levels of support vary widely depending on the policy’s description, the justifications given for it, the procedures used to invoke it, and the groups targeted by it. Large segments of the public do not understand how affirmative action policies work, and the misunderstandings often drive responses to a wide range of survey questions (Skrentny 1998).

Second, although Ball may be correct that "[f]or all observers, the BAKKE case epitomized the societal clash – political, moral, and legal – between the value of meritocracy/race neutrality and that of racial balance/equality of opportunity," the BAKKE, GRATZ, and GRUTTER Courts have been at least as concerned about the context and details – mission statements, procedures, guidelines, and rationales – as with abstract distinctions between color-blind equality versus color-conscious equality.  Third, Ball misses an opportunity to explore whom the UC Davis policy targeted in the first place. In one sentence, Ball notes that the contested Medical School admissions policy set aside eight seats out of fifty for "successful disadvantaged minority applicants" (p.199). But in the next paragraph, he quotes that the special admissions policy targets "economically and/or educationally disadvantaged person[s]" without mention to minority status (p.199). This is a crucial distinction, at least on paper. Was the reference to economic and educational disadvantage merely a codeword for racial minorities in the 1970s for the UC Davis administration? If so, did the university truly reserve seats only for "disadvantaged" minority applicants?  Or, did the university provide preferences for all minority applicants?

In short, this chapter could be improved by emphasizing that the case was not decided solely on the constitutionality of the ends of race-based affirmative action, but focused in addition on the fit between the means, targets, and the ends of a policy that categorizes and prefers disadvantaged and/or racial minority students. The question in PLESSY – can government competently label individuals' racial identity? – and the question in BAKKE, GRUTTER, and GRATZ – what specific policy procedures are appropriately designed to identify and target those the mission seeks to target? – are central to BAKKE and warrant more attention.

In the final chapter, "Black on White: The O.J. Simpson Case," Walter Hixon retells the story of the "most sensational criminal drama in American history" (p.214). According to Hixson, "[t]he evidence demonstrated not merely that Simpson was guilty beyond a reasonable doubt, the American legal standard, but that in reality there was virtually no doubt at all... There was a 1 in 57 billion chance that blood on the rear gate at Bundy belonged to someone other than Simpson" (p.223).  The evidence at the prosecution's disposal couldn't have been much more conclusive:  "Simply put, if the case went forward on its merits, Simpson was a condemned man. The rather obvious defense strategy, then, was to do everything they could to take the case away from its merits and to provide an alternative issue – LAPD racism and planting of evidence – to seize center stage in the nationally televised courtroom drama" (p.223).

Hixson attributes the jury's decision to acquit to several factors. First, he finds that this was an instance of jury nullification (p.229) and that "Dream Team" defense attorney Johnnie L. Cochran, Jr., brilliantly designed his legal strategy to produce exactly that result. Given a history of police department racism, especially as witnessed in the nationally-broadcast videotape of LAPD officers brutally beating Rodney King, it was not surprising that the jury treated the prosecution's case with skepticism.  Hixson provides a clear and concise summary of a trial that cries out for clear and concise summation. He explains how the defense successfully converted the trial into a referendum on police racism. According to Hixson, "[t]he irony of the Simpson case was that a pampered and narcissistic celebrity – a man who had long since distanced himself from the black community – had become the focal point of an African American struggle for equal protection under the law. The case might well be cited for the salutary effect of calling attention to racial inequality under the law, but Simpson himself was no hero to the black community" (p.230).

Together, the twelve cases in RACE ON TRIAL cover a long span of U.S legal history, and the authors provide fascinating biographies of the litigants behind the court cases. For classroom purposes, the tradeoff in relying on an edited volume focusing on twelve court dramas is that much important knowledge about law and justice in American history is absent from such a volume. The reader learns little about the legal history of Latinos (of any nationality), who are now the largest minority group in the United States. Likewise, Native Americans and Arab Americans are absent from this volume. But even in the focus on African Americans and Asian Americans, much more comprehensive historical information about law and politics can be found in THE UNSTEADY MARCH by Klinkner and Smith. Granted, these two books serve very different purposes. RACE ON TRIAL focuses much more specifically and exclusively on courts. Overall, Gordon-Reed has compiled a fascinating collection by impressive scholars on important racially-oriented trials.

REFERENCES:

Klinkner, Philip A., and Rogers M. Smith. 1999. THE UNSTEADY MARCH: THE RISE AND DECLINE OF RACIAL EQUALITY IN AMERICA. Chicago: University of Chicago Press.

McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION, LANGUAGE AND LEGAL DISCOURSE. Chicago, IL: University of Chicago Press.

Rosenberg, Gerald N. 1993. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE?  Chicago: University of Chicago.

Skrentny, John David. 1998. “Introduction: Affirmative Action: Some Advice For The Pundits.” 41 THE AMERICAN BEHAVIORAL SCIENTIST 877.

CASE REFERENCES:

THE AMISTAD, 40 U.S. 518 (1841).

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

GRATZ v. BOLLINGER, No. 02-516 (2003).

GRUTTER v. BOLLINGER, No. 02-241 (2003).

KOREMATSU v. U.S., 323 US 214 (1944).

LOVING v. VIRGINIA, 388 US 1 (1967).

NORRIS v. ALABAMA, 294 U.S. 587 (1935).

PATTERSON v. ALABAMA, 294 U.S. 600 (1935).

 

PLESSY v. FERGUSON, 163 US 537 (1896).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 US 265 (1978).

YAMASHITA v. HINKLE, 260 U.S. 199 (1922).

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Copyright 2003 by the author, Daniel Lipson.