Race and the Constitution

Thomistic philosophy and Enlightenment anthropology were premised on the tenet that reason was the distinguishing feature of humanity. Over time, however, a different theoretical orientation emerged, which stressed the importance of physiological constraints to rationality: not all people and not all races possessed intellectual faculties to the same degree; hence, many could not govern themselves and strive for excellence. This approach reaffirmed the continuity of biological explanations of social inequality, justifying a hierarchical conception of racial differentiation based on naturalistic premises and the subjugation and exploitation of non-European peoples for their own good – Rudyard Kipling’s “white man’s burden”.

Thus, the belief in human biological determinism, which was originally confined to the circles of seventeenth century’s European aristocrats, was retained and adapted to serve the political aspirations of the middle-class. Furthermore, in the United States, the Founding Fathers were particularly fond of Platonic and Aristotelian political theories and, like their Greek precursors, they feared that racial diversity would lead to political fragmentation and, ultimately, to the dissolution of the Republic.

It is therefore unsurprising that the word “miscegenation” was first introduced into legal discourse in the United States, the only country in the world employing the “one drop of blood” rule and the hypodescent criterion, whereby people are black if they have some degree of African ancestry, irrespective of their phenotype, and that the 1935 Nazi Nuremberg laws, the 1937 racial laws of Italian fascism, and the 1949 miscegenation statute of South Africa were all inspired by the U.S. miscegenation laws.

“American exceptionalism” began in 1691, when Virginia legally banned interracial marriage for the first time in human history. By 1776, 12 of the 13 original states had followed Virginia’s example. Throughout the nineteenth century, racial segregation became a national phenomenon. In Roberts v. Boston 59 Mass. 198, 5 Cush. 198 (1849), the Massachusetts Supreme Judicial Court ruled that segregation in Boston’s public schools was permissible. Similar legal provisions were enacted in California and in other states which, in the late nineteenth and early twentieth century, barred South and Far Eastern Asians, as well as Native Americans and African Americans, from public schools. Meanwhile, Indiana, Illinois, Iowa, Michigan, Massachusetts, and New Jersey passed the black immigrant exclusion laws.

Following Lincoln’s Emancipation Proclamation, the ratification of the 13^th, 14^th and 15^th amendments to the U.S. Constitution, and the Civil Rights Act of 1875, Southern and border states ratified the Jim Crow statutes, which applied to African Americans, Asian Americans, and mixed-race individuals, prohibited interracial marriages, and led to the segregation of most public places, including railroad passenger seating, and residential districts. These statutes were upheld by the Civil Rights Cases 109 U.S. 3 (1883), which also declared the Civil Rights Act unconstitutional, for its provisions could not apply to private acts, and by Plessy v. Ferguson 163 U.S. 537 (1896), a 7-1 decision which put forth the “separate but equal doctrine”, to the effect that racial separation could be deemed constitutional, provided that facilities for each race were equal. By 1910, the South had established a virtual caste system prescribing separate telephone booths, elevators, Bibles, and water coolers for blacks and whites.

In those same years, fear of immigrants from Ireland, Southern and Eastern Europe, and from Asia reached a high point. These immigrants were believed to pose a genetic threat to the vitality of the nation. It was argued that, due to a menacing differential birth rate, their blood might pollute the American gene pool and their lax morality might deteriorate white Protestant virtues. This called for immigration restrictions to halt the flux of unfit immigrants, as well as enforced institutionalization and compulsory state sterilization to prevent contamination from those already in the United States.

The 1920s and 1930s were the heyday of sterilization programs, mental testing, marriage restrictions, racial segregation, and discriminatory immigration quotas, which were allegedly needed to pre-determine the ingredients of the American melting pot. The anti-miscegenation Racial Integrity Act, based on the dubious claims of racial science, was passed in Virginia in 1924, the same year that the severely restrictive and racially selective Johnson-Reed Immigration Act was promulgated by the Congress., following the Chinese Exclusion Act of 1882 and the 1917 Immigration Act, which excluded “all idiots, imbeciles, feeble-minded persons, epileptics, insane persons…professional beggars, vagrants…polygamists, and anarchists.”

Racial laws went largely unquestioned until the Fifties and Sixties, a period of economic expansion and relative prosperity. Then, Brown v. Board of Education 347 U.S. 483 (1954) held that segregated public education denied equal protection. But this decision could not abolish “de facto” segregation: in 1965, only two per cent of blacks attended desegregated schools. With the 1964 Civil Rights Act all public facilities and public education were desegregated, and discrimination in employment on the grounds of race, color, sex, or national origin was made illegal. The voting rights act of 1965 invalidated racially discriminatory measures that, prior to WWI, had restricted voting to less than four percent of Black citizens, with only 150,000 blacks being allowed to vote in 1940. Finally, in Loving v. Virginia 388 U.S. 1 (1967), the concept of “racial purity” was removed from the American legal discourse and, in 1968, the Civil Rights Act ended “de jure” housing segregation.

This necessarily cursory examination of the racial question in the United States shows the extent of the devaluation of constitutionally sanctioned individual liberties for the members of ethnic and racial minorities, “the un-American others” who, from the perspective of the ruling majority, did not appear to act like truly independent moral agents, and therefore were in no position to fully exercise those rights. It is a bitter irony that a nation founded on the centrality of civil liberties has been historically so fearful of certain categories of individuals and their freedoms. In many ways, this is also witnessed by the startling imprisonment rates in the United States, unparalleled in Western countries. Rising incarceration reflects a zero-tolerance trend in law enforcement and sentencing that is in stark contrast with the corresponding European descending rates.

Over the past thirty years, the number or people incarcerated in the USA increased fourfold. As a result, despite falling crime rates, the U.S. current imprisonment rate is the second highest in the world after post-genocide Rwanda, and seven million American citizens are now in jail, on probation or on parole, that is, 1 in 32 American adults. Furthermore, over four million detainees or former detainees are denied the right to vote. Racial disparities are flagrant. In the 1940s, 77 percent of all detainees were white, and 22 per cent were black. Nowadays, 60 percent of state and federal inmates are black or Hispanic and about one in 13 blacks in the 25-29 age group is in jail. One third of black males born today are likely to serve time in prison during their lifetime. This “great confinement”, namely the over-representation of blacks behind bars in a state of mass imprisonment, has been explained as the result of the stronger emphasis that is placed in American culture on individual responsibility in deviant behavior – the rhetoric of “crime as a moral choice” –, and as a means by which the justice system manages ostensibly “unruly” human groups, neutralizing them by physical removal. In this sense, mass incarceration of racial and ethnic minorities as social cleansing by penal means falls along the same logical continuum from slavery, to segregation, to urban ghettoes, one premised on the belief in the ultimate unassimilability of most African Americans into American society.

Fundamental Rights

Fundamental rights are those rights that are explicitly or implicitly sanctioned by a country’s constitution, are guaranteed to all citizens and most residents of that country and, given their importance, are accorded special protection by the judiciary. Historically, they coincide with the natural rights assigned to every human being and with those rights listed in the US Bill of Rights. They prescribe the limits of intervention and interference of the central government in citizens’ lives and can only be partially and transitorily restricted under a state of exception; for instance, in case of national emergencies like a war, a spate of terrorist attacks, or civil unrest, when security concerns prevail over certain civil liberties and personal entitlements. However, even a partial suspension or infringement of these rights must be strictly scrutinized and approved by the highest judicial body of a country which, in the United States, is called the Supreme Court.

These rights include the right to life and to generate life, to marry and to raise a family, the right to vote, to personal privacy, and to expect equality of treatment before the law – the “due process of law” of American Constitutional Law –, together with a series of civil liberties such as freedom of thought, speech and press, assembly and association, petition and religious affiliation and practice. Civil liberties are what the English jurist William Blackstone (1723-1780) described as “the great end of all human society and government…the state in which each individual has the power to pursue his own happiness according to his own views and of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws.”

This obviously implies that civil liberties may sharply contrast with the self-interest of the majority, which is required to refrain from arbitrary actions. When a majority of citizens strongly believe that their views and reasons are so logically compelling and morally persuasive that everyone in their right mind should agree on a given course of action, the consequences for civil liberties can be devastating, for the provisions contained in the Constitution are subject to interpretation and amendment. This is precisely what occurred in the early twentieth century, with Prohibition and eugenics, at a time when many grew intensely preoccupied with what they believed to be unmistakable indications of moral failure and biological degeneration. For some time, an intransigent and self-righteous moralism and the conviction that what stood in the way of the modernizing process was the result of ignorance, parochialism, and retrograde outlooks, resonated with the beliefs of a “moral majority.” In order to justify the adoption of measures that infringed basic liberties, some reformers who regarded themselves as modern, progressive and boldly experimentalists, resorted to humanitarian, utilitarian, pragmatic and medical arguments, and appealed to the quest for social perfection, which would take its inception from the internalization of the rules of a proper conduct. These sentiments generated a constellation of habits of thought, norms and ideals, a secularized version of the Protestant ethic, emphasising self-sufficiency, purity, conscientiousness, self-discipline and social planning, which obliterated the separation of the legal and the moral spheres.

This ostensibly progressive civic religion was seen by many as essentially fair and morally unassailable. Resistance to ethical self-scrutiny was particularly strong. Various representatives of the judicial branch became self-appointed guardians of the public morality and urged state governments to intrude in people’s private lives “for their own good”. Wayward citizens, namely those who could not be converted to an acceptable lifestyle, and whose behaviour remained unpredictable, were liable to being sterilized or institutionalized. This kind of society, at once ready to embrace an abstract notion of humankind and reluctant to put up with certain categories of human beings, was so insecure, apprehensive, and self-doubting, that it was willing to carry out self-mutilation in order to become risk-free, while refusing to consider the motives of the offenders and “miscreants”.

By 1914, marriage restriction laws targeting “feeble-minded” citizens had been enacted in more than half the states and, by 1917, 15 states had passed sterilization laws. But “only” a few thousand sterilizations had been actually performed, mainly because nearly half of such laws had been struck down on the ground that they violated due process, freedom from cruel and unusual punishment, and the equal protection clause. A second wave of eugenics laws coincided with the Immigration Restriction Act (1924) and Virginia’s Act to Preserve Racial Integrity (1924). In 1924, Virginia also passed a law authorizing the involuntary sterilization of alleged mental defectives. This law was upheld, 8-1 by the Supreme Court, in Buck v. Bell 274 U.S. 200 (1927). Justice Oliver Wendell Holmes, who was joined by Louis D. Brandeis and William Howard Taft, influenced by a crude scientific naturalism, a pessimistic anthropology, and a corrosive skepticism, wrote in the now infamous opinion for the Court that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…Three generations of imbeciles are enough”. As a result of this decision, taken in a country that prided itself on its commitment to individual freedom but chose to substitute clear constitutional principle for scientifically unverifiable notions of social progress, nearly half the U.S. states passed eugenics laws authorizing compulsory and non-voluntary sterilization. Sterilization rates dramatically increased, especially during the Depression, when few families were prepared to put up with the social protection of what was perceived to be a disproportionate number of dependent people, and did not protest against the systematic infringement of their fundamental rights.

The theoretical foundations of constitutional rights were undermined by prominent legal scholars in North America and Europe who favored the notion of “ethical state”, one whose “intrinsic morality” and thorough grasp of the laws of historical and biological necessity made its arbitration and dictates on public matters virtually indisputable. As a source of a morality more in line with the demands of modernity, the state was not necessarily bound by constitutional principles and norms. Radically realist and functionalist jurists argued that personal rights were not inalienable, for they really were culturally and historically relative legal fictions or superstitions, their existence being, to a large extent, contingent on the majority’s willingness to uphold them, that is, on considerations of general welfare and public utility. This Machiavellian interpretation of public law made ethics the handmaid of politics: rights could only be granted by law, and social utility overruled the “untenable notion” of human rights. Therefore virtues, rather than the rights prescribed by the American Constitution, were the defining attribute of citizenship. Enlightened governments were expected to foster virtues and restrict personal rights for the sake of communal rights and civic responsibility. Instead of protecting the citizens, law legitimized the persecution of certain categories of people, supposedly unable to enjoy freedom and to pursue happiness, by gradually stripping them of their rights and legal protections. Such policies were described as politically necessary and ethically indisputable. In a tragic reversal of roles, according to the dominant “discourse of truth” those who violated the physical integrity of other citizens were fulfilling a constitutionally sanctioned civic duty, while the victims of involuntary sterilization and confinement were a social threat and, as such, subject to legally mandated sterilization or confinement “for the good of society.”

Most such laws were only repealed in the late 1960s and 1970s, even though the Supreme Court ruling in Skinner v. Oklahoma 316 U.S. 535 (1942) defined procreation “one of the basic civil rights of man” and sterilization an invasion of fundamental interests which, according to Justice William O. Douglas, “in evil or reckless hands,” could have genocidal consequences.