Law and Anti-Blackness

Michele Goodwin January, 2021

The Lottery ¹ is a short story that describes a fictional, bucolic small town in the United States. The townspeople seem lovely and perhaps even thoughtful about each other, until once per year when their cleansing happens. This is when they stone a member of their community to death. The decision as to who is stoned is rather arbitrary—not based on crime, harm to another, past misdeeds, current troubles or threats of future harm. No. It is the random black dot on a piece of paper that seals Tessie Hutchinson’s fate.

No part of the lottery should make sense, even though the townspeople at an earlier time believed that stoning a member of their community each year would contribute to a strong harvest. Surely at some point the illogic of this should slip away. Even if killing a mother, son, or daughter brings a strong corn crop, is the corn yield worth it? Apparently, they think so.

As Shirley Jackson writes, “[t]he people had done it so many times that they only half listened to the directions; most of them were quiet, wetting their lips, not looking around.”² Everyone participates, even the small children—one child, “little Davy Hutchinson” is given a few pebbles. Barely aware of life itself, the little boy will become complicit in a practice laid out before him. He too will take part in the process that ends in his mother’s death. He, like the town’s other children, are predestined to believe the lottery is the natural order of things.

The child will learn to smell the stench of fear in the air, taste the anxious sweat that drips from his brow onto his lip as he one day will choose a stone. This will become familiar. Selecting the scapegoat on which to direct his anger, fear, and hope will be normal. This is the social order. The lottery does not simply choose its victims. It predestines the entitled. It protects this way of life.

*****

During the spring and summer of 2020, as COVID-19 rapidly spread throughout the United States, infecting and killing thousands of Americans, including children,³ the enduring color line manifested. As of this publication, more than 500,000 Americans have died due to the virus. Those disproportionately harmed in the U.S. have been Indigenous, Black, and Latinx communities.⁴ Even while pundits claimed children were safe from the virus, Black and Latinx children suffered and died horrific deaths.⁵ The patterns of implicit and explicit racism in medical care combined with social determinants in health meant not even the children’s youth nor institutions of public health could save them.⁶ Their deaths served as stark reminders of lingering vulnerability and invisibility. Taking seriously that COVID-19 has exposed preexisting institutional and infrastructural vulnerabilities and inequality in the United States,⁷ this Article turns to what stratifies and divides the nation.

That is, in 2020, it also became unquestionably apparent that the pandemic was not all that ails the United States. Systemic racism, white supremacy, and anti-Blackness crystallized in the murders of Ahmaud Aubrey, an unarmed jogger, stalked and killed by Gregory and Travis McMichael in a rural Georgia town;⁸ Breonna Taylor, an essential healthcare provider, fatally shot by several Louisville, Kentucky police officers;⁹ and George Floyd, lynched in broad daylight as a Minneapolis, Minnesota officer straddled his neck, pressing a knee onto it for over nine minutes as crowds gasped and watched in horror.¹⁰ Weeks later, Jacob Blake, an unarmed father, would be shot seven times at close range while his children watched, in Kenosha, Wisconsin.¹¹

What exactly do these fractures reveal about society and law in the United States? Is there a descriptive story to tell with a normative analog? If so, what can we learn from it? Are there lessons for the present to be derived from attention to this past? Has the strange promise of a postracial United States materialized after the two-term presidency of its first Black president, Barack Obama?

The fractures to which this Article speaks were brought into stark relief in 2020. They revealed unaddressed racial trauma; an American history mired in the terrorism of Black people, spanning slavery and postreconstruction; and ultimately centuries of unhealed wounds.¹² 2020 brought about an aggressive pandemic marked by an increasing death toll month by month from COVID-19.¹³ 2020 also marked the untimely death of Justice Ruth Bader Ginsburg¹⁴ and political turmoil leading up to the general election.¹⁵ Until the end, the year unfolded with chaos and consternation, including the challenge of the presidential election results, namely by former President Donald Trump, who claimed on social media,¹⁶ in the news, and through more than sixty lawsuits that fraud mired the 2020 presidential election and that he rightfully had won.¹⁷ By January 2021, the Washington Post reported that the president made a total of 30,573 false or misleading claims over four years, including “503 false or misleading claims as he barnstormed across the country in a desperate effort to win reelection.”¹⁸

2020 revealed strife and racial tensions that manifested in protest in the United States, yet it also beckoned for truth, reckoning, and reconciliation. The strange confluence of events in 2020 urges the acknowledgment of an origin story that places slavery, Jim Crow, and contemporary white supremacy, nationalism, and racism in proper discussion and contexts alongside the more popular, traditional American narratives that center revolutionary spirit of white Americans who fought against the British to stake a claim for their equality and dignity.¹⁹ Long divorced from that historical, political, and legal discourse is acknowledgment of the purposeful and enduring harms cast upon Indigenous peoples and Black Americans to justify colonialism, the capitalism derived by slavery, and the post-Reconstruction era scapegoating of the newly “freed.”²⁰ In other words, there are racialized traumas and terrorism yet to be fully accounted for in the stories we tell ourselves.

For example, from a historical perspective, what message must people tell themselves to justify the intergenerational kidnapping and trafficking of children, women, and men across international borders and throughout the United States? How does a society come to tolerate children on the auction block, bid upon as if they were field chattels? What narratives must the auctioneers tell to encourage bidders and secure lucrative offers for the traders in human flesh? How do individuals come to justify their participation in the cruel enterprise, including enslaving, renting, leasing, and selling their own offspring, born from frequent though unacknowledged debasement of enslaved women?

How has the failure to acknowledge and address the carnage and prurience of America’s racial origin story impacted life today? What social conditioning made possible the separate and unequal society of the 20th century? A nation marked by white Christians bombing Black Christian churches and the homes of Black ministers and clergy? What lives in the soul of a nation to justify school segregation? Housing segregation? Voter suppression?

The heavy iron shackles that controlled the movements of enslaved Blacks were replaced in “freedom” by invisible chains and restraints that demarcated social and legal hierarchies protected by law. Today, what makes possible a police officer’s strangulation of an unarmed Black man, while colleagues look on? In short, one hundred and fifty years after the ratification of the Fifteenth Amendment, the third and final of the Reconstruction Amendments,²¹ the stain and vestiges of slavery in the United States remain.

This Article addresses a thin slice of the American stain. Its value derives from the conversation it attempts to foster related to reckoning, reconciliation, and redemption. As the 1930s Federal Writers’ Project attempted to illuminate and make sense of slavery through its Born in Slavery: Slave Narratives From 1936-1938, so too this project seeks to uncover and name law’s role in fomenting racial division and caste. Part I turns to pathos and hate, creating race and otherness through legislating reproduction—literal and figurative. Part II turns to the Thirteenth Amendment. It argues that the preservation of slavery endured through its transformation. That the amendment makes no room for equality further establishes the racial caste system. Part III then examines the making of racial division and caste through state legislation and local ordinances, exposing the sophistry of separate but equal. Part IV turns to the effects of these laws and how they shaped cultural norms. As demonstrated in Parts I-IV, the racial divide and caste system traumatizes its victims, while also undermining the promise of constitutional equality, civil liberties, and civil rights.

Part I: Pathos and Hate: Creating Race and Otherness

In 1903, W.E.B. DuBois published The Souls of Black Folks, recounting that the notion of freedom for Black people “was simply unthinkable, the maddest of experiments,”²² because Black people were classed as “man and ox together.”²³ As part of the Southern strategy, white men “fought with desperate energy to perpetuate this slavery under which the black masses… had writhed and shivered.”²⁴ The Northern allies proved complicated, according to DuBois, as they stood to use newly freed Black people as “a club for driving the recalcitrant South back into loyalty.”²⁵ DuBois presciently predicted over a century ago that the problems of the United States would be the color line. That is, the struggle with its white supremacy, desperate cleave to racial hierarchy, and inability to rid itself of caste.

In 1855, a decade prior to the Thirteenth Amendment’s ratification, Frederick Douglass, known as one of the nation’s leading abolitionists and an escapee from the bondages of slavery himself, wrote, “Not only is slavery on trial, but unfortunately, the enslaved people are also on trial.”²⁶ He explained, “It is alleged, that they are, naturally, inferior; that they are so low in the scale of humanity, and so utterly stupid, that they are unconscious of their wrongs, and do not apprehend their rights.”²⁷ This American racial color line established the boundaries of citizenship and naturalization.

Placed in its proper context, the American commitment—perhaps addiction—to its racial ideology of a caste system²⁸ should be understood as an uninterrupted continuum since the earliest European and later U.S. ships arrived on the North American shores, carrying cargo of kidnapped and trafficked Africans. Isabel Wilkerson now adds to this canon of thought on the American caste system in Caste: The Origins of Our Discontents, contributing in popular form to the academic and scholarly accounts race, caste, and enduring hierarchy and white supremacy in the United States.²⁹

Racial hierarchy has long been the euphemistic elephant in the room and the American dividing line, demarking power, freedom, and self-governance. To properly undertake the examination of racial caste in the United States requires engaging beyond law, reaching to the fields and tools of sociology, ethnography, and anthropology to unpack not only law’s racial trap undisguised by legislation such as Fugitive Slave Acts or myriad cases, but also the lasting—even haunting—social, cultural, and rhetorical norms and mores.

Essential to any caste is the establishment of a rank and order among the people stratified. In the United States, this took the form of establishing white supremacy through law, whereby whiteness accorded privileges and rights not available to Black people, most apparently, but far from exclusively, freedom and citizenship.³⁰ In several distinct ways, law served a vital purpose in creating racial caste and hierarchy. Law undergirded and legalized the lucrative enterprise of American chattel slavery. That is, laws in the United States set the conditions that kidnapped and trafficked human chattel from Africa would never or rarely rise above their legally designated, subordinate status.

First, matrilineality designated that all children born of enslaved women would by law inherit the status of their mothers. This proved important in denying the multiracial offspring of white plantation owners independence and freedom. Second, rules of hypodescent mandated that anyone with any African biological heritage would always be legally designated as Black, and therefore legally inferior. Later, a third legal provision would provide another guardrail against the infiltration of whiteness and the preserving of the racial order through marriage—namely antimiscegenation laws. Finally, a fourth, twentieth century legal movement—eugenics—would protect the racial caste system from white people unfit for whiteness.

A. Matrilineality

First, given widespread sexual predation against enslaved Black women,³¹ the initial laws creating the racial caste system related to matrilineality. Sexual violence against Black women and girls was rampant in slaveholding families, even if rendered invisible by historians. However, researchers of human genetics offer a sobering account. Rapes against Black women by white men were so common in the United States that white men “contributed three times more to the modern-day gene pool of people of African descent than European women did.”³²

Thus, establishing whether the offspring of a white man and enslaved Black woman was free or enslaved was a matter of political urgency and importance—not only as it related to slavery, but also to racial caste. Early American law provided unmistakable clarity. In 1662, the Virginia Grand Assembly enacted one of its first “slave laws” to settle this point. Lawmakers wrote, “Whereas some doubts have arisen whether children got by any Englishman upon a Negro woman should be slave or free, be it therefore enacted and declared by this present Grand Assembly, that all children born in this country shall be held bond or free only according to the condition of the mother.”³³

As defined, matrilineality served multiple purposes. It shielded white men from legal and financial obligations to their Black offspring. Such laws meant that Black children of white fathers could never establish paternity, freedom, citizenship, and inheritance rights. Such laws exploited Black women’s sexual vulnerability to the predations of white men. Slavery perversely incentivized white male slaveholders’ sexual assaults on their enslaved property as Black women lacked rights and could not lay claim to their offspring nor spare them from enslavement. Black women and their offspring were all considered the property of the persons who “owned” them.³⁴

B. Hypodescent

The second means of ordering America’s racial caste system was its establishment of hypodescent through the race-delineating “one drop” rule. Such laws mandated that any African ancestry defined a person as “negro” or “colored” (each of these terms signifying those who would today be referred to as Black). Like matrilineality, hypodescent aided in establishing and furthering Black second-class citizenship under law. Even more, hypodescent or one drop codes bolstered another element of the racial caste system and white supremacy. By law, one could not exit out of what was legally a lowly status of Blackness, even after multiple generations. And these matters were not confined to the dusty archives of the seventeenth, eighteenth, or nineteenth centuries.

In 1984, lawyers for Susie Guillory Phipps filed a suit on her behalf to change her racial designation of “colored” to “white” on her birth certificate.³⁵ Phipps, the 50-year-old great-great-great-greatgranddaughter of an enslaved Black woman and her owner, fit the Louisiana classification of Black, which designated Blackness by “any traceable amount.”³⁶ This meant that even though Phipps was 1/128th Black, by Louisiana law, she was still legally Black. As such, Louisiana classified her as “colored” on her birth certificate.

The state defended its law, claiming that if Ms. Phipps prevailed, the state could be overwhelmed with individuals filing similar claims, forcing the state to oppose each case and undertake genealogical research.³⁷ Of course, the state could simply have decided not to litigate such cases or perform genealogical research on its citizens. Phipps lost her legal battle “to have declared unconstitutional a state law classifying as ‘colored’ anyone with as little as one thirty-second black ancestry.”³⁸

As in the case of Ms. Phipps,³⁹ even African descendants fitting the further delineated racial classifications of “mullato,”⁴⁰ “quadroon,”⁴¹ “octoroon” or “hexadecaroons”⁴² and beyond were denied the racial classification of “white” and the rights that attended it. Lightness in skin color was not sufficient in a claim for whiteness.⁴³ These laws sought to express that multiple generations of white forbearers could not cure the stain of African ancestry in the United States.⁴⁴

Accounting for the legalized cruelties and humiliations inflicted on Black people, the incentives to pass as white were not insignificant.⁴⁵ Passing for white could relieve an individual from the legal, social, economic, and even health burdens associated with being Black. Famously, after a near-fatal car accident where he suffered the loss of an eye, the famed entertainer, Sammy Davis, Jr. was treated at the San Bernardino County Hospital; it was the only nearby hospital that would admit Black people when more elite medical centers would not. Neither his fame, wealth, nor amiability allowed him to transcend the racial caste system.

If “passing” were an option, lawmakers cleverly constructed disincentives to dissuade attempts to breach the color line. For example, living fraudulently as a white person or deceiving someone about being white could result in legal punishment or penalty. In the sobering divorce case, Rhinelander v. Rhinelander, ⁴⁶ Leonard “Kip” Rhinelander, son of a wealthy, socially elite, New York family, was pressured by his parents to annul his marriage to Alice Jones, a “light” complected chambermaid and mixed-race Black woman. Professor Angela Onwuachi-Willig provides a detailed account of this important case, including the strategies deployed by both Leonard, the plaintiff, and his wife, the defendant.⁴⁷ Leonard’s lawyers argued that Kip was unaware of Alice’s racial status, even though he had lived with her family, engaged in sexual intercourse with her prior to their marriage, and later consummated the marriage.⁴⁸

Had Alice committed fraud against Kip Rhinelander by deceiving him of her racial identity? If she had, Kip would be entitled to an annulment of the marriage. To answer this question, the court ordered Mrs. Rhinelander to disrobe in front of the all-white male jury and judge.⁴⁹

The defendant… then withdrew to the lavatory adjoining the jury room and, after a short time, again entered the jury room. The defendant, who was weeping, had on her underwear and a long coat. At Mr. Davis’ direction she let down the coat, so that the upper portion of her body, as far down as the breast, was exposed. She then, again at Mr. Davis’ direction, covered the upper part of her body and showed to the jury her bare legs, up as far as her knees. The Court, counsel, the jury and the plaintiff then re-entered the court room.⁵⁰

Following this, Alice’s lawyer asked Leonard whether his wife’s body was “the same shade as when [he] saw her in the Marie Antoinette with all of her clothing removed?”⁵¹

Ultimately, Leonard’s attempt to annul the marriage failed, precisely because he had not been deceived, the jury found her racial identity to be obvious by the color of her breasts and legs.⁵² Even while the case was hailed in the Black press as a victory for Alice,⁵³ it nevertheless was a powerful reminder of racial caste and the legal risks associated with breaching the boundaries of race, even in New York. As one could not exit the racial subordinate status of being Black, a person of any African ancestry could never—save fraud—claim whiteness and access the rights and privileges associated with that status. This was race segregation based not on housing, education, or employment, but one’s DNA.

C. Anti-miscegenation Laws

A third set of laws whereby lawmakers sought to “degrade the social and political status of African Americans and support white supremacy,” can be found in anti-miscegenation laws.⁵⁴ By criminalizing and otherwise prohibiting interracial marriage, such as barring the distribution of marriage licenses or the solemnization of such unions, legislatures further fortified the racial caste system. Anti-miscegenation laws were broad in scope. In Virginia, it was illegal to leave the state to marry; it was a felony “if any white person intermarry with a colored person”; and a state provision voided “all marriages between ‘a white person and a colored person’ without any judicial proceeding.”⁵⁵ Like matrilineality and hypodescent laws, these provisions responded to nativist fears associate with “blurred… lines between what many [whites] understood to be a naturally superior white race and a naturally inferior black race.”⁵⁶ According to Carlos A. Ball, “[a]s long as there was a clear distinction between the two racial categories—in other words, as long as the two categories could be thought to be mutually exclusive—then the hierarchical racial regimes represented first by slavery, and later by legal segregation, could be more effectively defended.”⁵⁷

Often lawmakers defended the necessity and urgency to adopt such laws in religious terms and on the basis of preserving moral order. Indeed, courts upheld such laws on that basis.⁵⁸ As the Supreme Court took notice in Loving v. Virginia , the trial judge convicted and sentenced Mildred Jeter, a Black woman and Richard, a white man, for violating Virginia’s “Racial Integrity Act of 1924,” which was enacted during a “period of extreme nativism . . . follow[ing] the end of the First World War.”⁵⁹

At their sentencing for violating the Virginia statutes barring interracial marriage, the trial court expressed:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.⁶⁰

In this case, police raided the couple’s home, while they were sleeping, and arrested Mildred, who was pregnant at the time, incarcerating her for several days. The couple was legally married in Washington, D.C., and they displayed their marriage certificate in their home. Nevertheless, a local grand jury issued an indictment “charging the Lovings with violating Virginia’s ban on interracial marriages,” and weeks later the couple “pleaded guilty to the charge and were sentenced to one year in jail.”⁶¹ The sentencing judge suspended their sentence for a “period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years.”⁶²

Four years later, in 1964, the Lovings filed motions to vacate the judgment and to have the sentence set aside on the basis that the Virginia law violated the Fourteenth Amendment. A state trial judge denied their motions. The couple faced a cruel ultimatum: live outside of the state in marital union but away from their families, or return as a couple, risking incarceration and the state ignoring their marital union. Their fate as a couple was further complicated by the fact that Virginia was not the only state to ban or refuse to recognize interracial marriages. The couple appealed once more. Thereafter, the state’s highest court, the Supreme Court of Appeals, “upheld the constitutionality of the antimiscegenation statutes,” affirmed their convictions, and modified their sentences.⁶³

The Lovings successfully petitioned their case to the United States Supreme Court, arguing the Virginia law violated both equal protection under the law and substantive due process.⁶⁴ At the time of their litigation in 1967, sixteen states prohibited and punished “marriages on the basis of racial classification.”⁶⁵ Among the arguments put forth by Virginia to defend its racial purity law, including “that the State’s legitimate purposes were ‘to preserve the racial integrity of its citizens,’ and to prevent ‘the corruption of blood,’ . . . and ‘the obliteration of racial pride,’” was that the law applied equally to both the white husband and Black wife.⁶⁶

Citing Pace v. Alabama ,⁶⁷ Virginia argued that “the meaning of the Equal Protection Clause . . . is only that state penal laws containing interracial element as a part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree.”⁶⁸ This legal strategy stretched the meaning of the Court’s rulings in Railwsay Express Agency ⁶⁹ (involving a statute “discriminating between the kinds of advertising which may be displayed on trucks in New York City”)⁷⁰ and Allied Stores of Ohio ⁷¹ (addressing “an exemption in Ohio’s ad valorem tax for merchandise owned by a nonresident in a storage warehouse”).⁷² Neither case involved racial discrimination laws. Handing down its landmark decision, striking down the Virginia laws and by extension all others that proscribed interracial marriage, the Court stated:

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. . . . These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.⁷³

Many, though not all, anti-miscegenation laws were enacted after the abolition of slavery just as confederate monuments were erected across the United States as symbols of white supremacy and to protect racial order and hierarchy during Jim Crow.⁷⁴ Anti-miscegenation or “antiamalgamation” laws predated slavery’s abolition and were consistent with proslavery policies within states. States in the North as well as the South adopted such laws. Neither slavery nor the racial caste system were geographically confined to southern states. To the contrary, just as slavery was operational in northern territories and states, including New York,⁷⁵ Connecticut,⁷⁶ and Pennsylvania,⁷⁷ so too were laws denying interracial marriages.⁷⁸

Northerners “were not unmindful of the danger racial equality posed to national union” as well as the importance of maintaining slavery.⁷⁹ For example, in 1705, colonial lawmakers in Massachusetts enacted an anti-miscegenation law based significantly on Virginia’s existing law.⁸⁰ As in Virginia, “the development of miscegenation law was directly related to the growth of slavery.”⁸¹ In fact, “Massachusetts was also the first colony explicitly to authorize slavery by law.”⁸²

And, “[u]ntil February 1843, when the state legislature repealed a statute that banned marriages between whites and ‘Negroes, Indians, or Mulattos,’ interracial couples in Massachusetts found their unions declared null and void, their children were classed as ‘illegitimate,’ and any official who solemnized an interracial union could be fined.”⁸³ Despite the law’s repeal, interracial intimacy remained unsettled in Massachusetts. In 1913, the Massachusetts legislature adopted a law that prevented couples from a marriage safe harbor or sanctuary in their state if denied a marriage license elsewhere.⁸⁴ In essence, after the repeal of the Massachusetts anti-miscegenation law, only interracial couples who were citizens of that state could marry there.

Rhode Island, Illinois, Iowa, Kansas, Maine, Michigan, Pennsylvania,⁸⁵ and Ohio⁸⁶ are among the northern states that enacted laws banning interracial marriage. Alabama,⁸⁷ Florida,⁸⁸ Mississippi,⁸⁹ North Carolina,⁹⁰ South Carolina,⁹¹ and Tennessee⁹² found interracial marriage so abhorrent that they ratified their constitutions to bar such unions.⁹³ And, though the Supreme Court’s ruling in Loving v. Virginia ultimately struck down all such laws, effectively making it legal to marry someone of a different race, states continued to delay repealing statutes and constitutional amendments banning interracial marriage. It was only in 1987 that “Mississippi voters repealed by a narrow 52 percent to 48 percent margin the state’s 1890 constitutional ban on interracial marriage.”⁹⁴ As stunning as that may seem, “Mississippi didn’t grant its first marriage license to an interracial couple until 1970, under a federal judge’s order.”⁹⁵

One matter in common among all the states that banned interracial marriages is that they all prohibited “Negro-white marriages.”⁹⁶ Some states barred Asian-white unions⁹⁷ and still others banned Indigenouswhite unions.⁹⁸ Commonly, geography dictated these laws.⁹⁹ No state barring interracial marriages excluded Black-white unions from their discriminatory policies.

That forty-one states prohibited interracial marriage at one point in time gives a sense of the scope and scale of states’ efforts to proscribe interracial marriage and preserve white racial purity. The broad enactment of anti-miscegenation legislation expressed the accepted view that maintaining the primacy and purity of whiteness necessitated a collective effort. It required mass compliance and comprehensive adherence to maintain the herd immunity of whiteness. As such, more than law mattered. Social compliance and adherence mattered. Even while hypodescent legislation provided a sturdy buffer against Black people exiting their status, anti-miscegenation laws spoke explicitly of the stunning contempt in which Black people were held.

D. Eugenics

The guarding of racial purity intensified during post- Reconstruction in the United States, so much so that it began to impact whether white Americans were permitted to control their reproduction intra-racially. In 1927, more than twenty years after the first eugenics law was enacted in Indiana, the United States Supreme Court issued the landmark decision of Buck v. Bell , upholding the constitutionality of Virginia’s Eugenical Sterilization Act.¹⁰⁰ In an 8-1 decision, the Court ruled the constitutional authority to impose vaccine mandates is broad enough to compel the forced sterilization of women and men deemed socially unfit.¹⁰¹ Writing for the majority, Justice Oliver Wendell Holmes issued a haunting condemnation of vulnerable white women, declaring “three generations of imbeciles are enough.”¹⁰²

The case centered on Carrie Buck, whom Justice Holmes described as “a feeble-minded white woman.”¹⁰³ He claimed that she was the “daughter of a feeble-minded mother”¹⁰⁴ and “the mother of an illegitimate feeble-minded child.”¹⁰⁵ Notwithstanding the troubling inaccuracies of these statements, even if they were true, should the state possess such authority as to dictate who should be able to parent?

The state presented evidence that the Court found persuasive. One evaluation of Carrie’s “fitness” came from Harry H. Laughlin, who, although not a physician (and though he never examined her),¹⁰⁶ was a distinguished leader in the eugenics movement, serving as superintendent of the Eugenics Record Office of the Department of Genetics at the Carnegie Institute and the “eugenics expert” to various congressional committees, including the Committee on Immigration and Naturalization.¹⁰⁷

In Carrie Buck’s case, her poverty, perceived intellectual shortcomings, teenage pregnancy (the result of a rape), and family history of alcoholism were invoked to justify the state’s reprisal and her sterilization.¹⁰⁸ The Court found:

It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.¹⁰⁹

In the wake of the Supreme Court declaring the Virginia eugenics law constitutional, more than sixty thousand Americans were convicted of social unfitness and surrendered to public health officials for compulsory sterilizations.¹¹⁰ Eugenics further guarded white racial purity, by policing and restricting undesirable white people from “continuing their kind.”¹¹¹ Compulsory sterilization laws reflected the cruel and inhumane lengths to which white elites dared to go in order to refine and preserve whiteness.

At the heart of eugenics laws was a political and legal commitment to surveillance, government intrusion, reprisal, and retribution to discourage not only vice, but also sex, single parenting, and reproduction among the socially undesirable. At their core, these policies were rooted in social judgments about the poor and served to further shape social and legal understandings about whiteness.

Conclusion

To understand racial ordering in the United States, one should begin by examining the law and studying closely judicial opinions, legislation, and legal ordinances. That is, rather than considering racist law some strange anomaly, one should understand that racial caste and ordering in the United States were purposefully created and maintained by law and legal institutions. Indeed, slavery itself was not only an economic institution but also one of law.

Importantly, the creation of racial caste in the United States was achieved through the regulation of women’s bodies and sex. Legislation governing matrilineality, laws related to hypodescent, bans on interracial marriage, and eugenics—namely the forced sterilization of people viewed as unfit for the American ideal reinforced caste and racial hierarchies. The results were not only peculiar—such as hypodescent laws—but also cruel.

Part II: The Endurance and Preservation of Slavery Through

Transformation

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”¹¹²

The racial caste system is an ecosystem founded on legal and social tenets of racial hierarchy and dominance. A belief in white supremacy and Black inferiority is the foundation of racial caste. For those whose lives had previously been physically tethered to slavery, myriad post- Reconstruction laws further fastened them to an inferior status where there was little or no relief from the Supreme Court. The American racial caste system became the nightmare that never ceased at abolition’s dawn. As Justice Douglas concurred in 1968 in Jones v. Mayer Co .,¹¹³ “[s]ome badges of slavery remain today. While the institution has been outlawed, it has remained in the minds and hearts of many white men.”¹¹⁴ What explains this?

Taking seriously Justice Douglas’s observation that “[c]ases which have come to this Court depict a spectacle of slavery unwilling to die,”¹¹⁵ Part II turns to the archives of American law to make visible law’s role in fomenting racial caste in the United States. As such, it renders visible overlooked legal history relevant to the maintenance and transformation of slavery’s badges, namely in the Constitution’s Thirteenth Amendment. As prior work argues, neither the values undergirding the Thirteenth Amendment nor the practice of slavery ended at its abolition. ¹¹⁶ Rather, slavery persists through its transformation; it endures and evolves. This dynamic is what scholar Reva Siegel describes as “preservation-throughtransformation.”¹¹⁷

Part II argues that the racial caste system is further exemplified by the Thirteenth Amendment’s punishment clause, the debate about the law, and the prohibition on one form of slavery while sanctioning and preserving others. In the immediate wake of the Thirteenth Amendment’s ratification, this included the reappropriation and transformation of Black labor through Black Codes, crop liens, lifetime labor, debt peonage, and apprenticeship provisions. Today, this includes prison labor that tethers America’s overwhelming consumption of mass incarceration.¹¹⁸

A. The Debate: Equality That Was Never Meant to Be

In the United States, those at the lower rungs of society achieve social caste not only by birth status but also by laws, practices, and conditions that seek to denigrate, humiliate, embarrass, cause suffering, and otherwise interfere with dignity interests. Like the castes in other societies—such as India, famous for rendering a whole set of people “untouchable” or what became of Germany during the rise of Adolf Hitler, the Third Reich, and the Nazi occupation of government and society— so too America’s practices of racial caste persist beyond slavery’s abolition, Reconstruction, and Jim Crow.¹¹⁹

Perhaps no better evidence of slavery’s persistence beyond the Thirteenth Amendment is the law itself. The amendment codifies the persistence of slavery through its punishment clause. This clause, often overlooked by legal academics and therefore barely engaged in law schools, explicitly permits “slavery” and “involuntary servitude” as “punishment for crime,” where the person has “been duly convicted.”¹²⁰ At the time of its drafting, senators from slaveholding states vigilantly negotiated for a compromise to permit slavery’s continuance under ratified conditions. As the punishment clause has never been repealed, the institution has survived—largely unseen—by those least affected. It remains a deleterious plague that continues to infect our democracy.

The author of the punishment clause, Senator John Brooks Henderson, an outspoken Missouri slave owner, favored adopting a constitutional amendment abolishing slavery that contained a punishment exception similar to The Northwest Ordinance of 1787.¹²¹ That law prohibited slavery in the new western territory except “in the punishment of crimes whereof the party shall have been duly convicted.”¹²² Opposition to this language and efforts to introduce an even more explicit abolition of slavery that elevated the human rights of all persons proved futile.

For example, Senator Charles Sumner, a widely respected abolitionist, objected to the Punishment Clause and proposed an amendment based on France’s Declaration of the Rights of Man and of the Citizen that asserted the equality of all men. His amendment stated:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress may make all laws necessary and proper to carry this article into effect everywhere within the United States and the jurisdictions thereof.¹²³

Drawing from international law, he argued, “the constitutional charter of August 1830, at the installation of Louis Philippe as king, with La Fayette by his side, contains the articles… placing the declaration of equality before the law in the front.”¹²⁴ Senator Sumner pointed to the fact that “this article has been adopted in the charters of Belgium, Italy, Greece; so it is now a well-known expression of a commanding principle of human rights.”¹²⁵ According to Sumner, “equality before the law” manifested “precision to that idea of human rights which is enumerated in our Declaration of Independence.”¹²⁶

Senators vehemently opposed to ending slavery rejected the principles outlined by Sumner. Senator Lazarus Powell spoke at length denouncing the notion that Black people were anything but property.¹²⁷ He rebuffed the idea that “it was ever designed by the founders of [the United States] that the Constitution of the United States should be so amended as to destroy property.”¹²⁸ He argued, “I do not believe it is the province of the Federal Government to say what is or what is not property.”¹²⁹ The province of government, according to Powell, is to “guard, protect, and secure, rather than to destroy.”¹³⁰

In his complete rejection of a constitutional amendment to abolish slavery, Powell called it illogical, comparing the government’s abolition of slavery to the federal government regulating “every domestic matter in the States.”¹³¹ Powell warned that if an amendment to abolish slavery were to succeed, Congress might next interfere with matters of “parent and child, husband and wife, and guardian and ward.”¹³² Notably, existing laws and social practices made the domestic sphere hostile for women. Marital rape was legal¹³³ and domestic violence a matter of private regard.¹³⁴

In State v. Oliver , a North Carolina court advised that while its position had evolved: “We may assume that the old doctrine, that a husband had a right to whip his wife, provided he use a switch no larger than his thumb, is not law in North Carolina.”¹³⁵ Still “if no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”¹³⁶ This was the common view. In Abbott v. Abbott , the court denied Mrs. Abbott the opportunity to recover for injuries sustained after a brutal beating by her husband, which required hospitalization.¹³⁷ The court explained the “husband and wife are one person.”¹³⁸

In the view of those committed to the South’s enterprise, its defeat in the Civil War did little to elevate the humanity or social status of Black people. For those who clung to the economic profitability and capitalism of human slavery, the rationales for human kidnapping, trafficking, and bondage persisted. One means of keeping the ideology of slavery alive was to create the chattel in Black people. That is, slavery thrived on the notion that Black people were no different in spirit, mind, or comportment than common field stock. A belief in the humanity of enslaved persons, such as that promoted by Senator Sumner, contradicted the view proffered by Powell (that Black people lacked human status). To make himself perfectly clear, Senator Powell cautioned that if the federal government were to “strike down property in slaves, it certainly would have the right to strike down property in horses.”¹³⁹

In debate, Senator Sumner argued against both a lengthier amendment with the punishment clause and the revised, condensed form that currently stands. He doubted the wisdom in reproducing the “Jeffersonian ordinance” because the language was inconducive to the challenge before the government of constitutionally abolishing slavery in the wake of the Civil War.¹⁴⁰ Simply put, the language of the ordinance was “inapplicable” to the matter at hand.¹⁴¹ He reminded Senate colleagues, “slavery in our day is something distinct, perfectly well known, requiring no words of distinction outside itself” and queried, why therefore add the punishment clause?¹⁴² Not only was the language surplusage, but also it introduced “doubt” as to the Senate’s intent to end slavery.

With uncanny omniscience, Senator Sumner warned, “We should consider well that the language that we adopt here in this Chamber today will in all probability be adopted by the House… Once having passed this body, it is substantially beyond correction.”¹⁴³ His urge for caution likely reflected a keen understanding of the various forms of slavery. He understood the great lengths those invested in slavery would pursue to secure its continuance.

From the outset, southern lawmakers, plantation owners (sometimes one in the same), as well as northerners profiting from slavery, scored victories in Congress,¹⁴⁴ state legislatures,¹⁴⁵ and in courts to maintain slavery.¹⁴⁶ American Slaveholders violated domestic and international laws in furtherance of their trade.¹⁴⁷ Meanwhile, in European cities, boycotts ensued on certain American goods, in protest of slavery.¹⁴⁸ Even though the 1807 Act Prohibiting Importation of Slaves made the continued kidnapping and importation of Africans illegal, the law was too frequently ignored.¹⁴⁹ Likely not lost on Senator Sumner was the cold reality that despite the 1807 Act, “cargoes of negroes [were] imported from Africa” regularly, according to journalists.¹⁵⁰ In 1860, mere years before Sumner took to the Senate Chambers to argue for the equality of Black peoples, the New York Times reported:

Several cargoes of negroes have, it is notorious, been imported from Africa within the last year, and have been distributed through the interior with greater or less publicity. The perpetrators of the offence have been well known; in fact, so far from concealing their share in it, have gloried in it. We have not yet heard of the conviction and punishment of one of them. The Federal officials have either winked at the crime, or pursued it with such laxity that they might better have suffered it to pass altogether unnoticed.¹⁵¹

Those invested in slavery, including in the North, used violence as a means of intimidation and as a threat to maintain the institution.¹⁵² Famously, Pennsylvania Hall was burned down by an anti-abolitionist mob.¹⁵³ In Boston, pro-slavery mobs frequently and violently interrupted meetings sponsored by abolitionists who threatened the business interests of wealthy Bostonians whose textile mills processed slave-produced goods from the South.¹⁵⁴ As a response to their reporting on the conditions of American slavery, early American press outlets, including The Liberator, managed by the abolitionist William Lloyd Garrison, regularly faced attacks.¹⁵⁵

The Negro History Bulletin reported on the mobs that threatened abolitionists. A 1944 article chronicled the various death threats, smashing of printing presses, and broad attempts (and successful efforts) to undermine freedom of the press.¹⁵⁶ Very likely, these incidents were not unfamiliar to abolitionists like Senator Sumner. For example, Elijah P. Lovejoy, a Presbyterian minister from Maine, was ultimately murdered defending his press.¹⁵⁷

In 1837, a slave was accused of a serious crime and tried in the “Lynch Court” by a man named Judge Lawless. The slave was found guilty and sentenced to be burned alive. Lovejoy protested in his newspaper to no avail; and when he persisted after the slave had been executed, a mob broke in his office and smashed his printing press. He was driven out of St. Louis and moved about twenty miles up the river to Alton, Illinois where he started a similar paper known as The Alton Observer. His press was destroyed two more times, and he finally met a violent death while defending his press against a third Alton mob.¹⁵⁸ If not for strange social and political resistance to unpacking America’s history of enslavement, it would appear almost obvious that advocates of slavery embraced and shrewdly deployed violence, mastering not only tools of brawn, but also political and economic power. Their political influence, and pressure to maintain an iron grip on chattel slavery, proved successful. As history records, this included their advocacy for the Congressional enactment of Fugitive Slave laws of 1793¹⁵⁹ and 1850, which not only returned many who had escaped from slavery, but also contributed to the kidnapping of free or freed persons into slavery.¹⁶⁰

Notably, Senator Sumner’s determination to incorporate language that “all persons are equal” into the Thirteenth Amendment failed. He firmly corrected Senator Howard, who persisted in describing the Sumner amendment as emphasizing “freedom” rather than “equality.” Several times, Senator Sumner responded, “it is equal,” to which Senator Howard replied, the distinction between being free and being equal is “immaterial,” and “utterly insignificant.”¹⁶¹ However, the difference between the language of freedom versus equality in the Thirteenth Amendment was no less important than what colonists fought for against the British or drafted into the Declaration of Independence.

The debate about equality, freedom, and the Punishment Clause in the Thirteenth Amendment reveals two concerns. First, even senators opposed to slavery indicated discomfort with the concept of Black people being equal in stature and law to white people. Second, equality baked into the Constitution interfered with patriarchal norms and power relationships between men and women, husbands and wives. Senator Howard spoke to the anticipated dangers: “I suppose before the law a woman would be as free as a man. A wife would be equal to her husband and as free as her husband before the law.”¹⁶² In essence, early attempts to establish Black people’s equality under the law suffered because of the threat of dislodging male dominance domestically and the dismantling of a racialized monopoly on power.

Before the debate ended, Senator James Alexander McDougall of California offered an impassioned defense on the importance of equality, explaining, “I shall not be set down in any place by any man as a person who does not love freedom in all its forms.”¹⁶³ He argued, “I do not believe that from Maine, Vermont, or New Hampshire, or Massachusetts, or Connecticut, or Rhode Island… there comes a man who is more attached to the establishment and maintenance of free institutions than I am myself.”¹⁶⁴ He was a contemporary of Abraham Lincoln, had practiced law in Illinois, and by historical counts, he and Lincoln were friends. However, on the question of equality or freedom for the formerly enslaved, he made three key arguments worth observing.

First, he offered a warning that Black people might be better off enslaved than free, because of the “vices” and “violence” that might arise in white people objecting to their freedom.¹⁶⁵ He warned that a policy granting freedom “will ingulf [sic] them. It is as simple a truth as has ever been taught by history.”¹⁶⁶ Clearly a strange and troubling argument – that Black people should not gain freedom because it might stir anger and violence in white Americans – that nevertheless proved prescient. Interestingly, McDougall did not urge or suggest a political (or criminal) response to this real threat of violence. Ratification of the Thirteenth Amendment ended one form of slavery and transformed it into another.

Under constant surveillance and criminal law traps, conditions of slavery returned for many Black people in the form of convict leasing, peonage, Black Codes, and even refined apprenticeship laws designed to literally kidnap Black children from their parents and hold them in service for up to twenty years. As well, post-Reconstruction witnessed the birth and rise of the Ku Klux Klan; rampant lynching throughout the United States, which included targeting Black women and children; and the introduction of Jim Crow policies.

Second, even as a friend of “freedom” and “equality,” Senator McDougall, like others in the non-slaveholding class, believed in the racial caste system embedded in U.S. law and baked into the fabric of our nation. Lauded as a gifted orator, he took the floor warning that “the African race and the Europeans are different.”¹⁶⁷ He claimed “it as a fact established by science that the eighth generation of the mixed race formed by the union of the African and European cannot continue their species.”¹⁶⁸ Rich with eugenics imagery and citing no evidence, he appealed to fellow senators, “quadroons have few children; with octoroons reproduction is impossible.”¹⁶⁹ According to him, “it establishes as a law of nature that the African has no proper relation to the European, Caucasian blood.”¹⁷⁰

Third, to the extent that the seeds of the racial caste system grew deeply in southern soil, so too did its roots reach the aquifers in the north. Even while Black people found safe harbors in certain northern towns, racism and white supremacy also persisted in northern colonies, territories, and states. According to Senator McDougall, the formerly enslaved would be destined to life in the South, “where they belong,”¹⁷¹ and not necessarily in the north where those of his class built their lives. According to McDougall, “nature” may well “revolt” at Black people’s freedom and equality . ¹⁷² He along with Senators Davis, Hendricks, Powell, Riddle, and Saulsbury voted against the Thirteenth Amendment.¹⁷³

B. Preservation of Slavery Through Transformation: Making Convicts of

Freed People

There is no denying the articulated opposition to slavery in legislatures, courts, and society generally in the United States. Yet, despite “repeated condemnation of slavery,” such united opposition to the practice “may instead function to exonerate practices contested in the present, none of which looks so unremittingly ‘evil’ by contrast.”¹⁷⁴ Thus, if the first American history of slavery preceded 1865, the second wave began at the dawn of the Thirteenth Amendment’s ratification.

The Thirteenth Amendment’s final version emerged from the Senate Judiciary Committee with Senator Henderson’s language, permitting both involuntary servitude and perpetual slavery as constitutionally sanctioned punishments for committing crimes. By the end of 1865, Southern states enacted numerous “Black Codes,” criminal laws that only applied to “Blacks and Mullatoes.”¹⁷⁵ As Herbert Hill explained, “proliferation of infamous Black Codes and Jim Crow laws conspired to deliver newly freed blacks to the statutory status of nonslaves but not to the equal rights of American citizenship; they were still the bondsmen of subjugation and exploitation.”¹⁷⁶ In other words, the Thirteenth Amendment’s textual abolition of slavery did not reach the lived conditions of Black people. Southerners could in fact, as they did, oppose slavery and practice it at the same time under a new guise sanctioned by Congress under the Punishment Clause.

As Part II.B briefly demonstrates in this Article, and as chronicled in greater detail elsewhere,¹⁷⁷ although Black peoples’ previous condition of servitude was textually abolished by the 1865 ratification of the Thirteenth Amendment, the vestiges of slavery lingered and transformed, buttressed by law, further instantiating racial inequality. History offers two accounts regarding the abolition of American slavery. The first is that with the December 19, 1865 ratification of the Thirteenth Amendment, slavery in the United States ended, opening a new period of reconstructing the Union. This version of legal history is, for the most part, what law professors teach their students and largely forms social, political, and academic understanding in the United States.¹⁷⁸

Others believe President Lincoln’s wartime Emancipation Proclamation Act liberated all Black people. This is an enduring error in the popular annals of slavery. Those who take this view fail to understand that states conciliatory toward and willing to join the Union were not obliged to end slavery in their territories.¹⁷⁹ Without Congressional action at the conclusion of the Civil War, those states would be permitted to legally enforce slavery and continue life as before. As most Americans understand it, either through the Emancipation Proclamation or the Thirteenth Amendment, slavery ended. Simply put, this theory that slavery died with Lincoln’s Emancipation Proclamation is an error.

Another view is that slavery never ended. Rather, it transformed as new means to exploit Black labor emerged, evolving perhaps several times.¹⁸⁰ As I have previously stated, this reading of slavery is more complicated and likely confounding to some; after all, the Thirteenth Amendment served as a vehicle for freedom. For example, after 1865, no Black child in the United States could be born into slavery nor designated the property of her parents’ “master.” Even as some Black people may have labored in the same fields as before—perhaps under the direction of people who previously claimed ownership of them—at least from a federal policy perspective, pay was expected and often resulted. Moreover, by the plain language of the Thirteenth Amendment, Black people who were not convicted of crimes were “free” persons. For these reasons, the story of slavery’s end in 1865 seems more than logical and a hopeful reading about the potential of the United States to confront its racial past and extinguish the badges of slavery for good. After all, the goal of the 38th Congress was to abolish slavery, even if equality could not be agreed upon.¹⁸¹

The reality, however, is that Southern lawmakers contrived to suspend and undermine the new freedom accorded to the class of previously enslaved Black people before the Thirteenth Amendment’s December ratification. Between April 8, 1865, the date of the Senate vote, until and even after ratification in December 1865, southern lawmakers expended great energy innovating myriad laws and provisions to render newly freed Black people vulnerable to the Thirteenth Amendment’s Punishment Clause.¹⁸² As such, the bandage of the Thirteenth Amendment was snatched off the wounds of slavery before the scars ever healed.¹⁸³

Southern lawmakers reframed, retooled, and resuscitated slavery, drafting a new blueprint that included designs on criminal statutes, Black Codes,¹⁸⁴ and the introduction of convict renting and leasing, which could span decades for minor offenses.¹⁸⁵ These systems supplied cheap labor to coal mines and railways and drove this expansion of slave labor in the Southern economy.¹⁸⁶ According to William Warren Rogers and Robert David Ward, the new penal codes in effect after ratification of the Thirteenth Amendment contained “infamous ‘Black Codes’ that discriminated against the newly [freed slaves], and resembled the ‘Slave Codes’ of antebellum days.”¹⁸⁷ They explain,”[m]ost importantly, the new code enabled county courts to hire out vagrants, mostly blacks, to work out their sentences,” and as a result, “[w]orking for the county became the punishment for a number of offenses.”¹⁸⁸

Persons guilty of felonies were sent to the state penitentiary, while the county jails housed those convicted of misdemeanors plus costs. From there the prisoners could be leased for “hard labor” either within the county or elsewhere. The Black Codes… remained an accepted and defended mode of punishment and profit.¹⁸⁹

A commitment to the solidification of the racial caste system is reflected in Black Codes. According to Eric Foner, “[v]irtually all the former Confederate states enacted sweeping vagrancy and labor contract laws, supplemented by ‘antienticement’ measures punishing anyone offering higher wages to an employee already under contract.”¹⁹⁰ Throughout the south, Black Codes were common, calling for “hard labor” and fines for what amounted to existing in southern towns. In 1876, a mere decade following ratification of the Thirteenth Amendment, the Georgia legislature enacted a law that authorized prison officials to lease inmates for twenty years at the price of $500,000.¹⁹¹ The law unmistakably targeted Black people, even though it did not do so explicitly in the language of the statute. In 1878, Georgia leased out 1,239 prisoners for labor: 1,124 were Black.¹⁹²

In Orlando, Florida, a city ordinance provided “any person or persons who shall stand or gather on any sidewalk in the city of Orlando in such a manner as to obstruct the passage of persons along such sidewalk, shall, upon conviction, be fined in the sum of five dollars or be imprisoned in the calaboose for five days at hard labor.”¹⁹³ Similarly, in Alabama, lawmakers made it a crime for “free negroes and mulattoes” to assemble in a disorderly manner.¹⁹⁴ Another Alabama code stated that Black people employed by farmers “shall not have the right to sell any corn, rise, [sic] peas, wheat, or other grains, any flour, cotton, fodder, hay, bacon, fresh meat of any kind, poultry of any kind, animal of any kind.”¹⁹⁵ This law, although enacted after the Thirteenth Amendment’s ratification and the abolition of slavery, referenced “masters” in relation to Black laborers.¹⁹⁶

Likewise, Mississippi legislators established a series of Black Codes associated with vagrancy. They imposed inordinate fines of $150 for the equivalent of what today would be misdemeanor violations.¹⁹⁷ If the fines could not be paid, the Mississippi codes provided that:

[A]ll fines and forfeitures collected under the provisions of this act shall be paid into the county treasury for general county purposes; and in case any freedman, free Negro, or mulatto shall fail for five days after the imposition of any fine or forfeiture upon him or her for violation of any of the provisions of this act to pay the same, that it shall be, and is hereby made, the duty of the sheriff of the proper county to hire out said freedman, free Negro, or mulatto to any person who will, for the shortest period of service, pay said fine or forfeiture and all costs.¹⁹⁸

Children were not spared the racial caste system. Even though they were born free, they too could be reduced to slavery before reaching puberty. According to Douglas Blackmon, “[i]n the immediate wake of emancipation, the Alabama legislature swiftly passed a measure under which the orphans of freed slaves, or the children of blacks deemed inadequate parents, were to be ‘apprenticed’ to their former masters.”¹⁹⁹ Binding out children exemplified the perversely transformed apprenticeship laws.

Children and young adults were not spared the fines, penalties, and hard labor. In Florida, a law mandated “every free negro over twelve years old, who should fail to have a guardian, should be fined and committed to jail until the fine should be paid.”²⁰⁰ This law also provided that any person who purchased from or sold to any free “negro or mulatto” without the written consent of the selected guardian, would be punished with a fine.²⁰¹

Profits were made all around, including by unscrupulous prison wardens who negotiated special deals with coal mining executives, supplying the bodies of Black teenagers who landed in prison because they could not afford to pay fines for walking down a street or standing on a corner.²⁰² The wardens would lease these children for up to 20 years—if they survived that long—to the tycoons of the nation’s most profitable industries.²⁰³

The goal and result of the Punishment Clause was the retrenchment of slavery and it did much more. Southern lawmakers curated slavery’s expansion on southern tenant plantations. According to economist Nancy Virts, tax records showed the number of plantations in select Louisiana parishes increased by 286 percent between 1860 and 1880.²⁰⁴ Similarly, rather than attenuation after the abolition of slavery, southern plantations increased in size, resulting in greater wealth production. During the early years of Jim Crow, tenant plantations increased their size (in acreage) in Alabama, Georgia, Louisiana, Mississippi, and South Carolina from 19 to 24 percent.²⁰⁵

Lawmakers and local officials policed enforcement of crop liens and innovated new slave provisions consistent with the constitutionality of the Thirteenth Amendment, such as lifetime labor. Debt peonage evolved into a new form of bondage.²⁰⁶ Southern lawmakers persisted in the fomentation of a racial caste system sufficiently durable to withstand the new constitutional provision designed to arm Black people with freedom. This speaks to their creativity in amassing odious laws. Slavery’s reinvigoration after the Thirteenth Amendment’s ratification reflects the devious means by which southern lawmakers governed and the practices they deployed to subvert the constitutional protections newly gained by Black people. Black Codes reflected southern lawmakers’ insincerity in ratifying the Thirteenth Amendment.

Before ratification of the Thirteenth Amendment, abolitionists rallied to the aid of enslaved Black people. They denounced policies and practices that subjected innocent children, women, and men to the worst physical and sexual cruelties. After the Thirteenth Amendment’s ratification and inclusion of the Punishment Clause, incarcerated Black children were convicts and criminals—far less worthy of northerners’ sympathy— although they were no different than before.

The Thirteenth Amendment’s Punishment Clause has never been repealed and continues to evolve. With disparate surveillance, policing, arrests, charges, and prosecutions, Black people disproportionately experience the criminal justice system. Locked in this system, they and others “convicted of a crime” are modern subjects to this clever southern strategy.

Conclusion

The United States incarcerates more people than any other nation in the world. Thus, even while the cotton fields of old may no longer be populated by Black laborers from the damp dawn to chilly dusk, other practices reinforcing slavery persist. Today, conditions of slavery persist, especially during COVID-19. The incarcerated “convicts” put out wildfires in California for less than two dollars per hour and sew COVID-19 masks, which they are not provided.²⁰⁷ In New York, they make the hand sanitizer for no, or barely any, pay. In some prisons and jails, people receive no pay or only pennies per hour for their labor.²⁰⁸

In Alabama, incarcerated people earn no pay for what are referred to as “non-industry jobs,” although work programs facilitated by Alabama aid private industries (making couches, barbecue grills, and other items).²⁰⁹ Workers in those programs can earn $0.25 to $0.75 per hour, according to data collected by the Prison Policy Initiative in 2017.²¹⁰ The same is true for Florida. Arkansas and Georgia don’t pay for non-industry nor private industry jobs.²¹¹ States that do pay for “non-industry” jobs do so with the most meager of wages: as little as $0.10 per hour in Arizona²¹² or $0.04 in Louisiana.²¹³ Private industry jobs in these states might fetch under $1.00 per hour.²¹⁴ If this sounds like modern day slavery to you, you are right. It is. Today, the “Punishment Clause” is what permits slavery to persist in the United States. Given the demographic patterns of mass incarceration, the racialization of this system cannot be overlooked.

Part III: Social Caste, Social Code, and Social Distance:

Legislating Inferiority

Parts I and II tell a creation story about the law’s role in the fomenting of racial caste in the United States. Part III demonstrates how local ordinances and state-based legislation fueled this ideology and served as an exhilarant on an already raging fire.

Part III makes three contributions. First, it renders discernible and visible America’s racial caste system as a legal caste ordering and problem. Of course, law does not operate in a vacuum, nor in the absence of legal actors, including lawyers, prosecutors, legislators, and judges. Law is not self-enforcing, nor does it come to life on its own, independent of people who establish, enforce, and evaluate it. Second, it challenges the idea that the Thirteenth Amendment permanently divested America of the badges of slavery. Here, the contribution is not in highlighting the continued uncompensated labor as described in Part II. Rather, it turns to the emotional and psychological indignities of slavery found in the barriers to full and equal participation in society. Third, Part III shows how the public and private values, principles, and ideals that normalized the kidnaping and trafficking of Africans and later created slaves of men, women, and children, served to rationalize racial caste post-Reconstruction to lingering and enduring effect.

In a seminal legal treatise, States’ Laws On Race and Color , Dr. Pauli Murray,²¹⁵ a predecessor to Justice Ruth Bader Ginsburg at the American Civil Liberties Union (ACLU), placed in stark detail law’s complicity in establishing the American racial hierarchy and its explicit ranking of racebased privileges in the post-Reconstruction Era and decades deep into the 20th century. Exhaustively detailed, the treatise chronicles thousands of laws and codes explicitly excluding, segregating, and subordinating Black people based on their politically constructed race—state by state and, in some instances, by city.²¹⁶ Collectively, discriminatory state legislation and local regulations and codes stitched together public policy on race in the United States.

In turn, the public policy on race in the United States reinforced and fomented new discriminatory social norms and expectations regarding racial order, including in private spheres, for which the Supreme Court showed dismissive regard for the protections accorded Black people by the Thirteenth and Fourteenth Amendments.²¹⁷ In The Civil Rights Cases, in an 8-1 opinion, the Court stated:

There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement.²¹⁸

In other words, the denial of accommodations and basic dignities associated with one’s personhood simply constituted “mere discrimination.”²¹⁹ And, “mere discriminations on account of race or color,” according to the Supreme Court, “were not… badges of slavery” or, for that matter, sufficiently odious to be unconstitutional.²²⁰

As such, the denial of services to Black people in the private sphere—such as at eateries, department stores, gas stations, hotels, and motels (by law or social preference)²²¹—mirrored the hostilities imposed by the government, reflected in numerous racially discriminatory state statutes and local regulations and codes.²²² The hostility toward Black Americans was so ubiquitous that “Coca-Cola machines had ‘White Customers Only’ printed on them.”²²³ The racial caste system—an irrational social and legal policy—evolved into facto viam vitae, a de facto way of life. Sadly, if white people had no particular reason to discriminate against or hold Black people in contempt, state laws and codes of the 19th and 20th centuries provided reason to do so and demanded it of them.

Murray’s treatise copiously documents race-based laws adopted by legislatures throughout the United States. These laws included legislation and ordinances segregating accommodations, imposing racial restrictions in cemeteries, and prohibiting integration in schools.²²⁴ Not only did such laws bar interracial marriages, as described in Part I, they included bans on the interchange of textbooks between “white and colored schools” and imposed segregation in colleges and universities, among other racially discriminatory enactments. Local courts upheld most of these laws, and they were legalized generally in Plessy v. Ferguson .²²⁵ In that case, the Supreme Court upheld a Louisiana Act that mandated railways enforce segregated seating and accommodations. According to the Court:

A statute which implies merely a legal distinction between the white and colored races —a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color —has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.²²⁶

Legal race traps were ubiquitous, invasive, and caused suffering related to what one could or could not do.

These laws were radical in their scope and scale. They reflected and were in service to an essential tenet of the racial caste system—the deployment of rigid social stratification defining restrictions where people ate, lived, how they traveled, enjoyed entertainment, social recreation, and more. Even if white people desired building relationships with Black colleagues, friends, or relatives, under state and local statutory provisions and codes, they were prohibited from doing so. State and local lawmakers precluded the probabilities of “race-mixing” in nearly every possibility, except in Black people’s service to white people in their states, cities, and towns.

The laws were comprehensively drawn and so highly detailed that, upon reading a few or hundreds, their explicit and implicit aims to preserve and advance white supremacy, reinforce racial stratification and race-based hierarchy, impede interracial connection and intimacy, and create nearly impenetrable barriers to Black peoples’ ability to overcome the vestiges of slavery, are inescapably clear. Moreover, even if not explicitly drawn in such statutes and codes, these rules inherently sowed suspicion in the despised class. After all, why would lawmakers go to such lengths to protect white people from exposure to Black people? For years, these laws were perceived as race-neutral, constitutional, and therefore invulnerable to legal challenge, largely based on prior Supreme Court jurisprudence.²²⁷

Local, race-exclusionary ordinances included language barring white people from certain activities such as living in Black neighborhoods and imposed similar restraints on “negros.” Lawmakers could stave off criticism by pointing to their codes as not denying Black people’s ability to ride a local bus; they simply demarcated where the seating could be. Officials could and did argue that they did not deny an education to Black children, rather students learned among their racial kind.²²⁸ Legal challenges to these laws were futile. The centuries-long dignity harms inflicted on Black people had largely not been vindicated in courts, particularly the Supreme Court.²²⁹

A cursory examination of local ordinances brings the dignity concerns, harms, and evidence of inequality forward. For example, in Atlanta, Georgia, it was illegal for Black barbers to serve “white women or girls.”²³⁰ A violation of the law was punishable by a “fine not exceeding $200, or sentence[] to work on the public works of the city.”²³¹ The law left it to the discretion of the local magistrate to impose one or both of the punishments.

A cursory examination of local laws shows the effort and interest of local officials to import and impart the inferiority of Black Americans into law. These ordinances also tell the story of the incessant effort to maintain racial hierarchy by means of law in the United States. These laws mirrored others in cities and towns across the nation. These laws showed a preoccupation with Black people throughout their lives, and through discriminatory burial policies, the racial caste system even followed them to death. The ordinances were vast in scale and scope. This brief sampling represents a broad set of restrictions intended to reinforce America’s enduring racial caste system.

A. Dining

In Birmingham, Alabama, it was unlawful to conduct a restaurant or other place serving of food in the city, at which white and colored people are served in the same room, unless such white and colored persons are effectually separated by a solid partition extending from the floor upward to a distance of seven feet or higher.²³²

Similarly, in Atlanta, Georgia, an ordinance required drastic separate seating accomodations for white and “colored” people; according to the ordinance,

All persons licensed to conduct a restaurant, shall serve either white people exclusively or colored people exclusively and shall not sell to the two races within the same room or serve the two races anywhere under the same license; the purpose of this section being that each licensee shall serve either one race or the other and that no license shall authorize sale to the two races at or near the same place.²³³

To advance these policies, the iconic signs “for white people only” were mandated, created, and posted.²³⁴

B. Housing

In New Orleans, Louisiana, a local ordinance prohibited “white persons from establishing a home residence in a negro community.”²³⁵ It was also illegal for a city engineer to give a building permit to anyone building a house in a white community that would be occupied by a Black person.²³⁶ Discriminatory laws were justified on the basis that they reflected local custom. Pointing to this, a Birmingham code adopted in 1949 related to housing segregation stated, “from the date of the original settlement of this City unto the present time it has been the invariable custom, supported for most of that time by municipal law and universally observed… to require white and colored residents to live in separate residential areas.”²³⁷

However, local governments also appealed to fear. Again, in Birmingham, to further legitimize their racially discriminatory laws, local officials established a commission to review its policies. Among its findings, the commission claimed that when white people or Black people established permanent residency among each other, the results were “violence, disturbances of the peace, destruction of property and life . . . almost without exception.”²³⁸ The commission’s ordinance provides no evidence of such violence, certainly none of Black people harming white people as neighbors.

What history does show is that Alabama had long been cruel in its regard for Black lives. Alabama stands out in a prior work examining the Thirteenth Amendment, the Punishment clause, and post- Reconstruction Black Codes.²³⁹ Alabama lawmakers made it punishable for “free negroes and mulattoes” to assemble in a disorderly manner.²⁴⁰ Yet another Alabama Black Code made it “unlawful for any freedman, mulatto, or free person of color in [Alabama] to own fire-arms, or carry about his person a pistol or other deadly weapon under a penalty of a fine of $100.”²⁴¹ Speaking directly to questions of violence and punishment, it was the state that had (prior to the ratification of the Thirteenth Amendment) permitted the whipping and branding of Black people. The state announced a change, enacting “[w]hipping and branding are abolished, as legal punishments, and a new punishment is introduced entitled, ‘hard labor for the county.’”²⁴² Alabama’s restrictions on Black people were exhaustive, constraining, denying, and interfering with all manner of freedoms associated with employment, education, housing, sex, family, freedom of association, farming, possessing paperwork to farm and sell goods, and more.

Placing in context Alabama’s 1949 ordinance barring interracial housing based on claims of violence, the commission did get one thing right: Black residents commonly regarded Birmingham as “bombingham” for the nightmarish assaults on their lives, their children’s lives, and on their places of worship.²⁴³ A Birmingham periodical chronicled some of the horrors inflicted on Black communities through photography.²⁴⁴ As the accompanying text to their virtual gallery notes, “[v]iolent racists in the late 1940s voiced their disapproval with shouts of dynamite, shattering windows, splintering homes and churches, and, in the course of 20 years, turning the Smithfield neighborhood into ‘Dynamite Hill’ and the Magic City into ‘Bombingham.’”²⁴⁵

Rather than seriously investigating, pursuing leads, and charging suspects, local officials failed to protect those harmed by racist violence and left Black families and religious leaders essentially on their own. With such negligent or purposefully unavailing leadership to protect its Black citizens, white individuals and mobs used dynamite as a means of inflicting terror and fear in Black communities. An original caption to a 1948 bombing reads, “Here is the interior of the house at 1100 Center Street, showing effects of the dynamite blast early today on the transom and front porch of the home.”²⁴⁶ Another caption from 1949 reads, “Birmingham Alabama Smithfield Bombing, 1949. Back Porch was Here: A police officer surveyed damage to one of three homes that were blasted in an after-midnight explosion in the North Smithfield section. The back porch was blown off the house.”²⁴⁷ Such news headlines were common in Birmingham.²⁴⁸

A familiar feature of such violence was that law enforcement did very little to either protect the lives of Black people or to bring to justice those who committed such crimes. In the 1960s, the world viewed the aftermath of how far white supremacy reached in threatening the lives of Birmingham’s Black residents as four little girls were killed and numerous others maimed, permanently paralyzed, rendered blind, and otherwise injured at the 16th Street Baptist Church in Birmingham.²⁴⁹

C. Transportation

In reviewing archives of race-based discriminatory laws, it is evident that local governments concentrated significant energy on enacting laws related to transportation by taxis, buses, railways, and cars for hire. In Dallas, Houston, Birmingham, Mobile, New Orleans, and elsewhere, local governments commonly mandated restrictive and discriminatory transportation laws. Penalties and fines as punishment for violating the ordinances were common.²⁵⁰ Some clauses directly involved the police, obligating them to enforce the segregation policy.

In Jacksonville, Florida, it was illegal for Black people and white people to take taxis together.²⁵¹ An ordinance mandated that “any police officer” observing individuals violating the law “shall arrest any such person and take him or her from such car and carry him or her to the police station as in case of any other person guilty of disorderly conduct.”²⁵²

Similarly, in Atlanta, it was the “duty of police” to “give special attention” to racial segregation in street cars and “arrest . . . person so violating said laws.”²⁵³ Birmingham, Alabama required that any business or operator of a taxicab, jitney, or bus in the city accommodate white people and Black people with separate vehicles or “by clearly indicating or designating by visible markers the area to be occupied by each race in any vehicle in which the two races are permitted to be carried together and by confining each race to occupancy of the area of such vehicle so set apart for it.”²⁵⁴

D. Recreation

In Birmingham, Alabama, a city ordinance barred “any room hall, theatre, picture house, auditorium, yard, court, ball park, public park, or other indoor or outdoor place” from permitting any “theatrical performance, picture exhibition, speech, or educational or entertainment program of any kind whatsoever, unless such” facility had entrances and exits, seating and standing sections “set aside for and assigned to the use of white persons” and that were “distinctly separated” from any that may exist for “the use of negroes.”²⁵⁵ The ordinance mandated the use of “well defined physical barriers” to exclude contact between white people and Black people.²⁵⁶

Birmingham also enacted an ordinance titled, “Negroes and White Persons Not to Play Together.”²⁵⁷ This regulation pertained to gambling, pool and billiard rooms, and bowling alleys.²⁵⁸ The ordinance made it a crime “for a negro and white person to play together or in company with each other in any game of cards or dice, dominoes or checkers.”²⁵⁹ Persons caught violating this regulation could be fined $100 or imprisoned in “the local jail, workhouse, or house of correction or at hard labor” for up to 6 months, “or both fine and imprisonment.”²⁶⁰ Not only were the participants subject to criminal punishment for violating the law, but so too were the owners of such establishments permitting Black people and white people to play together.

Similarly, restrictions were enacted in other cities. In Houston, Texas, city council members established Emancipation Park for Black people. In the same code granting Black people the use of a park with a symbolic name, the local government established that “all other parks in the city now or hereafter existing… shall be used exclusively by white people.”²⁶¹

Conclusion

Lawmakers craftily baked white supremacy into local ordinances throughout the United States. These laws prioritized pleasure, comfort, and safety for white Americans. In Dallas, Texas, these codes barred Black people from the freedoms to which white people were entitled, applying to “any person of African descent or any person who has any negro blood in his veins of whatsoever quantity.”²⁶² Quite possible, if not likely, state and local lawmakers bent on legalizing white supremacy and racism drafted legislation and local ordinances with the Plessy precedent as their blueprint.

By denying basic needs, accommodations, and comforts to Black citizens, lawmakers weaponized the law for a discriminatory agenda, spanning centuries. States collected tax revenue from Black Americans, yet denied them access to the public spaces their tax dollars subsidized, including parks, swimming pools, and other outdoor facilities. Their tax payments contributed to the bricks and mortar for schools that would ultimately serve only white students and deny Black children admission.

This corruption—local officials extracting resources from Black Americans to fund spaces and services exclusively to benefit white people—was yet another, perverse vestige of slavery; Black people laboring and contributing to luxuries they could not enjoy. Individually, any one such restrictive law, denying where one might live, eat, or sleep perpetrated a terrible offense on a class of people. Collectively, these policies showed disdain for the constitutional equality of Black people.

Part IV: Racial Caste and The Familiar

Of all the races and varieties of men which have suffered from this feeling, the colored people of this country have endured most. They can resort to no disguises which will enable them to escape its deadly aim. They carry in front the evidence which marks them for persecution. They stand at the extreme point of difference from the Caucasian race, and their African origin can be instantly recognized, though they may be several removes from the typical African race. They may remonstrate like Shylock… –Frederick Douglass²⁶³

Thus far, this Article tells a story about racial caste and hierarchy embedded in law, texts, policies, and positions. As stated earlier, law does not operate in a vacuum, nor is it shaped absent legal actors: judges, politicians, prosecutors, and advocates. Indeed, since the first ships transporting African slaves arrived in what would become the United States, numerous lawmakers, judges, and others were complicit in demarking racial boundaries. However, they are not the point of this Article. This Article’s purposeful focus on laws is to demonstrate that the power of racial hierarchy and caste in the United States are systemic, rooted in institutions and infrastructures rather than individuals.

As such, this Article has argued that law created racial caste in the United States. Parts I and II articulated that this process began during the period of Antebellum slavery through the enactment of specific laws and adoption of practices and policies that safeguarded human kidnapping, trafficing, and the denial of personhood to the Africans subjected to such conditions. At the time of the nation’s founding, “slavery was legal in every state in the Union.”²⁶⁴ Even though the Thirteenth Amendment was designed to lift Black people from the vestiges of slavery, it was not intended to confer equality. Nor did it. Rather than abolishing racial caste, the Thirteenth Amendment’s Punishment Clause further instantiated it. Part III demonstrated the enduring power of legislation to advance racial caste in the United States.

Parts I through III tell a story about the weaponization of law to achieve and fuel the racial caste system in the United States. Part IV turns to the effects of law, providing a cursory surfacing of traumas produced by racial caste. It takes up the challenge to illume the past as a means of shaping viable, credible pathways for meaningful equality in the future. Subpart A of the Article briefly considers arguments that offer a different origin story than racial caste—one rooted in raw expressions of power associated with capitalism, furthering religious ideology, or the preservation of whiteness rather than anti-Blackness. Subpart B briefly excavates examples of the hidden, largely overlooked effects of racial caste. In closing, Part C advocates for continued investment in reckoning with racial caste and the lessons that might be drawn from it.

A. Caste, Tolerance, and Intolerance: Origin Stories

Lawmakers founded America’s racial caste system or “raceselfishness” on ideologies of exclusion versus inclusion.²⁶⁵ In 1897, President Roosevelt wrote, “democracy, with the clear instinct of race selfishness, saw the race foe, and kept out the dangerous alien.”²⁶⁶ The ideology of white supremacy and racial hierarchy operated within and without, drawing internal as well as external boundaries. The vestiges of nationalism survive today in immigration policy.

Castes rely on hierarchy and exclusion, the exaltation and privileging of those at the top and the subordination and often stereotyping of those at the bottom. The enslavement of Black people is foundational to the history of racial caste in the United States. However, overlapping histories and theories as well as temporal political battles both internally and externally problematize this history. For example, some scholars claim that slavery had very little to do with race in its beginnings. Others claim that religion was the key distinction, determining who would and would not be enslaved in the colonies and later states. Another view suggests that racial caste, during eugenics, centered on white Americans and had little to do with Black people. The deployment of science in service of racism and exclusionary policies, including forced sterilization and immigration bans in the late 19th century and for decades forward, undermines the latter proposition.

Given this history, three lines of thought are acknowledged and briefly addressed here. 1. Theories of Caste and Slavery: Slavery Had Nothing to Do with Race

First, there is the provocative theory that slavery had nothing or very little to do with race. In other words, the foundation of racial caste in the United States—slavery—was not even race-based. This view suggests that “slavery divided the nation; race not so much.”²⁶⁷

holders, not the rights of those enslaved or degraded by the racial identity ascribed to them.”²⁶⁸

There are two ways to interpret this theory. The first is that slavery was about galvanizing power, expanding capitalism, and safeguarding the system by securing it in the hands of elite white men. The source of human chattel mattered very little. Hence, the chattel’s race was inconsequential to the pursuit of power, wealth, economic stability, and the growth of slavery. Another branch of this argument (that slavery was not about race, but rather power) is that “[w]idespread consensus consigned nearly all blacks to sub-citizen status, even when they were not legal property.”²⁶⁹ In other words, the inequality of Black people was a foregone conclusion , whether they were enslaved or not . As such, even while Black people were as “important in building northern cities such as New York as they were in producing the cash crops on which the southern economy depended,” they were not as important to the debates about their lives as matters of taxation and statehood.²⁷⁰

Further, for some northern lawmakers, dissolving the nation’s reliance on slavery seemed inevitable well before the Civil War. The question was how? Should the offspring of enslaved Black women be born free? Obtain freedom at eighteen or twenty-one years of age? Scholars such as Henry Hartog and James Gigantino refer to this as an “in-between status” for Blacks living in the North—not quite free, and not quite enslaved.²⁷¹ The gradual abolition law of New Jersey, the last enacted by a state, provided that children born to enslaved mothers after July 4, 1804 would obtain emancipation on their twenty-fifth birthday for men and twenty-first birthday for women.²⁷² Scholars debate whether such efforts were motivated by concerns related to race or simply that slavery no longer benefited the broader political interests and concerns of wealthy elites.

Even if one were to give weight to the view that slavery could exist as a political question without any meaning related to race, history begs a different conclusion both in the North and South. Even as evolved notions of equality emerged among white citizens—for example, voting enfranchisement in the North no longer depended on property ownership—states that adopted such laws excluded “free” Blacks from voting.²⁷³ They qualified these laws by explicitly stating that the new voting rights applied only to “white” qualified voters.²⁷⁴ As a result, Black people were removed “from the electorate where some had once held franchises. All new free states entering the Union before the Civil War did so without property qualifications for voting, but with explicit constitutional denials of black suffrage.”²⁷⁵ In New Jersey, even after adopting a “gradual emancipation” law, the state enacted a law “to establish the presumption that black people were slaves unless proven free.”²⁷⁶

2. Theories of Caste and Slavery: Religion Determined Social and Legal Status—Not Race

A second line of thought is that enslavement had as much or more to do with religion than race.²⁷⁷ According to an important line of research, an original dividing line considered by early white settlers and lawmakers measured Christianity and not skin color.²⁷⁸ This informed who could be relegated to the conditions of enslavement and who was protected against the possibility of human bondage. Religious considerations marked the boundaries of enslavement in England and its colonies.²⁷⁹ Thus, in 1677, in Butts v. Penny , the Court of the Kings Bench ruled that enslaved Blacks were subject to the rules of merchandise because they were “infidels” and could be considered property for purposes of their owners claiming trover.²⁸⁰ Similar decisions were reached in Lowe v. Elton ²⁸¹ that same year and later in Gelly v. Cleve .²⁸² In the latter case, the court held that because the enslaved boy was a “heathen,” enslavement and recovery for trover were permissible.²⁸³ That is, religious differences served to designate enslaved persons, but when “a small number of free black Christians began to claim political authority, slave owners adapted—they introduced a new language of exclusion based on ‘whiteness’ rather than Christian status.”²⁸⁴

For example, “[t]he New England colonies, New Jersey, Pennsylvania, and Maryland were conceived and established ‘as plantations of religion.’”²⁸⁵ Kenneth C. Davis writes, “[f]rom the earliest arrival of Europeans on America’s shores, religion has often been a cudgel, used to discriminate, suppress and even kill the foreign, the ‘heretic’ and the ‘unbeliever’—including the ‘heathen’ natives already here.”²⁸⁶ Intense, pitched battles between colonists of various Protestant sects and Catholics served as an example of the force surrounding religion in forming colonies and organizing states. Davis writes, “[w]hile it is true that the vast majority of early-generation Americans were Christian, the pitched battles between various Protestant sects and, more explosively, between Protestants and Catholics, present an unavoidable contradiction to the widely held notion that America is a ‘Christian nation.’”²⁸⁷

The argument is that Christianity mattered more than race at the founding. A Protestant orthodoxy reigned throughout the colonies and elitism or rank in society aligned according to religion rather than race. Accordingly, enslaved Africans had no rights that white people were bound or obligated to respect because of their religious identity rather than their race . This view centers on religious intolerance as evidenced through persecutions dating back to the 1600s. For example, “[p]uritans expelled dissenters from their colonies.”²⁸⁸ Quakers were executed, including Mary Dyer.²⁸⁹ She was hanged on June 1, 1660, in response to her preaching about Quaker principles.²⁹⁰ There were also extreme punishments associated with blasphemy, breaking sabbath, and being accused of heretical conduct.²⁹¹

mained in prison for six months and his tongue was bored through three times.²⁹² Given this history, another view of the racial caste system in the United States—or at least its origins—is that religion served as the original caste system. People were sorted based on religion and not race.

Yet, even if the origins of caste in the United States were rooted in religious caste or Christian caste, ultimately race became its organizing principle. When enslaved Black people sought conversion or baptism, a quandary manifested for Christian white slaveholders—and ultimately for the broader institution of slavery. If conversion meant freedom, enslaved Africans could quickly request baptism and release from bondage, thereby undermining the foundations of slavery. Already, debate ensued regarding whether baptized Black people would be enslaved for life or some shorter period. A law that provided for the latter was repealed, because it threatened to negatively impact the slave trade.²⁹³

In Chamberlain v. Harvey , a slaveholder defended his ownership of a baptized Black man, arguing, “Who would squeeze the sugar from the cane once all slaves had been sprinkled with holy water?”²⁹⁴ According to historian Marcus W. Jernegan:

At any rate there arose in the minds of many American colonists the notion that under English law a baptized slave might claim freedom. Conscientious masters thus found themselves in a dilemma: to deny conversion and baptism would retard Christianization; to favor it might cause them the loss of their property. To avoid this dilemma, some of the colonial assemblies altered the religious sanction for slavery and based its validity frankly upon race. While positively denying that conversion or baptism was a sufficient reason for enfranchisement and insisting that all slaves must serve for life . . . .²⁹⁵

Colonies resolved this religious conundrum by embracing racial caste and ignoring caste based on religion. For example, “between 1664 and 1706 at least six colonies passed acts affirming” that enslaved persons would serve for life.²⁹⁶ In 1664, Maryland “declared that all slaves must serve for life in order to prevent damage which masters might sustain if their slaves pretended to be Christians and so pleaded the law of England.”²⁹⁷ Several years later, Maryland updated its laws to clarify that conversion or baptism either before enslavement or after should never “be a cause for manumission.”²⁹⁸ Similarly, a 1677 Virginia law “declared that slaves by birth were not freed when baptized.”²⁹⁹ Thus, even if enslaved Black people converted to Christianity, they could not climb out of the bowels of slavery.

3. Theories of Caste and Slavery: Scientific Racism, Not Race-Racism

A third view of caste in the United States centers on eugenics. Even in the 21 century, claims that race is biologically determined persist. In the wake of COVID-19, some pundits query whether the disease manifests in Blacks and Latinx communities at disproportionate rates because of their genetics. Such arguments ignore the political and social constructions of race in the United States and reinscribe—intentionally or not— the historic views that race is biologically determined. As such— according to this line of argument—Blacks are inherently inferior in health and much else because of their genes. Such thinking absolves legal and political institutions from setting the conditions that predetermine health, wealth, and personhood.

This view starts from the premise that racial exclusion was not about the descendants of Africans per se . Race at the turn of the 20th century included dozens of categories of white people as well as Asian, Black, and Indigenous Populations. This view of race hierarchy—at least as it relates to the earliest decades of the 20th century and eugenics—is that southern elite whites were more concerned about poor white people “polluting” their gene pools than a race-based caste system based on skin color.³⁰⁰

Rather, in 1883, Francis Galton, a cousin of Charles Darwin, advocated that societies should be organized by policies promoting “fitness” and betterment of the collective human race .³⁰¹ This new science, which he termed eugenics, would promote “improving a human population by controlled breeding to increase the occurrence of desirable heritable characteristics.”³⁰² Accordingly, reproduction should be arranged with models similar to animal breeding. That is, European and United States policy should promote arranged reproduction that increases the occurrence of heritable characteristics regarded as desirable.³⁰³

Galton encouraged leaders in Europe and the United States to provide economic and other incentives to support policies that encouraged selective marriages and breeding to weed out undesirable genetic traits and people.³⁰⁴ Political and economic leaders, “Alexander Graham Bell, Winston Churchill, John Maynard Keynes, and Woodrow Wilson” among them, “accepted the notion that modern societies, as a matter of policy should promote the improvement of the human race through various forms of governmental intervention,³⁰⁵ which included compulsory sterilization. In the United States, leaders embraced and implemented eugenics policies before they were adopted by the Nazis and Adolf Hitler.³⁰⁶

This version of caste—eugenics—also referred to as “scientific racism,” spurred states throughout the United States to enact laws that provided for the removal of people perceived as socially, mentally, or physically unfit from the broader society.³⁰⁷ Homelessness, addiction, poverty, promiscuity, and out-of-wedlock births constituted proof of “unfitness” in states throughout the United States.³⁰⁸ Identification as suffering from one of these conditions could, and too frequently did, result in civil or criminal incarceration or psychiatric institutionalization in state-run asylums.³⁰⁹ Carrie Buck, the indigent, unsuccessful petitioner in Buck v. Bell ,³¹⁰ was confined to such an institution. States justified incarceration and forced sterilization of girls, boys, men, and women as a sound strategy to protect the welfare of its citizens from the perceived degeneracy rampant among the lower classes. Tens of thousands of poor white Americans were sterilized against their will.³¹¹

Given this, some scholars argue that eugenics or scientific caste had more to do with intra-racial concerns than extra-racial considerations³¹² with Christianity serving as a primary, galvanizing force.³¹³ Edward Larson quotes southern white physicians who claimed, “[t]he South’s ‘poor white trash,’… is no doubt the product of the physical and mental unfit, left in the wake of the War Between the States,” and another who advised a colleague that white people with certain “hereditary traits ought not to be allowed to get married, and men who persist in [degenerate behavior] ought to be confined in reformatory… or have their testicles removed, so that it would be impossible for them to propagate.”³¹⁴ Larson suggests that the leading concern during post Reconstruction was “the deterioration of the Caucasian race.”³¹⁵ By comparison, he argues this focus on the degeneracy of poor white people was a political preoccupation that worried lawmakers far more than a “threat from the African race.”³¹⁶

Finally, even while legislatures and courts constructed the guardrails of white citizenship and reproduction, including implementing horrific eugenics platforms, Black and indigenous people were not excluded . A 1977 report prepared by the United Nations estimated that 24 percent of Native American women had been sterilized.³¹⁷ This was carried out through various means. For example, the U.S. Indian Health Service adopted policies whereby they enforced compulsory sterilizations:

The U.S. Indian Health Service (IHS) later applied forced sterilization to American Indian women in the 1960s and 1970s, sterilizing 3,406 Native American women between 1973 and 1976. In 1976, the U.S. General Accounting Office admitted that this took place in at least four of the 12 Indian Health Service regions. The numbers include women in Minnesota as well as 36 women under age 21, despite a courtordered moratorium on sterilizations of women younger than 21.³¹⁸

Black communities suffered a similar fate. Forced sterilization would become so common and targeted at little girls that it became known as the “Mississippi Appendectomy,” as one third of the practices targeted girls under eighteen years old.³¹⁹

4. Theories of Caste and Slavery: Policing the Boundaries of Whiteness

The foregoing theories of caste in the United States offer important historical reference points and guides on intolerance, class, and religion. In each, racism is minimized or regarded as nonessential to the story of caste in the United States. However, the profundity and enduring character of the racial caste system based on skin color in the United States suggests that even if religion served as an early galvanizing feature of colonial and American social organization, race ideologies based on color trumped those differences. Distinctions and discrimination based on religion gave way to discrimination based on skin color and ethnic origins tied to Africa.³²⁰

Caste in the United States gave way to the creation and preservation of social, political, and legal order based on skin color hundreds of years ago to enduring effect.³²¹ Indeed, religion was retooled to support and justify the enslavement of Black people.³²² In Christian Slavery: Conversion and Race in the Protestant Atlantic World , Katharine Gerbner writes, “[t]he irony is dark and yet unambiguous: the most self-sacrificing, faithful, and zealous missionaries in the Atlantic world formulated and theorized a powerful and lasting religious ideology for a brutal system of plantation labor.”³²³ Black people were no more able to climb out of the pits of racial hierarchy through Christianity than they were by overcoming the mathematics of hypodescent, which forever tethered one to the lowest racial caste for having “any negro blood in his veins of whatsoever quantity.”³²⁴

Eugenic practices in the United States further demonstrate racial boundary policing inside of “whiteness,” but courts policed them from the outside too, giving further evidence and weight to racial caste in the United States. Legislatures and courts reserved whiteness, which conferred privileges and rights, only for people who appeared white. As the Supreme Court declared in Ozawa v. United States in 1922,

The provision is not that Negroes and Indians shall be excluded but it is, in effect, that only free white persons shall be included. The intention was to confer the privilege of citizenship upon that class of persons whom the fathers knew as white, and to deny it to all who could not be so classified.³²⁵ In that case, the Supreme Court unanimously ruled a Japanese-

American man ineligible for citizenship because the legislature intended naturalization in the United States only for “free white persons.” One year later, in United States v. Bhagat Singh Thind ,³²⁶ the Justices unanimously affirmed that a person of Indian Sikh ethnicity did not fit the “common sense” definition of “free white person,” despite being anthropologically Aryan and a former World War I Army veteran.³²⁷

The Supreme Court left no room for doubt that the Naturalization Act of 1906 intended to confer citizenship and whiteness only on people who looked “white.” Justice Sutherland wrote the Court’s opinion, stating,

It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them today; and it is not impossible, if that common ancestor could be materialized in the flesh, we should discover that he was himself sufficiently differentiated from both of his descendants to preclude his racial classification with either.³²⁸

Whether America’s original caste story is one that roots in policing religion or ethnic origins, the end result is a system galvanized around contemporary understandings of race.

B. Racial Caste’s Operation in Law and Society

Various forms of violence emanating from racial caste ideology and structure against Black people date back to the earliest trafficking of Black people to the colonies and the emergence of states.³²⁹ On the question of whether a murder of an enslaved Black person was a criminal offense, a typical legislative response explained that it was not:

[I]f any slave resists his master (or other by his master’s order correcting him) and by the extremity of the correction should chance to die, that his death shall not be accounted a felony, but the master (or that other person appointed by the master to punish him) be acquitted from molestation, since it cannot be presumed that premeditated malice (which alone makes murder a felony) should induce any man to destroy his own estate.³³⁰

If racial caste creates the ordering of people, it also shapes social order through privileging the favored and imposing conditions, constraints, and disparate penalties on the disfavored to maintain the discriminatory structures set in place by law.³³¹ Historically, slave patrol police enforced social order. Typically, slave patrol police possessed the power to “inflict corporal punishment” and the “power to seize any negro slave who behaves insolently to a patroller” or “suspiciously.”³³²

Racial caste violence predates the founding of the United States and continues through the public execution of George Floyd and the killing of Breonna Taylor. As a historic matter, racial violence operated publicly and privately, economically, physically and psychologically, commercially,³³³ and sexually.³³⁴ For example, a North Carolina law, typical of others throughout the South, made it a crime for enslaved Black people to read, write, or learn mathematics. It read:

Be it further enacted , That if any slave shall hereafter teach, or attempt to teach, any other slave to read or write, the use of figures excepted, he or she may be carried before any justice of the peace, and on conviction thereof, shall be sentenced to receive thirty nine lashes on his or her bare back.³³⁵

Arguably, public and private violence directed at Black people furthered states’ interests and prerogatives. At the very least, the threat of unchecked violence against Black people served to limit their freedom, autonomy, privacy, and equality—clear aims of lawmakers. One of the more horrific ways of exercising public and private violence and unleashing terror was through lynching.³³⁶ Lynchings became public spectacles, and perversely public celebrations, where individuals posed for pictures, brought snacks and picnics, and cut away flesh of lynched persons as mementos.

Thus, there were other means of enforcing social order beyond the use of slave patrol police.³³⁷ Neither Black women nor children were spared. Paula Giddings writes about Black women burned at the stake for resisting enslavement.³³⁸ Harriet Jacobs recounts in Incidents in the Life of a Slave Girl that white women slaveholders inflicted cruelties as severely as male slaveowners, enforcing whipping, brining, and pickling Black women to enforce order in their households and plantations.³³⁹

Lawmakers and courts sanctioned violence associated with racial caste. In State v. Mann , the North Carolina Supreme Court considered whether shooting and wounding Lydia, a hired enslaved Black woman whom the defendant did not own, but leased, was an actionable offense and concluded it was not.³⁴⁰

Our laws uniformly treat the master or other person having the possession and command of the slave, as entitled to the same extent of authority. The object is the same—the services of the slave; and the same powers must be confided. In a criminal proceeding, and indeed in reference to all other persons but the general owner, the hirer and possessor of a slave, in relation to both rights and duties, is, for the time being, the owner.³⁴¹

As one could not be liable for “battery upon his own slave, or other exercise of authority or force,” one could not be liable for shooting and permanently injuring another’s.³⁴² Whether law protected the basic, human, and legal right for an enslaved person to defend herself was generally answered in the negative. In the case of Celia, Robert Newsom, the man who enslaved her, repeatedly raped and beat her as a child starting at age fourteen.³⁴³ She retaliated at age nineteen and was put to death for it, hanged after delivering a stillborn baby, likely the child of Newsom.³⁴⁴

Caste-based racial violence inflicts not only physical punishment on the individual but operates to inflict fear and psychological terror on entire communities to maintain social order. Lynchings in the United States achieved both. In Trouble in Mind: Black Southerners in the Age of Jim Crow , Leon Litwak describes how the execution spectacle of lynchings “witnessed by whites would be stamped on the character of the community in a variety of ways.”³⁴⁵ He reports that white children played games whereby they lynched their Black dolls, and at least one case of a white child, Jack McClay, who “play-lynched” his friend after witnessing an actual lynching.³⁴⁶ The little boy tied a rope around the friend’s neck and secured the loose end to a nail on a nearby wall.³⁴⁷ Fortunately, the nearly lynched child survived.³⁴⁸ This game became known as “Salisbury.”³⁴⁹

Like Jack McClay, white children attended lynchings, “hoisted on their parents’ shoulders to miss none of the action and accompanying festivities.”³⁵⁰ White women also attended, participating in the entertainments that often accompanied the lynching of Black people. One news account of a lynching attended by 3,000 white people in Rankin County, Mississippi in 1909 describes, “A few were nursing infants who tugged at the mother’s breasts, while the mother kept her eyes on the gallows. She didn’t want to lose any part of the program she had come miles to see, and to tell to neighbors at home.”³⁵¹

The case of Mary Turner exemplifies the tragedy and strategy of using violence as a means of controlling racial caste and enforcing racial order.³⁵² The case also speaks to the differing ideologies regarding sex and womanhood across racial lines. Black women were subjected to unimaginable depravities. In Turner’s case, the act of publicly denouncing her husband’s death by lynch mob and seeking criminal justice through law enforcement, resulted in her horrific murder.³⁵³

Though she was pregnant, a white mob gathered on her and subsequently lynched Mary in retaliation for speaking out—essentially violating her caste status. According to a news report, a “mob of several hundred men and women determined to ‘teach her a lesson.’”³⁵⁴ That she was eight months pregnant seemingly did not matter.

After tying her ankles together, they hung her from a tree, head downward. Dousing her clothes with gasoline, they burned them from her body. While she was still alive, someone used a knife ordinarily reserved for splitting hogs to cut open the woman’s abdomen. The infant fell from her womb to the ground and cried briefly, whereupon a member of this Valdosta, Georgia, mob crushed the baby’s head beneath his heel. Hundreds of bullets were then fired into Mary Turner’s body, completing the work of the mob.³⁵⁵

Later, the Savannah Tribune would observe that the mob responded to Turner’s “unwise remarks” about her husband’s misfortune. The people, according to the article, “in their indignant mood, took exception to her remarks, as well as her attitude.”³⁵⁶

The horrors innovated through the racial caste system “often exceeded the most vivid imaginations.”³⁵⁷ Institutionally, racial caste violence fortifies and flows from the privileged against the disfavored, much like law, even while episodic instances of rebellion or attempts to strike back also mark history. Dr. Martin Luther King, Jr. put it thusly, “[T]he nation [has] come to count on [Black people] as a creature who could quietly endure, silently suffer and patiently wait. He was well trained in service and, whatever the provocation, he neither pushed back nor spoke back.”³⁵⁸

A 1919 column in the Nashville Banner —in opposition to federal anti-lynching legislation—argued such a law “would overthrow a very important prerogative reserved for the states, and would be a dangerous encroachment on the right of local self-government—the principles of federalism, the groundwork on which the Union is built.”³⁵⁹ Legislators and governors were aligned in the view that lynchings constituted a states’ rights issue.³⁶⁰ Given that southern states (and northern ones too) rarely prosecuted white perpetrators and accomplices for lynching Black people, states essentially argued for their right to neither prosecute nor do anything else to intervene against lynch mobs attacking Black people.³⁶¹

Tennessee Governor Malcolm Patterson rallied against the NAACP’s campaign for the enactment of federal anti-lynching law.³⁶² He stated, “no more impudent challenge… was ever thrown in the face of a people or one more destructive to the rights of their states.”³⁶³ Similarly, Senator William Borah argued against anti-lynching legislation.³⁶⁴ He claimed that anti-lynching legislation was unconstitutional and that it interfered with states’ rights.³⁶⁵ According to Senator Borah, a vote for antilynching legislation was comparable to lynching itself.³⁶⁶

The racial caste system innovates means of maintaining order; whipping, brining, lynching, and police violence represent a slice of what Black people endured as a matter of law and order. The racial caste system also inflicts economic punishment, undermines property rights, and even results in robbing people of their land.

Consider the following examples:

1. The Greenwood Massacre (Black Wall Street)

One of the nation’s most devastating terror attacks occurred in 1921, when a Black community in Tulsa, Oklahoma, known as “Black Wall Street,” was pillaged by a rampaging white mob who burned the community to the ground, murdering hundreds of Black people in the process.³⁶⁷ The area “recognized nationally for its affluent African American community, became known as the Greenwood District. The business district and the surrounding Black community thrived with Black-owned banks, furriers, movie theatres, schools, places of worship, and fraternity.³⁶⁸

Mob violence descended on Greenwood on May 31, 1921. By the morning “sunrise on June 2, Greenwood lay in ruins: burned to the ground by a mob of white people, aided and abetted by the National Guard.”³⁶⁹ It was the first time that bombs were dropped on an American city.³⁷⁰ According to the New York Times , it was “one of the worst acts of racial violence in American history. The death toll may have been as high as 300, with hundreds more injured and an estimated 8,000 or more left homeless.”³⁷¹

However, in the immediate aftermath, the massacre was covered up. Local officials “set about erasing it from the city’s historical record.”³⁷² An unknown number of “[v]ictims were buried in unmarked graves.”³⁷³ Like the disappearing of people, police records similarly “vanished.”³⁷⁴ Equally, articles published by the Tulsa Tribune “were cut out before the newspapers were transferred to microfilm.”³⁷⁵ Local officials were so effective at scrubbing away the historical bloodstained aftermath of the Tulsa massacre that by two decades later, students were doubtful that the events ever took place.³⁷⁶

2. Rosewood Massacre

On New Year’s Day, 1923, Rosewood, a prominent Black settlement in Florida, was set upon by a mob of white residents from a nearby town looking for a Black assailant who allegedly bruised a white woman.³⁷⁷ This “small and prosperous predominantly black town, with its own baseball team, a masonic temple and a few hundred residents” was unprepared for the horror that would soon be inflicted.³⁷⁸ According to local reports, “[a] crowd swelled in Sumner to find the ‘fugitive’, some from as far away as Gainesville, where the same day the Ku Klux Klan held a high-profile parade.”³⁷⁹ In the ensuing days, “gangs of hundreds delivered lynch mob justice to the once-affluent town of Rosewood.”³⁸⁰

Black people attempted escape. Morgan Carter recounts the stories told by her great-grandfather, Oren Monroe, who was a child when his family escaped. In Monroe’s case, he and his family escaped with a group of children and women, “on an unusually cold night, wading through a swamp before boarding a train that took them to a safer place.”³⁸¹ Again, the violence was indiscriminate when inflicted on Black communities; Black women were just as likely to be targeted as men and subjected to the same degree of indignities and violence.³⁸² It is unclear how many Black people were murdered through white mob violence in Rosewood or throughout their experience in the United States.

3. Eminent Domain: Seizing Bruce’s Beach

In 1912, a community along a prime section of the California coastline was purchased by Willa Bruce.³⁸³ She and her husband Charles, a railroad dining car chef, set out to establish their homestead. Willa built a café, lodge, and dance hall. Other Black families invested in the area and built hotel accommodations, a pier for boats, and restaurants. While today the property is known as the affluent Manhattan Beach in Southern California, at the time it was “Bruce’s Beach.”³⁸⁴ Black visitors traveled from far and wide to experience Bruce’s Beach, enjoy the ocean, and relax.

Given the restrictions placed on where Black people could sleep, eat, play, recreate, stop for gas, and more in cities and states throughout the United States, safe spaces, such as Bruce’s Beach, were an attraction. This became a California safe haven for some Black people with the means to enjoy it. Sunset laws in nearby California areas and threats of violence if Black people were out after dark meant that visitors enjoyed the security of the location without the need for further travel.

However, not unlike towns across the United States where Black people established successful neighborhoods, white residents organized and mobilized to push them out.³⁸⁵ Their pier was burned down. The Bruces rebuilt. Regularly, guests’ automobile tires were slashed. According to a Los Angeles Times report:

The Ku Klux Klan purportedly set fire to a mattress under the main deck and torched a Black-owned home nearby. Fake “10 minutes only” parking signs were posted to deter Black out-of-town folk. To reach the ocean, visitors had to walk an extra half mile around property owned by [George] Peck, who had lined it with security and “No Trespassing” signs.³⁸⁶

Threats of racial violence ensued. The Ku Klux Klan engaged in crossburning to further undermine the safety of the community and detract people from visiting. When they were unable to successfully push Black people off their ocean-front land, local white homeowners and business leaders appealed to local lawmakers.³⁸⁷ As discussed in Part III, white people appealed to local authorities to create and maintain racial caste through law.

In 1924, “city officials condemned the neighborhood,” seizing more than two dozen properties through “eminent domain.”³⁸⁸ Local officials claimed the city needed the property to build a public park.³⁸⁹ The Bruces and other families sued, “citing racial prejudice.”³⁹⁰ The Bruces sought fair market value, $120,000 in compensation, for their two beach front lots, which is the amount required by law under imminent domain. Instead, “after years of litigation, the Bruces received $14,500.”³⁹¹ Today, the property they owned has an estimated value of $75 million dollars.³⁹²

C. Reckoning, Reconciliation, and Post-Racial Mythology

How does the United States come to engage in its own truth and conciliation regarding racial caste when the mythology of a post-racial America deeply resonates?³⁹³ The first step, which this Article seeks to do, is to make evident the legal historical record so deeply buried. By excavating that record, the racial caste system and the laws that created it become visible. We can take stock.

Considering the legacies outlined in Parts I, II, and III of this Article, it is no surprise that a nation with such a grave history of racial violence and antagonism, spanning centuries and baked into law, wishes to forget, disremember, or rewrite its troubling past. In fact, mere years after the abolition of slavery, in the thick of states enacting racially restrictive laws and limiting full equality, the Supreme Court claimed that Black people were “running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make.”³⁹⁴

In the wake of Barack Obama’s election, “‘post-racial’… [became] a powerful new buzzword in our social and political lexicon, and its reach has had an enormous impact.”³⁹⁵ That is, “[b]y electing an African American to be President, some politicians, judges, and media pundits have asserted that America has now officially overcome racism and that the work of the Civil Rights Movement is completed.”³⁹⁶ This mythology pervaded during the Obama administration, even while the first and only Black president in the United States and his family experienced harassment, threats, and caricaturing in American media.³⁹⁷

According to a report issued by the NAACP Legal Defense and Educational Fund, “President Obama’s election mark[ed] continued progress toward our highest ideals of freedom and equality, affording all Americans great hope about the promises of our Constitution. Yet, some mistake this critical milestone as the end of our nation’s ongoing journey toward racial equality.”³⁹⁸

Yet, the lingua of post-racial and presumably post-caste is centuries old. The Supreme Court’s holding in the Civil Rights Cases argued that the United States was legitimately “post-racial” as early as 1883.³⁹⁹ The Court stated that racial progress in the United States required that Black people “shake off” the legacy of slavery and become “a mere citizen.”⁴⁰⁰ Barely twenty years after the abolition of slavery, the Court declared it was time that Black people cease being “the special favorite of the laws.”⁴⁰¹

The Court warned that, if taken to extremes, Black people could argue that the Fourteenth Amendment applied to matters involving discrimination related to being denied “coach or cab or car” service; refused admittance to a “concert or theatre;” or rebuffed “in other matters of intercourse or business.”⁴⁰² The Court stated businesses were required to provide services to “all unobjectionable persons.”⁴⁰³ This explicitly affirmed that the Fourteenth Amendment’s equality principle was inapplicable to private actors who discriminated against Black people and implied it was reasonable for businesses to regard Black people with suspicion and as ‘objectionable.’ Thus, rather than by accident, American law references the indignities and traumas experienced by Black Americans as “mere,” incidental, non-important, and non-lingering. Sadly, the Court’s laissez-faire regard to the disenfranchisement and discrimination against Blacks perpetuated racial caste in the United States.

The post-racial mythology dangerously papers over American legal history, specifically obscuring American law used in service of racial discrimination, coercion, and exploitation. The mythology suggests that the laws and legal strategies discussed in Parts I through III were either harmless or its victims blameworthy of discrimination, or both, rather than what they truly were: abhorrent and a mark of shame on our country. Or, it suggests that discrimination is simply the scourge of life for Black Americans, for which there are limited remedies before the nation’s highest Court, unless plaintiffs show the “smoking gun” of intentional or purposeful discrimination, providing the spent casings of race discrimination and powder residue of animus.

Sadly, this latter sentiment lingers in Supreme Court jurisprudence from Dred Scott and Plessy through Palmer v. Thompson ,⁴⁰⁴ Arlington Heights , Washington v. Davis , Mobile v. Bolden , Memphis v. Greene , and most recently, Comcast Corp. v. National Association of African American Owned Media .⁴⁰⁵ Even in matters involving the death penalty, including McCleskey v. Kemp ,⁴⁰⁶ the Court has expressed disdain for claims of discrimination, and in that case, ultimately Black life.⁴⁰⁷ By papering over how the law undergirds racial caste in the United States, legislatures and courts treat as moot intergenerational discrimination as well as physical and psychological trauma experienced by Black Americans.

In 1968, in a lesser-known concurrence, Justice Douglas sums up America’s racial case system:

forced to live in segregated residential districts and residents of white neighborhoods have denied them entrance… Negroes have been forced to use segregated facilities in going about their daily lives, having been excluded from railway coaches; public parks; restaurants; public beaches; golf courses; amusement parks; buses; public libraries. A state court judge in Alabama convicted a Negro woman of contempt of court because she refused to answer him when he addressed her as “Mary,” although she had made the simple request to be called “Miss Hamilton.”⁴⁰⁸ The racial caste system undermines physical and mental health,

criminal justice, constitutional equality, employment opportunity, access to education, and the ability to live free without the prospect of unwarranted surveillance and invasion of privacy. By focusing on the racial caste system, this Article contributes to a discourse begun more than a century ago by Harriet Jacobs, Sojourner Truth, Frederick Douglass, Ida B. Wells, W.E.B. DuBois and continued by the prophetic works of Pauli Murray and Paula Giddings, and more recently by Isabel Wilkerson. Over the years, critical race scholars and others have unpacked the ways in which racial constructions undermine equality and fasten the American society to enduring social inequality. This Article endeavors to take seriously the challenge to reckon, reconcile, and redeem. Where this Article falls short, the hope will be that others will further the discussion.

Conclusion

During the summer of 2020, streets in Minneapolis, Minnesota burned after the videoed execution of an unarmed Black man, who died underneath the weight of an officer’s knee on his neck. George Floyd called to his mother, gasped that he could not breathe, and died. The scene was the contemporary analog to James Allen’s Without Sanctuary, which exposed lynchings from throughout the United States, captured by 20th century photographers and often memorialized in postcards.

On the day of Mr. Floyd’s death, anyone who witnessed even part of the video received an unwelcome postcard in their “inbox.” It was a powerful reminder of America’s racial caste system no longer depicted in cotton fields but rather the urban streets of the United States. This postcard shows what is old —the racial caste system—is new and revitalized. And, what is new reflects a history and performance that we have not shaken. Officer Chauvin demonstrated the performance of the racial hierarchy in literal terms, high above and seemingly unmindful about the value of life beneath his knee. He cared little for the equality of personhood that Senator Sumner argued for long ago at the debate about the Thirteenth Amendment.

In a key study of slavery, John Blassingame shares how masters first attempted to demonstrate their moral and intellectual superiority over blacks:

Many masters tried first to demonstrate their own authority over the slave and then the superiority of all whites over blacks. They continually told the slave he was unfit for freedom, that every slave who attempted to escape was captured and sold further South, and that the black man must conform to the white man’s every wish. The penalties for nonconformity were severe; the lessons uniformly pointed to one idea: the slave was [a] thing to be used by the “superior” race.⁴⁰⁹

Today, the endurance of racial caste cannot be maintained without the structures and forces of law. Vertical, racial hierarchies reshaped laws, and in so doing, reduced the impact of the Reconstruction Amendments for more than a century. Sadly, laws rendered the Amendments virtually meaningless by replacing equal protection with “separate but equal” and voting rights with expanded, dubious requirements and restrictions. Even the Thirteenth Amendment’s abolition of slavery is punctuated by a Punishment Clause, which legalizes slavery in the United States so long as an individual has been convicted of a crime. The Punishment Clause provided the foundation on which southerners committed to slavery could and did expand coerced labor. It has yet to be repealed.