The diversity of our presidential candidates has served to put a spotlight on race relations in this country. Because our history of race relations has to be viewed through the prism of our legal system, I thought we might explore its contributions to our racial divide and our healing process.
The great “sin” of our country is the “three-fifths” principle embedded (yes, it is still there) in our Constitution. In Article 1, section 2, in discussing the House of Representatives, the Constitution classifies African-Americans as equal to less than a person. The number of representatives each state has in the House is determined by a state’s population.
This clumsy political “compromise” resolved a conflict between the less populous Southern states and the more populous North. The idea was that slavery was permitted exist and the Southern States would be able to count some of its black-slave population towards its number representatives. As we all know, this conflict eventually boiled over into war and destruction and, at the end, slaves were freed. The great “Civil Rights” laws were passed and, in theory, this trio of Amendments to our Constitution abolished racial inequality ending what we call “de jure” (by law) racism.
Sadly, the story of de jure racism does not end there. In the South, in the advent of the withdrawal of the occupying Union Army, “Jim Crow” laws were passed obliterating the newly-conferred freedoms. Most significantly, these laws they robbed African-Americans of voting rights through a series of intentional impediments.
However, as we turned the corner in the 20th Century, the United States Supreme Court struck down laws demeaning the rights of African-Americans. This process reached its crescendo in 1954, when “separate” school systems were eliminated as a tool to institutionally separate the races. After this, Congress finally stepped in and passed another wave of civil rights laws governing elections in some Southern states, seemingly outlawing the last vestiges of de jure racism.
A new wave of reform gripped the nation, spurred by the “dream” envisioned by Martin Luther King: the dream of a country of people not judged by the color of their skin. Eventually, this desire for equality manifested itself in the ironic granting of preferences in opportunities based on skin-color and gender.
White Americans, particularly white men, resented finding themselves losing out on opportunities in education and employment because their skin was too light or their gender too male. Courts, again, stepped in to correct these excesses and try to bring us closer to Dr. King’s ideal of society of equality. The “rub” of course is that courts cannot eliminate a more subtle form of separation of the races called “de facto” (by operation of fact), which is not, in many ways, racism. De facto separation of the races appears when we view the outcome of the O.J. Simpson trial through the lens of race. It governs what neighborhood we live in or the church we attend on Sunday. It is subtle because we are not making choices based on skin color or prejudice, but it can have the same impact.
As you can see, we have come a long way from our embarrassing roots as a country. The legal decks have been cleared and we can live today in a society where the races can legally compete on an equal footing. However, we will not truly be united until we live, play, eat, and pray in a multi-racial community. We are getting there; maybe some day soon the color of a candidate’s skin will no longer be a campaign issue.
Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston County Chief Assistant District Attorney, and a former Miami Prosecutor. E-mail confidential legal questions to ajr@rockefellerlawcenter.com. Visit www.rockefellerlawcenter.com for Frequently Asked Questions and Jim’s blog, The Rockefeller Report.
