Shades of Freedom: Racial Politics and Presumptions of the American Legal Process Race and the American Legal Process, Volume II / Edition 1

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Overview


Few individuals have had as great an impact on the law--both its practice and its history--as A. Leon Higginbotham, Jr. A winner of the Presidential Medal of Freedom, the nation's highest civilian honor, he has distinguished himself over the decades both as a professor at Yale, the University of Pennsylvania, and Harvard, and as a judge on the United States Court of Appeals. But Judge Higginbotham is perhaps best known as an authority on racism in America: not the least important achievement of his long career has been In the Matter of Color, the first volume in a monumental history of race and the American legal process. Published in 1978, this brilliant book has been hailed as the definitive account of racism, slavery, and the law in colonial America.
Now, after twenty years, comes the long-awaited sequel. In Shades of Freedom, Higginbotham provides a magisterial account of the interaction between the law and racial oppression in America from colonial times to the present, demonstrating how the one agent that should have guaranteed equal treatment before the law--the judicial system--instead played a dominant role in enforcing the inferior position of blacks. The issue of racial inferiority is central to this volume, as Higginbotham documents how early white perceptions of black inferiority slowly became codified into law. Perhaps the most powerful and insightful writing centers on a pair of famous Supreme Court cases, which Higginbotham uses to portray race relations at two vital moments in our history. The Dred Scott decision of 1857 declared that a slave who had escaped to free territory must be returned to his slave owner. Chief Justice Roger Taney, in his notorious opinion for the majority, stated that blacks were "so inferior that they had no right which the white man was bound to respect." For Higginbotham, Taney's decision reflects the extreme state that race relations had reached just before the Civil War. And after the War and Reconstruction, Higginbotham reveals, the Courts showed a pervasive reluctance (if not hostility) toward the goal of full and equal justice for African Americans, and this was particularly true of the Supreme Court. And in the Plessy v. Ferguson decision, which Higginbotham terms "one of the most catastrophic racial decisions ever rendered," the Court held that full equality--in schooling or housing, for instance--was unnecessary as long as there were "separate but equal" facilities. Higginbotham also documents the eloquent voices that opposed the openly racist workings of the judicial system, from Reconstruction Congressman John R. Lynch to Supreme Court Justice John Marshall Harlan to W. E. B. Du Bois, and he shows that, ironically, it was the conservative Supreme Court of the 1930s that began the attack on school segregation, and overturned the convictions of African Americans in the famous Scottsboro case. But today racial bias still dominates the nation, Higginbotham concludes, as he shows how in six recent court cases the public perception of black inferiority continues to persist.
In Shades of Freedom, a noted scholar and celebrated jurist offers a work of magnificent scope, insight, and passion. Ranging from the earliest colonial times to the present, it is a superb work of history--and a mirror to the American soul.
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Editorial Reviews

From the Publisher

"By showing us how profound our struggle has been, and how far we have come, Higginbotham also has shown by implication how difficult the struggles ahead are bound to be."--Emerge

"A carefully researched and impressively documented book....Insightful."--The New York Times Book Review

"An important exploration of some of the most critical and difficult terrain in American history."--The Washington Times

Stephen L. Wasby
Distinguished retired federal judge A. Leon Higginbotham, Jr. (Eastern District of Pennsylvania, then Third Circuit), has been and is an authoritative public voice, most recently in speaking out directly, as a fellow African-American, to Justice Clarence Thomas, and a premier legal historian, demonstrated by In The Matter Of Color (1978), which provided systematic state-by-state treatment of the colonial period. In Shades of Freedom, Judge Higginbotham has now developed ten precepts of American slavery jurisprudence to explain African Americans' place in the American legal system. He sets out to discuss the principal one, the precept of inferiority, by examining the basic eras in our history, with one Supreme Court case illuminating each era. He leads us, in short chapters amounting to 200-plus pages, in a roughly chronological fashion through our history while focusing on the plight of African-Americans at the hands of the legal system, and uses major cases, along with some less-well known ones, to develop his theme, which appears frequently. Because its good points, SHADES OF FREEDOM is acceptable for an educated layperson not familiar with the major cases. A reader with any constitutional law training or knowledge of issues of racism would be better off reading some of Higginbotham's many articles, excerpts of which are some of the chapters here, or the earlier book, which becomes a heavily used source for some of the chapters here. Unfortunately, despite the author's earlier solid scholarship, this book is a disappointment because it lacks a sufficient focus on the precept of inferiority; because it is weak structurally; and because it treats most cases and much other material superficially. Because the basic argument could have been presented in an article, we are left with another book, which, in terms of what it delivers, is an article with a thyroid condition. SHADES OF FREEDOM, in addition to being more episodic, less thorough, and less systematic in its scholarship than Higginbotham's earlier book, is also more personal. At the beginning, the author seems unsure whether to emphasize his scholarly journey or the materials, although he seems to come around more toward the latter. Instead of vigorous scholarship, the author, sounding tired, leaves it to others to update his articles and to finish the multi-volume task he set himself. If we have waited 18 years after IN THE MATTER OF COLOR for SHADES OF FREEDOM, at least the author should have covered more ground rather than leaving from the time from the Warren Court onward to later volumes we might not see. A simple reprinting of the author's earlier articles would have been preferable. After beginning with a set of vignettes, which compose part of the 10-page introduction, Higginbotham presents 15 pages on precepts and more specifically on the precept of inferiority. A precept can be both "a broad analytical concept," which in the context in which he writes "denotes the implicit understanding of racial differences," and a notion combining "a rule of law, a legal principle, and a legal doctrine," which here includes "the legal mandates explicitly written in the law and legal orders, which established, legitimized, and enforced the inferior position of African Americans before the law." (pp. 3-4) So far, so good. But the author then does not pay sufficient systematic attention to the announced principal theme and framework. That he places essential material about what he means by a "precept" and the ten precepts themselves in an Appendix suggests the problem: If the notion of precepts was to be the foundation of this book and the volumes supposed to follow, it should have been fully developed before the author embarked on his historical journey. The book starts off more strongly than it ends, and does have a number of good points. In the first historical chapter (Chapter 3), covering 1619-1662, Higginbotham notes the steps in the initial development of the precept of inferiority, which entailed convincing whites and blacks of their relatively superiority and inferiority, enforcing this openly, and then explaining it through Christianity. And Chapter 4, on the period 1662-1830, is good legal history with attention given to the slave codes. Here, Higginbotham notes the relation of inferiority to being heathen but points out that blacks' acceptance of Christianity wasn't enough to overcome perceived inferiority. Here he also makes the interesting point that it was more difficult for elites to embody the precept of inferiority through judicial rulings (which might be isolated) than through legislative enactments (pp. 28-29). Later, as part of the background to one of cases that constituted the 1883 CIVIL RIGHTS CASES, Higginbotham provides an interesting sidestory on the status and situation of African-American women through STATE OF MISSOURI v. CELIA (1855), a murder prosecution involving the right of self-defense to sexual advances. And in the chapter on "Unequal Justice in the State Criminal Justice System," there is a nice discussion of racism in court as a symptom, signal, and (cultural) symbol of racism in the larger society. These are all good points. However, they are few and are more than overcome by the volume's many weaknesses. The just-noted criminal justice chapter stands somewhat apart from the rest of the book, and, when the author could contribute from judicial experience, his discussion of unequal justice in state criminal justice systems offers little that is new by way either of information or perspective. Another problem is that some of the book's most interesting points are not developed. There is no follow-up either to the mention of the relative effectiveness of legislation and litigation in embedding the precept of inferiority, or to the notion that the Supreme Court rules on cases involving race without mentioning race. Nor, beyond the first few chapters, is there follow-up to the promise to use Virginia as a source of cases for illustration, although doing so could have provided consistency and insight into how the precept developed in one legal subculture. Most important, the organizational structure of SHADES OF FREEDOM seems jumbled. Although Higginbotham organizes primarily through chronology, he engages in a mix of chronology and crosscutting topics which leaves a jumble of material. For example, the post-Reconstruction period is discussed in chapters based on a variety of foundations: short historical periods, major cases (e.g., THE CIVIL RIGHTS CASES), and topics (e.g., housing) given an ahistorical treatment. The author cannot make up his mind as to what timeframe to use, or even if he wishes to use historical periods to organize the material to be presented. Even the chronological treatment is badly handled. Higginbotham is not clear or consistent as to the set of periods he will use. First we are told (pp. 15-16) that there are four periods in the development of the precept of inferiority -- 1619-1662, 1662-1830s, 1830-1865, and Reconstruction onward, with the Warren Court and subsequent decades omitted -- and that a major case will illustrate each era. After reaching 1865, Higginbotham goes back to more thoughts on the entire 1787-1866 period, and cases (DRED SCOTT, PLESSY, GAINES, BROWN, and SHAW v. RENO) are taken from five subdivisions of the post-Reconstruction period. Higginbotham further adds to the confusion by devoting the last chapter to recent voting rights cases and a co-authored piece on a Louisiana redistricting cases included as an Epilogue although they fall well outside the book's announced temporal scope, as do other items in the two epilogues --an open letter to Newt Gingrich and an essay on 100 years after PLESSY-- which appear to be included for no better reason than that the author once wrote them. Another problem is that Higginbotham, despite his known capability as a legal historian, tends to rely on single sources for his treatment of some issues, while coming nowhere near reproducing the richness of the source. An example is the use of Don Fehrenbacher's excellent book as the source for DRED SCOTT, but the case receives only six pages of treatment, including only Taney's majority opinion. With respect to PLESSY, there is no use or even mention of Lofgren's excellent study; instead, a John Minor Wisdom lecture, not a proper substitute, is used for background material. Worse still, most Supreme Court cases mentioned --not only DRED SCOTT-- receive skimpy treatment. There are only two-plus pages on THE CIVIL RIGHTS CASES, and, for the Hughes Court period, in 17 pages, there is coverage not only criminal justice (Scottsboro, BROWN v. MISSISSIPPI, CHAMBERS v. FLORIDA) but also of education (GAINES) and voting (GROVEY). This is, like much of the book, not helpful even for the lay reader or seriously interested undergraduate. Thus we have a book in which a respected jurist could have systematically developed an argument about a key element underlying racism's place in our legal system, but, while he has cast some useful light on the subject, he has added little depth to our knowledge.
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Product Details

  • ISBN-13: 9780195122886
  • Publisher: Oxford University Press, USA
  • Publication date: 6/28/1998
  • Edition description: Reprint
  • Edition number: 1
  • Pages: 352
  • Sales rank: 713,682
  • Product dimensions: 7.90 (w) x 5.30 (h) x 0.80 (d)

Meet the Author

A. Leon Higginbotham, Jr. is Public Service Professor of Jurisprudence at the John F. Kennedy School of Government, Harvard University, and Of Counsel to Paul, Weiss, Rifkind, Wharton, & Garrison. He was formerly Chief Judge on the United States Court of Appeals for the Third Circuit, and is a recipient of the Presidential Medal of Freedom. His landmark volume, In the Matter of Color, won the American Bar Association's Silver Gavel Award and the National Bar Association's Literary Award.

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Table of Contents

Preface
Acknowledgments
Introduction: From Total Racial Oppression to Shades of Freedom
1 My Forty-Year Journey in Formulating the Precepts 3
2 The Precept of Inferiority 7
3 The Ancestry of Inferiority (1619-1662) 18
4 The Ideology of Inferiority (1662-1830) 28
5 The Politics of Inferiority (1830-1865) 53
6 The Constitutional Language of Slavery: From Non-disclosure to Abolition, 1787-1866 68
7 The Dream of Freedom and Its Demise 81
8 The Supreme Court's Sanction of Racial Hatred: The 1883 Civil Rights Cases 94
9 The Supreme Court's Legitimization of Racism: Plessy v. Ferguson: A Case Wrongly Decided 108
10 Too Inferior To Be Their Neighbor 119
11 Unequal Justice in the State Criminal Justice System 127
12 Limiting the Seeds of Race Hatred: The Charles Evans Hughes Supreme Court Era (1930-1941) 152
13 Voting Rights, Pluralism, and Political Power 169
Epilogue 183
Appendix The Ten Precepts of American Slavery Jurisprudence 195
Articles published by A. Leon Higginbotham, Jr. 207
Notes 213
Index 279
Table of Cases 300
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