restricted access 36 Toward a Black Legal Scholarship: Race and Original Understandings
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36 Toward a Black Legal Scholarship: Race and Original Understandings JEROME MCCRISTAL CULP, JR. Initially, the law largely treated black slaves as non-beings.! Eventually, the law evolved into a paternalistic system that viewed blacks as lesser beings whom white masters and overseers needed to protect from their own ignorant, sloven, and evil nature. Finally, slave law provided for legal limitations on the activities of slaves and their masters; in other words, the state stepped between slaves and masters and imposed external rules2 Thus, slavery bequeathed three powerful constructions of law to legal interpretation-ignoring blacks altogether, treating blacks paternalistically, and creating limited legal rules to regulate white behavior toward blacks. The post-slavery period added a fourth powerful way of constructing race and law: The requirement that blacks, in participating in the legal environment, defer to the interests of the white majority. For this historical reason, American law continues to be unequal and separate with respect to the interests of blacks. These four different ways of viewing black Americans are not simply an evolutionary progression: The law continues to embody all four elements in its interpretation of legal protections available to black Americans. In this sense, there is no past or future for the treatment of black citizens-instead there is only a mushy present that retains all of its past even as it alters the forms of black treatment. In many ways, the legal process has come full circle. Black Americans, when they came to the United States, were ignored by the law. And judges, through the doctrine of colorblind neutrality, are again ignoring the concerns of blacks. A recent example of this phenomenon is Rankin v. McPherson.3 Ardith McPherson, a black woman, was working as a deputy constable. Ms. McPherson's position did not permit her to act as a licensed police officer. On the day that President Reagan was shot, she said to her boyfriend, who also was an employee of the constable's office, "[I]f they go for him [Reagan] again, I hope they get him." Ms. McPherson was fired from her job for making this statement and subsequently she sued to be reinstated4 The Supreme Court held that she was wrongfully fired because, given her job, the state's interest in dismissing an employee with such views did not outweigh the employee's first amendment interests. The most fascinating aspect of the case, however, is how the different justices dealt with Ms. McPherson's race. Justice Marshall, who wrote the majority opinion, specifically mentioned that Ms. McPherson is black-a matter that neither Justice Powell nor Justice Scalia included in their opinions. Leaving race out of their opinions was not an accident. Both Justices Pow1991 DUKE l.J. 39. Originally published in the Duke Law journal. Reprinted by permission. Copyrighted Material 228 Jerome McCristal Culp, Jr. ell and Scalia believe that race is irrelevant-even when it is crucial to understanding the context that gives rise to a case. The law seems to take this color-blind approach most often when a color-conscious approach would lend perspective to the situation of a black participant in the legal process. Why, then, does Justice Marshall mention that Ms. McPherson was black? The answer is clear from the perspective of the black experience. Much of the lives of black people are spent in anger over real and imagined slights by white landlords, supervisors, and bosses. In a country in which black perspectives are so out of line with those of the white majority,5 our only power is to speak to ourselves. Justice Marshall often uses the dialect of black peoplea voice that permits black people to criticize powerful people in a somewhat veiled fashion. Justice Marshall understood Ms. McPherson's comments in this light and he sought to infuse his opinion with a fact essential to the understanding of the context-Ms. McPherson's race.6 Race matters to Justice Marshall just as it does not matter to his colleagues. Judges do not always tell us when and for what purpose a fact is important, but the absence of race considerations in general is no accident; it reflects the judicial view that race is irrelevant to understanding the circumstances surrounding an incident, despite the fact that, in reality, race colors most situations in which whites and blacks interact. It is not simply that some white judges did not mention that Ms. McPherson was black. For those judges, that a party is black does...