History, Memory, and the Law

Stigmas, Badges, and Brands: Discriminating Marks in Legal History

Stigmas, Badges, and Brands: Discriminating Marks in Legal History Brook Thomas This history contains one clear lesson. Under our Constitution, the government may never act to the detriment of a person solely because of that person's race. The color of a person's skin and the country of his origin are immutable facts that bear no relation to ability, disadvantage, moral culpability, or any other characteristic of constitutionally permissible interest to government. ... In short, racial discrimination is by definition invidious discrimination. The rule cannot be any different when the persons injured by a racially biased law are not members of a racial minority. Justice Stewart, dissenting in a 1979 Supreme Court case upholding a federal affirmative action program in the construction industry I never thought that I would live to see the day when the city of Richmond, Virginia, the cradle of the Old Confederacy, sought on its own, within a narrow confine, to lessen the stark impact of persistent discrimination. But Richmond, to its great credit, acted. Yet this Court, the supposed bastion of equality, strikes down Richmond 's efforts as though discrimination never existed or was not demonstrated in this particular litigation. Justice Marshall convincingly discloses the fallacy and shallowness of that approach. History is irrefutable, even though one might sympathize with those who-though possibly innocent in themselves-benefit from the wrongs of past decades. Justice Blackmun, dissenting in a 1988 Supreme Court case prohibiting a local affirmative action program in the construction industry 249 HISTORY, MEMORY, AND THE LAW I In his infamous opInIon in Dred Scott Justice Roger Brooke Taney denied United States citizenship to all blacks, free or slave. Various discriminatory legislation enacted by states against free blacks had, he claimed, "stigmatized" them by impressing upon them "deep and enduring marks of inferiority and degradation." Since there was only one class of citizens in a republic and since, at the moment of founding, states had "deemed it just and necessary thus to stigmatize" those of African descent, they were excluded from the community that originally constituted the sovereign people of the nation.1 Dred Scott of course caused immediate controversy, and it is probably the most condemned decision in Supreme Court history. If Taney claimed that blacks had been stigmatized, Chief Justice Charles Evans Hughes implied that Taney's decision had stigmatized the Court when in a memorable phrase he called it one of the Court's "self inflicted wounds."2 As condemned as it was, however, federal judge John Minor Wisdom argued in 1968 that it was not until Brown v. Board ofEducation that Dred Scott was "erased." In saying that Brown finally erased Dred Judge Wisdom did not mean that in 1984-fashion Dred had been deposited in a "memory hole" and lost from human record. Instead he meant that only with Brown were blacks no longer treated by the law as "fbeings of an inferior race'-the Dred Scott article of faith."3 But Judge Wisdom might have been a bit hasty in his pronouncement . Derrick A. Bell Jr. has noted that Dred is "the most frequently overturned decision in history."4 Judge Wisdom's announcement was perhaps one more in a long history of claims that Dred has been over1 . 19 How. 393 at 416 (1857). 2. Charles Evans Hughes, The Supreme Court ofthe United States (New York: Columbia University Press, 1928),50. Hughes of course was not the first to argue that Dred had hurt the credibility of the Court. For instance, in 1898 D. P. Baldwin listed Dred along with the legal-tender cases, the income tax case, and the Slaughter House case as the most important ublunders" of the Court. Dred, he argued, was a umonstrous" decision, Uhoney-combed with the virus of slavery" uSome Blunders of the United States Supreme Court," Indiana Law Journal 2 [1898]: 97). Hughes's phrase captured more people's attention in part because of Hughes's importance and in part, no doubt, because of the appropriateness of his image for a decision concerned with the power of marking. 3. Quoted in Don E. Fehrenbacher, The Dred Scott Case (New York: Oxford University Press, 1978), 582. 4. Derrick A. Bell Jr., ed., Race, Racism, and American Law (Boston: Little, Brown, 1973),21. STIGMAS, BADGES, AND BRANDS turned.5 For instance, in the same year that Judge Wisdom made his remark Justice Douglas observed, "Some badges of slavery remain today...