Legal Basis of the Abolishment of Slavery, Civil Rights Movement, and Black Lives Matter
Civil equality movements throughout our nation’s history have one thing in common – they all protest a government which derives its power from documents written on ideals of John Locke. Documents such as the Declaration of Independence, the Articles of Confederation, and eventually, the United States Constitution are the pillars of our government and mirror ideas set forth by Locke. But a major discrepancy between the Declaration of Independence and the Constitution is what protagonists of these movements have cited throughout their call for equality, specifically among races.
The Declaration of Independence was written in protest of British rule over the American colonies. Its famous words outline a laundry list of unalienable rights and introduce a fluid relationship between state and federal government, and the people which they govern. One of the Declaration’s biggest strengths is also biggest weakness: vague and ambiguous language. The revolutionaries who drafted this document embraced this ambiguity. Scholars and activists now use the ambiguous language in the movement for racial equality, as in the document’s most important and commonly cited passage:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among those are Life, Liberty, and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” (US, 1776, pg 1)
This assertion is critical to the abolition of slavery, Civil Rights Movement, and Black Lives Matter movement . The right to life implies the ability to live a full life and to die on your own terms. Self-determination implies the right to liberty, of being free within a society from restrictions on your way of life – the freedom to choose. This choice is how we exercise our right to the pursuit of happiness. We, as individuals, have the right to choose our own path and seek out that which provides us happiness. But best of all, these inalienable rights are protected by a government whose power derives from the men whom it protects. This symbiotic relationship between the governed and the government is what allows for protests and social movements. A relationship that is so heavily dependent requires that when one is dissatisfied with the other, a compromise or change must be made.
The problem is that these rights were guaranteed to “all men” in the Declaration of Independence, but not in the original United States Constitution. The Constitution itself discounts the rights of certain persons – slaves were counted as three fifths of persons, fugitive slaves were considered property and had to be returned to their masters. The Constitution even went as far as to protect the slave trade for a minimum of 20 years, effectively instituting government mandated indentured servitude. These passages were upheld in countless Supreme Court cases, denying slaves the right to a fair trial (Prigg v. Pennsylvania, 1842), and even their right to citizenship and futher branding them as property (Dred Scott v. Sandford, 1856).
When these disregards for humanity were finally addressed, the legislators created one of the most glaring legal loopholes in American history:
Section 1. Neither slavery nor involuntary servitude, except as punishment for crime thereof the party shall have been duly convicted, shall exist in the United states, Or any place subject to their jurisdiction.
Section 2. Congress shall have the power to enforce this article by appropriate legislation.” (U.S. Const. Art./Amend. XII)
The 13th Amendment to the Constitution made it unconstitutional to be held as a slave, except as punishment for a crime – effectively allowing slavery to continue to exist in American society through the mass incarceration of African-Americans. As the Southern economy collapsed from the abolition of slavery, African-Americans were arrested in mass for petty crimes such as vagrancy and loitering. Once these legally freed slaves were criminalized, they were subject to slave labor – being forced to rebuild the Southern economy after the Civil War. Societies began to form one of the most influential misconceptions to date: black criminality. People started to believe the notion that the “negro” was out of control, and that they provided a threat to the white population – only to be solved through arrest and detainment.
Between 1882 and 1951 there were an estimated 3,437 lynchings of African-Americans alone (Brower, 1999). African-Americans fled from the South to areas such as Chicago, Philadelphia, Oakland, and Los Angeles not out of the hope of economic prosperity, but as refugees from an increasingly divided and violent South. Events such as the Colfax Massacre and the murder of Emmett Till acted as galvanizing moments that organized and inspired civil rights activists across the country.
As public violence and open aggression against African-Americans became socially unacceptable, society opted for a more palatable form of discrimination: segregation. Jim Crow laws legalized racial discrimination and allowed for the relegation of African-Americans as second-class citizens. For years, African-Americans struggled to be seen as full human beings with desires, wishes, and rights. Acts of civil disobedience as peaceful tactics of the Civil Rights Movements allowed blacks who were arrested to be considered noble political prisoners rather than criminals. The Civil Rights Movement culminated with the signing of the Civil and Voting Rights Acts, providing what seemed to be the possibility of equality among races.
Unfortunately, this equality has still not been fully realized. Legislation introduced following the Civil Rights Movement has continued to treat African-Americans as criminals, as threats to the law and order of society. The 1970s Nixon Era introduced the “War on Drugs” and recruited southern whites to the republican party while doubling federal spending on law enforcement. Nixon began to associate the increase in crime levels with the actions of the Civil Rights Movement. As a result, Nixon unleashed a “total war” through the criminalization of drugs. Nixon subtly associated the African-American population with drug addiction, drug dependency, and drug-related crime. African-Americans were arrested in mass across the country for minor drug possession – allowing more blacks to be portrayed as criminal and threatening.
“Nixon campaign in 1968 and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities… We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
-John Ehrlichman, Nixon Advisor (Baum, 2016)
Nixon used his Southern Strategy after the Civil Rights Movement, playing on Americans’ fear of crime and the rouse of law and order to win the election. Soon after, Reagan mobilized this effort by taking the focus away from the criminality of drugs and directing it toward education behind drug abuse and dependency – a focus on the younger generation. As the country suffered massive economic contraction, the income gap began to expand and Crack Cocaine was introduced in the mid 1980s.
Reagan introduced mandatory sentencing penalties which were far harsher for crack than for powdered cocaine. Crack, being much cheaper and sold in smaller doses, was a more inter-city issue than cocaine which was more prevalent in the suburbs. This legislation has since been criticized by its original supporters including former Speaker of the US House of Representatives Newt Gingrich who has admitted that the Reagan administration should have treated the two (powder and crack cocaine) equally, and that the disparity caused an enormous burden on the black community which “fundamentally violated a sense of core fairness” (Mondello, 2016). Reagan’s Southern Strategy promised tax cuts to the rich and to throw crack users in jail – devastating communities of color, yet effective in getting the southern vote.
“In other words, you start out… Y’all don’t quote me on this. You start out in 1954 by saying nigger, nigger, nigger. By 1968 you can’t say nigger, that hurts you. It backfires. So you say stuff like forced-bussing, state’s rights, and all that stuff. And, you’re getting so abstract now. You’re talking about cutting taxes and all these things you’re talking about are totally economic things and the by-product of them is blacks get hurt worse than whites”
-Lee Atwater, Reagan’s campaign strategist, on the Southern Strategy (Perlstein, 2012)
By the late 1980s and early 1990s Democrats realized they had to be hard on crime to win elections – enter Bill Clinton. During his tenure as President, Clinton introduced legislative ideas that disproportionally hurt African-Americans such as truth in sentencing and three strikes you’re out. Clinton’s support of mandatory minimums took discretion away from judges and gave it to prosecutors, thus overwhelming the judicial system with criminal cases. This system overload lead to the dramatic increase in plea bargains, sending people to jail simply because they didn’t have the means to fund a jury trial or were too scared of the mandatory minimum sentence. 97% of those who are incarcerated are a product of a plea bargain (Goode, 2012). Truth in Sentencing required those convicted of a crime to serve at least 85% of your sentence – so all those locked up for minor possession of crack were incarcerated for unfair amounts of time. This law also did away with parole, crowding the prison system and preventing inmates from proving their worth in society. Clinton has now admitted that many of his actions made the problems worse: three strikes and longer sentencing lead to the use of political force, forcing people who would not otherwise be in prison into prison, breaking apart families and leaving children without their parents. This shows up disproportionally in communities of color where law enforcement was more active and overwhelmingly biased.
More recent events like the murder of Treyvon Martin was ruled as self-defense under Florida’s Stand Your Ground Law –essentially legalizing murder if the defendant claims they felt “threatened.” But these feelings of threat and danger are so deeply rooted in our society and legitimized through our legal, criminal, and social proceedings.
The black community is unable to defend themselves from the repercussions of these legislative actions. Previous administrations have stripped the community of a whole generation of leadership by tearing families apart. Civil rights leaders such as Martin Luther King Jr., Malcom X, Assata Shakur, and Angela Davis have been killed or forced to flee to other countries. The black community had been rendered void of any and all resources to stand up for themselves, to fight back.
From this we find the beauty of today’s Black Lives Matter movement. With no clear leader, a distributed leadership model, its force is unstoppable. No one person can be killed, arrested, or exiled to end the movement. Its mission is the same as all those movements before it, because it is a permutation of the same movement that led to the Thirteenth Amendment. The participants of Black Lives Matter aim to re-humanize black as a person, and society as a people.
I could go on forever, but instead, I’ll leave you with the words of United States Senator Cory Booker (D-NJ):
“If you look at the whole problem you say, what are we doing? We have too many laws, locking too many people up for too many things, giving them sentences that are too harsh, putting them in prison, and while they’re in prison, doing very little of anything to rehabilitate them so they can re-enter civil society when they get out. And then when they get out, we shun them.”
Word Count: 1566
Baum, D. (2016, April). Legalize It All: How to win the war on drugs. Retrieved from Harper’s Magazine: http://harpers.org/archive/2016/04/legalize-it-all/
Brower, S. (1999, January 29). Lynching Statistics. Retrieved from Classroom: The Charles Chesnutt Digtial Archive: http://www.chesnuttarchive.org/classroom/lynchingstat.html
Dred Scott v. Sandford, 60 U.S. 393 (U.S. Supreme Court 1856).
Goode, E. (2012, March 22). Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals. Retrieved from The New York Times: http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html
Mondello, B. (2016, October 8). A Man And An Amendment Are Re-Examined In ‘Birth Of A Nation’ And ’13th’. Retrieved from 91.9 KVCR News: http://kvcrnews.org/post/man-and-amendment-are-re-examined-birth-nation-and-13th#stream/0
Perlstein, R. (2012, November 13). Lee Atwater’s Infamous 1981 Interview on the Southern Strategy. Retrieved from The Nation: https://www.thenation.com/article/exclusive-lee-atwaters-infamous-1981-interview-southern-strategy/
Prigg v. Pennsylvania, 41 U.S. 539 (U.S. Supreme Court 1842).
- (1776, July 4). United States Declaration of Independence. 1. Philidelphia, PN.