Dred Scott's Unwon Freedom: The Redistricting Cases as Badges of Slavery

By James U. Blacksher

Vol. 20, No. 3, 1998 pp. 28-30

In a half dozen cases decided over the last three terms, beginning with Shaw v. Reno (1993) and, most recently, Abrams v. Johnson (1997), the Supreme Court has held that congressional districts in North Carolina, Texas, and Georgia, drawn for the predominant purpose of producing black voter majorities, violated the Fourteenth Amendment.

The Court ruled that the states cannot use race in drawing these districts without satisfying new onerous legal burdens that the Supreme Court has decided to impose.The redistricting process is an especially important opportunity for black political association and participation in democratic government. Redistricting legislation is not merely another act of state government. In a real sense, it is not state action at all, so much as it is a bargain struck among the state's democratic constituents. The constitutional requirement that after every decennial census members of the legislature undertake negotiations to reconstitute their electoral base, like the Supreme Court recently said about party conventions, is a state-created framework for the exercise of private political rights. Representatives of the many political associations which constitute the state's body politic are supposed to agree on the new shape of their democratic compact, with the explicit understanding that the resulting district lines will have a powerful effect on the outcomes of elections for the next decade. Arguably, the federal judiciary bears an even greater burden of justifying oversight of the foundationally political redistricting process than its oversight of party activity.

The ability to consent to the laws under which one is governed has always been the essential difference between a free man (women not gaining the franchise until 1919) and a slave in American political tradition and constitutional jurisprudence. This was the principle on which the Supreme Court rested its infamous decision in Dred Scott v. Sandford, (1857), that neither black slaves nor their descendants are eligible to be citizens of the United States. The Civil War and adoption of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution during Reconstruction reversed the Dred Scott ruling that black persons may never be citizens, but they did not reject Chief Justice Taney's basic point, that until African Americans are recognized as equally free peoples and are allowed to consent to the terms of the constitutional covenant they will not be full members of the sovereign nation.

To this day, the Supreme Court perpetuates the constitutional doctrine that the Reconstruction Amendments extended to blacks only equal legal rights, not equal social status and equal political freedom. According to this principle, only a negotiated consent to the constitutional compact can make the citizen a real partner in the democratic enterprise, a full member of the sovereign people, and a co-heir of national institutions. The mere grantee of citizenship rights, while entitled to the protection of law, is not recognized as an equal member of the sovereign people or as an author of those rights.

After Reconstruction, in the Civil Rights Cases (1883), the Court ruled that the Enforcement Clauses of the Thirteenth and Fourteenth Amendments had not given Congress the authority affirmatively to force whites to accept blacks as social equals, that is, to "establish a code of municipal law regulative of all private rights between man and man in society." Even more importantly, the Court did not consider the exclusion of blacks from private places of business to be one of the badges and incidents of slavery. The Civil War Amendments extended to the freedmen and their descendants only the right to be free from the most onerous legal disabilities. In the Court's view, this was all that was necessary for blacks to enjoy the essence of citizenship, and thus the essential distinction between freedom and slavery.

The dominion of whites was safe, because "Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community . . ." Of course, in that day as in this one, no white American would have accepted a bundle of legal rights as a substitute for freedom from domination by even a benign government not consented to. The first Justice John Marshall Harlan-grandfather of Justice John Marshall Harlan II who served from 1955 - 1971-acknowledged what the Court's majority chose to ignore: the status of blacks, nonmembers of the sovereign community was a badge of slavery more hateful and enduring than any restriction of merely legal privileges. White Americans would retain the exclusive power to decide what citizenship for blacks would mean.

Justice Harlan's famous dissent a decade later in Plessy v. Ferguson (1896) is rightly praised for its eloquent de-


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fense of the American ideal and the Reconstruction radicals' aspirations that the Civil War Amendments be used to remove all "legal discriminations, implying inferiority in civil society."

But it is important to understand why Harlan advocated this seemingly more magnanimous view. Justice Harlan did not disagree with the Plessy majority's basic proposition that even aggressive legal enforcement of all the civil rights of black people could not, by itself, produce social equality, for "social equality," said Justice Harlan, "no more exists between two races when travelling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting." Harlan did not doubt that whites were "the dominant race in this country," and that white America would "continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty." Harlan's view was that white dominance in this country should last forever, but only if it respected the legal rights of blacks to the fullest. It was in this context, for this purpose, indeed in the same paragraph, that he wrote the famous phrase, "[o]ur Constitution is color-blind." What Justice Harlan was proposing was a wiser real politik, a more beneficent strategy for preserving white rule and maintaining social order.

Brown v. Board of Education (1954)essentially adopted the first Justice Harlan's position that it is impossible to justify legal segregation of the races without openly endorsing white supremacy. This was the argument Chief Justice Warren used to win unanimity for the Court's opinion. Legal scholars still debate whether the Warren Court, as the chief legitimator of the Civil Rights Movement, wanted merely to remove all the official structures states had developed to prop up separate white and black societies, or whether it intended to use its constitutional power and moral authority to revolutionize America's social order and actually move blacks into the white "mainstream."

We know the Warren era soon ended. Bit by bit, case by case, an increasingly conservative Supreme Court shifted its leadership policy from promoting racial integration to defending white Americans' freedom to associate in racially separate societies defined by both class privilege and ethnic identity.

Today, the Court has come full circle to renounce the Reconstruction social integration agenda for the second time, restoring its view in the Civil Rights Cases that blacks should not be "special favorite[s] of the laws." As the Supreme Court eased away from any pretensions of overseeing the integration of black and white societies, it struggled to find new constitutional justifications for what might now be called white superiority. The old laissez faire conception of equal opportunity, as determined by social and economic markets, was still at hand. It would be used first to limit anti-discrimination laws in the name of associational freedom, then to denounce as preferential affirmative action any legal attempts to modify the institutional structure of the marketplace.

The Supreme Court has rebuffed the efforts of the black community to deploy more legal equality in its struggle to transform its subordinate status in civil society. Since they reclaimed the franchise through the Voting Rights Act of 1965, African Americans have turned to the political forums of civil society itself, seeking the opportunity as legally coequal members of a democratic republic to negotiate practical arrangements that might lead to true equality in the American nation. The Voting Rights Act of 1982 reflected this new black electoral influence and the political compromise it was able to achieve with representatives of America's white majority. The Shaw cases, however, threaten not only the redistricting deals African Americans have been able to make, but also the constitutional legitimacy of their ability to bargain politically at all.

The victim perceived by the Shaw majority is not the white plaintiffs but their nation. In this light, the plaintiffs are properly viewed as members and subjects of a collective nation, rather than as citizens and rights-bearers in a democratic republic. In the Shaw cases, the Court found a majority of justices who want to define late twentieth-century American national identity in terms of colorblind individualism. The problem, however, is that in the group-defining context of redistricting, colorblind individualism will perpetuate the primary badge of slavery instead of removing it. Entrenched as constitutional principle, colorblind individualism threatens to prohibit black Americans and other ethnic groups from negotiating collectively with white Americans over basic democratic structures, foreclosing the possibility that African Americans as a people eventually might achieve the ability to consent to the form of government and to become coequal members of the


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nation. This poses a unique problem for African Americans in that they have never been given the opportunity to consent.

The Shaw cases are an attempt to synthesize the judge-made desegregation and one-person, one-vote constitutional principles into an analytically-distinct constitutional cause of action that can trump the deal African Americans thought they had made in 1982 for a broad group-based regime of rights based on political fairness, which takes into account all the historical and social realities that African Americans confront. As constitutional history, Shaw's definition of national identity is worse than disingenuous; as constitutional change, it serves only to perpetuate the American nation's historical refusal to negotiate with the descendants of slaves.

Two original constitutional pillars of American national identity were nonblackness and nonsectarianism, the one to define Americans as white, the other to prevent white Americans from fighting among themselves. Both nationalist principles remain embedded in our constitutional jurisprudence. Since the beginning of the Republic, white Americans, in the name of national unity, have always been able to turn to the Supreme Court for constitutional protection against efforts to include blackness in the sovereign people's own understanding of who they are.

Today the Supreme Court is moving toward relaxing nonsectarianism, acknowledging that religious differences among white Americans no longer present the dangers of communal faction they once did, expressing a growing willingness to approve government support of religious communities, and tolerating more open involvement of organized religion in political activities

The Shaw cases, along with their affirmative action cousins, represent the Supreme Court's countervailing strategy for keeping querulous whites united around their nonblackness. The Shaw cases exercise the presumed finality of constitutional edicts to outlaw the efforts of those white Americans who, with pressure from the federal government, have demonstrated some willingness to deal with African Americans as negotiating partners in state democracies. These openly black-white redistricting bargains are seen by the Shaw majority as threats to colorblind paradigms of whites, which have become crucial to the national and personal identities of some other Americans.

There is a genuinely painful irony in this historical situation: In 1857, a Supreme Court dominated by Southerners declared that a unified nation could not tolerate treating even free blacks as coequal political agents; in 1995, a Court on which no white Southerner sits has declared that the American nation cannot tolerate Southern white legislators openly negotiating with African Americans as free political agents. The irony is not surprising, however, because the question of how free blacks fit in the American national identity has always transcended sectional differences.

White America did not intend that the recent implementation of blacks' voting rights would lead to any renegotiation of national identity, and it is moving to cut off this route to fundamental change as well. This is the function of colorblind rhetoric. The same Court that resoundingly repudiated the incursion of civil rights in "amorphous" social affairs now is moving to bar the doors of political venues to blacks. The American nationalists who succeeded in keeping civil society out of bounds for constitutional courts are reversing their position and asking the judiciary to set strict limits on the ability of blacks to engage in free political bargaining. Colorblindness as a judicial justification for outlawing vital political negotiations between white Americans and peoples of color is not only hypocritical, it is rationally insupportable by any democratic theory.

We should recall how in the late 1850s, proslavery forces converted "nonintervention" into intervention, contending that Congress could not interfere with the local institution of slavery, while at the same time insisting that the federal government act affirmatively to protect slaveholders in the territories and free states. In the 1990s, proponents of colorblindness are arguing simultaneously that the Supreme Court has no power to interfere with associational rights in civil society and that the Court must enjoin state legislatures from allowing free negotiations between representatives of white and black communities over the basic structures of government. They would make interracial legislative dialogue constitutionally illegitimate and black political influence once again impotent. Dred Scott would recognize a familiar American theme were he to return today.

James Blacksher is a voting rights attorney practicing in Alabama.