Confronting Injustice: Moral History and Political Theory 9780199662555, 019966255X

David Lyons challenges us to confront grave injustices committed in the United States, from the colonists' encroach

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Confronting Injustice: Moral History and Political Theory
 9780199662555, 019966255X

Table of contents :
Title Pages
Abstract and Keywords
1.The Balance of Injustice and the War for Independence (pp.6-13)
Abstract and Keywords
I Land, Ownership, and Expansion
II The Conflict and the Consequences
III The Moral Argument
2. Slavery and the Rule of Law in Early Virginia (pp.11-28)
Abstract and Keywords
I Introduction
II Virginia’s Labor Problem
III English Law
IV Africans in Early Virginia
V Colonial Legislation About Slavery
VI Customary Law
VII The Slave Trade Argument
VIII Conclusion
3. The Legal Entrenchment of Illegality (pp.29-46)
Abstract and Keywords
I Jim Crow6
II The Supreme Court
III Legal Theory
IV Further Reflections
4. Unfinished Business: Racial Junctures in US History and Their Legacy (pp.47-84)
Abstract and Keywords
I Introduction
II The Creation of Chattel Slavery4
III The Legal Entrenchment of Slavery
IV The First Quasi-Reconstruction
V The Second Quasi-Reconstruction
VI Addressing the Legacy
5. Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow (pp.85-111)
Abstract and Keywords
I Introduction
II Compensation, Restitution, and Corrective Justice
A. The Moral Debt Model
B. The Material Disadvantage Model
(p.92) C. The Unjust Enrichment Model
D. The Institution Model
III The Role of the Federal Government16
(p.96) A. The Eighteenth Century18
B. The Nineteenth Century21
C. The Twentieth Century24
IV What Is To Be Done?
A. The Material Component
B. The Moral Component
6. Normal Law, Nearly Just Societies, and Other Myths of Legal Theory (pp.112-29)
Abstract and Keywords
7. Moral Judgment, Historical Reality, and Civil Disobedience (pp.130-47)
Abstract and Keywords
8. Political Responsibility and Resistance to Civil Government (pp.148-76)
Abstract and Keywords
I Political Responsibility
II Tax Refusal
III Individual Accountability
9. Courage and Political Resistance (pp.177-93)
Abstract and Keywords
I Political Resistance
II Saving Lives in My Lai
III Resisting in Warsaw6
IV Organizing in Mississippi
V Postscript
10. Epilog: From Politics to Philosophy (pp.194-209)
Abstract and Keywords
Cases cited
Legislation and other written law cited
Other colonial law
Post-colonial law
Books and articles cited

Citation preview

Title Pages

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Title Pages (p.i) Confronting Injustice (p.ii) (p.iii) Confronting Injustice

(p.iv) Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © in this volume David Lyons 2013 The moral rights of the author have been asserted First Edition published in 2013 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted Page 1 of 2

Title Pages by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer British Library Cataloguing in Publication Data Data available ISBN 978–0–19–966255–5 Printed by the MPG Printgroup, UK

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Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Dedication (p.v) For our grandchildren: Luciana Matilde, Ruth Ida, and Leo Frederick

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Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

(p.viii) (p.ix) Acknowledgments The papers in this volume address issues at the intersection of moral judgment, social history, and political theory. That academic interest reflects my personal experience as a political dissident and activist, which was informed by studies in American history under Hans Trefousse and John Hope Franklin and by collaborative teaching with my son Matthew on the topic of political resistance. Since that collaboration, my academic work has centered on racial aspects of American history. I am grateful to the BU Law School for providing the opportunity to pursue these interests and for generously supporting my work; to my colleagues in law and philosophy for their encouragement of the work represented here; to the BU Law Library staff and several students for research assistance; to innumerable persons for comments on earlier versions of these papers; to Aaron Garrett for suggesting such a collection; to Michael Fogleman and Melinda Peterson for help in preparing the papers for publication; to Virginia C. McGuire for compiling the index; and to the very helpful staff of Oxford University Press for many kinds of aid and encouragement. I am also grateful to the publishers of papers that are collected in this volume for permission to reprint them. They were originally published as follows: 1. “The Balance of Injustice and the War for Independence” (1994), in Monthly Review 45: 17–26. 2. “Slavery and the Rule of Law in Early Virginia” (2012), not previously published. 3. “The Legal Entrenchment of Illegality” (2008), in The Legacy of H. L. A. Hart, ed. M. Kramer, C. Grant, B. Colburn, and A. Hatzistavrou (Oxford University Press), 29–43.

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Acknowledgments 4. “Unfinished Business: Racial Junctures in US History and Their Legacy” (2003), in America’s Unpaid Debt: Slavery and Racial Justice, ed. M. T. Martin and M. Yaquinto (Department of Ethnic Studies, Bowling Green State University), 11–47. 5. “Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow” (2004), in Boston University Law Review 84: 1375–1404. (p.x) 6. “Normal Law, Nearly Just Societies, and Other Myths of Legal Theory” (1993), in Archiv für Rechts- und Sozialphilosophie 55: 13–26. 7. “Moral Judgment, Historical Reality, and Civil Disobedience” (1998), in Philosophy & Public Affairs 27: 31–49. 8. “Political Responsibility and Resistance to Civil Government” (1995–6), in Philosophic Exchange 1995–96: 5–25. 9. “Courage and Political Resistance” (2010), in Boston University Law Review 90: 755–1769. 10. “From Politics to Philosophy” (2007), in Legal Philosophy—Five Questions, ed. M. E. J. Nielsen (Automatic Press/VIP), 153–69. Because this volume concentrates on confrontations with injustice, I have not included recent papers in moral and legal theory that fall outside its scope. Those can be found at SSRN and BU websites.

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Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Introduction David Lyons


Abstract and Keywords Americans think of the North American colonies’ War for Independence from Great Britain as a struggle for freedom by a people subjected to colonial domination. Without denying the colonies’ grievances, this paper argues that the principal victims of injustice in North America were not European Americans but Americans of color. The freedom to exterminate Indians and take their land was one of the main objectives of the colonists’ drive for independence. The British government for its own reasons sought to slow down the colonies’ westward expansion. With territorial expansion would come the spread of slavery. Such effects were intended and accomplished and had been reasonably predictable at the time. It follows that one must question whether the War for Independence was morally justifiable. Keywords:   American Revolution, Native Americans, African Americans, colonial domination, territorial expansion, the spread of slavery

It is hard to confront grave injustices committed by one’s own country. Take, for example, the American Revolution. Americans see it as a struggle for freedom from oppressive British rule, which has some basis in historical fact. In viewing it that way, however, we ignore some important reasons for the colonists’ disaffection. We disregard many colonists’ commitment to displacing Native Americans by any means necessary and their resentment at the British government’s ban on incursions into Native American territory. We do not learn about the economic interests of colonial leaders who engaged in speculation concerning Indian land. Nor do we consider the aim of influential colonists to acquire more room for chattel slavery. Once we take such factors into account Page 1 of 6

Introduction and compare them with the colonists’ grievances, it is arguable that the principal victims of injustice were not colonists but Native Americans, and that the colonists were the Indians’ chief enemy. (See Essay 1.) Nor did the moral history of the English settlements start out well. In 1619, when the Jamestown settlement was only a dozen years old, a Dutch ship stopped there briefly and traded twenty Africans for provisions. That exchange has often been depicted as the beginning of race-based slavery in those colonies. But that telling of the story neglects to mention that slavery was unlawful under English and colonial law. The colonists were not authorized to hold slaves, but they did so anyway, long before those who ruled Virginia decided that it would be prudent to make the practice lawful. Our celebration of the rule of law in colonial America does not notice that, even from a legal point of view, slavery began under a cloud. (See Essay 2.) Until recently, the field of American history did not focus on such details. Reform followed World War Two, when the US had stressed the racist policies of its wartime enemies. Reform followed a widening awareness of the Holocaust, the emergence of a civil rights movement at home, and the development of a colonial liberation movement abroad. (p.2) Historical studies now reveal that race relations were fluid in early Virginia. The racial stratification that Americans have long taken for granted was not inherited but was imposed by a colonial government that wanted to stabilize a shaky regime. History reveals how, a century later, delegates to the Constitutional Convention from Northern as well as Southern states readily agreed to the demands of Georgia and South Carolina for protections of slavery against the rising abolitionist movement, how slave-based agriculture came to dominate the national economy, and how the slave states came to dominate national politics. After the Civil War, slavery was abolished without compensating the former slaves for the wrongs to which they had been subjected or for their unrecompensed labor, which had created an enormously profitable Southern economy. Few ex-slaves secured even the modest plot of land that would have helped them to become independent. Without land reform, the former slaveowners regained economic and political control within their states. Some exslaves fled the South, but most remained in the region they regarded as their home and became imprisoned in debt as sharecroppers or tenant farmers. During the brief period of Reconstruction following the Civil War, significant reforms, such as the creation of public schools, were introduced into the former slave states. Federal troops effectively fought terrorist organizations that sought to reverse racial progress. After the federal election compromise of 1877, however, Reconstruction was aborted. In exchange for the presidency, Page 2 of 6

Introduction Republicans withdrew federal troops from the South. The former slave states began systematically to disenfranchise African Americans and to create a system as close to slavery as the federal courts would allow. Blacks and whites who resisted the establishment of Jim Crow were subjected to economic coercion and lethal violence. The rape, assault, and murder of African Americans was tolerated (or engaged in) by Southern officials while the federal government averted its gaze. (See Essay 3.) In the 1960s, during America’s Cold War competition with the Soviet Union for markets, resources, and alliances in the Third World, the federal government finally renounced the doctrine of white supremacy. That was not mere rhetoric, however, as the government began to enforce African Americans’ civil rights. This time the federal courts aided instead of obstructing reform. Despite violent resistance, Jim Crow was gradually dismantled. (p.3) But the legacy of racial stratification remains largely undisturbed. Black ghettos, a product of Jim Crow policies, graphically represent that unwelcome inheritance. Racial segregation of schools follows residential segregation; it may now be de facto rather than de jure, but it is real and harmful nonetheless. These aspects of contemporary America both reflect and reinforce covert discrimination, a wealth gap between white and black families, and substantially inferior life prospects for black children. As public policy fails to address these deficits, the ideal of equal opportunity is effectively abandoned. (See Essay 4.) Can reparations be justified as a consequence? Discussion of that issue often refers to reparations for slavery; but as slavery ended 150 years ago, no former slave could now be a claimant and no former slave-owner could be a source of compensatory payments. Nor can we simply identify their distant descendants as substitutes. Genuine connections can nonetheless be traced from slavery to the present. They are provided on one side by the failure to compensate ex-slaves for the wrongs they experienced, the re-subjection of African Americans under Jim Crow, the failure to compensate them for the wrongs they subsequently suffered, and the persisting legacy of oppression and exploitation in health, living conditions, income, wealth, social status, and life prospects. Connections between slavery and the present are provided on the other side by the government’s role in supporting systems of racial domination and its failure to address their legacy. Those facts support statistical rather than personal connections between past wrongs and current disadvantages. But general trends are precisely what public programs would justifiably address, if the political will could be developed.

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Introduction To increase the prospects of forging that will and more adequately address the issue of equal opportunity, we should consider the fact that inferior life prospects are inherited by many children, not only from slavery and Jim Crow but also from multi-generational privation such as that of the rural poor in Appalachia. A program of corrective justice that aimed at establishing equal opportunity for all children would inevitably address the legacy of slavery and Jim Crow. For our history and its legacy insure that a disproportionate number of disadvantaged children are Americans of color. But by no means all. (See Essay 5.) It has proved difficult for theorists to confront that history squarely. Writings about law suggest that theorists do not appreciate the impact of (p.4) injustice on their ideas. As unjust laws command no respect, theorists agree that political obligation—a moral obligation to obey the law—is needed if one wishes to maintain a moral presumption favoring obedience to unjust as well as just laws. Despite recognizing serious, systematic injustices in legal systems, theorists of varying persuasions have suggested that political obligation normally obtains. But as legal systems have typically supported grave injustices, it is implausible to suppose that political obligation can normally be assumed. (See Essay 6.) This difficulty affects even theorists who address political obligation. Theorists agree that morality cannot call for obedience to unjust as well as just laws unless the prevailing system is “reasonably just” overall. No one has tried to make that vague notion precise, but some familiar conditions would seem inconsistent with such an appraisal. It is implausible to suppose that a system can be regarded as “reasonably just” and capable of supporting political obligation if, for example, it systematically violates basic rights. But that has been a commonplace aspect of real legal systems. Surprisingly, few theorists (including critics) of political obligation consider such moral obstacles to its realization. Even more surprisingly, the same failure to confront systemic injustice is typical of theories about civil disobedience. Theorists assume political obligation when they take for granted that even political protest requires substantive moral justification if it involves unlawful conduct, however peaceful, non-violent, and non-threatening the unlawful conduct may be. (See Essay 7.) Writings by the most prominent practitioners of civil disobedience, such as Thoreau, Gandhi, and King, do not exhibit that failing. Consider Thoreau, for example. He refused to pay the Massachusetts tax in order to protest his state’s support of the nation’s most egregious wrongs—its defense of chattel slavery, its invasion of Mexico, and its treatment of Native Americans. Thoreau not only rejected the idea of an obligation to obey laws that support such policies, he endorsed a duty to disobey.

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Introduction Thoreau’s disobedience was not limited to tax refusal. His home was a stop on the Underground Railroad, which means that he offered unlawful assistance to runaway slaves. With good political sense, Thoreau refrained from publicizing those activities in his famous lecture on civil disobedience, for doing so would likely have led to his prosecution under the Fugitive Slave Act and an end to that valuable aspect of his political resistance. (See Essay 8.) (p.5) Like Thoreau, the other two most prominent practitioners of civil disobedience, Gandhi and King, protested brutal, oppressive, and exploitative systems. Gandhi led campaigns against British colonial rule and King battled Jim Crow. It is implausible to assume a moral obligation to obey laws supporting such systems. But theories of civil disobedience assume just that. Theoretical writing on political protest appears detached from social reality in its very definition of civil disobedience, as unlawful, non-violent protest against laws or public policies by individuals who willingly accept punishment for their disobedience in order to acknowledge a moral obligation to obey the law under a system that they regard as reasonably just. Almost every element of this definition fails to fit many acts that are classified as civil disobedience. The distinction between lawful and unlawful protest, for example, is morally significant if the system supports political obligation, but it lacks moral significance under brutal, oppressive, and exploitative systems like Jim Crow, chattel slavery, and British colonial rule. Moreover, governments often treat lawful protest as if it were criminal, and then the distinction loses practical as well as moral significance for protesters. As mention of King may remind us, it can be dangerous to challenge injustice. Southerners who worked for civil rights understood that they were likely targets of lethal violence. And many lost their lives—not only prominent organizers like Medgar Evers and Martin Luther King, Jr., but countless others, from James Chaney to Vernon Dahmer. Northerners James Reeb and Viola Luizzo probably did not think that they had placed themselves in mortal danger when they traveled South to support the Selma to Montgomery march for voting rights, but they too gave their lives. In a variety of circumstances, it can take courage to challenge injustice. (See Essay 9.) Circumstances make a great deal of difference. Many of us in America who have challenged unjust policies have not had to be especially brave in doing so. If you were not in the South fighting Jim Crow1 or building an effective labor union, there might be little risk of lethal violence. It can be painful, however, to be targeted simply for one’s dissidence, however peaceful, non-violent, and nonthreatening one’s protests may be. As Thoreau observed (1973: 66), those who “serve the State with their consciences…are commonly treated by it as enemies.” (See the Epilog.) Page 5 of 6

Introduction Notes:

(1) The North was not always safe. Fred Hampton, an effective organizer of African Americans, was assassinated by Chicago police (Haas 2009).

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The Balance of Injustice and the War for Independence 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

The Balance of Injustice and the War for Independence 1 David Lyons


Abstract and Keywords Many of us learned that slavery began in the English North American colonies in1619 when twenty Africans were purchased from the crew of a Dutch ship that had stopped at Jamestown for provisions. Colonial records do not tell us the fate of the Africans who arrived in Jamestown’s early years. This paper uses legislative and judicial records to reconstruct that history. The institution was not imported from England, under whose laws (which governed its colonies) one person could not own another. Chattel slavery was created by the colonial elite who decided to make their very profitable tobacco industry even more profitable by using slaves instead of contract labor. Colonial records reveal that unlawful enslavement was officially tolerated for decades; that it was incrementally regulated to meet slave-owners’ felt needs; and that it was not legally authorized until late in the seventeenth or early in the eighteenth century. Keywords:   American Revolution, Native Americans, African Americans, colonial domination, territorial expansion, the spread of slavery

Many Americans of European ancestry, like me, now see the European colonization of the Western Hemisphere as invasion, conquest, and genocide. Many have grave misgivings about the constitutional settlement that protected trade in slaves, committed government to helping slave catchers, and gave extra votes in Congress to slave-owners. The moral perceptions that underlie those reappraisals oblige us to go further. There is good reason to question whether

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The Balance of Injustice and the War for Independence 1 the American Revolution—the British Colonies’ fight for freedom from the crown —was morally justifiable. Americans think of the War for Independence in transatlantic terms, as a struggle for freedom by a people subjected to colonial domination. The colonists were taxed without a vote in Parliament; their efforts at self-government were squelched by an imperious monarch; their resistance to an oppressive, unresponsive system led unavoidably, and therefore justifiably, to rebellion. There is of course some truth to that standard version of US history, for the colonists had genuine grievances against the crown. But that version overlooks some plain facts. It ignores the plight of the most oppressed groups in colonial North America; it renders them morally invisible. The standard history assumes, in effect, that the colonists were the principal victims of injustice in North America. But that is false. The principal victims were Americans of color—Native Americans, whose hospitality to European strangers was met with deception and slaughter, and African Americans, who came in chains and worked as slaves. Colonists were the (p.7) principal agents of injustice in America. As one writer observed, “what most aggrieved the poor frontiersman was his sovereign’s ban on robbing the even poorer native.…The gentry cried out passionately for liberty in general, but itemized it as rights for themselves to hold slaves and attack Indians” (Jennings 1976a: 344). The injustices suffered by Americans of color were exacerbated by the War for Independence. That was no accident. It could have been predicted by anyone at the time, because it was intended. The freedom to exterminate Indians and take their land was one of the main objectives of the colonists’ drive for independence. The war caused comparable injuries to others in America, especially African Americans. Those consequences could likewise have been foreseen. In focusing on these aspects of the revolution, my aim is neither to condemn all aspirations of the colonists nor to discount its consequences. The revolution with its grand democratic justification has inspired liberation struggles throughout the world. But we can distinguish those positive aspects of the revolution from its character in the context of the time. We can distinguish the brutality and horror of European colonization from the fact that America provided some measure of relief for victims of oppression in Europe. Similarly, we can distinguish the Constitution’s support of slavery from the Bill of Rights. When we balance the colonists’ grievances against the intended and foreseeable consequences of independence, the justifiability of the War is doubtful.

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The Balance of Injustice and the War for Independence 1 I Land, Ownership, and Expansion Contrary to the story that European Americans have been all too willing to accept, European immigrants came to inhabited territory in North America. Native Americans were numerous and many dwelt in stable communities. They had cleared land on the eastern seaboard and cultivated extensively. Their nations had established territories which were vital to the hunting component of their economies. These facts were evident to European settlers—especially to those who escaped starvation by accepting as gifts the fruits of Native American agriculture. The immigrants wanted to settle. How could they legitimately acquire land in America? They might have tried to work out cooperative (p.8) arrangements with those they found already settled in America. But few, if any, tried to do so. Sometimes Europeans bargained for land; but they did not regard agreements with Native Americans as the basis of their claims. Colonization assumed that governments in Europe had the authority to appropriate land elsewhere in the world without regard to the indigenous populations.2 To consummate land acquisition, effective control over territory was required. If necessary, claims could be secured by force. Native Americans were generally seen as obstacles to be expelled or exterminated. And so they were. Colonists were constantly pressing west, seeking more land, for many reasons: religious conflicts, wasteful agricultural practices, the desire for larger holdings. After the French and Indian War (1756–63), territory was needed to make good on land grants that had been promised to veterans. To support their competing claims, colonial governments encouraged western settlement, even by squatters (Sosin 1967: ch. 2). Speculation was a significant factor. Some prominent European Americans, including Benjamin Franklin, Patrick Henry, and George Washington, were heavily involved in speculation.3 While the prospect of profits from speculation contributed to the colonies’ expansionist tendencies, entrepreneurial activity was not the root cause. The middle of the eighteenth century brought a population explosion in the British colonies, partly due to greatly increased immigration from Europe. The result was land shortage on the coastal plain and a rapidly rising demand for land to the west. As the population of the colonies increased, the gap widened between rich and poor (Sosin 1967: 21; Nash 2006: 208–12, 243). Poverty could be escaped mainly by securing land in the west. Native Americans could be dispossessed—killed or driven further west. Some colonists claimed to be importing civilization and merely sharing underused lands. But by and large settlers found it more convenient to believe that “Godless” and “savage” Native Americans could have no legitimate claims Page 3 of 8

The Balance of Injustice and the War for Independence 1 to land. Such attitudes took root when colonists’ (p.9) brutalities against Native Americans provoked reprisals. (See e.g. Nash 2006: 60–72.) Less advantaged colonists saw Native Americans as their principal enemy and acted on that conviction. By the eighteenth century Native Americans came to appreciate that the French were less interested than the British in expanding colonial settlements. The French came mainly for furs and other trade, whereas Britons came mainly to settle. Native Americans acted on this understanding by siding mainly with the French against the British (Nash 2006: 243–54). Americans have since referred to the Seven Years War between France and Britain as the French and Indian War.

II The Conflict and the Consequences The war against France and its Native American allies impressed on Britain the high cost of securing and especially of expanding colonial settlements. The British government imposed new taxes on the colonists (Gipson 1988: 47–65; Jennings 1988: ch. 21). To minimize conflict with Native Americans and reduce its costs, the government sought to check the colonies’ westward expansion. Its Proclamation of 1763 prohibited colonial settlement beyond the crest of the Appalachians. Its Quebec Act of 1774 invalidated the colonies’ claims to vast Native American lands by assigning territory north of the Ohio to Quebec. These policies became significant sources of conflict between the colonists and the crown. One of the aims of colonial partisans of independence was to eliminate the British government’s limits on expropriation of Native American lands. This helps explain why Native Americans sided mainly with the British against the rebellious colonists, just as they had mainly sided earlier with the French against the British and their colonists (Jennings 1976a: 331–41). So independence for the British colonies was not intended to serve the interests of those who were in fact the principal victims of injustice in America. A reasonable contemporary estimate would have predicted that independence for the colonies would result in greater loss of land, liberty, and lives for Native Americans. That was part of its point. Had such a prediction been made, it would have been confirmed by subsequent developments. Time and again, representatives of the rebellious colonies and officials of the United States made solemn commitments (p.10) to Native Americans to respect their territories or their rights to lands to which they were forced. These promises were made in bad faith and rarely honored. The Indian Non-Intercourse Act, passed by Congress in 1790, pledged security for Native American territory by requiring that each and every transfer of land from Native Americans to others be approved by the federal government. But the government never tried to protect Native American territory by enforcing Page 4 of 8

The Balance of Injustice and the War for Independence 1 the Act. It looked the other way while states illegally acquired and allocated almost all Native American territories in the east. The Non-Intercourse Act applied only to lands within the original thirteen states. As time went on, Native Americans were brutally expelled from territories to the south and west which had earlier been guaranteed them. In view of prior practice, these betrayals were predictable. Native Americans’ experience with the United States was similar to their experience with the colonies. Their homes were destroyed, their lands were taken, they were cheated, raped, and slaughtered. Insofar as independence unleashed the European settlers’ expansionist drives, as it was partly meant to do, Native Americans suffered. That was predictable.

III The Moral Argument The War for Independence was to some extent a popular rebellion in which colonists of all classes voluntarily participated. Insofar as they sought a fairer system, their drive for independence was morally defensible. But Native Americans suffered much greater wrongs at the hands of the colonizers than the colonists experienced under British rule. In that respect, the War for Independence was morally indefensible. Native Americans would have lost land, liberty, and lives even if the colonies had not secured their independence. The British government showed little consideration for Native American interests in its dealings with them. Its checks on the colonies’ western expansion were motivated by imperial concerns. The differences between British and European American conduct towards Native Americans was a matter of degree. But that difference translates into a slower process of expropriation and genocide. Related facts indicate that African Americans were also wronged by the War for Independence. Independence meant territorial expansion and (p.11) the spread of slavery. These effects were reasonably predictable at the time. Expropriation of Native American territory also meant the loss of sanctuaries for escaped slaves. African Americans recognized that they were not meant to benefit from the War for Independence. Less directly interested in colonial slave-holding than were many powerful colonists, the British commanders promised freedom to slaves who would fight the rebels. Some offers of freedom to slaves who would support them were also made by rebels, but their promises were few, came late, and were more often broken. All of this helps to explain why African Americans, like Native Americans, mainly sided with the British against the colonists.4

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The Balance of Injustice and the War for Independence 1 Americans of color were not the sole casualties of the War for Independence. White women were second-class citizens in the colonies, and the War for Independence did little, if anything, to change that. The brutalities, indignities, and other injuries suffered by women were intensified and multiplied by the War. As in all wars, women were subjected to sexual assaults more frequently than usual (Norton 1980: 202–4). That was predictable. No one could reasonably have expected that the War would bring women fully compensating benefits, nor did it do so (Wilson 1976). Some might object that two centuries ago European settlers were incapable of including Americans of color within their moral community; that the settlers were incapable of believing that Americans of color had equal rights (perhaps any rights at all) to consideration and decent treatment; that the settlers therefore could not be expected to have worried about the impact of their conduct on the lives, welfare, or dignity of non-Europeans. So some might object that it isn’t fair to judge the conduct of the colonists by standards that they did not embrace, perhaps could not have embraced. It is certainly true that most European settlers acted as if Native Americans and African Americans were not due equal consideration. But it does not follow, nor is it true, that European Americans were incapable of including Americans of color in their moral community. Some Europeans objected to their contemporaries’ practices of conquest, enslavement, and genocide. Two centuries before the British colonies sought their independence, (p.12) Bartolomé de Las Casas crusaded against the horrors inflicted by Spanish colonists on Native Americans (de Las Casas 1992). By the 1770s, anti-slavery sentiment was widespread in Europe and North America. European Americans were capable of recognizing that their values condemned their own behavior towards Americans of color. European American practices assumed that Americans of color are human beings capable of self-control and subject to moral constraints. European Americans traded with Native Americans. They gave African Americans sensitive tasks such as raising European American children. They held Americans of color accountable for their actions and punishable for their wrongs. European Americans’ conduct shows that they failed to apply their own moral principles consistently—perhaps because they perceived the material costs of doing so. If European Americans regarded Americans of color as less capable than themselves, their principles would have required them to give the latter extra consideration, not less. They should then have taken pains to ensure that they did not cheat or exploit those they regarded as less able and therefore more vulnerable. Their principles demanded no less.

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The Balance of Injustice and the War for Independence 1 One might question the point of a moral argument about events in the distant past. The facts I have cited are not recent historical revelations. We have long known that Native Americans were displaced, raped, and slaughtered so that European settlers could secure their land. We have long known that independence was not sought for the benefit of chattel slaves. Defenders of the War for Independence have not found it necessary to rationalize these terrible costs of the war. In the moral calculus of European Americans, the price paid for independence by women and Americans of color has not even been counted as a cost. This shows how profoundly racism and sexism deform our moral framework. A particular aspect of the colonial rebellion is worth emphasizing. It developed within a three-tiered pattern of conflict: colonists who suffered wrongs under British rule themselves victimized people of color. Bacon’s Rebellion illustrates class dynamics in the colonies and foreshadowed events a century later (Zinn 1980: 39–42; Sakai 1989: 12–19). In 1676 landless, poor, and frontier colonists and other residents of Virginia were mobilized by a wealthy demagogue, Nathaniel Bacon. The rebels set Jamestown ablaze and took over the colonial government. Britain sent an army to restore law and order. (p.13) The rebellion was a popular, anti-aristocratic uprising—but not just that. The rebels had grievances against their rich and powerful rulers in the east. The élite of seventeenth-century Virginia already owned huge tracts within the colony. It served their interests to minimize conflict with Native Americans, so the colonial government they controlled set limits on the settlers’ drive west. The rebellion began when Bacon defied the Governor’s order by leading attacks on friendly Native American villages, stealing furs, slaughtering the inhabitants or taking them into slavery. What the rebels mainly sought was freedom to secure land by killing or driving Native Americans further west. The same pattern recurs through US history. Late in the nineteenth century (to cite one of the less familiar examples), white West Coast factory workers with grievances against employers sought to exclude Asian workers from their industries.5 To venture a fresh judgment of the American Revolution in view of these facts would be to take seriously the idea that all persons are equally endowed with rights to life, liberty, and the pursuit of happiness. Under that doctrine, no human being is morally invisible. Notes:

(1) An earlier version of this essay was presented at the Eastern Division meetings of the American Philosophical Association in December 1992. Thanks to Matthew Lyons and Sandra Lyons for insights and aid.

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The Balance of Injustice and the War for Independence 1 (2) See, e.g., Sosin 1967: 84–5, Jennings 1976b: 3–14. Grants could help establish title against competing European claimants. See, e.g., Taylor 1989. (3) See Van Alstyne 1960; Currey 1968. Detailing the abuse of official positions by speculators, Abernathy (1959: 368) calls Henry an “opportunist” but exonerates Washington. (4) Walker 1989. British aid to those who had joined them plus “the chaos created by rampaging armies” gave African Americans opportunities to escape from slavery. Berlin 1976: 351–5. In this respect the war served African Americans’ interests. (5) They introduced the union label to identify the products of white workers and facilitate discrimination against Asian workers. Hill 1973.

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Slavery and the Rule of Law in Early Virginia 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Slavery and the Rule of Law in Early Virginia 1 David Lyons


Abstract and Keywords This paper concerns systematic practices by public officials that are clearly unlawful, not hidden from view, and tolerated for many years. Such a “legal entrenchment of illegality” characterized America’s Jim Crow period, from the 1890s to the 1960s, especially in the former slave states, where the rape, assault, and murder of African Americans, police brutality, procedural bias, and anti‐black pogroms were tolerated or engaged in by officials. The related cynicism of officials is illustrated by a review of Supreme Court decisions that undermined the legal framework for the post‐Civil War “reconstruction” of the former slave states. This paper also shows how the legal entrenchment of illegality required officials to embrace an incoherent and unstable set of attitudes towards law, which was incompatible with Hart’s legal theory as originally presented, but was compatible with its final form. Keywords:   slavery, slave law, Virginia colony, enslavement of Christians, inheritable slavery, slave homicides, race-based slavery

I Introduction The year 1619 is often given as the year slavery began in Virginia, the first permanent English colony in the Americas. (See, e.g., Morris 1996: 3.) That is when a Dutch ship came to Jamestown, traded twenty or so Africans for provisions, and sailed away.2 Colonial records do not actually tell us what happened to those individuals (or to other Africans who came to Virginia during the next decade).3 But it is natural to suppose that they were enslaved, for they were part of a property exchange, Page 1 of 14

Slavery and the Rule of Law in Early Virginia 1 Europeans had been taking African slaves to the Americas for more than a hundred years, most if not all Africans who later came to colonial Virginia were enslaved, and Holland was a leading slave-trading nation (Nash 2006: 140). There is, however, some reason to doubt that any Africans in early Virginia were slaves—at least in a legal sense. For there was no legal basis for slavery in early Virginia. As I will explain below, the colony’s charters placed it under English law, and English law appears to have allowed slavery only by explicit authorization, which had not been given. Without (p.15) such authorization, enslavement amounted to unlawful imprisonment4 (as those who were enslaved were kept against their will) and assault (as they were subjected to physical punishments). To consider the possibility that slavery was practiced unlawfully in early Virginia, we must understand slavery in non-legal terms. Although it is possible to impose slavery for a limited period, I shall assume that a slave was subject to lifetime servitude. That will help to differentiate a slave from an indentured servant, who was contractually bound to serve a master for several years and was entitled to “freedom dues” (goods or other payment) at its termination. It would have been possible for Virginia colonists to enslave individuals even if it was unlawful.5 It might have been difficult for European governments to ensure that their laws were enforced in their distant colonies, but they might also have tolerated unlawful practices if those responsible found the arrangements to be profitable. That brings us to “the rule of law.” This means, at bottom, that a community has a legal system that is generally (though of course not perfectly) respected.6 That condition is widely regarded, at least by theorists, as a very good thing.7 In view of what has been done in accordance with law—including the Inquisition, chattel slavery, the Final Solution, and much more—I am not prepared to assume that compliance with law is a good thing. It all depends. I do agree, however, that injustice can be done (or exacerbated) by official deviation from law. That is very often a bad thing, not in principle but in practice, because, I believe, official malfeasance and nonfeasance tends more often to intensify than to ease legal immoralities. At any rate, I shall here be concerned with a significant, long-lasting, systematic failure by officials to enforce good law—law that makes slavery unlawful. In doing so, I do not mean to suggest that officials can never be justified in tolerating (or not prosecuting) unlawful behavior. Nor do I mean to suggest that the legalization of slavery (and compliance with (p.16) that body of law) was an improvement. Quite the contrary. We are concerned here with the possibility that officials tolerated unlawful (and morally unjustifiable) enslavement. If we find that people were illicitly enslaved in early Virginia without moral and legal Page 2 of 14

Slavery and the Rule of Law in Early Virginia 1 warrant but with the knowledge and acquiescence of those who were responsible for enforcing the law, we will have identified a significantly troubling violation of the rule of law. The discussion to follow will show that slavery was unlawful in early Virginia and that some Africans were enslaved. The colonial legislature might have authorized slavery, but it did not trouble to do so until considerably later, in the meanwhile legislating in the interests of slave-holders. Those who wielded the levers of colonial power knew of and tolerated the unlawful practice (and probably were among those who engaged in it most extensively), until they saw fit to make it lawful. Early Virginia thus set a bad precedent for official malfeasance and nonfeasance under chattel slavery and Jim Crow—official misconduct (noted below) that exacerbated the grave violations of human rights that defined those systems. Before reaching those conclusions, we shall consider two other possibilities. One is that enslavement was legitimated under customary law. Another is that holding slaves was not unlawful because colonists did not enslave anyone but merely purchased individuals who had already been enslaved by third parties.

II Virginia’s Labor Problem Founded in 1607, Jamestown was a privately funded venture whose investors hoped to reap profits by securing precious metals, as the Spanish had done in Mexico.8 But the Chesapeake region, where Jamestown was located, held no such resources. To make the venture profitable, the colonists would have to extract other items of value, such as lumber. But the colonizing party was not well prepared to establish a settlement, and for several years the colonists suffered from food shortages and illness. The colony survived in part because they received some food and learned survival skills from their Indian neighbors, and also because the number of (p.17) Europeans who immigrated exceeded the number of those who died from illness or starvation or who abandoned the enterprise. Of the more than two thousand Europeans who traveled to Virginia between 1607 and 1616, only three hundred and fifty remained. What saved the colony was tobacco, which was much desired in Europe. The colonists discovered that the region’s soil and climate favored tobacco cultivation. By 1617 Virginia was exporting tobacco, which quickly became a source of riches for colonists who could secure large plots of land and servants to work it. Land was acquired, by fair means or foul, from the territory of neighboring tribes. The colonists were unable to entice or force their Indian neighbors to work as agricultural laborers, so labor was provided by indentured servants, most of whom fled from desperate conditions for the poor and unemployed in Page 3 of 14

Slavery and the Rule of Law in Early Virginia 1 England at the time. By mid-century, however, as the English economy improved, recruitment became more difficult and more costly. (It is also possible that potential recruits learned of the “nightmarish” conditions for servants in Virginia; Nash 2006: 59.) The solution to the labor problem was found in Africa. Spanish and Portuguese colonists had been importing slaves from Africa for more than a century. English colonies in the West Indies, first established in the 1620s, had become dedicated to sugar production by mid-century. Enormously profitable, the sugar plantations depended on the African slave trade (on which, see Nash 2006: 134–47). Virginia’s tobacco industry soon followed their example. The number of Africans in early Virginia was at first very small, as was their proportion of the colony’s population. In 1650 the colony’s 300 Africans comprised 2 percent of its population, but their numbers then expanded rapidly. In 1675 Virginia’s 2,500 Africans comprised 6 percent of its population and by 1700 the colony included six to ten thousand Africans who comprised 10 to 13 percent of its population (Vaughan 1989: 338 n. 79; Davis 2006: 128–33). Our question about slavery in early Virginia thus concerns the fate of either several hundred Africans, who came to the colony between 1607 and 1655, when Virginia began to legislate about slavery; or it concerns several thousand Africans, who arrived between 1607 and 1682, when, I will suggest, legislation effectively authorized slavery.

(p.18) III English Law To ascertain the legal status of slavery in early Virginia, we must begin with English law. Historians agree that by the seventeenth century the English common law made no provision for the enslavement of human beings.9 I do not mean that slavery was unknown to the English. It was no secret that slavery existed in Spain and Portugal and that their colonies had been importing African slaves since early in the sixteenth century—more than a hundred years. England itself was engaged in the slave trade even before it had permanent colonies in the Americas, and a number of enslaved Africans had been brought to England as personal servants.10 Parliament had the authority to override the common law, and it knew how to impose slavery. Between the mid-sixteenth and early seventeenth centuries, it had on at least three occasions prescribed slavery for segments of the British population.11 And in 1652, after the English put down the Irish rebellion, they enslaved and shipped abroad thousands of Irish soldiers (Allen 1994: 50). But Parliament did not otherwise regulate or authorize slavery in either England or the colonies. It follows that the applicable part of English law was the common law.12

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Slavery and the Rule of Law in Early Virginia 1 (p.19) That English law applied to early Virginia follows from the Virginia Company’s charters.13 Its first charter provided that a Council was to govern any colony it established and that English subjects and any offspring born there “shall HAVE and enjoy all Liberties, Franchises, and Immunities…as if they had been abiding and born, within this our Realm of England” (MacDonald 1899: 8). This meant that English law applied in Virginia. The Company’s 1609 charter authorized it to establish laws “fit and necessary, for and concerning the Government of the said Colony and Plantation” but added that such laws should as far as possible “be agreeable to the Laws, Statutes, Government, and Policy of this our Realm of England” (MacDonald 1899: 14, 16). The Company’s 1612 charter likewise authorized it to establish “such Laws and Ordinances, for the Good and Welfare of the said Plantation, as to them, from time to time, shall be thought requisite and meet: So always, as the same be not contrary to the Laws and Statutes of this our realm of England” (MacDonald 1899: 19). Thus the Virginia Company’s charters made clear that the colony was to be governed by English law. Much the same was true after 1624, when Virginia became a royal colony. It was free to enact new laws (its own legislature had been established in 1619), which would be effective if they were agreeable to the crown (Bush 2002). In short, Virginia was subject to the common law as modified by English or colonial legislation. But neither Parliament, the Virginia Company, nor the colony’s legislature enacted legislation concerning slavery in Virginia prior to 1655. This means that the relevant law of early Virginia was the English common law.

IV Africans in Early Virginia The Africans who came off the Dutch ship in 1619 were exchanged for provisions. They were treated like property, but that is not a sure sign that they were slaves. Indentured servants were also treated like property. For example, some of the Europeans who were recruited to become indentured servants did not make contractual arrangements prior to arriving in Jamestown and on their arrival were auctioned off to masters (Nash 2006: 58). (p.20) And colonial records tell us that some Africans who came to early Virginia were not enslaved but became indentured servants. Consider, for example, a 1640 case in which punishments were imposed on three servants who had run away together. The court decided that each was to receive “thirty stripes” as well as additional service. Victor, a “dutchman,” and James Gregory, a “Scotchman,” had their indentures extended by one year, after which each was to serve the colony for three years. By contrast, the court decided that the “negro named John Punch shall serve his said master or his assigns for the time of his natural Life here or elsewhere” (Finkelman 1986: 12). That sentence presupposed that John Punch was not already subject to lifetime servitude. He was presumably an indentured servant, like his fellow runaways.

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Slavery and the Rule of Law in Early Virginia 1 Colonial court records also tell us that some blacks in Virginia were indentured servants even decades later. In the cases of Re Edward Mozingo (1672) and Moore v. Light (1673), “Negro” Virginians were found to have served out their indentures and accordingly were awarded their freedom as well as freedom dues (Finkelman 1986: 13). But colonial records also indicate that some Africans were enslaved in early Virginia. Consider the 1655 case in which Elizabeth Key, who is identified as a “negro” being held as a “slave,” sued for her own freedom and that of her child (Banks 2008: 810–11; see also Billings 1973). The court found that Ms. Key’s mother was a “negro” “slave,” that Elizabeth Key’s father, Thomas Key, was a free man, and that Elizabeth Key had been christened. Ms. Key argued that under the common law a child inherits the condition of its father and that Christians may not enslave other Christians. She also provided evidence that she had been “sold” by Thomas Key with the condition that she serve for only nine years. The Northumberland County Court ordered that Ms. Key be freed. After a reversal of that decision by the General Court, Ms. Key was finally vindicated by the General Assembly.14 The record of Elizabeth Key’s case indicates that she was born around 1630 to an enslaved “negro” woman (Banks 2008: 799). This means that the practice of enslavement began no later than 1630 in Virginia, and (p.21) probably some years earlier.15 There is no evidence that the court regarded as unusual the fact that the two black women were enslaved. This suggests that the enslavement of blacks was not an uncommon practice. Elizabeth Key’s case is also relevant to subsequent legal developments. Shortly after it was decided, the Virginia legislature began to regulate slavery by addressing two of Elizabeth Key’s freedom arguments.

V Colonial Legislation About Slavery The Virginia legislature first referred to slavery in 1655, when it declared that children who were brought by neighboring Indians to be raised in the colony should not be used as “slaves” (Virginia 1809–23: I, 396), which strongly suggests that Indian children had been enslaved illicitly. In 1659 the legislature offered foreign carriers an incentive to bring “slaves” to the colony. It would reduce by 80 percent the tax that carriers would otherwise be required to pay for carrying tobacco exports (Virginia 1809–23: I, 540). This reflects the colonial government’s decision to promote the importation of slaves. As the colony began increasingly to rely on slave labor, the legislature began to regulate the practice of enslavement.16 This legislative process, which continued into the 1690s, amounts to the incremental construction of a slave code.17 It is noteworthy that the legislature’s first two enactments in that series addressed

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Slavery and the Rule of Law in Early Virginia 1 issues that had been raised a short time earlier by Elizabeth Key’s successful freedom suit. The legislature first considered whether a child’s condition should follow that of its mother or its father. Acknowledging “some doubts” about the appropriate rule, in 1662 the legislature declared “that all children born in this country shall be held bond or free only according to the condition of the mother” (Virginia 1809–23: II, 170).18 The prevailing common law rule was different: a child followed the condition of its father. The Virginia enactment has led some scholars (p.22) (e.g., Morris 1996: 265–6; Blackburn 1998: 43) to suppose that the legislature decided for its own reasons to depart from the common law. But the prevailing rule applied to the offspring of a lawful marriage. When a child is born out of wedlock—which was presumably true of Elizabeth Key19—the common law said that the child followed the condition of its mother (Collins 2000: 1682–5). By thus clarifying the status of children born to slaves, the new rule blocked potential freedom suits like Elizabeth Key’s. It also meant that slave-owners could increase their slave-holdings by raping their female slaves—an horrific practice that became commonplace. The next slavery-related enactment concerned the second argument that had been advanced by Elizabeth Key—that Christians may not enslave other Christians. This doctrine was presumably unwelcome to those who wished to purchase slaves, because many of the Africans who were brought to early Virginia had already been baptized either in Africa or in the West Indies (Berlin 1998: 27). The legislature may also have been moved to act on that question after the same doctrine was invoked again, in 1667, by one Fernando, who was identified as a slave for life. Fernando sued for his freedom on the ground that he was a Christian. His petition was dismissed because the Virginia court would not consider the proof that he offered, which was written in Portuguese (Billings 1973: 467–8). Slave-holders had reason to seek such legislative relief. Other slaves were known to have been baptized, Virginia’s enslaved population was increasing rapidly, and it was expensive for slave-holders to engage in such suits, even if they won (Billings 1973: 471–2). Perhaps not coincidentally, in the very same year that Fernando sued for his freedom, the legislature renounced the doctrine on which his freedom suit relied and that Elizabeth Key had invoked earlier. The legislature declared “that the conferring of baptism does not alter the condition of the person as to his bondage or freedom” (Virginia 1809–23: II, 260).20

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Slavery and the Rule of Law in Early Virginia 1 In the years that followed, the Virginia legislature continued to regulate enslavement. In 1669, for example, it declared that the killing (p.23) of a “slave” who was being disciplined would not count as a crime, because no one would deliberately destroy his own property (Virginia 1809–23: II, 270).21 This enactment placed a slave’s life fully in the hands of his or her presumed owner. It was unlikely that a jury of a slave-owner’s peers would rule that he had maliciously killed his own slave. If such a question arose, a slave-owner could reasonably assume that his peers would simply accept his claim that the slave had died while being disciplined.22 The enactments of 1655–69 that we have just reviewed acknowledged enslavement, and so might be thought to have tacitly legitimated the practice. That inference is debatable, but there seems less reason to doubt that enslavement was in effect authorized by the legislature’s next major enactment in its construction of a slave code. In 1682 the legislature formally imposed a racial division upon the colony’s working class by declaring that all servants of color “shall be adjudged, deemed and taken to be slaves to all intents and purposes, any law, usage or custom to the contrary notwithstanding.”23 The implication was that indentured servitude was reserved for servants of European extraction. To reinforce the racial divide, in 1691 the legislature provided severe penalties for fraternization between whites and blacks (Virginia 1809–23: III, 86). Colonial records thus indicate that some Africans were enslaved in early Virginia more than two decades before the practice was acknowledged by the colonial courts or legislature and several decades before enslavement was regulated or authorized by the legislature.

(p.24) VI Customary Law So far, then, we have found no clear legal warrant under English law for enslavement in early Virginia. Two possible grounds must now be considered. It might be suggested that Africans in early Virginia were lawfully enslaved as a matter of customary law. To appraise this possibility, it may be helpful to consider a comparable argument, which provided the basis for Justice McLean’s 1853 decision in Miller v. McQuerry (17 F.Cas. 335). Miller had claimed McQuerry as a runaway under the Fugitive Slave Law. McQuerry replied that he had been held unlawfully because slavery had never been authorized in Miller’s state, Kentucky. Justice McLean acknowledged that slavery “could not exist without the authority of law” and observed that it had never explicitly been authorized in any of the slave states. He added, however, “Whether this law was founded upon usage, or express enactment, is of no importance. Usage of long continuance…has the force of law.…There is no slave state, where the existence of slavery is not recognized and maintained, by numerous statutes and judicial decisions” (emphasis added). McLean appears to have held that slavery could Page 8 of 14

Slavery and the Rule of Law in Early Virginia 1 acquire lawful status without express enactment, either by being practiced undisturbed for a long time, or else by official acknowledgment and reinforcement of long-term practice. Slavery in early Virginia began some time prior to 1630 without express authorization or even official acknowledgment. I have suggested that slavery was tacitly authorized by legislation in 1682, and perhaps a bit earlier. The practice was acknowledged by Virginia’s courts and legislature as early as 1655– 56, but it was not then enforced, and regulation did not begin until 1662.24 That leaves us to consider Justice McLean’s suggestion that long usage could legally sanctify slavery, even without official recognition and reinforcement. The literature offers two views of customary law. On one view, informally established social norms become law without supporting legislation when, but only when, courts enforce them. (See, e.g., Austin (p.25) 1954: 163.) This condition does not appear to have been satisfied for slavery in early Virginia. It is arguable that the Virginia court enforced Fernando’s enslavement when in 1667 it dismissed his freedom suit. But the courts did not enforce the practice of enslavement in Elizabeth Key’s case twelve years earlier. We lack evidence that the practice was enforced by Virginia courts prior to 1667. Another view of customary law is that courts are legally bound to enforce informally established social norms when those norms satisfy certain added conditions. Theorists disagree about the conditions that together make such a norm legally binding. (See, e.g., Austin 1983: 314–18.) It will suffice for present purposes to note that the suggested conditions generally include the compatibility of the norm with the statutory or common law and the norm’s existence for an extended period of time. Within English jurisdictions, however, slavery was not a customary practice that had existed for an extended period of time. There had been no regular institution of slavery or any legal provision for it for centuries (save in a limited way under narrowly applicable statutes). When English colonists began to enslave Africans and Native Americans, no existing social norm exempted people of color from the common law’s condemnation of unauthorized imprisonment and assault. That norm had to be created by legislation (or, perhaps, judicial acknowledgment) some decades after the practice of enslavement was initiated. It would appear, therefore, that enslavement was not authorized by customary law. It was simply tolerated by those who held the principal levers of power in England and its colonies.

VII The Slave Trade Argument That brings us to the possibility that slavery in early Virginia was not unlawful because those who held individuals as slaves had not enslaved them but merely purchased persons who had already been enslaved by others. That position was embraced by Massachusetts in its 1641 Body of Liberties,25 which prohibited Page 9 of 14

Slavery and the Rule of Law in Early Virginia 1 slavery except of “lawful Captives taken in (p.26) just wars, and such strangers as willingly sell themselves or are sold to us.”26 For present purposes, we can ignore the first two categories of slaves and focus on the third, which I take to mean that one may lawfully purchase and hold as a slave anyone who is offered for sale as a slave. We may call this the slave trade provision.27 Viewed in the context of then-current colonial practice outside of the English colonies as well as subsequent practice in those colonies, the slave trade provision may seem unremarkable. By 1641, the transatlantic slave trade was more than a century old and had become a major enterprise engaged in by several European nations, which transported millions of enslaved Africans to the Americas. The Africans who came early on may have included some who had been taken captive in just wars or legally subjected to lifetime servitude as a punishment. By 1641, however, those who were enslaved were mainly individuals who had been kidnapped for the transatlantic slave trade or who had been taken captive in wars that had been initiated for the purpose of securing slaves for that trade.28 As far as Massachusetts law was concerned, by 1641 those who were purchased and held as slaves were held lawfully, regardless of how they became slaves. Alongside its slave trade provision, let us consider Section 94 of the same Body of Liberties, which provides a list of capital crimes.29 The tenth item on the list says that “If any man steals a man or mankind, he shall surely be put to death.” Thus Section 94 makes kidnapping a capital offense while Section 91 appears to permit the purchase and retention of individuals who have been kidnapped and enslaved. The kidnapping prohibition was not quite a dead letter. In the 1650s two Massachusetts men, John Smith and Thomas Keyser, seeking slaves, attacked a town on or near the coast of Guinea, killing many townspeople and kidnapping two. These events were revealed to the Massachusetts General Court in a legal action by Smith against Keyser, who had sailed home with his human cargo without waiting for Smith. In view of Section 94, at least one official called for their prosecution, but it appears that no prosecution was undertaken. However, as the kidnapping of the (p.27) two Africans was contrary to Massachusetts law, the court ordered them sent home (Winthrop 1853: II, 298–300, 462–3; Willard 1858: 150–1; Higginbotham 1978: 63–5). The law of early Virginia may be viewed against that background. The Massachusetts condemnation of kidnapping would seem to reflect a fundamental doctrine of the common law and thus to be effective in early Virginia. But the same may not be said about the slave trade provision, as nothing like it was adopted by Virginia in its first half century. Early Virginia did not authorize slavery as Massachusetts chose to do.30

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Slavery and the Rule of Law in Early Virginia 1 If we assume a doctrine of self-ownership, we might regard those who were kidnapped and enslaved as stolen property. As I understand English law of the time, it did not generally facilitate a transfer of ownership of stolen property.31 Exceptions were provided to that general rule, but they seem designed to protect reasonably prudent and innocent purchasers.32 Such exceptions would seem inapplicable in early Virginia because it would have been unreasonable for a purchaser of slaves at the time to assume that those being purchased had been lawfully enslaved. Under contemporaneous English law, then, slaves secured through the transatlantic trade could not lawfully become the property either of those who enslaved them or of those who purchased them as slaves. The common law and thus the law of early Virginia did not regard persons who had been kidnapped as lawfully enslaved.

VIII Conclusion Slavery was inconsistent with the common law and for most of the seventeenth century with Virginia law. Legislation could have rendered slavery lawful; instead, the practice was officially tolerated without explicit authorization. The fate of John Punch, the black indentured servant, suggested what was to come. As a penalty for running away from his master, Punch was sentenced to lifetime servitude, while his white peers merely had their terms of service extended. Treating those like cases differently without (p.28) justification, the Virginia court in 1640 helped to develop the system of racial stratification fortytwo years before it was officially imposed by the legislature.33 The unlawful practice of enslavement in early Virginia was not merely malfeasance that violated the rule of law. It violated human rights and foreshadowed subsequent practice. Under chattel slavery, for example, a slaveowner could theoretically face legal charges for the malicious killing of his slave, but such murders were rarely if ever prosecuted. And under Jim Crow, another brutal and exploitative system of racial subordination, public officials failed to enforce laws against murder, rape, and assault when the victims were black (and officials were often participants in such practices). These actions, too, were tolerated by officials at the federal level (see Essay 3). In both cases, one set of grave human rights violations was added to another. Notes:

(1) This paper has evolved from presentations at Case Western Reserve University, Macalester College, Boston University, the City University of New York, and Tulane University. I am grateful to Beth Walker, Tagore Subramaniam, Stephanie Weigman, and Jennifer Ekblaw for research assistance and to Kris Collins, David Seipp, and Sandy Lyons for comments. [This paper supersedes s.II of “Unfinished Business: Racial Junctures in US History and Their Legacy.”]

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Slavery and the Rule of Law in Early Virginia 1 (2) A contemporary report can be found in Virginia Company of London 1933: 243. (3) Vaughan 1972: 469. It is uncertain how many Africans came off that Dutch ship in 1619, whether Jamestown was where they disembarked (Craven 1971: 416–19), whether some Africans arrived earlier (Davis 2006: 124), or whether some Africans came freely (Berlin 1998: 391). (4) Unless it was imposed as a punishment that was authorized by law or, perhaps, those who were enslaved had been taken as prisoners of war. (5) For the Virginia regime’s violations of legal restrictions, see Konig 1982 and Berlin 1998: 32. (6) That condition is celebrated by, e.g., Nelson 2002–3 and Hassell 2007–8. Nelson (2002–3) and especially Schauer (2009–10) stress compliance by officials. (7) Some may assume (erroneously, I think) that a community without law lacks social controls. (8) For Virginia history, see Nash 2006: 53–72, 105–10. (9) See, e.g., Watson 1989: 64; Morris 1996: 37ff; Berlin 1998: 29; Franklin and Moss 2000: 65. (10) Their legal status was not settled until Somerset v. Stewart (1772), about which more below. (11) Under the Vagrancy Act of 1547, Parliament required unemployed workers to labor without wages for private parties. Those so bound could be bought and sold, rented, given away, and inherited. Under the 1563 Statute of Artificers, workers between twelve and sixty years of age who lacked jobs, property, and apprenticeships were bound into farm labor for periods of years (Allen 1997: 20– 1). The Scotland Act of 1606 made saltpan workers, coal miners, vagrants, and thieves bond slaves for life. They too could be sold, inherited, and the like (Allen 1994: 72–3) (12) In 1772 Lord Mansfield held in Somerset v. Stewart that slavery was unlawful under the common law of England. It could be made lawful, but only by explicit legislation, which Parliament had not enacted. As no relevant aspect of the common law had changed between 1607 and 1772, it would seem to follow (in the absence of colonial legislation to the contrary) that slavery in early Virginia was unlawful. Mansfield observed that slavery was well established by the time of his 1772 decision and had been legally sanctified in the colonies.

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Slavery and the Rule of Law in Early Virginia 1 Prior to Somerset, Cartwright’s Case (ca. 1569) is said to have held that slavery violates the common law. But we lack a case report that might enable us to confirm that interpretation (Van Cleve 2006). In 1677 Butts v. Penny held that, as “Negroes” are “infidels,” they can be treated as goods. However, the Butts court also said that persons in the colonies were illicitly held as slaves if they were baptized, which ignores the fact that Virginia had earlier rejected that doctrine (discussed below). (13) The Virginia Company of London was a private venture chartered by the King in 1606. Its first charter was replaced by a new one in 1609, which was revised again in 1612. (14) It is worth noting that Ms. Key later married her lawyer, a European American. Until the legislature imposed a racial division upon the population, it was not unusual for whites and blacks to marry and develop other close relations in early Virginia. Some Africans became respected, independent members of their communities (Berlin 1998: 29–46). (15) This departs from an earlier treatment of this paper’s subject by Bush, who suggested (Bush 2002: 382) that there was no slavery “[f]or the first few decades of English colonization.” (16) Virginia would eventually have found it necessary to clarify the legal status of those who were held as slaves, as legal questions would inevitably arise in connection with taxation, inheritance, contracts, and the like. (17) In 1705 Virginia enacted its first comprehensive statute on slavery, collecting and adding to its previous legislation (Virginia 1809–23: III, 447–62). (18) I have imposed modern spelling on the colonial texts. (19) There is no indication that Thomas Key was married to Elizabeth Key’s mother, whom he held in slavery. (20) The enactment indicated that the assembly acknowledged “some doubts” on this matter, too, perhaps because the assembly recognized that it was reversing an important rule. (21) The enactment’s language implied that all black “servants” were subjected to lifetime servitude and were thus, by our criterion, enslaved. As we have seen, however, that was not yet the case. (22) As was confirmed by experience; see Morris 1996: 165–71. (23) The legislature had enacted a similar law in 1670 (Virginia 1809–23: II, 283), which had the unintended consequence of limiting the slave trade between colonies, so it was redone (Virginia 1809–23: II, 490–2). The law applied to those Page 13 of 14

Slavery and the Rule of Law in Early Virginia 1 whose native country was not Christian and exempted “Turkes and Moors” on foreign policy grounds. In 1682 the legislature would seem to have had motivation that was lacking in 1670. The colonial government had been severely threatened in 1676 by Bacon’s Rebellion, which united white and black servants against the governor. In imposing racial stratification, the legislature divided disadvantaged Virginians by conferring what has since been called “white skin privilege” on workers of European descent. (24) To be sure, one of the courts that acted on Elizabeth Key’s petition was willing to enforce slavery to the extent of reversing a lower court’s decision to free her, but the first and third courts, which determined the final outcome of her case, gave no such support to the practice. We have no reason to suppose, however, that either of those courts were enforcing the common law’s condemnation of slavery. (25) In Massachusetts 1976: III, 690–704 (also entitled A COPPIE OF THE LIBERTIES OF THE MASSACHUSETTS COLONIE IN NEW ENGLAND). (26) As well as those sentenced to lifetime servitude as a lawful punishment. Massachusetts 1976: III, 700 (section 91; emphasis added). (27) For present purposes, we might also call it the clean hands provision. (28) For simplicity’s sake, I shall treat the latter as a special case of kidnapping. (29) Massachusetts 1976: III, 701. (30) It would appear that those who ruled Massachusetts understood that holding slaves required legal authorization. If the Virginia elite understood this, they evidently did not care. (31) See, e.g., Raven’s Case (1661) 84 Eng. Rep. 1065, at 1077. (32) See, e.g., Anonymous (1668) 91. Eng. Rep. 118. (33) The values that are evident in John Punch’s case were not an aberration from official attitudes in the colonies. See generally Higginbotham 1978.

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The Legal Entrenchment of Illegality 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

The Legal Entrenchment of Illegality 1 David Lyons


Abstract and Keywords This essay traces the seventeenth‐century creation of race-based slavery in the North American English colonies, its eighteenth‐century entrenchment in the US Constitution and subsequent public policy, the aborted post‐Civil War “reconstruction” of the former slave states, followed by the development of Jim Crow, a system as close to chattel slavery as federal policy allowed, and the twentieth‐century commitment to civil rights. History reveals that race relations were fluid in the early colonies, that racial stratification was not predetermined, and that racist policies developed when decision-makers were aware of more egalitarian alternatives. Recent substantive civil rights reforms now appear irreversible, but public policy leaves largely undisturbed the persisting legacy of racial subordination, which defeats our ideal of equal opportunity and presents a radical challenge to people of good will. Keywords:   malfeasance, non-feasance, racism, Jim Crow, the rule of law, Hart’s legal theory

When a legal theory accounts for existing law, it also determines what counts as unlawful conduct. That there is so direct an implication may help to explain why illegality does not receive much attention from legal theorists. This paper concerns a special subset of unlawful conduct, namely, official practices that are clearly unlawful, largely open (not hidden), and deeply entrenched (tolerated for a long period of time). I call this phenomenon the legal entrenchment of illegality.

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The Legal Entrenchment of Illegality 1 Much official misconduct falls outside those bounds. Some unlawful conduct by officials is kept out of the public eye (though it may be widely known by officials and a limited number of lay persons). In the US this includes, for example, bribetaking and solicitation as well as covert programs against political dissidents that range from unlawful surveillance to assassination. Such practices may be maintained for a very long time; but when they are publicly exposed they may become a political embarrassment and even a legal liability. Typically, the government then denounces the practice and informs the public that it has been ended, although experience often argues to the contrary. The examples I shall discuss are different. The system of racial stratification called Jim Crow was part of the American way of life from the 1890s to the 1960s2—much the better part (p.30) of a century. Some of its entrenched practices involved clear and open violations of law, by officials and others, including the systematic failure by officials to enforce some unproblematic laws, such as those against rape and murder, when the victims were African Americans, and the non-enforcement decisions could not plausibly be seen as a reasonable exercise of official discretion. The existence of plainly unlawful practices that are openly tolerated within what is usually regarded as a normally functioning legal system suggests the need for theoretical reflection.3 One of the central points of Hart’s legal theory is that we cannot understand law without recognizing the crucial role of officials’ attitudes towards the norms, especially the basic elements, of their respective legal systems. Officials “accept” the foundational rules of their system and employ them “as guides to conduct,” including their own. A derivative species of “acceptance” is conferred upon the system’s non-foundational rules, such as those laid down in legislative enactments. Officials regard all of the system’s “valid” rules as standards to be followed by the society as a whole. When clearly unlawful practices are openly tolerated or engaged in by officials, however, the result is a significant clash of attitudes involving the foundations of the legal system. The legal entrenchment of illegality thus threatens to falsify Hart’s widely endorsed legal theory. This paper has four parts. Part I reviews crucial components of Jim Crow. Part II notes neglected aspects of some historically important Supreme Court opinions. Part III explores some theoretical ramifications of the legal entrenchment of illegality. Part IV offers some further reflections. A preliminary point is needed. I wish to focus on official practices that are clearly unlawful, but my reference to Jim Crow might suggest otherwise. The Jim Crow system is often referred to as “racial segregation,” but racial segregation per se could not be regarded as clearly unlawful during the Jim Crow period. Although officially mandated racial segregation was ultimately ruled unconstitutional, and thus unlawful, it would be unreasonable to ignore the legal role of earlier judicial decisions that upheld the practice. Most importantly, in Page 2 of 17

The Legal Entrenchment of Illegality 1 1896 the US Supreme Court held, in Plessy v. Ferguson, that state-mandated racial segregation was lawful. Although at (p.31) the time one could reasonably have regarded the Court’s reasoning as problematic and its holding as unsound,4 the Court’s authoritative ruling means that one could not thereafter reasonably regard the maintenance of racial segregation as clearly unlawful conduct. That presumably changed when the Supreme Court declared, in 1954, that racial segregation in public schools was unconstitutional.5 None of this affects the Jim Crow example, because I am not concerned here with racial segregation per se. In promulgating its “separate but equal” doctrine, the Plessy court made clear that racially segregated public services and facilities must be substantially equal. Systematic and open violation of that legal requirement, which was characteristic of Jim Crow, was a clearly unlawful official practice. To take another example that I’ve mentioned, public officials’ toleration of, and sometimes direct involvement in, lynching likewise exemplified the legal entrenchment of illegality.

I Jim Crow6 Americans lived under the system of racial subjugation known as chattel slavery for two centuries. Following the Civil War, however, US federal law, including a substantially amended Constitution, called for a “reconstruction” of society, with radical implications for the former slave states. The law conferred upon African Americans, including four million former slaves, equal rights in many areas— from contractual conditions and judicial procedures to participation in governance of the community. There was widespread resistance within the former slave states to the mandated reforms, including organized violence. Despite this, change occurred. Some former slaves acquired farms, and those who managed to retain them beyond the reconstruction period achieved a measure of economic independence. African Americans voted, served on juries, and held public office. Political parties competed for their votes. Black–white (p.32) coalitions developed. Racial relations were in flux (just as they had been two centuries earlier, before racial stratification was officially imposed7). Federal agencies, such as the Freedman’s Bureau, as well as federal troops were crucial to the progress of social reconstruction. In the early 1870s, for example, federal forces routed organized bands of violent white supremacists. But support for reconstruction weakened in the wider community and the political price of federal action became unacceptable to the ruling Republican Party. This led to the de facto abandonment of reconstruction. The disputed presidential election of 1876 was settled the following year when the Democrats agreed to accept the Republican candidate on the understanding that the federal government would stop trying to enforce African Americans’ legal rights. Federal troops were accordingly withdrawn from the South. Page 3 of 17

The Legal Entrenchment of Illegality 1 Within a few years the former slave states began openly to construct a system of racial subordination that could survive legal challenge under the post-Civil War constitutional amendments (as federal courts were applying them) by avoiding explicit references to race. Efforts to exclude blacks from government and from effective use of the courts were largely successful. Between 1896 and 1904, for example, the roll of black registered voters in Louisiana declined by 99 percent. Blacks’ political leverage declined drastically. As Congress had rejected any form of reparations for the former slaves, including distribution of land the slaves had cleared and worked, most became sharecroppers or tenant farmers, which ended their economic and political independence. In non-agricultural pursuits, African Americans were paid substantially less than whites for comparable work and were also excluded from many industries and job categories. In some areas, sheriffs would rent black prisoners to local employers and would arrest blacks without cause in order to secure labor for the purpose. Resistance to the development of the Jim Crow system, by whites as well as blacks, was overcome by a campaign of terror. A crucial weapon was lynching, which occurred with increasing frequency. At its peak, in the 1890s, lynching claimed two persons per week. Fewer lynchings occurred after the first decade of the new century, but the change was not a result of increased law enforcement. Once Jim Crow was consolidated, there was less need for actual lynchings. The ever-present threat was sufficient. (p.33) Lynching is, of course, murder. At no point under Jim Crow was lynching lawful. No court threw out a lynching-based homicide charge on the ground that no law would have been broken by action of the sort that was alleged to have occurred. Most importantly, many lynchings were public affairs; some were even advertised in advance. In many cases participants were easily identifiable; in some, involvement was pictorially recorded. Participants were openly photographed, facing the camera, and prints were widely distributed through the US mail as picture postcards, with incriminating messages (Allen 2000). Lacking fear of prosecution, participants posed with impunity. Prosecutions were in fact rare and, thanks to jury nullification, convictions were rarer still. The few officials who attempted to enforce the law in such cases were subjected to social, political, or economic sanctions. Public officials sometimes participated in lynchings. Some publicly expressed support for the practice as needed to maintain the prevailing way of life—white supremacy. Anti-lynching legislation was frequently proposed in Congress but never reached a Senate vote. Senators from the Jim Crow South defended the system, including its extra-legal modes of enforcement (Holden-Smith 1996). As late as the 1950s, a prominent Southern senator reacted to a voting rights

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The Legal Entrenchment of Illegality 1 campaign by openly calling for the sort of “night riding” that was associated with Ku Klux Klan terror (Dittmer 1994: 2). No fair description of Jim Crow would fail to mention pogroms, events that in the US are usually called “race riots.” A pogrom has been defined as an “organized, often officially encouraged massacre or persecution of a minority group, especially one conducted against Jews” (American Heritage Dictionary 1992: 1397). The term applies to attacks on African American communities, a substantial number of which occurred between 1898 and 1946.8 These frequently were followed by the prosecution of (p.34) blacks who defended themselves and little if any prosecution of white attackers.9 The less overtly violent aspect of Jim Crow included the open, established practice by state and local governments of providing substantially inferior public facilities for blacks, when they provided any at all. In the Jim Crow South, budgetary allocations per black student were a fraction of those for white students. School buildings, equipment, and transportation for black students were substantially inferior to those for whites. Black teachers received substantially lower salaries and were assigned a substantially greater number of students than white teachers. Near the middle of the century, the President’s Committee on Civil Rights (1947: 63) reported that segregated school districts failed to provide black students with a proper public education. Similar inequalities characterized other public services and facilities at the state and local levels. Only a fraction of public libraries served blacks—a fraction much smaller than their portion of the population. Public parks and playgrounds for blacks were substantially inferior or not provided. Streets in black neighborhoods were poorly maintained compared with streets in white neighborhoods. State and local government services for blacks were either inferior or denied. The “separate but equal” doctrine of Plessy v. Ferguson clearly implied that these Jim Crow practices were unlawful. The operation of the criminal law was openly inequitable. Officials enforced the law more vigorously when crime victims were white than when they were black. Blacks were more likely than whites to be subjected to unwarranted arrests, abusive search and seizure practices, and unnecessarily extended detentions prior to arraignment. Police brutality was widespread against blacks. Criminal trials of blacks were much more likely than those of whites to be perfunctory. Courts frequently admitted unacceptable evidence against blacks, including coerced confessions. The sentencing of blacks was much more likely to be disproportionate to the crime as well as greater than punishments for whites convicted of similar crimes. These practices were deeply entrenched in the Jim Crow system.

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The Legal Entrenchment of Illegality 1 Racial discrimination in and by the federal government was widespread (especially after the Wilson administration), but it was not clearly unlawful (p. 35) until the Supreme Court’s 1954 decision in Bolling v. Sharpe subjected the federal government to equal protection requirements.

II The Supreme Court To suggest dominant official attitudes in the last third of the nineteenth century, I will discuss briefly three Supreme Court decisions that contributed substantially to the development of Jim Crow. My point is not the familiar one that these decisions reduced significantly the federal government’s acknowledged authority to secure civil rights for African Americans (although that is true). It is, rather, that the Court’s majority opinions included statements that would have been seen at the time to be so implausible as to raise serious doubts about the Court’s sincerity and its willingness to enforce African Americans’ constitutional and statutory rights. It will be useful to first review Chief Justice Taney’s 1857 opinion (just prior to the Civil War) in Dred Scott v. Sandford (1857: 393–454). John Emerson had taken his slave Dred Scott with him for several years into US territories that prohibited slavery. After Emerson died, back in Missouri, his widow refused Scott’s offer to purchase his own freedom. Scott then sued for his freedom in the Missouri courts, on the ground that slaves were emancipated when they were taken into territories that prohibited slavery. That doctrine had routinely been respected by several slave states, including Missouri, so Scott had good reason to be optimistic about the result. In Scott’s case, however, the Missouri Supreme Court, with a new Chief Justice, reversed its own precedents and ruled against him. Scott then took his case to federal court. This seemed possible because Scott’s new owner, John Sanford,10 was a citizen of New York State and Scott had been treated by both state and federal courts in Missouri as a citizen of that state. Under the federal Constitution’s “diversity clause,”11 federal courts have jurisdiction when a citizen of one state sues a citizen of another state.12 Taney argued, however, that federal courts lacked jurisdiction because no person with African ancestry, like Scott, could be a citizen under the US (p.36) Constitution. So far as the federal government was concerned, African Americans “had no rights which a white man was bound to respect” (Dred Scott v. Sandford 1857: 407). That infamous statement was followed by a less frequently noted claim: This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without

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The Legal Entrenchment of Illegality 1 doubting for a moment the correctness of this opinion. (Dred Scott v. Sandford 1857: 407) Taney argued that, as these ideas were shared by the framers of the Constitution, they had the effect of excluding African Americans, free as well as enslaved, from membership in the political community. Taney’s historical claim was not just wrong but plainly false. Although he cited many racially discriminatory provisions in state and federal law as evidence of white supremacist ideology, he did not establish that the ideology had been “fixed and universal in the civilized portion of the white race”; nor could he have done so. And Taney, a learned man, would have known better. Taney would have known that, during the Constitutional Convention of 1787, delegates from the Lower South, especially Georgia and South Carolina, had demanded constitutional protections for slavery because they reasonably feared the abolitionist movement, which was making practical progress at the time.13 He might well have known that anti-slavery sentiment was significant even in slave states of the Upper South, such as Virginia, where abolitionist-inspired manumissions had become commonplace, and that two delegates to the Convention, including one from Virginia, had voiced support of abolition. In any case, he presumably knew that, just days prior to the Constitutional Convention, the Continental Congress, in the same city, had enacted the Northwest Ordinance, which prohibited slavery in that territory. He would have known that by 1787 the Northern states had begun to abolish slavery and that several of the new Western states would soon do the same. So Taney knew that his historical claim was false. Anyone paying attention—and much attention (p.37) was paid at the time to the Dred Scott case14—would have seen Taney’s historical claim as expressing his own unwillingness to acknowledge the rights of African Americans, not a unanimous view of “civilized” late eighteenth-century white society. It seems to me that Taney provided a model for post-Civil War Supreme Court opinions that interpreted the constitutional and legislative changes which laid the legal groundwork for Reconstruction. Consider the three principal cases in that category: Slaughterhouse Cases (1873) was about monopolies, but the Supreme Court addressed the constitutional amendments that guaranteed, in more general terms, legal equality for African Americans (because the amendments were invoked by the aggrieved parties). In holding that the Fourteenth Amendment’s privileges and immunities clause concerns only a very narrow class of federal rights (Slaughterhouse Cases 1873: 73–4),15 Justice Miller, writing for the Court, maintained that the amendments did not substantially increase federal authority vis-à-vis the states (78), which, he said, would continue to have primary Page 7 of 17

The Legal Entrenchment of Illegality 1 responsibility for “the regulation of civil rights” (82). That was an astonishing claim. As Justice Field noted in dissent, “The amendment was adopted…to place the common rights of American citizens under the protection of the National government” (93). Miller’s opinion denied what was plainly true. That crucial aspect of the Court’s position could not reasonably have been taken as an honest construal of the Constitution, but rather indicated the majority’s unprincipled resistance to Reconstruction. Next, for present purposes, comes Justice Bradley’s opinion for the Court in The Civil Rights Cases (1883). This concerned Congress’ authority to prohibit racial discrimination in privately owned public accommodations, such as inns, theaters, and railroads, which Congress did in the Civil Rights Act of 1875. The Court had earlier decided that the relevant parts of the Fourteenth Amendment concern “state action” only.16 It now applied that ruling to hold that the Civil Rights Act exceeded Congress’ (p.38) authority, because racial discrimination by privately owned inns, theaters, and railroads does not constitute state action.17 Bradley further remarked: There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement. (Civil Rights Cases 1883: 25) That there had been severe, extensive, systematic discrimination against free blacks during the ante-bellum period, in the North as well as in the South, had been noted in detail by Chief Justice Taney in his frequently cited Dred Scott opinion. Taney’s review refutes Bradley’s claim that free blacks enjoyed the same basic rights as whites. It is difficult to take seriously Bradley’s claim, that no person of color regarded such discrimination “an invasion of their personal status as freemen.” Another part of the same passage in Bradley’s opinion likewise boggles the mind. He wrote: When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. (Civil Rights Cases 1883: 25) Page 8 of 17

The Legal Entrenchment of Illegality 1 This passage cynically trivializes the widespread, organized terror and discrimination that was then being experienced by blacks, and which had been checked only by the deliberate application of federal military power. The Court’s opinion helped to justify the federal government’s withdrawal from efforts to secure African Americans’ civil rights. My third example is provided by Justice Brown, writing for the Court in Plessy v. Ferguson (1896). The most striking passage of his opinion reads as follows: (p.39) We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. (Plessy v. Ferguson 1896: 551) This sentence was written during a period marked by an intense campaign of white supremacist propaganda and a lynching almost every other day. It is difficult to suppose that the Court majority believed the statement it was publicly endorsing. It is easy to criticize on purely legal grounds many of the Court’s important decisions. My point in this section is different. Some assertions made on behalf of the Court in these leading cases are so implausible as to indicate that the majority simply did not believe the positions they endorsed and were determined to undermine the legal measures taken after the Civil War to establish civil rights for African Americans. After the ill-fated Civil Rights Act of 1875, Congress gradually withdrew from seeking to ensure that African Americans could enjoy the rights that were supposedly guaranteed by the amended Constitution. In 1877 the executive branch withdrew from enforcement of those rights. Given its 1873 decision in Slaughterhouse Cases, the judicial branch appears even earlier to have rejected the officially adopted project of reconstruction. The Supreme Court’s record during the second half of the nineteenth century indicated at the time that a majority of justices were willing to dissemble in order to permit the reestablishment of racial subjugation. In thus providing ideological support for the creation of Jim Crow, the Court did not, however, legally legitimate that system’s clearly unlawful practices.

III Legal Theory I want now to relate officials’ attitudes towards legal norms under Jim Crow to Hart’s central claim that officials of a legal system “accept” its norms.18 Hart (1994) refers to three special categories of legal norms that most directly concern officials: rules of change, which confer (e.g., on legislatures) the authority to make law; rules of adjudication, which confer (e.g., (p.40) on courts) the authority to apply law; and rules of recognition, which collect the Page 9 of 17

The Legal Entrenchment of Illegality 1 criteria that are recognized and employed by officials to determine whether a given putative norm is a legally “valid” rule of the system. Hart believes, reasonably, that it is unrealistic to assume that ordinary subjects are familiar with the details of these norms. Officials, especially judges, are assumed to possess the requisite legal sophistication. Hart’s distinction between officials and other subjects of the law fits with his further claim, that the contents of a legal system’s rules of change, adjudication, and recognition are determined by the argumentative and decisional practice of officials. The ultimate rule of recognition of a legal system, for example, represents the complex fact that officials consciously use certain tests for determining what else counts as law within the system and regard such use as appropriate. Articulate official practice determines the criteria of legal validity. These distinctions are assumed in Hart’s concise summary of his general theory, when he says that there are two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. (Hart 1994: 116–17) We are concerned here primarily with the second condition. Hart holds that officials have related attitudes towards rules that they believe belong to their system by virtue of satisfying the system’s criteria of legal validity. An official who believes that such a rule is part of her legal system regards it as likewise establishing a “common public standard of behavior” (Hart 1994: 56–7, 89–90, 102, 108, 201). We need to look more closely at what this means. In the original text of The Concept of Law, Hart referred to the relevant attitude that officials take towards the rules of their system as “acceptance.” He says that one’s acceptance of legal norms, or one’s taking the “internal point of view” towards them, involves “a critical, reflective attitude” which “should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified.” One acknowledges “the legitimacy of such criticism and demands when received from others. For the expression of such criticism, demands, and acknowledgement (p.41) a wide range of ‘normative’ language is used,” e.g., “I (You) must do that,” “That is right,” “That is wrong” (Hart 1994: 57, italics added).

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The Legal Entrenchment of Illegality 1 Hart’s use of the terms I have italicized seems to imply that one who “accepts” norms regards them, not as merely legal standards, but as standards that are properly, unqualifiedly employed in the evaluation of behavior. Hart acknowledges, of course, that “the certification of something as legally valid is not conclusive of the question of obedience” (Hart 1994: 210). In other words, acceptance does not commit one to supposing that legal rules override all other considerations that might apply in particular circumstances. That would be implausible. But acceptance, as Hart has explained it, is compatible with the notion suggested by his last-quoted remark, that there is something like a moral presumption favoring obedience to the laws that one recognizes as legally valid and thus “accepts.” That notion does not sit well with Hart’s understanding of “the separation of law and morals.” His recognition of outrageously unjust and inhuman laws is not plausibly combined with a moral presumption favoring obedience to laws regardless of their character, content, or acknowledged consequences. This suggests that Hart has not clearly expressed (or has not clarified for himself) the notions of “acceptance” and of the “internal point of view.” I will now show that understanding Hart’s notion of “acceptance,” as we have so far understood it, generates problems for his legal theory. Under that interpretation, the theory denies that officials might systematically disapprove of or violate the law as, I will suggest, some subsets of officials can reasonably be supposed to have done during the Jim Crow period. (As I will go on to show, however, these counter-examples are neutralized once we take account of Hart’s Postscript, which suggests how better to understand official “acceptance” of law.19 Under the revised interpretation, Hart’s theory accommodates the range of officials’ attitudes towards law under Jim Crow.) For present purposes it will suffice to consider the attitudes of those who fully approved of Jim Crow and of those who strongly disapproved of that system. I will refer to these two groups as white supremacists and racial egalitarians, respectively. (p.42) After the Brown decision and related legal developments, some officials strongly resisted racial desegregation and publicly endorsed white supremacy. But European Americans have never been ideologically homogeneous. Some in the Southern colonies had opposed the development of race-based chattel slavery, and disapproval by whites of racial subordination was manifested under slavery and Jim Crow. But racial egalitarians risked severe physical as well as economic sanctions. As a consequence, some fled the South while others kept silent. Continued support for racial equity was shown, however, by the readiness

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The Legal Entrenchment of Illegality 1 of many white Southerners to accept desegregation, despite militant (and frequently violent) opposition by white supremacists. It seems reasonable to suppose that some white supremacist officials approved of the legal system’s basic norms, including the federal Constitution, at least in part because they understood them to sanction white racial domination. It is also quite possible, however, that other white supremacists disapproved of the legal system’s basic norms insofar as they believed those norms could be used to undermine Jim Crow. This means that some officials did not “accept” all of the system’s basic norms. They continued to occupy public offices, perhaps because they wished to use their legal authority to prevent egalitarian reform. Now consider the attitudes of white supremacist officials towards non-basic norms that were systematically violated under Jim Crow, such as the Plessy doctrine that racially segregated public facilities must be substantially equal and color-blind criminal prohibitions of rape and murder. Some public officials who approved of racial subordination not only recognized the legal validity of such norms but tried to enforce them, e.g., by prosecuting those responsible for lynchings or by attempting to prevent lynch mobs from seizing prisoners. Those officials can be understood to have “accepted” those norms. Their efforts were rarely successful, however, and they were generally unable to remain in office. It seems reasonable to suppose that some other white supremacist officials recognized the validity of those norms (which, after all, were not legally challenged under Jim Crow) but nevertheless approved of their systematic violation. Those officials could not be regarded as “accepting” the relevant norms. How important is such non-“acceptance”? I do not assume that Hart’s theory should be understood to require absolutely universal, unqualified “acceptance” by officials of all the norms that they regard as law. That would be an unrealistic, unnecessary, and therefore ungenerous reading of (p.43) Hart’s theory. What seems significant about conjectures like those sketched above is that the lack of “acceptance” would not have been aberrational or idiosyncratic; it would have been systematic, relating to deeply entrenched official practices that were both open and plainly unlawful. Now let us consider the attitudes of racial egalitarians who occupied official offices under Jim Crow. It seems reasonable to suppose that some approved of the legal system’s basic norms, at least in part because they believed them capable of being used to undermine Jim Crow. It is also quite possible, however, that other racial egalitarians disapproved of the system’s basic norms insofar as they believed that those norms permitted racial subordination. This means that they did not “accept” all of the system’s basic norms. Despite that, they might have preferred to occupy public offices, at least in part because they wished to

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The Legal Entrenchment of Illegality 1 use their legal authority, when possible, to mitigate the burdens that Jim Crow imposed on its victims. Now consider the attitudes of racial egalitarians towards non-basic legal norms. It seems reasonable to suppose that some favored adherence to the Plessy doctrine, insofar as it required a more equitable distribution of public facilities and services, and that they favored color-blind applications of the criminal law. However, it would have been impossible for them to use those norms as “common public standards of behavior”; for others would effectively resist egalitarian reform. Therefore, one could not accurately say that they “accepted” the relevant norms. It therefore seems likely that a number of officials during Jim Crow systematically failed to “accept” important norms of their system. They did not approve of some norms, they did not regard them as common public standards of behavior, or both. For those reasons, Jim Crow would seem to falsify Hart’s legal theory. That problem arises because we have understood “acceptance” to involve embracing and following legal norms much the way one internalizes and follows the moral norms one endorses. I want now to suggest that we read Hart differently, as a result of which such counter-examples would dissolve. In his posthumously published Postscript to The Concept of Law, Hart acknowledged that the original text had failed to distinguish between the attitude an official must have towards the basic norms of her legal system and her attitude towards the moral principles she endorses (Hart 1994: 254–6). Hart came to the view that the basic norms of a legal system (p.44) are conventional in the sense that “the general conformity of the group to them is part of the reasons which its individual members have for acceptance” of them (Hart 1994: 255). I understand this to mean that one might function as an official if one is prepared to apply the same tests for law that other officials regularly apply, and does so apply them, even if one would prefer (perhaps on moral grounds), that somewhat different tests were used. The change improves Hart’s theory. In general, it is unrealistic to suppose that the attitudes of officials towards the law must be morally loaded. Individuals who become officials have been acculturated within an existing legal system. They would not be able to function as officials unless they normally employed its rules in conventional ways. Moral approval of them is not necessary and would sometimes be utterly inappropriate. If we say, along with Hart, that officials regard the norms of their system as “common public standards of official behavior,” we must recognize that they might qualify that characterization by adding the prefix legal to those standards. They would thereby recognize, along with Hart, that the law under which they Page 13 of 17

The Legal Entrenchment of Illegality 1 live and function as officials does not necessarily possess any moral merit and that its authority, along with theirs, is merely legal. They would recognize that “criminal justice” refers to criminal law, warts and all. Depending on the circumstances, they might so function conscientiously.20 Thus an official need not approve of all of her system’s norms. This would seem to accommodate the attitudes of federal judges who held the Fugitive Slave Act to be valid US law, and who applied it accordingly, while professing to be abolitionists. They accepted the conventional view, that the Supreme Court’s ruling in Prigg v. Pennsylvania (1842) settled the constitutionality of fugitive slave law.21 Conversely, some officials who approved of chattel slavery may well have disapproved of the system’s basic norms, insofar as they believed they might permit the abolition of slavery. (p.45) It may help to note the limited legal authority and political leverage of various officials. In the US system, individual occupants of federal office are limited in their capacity to initiate or effect legal change. In addition, the US system limits the ability of federal officials to affect state and local law and officials at the state and local levels to affect federal law. It is therefore possible that many officials during Jim Crow disapproved of at least some of the clearly unlawful practices by officials but were unable to do anything about them through the exercise of their legal authority. Jim Crow, including its unlawful supporting practices, was well entrenched. The question is what attitude officials must necessarily take towards wellentrenched but clearly unlawful aspects of their legal system. Hart’s revised theory suggests an answer: officials must regard such practices as conventionally accepted in the system. Like it or not, that’s the way things are done here. What this means is that officials simultaneously recognize the illegality of those practices. This combination of attitudes seems incoherent and inherently unstable. Those consequences are not an artifact of Hart’s theory. They reflect moral and intellectual tensions that should plague any individual who functions officially within such a system.

IV Further Reflections This paper has focused on a special subset of illegal official behavior—clearly unlawful practices that are open and entrenched. I employed that narrow focus because I wished, first, to explain some merits of an important revision that Hart made in his notions of “acceptance” and the “internal point of view.” There is a second reason for the special focus of this paper. I wanted to establish, by means of a clear class of cases, that governments may openly and systematically violate their own laws for long periods of time. Once we confront that fact, we can consider such cases along with other commonplace, troubling examples of official nonfeasance and malfeasance.

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The Legal Entrenchment of Illegality 1 The involvement of officials in clearly unlawful practices presents a problem for political theory and practice, most clearly in relation to the idea of a moral obligation to comply with law. Theorists generally agree that the existence of such a “political obligation” is compatible with some measure of injustice in a system. That accords with the point of (p.46) positing political obligation, which is invoked to demand compliance with the law, even when it is unjust. A plausible case for political obligation would seem to assume that the injustices which are supported by the law are not grievous, systematic, or well-entrenched and that the government, through its officials, generally respects its own law, which it applies evenhandedly. The Jim Crow example and the wider range of cases to which it points appear incompatible with those conditions. They challenge the assumption (commonly made by Americans), that the US provides a model of respect for the rule of law and exemplifies a system that supports political obligation. We can go further. As I’ve noted, Jim Crow maintained a system of white supremacy that was accepted or embraced by most of the nation’s political leaders from the independent nation’s eighteenth-century beginnings. The retention of that racial hierarchy after the abolition of chattel slavery required systematic violations of the rule of law as well as grievous injustice. Despite this, it has been commonplace for political leaders to invoke the idea of a moral obligation to obey the law. This requires, and promotes, moral myopia.22 I doubt that US history, in this regard, offers a case for American exceptionalism. Comparable practices have probably existed in all societies that have been divided by race, caste, class, or gender. The Jim Crow example may also be misleading. It may suggest that entrenched unlawful practices are always morally pernicious and that officials who systematically subvert the law do so for morally bad reasons. That need not be assumed. Plausible examples to the contrary involve the deliberate nonenforcement of legal prohibitions that are reasonably and widely regarded as outdated, unwise, or morally objectionable, such as laws against private gambling and departures from harsh sentencing requirements. It may be noted, however, that such practices differ from lynching under Jim Crow insofar as they do not serve as part of a pervasive system. Notes:

(1) A draft of this paper was presented at the July 2007 British Academy Symposium on “The Legacy of H. L. A. Hart: Legal, Political, and Moral Philosophy.” I am grateful to Charles Hunter and Lauren Ingoldsby for research assistance and to participants in philosophy and law workshops at Boston University and at the Hart symposium for comments on previous drafts.

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The Legal Entrenchment of Illegality 1 (2) Brown v. Board of Education (1954) condemned racial segregation only in public schools, not more generally. The first major civil rights act confronting Jim Crow became law ten years later (Civil Rights Act of 1964). Although its enforcement was strongly and often violently resisted, its enactment represents the beginning of the end of official acceptance of the racial stratification that began with the creation of race-based chattel slavery three centuries earlier. (3) I doubt that Jim Crow is an isolated case, but I shall not pursue that issue here. (4) I discuss an aspect of this decision in Part II below. (5) The Supreme Court’s condemnation of racial segregation was soon extended. In a 1956 case (Gayle v. Browder), occasioned by the Montgomery, Alabama, bus boycott, for example, the Court ruled against racial segregation in a municipal bus system. (6) This Part draws upon Myrdal 1944; President’s Committee on Civil Rights 1947; Foner 1989; Kennedy 1997; and Woodward 2002. (7) Which occurred half a century after Africans first arrived in Jamestown. See Essay 2. (8) Wikipedia (2007) lists “race riots” between 1890 and 1954 in Wilmington, NC, Lake City, NC, and Greenwood County, SC, in 1898; New Orleans, LA, and New York City, NY, in 1900; Atlanta, GA, and Brownsville, TX, in 1906; Springfield, IL in 1908; East St. Louis, IL, Chester, PA, Philadelphia, PA, and Houston, TX, in 1917; Washington, DC, Chicago, IL, Omaha, NB, Charleston, SC, Longview, TX, Knoxville, TN, and Elaine, AR, in 1919; Tulsa, OK, in 1920 and 1921; Rosewood, FL, in 1923; Harlem, NY, in 1935; Detroit, MI, Los Angeles, CA, and Harlem, NY, in 1943; Columbia, TN, in 1946; in addition to riots around the US following Jack Johnson’s defeat of Jim Jeffries for the heavyweight boxing championship in 1910. (9) For the Tulsa “race riot” of 1921, for example, see Brophy 2002. (10) Sanford’s name was misspelled in the official report. (11) Article III, Section 2 says that “The judicial power shall extend to all Cases… between Citizens of different States.” (12) For the history of Dred Scott, see Fehrenbacher 1978. (13) Madison’s notes on the convention proceedings had been published in 1840; see Kammen 1986: 88. My thanks to Carol Lee for this reference.

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The Legal Entrenchment of Illegality 1 (14) There was enough public interest in the case to warrant the publication in book form of all nine opinions, edited by the Court’s Reporter: Howard 1857. (15) The Court lists “the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts” plus “a few other [unnamed] restrictions”; Slaughterhouse Cases 1873: 77. (16) Beginning with United States v. Reese (1875). (17) In a dissenting opinion (Civil Rights Cases 1883: 25–62), Justice Harlan reminded the Court of the well-established doctrine that, as railroads, inns, etc., perform a public function, they act as agents of the state and are routinely subject to governmental regulation, including conditional licensing. These familiar points were being applied by courts in the US during the nineteenth century in cases occasioned by the development of railroads. That no member of the majority even acknowledged Harlan’s argument suggests that they lacked a plausible rejoinder. (18) I am grateful to Matthew Kramer for comments that led me to revise this Part substantively. (19) I will hereafter place quotation marks around “accept” when the term is to be understood in the way we have so far supposed Hart meant it to be understood. (20) This assumes that an official’s oath to uphold the law need not generate a moral obligation or, if it does, that the obligation can be overridden. (21) Not only the 1793 enactment that Prigg concerned, but also the 1850 Act. However, it is not easy to understand judicial acceptance of the 1850 provisions, as some (e.g., barring testimony for the alleged fugitive and providing twice the remuneration for commissioners when they find for the slave-owner than when they find against him) plainly violate the due process clause of the Fifth Amendment. (22) I address this issue more generally in Essay 7.

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Unfinished Business: Racial Junctures in US History and Their Legacy 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Unfinished Business: Racial Junctures in US History and Their Legacy 1 David Lyons


Abstract and Keywords After abolition, freedmen received no compensation for the terrible wrongs of slavery, the post-Civil War “reconstruction” of former slave states was aborted, and the brutally exploitative and oppressive system of Jim Crow was permitted to replace slavery. From the birth of the Republic to the late twentieth century, racial subordination was supported by federal policy, which has left a legacy of disadvantage and indignity. In addition to tracing that history, this paper analyzes arguments for reparations and defends a collective approach, which it reinforces with an appeal to the ideal of equal opportunity for all children. It argues that the federal government has a special obligation to rectify those wrongs and sketches a range of programs that are needed for those purposes. Keywords:   slavery, racism, African Americans, Reconstruction, Jim Crow, civil rights, equal opportunity, reparations

I Introduction This paper concerns the creation of racial hierarchy in the US, its perpetuation, and its persisting consequences. The “racial junctures” are brief periods in US history that saw some crucial developments—one period in each of the four centuries since British colonies were established in North America. I focus here on decisions that affected African Americans directly because their enslavement and subsequent history most profoundly determined racial stratification in the US.2

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 In the first three of these periods, racial stratification was embraced and alternative paths rejected. When Africans first came to the colonies, they did not enter chattel slavery, for there was no such system; it had to be created. Social mobility was not at first foreclosed to African laborers, but their prospects were violently altered as colonial legislatures constructed the statutory framework for chattel slavery, to which they consigned people of color (Section II). After the War for Independence, the slave (p.48) system was protected by the new Constitution. The concessions made to slavery exceeded what was required for a constitutional settlement under the most unfavorable assumptions, and it is possible that such concessions could have been avoided entirely (Section III). After the Civil War, slavery was formally abolished, but decisions were very soon made that foreclosed a genuine reconstruction, well before the federal government tacitly sanctioned the re-establishment of an oppressive race-based social order (Section IV).3 Quick and inspiring histories that are familiar to educated Americans tend to neglect or misrepresent these stages in the development of American race relations. This paper reviews that history more closely, but it offers no new historical revelations. The several junctures have been studied separately by historians, and this paper’s descriptions of them do not, I believe, diverge from contemporary understanding. The hope is that, by viewing them together and considering their implications systematically, we may gain a better measure of the history and issues we have inherited. The first point, then, is that the deeply rooted racially stratified character of the US was not inevitable. I do not mean merely that we can now, in retrospect, imagine different directions that might conceivably have been taken. My point is rather that alternatives were understood well enough by those who made the relevant decisions. Morally more desirable alternatives would no doubt have been difficult to achieve, in part because the interests of those who would be adversely affected by the decisions actually made—African Americans most directly—were not represented by those who made them—the colonial elite, the founders of the republic, et al. But that sort of practical difficulty is not relevant here. Compare the examples to be discussed below with a more recent case. By the time of the 1942 Wannsee conference in Nazi Germany, it had been decided to exterminate Jews, Roma, and others. But the conference participants understood the alternative well enough, and the road taken was not so unavoidable as to exclude them, and others, from responsibility for genocide. (p.49) Second, my concern here is not with the blameworthiness of specific individuals but with the responsibility of continuing political entities. The relevant decisions were made on behalf of, and thus by, governments such as the United States. The principal responsibility for rectifying any persisting injustice lies, therefore, with the nation as a whole. I do not mean to prejudge the

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 responsibility of non-governmental entities, be they individuals or corporations; they are simply not the focus here. Third, it is arguable that the pattern persists—that something like a fourth racial juncture occurred in the last quarter of the twentieth century. America then faced its most promising opportunity to eliminate the legacy of slavery and Jim Crow, and it has left the racial hierarchy substantially undisturbed (Section V). In the final section (VI) I discuss some principled approaches to addressing the persisting legacy of slavery and Jim Crow. These include the promotion of democracy, compensatory or reparative justice, and the provision of a fair share of life prospects for each of our society’s children. Given the legacy of slavery and Jim Crow, it seems clear that any serious attempt to realize such ideals would have radical practical implications.

II The Creation of Chattel Slavery4 In 1619, “20 and odd Negroes” were bought from a Dutch ship in Jamestown (Virginia Company of London 1933: 243).5 It is plausible to suppose that this was the beginning of chattel slavery in the British North American colonies. After all, those Africans were not voluntary immigrants but were purchased. This suggests that they were property, could be bought and sold, were destined for perpetual servitude, and their children would suffer the same fate. Furthermore, this importation of Africans, while a new feature of the young Virginia colony, was not a novel development in the Americas. As the British colonists were well aware, the shipment of slaves from Africa to the Americas had begun a century earlier. (African slaves had even earlier been brought to Europe, and some had been brought to Britain.) The exploitation of slaves from Africa was an (p.50) established aspect of Spanish and Portuguese enterprise in the Americas (Nash 2006: 150–61). In time, African slavery would become the economic engine of the North American economy, providing the single most important basis not only for Southern agriculture but also for shipping, industry, and finance generally. In 1619, however, the Virginia colonists had just begun to learn how they might survive, and that they might even prosper, by cultivating tobacco as a cash crop for export. For that purpose, agricultural laborers were needed. Virginia planters initially relied primarily on European “indentured servants” who contracted to work for a period of years in return for their passage to America. But the conditions of indentured servitude were typically harsh enough and the mortality rate of servants was high enough to give pause to those potential servants who had a choice in the matter. Inducements for potential servants to immigrate had to be enhanced, and the costs of importing servants from Britain increased considerably (Kolchin 1995: 8–10; Blackburn 1998: 230, 256–8; Nash 2006: 146–7).

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 When, in the last third of the seventeenth century, Britain became a major participant in the slave trade, the purchase of an African slave began to seem economically more attractive to Virginia planters than the price of a temporary servant. Ex-servants’ rights to “freedom dues” and their need for land of their own at the termination of their service, as well as their propensity to rebel violently in pursuit of those interests against the landed colonial establishment, increased the attractiveness to planters of substituting slave for indentured labor. By the end of the seventeenth century, Virginia’s labor force was shifting from European indentured servants to African slaves. The same applies to Maryland, where tobacco could likewise be cultivated profitably. Before long, the Carolinas, where conditions favored rice and indigo plantations, imported substantial numbers of African slaves (Kolchin 1995: 10–14; Berlin 1998: 109–10, 143–4; Blackburn 1998: 315–22; Nash 2006: 172–4). The development of chattel slavery in the British colonies was more complex than such a capsule history suggests. For one thing, many European immigrants came without indentures and were auctioned at dockside upon arrival. So talk of “buying” Africans from the Dutch ship in 1619 could be misleading. Furthermore, we can find no reference to “slaves” (p.51) in Virginia records prior to 1655.6 We also know from case reports as late as the 1670s that some servants of African ancestry served only for limited periods under indentures and could use the courts to secure their freedom as well as compensation for service beyond the period for which they had contracted.7 None of that would have been possible if the claimants had been chattel slaves. Without knowing more, however, we might regard the first two facts as inconclusive and the cases involving African indentured servants merely as evidence that Virginia encompassed some exceptional arrangements. That would not be surprising; after all, the slave colonies and slave states always included free people of color. But we do know more. The records of colonial legislation imply that the legal institution of chattel slavery simply did not exist in 1619 or, for that matter, through most of the seventeenth century in Virginia, but was deliberately constructed during the later decades of the seventeenth century by those who ruled the colony. The Virginia legislature began the process with this 1662 enactment: “Whereas some doubts have arrisen whether children got by any Englishman upon a negro woman should be slave or ffree, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shalbe held bond or free only according to the condition of the mother…” (Act XII, Virginia 1809–23: II, 170).8 The uncertainty referred to in the statute is not the result of legal ignorance. The enactment represents a deliberate departure from the common law.9 The

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 Virginia legislature evidently decided that servitude for Africans should become inheritable—an essential feature of chattel slavery in the colonies and the US. Seen in the context of existing English law and subsequent Virginia legislation, the enactment reveals a legislature that is beginning to create a body of slave law. Unlike Spain and Portugal, Britain had no laws regulating slavery, and thus the British colonists, unlike their Spanish and Portuguese counterparts, had no body of slave law, or even any clearly (p.52) relevant legal traditions, upon which to draw when they began to import Africans to labor in their American colonies.10 The colonists had the legal freedom to create such laws, regardless of prevalent legal doctrine within Britain. Unlike the Spanish and Portuguese colonies, which were projects of their respective home governments, the British colonies began as private ventures which were chartered by the crown. As royal domains, they were not subject to parliamentary control until the middle of the eighteenth century. They were free to create their own laws, subject only to a possible crown veto (Bush 2002).11 And neither the crown nor, later, Parliament was motivated to interfere with such legal developments in the colonies, whose slave economies engaged the British in quite profitable activities, including the slave trade itself. Another consideration suggests that the first Africans brought to Virginia could not all have been treated as slaves. As a result of prior contact with Europeans, some Africans had been baptized, and Christian religious doctrine made them ineligible for enslavement.12 There was uncertainty among the Protestant churches as to whether the baptism of someone who was already a slave had the same effect (Kolchin 1995: 15; Blackburn 1998: 231–2, 240, 250; Higginbotham 1978: 20–1, 36–7). That helps to explain a 1667 enactment of the Virginia legislature: Whereas some doubts have risen whether children that are slaves by birth, and by the charity and piety of their owners made pertakers of the blessed sacrament of baptisme, should by vertue of their baptisme be made ffree; It is enacted and declared by this grand assembly, and the authority thereof, that the conferring of baptisme doth not alter the condition of the person as to his bondage or freedome.…(Act III, Virginia 1809–23: II, 260) (p.53) This measure permitted not only the continued enslavement of someone after baptism but the enslavement of Africans who became Christians before they arrived in America.13 Conditions for indentured servants in the rigidly hierarchical Virginia colony have been characterized as “nightmarish” (Nash 2006: 59), but there were presumably limits to the disciplinary methods used by masters. One might expect lesser protections for chattel slaves, who, unlike indentured servants, Page 5 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 were the full property of masters. Furthermore, the extension of servitude was a punishment available against indentured servants but not against those who served for life. It was therefore natural for the Virginia legislature to accommodate the difference in duration of servitude by permitting more severe corporal punishments for those whose servitude could not be extended. One of its principal measures was the following enactment of 1668: Whereas the only law in force for the punishment of refractory servants resisting their master, mistris or overseer cannot be inflicted upon negroes, nor the obstinacy of many of them by other than violent meanes supprest, Be it enacted and declared by this grand assembly, if any slave resists his master (or other by his masters order correcting him) and by the extremity of the correction should chance to die, that his death shall not be accompted ffelony, but the master (or that other person appointed by the master to punish him) be acquit from molestation, since it cannot be presumed that prepensed malice (which alone makes murther ffelony) should induce any man to destroy his owne estate. (Act I, Virginia 1809–23: II, 270)14 This statute gave owners maximum physical control over those held in lifetime bondage and thus adds to the law another aspect of what we know as chattel slavery. As the enactment itself suggests, it is unlikely that a master could be proved to have deliberately or maliciously killed a slave. As it even more clearly indicates, the owner’s property interest in a slave would in any case inhibit a master’s use of lethal force as a method of control.15 (p.54) Thus three familiar features of chattel slavery in North America have been provided by the Virginia legislature. A slave code is beginning to take shape. But the legislation so far fails to address one crucial feature of chattel slavery in America: its racial dimension. With some difficulty, the Virginia legislature addresses the issue. The difficulty stems from an evident change in the colonists’ orientation: having begun with the assumption that non-Christians alone are eligible for slavery, they must now employ different social categories in order to construct a color-coded social system. The first legislative attempt is made in 1670: “It is resolved and enacted that all servants not being christians imported into this colony by shipping shalbe slaves for their lives; but what shall come by land shall serve, if boyes or girles, untill thirty yeares of age, if men or women twelve years and no longer” (Act XII, Virginia 1809–23: II, 283). Thus, non-Christians who come by sea are condemned to lifetime servitude, and that condition is reserved for them alone. The non-Christian servants who come by sea are, presumably, Africans. If this is what the statute’s drafter had in mind, its point is to consign Africans alone to lifetime servitude.16 Page 6 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 Subsequent legislation indicates that in 1670 the legislature had failed to consider complications, which must soon have led to unintended consequences. Africans might already be Christians when they enter the colony and they might also enter it from an adjacent colony, and thus by land, rather than by sea. These complications are explained by a 1682 enactment that replaced the 1670 statute. The most directly relevant segments of the later enactment read as follows: …for as much as many negroes, moors, mollattoes and others borne of and in heathenish, idollatrous, pagan and mahometan parentage and country have heretofore, and hereafter may be[,] purchased, procured, or otherwise obteigned as slaves of, from or out of…their heathenish country by some well disposed christian, who after…their obteining and purchaseing such negroe, moor, or mollatto as their slave out of a pious zeale, have wrought the conversion of such slave to the christian faith, which by the laws of this country doth not manumitt them or make (p.55) them free, and [after] their conversion, it hath and may often happen that such master or owners of such slave being by some reason inforced to bring or send such slave into this country to sell or dispose of for his necessity or advantage, he the said master or owner of such servant[,] which notwithstanding his conversion is really his slave, or his factor or agent[,] must be constrained to carry back or export againe the said slave to some other place where they may sell him for a slave, or else depart from their just right and tytle to such slave and sell him here for noe longer time then the English or other christians are to serve, to the great losse and damage of such master or owner, and to the great discouragement of bringing in such slaves for the future, and to noe advantage at all to the planter or buyer…Bee it therefore enacted by the governour councell and burgesses of this grand assembly, and it is enacted by the authority aforesaid, that [the] act of the third of October 167017 be, and is hereby repealed and made utterly voyd to all intents and purposes whatsoever. And be it further enacted by the authority aforesaid that all servants… which from and after publication of this act shall be brought or imported into this country, either by sea or land, whether Negroes, Moores, Mollattoes or Indians, who and whose parentage and native country are not christian at the time of their first purchase of such servant by some christian…are hereby adjudged, deemed and taken, and shall be adjudged, deemed and taken to be slaves to all intents and purposes, any law, usage or custome to the contrary notwithstanding. (Act I, Virginia 1809–23: II, 490–2) While one finds here the vestiges of the faith-based criterion for enslavement, it is clearly subordinated to a determination that lifetime, inheritable slavery shall be confined to people of color.18 The Virginia legislature has created a colorcoded, two-tier labor system.

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 What difference did it make? The colonial records indicate that, for much of the seventeenth century, economic and social stratification was not tightly colorcoded and social mobility was accessible, as in Spanish and Portuguese colonies. We know, for example, that some African slaves in Virginia acquired the wherewithal to raise crops and domestic animals, engage in commerce, accumulate capital, and purchase their own freedom. Then they might purchase the freedom of spouses and children, acquire land and servants, have their children baptized, and be recognized as community members. Marriages with European Americans were not uncommon (Berlin 1998: 29–46; Blackburn 1998: 228, 240, 266). (p.56) These developments were made possible, in part, by the cooperation of European American masters, who would allow a slave or other servant to use some land in exchange for being released from the responsibility of providing for the servant’s subsistence. With hard work and a good deal of luck, such a servant might eventually gain his freedom and even become an independent farmer. This approach seems to have been attractive to masters during hard economic times, such as the 1630s. Thus, in the seventeenth century, Virginia included communities of free African Americans and interracial families (Berlin 1998: 45–6).19 Another factor promoting social mobility in these first decades is that most of the African immigrants came to the colonies from the west coast of Africa, where for a century and a half there had been considerable contact with Europeans. Many had been in other European colonies prior to arriving in Virginia. They differed from the vast majority of those who came later, during the height of the slave trade to North America. The later immigrants came mainly from the African interior, after being captured or kidnapped, and were unfamiliar with Europeans, their language, or their culture. The earlier African immigrants came in small numbers and lacked some characteristics that later made African chattel slaves seem alien to European Americans (Kolchin 1995: 16–17; Berlin 1998: 102–5; Blackburn 1998: 255, 258). Three properties are understood to have set Africans apart in the eyes of European Americans: their physical appearance, their culture, and their religion (Kolchin 1995: 14f.). It may be assumed that the early immigrants from Africa presented an alien appearance to the British settlers. But many of the early arrivals were neither culturally nor religiously so different as those who came during the height of the slave trade. Many knew the ways of Europeans, and many had already been converted to Christianity (Berlin 1998: 29, 44–5).20 (p.57) There has been some dispute among historians concerning cause and effect relations between chattel slavery and white racist attitudes (Allen 1997: 3– 21). My point here is that, despite notions of white superiority among some

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 portion of the European American population, it was initially neither assumed nor ordained that people of color should become a rigidly subjugated caste. But those who shaped the direction of the colony evidently decided, starting in the 1660s, to color-code the social system. I want now to suggest another factor that may have encouraged that decision. In seventeenth-century Virginia, servants and slaves from Europe and Africa cooperated in many settings. They worked together, shared living conditions and grievances, and ran away from bondage together (Higginbotham 1978: 26–30; Berlin 1998: 45). In 1676, they joined together in Bacon’s Rebellion (Washburn 1972: 80; Berlin 1998: 45). Many landless European Americans participated with the aim of making more land available by dispossessing Native Americans, either by killing them or driving them further inland. Many African Americans participated, presumably because Bacon promised them freedom.21 They opposed the governing landed elite, who had less need for land than for maintaining peaceful relations with the neighboring Native Americans. The rebels forced the governor to flee Jamestown and then burned it to the ground. British troops crossed the Atlantic to put down the rebellion, which faltered when Bacon fell ill and died. Bacon’s Rebellion was not the first uprising against the colonial elite, but it was undoubtedly the most threatening and traumatic before the 1770s. I suggest that the experience contributed to the determination of those who shaped the policies of the colony to drive a wedge between Europeans and Africans by creating a color-coded social system. By forcing servants of color to the bottom, they accorded relative privilege, dignity, and opportunity to those on the second tier. In 1682, as we have seen, the Virginia legislature consigned people of color to slavery. This (p.58) divide-and-conquer strategy enabled the elite to pit one potentially rebellious group against another. To cement a color-coded system that would reduce solidarity among laborers and decrease effective combined opposition to the colonial elite, it was necessary to do more. Those who shaped colonial policy decided to sanction fully white supremacist sentiments. In 1691 the Virginia legislature banned interracial marriages and severely punished interracial procreation (Act XVI, Virginia 1809–23: III, 86). It is noteworthy that this measure was not universally approved by the European American community, but was opposed by some of its propertied members (Berlin 1998: 44). But official policy was now actively encouraging somewhat inchoate racist notions to intensify and congeal. The same enactment sanctioned the killing of runaway slaves, restricted severely the freeing of slaves, and required that freed slaves be transported out of the colony at the owner’s expense. African Americans were to occupy a bottom caste, deprived of the rights claimed and the aspirations indulged by indentured

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 servants and excluded from romantic and other relationships with European Americans. They were to be identified with slavery. And they were fair game. These efforts achieved some measure of success. As European Americans were acculturated in a system that consigned African Americans to the bottom and actively discouraged fraternization, they were encouraged to believe that the social hierarchy had a valid foundation. Racism provided the ideological cement. In sum, the system of chattel slavery that developed in Virginia was not inevitable.22 It was neither inherited by the colonists nor brought over from Britain. For several decades, social mobility was possible in Virginia society even for African slaves. African Americans were able to acquire economic independence and respected social status. Faced with this prospect—and, I suggest, faced with the prospect of a unified laboring class—the ruling elite imposed a rigid, color-coded caste system. It is impossible to say how clearly that elite imagined the possible alternatives. It would have been clear, however, that any alternative would have involved a wider distribution of political power, economic opportunity, and social mobility. Positive measures were required to avoid those eventualities, and they were effectively taken.

(p.59) III The Legal Entrenchment of Slavery Until it was abolished in 1865, slavery was not expressly mentioned in the Constitution. But several provisions were understood by the framers and later by state and federal officials to refer to slavery. Here are the clearest examples: The three-fifths clause (Article I, Section 2, paragraph 3) provided that representation in Congress “shall be apportioned among the several States… according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.” Thus indentured servants were expressly included in the category of “free persons” and Native Americans were expressly excluded from the apportionment, so that only those in lifetime, hereditary slavery occupied the category “other persons.” While suffrage was denied slaves, their numbers contributed to slave-owners’ influence within all three branches of government—not only in Congress but also in the executive branch (as the electoral college reflected congressional representation), and the federal judiciary (selected by the president) (Finkelman 2001a: 199–200, n. 23; Finkelman 2001b: 441–3). The slave trade provisions. Article I, Section 9, paragraph 1, prevented Congress for twenty years from banning “the migration or importation of such persons as any of the States now existing shall think proper to admit,” and Article V exempted this provision from amendment for the same period.

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 The fugitive slave clause (Article IV, Section 2, paragraph 3) provided for the return of “person[s] held to service or labour” to those “to whom such service or labour may be due.” The provision was understood to concern runaway slaves. Implementing legislation was first enacted in 1793 (Fugitive Slave Act of 1793, 1 Stat. 302), and persons accused of running away from slavery or of trying to aid them were prosecuted in the courts (Cover 1975: 159–91). The constitutional accommodation of chattel slavery seems to clash with the doctrine of universal human rights that a decade earlier was invoked to justify the colonial rebellion. The contradiction was frequently noted, especially by friends of the rebels when the latter complained of being reduced to “slaves” by crown or Parliament (Litwack 1961: 7–9). (p.60) In his Dred Scott opinion, Chief Justice Roger Taney claimed that there was in fact no contradiction. According to Taney, the founders never dreamed of including people of African descent within the body politic. Thus he wrote: It is difficult at this day [1857] to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the White race, either in social or political relations; and so far inferior, that they had no rights which the White man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the White race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion. (Scott v. Sandford, 60 US 393, 407, emphasis added) However much the founders were influenced by notions of white supremacy, Taney would seem to have indulged in some exaggeration. Part of the more familiar story of the constitutional framing is that, in order to achieve a settlement, a North–South compromise on slavery was necessary. The North is understood to have opposed slavery, or at least its extension, and to have made concessions in order to achieve a stronger central government. Concessions to Page 11 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 slavery would not have been necessary, however, unless abolition had been perceived as a threat. If it were, it seems likely that some people were disputing the notion that African Americans “had no rights which the White man was bound to respect” and “might justly…be reduced to slavery for his benefit.” Taney was mistaken. By the time chattel slavery had been consolidated, in the late seventeenth century, objections to it were being publicly expressed in America. In the eighteenth century, anti-slavery sentiment was disseminated in print and from the pulpits of various denominations, South as well as North. By 1787, three Northern states had abolished slavery, three had enacted gradual emancipation statutes, and three others would follow (as would three of the states that would soon be carved out (p.61) of the Northwest Territory). This helps to explain why some delegates from slave states expressed the fear that slavery might be attacked or undermined by a stronger central government. It helps to explain why they demanded that slavery be protected (see Nash 1990: 7–20).23 Let’s review what was done for slavery at the convention. The general structure of the Constitution provided a partial solution to the perceived problem. As the federal government was to be accorded only a limited set of enumerated powers, slavery could be protected by excluding its regulation from the list of enumerated powers and making sure that no enumerated power implied such an authority. That was done (Finkelman 2001a: 9, 2001b: 443–4). The importation of slaves had been suspended during the revolutionary period. The Lower South (Georgia and the Carolinas) had lost many slaves during the war, and it wanted the slave trade protected. It was worried not only about antislavery agitation but also about the economic interests of Virginia and Maryland, which opposed the external slave trade. The demand for tobacco had not kept up with its expanded cultivation, and the Chesapeake region now had a surplus of slaves. Chesapeake planters could profit from the internal slave trade if the Constitution protected slavery but banned (or even permitted the banning of) the traffic in slaves from abroad (Finkelman 2001a: 26–8, 2001b: 418, 421). The Lower South was insistent on this point. Merely omitting regulation of the slave trade from the list of federal powers would not solve the problem. That’s because Northern states wanted the federal government to regulate external commerce, which could include the external slave trade. As a compromise, the North accepted the twenty-year slave trade provision of Article I, a ban on the taxation of exports (such as the slave states’ cash crops), and Article V’s entrenchment of the slave trade clause (perhaps because the three Lower South states could not alone have been able to block a constitutional amendment canceling Article I’s slave trade clause) (Finkelman 2001a: 22–34, 2001b: 433– 41).

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 But no such bargaining can account for the other accommodations made to slavery. Consider the three-fifths formula for representation in (p.62) Congress and the electoral college. Once proposed, it was embraced by the slave states, but they did not lay down its acceptance as a condition for union in the way that delegates from South Carolina insisted upon protections for slavery and the slave trade. The idea of counting slaves for purposes of representation lacked any precedents in Confederation practice (Finkelman 2001a: 429),24 and slaves were not counted towards representation in the legislatures of the slave states. To the argument that slaves should be counted because they were part of the population, it was replied that they were excluded from the political process and were treated as property, while no other property was a basis for representation. Moreover, the three-fifths formula was arbitrary, lacking any rationale. The North agreed to it, however, without securing any concessions in return (Finkelman 2001a: 10–20, 22–5, 2001b: 427–30). The fugitive slave clause was even more readily accepted. It was not proposed until the very end of the convention, and was subjected to neither bargaining nor debate. And yet it was bound to rankle not only anti-slavery interests but those who feared federal encroachment upon state autonomy and sovereignty. Like the three-fifths formula, it was a gift to the South (Finkelman 2001a: 30–2, 2001b: 438–9).25 Why was the North so accommodating?26 There is reason to regard the Northern delegates as unrepresentative of Northern sentiment. A principal aim of the convention was to design a stronger, more centralized union that shielded property from popular leveling movements, and the delegates largely represented affluent commercial and plantation interests. Although abolition was becoming official policy of the Northern states, their convention delegates proved uninterested in the issue (Nash 1990: 37–42). A few delegates, such as Gouverneur Morris of Pennsylvania, were opponents of slavery; but they were very much in the minority. The delegates from New England almost always favored concessions for slavery and voted with South Carolina. Connecticut’s Oliver Ellsworth (p.63) explained the position when he declined to consider the merits of slavery and said, “what enriches a part enriches the whole” (Finkelman 2001a: 26, 2001b: 432, 434).27 I would not be the first to suggest that the convention went too far in accommodating slavery. Nor to suggest that the convention need not have done so at all. Feasible alternatives were available, and at least some of the alternatives that I shall mention were laid before the convention. A significantly different settlement would no doubt have required a somewhat different set of delegates; but that is not relevant to the present point. The question is, in part, what those in a position to decide could at the time have readily imagined happening and, in part, what it would have been reasonable to demand that they do. It is a question about what they might have done if they had so chosen—even Page 13 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 if they were in fact determined to prevent by all available means some of the imagined states of affairs. The North might have refused to compromise so much on slavery, and it might have refused to compromise at all. To understand how this might have been possible, and where it might have led, we have to look more closely at the differences between the Upper and the Lower South. The Chesapeake region was not only home to many leaders of the new nation but also a center of anti-slavery sentiment. This helps to account for the rapid growth of a free black population in the Upper South during the late 18th century. Between 1782 and 1790, those states repealed bans on the private manumission of slaves and permitted the freed slaves to remain. Meanwhile, demand for slaves continued to grow in the Lower South, where plantations dedicated to rice and indigo were expanding. Under those circumstances, Upper South slave-owners could have secured high prices selling slaves to the Lower South. The fact that many Upper South slave owners chose to free slaves rather than offer them for sale seems evidence of anti-slavery sentiment. And, indeed, manumission documents express those sentiments explicitly (Nash 1990: 17–19; but see Finkelman 2001b: 424–5). This means that an abolitionist North had potential allies in the Upper South. Could those two sections have formed a united front against the constitutional accommodation of slavery? The traditional view is that a (p.64) viable union required incorporation of all the former colonies and the Lower South absolutely insisted on protections for slavery (Nash 1990: 3–6). That view can be challenged. The Lower South was not in a good bargaining position. There is reason to discount its threats to abandon the union if the convention refused to accommodate slavery. Georgia and South Carolina wanted the protection a strong union could afford them against powerful Native American nations, and Georgia also felt vulnerable to Spanish Florida on its southern border, which was an escape route for runaway slaves and a staging area for opponents of the slave state. The Lower South thus might have agreed to much less than they got— perhaps a constitution that tolerated but did not support slavery (Finkelman 2001b: 425–45). It is unclear that the Lower South had the strength to succeed on its own as a tiny pro-slavery union, even if they were assured that a larger and much stronger union, comprising the Upper South and the North, would have tolerated their separate existence. Even if the Lower South would have been able to form a slave-based union with the Upper South, one separate from a nonslave Northern union, its prospects would have been dubious. A Northern union would have had a diverse agricultural base, a shipping industry, and a textile Page 14 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 industry, which could have used domestic wool and imported cotton. By contrast, a Southern union, dependent on cash crops and little industry, would have faced greater difficulty (Nash 1990: 28–9; Finkelman 2001b: 415–16). In fact, given the weakness of the Lower South and attitudes within the Upper South, it has been suggested that a more representative convention could have endorsed a national program of abolition.28 South Carolina’s expressed anxieties about slavery tend to confirm that abolition was a threat. If so, it was imaginable. As Madison made clear, one of the principal conflicts to be addressed by the convention was between those with substantial property and those lacking it— identified aptly as the “minority” and “majority” respectively. Those who sought a stronger union desired that property be made more secure. We might imagine an uncompensated emancipation of slaves, but at the time it might have been unimaginable for many potential delegates, including most of those who were opposed to slavery. It may be reasonable (p.65) to assume that any imaginable abolition program at the time would have included compensation for slaveowners.29 That was not beyond the imagination even of the actual delegates to the convention, for Gouverneur Morris proposed a federal tax for the very purpose (Ellis 2001: 92; Finkelman 2001a: 24).30 If we assume that compensation for slave-owners would have been part of any national abolition program, we have to imagine a source of revenue. Here is one suggestion that has been made. The Northwest Territory was just then being opened for settlement, and it contained half a billion fine acres. That land was a national asset, which might have generated the revenue in question. A modest addition to the price per acre of one dollar would in a relatively short time have raised a considerable portion, if not all, of the estimated ninety million dollars that would have been required for compensation (Nash 1990: 36–7).31 In sum, the Constitution that was agreed upon and ratified accommodated slavery. It did so excessively, beyond what was required for an agreement between those who represented slave-owners’ interests and those who were opposed to slavery. Furthermore, it is possible that no accommodation was necessary. A union comprising states without slavery, which might have included the Upper South, would seem to have been viable, whereas a union of slave states would have had less favorable prospects. Alternatively, despite South Carolina’s intransigent rhetoric, we can imagine a union embarked instead on a national anti-slavery project. Widespread popular support for such a program existed at the time, and the new nation possessed the assets to effect it successfully.

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 (p.66) IV The First Quasi-Reconstruction An op-ed piece appeared recently in the New York Times under the headline, “The Enduring Legacy of the South’s Civil War Victory.”32 One who judged the past by military outcomes or by formal changes in the law might have supposed that a headline writer’s slip had turned history upside down. But there was no mistake. The Old South had in fact prevailed. Not only had the planter class largely been restored to control of a system built upon coercively extracted Black labor, but by systematically discrediting the period of Reconstruction that followed the Civil War, historians had effectively presented the continued subjugation of African Americans as justified. For most of the century following its demise, Reconstruction was portrayed as disastrous rule by incompetent ex-slaves and corrupt Northern meddlers (Foner 1989: xix f.). Although that picture persists, historians no longer consider it conventional wisdom. Reconstruction was deficient, but not in those ways, and for different reasons. Reconstruction secured, temporarily, a number of basic rights for four million African Americans who under slavery had lacked any such rights at all. Freedmen were aided in fending off some of the brutal violence to which they were subjected. Ex-slaves voted and held public office.33 State governments were very substantially reformed, and public services, including public education, were created. When Reconstruction was followed by “Redemption,” modest taxes on land were drastically reduced, along with state services, and by the early twentieth century blacks were excluded from political participation. The South was permitted to ignore federal law and to create a new, distinctively brutal form of white supremacy (Foner 1989: 587–601). The nation’s withdrawal from Reconstruction is generally associated with the Hayes-Tilden agreement of 1877, which settled a disputed presidential election by allocating decisive electoral votes to the Republican candidate in exchange for an end to federal enforcement of African Americans’ rights (Foner 1989: 575– 82). Those developments were significant, but they alone do not account for Reconstruction’s failure. Crucial decisions that undermined Reconstruction were made a decade (p.67) earlier. I will explain this after sketching some of Reconstruction’s principal features. As the Civil War drew to a close, it was clear that the abolition of slavery had become one of the War’s principal aims.34 A central issue for those developing national policy was how to deal with the states that had seceded—what to require of them as conditions of their restoration to full status. Another issue was the fate of four million freedmen—ex-slaves. Tentative measures were adopted during the war, especially when Confederate territory came under Union control. Primarily concerned with successfully ending the War and restoring the Union, Lincoln issued a Proclamation of Amnesty and Reconstruction in 1863 (Foner 1989: 35–6; Urofsky and Finkelman Page 16 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 2002: 442–3), which offered to restore all rights (except property rights in slaves) to those who swore future loyalty and accepted the abolition of slavery. The Proclamation appeared to offer freedmen nothing but the prospect of laboring for a re-established planter class. Lincoln privately favored suffrage for some freedmen, but he took no forceful or public steps in that direction (Foner 1989: 61–2, 73–5). After Lincoln’s assassination, President Andrew Johnson supported the maintenance of white supremacy in the South. With his blessing, new state governments established “Black Codes,” which much resembled the former Slave Codes. Discrimination was in some respects amplified in order to insure that ex-slaves would be forced back to the plantations. Freedmen were coerced into year-long labor “contracts.” Widespread violence enforced the new system (Foner 1989: 119–23, 198, 209). Dismayed by Johnson’s policies, Congress sought to end the most glaring inequities that were inherited from a society built upon chattel slavery and racist ideology. It mandated equality for blacks under the law, freedom in economic relations, and universal manhood suffrage. In 1866, for example, Congress enacted the first Civil Rights Act, over Johnson’s veto (14 Stat. 27; Foner 1989: 243–7). Besides outlawing race discrimination in the economic and adjudicative spheres, the Act reversed Dred Scott by granting US citizenship to those born in the US.35 Congress renewed the Freedmen’s Bureau, again over Johnson’s veto (Supplementary (p.68) Freedmen’s Bureau Act of 1866, 14 Stat. 173; Foner 1989: 243–51). Established in 1865 to provide emergency relief, which the Bureau afforded Southern whites as well as blacks, it now helped to enforce the new legal rights and to establish new public institutions, most notably public schools (Freedmen’s Bureau Act of 1865, 13 Stat. 507; Foner 1989: 68–70, 143– 53, 157–70). In response to violence against blacks and their allies, and to promote reconstructed state governments, in 1867 Congress created military districts in the South and laid down criteria for new state constitutions (Reconstruction Act of 1867, 14 Stat. 428), including universal male suffrage and acceptance of the Fourteenth Amendment (which was proposed in 1866 and ratified in 1868). The Fifteenth Amendment (proposed in 1869 and ratified the following year) prohibited racial exclusion from voting, and Congress provided for its enforcement by further legislation (Enforcement Acts of 1870, 16 Stat. 140, 16 Stat. 254, 255–6; Enforcement Act of 1872, 17 Stat. 347). Other measures included the Civil Rights Act of 1875, 18 Stat. 335, which mandated equal access to public accommodations. An electoral crisis following disputed elections in Louisiana and South Carolina was ended by the 1877 Hayes-Tilden agreement. Federal troops were withdrawn from the capitals of those states, decisive electoral votes were assigned to the Page 17 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 Republican candidate, and federal supervision of Southern elections was subsequently ended. Over the next generation, through force, fraud, and various legal devices, blacks were driven from political participation, and the federal government declined to intervene (Foner 1989: 575–601; Franklin 1994: 168–9, 174–5). While some freedmen migrated to cities, most became sharecroppers on land that had been restored to its original owners. The lynching of blacks was widely practiced (Zangrando 1980; Dray 2002), reaching a peak in the 1890s, when a lynching occurred every two or three days. Many lynchings were public, and many were publicized in advance. Photographs of victims, participants, and spectators were widely circulated, some on printed postcards sent through the US mail. Anti-lynching legislation, frequently proposed, never made it through both houses of Congress. White supremacy was thus violently re-established. Racial segregation was firmly imposed (Foner 1989: 404–5, 537), and was sanctified by Plessy v. Ferguson in 1896 (163 U.S. 537). (p.69) Long before Plessy, however, many of the legal changes that were entrenched in the Constitution or mandated by Congress had already been undermined by the Supreme Court. The Court would not accept the constitutional expansion of federal power and interpreted new rights narrowly. Changes that would have been effected by the Fourteenth Amendment were limited severely in the Slaughterhouse Cases of 1873 (83 U.S. 36); guarantees of voting rights against private parties’ violent interference were nullified, starting with United States v. Reese in 1875 (92 U.S. 214); and public accommodations were treated as immune to federal regulation by the Civil Rights Cases in 1883 (109 U.S. 3). Those decisions did much to defeat Reconstruction, but more sympathetic judicial action would not have prevented its demise. Or so I will argue. What would a genuine Reconstruction have involved for African Americans? I assume it would have insured full political rights, guaranteed equal treatment under equal laws, created an effective regime of uncoerced labor, and banned discrimination in the public sphere. Nothing less was due the ex-slaves—or, for that matter, any members of the society. But none of these things was secured by Reconstruction. The next question is how such changes might have been achieved. Federal legislation might assert, as it did, that blacks had economic, political, and adjudicative rights equal to those enjoyed by whites; but such rights could be enforced, if at all, only with a struggle. Active federal intervention, including military force, was required to achieve some measure of democracy and the rule of law; but federal military intervention could not be sustained indefinitely. When

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 federal assistance was withdrawn, it was clear that virtually all gains (save the formal end to chattel slavery) would be reversed. Judicial cooperation would have helped a great deal, but it would not have insured a reconstruction that respected the rights of African Americans. In the absence of more profound political and economic reform, blacks had few prospects to effectively exercise any rights that might formally be conferred by law. Concentrated wealth acquires (or retains) political power. In the South, after as well as before the Civil War, wealth and political power were concentrated in the planter class—those who still possessed the largest land-holdings, which had previously been worked by their slaves. So long as the large planters retained so much of the land and blacks were (p.70) forced to work it for them, in one capacity or another,36 the planters would maintain economic dominance and, even in the best of accompanying circumstances, they would maintain political dominance too. A reconstruction program with a reasonable hope of insuring blacks (and poor whites) the opportunity to effectively exercise their nominal rights would have had to end planter control of the South. It would have included a good measure of political democracy, which would have required the redistribution of resources. That meant land reform: the confiscation of large land-holdings and some distribution to the freedmen.37 Freedmen wanted control over their own work and the products of their labor. They frequently “insisted that their past labor entitled them to at least a portion of their [former] owners’ estates” (Foner 1989: 105, 160–4, 374–5). They recognized that their labor had paid for the land, had cleared it, and had earned cash for the crops they raised upon it. Their demands and expectations—forty good acres—appear quite reasonable. They had a just claim to compensation from those to whom they had been enslaved, and the means of compensation were available: the very land they had cleared and had worked as slaves. Given the ground and moderation of their claims, problematic calculations of just reparations would not seem to have been necessary. It is important to emphasize that the idea of land reform is not a recent notion, but was in the air for much of Reconstruction. And it was begun, though much was reversed. From early on, freedmen agitated for a workable share of the land, and they renewed their appeals time and again. They understood freedom to involve farming independently, free of white drivers and planters’ rules. Their land reform proposals were supported by some poor whites, who likewise sought land; by some agents of the Freemen’s Bureau, who distributed land when possible; and by some prominent political leaders, such as Benjamin F. Butler, Page 19 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 George W. Julian, Wendell (p.71) Phillips, Thaddeus Stevens, and Charles Sumner, who endorsed large-scale land reform (Foner 1989: 68–9, 302, 309–10, 329). Land was available, or could become so, in four ways. A great deal of land in the West and South (e.g., in Florida) was owned by the federal government. In addition, much acreage was abandoned during the War; much was seized for non-payment of taxes; and a vast amount was potentially subject to confiscation (Foner 1989: 51). The Second Confiscation Act of 1862 (12 Stat. 589), contemplated forfeiture of Confederates’ lands for at least one generation and, before the War ended, Congress came close to making forfeitures permanent (Foner 1989: 68). But even earlier, plantation land had begun to come under black control. When the US Navy occupied Port Royal, South Carolina, in 1861, most whites fled the area. The thousands of slaves who remained rejected the idea of maintaining cotton production and instead raised food crops for their own consumption. For a time it seemed that the land would remain in their possession (Foner 1989: 51). In 1862, after the ten thousand acre plantation at Davis Bend, Mississippi, was abandoned by its owner, slaves took it over. The following year General Grant authorized their development of an autonomous community, which then became a refuge for displaced freedmen. Initially aided by some government supplies, the freedmen grew cotton profitably for several years (Foner 1989: 58–9). In 1865 General Sherman allocated the Sea Islands and coastal land south of Charleston to freedmen, each family to have forty acres and the loan of a mule. Forty thousand blacks soon settled on the four hundred thousand acres that were available. They were led to believe the land was theirs (Foner 1989: 78–9). The Freedmen’s Bureau gained control of more than 850,000 acres of abandoned land. Authorized by federal law to rent abandoned and confiscated land in forty acre lots, for eventual sale with long-term credit, it distributed some land to freedmen (Foner 1989: 158–9, 69–70). Some Southern Reconstruction governments addressed the issue. “Texas offered free homesteads to settlers on the state’s vast public domain, and Mississippi provided that land seized by the state to satisfy tax claims would be sold in tracts of no more than 160 acres.” Louisiana adopted a similar measure, setting a limit of fifty acres. The most ambitious program was established by South Carolina, which purchased and resold land on (p.72) long-term credit, enabling fourteen thousand Black families to acquire homesteads permanently (Foner 1989: 329).

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 In 1865 Thaddeus Stevens proposed a comprehensive program that would have involved seizing four hundred million acres that were owned by the wealthiest 10 percent of Southern landowners. Forty acres would have been allocated to each adult freedman and the remaining 90 percent of the acreage to be seized would have been sold in lots of up to 500 acres. The proceeds would have provided pensions for Civil War veterans, compensation to loyal unionists for property losses in the war, and retirement of the national debt. This program would have made possible a genuine reconstruction of the South. It would have broken the planters’ oligarchic control and promoted widely diffused wealth and political power (Foner 1989: 235f., 308f.). But Stevens’ proposal was rejected by Congress in 1866, which enacted instead the Southern Homestead Act (14 Stat. 1866; supplementing the Homestead Act of 1862, 12 Stat. 392), offering public land for settlement (Foner 1989: 234–5, 246). The war-time measures adopted by Sherman and Grant and the efforts of sympathetic Freedmen’s Bureau agents, allocating lands to ex-slaves, were atypical. Most military officers helped to force freedmen back to work for the planters under labor contracts (Foner 1989: 54–5, 58–9, 153–5). A very small portion of the land that was initially assigned to freedmen, an even smaller portion of the land that was practically available, and a very tiny percentage of the land that might have been made available, was ultimately transferred to freedmen. Most of what seemed to have been transferred to them, during and after the War, was auctioned to investors and speculators or returned to its former owners. In 1863 and 1864, most of the land near Port Royal that slaves had been allowed to take over was auctioned off by government agents, and only a couple of thousand freedmen were able to retain land. “Many plantations ended up in the hands of army officers, government officials, and Northern speculators and cotton companies” (Foner 1989: 52–3, 159–61). At Davis Bend, title to the land had never passed to the freedmen who successfully developed an autonomous community and large-scale cotton production, and in 1878 the property was returned to the Davis family (Foner 1989: 162). In violation of the Confiscation Act and Freedmen’s Bureau legislation, President Johnson ordered that all land that had been distributed be (p.73) returned to its previous owners (Foner 1989: 159–63).38 Blacks appealed, to no avail. When they tried to retain the land, the US Army removed them by force (Foner 1989: 162–4). One should not infer from this record that the federal government was opposed in principle to the reallocation of land. On the contrary. For example, although little of the land that had been made available under the Southern Homestead Page 21 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 Act went to freedmen, the land did not go unclaimed. Congress repealed the Act in 1876 so that lumber and mining companies could secure the public land, and most of it went to those interests. That measure was not isolated. From 1862 to 1872 the federal government gave more than a hundred million acres of public land, plus many millions of dollars, to railroad companies. Under the National Minerals Act of 1866 (14 Stat. 251), it gave millions of acres of mineral-rich public lands to mining companies (Foner 1989: 246, 465–7, 568). In sum, land reform was an essential element of genuine reconstruction, along with legal and political reform. But a land reform program was never endorsed by most congressional Republicans, many of whom believed that the institution of universal manhood suffrage and wage labor would transform Southern society. Land reform was opposed by Northern investors, and even by some blacks who had been free under slavery. Many whites in a position to affect policy believed that freedmen should resume their previous work, should even serve their previous masters, only now for wages. White policy makers generally wished to restore the money machine of Southern monoculture and the associated profitable enterprises, North and South (Foner 1989: 105, 235–7, 308–11, 376–7). Planters wanted blacks available for labor. Southern whites were generally determined to prevent the freedmen from achieving economic independence. They would refuse credit to freedmen and would sell land to whites for half the price offered by blacks, in order to insure that the land would not come under black ownership (Foner 1989: 403–4). It is unclear how many white policy makers considered the possibility that those who had been enslaved had a right to compensation for it. Some positively disapproved of programs to aid the freedmen. They argued that it would hurt the freedmen to be given land and that they must learn to save and work for it. Some whites argued that federal aid—even (p.74) emergency relief through the Freedmen’s Bureau—would create dependency upon the government. President Johnson even condemned governmental services for ex-slaves as discrimination against whites (though whites too were served by the Bureau) (Foner 1989: 247– 8). During the seventeenth and eighteenth centuries, respectively, the colonies created and the new nation resolved to protect the system of racial subjugation and exploitation that we know as chattel slavery. The abolition of that system in the nineteenth century represents a significant shift in US public policy. The First Reconstruction may be seen, in part, as an attempt to carry that reformation further. It was however aborted. The US officially committed itself to civil rights, including political rights, for blacks, to the point of entrenching those rights in its basic law, but it failed to enforce them. In this respect, the nineteenth century resembles the eighteenth: the nation’s public policy fell Page 22 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 drastically short of its rhetoric, promises, and pretensions. The opportunity to address white supremacy was permitted to pass, the freedmen were betrayed, a brutally oppressive regime was permitted to replace chattel slavery, and the need for a Second Reconstruction soon became evident to people of good will (Foner 1989: 582–612; Franklin 1994: 211–19).

V The Second Quasi-Reconstruction Reconstruction did not end all at once. Despite the pressures, fraud, and violence, many freedmen continued to vote, some were elected to public office, and they persisted in their struggle for economic and political autonomy. For a while it appeared that they would create an effective political coalition with poor whites in the People’s Party; but the arrangement proved to be unstable. Even so, great effort and brutality were required to exclude African Americans from the public sphere and to minimize their economic independence (Marable 1991: 9–11; Woodward 2002: 82–7). By the turn of the century, white supremacy had acquired a new form, known as Jim Crow. The Southern states adopted new constitutions along with various legal devices to insure the exclusion of blacks from the ballot box and public office: the white primary, the poll tax, the understanding requirement, etc. These devices supplemented terror, of which lynching was the horrific (frequently public) representative. Blacks and their allies (p.75) campaigned unsuccessfully for federal legislation against lynching. Once Jim Crow was firmly established, however, lynching declined gradually. Political power had been restored to economically powerful whites. Increasing numbers of freedmen migrated to urban areas, but most became locked as sharecroppers in a modified plantation system. The federal government averted its eyes. Its Reconstruction amendments and civil rights legislation were all but dead letters (President’s Committee 1947: 35–40). Although occasionally inconvenienced by legal challenges, the Jim Crow system survived into the second half of the twentieth century. Following World War Two, however, several developments combined to undermine the explicitly racist regime. Black veterans returned to civilian life determined (once again) to realize the nation’s democratic promises. War-time propaganda against racism had generated more enlightened attitudes among whites. The newly founded United Nations embraced a Universal Declaration of Human Rights. Colonial liberation movements gave rise to independent nations whose populations of color were appalled at Jim Crow in America, which film and video made more visible than ever. Cold War competition between the US and the USSR led American statesmen to deplore such unfavorable images of our domestic arrangements, especially the brutal suppression by police and other public servants of peaceful civil rights demonstrations. In this confluence of circumstances, heroic challenges to Jim Crow began to achieve success, despite lethal violence (indeed, sometimes because of lethal violence—when it took the Page 23 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 lives of white civil rights workers) (Marable 1991: 86–7; Harding et al. 2000: 452–4, 513–14; Woodward 2002: 130–4). With the Brown decision of 1954 (Brown v. Board of Education of Topeka Kansas, 347 U.S. 483), the federal judiciary began seriously to contemplate vigorous enforcement of blacks’ civil rights. By the mid-1960s, Congress felt obliged to enact significant civil rights legislation, including the Civil Rights Act of 1964 (102 Stat. 31), the Voting Rights Act of 1965 (79 Stat. 437), the Fair Housing Act of 1968 (82 Stat. 81), and the Equal Employment Act of 1972 (86 Stat. 103). During the same period, increasing embarrassment and concern about the scandal of deep and widespread poverty within the exceptionally affluent US (see, e.g., Harrington 1962) helped lead to the creation of social programs funded all or partly by the federal government, including food stamps (78 Stat. 703 [1964]), Medicare (for the elderly and disabled, 79 Stat. 286 [1965]), Medicaid (for children (p.76) and the poor, 79 Stat. 343 [1965]), Supplemental Security Income (serving needy aged, disabled, and blind, 86 Stat. 1465 [1972]), the Comprehensive Employment and Training Act (subsidizing low wage jobs in non-profit and public settings, 87 Stat. 839 [1973]), and Head Start (95 Stat. 499 [1981]), and the expansion of existing programs, such as Aid to Families with Dependent Children39 (or “welfare,” 88 Stat. 2337, 2359 [1975]). Because of African Americans’ disproportionate share of economic disadvantages, such programs are of special relevance here. That brings us to a brief assessment, from the perspective of the present essay, of this Second Reconstruction. Like the First Reconstruction, the Second constitutes a significant departure from established public policy. Despite substantial dissent and massive resistance, the nation committed itself (once again) to equal rights. Anti-discrimination law was enacted and enforced, and blacks were enabled to vote and hold public office. Blacks faced new opportunities not only in education but also in skilled trades and the professions. Political rhetoric was reformed: explicitly racist appeals became unacceptable, at least for mainstream candidates, and explicitly racist comments were no longer found in public policy statements. While neither overt discrimination nor anti-black violence disappeared, they were reduced (Marable 1991: 149–50). The practice as well as the ideology of white supremacy were officially rejected. And, unlike the First Reconstruction, these changes have come to seem irreversible. There are other striking parallels between the First and Second Reconstruction. Criticism of government aid to blacks resembled that of the nineteenth century, to the point of regarding such measures as discrimination against whites (Marable 1991: 221). By the early 1980s, government policy had reduced interventions on behalf of blacks and government assistance was reduced (Marable 1991: 152, 206–13). At the same time, corporate welfare was expanded (Marable 1991: 207).

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 For present purposes, the chief similarity between the two Reconstructions is their failure to undo much of the formidable economic and social legacy of slavery and Jim Crow, that is, the disadvantages of African Americans that largely flowed from past public policy. After slavery, freedmen with minimal resources, facing overt discrimination, were driven into peonage or menial urban occupations. At the same time nutritional, (p.77) educational, and medical programs that had been created mainly to aid them were eliminated (Foner 1989: 587–601). Generation after generation, the vast majority of African Americans entered working lives without a decent share of the nation’s resources and with significantly lower life prospects than their white peers (President’s Committee 1947: 53–79). After Jim Crow, anti-black discrimination was lessened and opportunities for blacks were increased. But nutritional, educational, medical, employment, and housing programs that were developed in the 1960s likewise faced cutbacks, which were severe by the 1980s and continue today. For example, the real benefits of Medicare and Medicaid have been reduced (Harding et al. 2000: 599).40 Government continues to resist the development of comprehensive medical insurance, and thus preventive medicine remains unavailable for 40-odd million people (Harding et al. 2000: 130). Federal subsidies for low income families to rent private housing (Section 8) have decreased (Massey and Denton 1993: 231). The Comprehensive Employment and Training Act programs have ended (Massey and Denton 1993: 230; Harding et al. 2000: 599). Eligibility for food stamps has been restricted (116 Stat. 312, 315 [2002]). Aid to Families with Dependent Children has been eliminated; its replacement, Temporary Assistance to Needy Families (Personal Responsibility and Work Opportunity Reconciliation Act, 110 Stat. 2105 [1996]), sets lifetime limits on receipt of aid, requires more work from mothers of young children, and denies four-year college study as a means to improved employment (Harding et al. 2000: 599). Despite such work requirements, the government has made woefully inadequate provision for child day care (Harding et al. 2000: 599). Most important, the social programs of the twentieth century, including those generated by the War on Poverty and the Second Reconstruction, have failed to address the deep, systemic character of Jim Crow’s legacy. After three hundred and fifty years of slavery and Jim Crow, African Americans entered the Second Reconstruction with wealth, income, and life prospects disproportionately lower than that of their white peers. Despite less overt discrimination and more school and job opportunities, that deficit remains substantial (Marable 1991: 227–30). This is not to disparage the social programs themselves, which aided many. Bandages are useful when one is bleeding. US public policy, (p.78) however, has more consistently favored inequality than equality. As the recent Luxembourg Income Study shows, whereas America’s rich are the richest in the

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 Western world, its poor are among the poorest. And the children among America’s poor, mostly black or Hispanic, are the very poorest.41 Consider one of the clearest legacies of Jim Crow: residential segregation.42 The black ghetto has been a feature of those US cities with substantial black populations for as long as anyone who is alive today might remember. It is therefore startling to learn that the black ghetto did not exist until the twentieth century. It was a product of Jim Crow. More severe in the North than the South, its creation was occasioned by increasing black migration to the cities and was exacerbated by the lack of housing construction during World War Two (Massey and Denton 1993: 42–9). The black urban ghetto resulted most directly from, or was intensified by, actions of home owners, real estate agents and associations, mortgage and insurance providers, local officials, and federal agencies. The means used began with violence (including bombs, directed especially at middle class blacks moving into white areas adjacent to ghettos), but expanded to include restrictive covenants, boycotts of real estate agents who served blacks, realtors’ systematic diversion of black clients from white communities, “redlining” (which identifies black neighborhoods, within which loans are denied), “block-busting” (whereby blacks are brought into a neighborhood, leading intolerant whites to leave, more blacks are brought in, leading less intolerant whites to leave, and so on, while blacks gain housing at inflated rents and prices), government support for highways serving white suburbs, public housing policies (regarding their location and clientele), and resistance to integration by local officials when the prospect of it arises (Massey and Denton 1993: 26–42, 51f., 55–7). By 1940, the isolation of blacks within segregated urban communities was greater than had ever been experienced by any other ethnic group in America. European newcomers initially lived in communities of immigrants that were ethnically heterogeneous, most lived outside such enclaves, and the condition was temporary. Not so for African Americans. Following World War Two, as white suburbs expanded, black ghettos increased in size and density, giving rise to “hyper-segregation.” And, in (p.79) further contrast with other groups, income does not significantly ameliorate residential segregation for blacks (Massey and Denton 1993: 32–3, 74–8, 84–8). Hyper-segregation persists, and it aggravates Jim Crow’s legacy. That is because, for example, public policies can adversely affect the black urban ghetto without hurting a significant number of whites. Diverting public services from the ghetto can seem politically prudent to politicians who rely primarily on the votes of whites, whose communities reap the diverted benefits. Poorly endowed public schools are familiar features of the ghetto, along with less adequate public transportation for those who most need it. As poverty is more concentrated among blacks, it is most concentrated in the black urban ghetto, Page 26 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 along with unemployment, the withdrawal of commercial institutions, and the reduced maintenance of real property. Social contacts with whites are minimized, along with job opportunities and business networking (Massey and Denton 1993: 153–60; Denton 2001). Most important here, public policies have intensified the ghettoization of blacks. Redlining was not invented by federal agencies, but it was institutionalized by the Home Owners Loan Corporation, the Federal Housing Administration, and the Veterans Administration. “Slum clearance” programs destabilized conditions in the ghetto. Many public housing projects, typically high-density, were located within or adjacent to existing ghettos, and as they accommodated fewer ghetto dwellers than slum clearance displaced, more pressure was placed upon housing in the ghetto. The segregation policies of public housing authorities insured that black isolation would be promoted further. Just when public housing authorities were ordered to stop promoting segregation, funding for public housing was halted (Massey and Denton 1993: 51–9, 227). Federal legislation has addressed housing discrimination: the Fair Housing Act of 1968 (82 Stat. 84), strengthened in 1988 (102 Stat. 1619); the Housing and Community Development Act of 1974 (91 Stat. 1111); the Home Mortgage Disclosure Act of 1975 (89 Stat. 1125); and the Community Reinvestment Act of 1977 (91 Stat. 1147). But with inadequate resources devoted to their weak enforcement provisions, and with resistance by realtors and local politicians, these measures have had minimal effect (Massey and Denton 1993: 230–4). Block-busting and white flight can occur only when some communities are maintained as white domains. When housing discrimination was (p.80) prohibited, real estate agents developed covert measures to divert black renters and home buyers from white communities. Such discriminatory practices can be identified, but private, non-profit organizations have carried the burden of doing so. Their effective but labor-intensive “audits” were substantially reduced with the end of CETA, which had supported a variety of community-based antipoverty jobs (Massey and Denton 1993: 229–30). Now, fifty years after the emergence to the wider public view of the Civil Rights Movement, we find poverty continuing disproportionately among African Americans. We also find a reduction and weakening of those public policies and social programs that might plausibly be regarded as addressing the systematic disadvantages that constitute the legacy of Jim Crow.

VI Addressing the Legacy I conclude with some comments on moral implications of the pattern I have described. These concern responsibility and rectification. The political community comprising the United States of America, including its direct forebears, through official action and morally relevant inaction, created, maintained, modified, and has declined to eliminate a deeply entrenched racial Page 27 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 hierarchy. African Americans, in particular, are subject to disadvantages stemming from officially supported systems of chattel slavery and Jim Crow. Within the framework of this paper, responsibility lies with the political community as a whole. It means, first, accountability for having created and sustained a morally indefensible hierarchy and tolerating its continuation; secondly, an obligation to end systemic discrimination and rectify any related wrongs. As a derivative matter, an obligation to promote rectification lies with all persons who have a moral duty to address injustice, and especially with the members of this political community. The problem I shall discuss concerns rectification. Its theoretical aspect is to identify the principled bases for corrective action; its practical aspect is to design and implement truly corrective measures. I shall comment mainly on the former. In reviewing the First Reconstruction, I suggested two grounds for land reform, which are relevant more generally. The distribution of sufficient (p.81) good land to freedmen in order to facilitate their economic independence and break the political as well as economic power of the planters would have (a) promoted democracy and (b) provided some compensation to freedmen for their enslavement. I shall comment briefly on these complementary rationales and mention a third. (a) The aim of promoting democracy is not predicated on the just deserts of freedmen, nor would its effective pursuit have benefited only African Americans. As many disenfranchised poor whites recognized, they too would have benefited from a land reform program that was occasioned by the need to reconstruct Southern society. Contemporary characterizations of political systems as “democratic” suggest that great weight is often placed on the breadth of formal voting rights. Usage varies, and other factors are of course considered. Criticisms of current political systems as undemocratic, insofar as they exclude, say, women from the electoral process, are not uncommon; but systems have also been called democratic even though they disenfranchised women and people of color. Thus the political systems of both ancient Athens and the ante-bellum US have conventionally been characterized as democratic, though most competent adults in them were disenfranchised. In any case, the US system is conventionally regarded as paradigmatically democratic, even though it is clear that effective political power attaches disproportionately to centers of economic influence. It is arguable that political democracy would be promoted by eliminating racial (as well as economic)

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 hierarchies. But this is not the occasion for such an argument, and I shall not pursue it further here. (b) The principle of requiring wrongdoers to compensate those they have wronged and the correlative notion that those who have been wronged have a right to compensation, while applicable to those who have been slave-holders and slaves, is of course not limited to such cases. It would have conferred rights upon African Americans who had not been slaves but who had been subjected to the disadvantages and indignities suffered by free blacks during slavery. It would also have supported claims by poor whites who had suffered under the planters’ oligarchy. I shall concentrate on claims made on behalf of African Americans. An alternative term for compensation here is “reparation.” Reparations for slavery have recently been claimed, though they may not always assume conventional notions of compensation, and may also involve (p.82) considerations of unjust enrichment. I will not survey the range of recent claims but will comment on complications that arise when generations have intervened between the wrongdoing and the claim for reparations. Justice requires that a wrongdoer compensate a party he has wronged. If I have taken something of yours, I owe you compensation for the loss, plus any disadvantage you suffered as a consequence. This applies not just to ordinary individuals but also to other entities that can do wrong or be wronged, such as governments and nations. If the US long ago took land that belonged to a Native American nation, then the US today owes compensation to that nation, even if the theft occurred generations ago, so long as the two nations continue to exist.43 The passage of time creates complications when parties are ordinary persons. Consider a claim for reparations made today by a descendant of slaves against a descendant of her ancestors’ owners. The latter is not the wrongdoer and is not accountable for her ancestor’s wrongdoing.44 The claimant is not the party originally wronged and may be ineligible for compensation. It is frequently assumed that the magnitude of a reparations claim is determined by a counterfactual test: by how much worse off the claimant is than she would have been if the wrong had not been done. Two complications arise. First, when much time has passed and the current state of affairs has to a significant extent been shaped by decisions made by descendants of the party who was wronged, the counterfactual question may have no determinate answer. Second, it is arguable that current descendants of persons who were enslaved would not have existed had there not been slavery, which means that they cannot be worse off than they would have been had their ancestors not been enslaved, for in the latter case the current descendants would not have come into existence. This

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 suggests that the descendants of slaves lack valid reparations claims based on their distant ancestors’ enslavement. Within the framework of this paper, those difficulties have limited force. The claims we are considering would be made not against slave-holders but against the US government, on the grounds that it supported (p.83) slavery, allowed slavery to be succeeded by Jim Crow, and has largely tolerated the racial hierarchy that constitutes an egregiously unjust legacy of those institutions. Claims by African Americans who currently suffer under that legacy need not be based simply on injustices of the distant past but can validly be grounded upon the uncorrected consequences of those wrongs, as well as any other continuing wrongs. This paper offers no metric for reparations claims.45 It suggests why they should be taken seriously. (c) An implication of the picture I have presented is that many poor children, who include disproportionately many black children, grow up with systemically assured disadvantages. They embark on life without a fair share of the nation’s resources and with significantly worse life prospects than their more affluent and less stigmatized peers. They are not responsible for the conditions they have inherited. Nor is it plausible to suppose that their parents are responsible for disadvantages that stem from the racial hierarchy or that their parents can generally be expected to overcome the legacy and improve substantially their children’s life prospects. The Second Reconstruction never effectively addressed many of the systematic inequalities that derive from slavery and Jim Crow. The related War on Poverty was not won but abandoned; it never came close to ending widespread, deep poverty in the US. The responsibility for correcting the resulting injustice thus lies with the society as a whole. The government has a primary obligation to insure that social arrangements provide a fair share of life prospects for each of its children. No morally defensible system of social organization would fail in that responsibility. The idea that a society has a primary obligation to provide a fair share of favorable life prospects for its children would seem innocuous. It would seem reasonable to go further and suggest that a society is morally required to provide genuine equal opportunity for its children. Even so limited an egalitarianism would seem to have radical implications for practice. It may well require, for example, that bequests from wealthy parents to their children be severely restricted, so that resources can be shared. (p.84) But even the less explicitly egalitarian formula has radical implications— that it directly concerns only the life prospects of children may be misleading,46 How can poor children’s life prospects be improved? Part of the answer must refer to public services that aid children directly, such as schools, which today Page 30 of 35

Unfinished Business: Racial Junctures in US History and Their Legacy 1 are not only grossly unequal but are frequently deficient for poor children and thus for many children of color. Another part of the answer must refer more broadly to community conditions as well as family circumstances. Children require adequate housing in well-tended neighborhoods, which vast numbers of poor children still lack. Children require adequate day care when their parents work, that their parents have work that affords a decent income (to provide whatever necessities are not given by public services), and that their parents’ work leaves adequate time for them (which means, to begin, that adequate income must be provided by no more than one shift of one job per parent), all of which many families still lack. In brief, children’s life prospects cannot be improved significantly without aiding their parents and communities. The implications of a minimally decent concern for children, and the public policies they require, are accordingly broad, deep, and radical. Such an approach would address a good deal of the unfinished business that we face, and it flows from premises that seem difficult to deny. Notes:

(1) Presented to the conference on the moral legacy of slavery held at Bowling Green State University, the seminar of Boston University’s Institute on Race and Social Division, and the faculty workshop of the BU School of Law. I am grateful for comments I received on those occasions as well as from Gerald Leonard, Matthew Lyons, Sandra Lyons, David Seipp; and for research assistance from Robert Toomey, Marianne Geula Smith, Sheri Lewis, William Andrews, Nir Eisikovits, Matthew Smith, Travis Hubble, Nathan Hammons, and Alyssa Slater. (2) I shall not defend this claim here. A defense might begin with the fact (touched on below) that racial categories largely displaced religious ones in the creation of a system based on slavery. A more complete study of related developments would review the decisions that most directly concerned Native Americans, Mexicans, and various immigrant groups. (3) Although judicial decisions tended to undermine Reconstruction legislation and constitutional amendments, I shall say little about them here because it would be difficult to establish that they were calculated to promote such stratification. (4) I consider only Virginia here. That colony was the first to import Africans for labor and it became the leading colony with a slave-based economy. (5) This section is in effect qualified by Essay 2 in this volume. (6) In which year enslavement was the subject of a statute (Virginia 1809–23: II, 396) and a judicial case (Billings 1973).

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 (7) See, e.g., Re Edward Mozingo (1672) and Moore v. Light (1673), in Finkelman 1986: 13. (8) Legislative excerpts reproduced here follow the spelling and punctuation of the originals. (9) Henry Swinburne’s Brief Treatise of Testaments and Willes 109–10 (Morris 1996: 43; Blackburn 1998: 265–6). (10) English case law itself vacillated, from the sixteenth through the eighteenth century, over whether the common law allowed anyone to hold a slave in Britain —from Cartwright’s Case (1569) to Somerset v. Stewart (1772) and King v. Inhabitants of Thames Ditton (1785). (11) In 1624 the King revoked Virginia’s charter and it became a crown colony, but that made no effective difference to the colony’s autonomy. (12) This doctrine, traceable to the Crusades, accompanied Europeans in their later colonial adventures in Africa and the Americas. Thus in the fifteenth century Portugal and Spain were authorized by the Pope to kill or enslave “infidels,” to destroy or appropriate their property, and to assume jurisdiction and monopolistic economic control over such lands as had not yet been claimed by other Christian nations. In somewhat similar terms, Henry VII authorized the Cabots’ voyage across the Atlantic. See Bull Romanus Pontifex of Pope Nicholas V, January 8, 1455 (Ehler and Monall 1954: 144–51); Bull Inter Caetera of Alexander VI, May 3, 1493 (Davenport 1967: 60–3); The First Letters Patent Granted to John Cabot and His Sons, March 5, 1496 (Williamson 1962: 204f.). (13) The statute eliminated a consideration that discouraged masters from permitting their slaves to convert, which was seen by some as desirable since Christian teaching was regarded as aiding in their control (Higginbotham 1978: 37; Kolchin 1995: 55–6). Nash reports, however, that many slaves associated baptism with emancipation and that slave owners were worried that baptism would make slaves less subservient (Nash 2006: 182). (14) Although this enactment identifies “negroes” as those bound to serve for life, other evidence, considered above and below, implies that some of African birth or ancestry did not serve for life and that others sometimes did. (15) Although the elaborate colonial slave codes that began to appear early in the eighteenth century treated slaves as disposable property, laws were occasionally enforced against extreme brutality leading to a slave’s death. See, e.g., “Thomas B. Chaplin Sits on a Jury of Inquest” (Rose 1999: 210–12). (16) What non-Christian servants might come by land? Perhaps Native Americans. It is unclear, however, why they would be treated differently from

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 other non-Christians, especially as the 1682 substitute enactment (discussed below) does not so provide. (17) The statute last quoted. (18) This division of humanity became a feature of US law as, e.g., Congress in 1790 limited naturalized citizenship to “White” persons. The restriction remained for nearly two centuries (save for the exception made in 1870 for persons of African ancestry, The Naturalization and Enforcement Act of 1870, 16 Stat. 254, 256). (19) In these respects, the British colonies initially resembled those of Spain, which came to include substantial populations of free people of color. Although that development stems in part from local conditions, it should be noted that the Spanish slave code favored and facilitated the movement of individuals out of slavery and their integration into the larger community (Tannenbaum 1992: 53– 61; Berlin 1998: 212–14). (20) As Kolchin notes (1995: 15), cultural differences decreased when people of African ancestry were raised in the colonies, and physical differences blurred as whites and blacks had joint progeny. (21) Two related interests might have increased African Americans’ willingness to participate. Insofar as they could envisage the possibility of gaining their own freedom, they too wanted land to be available. But, given colonial enactments such as those we have reviewed, by the 1670s those prospects were being extinguished by the colonial government. They accordingly had serious grievances against the colonial elite, who became the principal target of the rebellion. (22) For a discussion of seventeenth-century alternatives, see Blackburn 1998: 350–63. (23) Not that European Americans were committed to equality. By the late eighteenth century, racial stratification was firmly entrenched and racist attitudes were widespread throughout the US. Many European Americans objected to slavery, nonetheless, on self-interested or moral grounds. (24) The formula had been proposed under the Articles of Confederation as a basis for calculating a direct tax, but not as a basis for representation. (25) In the ante-bellum period, Northern states applied “personal liberty laws” to frustrate enforcement of the Fugitive Slave Act (Morris 1974). These efforts were finally halted by the Supreme Court in Prigg v. Pennsylvania, 41 US 539 (1842).

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 (26) In addition to the provisions mentioned, several others supported slavery, e.g., Art. I, Sec. 8, para.15, which conferred on Congress the authority to “suppress Insurrections,” such as slave revolts (Finkelman 2001a: 7–8, 2001b: 439–43). (27) New England shippers of course profited from the slave trade as well as from trade in goods produced by slaves (Finkelman 2001a: 23). (28) In the 1780s and for a few years thereafter—until the cotton gin changed all calculations (Nash 1990: 36–7, 42–7; but see Ellis 2001: 104–8). (29) The idea of not only freeing but also compensating the slaves would presumably have been less imaginable than emancipation without compensation for the owners. But the idea was certainly imaginable a century later. (30) The convention did not pursue the idea; neither did Congress when Elbridge Gerry of Connecticut made such a proposal in 1790; as Ellis notes (2001: 86–7, 90, 105), “several emancipation schemes” were proposed from the 1770s on. (31) Ellis suggests (2001: 104–8) that the cost of compensation could have been met by spreading it over a number of years, but that relocation of emancipated slaves presented insuperable difficulties. Note that such revenue-raising schemes concerned land that was being appropriated by force from Native Americans, who had no part in the treaty that transferred Great Britain’s land claims to its former colonies. (32) By David Brion Davis, August 26, 2001. See also Foner 1989: 608–10. (33) For a brief account, see Franklin and Moss 1994: 227–31, 237–44. Until this century, of course, women were excluded from the suffrage. (34) The Fourteenth Amendment to the US Constitution, prohibiting slavery, was proposed and ratified in 1865, the same year the War ended. (35) “Excluding Indians not taxed.” The Naturalization and Enforcement Act of 1870, 16 Stat. 254, 256, allowed persons of African “nativity” and “descent” to become US citizens. (36) During Reconstruction, freedmen worked the land in one of three ways: as wage laborers under white drivers; as tenants, for a set rent; or as sharecroppers, for a portion of the product. Many freedmen initially preferred sharecropping because it seemed to afford the most autonomy; and most blacks who remained in agricultural labor, as most freedmen did, became sharecroppers. After Reconstruction, when planters controlled the accounts and could use fraud with impunity, sharecroppers became mired in debt (Foner 1989: 103–9, 171–5, 404f., 537).

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Unfinished Business: Racial Junctures in US History and Their Legacy 1 (37) Foner remarks (1989: 109) that effective land reform would also require access to reasonable credit and to markets. (38) Johnson also vetoed a bill that would have facilitated land reform; Foner 1989: 159–63. (39) Formerly Aid to Dependent Children, established under the Social Security Act of 1935, 49 Stat. 620. (40) But note that Medicaid has been expanded for children. (41) See, e.g., the Luxembourg Income Study at 〈〉. (42) I am grateful to Mark Tushnet for suggesting this issue to me. (43) Owing compensation does not automatically determine what a party should do, as it may be subject to competing obligations. (44) If she has benefited from her ancestor’s slave-holding, principles of unjust enrichment may be applicable. (45) Just compensation would not of course be determined by material disadvantages alone. The wrongs done by a racial hierarchy are not merely economic. They involve indignities and other failures to treat subjects with adequate consideration and respect. (46) A more satisfactory formula might in any case add “with a fair concern for the interests of adults and of future generations.” A fully adequate formula would imply that corrective action be international in scope.

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 David Lyons


Abstract and Keywords Bentham held that “To make a law is to do evil that good may come.” He did not assume that the good always comes, but he also said that “the motto of a good citizen” is “To obey punctually; to censure freely,” which implies that disobedience to law is morally wrong. That is an extreme version of the more commonplace notion that there is a moral presumption favoring obedience to law. Bentham was not alone in expressing such a view; one finds it also in Hart. This essay reveals that other prominent legal theorists, such as Austin and Dworkin, commit themselves to a respect for law that clashes with their own critical attitudes as well as with demonstrable facts of political history. Keywords:   slavery, Jim Crow, racism, reparations, compensation, unjust enrichment, equal opportunity

I Introduction Chattel slavery was a brutally cruel, repressive, and exploitative system of racial subjugation. When it was abolished, the former slave-holders owed the freedmen compensation for the terrible wrongs of enslavement (Lyons 2004a). Ex-slaves sought reparations, especially in the form of land, but few received any sort of recompense (Foner 1989: 51–4, 70–1). The wrongs they suffered were never repaired. No one alive today can be held accountable for the wrongs of chattel slavery, and those who might now be called upon to pay reparations were not even born until many decades after slavery ended. For some scholars, the lack of Page 1 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 accountable parties makes current reparations claims preposterous.2 Such reactions are understandable, but they do not settle the matter. My concern in this paper is not the legal but the moral merits of reparations claims. (See also Chapter 3.) If we think of such claims as referring only to chattel slavery and as calling for transfers among individuals, these claims face serious difficulties, which I discuss in Part II. Recent legal claims, however, diverge from that pattern by seeking recompense (p.86) from corporations for their complicity in chattel slavery,3 or from governmental bodies for their responsibility for more recent wrongs.4 Although no claim has yet been successful, if such suits were to succeed, they would bring some measure of relief and vindication to current claimants, but they would fail to address the conditions that underlie reparations claims, namely, deeply entrenched systemic conditions that require large-scale corrective programs. The current legal claims do, however, suggest a useful shift in thinking about reparations. We need first to look more broadly at US history, and second to remind ourselves that racial subordination was not primarily a matter of private arranging but essentially a matter of public policy. (See Part III below.) Chattel slavery was only the first stage of institutionalized racial subordination. Some freedmen left the rural South, but most ex-slaves remained in the South and entered another form of peonage, as tenant farmers or sharecroppers, in a new system of racial subordination. (See Foner 1989: 106–8.) After a brief, aborted period of Reconstruction, slavery was followed by Jim Crow, another brutally cruel, repressive, and exploitative system of racial subjugation. Jim Crow was maintained until the recent past. (See Woodward 2002.) Those systems imposed massive deprivation, required sustenance from racist ideology, and left a legacy of disadvantage and indignity.5 Most obstacles to validating reparations claims can be avoided by shifting our focus: (a) from reparations for wrongs of the distant past to reparations for wrongs that continued under Jim Crow and persist today; and, (b) from limited transfers of property to comprehensive public programs capable of addressing the persisting legacy of slavery and Jim Crow. Part III gives reasons for regarding current claims as timely rather than concerned only with injustices of the distant past that can no longer be rectified. For two hundred years, the federal government embraced policies (p.87) that supported slavery and Jim Crow. It endorsed, in effect, a Racial Subjugation Project. At crucial junctures in our history, the government chose not to prevent or repair those wrongs. Although it finally condemned slavery and Jim Crow, it failed on both occasions to address their inequitable consequences—a deeply entrenched, substantial gap between the life prospects of whites and blacks. The

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 federal government is reasonably held accountable for the persisting legacy of those wrongs (Lyons 2004a: 180–4). Part IV suggests how the legitimate concerns that underlie current reparations claims can be addressed by a National Rectification Project, grounded upon public policies at the federal level. (See Lyons 2004a.) It also suggests how such a project can be justified by uncontroversial principles of political morality that are central to avowed public policy. Our society places great emphasis on individual responsibility and competition. Fair competition requires equal opportunity. This is particularly true for children who will have little opportunity to develop into adults capable of competing and taking individual responsibility if they are not provided with good housing, strong communities, and a healthy physical environment. The federal government has an obligation to rectify wrongs in which it has been significantly complicit and therefore is morally obligated to undo past policies that have ensured a lack of equal opportunity for children. A comprehensive set of programs dedicated to ensuring this opportunity would address most if not all of the legitimate concerns manifested by reparations claims. As this paper regards the federal government’s support for slavery and Jim Crow as part of a continuing history of wrongs, it refers to the morally required rectification not as reparations, which are usually thought of as addressing past wrongs, but under the broader heading of corrective justice. Although corrective justice is sometimes understood as restoring a condition that existed prior to the wrong, such an understanding is not appropriate here. For a brief historical period, the initial wrongs of slavery might have been rectified by freeing, compensating, and returning enslaved Africans to their homes.6 That time has long since passed. Those Africans who were forcibly brought here and their descendants became founding members of American society. Corrective justice now requires addressing the legitimate claims of African Americans.

(p.88) II Compensation, Restitution, and Corrective Justice It is useful to review some of the difficulties facing reparations claims as they are often interpreted—difficulties the subsequent argument of this paper largely avoids. Although some of the terms employed have more or less technical meanings in the law, they are used here in a moral sense, on the assumption that morality requires not only compensation for wrongs done but also restitution for unjust enrichment. Reparations claims are based, directly or indirectly, on the wrongful treatment of some persons by others, and in the simplest cases call for compensation of the parties wronged by the wrongdoers (Posner and Vermeule 2003). Understood in that way, a reparations claim made today based solely on the wrongs of chattel slavery faces serious problems. We cannot now require a slave-holder of the seventeenth, eighteenth, or nineteenth century to compensate his former slaves, Page 3 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 nor could those same slaves now be compensated. If a reparations claim today stems only from chattel slavery, it must identify living people who now have derivative claims which are based on wrongs that were visited upon other persons long ago. In addition, it must suggest a principled basis for determining the magnitude of those claims. Persons with valid reparations claims today may be called claimants. Those who can justifiably be held to account today may be called accountable parties. My use of these terms will not be limited to the compensation context but will extend to the broader reaches of corrective justice as well. Consider now some familiar modes of reasoning about reparations. A. The Moral Debt Model

When slavery was abolished, the former slaves received no compensation from their former masters for injuries they had suffered under them (Lyons 2004a: 179). Under the moral debt model, the former slaves had valid moral claims against their former masters, whose estates included those unpaid debts. These correlative debts are treated as having been passed down to their respective heirs, from one generation to the next, up to the present day.7 (p.89) This model assumes that some reasonable basis for estimating the original debts can be found, as well as a basis for translating them into current dollars and dividing them among current descendants. Such moral reasoning, however, tracks notions of legal liability too closely. I am not confident that valid moral claims to compensation can be inherited, or that moral debts can be transmitted to one’s heirs, for that suggests the moral guilt of ancestors can be transmitted to their descendants.8 If we focus only on chattel slavery and do not assume that moral debts can be inherited, it is unclear that we can find any accountable individual who is alive today. Reparations claims traced back only to slavery look too narrowly at US history, however, for slavery was followed by Jim Crow. (See Woodward 2002.) The wrongs are part of a history of racial subjugation, which has left deeply entrenched racial inequities. (See Part III below.) If we took that subsequent history into account, individuals accountable under the moral debt model might include those who actively supported Jim Crow, those who resisted reform, and those who failed to work as hard against Jim Crow and its legacy as morality required, given the knowledge they had, or should have had, of its visibly aggressive discrimination. The application of these criteria to accountable individuals requires controversial moral judgments. In focusing only on accountable individuals, the moral debt model ignores the systemic character of racial subjugation in the United States (Lyons 2004a: 180– 3). To be sure, individuals made the relevant decisions, enacted the relevant laws, and framed and implemented the relevant policies; but those decisions, Page 4 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 laws, and policies were made, enacted, adopted, and implemented on behalf of the political community by persons acting in an official capacity. Racial subordination in the United States was institutionalized. It was not simply a matter of private action. (See Massey and Denton 1993: 51.) Moreover, merely honoring the valid claims that some individuals may have against others, as the moral debt model contemplates, would not rectify the social inequities that keep reparations claims alive. Reparations claims would probably not be made today if the wrongs of slavery had (p.90) been fully rectified. It is true that, following the abolition of slavery and during the period called Reconstruction, the United States took important steps towards ending those injustices.9 The government, however, later abandoned Reconstruction and permitted the creation of another system of racial subjugation (Foner 1989: 586– 7). Furthermore, although some programs proposed for Reconstruction might have laid the groundwork for adequate reform, the programs actually adopted were not radical enough to enable Reconstruction to succeed (see Essay 4; Foner 1989: 452–3). The same is true of the twentieth century. Reparations claims would probably not be made today if the wrongs of Jim Crow had been fully rectified. Nearly a century after the first Reconstruction was abandoned, a Second Reconstruction was inaugurated, and the United States took steps towards redressing the injustices of Jim Crow (Woodward 2002: 122–47). Like the First Reconstruction, however, the second was not pursued to completion (Woodward 2002: 209–20). Furthermore, the programs actually adopted during the twentieth century were not radical enough to eliminate the entrenched racial hierarchy (Woodward 2002: 215). The United States has made some significant reforms, but the legacy of slavery and Jim Crow remains, with systemic disadvantages for African Americans.10 B. The Material Disadvantage Model

Many theorists assume that a reparations claim based on a wrong of the distant past must be determined by a counterfactual test—that we must estimate how much worse off a potential claimant is than she would have been if the wrong had not been inflicted.11 This counterfactual question, however, generates problems for reparations claims based on slavery alone. When much time has passed and the current state of affairs has been significantly shaped by decisions in the intervening generations, the counterfactual question may have no clear answer. (p.91) Suppose Lester’s parents suffered from systematic discrimination and he grew up with substantially fewer resources and significantly more limited options than he would have enjoyed otherwise. Time passes. Lester fares well or badly. His fate depends partly on his own resourcefulness and partly on his circumstances. His ability to make the best of his situation depends partly on Page 5 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 psychological factors over which he has only limited control. It is difficult, if not impossible, to determine what contribution the wrongs done to his parents have made to his condition. Such imponderables multiply as several generations pass between the wrongful injury and the current situation. It has been suggested that the counterfactual test is fatal to reparations claims based on slavery. If Africans had not been brought to North America, the ancestors of those who became African Americans might never have met, and the actual descendants of those ancestors might never have been born. In the unlikely counterfactual event that the same ancestral persons met in Africa and had children, those children would have been conceived at different times and in different circumstances than their actual children, and those counterfactual children would not be identical to those who actually existed. It is almost certainly not true of any African American alive today that she would have fared better had her ancestors not been enslaved, for if they had not been enslaved she almost certainly would never have been born, and would not have fared (well or badly) at all. Therefore, under the counterfactual test all or most of the descendants of enslaved Africans lack valid reparations claims based on their distant ancestors’ enslavement. This article develops an argument that minimizes these difficulties. Counterfactual judgment is required, but it need not bridge several generations. We have adequate reason to conclude that the current life prospects gap between blacks and whites is overwhelmingly a legacy of racial subjugation that was maintained for three centuries, at the formal end of which reparations were not forthcoming. As I shall argue, corrective justice requires that the nation marshal its resources to address that gap on a society-wide basis and not merely on an individual basis as most theories of reparations require. The material disadvantage model also does not help identify currently accountable parties— individuals who can be held responsible for any material disadvantage wrongfully imposed. That problem is sometimes avoided in discussions of reparations claims by appeal, in effect, to the notion of unjust enrichment, which will be useful to consider. (p.92) C. The Unjust Enrichment Model

If I have profited from someone else’s wrongdoing—been enriched by another’s injustice—I may owe restitution to the party who was wronged, even though I was not complicit in the wrong. (See Palmer 1978: 2.) If slavery and Jim Crow benefited some who were not responsible for those systems, those who were wronged may have a valid claim for restitution against those third parties. Some reparations claims employ this reasoning. (See e.g. Boxill 1972: 119–20.) The class of unjustly enriched, and therefore potentially accountable, third parties can be much wider than the class of wrongdoers. In the present context, that difference may be quite important, for no one who can be held responsible Page 6 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 for slavery is still alive and relatively few are still alive who can be held responsible for sustaining Jim Crow, as compared with those who might be regarded as unjustly enriched by the effects of racial stratification. Here’s how the unjust enrichment argument might go. Many slave-holders extracted profits from slave labor and many non-slave-holders profited indirectly. The children of prosperous slave-holders derived benefits from the income, wealth, social standing, and political power their families built with slave labor. Others profited by supplying goods, including slaves, for the plantations or by marketing or processing the products of slave labor. Commerce based on the slave economy created jobs for non-slave labor and raised the welfare level of European American workers and their families. (See e.g. White 2000: 171.) Those advantages have been sustained through succeeding generations and have been inherited by current European Americans. The argument can be extended and strengthened by taking Jim Crow into account. Employers profited by paying African Americans lower wages, providing fewer benefits, and employing them as strikebreakers. (See e.g. Trotter 2000.) Residents of white neighborhoods have benefited from increased services financed by the denial of resources to black communities (Bair 2000: 291–2). European Americans enjoy the advantages of being classified as white in the racial hierarchy that has been central to our economic, political, and social relations since the seventeenth century. As compared with blacks, whites enjoy longer life expectancy, better medical care, better housing, better educational and job opportunities, higher wages, better benefits, and better public services— in short, substantially better life prospects.12 (p.93) The preceding argument may be thought to show that European Americans have been unjustly enriched and thus owe restitution to African Americans for benefits that stem from slavery and Jim Crow. It is important that this argument neither assumes nor implies that those who owe restitution are morally responsible for the relevant inequities. It does not cast blame on those it would hold accountable. The unjust enrichment argument is plausible, but problematic. As a result of slavery and Jim Crow, many whites are significantly better off than many blacks, but it does not follow that all whites have benefited from those systems. Consider, for example, the position of poor Southern whites under slavery. As its defenders noted, race-based chattel slavery assured poor whites a position above black slaves and, at least in social terms, above the condition of free blacks. (See e.g. DeBow 1963.) However, the reason why it is plausible to suppose that ex-slaves had a valid claim for reparations is that slaves fared very badly. Even those who were relatively well-treated were denied freedom, wages for their labor, respect, independence, participation in the governance of their communities, and reasonable redress of grievances (White 2000: 173). Free Page 7 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 blacks, by and large, were also not much better off during slavery (White 2000: 172). Conditions for African Americans were generally so bad that poor whites could have been better off while still faring badly themselves. We cannot assume that poor whites fared better under slavery and Jim Crow than they would have fared in a non-racialized economy. The profits derived from slavery were distributed unevenly (Wood 2000: 82). The racial barriers that were crucial to chattel slavery and Jim Crow divided laboring people, lessening their leverage in the labor market and their political influence, while enhancing the power of planters and employers. Because slave labor was unpaid, free black labor was discounted, and blacks, who were excluded for so long from trade unions, were available to serve as strikebreakers,13 the conditions of white workers may have also suffered accordingly. In sum, while we can safely assume that some whites reaped considerable benefits from slavery and Jim Crow, we cannot reasonably infer that those systems served all European Americans well. We therefore cannot (p.94) assume that all European Americans owe restitution for advantages derived from the institutionalization of white supremacy.14 It may be suggested that whites owe restitution simply for living under a system in which they have enjoyed relative advantages due to systematic discrimination against blacks. The notion that whites generally owe restitution could be reinforced by the compensatory justice argument that those who supported Jim Crow or who failed to work as hard against it and its legacy as morality required are complicit in the racial hierarchy. The principal problem with these suggestions, for present purposes, has already been stated. In focusing on accountable individuals, these approaches neglect the institutional nature of racial subjugation in the United States. I suggest that honoring the claims of some individuals against others will not rectify the systemic inequality that underlies the persistence of reparations claims. D. The Institution Model

A valid reparations claim requires some currently existing party that can be held accountable for past wrongs. Institutions, such as corporations and political organizations, can be held accountable and are capable of existing for many generations.15 Some public institutions have existed continuously since the founding of the United States. The federal government is a prime example. If the United States long ago illicitly took land from an existing Native American nation, then the United States presumably owes that land or suitable compensation to that Native American nation. Continuing federal accountability is also applicable to the case for corrective justice.

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 III The Role of the Federal Government16 We normally assume that a government can retain a morally relevant identity for a very substantial period of time, that its acts and practices (p.95) are subject to moral appraisal, and that it can be held accountable for its past acts. Governments have often accepted accountability for their prior acts and have paid reparations even after significant changes have been made in their character, personnel, laws, and policies. Thus, the United States government has accepted accountability for the Tuskegee syphilis experiment and the World War Two internment of Japanese Americans, and it has paid reparations accordingly. (For other examples, see Winbush 2003: xi–xii.) I shall assume here that the federal government can be regarded as an accountable party in such matters, and in this section I will explain why it is reasonable to hold the federal government accountable for the life-prospects gap between blacks and whites. The story is briefly this: Just as the North American system of chattel slavery had not been imposed by the British government on its colonies but was constructed and color-coded by the colonies themselves17 at crucial junctures in its history (from its founding through the twentieth century) the federal government found itself obliged, time and again, to confront the question of racial equality. Its overall responses—its resulting policies and practices—have been gravely deficient. I do not mean merely that we can now, in retrospect, imagine different directions that might conceivably have been taken. Alternatives were understood well enough by those who made the relevant decisions. Alternative outcomes would have been difficult to achieve, in part because the interests of those who would be adversely affected by the decisions (African Americans most directly) were not represented by those who made them (the colonial elite, the founders of the republic, et al.). That does not refute my point about accountability. To see this, it may help to consider the history that is reviewed below in the light of a more recent case. By the time of the 1942 Wannsee conference in Nazi Germany, it had been decided to exterminate Jews, Roma, and others. The conference participants understood the alternative well enough, and the road taken was not unavoidable in a way that excludes them (and others) from responsibility for genocide. In a parallel way, the federal government is morally accountable for its support of a deeply entrenched racial hierarchy and its failure to repair the consequences of slavery and Jim Crow. (p.96) A. The Eighteenth Century18

The traditional story of the constitutional framing is that, in order to achieve a settlement that would secure a viable union of the newly independent states under a capable central government, it was necessary for the North to compromise its anti-slavery principles. (Littlefield 2000: 134). One interesting aspect of the story is that, as early as 1787, anti-slavery sentiment was perceived as a threat by Southern states. Anti-slavery arguments had in fact Page 9 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 been circulating in the colonies since 1700 and had spread increasingly as the European Enlightenment influenced colonial thinking. During the War for Independence, European allies of the rebels had pointedly noted the inconsistency between the colonials’ human rights rhetoric and their maintenance of chattel slavery (Littlefield 2000: 107). By the time of the Constitutional Convention, three Northern states had abolished slavery, three had enacted gradual emancipation statutes, and three others were about to follow, as would three of the states that were soon to be carved out of the Northwest Territory (Finkelman 2001). Anti-slavery sentiment was significant in the Upper South, especially Virginia and Maryland (Litwack 1961: 7–9; Nash 2006: 265–8). The traditional story assumes that anti-slavery sentiment was adequately represented by Northern delegates to the Constitutional Convention. However, the delegates who attacked slavery, such as Gouverneur Morris of Pennsylvania and George Mason of Virginia, were vastly outnumbered (Finkelman 2001: 24, 33). Northern delegates largely represented commercial interests, who derived profits from the slave system and exerted no significant pressure against slavery (Finkelman 2001: 28). Delegates from New England almost always voted with the Lower South (especially Georgia and South Carolina) when it sought protections for slavery. The possibility of abolition was, however, not beyond the ken of the convention delegates (Finkelman 2001: 3–36). Furthermore, it is unclear that all of the constitutional supports for slavery were needed for an agreement among the states. The Lower South was not in the best position to wrest concessions through hard bargaining. Georgia and South Carolina wanted a central government strong enough to aid them against powerful Native American nations, and Georgia was concerned about its southern border with Spanish (p.97) Florida.19 Although the representatives from the Northern states could have pressed the slavery issue, the convention agreed without great difficulty to provisions that supported slavery—a fugitive slave clause, a bar (for at least twenty years) against interference with the slave trade, and added representation for states with substantial numbers of slaves.20 If Northern delegates had actually represented anti-slavery sentiment, the slave states might have agreed to a constitution that tolerated but did not so vigorously support slavery (Finkelman 2001: 32). The federal government instead became committed in law and policy to that institution. B. The Nineteenth Century21

The next crucial set of federal decisions concerning slavery and its legacy were made at the end of the Civil War. Andrew Johnson supported the maintenance of a racial hierarchy (Foner 1989: 179, 190). Over his veto, and for a decade thereafter, Congress endorsed civil rights legislation and aid to poor whites and blacks through the Freedman’s Bureau. It laid down requirements for new state constitutions, including universal male suffrage and acceptance of the Page 10 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 Fourteenth Amendment, and it mandated equal access to public accommodations.22 But the federal government’s commitment to reconstruction soon faded. After the Hayes-Tilden agreement of 1877, federal troops were withdrawn from Southern capitals and federal supervision of Southern elections ended (Foner 1989: 575–82). Supreme Court decisions undermined the civil rights acts and the Fourteenth Amendment.23 Even more crucial, however, was the federal government’s failure to endorse a redistribution of Southern land, which was needed to secure economic independence for the freedmen, end the planters’ control of Southern society, and make democratic reform possible. (p.98) Freedmen recognized their own just claims for land and agitated for a modest allotment (Foner 1989: 51–60). Their proposals were supported by some poor Southern whites, by some agents of the Freedmen’s Bureau, and by some political leaders (Foner 1989: 68–70, 103–10, 153–75, 234–6, 302). During and immediately after the War, some land was given to them, but most of that land was soon restored to its former owners or sold to others (Foner 1989: 308–10). Most significantly, Congress rejected Thaddeus Stevens’ proposal for confiscation and redistribution (Foner 1989: 329, 374). The First Reconstruction was thus aborted. Over the next generation, through force, fraud, terror, and various legal devices, blacks were driven from political participation (Woodward 2002: 82–7). Neglecting its responsibilities under the amended Constitution, the federal government declined to intervene (Woodward 2002: 31–109). Most freedmen became sharecroppers on land that had been restored to its original owners (Foner 1989: 404–9). To secure racial subordination, lynching became increasingly frequent (up to three a week during the 1890s). (See e.g. Zangrando 1980: 3–21, tables 1–2; Dray 2002.) No longer valuable private property, blacks could be killed with impunity. White supremacy was thus violently re-established and, during the most intense period of lynching, Jim Crow was sanctified by the Supreme Court’s 1896 decision in Plessy v. Ferguson (163 U.S. 537, 552). Anti-lynching legislation, frequently proposed, never survived in Congress (Holden-Smith 1996: 44). The United States had officially committed itself to civil and political rights for blacks, but it failed to enforce those rights. It made a promise that it did not keep. African Americans were betrayed, and a brutal white supremacist regime was allowed to replace chattel slavery. C. The Twentieth Century24

The Jim Crow system survived into the second half of the twentieth century (Woodward 2002: 149–88). Following the Supreme Court’s decision in Brown v. Board of Education (347 U.S. 483 [1954]), the federal judiciary began systematic enforcement of blacks’ constitutional rights. Congress enacted significant civil rights legislation, including the Civil Rights Act of 1964 (78. Stat. 241), the Page 11 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 Voting Rights Act of 1965 (79 Stat. (p.99) 437), the Fair Housing Act of 1968 (82 Stat. 81), and the Equal Employment Opportunity Act of 1972 (86 Stat. 103). During this period, acknowledgment of widespread poverty in the United States led to a “War on Poverty” (Harding et al. 2000: 525–6), including a number of programs funded all or in part by the federal government, such as food stamps (78 Stat. 703), Medicare (for the elderly and disabled; 79 Stat. 290), Medicaid (for poor children and some adults; 79 Stat. 343), Supplemental Security Income (serving needy aged, disabled, and blind; 86 Stat. 1465), the Comprehensive Employment and Training Act of 1973 (subsidizing low wage jobs in non-profit and public settings; 87 Stat. 839), and Head Start (preschool program for disadvantaged children; 95 Stat. 499), and some existing programs were expanded, such as Aid to Families with Dependent Children (“welfare”; 88 Stat. 2359). Because of African Americans’ disproportionate share of economic disadvantages, such programs are relevant here (Westley 2003). The Second Reconstruction, like the first, secured important changes in public policy. Racist ideology was officially rejected. Openly racist appeals became unacceptable for mainstream political candidates and explicitly racist comments were banished from public policy statements (Marable 1991: 149). Antidiscrimination laws were once again enacted, but this time the courts upheld their enforcement. (See Marable 1991: 181–3; Woodward 2002: 167–8.) Opportunities became available for blacks in politics, education, skilled trades, and other professions. Overt discrimination and anti-black violence were reduced (Marable 1991: 149–50). Unlike the public policy changes of the First Reconstruction, those of the Second have come to seem irreversible. Once again, however, federal commitment to many of the reconstruction programs soon faded. By the early 1980s, government policy had reduced interventions on behalf of blacks and government assistance was reduced. Nutritional, educational, medical, employment, and housing programs that were developed in the 1960s faced cutbacks, which were severe by the 1980s and are worse today. The real benefits of Medicare and Medicaid have been reduced (Marable 1991: 207). New construction of affordable public housing has virtually ceased. Federal subsidies for low-income families to rent private housing have decreased (Marable 1991: 209–10; Massey and Denton 1993: 230–1). CETA programs have ended (Massey and Denton 1993: 230). Eligibility for food stamps has been restricted (Harris and Baker 1999). AFDC has been terminated; its (p. 100) replacement, Temporary Assistance to Needy Families, sets lifetime limits on receipt of aid, requires more work from mothers of young children, and denies four-year college study as a means to improved employment.25 Despite increased work requirements, the government has failed to provide for adequate child day care (See Kelley 2000: 599).

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 More importantly, the adopted measures failed to address the deep, systemic inequity left by slavery and Jim Crow. (See e.g. Woodward 2002: 214–17.) African Americans entered the Second Reconstruction with life prospects substantially lower than that of their white counterparts. (See Marable 1991: 227–30.) Since then, conditions have in some respects improved, but a substantial gap continues. As of 1996, for example, life expectancy was 76.8 years for whites and 70.2 years for blacks.26 Blacks had significantly inferior access to health care.27 Blacks experience significant disadvantages in the labor market (Holzer 2001: 98–110). In 1994, for example, the unemployment rates for blacks and whites were 12.0 percent and 5.4 percent respectively.28 More significantly, in 1994 the median net worth of whites and blacks was $52,944 and $6,127 respectively, and the median net financial assets of whites and blacks were $7,400 and $100 respectively (Oliver and Shapiro 2001: 228, table 10.1). At every income level, blacks’ net worth is a fraction of whites’ (Oliver and Shapiro 2001: 231, table 10.2). At most income levels, blacks’ financial resources—funds available in case of lay-offs, serious illness, and other emergencies—are substantially less: zero or negative. Twenty-five percent of white households lack such financial resources, but 61 percent of black households are in that potentially disastrous predicament (Oliver and Shapiro 1995: 87, 91–125, table 4.5). As equity in private housing constitutes the main component of wealth for most American families and the wealth gap appears crucial to the perpetuation of the black/white life prospects gap (Massey and Denton 1993: viii), public policies affecting the acquisition and appreciation of housing are of special importance here. Prior to the Second Reconstruction, (p.101) employment discrimination was not merely tolerated but was practiced by government at all levels (Oliver and Shapiro 1995: 51). Such discrimination generated a black/white income gap, which affected African Americans’ ability to purchase homes (Oliver and Shapiro 1995: 87, table 4.5). Other government policies, however, have greatly promoted home acquisition by whites while inhibiting it for African Americans (Massey and Denton 1993: 49–57). Many of those policies promoted residential segregation (Massey and Denton 1993: 48, table 2.4). The black urban ghetto was created by the migration of blacks to urban areas and periodic housing shortages that resulted from exclusionary actions by private parties and policies of local officials and federal agencies. One such policy was “redlining,” which identified black neighborhoods within which home purchase and home improvement loans were denied or interest rates inflated (Massey and Denton 1993: 51–2). Redlining was embraced by federal agencies, such as the Home Owners Loan Corporation, the Federal Housing Administration, and the Veterans Administration (Massey and Denton 1993: 51– 2). Federally supported “slum clearance” programs intensified ghetto conditions (Massey and Denton 1993: 55–7). Many public housing projects, typically highPage 13 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 density, were located within or adjacent to existing ghettos (Massey and Denton 1993: 56). As the projects accommodated fewer ghetto dwellers than slum clearance displaced, more pressure was placed upon housing in the ghetto (Massey and Denton 1993: 56). Public housing authorities employed segregation policies that further promoted black isolation (Massey and Denton 1993: 56). When the federal courts ordered the housing authorities to reform, funding for public housing was halted.29 Congress enacted a Fair Housing Act in 1968 (82 Stat. 81–5) but only after it was stripped of enforcement provisions (Fair Housing Act § 810, Massey and Denton 1993: 195). When such provisions were added by the Fair Housing Amendment Act of 1988 (102 Stat. 1619), the federal government declined to enforce them vigorously (Massey and Denton 1993: 209– 11, 229–34). Blockbusting (Massey and Denton 1993: 37–8) and “white flight” (Massey and Denton 1993: 45) can occur only when some communities are maintained as white domains. Federal and local governments funded (p.102) and constructed new highways to serve white suburbs (Massey and Denton 1993: 44). When overt housing discrimination was prohibited, realtors developed covert measures to divert black renters and home buyers from white communities. Such unlawful practices can be identified, but because of law and federal policy, private, nonprofit organizations have had the burden of combating them (Massey and Denton 1993: 198–200). Their “audits” of such practices have been effective, but their number was substantially reduced with the end of CETA, which had supported a variety of community-based anti-poverty jobs.30 By 1940, the isolation of blacks within segregated urban communities was greater than had ever been experienced by any other ethnic group in America. Following World War Two, as white suburbs expanded and African Americans of all income levels were excluded from white domains, urban black ghettos increased in size and density, giving rise to a degree of uniquely concentrated isolation that sociologists have dubbed “hyper-segregation” (Massey and Denton 1993: 74–8). Hyper-segregation persists partly because of the continuing exclusion of blacks from white communities, partly because federal fair housing legislation has not significantly been enforced, and partly because public policies can adversely affect an established black ghetto without hurting a significant number of whites. Poverty in the United States is most concentrated in the black urban ghetto (Massey and Denton 1993: 152, table 6.1; Oliver and Shapiro 1995: 16–23). Social contacts with whites are minimized by the isolation of the ghetto, as are job opportunities and access to business networking opportunities (Massey and Denton 1993: 160–2). Most importantly, residential segregation promotes the black/white wealth gap (Oliver and Shapiro 1995: 136–51). Public policies such as redlining have reduced the opportunity for blacks to acquire, maintain, and improve homes (Oliver and Shapiro 1995: 18–19). African Americans who could Page 14 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 afford the higher interest rates they were charged on housing loans have paid more than whites for homes of similar value, which has reduced their available financial resources (Oliver and Shapiro 1995: 20–1). In periods of economic hardship, such as the 1930s and 1970s, “demand density” dropped (p.103) dramatically in the ghetto, commercial outlets and services withdrew, buildings fell into disrepair and were abandoned, and crime and disorder increased (Massey and Denton 1993: 137–9). These conditions caused housing values to appreciate at a lower rate in black than in white communities, adversely affecting blacks’ net worth and their ability to borrow in order to invest in educational and business opportunities (Oliver and Shapiro 1995: 137–50). The effects are transgenerational and profound. “Nearly three-quarters of all black children, 1.8 times the rate for whites, grow up in households possessing no financial assets. Nine in ten black children come of age in households that lack sufficient financial reserves to endure three months [without income, even at the poverty line], about four times the rate for whites” (Oliver and Shapiro 1995: 90). The life prospects of children depend more on parents’ wealth than on their income (Oliver and Shapiro 1995: 152–70). “Asset poverty is passed on from one generation to the next, no matter how much occupational attainment or mobility blacks achieve” (Oliver and Shapiro 1995: 170). As a result of the wealth gap, there is, between one generation and the next, both more downward mobility and less upward mobility for blacks than for whites (Oliver and Shapiro 1995: 158). The policies that have promoted hyper-segregation have thus intensified the legacy of slavery and Jim Crow, and the results are not being challenged by public policies. The foregoing review includes an incomplete but relevant description of the federal government’s role relative to African Americans. The government’s policies supported both slavery and Jim Crow. Since 1865, the government has violated or failed to enforce its own Constitution and legislative enactments for extended periods. In accepting violations of its own basic law, the federal government allowed the racial caste system to be reconfigured so that it could survive the abolition of slavery. It thereby enabled the entrenchment of inequities for African Americans in a new system—Jim Crow. It tolerated gross misconduct by officials, frequent public lynching, rape, harassment, terror, and coercion—in other words, widespread, grievous violations of African Americans’ most fundamental rights. Given the opportunity, it has more than once declined to undertake measures necessary to substantially rectify the long-standing inequities. Of course, this pattern does not fully describe public policy; but it has dominated public policy since the United States was established. (p.104) The federal government has thus been party to and partly responsible for the wrongs done to African Americans. It is the single most important currently existing party that can truly be held accountable to those who have suffered the wrongs of racial subjugation. The federal government is, Page 15 of 25

Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 furthermore, an appropriate recipient of moral demands for corrective justice because of the nature, scope, and magnitude of the inequities that remain to be addressed.

IV What Is To Be Done? Conventional reparations claims require both current claimants and currently accountable parties. The federal government’s role in supporting racial subordination and its failure to rectify its inequitable legacy argue that the federal government may be considered a party—perhaps the principal party— that can be held morally accountable today. The argument assumes that the persisting life prospects gap between blacks and whites is very largely a consequence of racial subjugation. I believe that is a reasonable inference from the history we have reviewed.31 For two centuries, the maintenance of racial subjugation was in effect an American national project, even though it was, for half of that time, inconsistent with our basic law and public commitments. This Racial Subjugation Project was implemented by public policy at all levels. Corrective justice calls for a National Rectification Project to extinguish the relevant inequities. The argument does not, however, identify individual claimants as would be required by a conventional reparations claim.32 We are not in a position to conclude that all African Americans have valid reparations claims or to estimate the magnitude of such claims. For present purposes, neither step is necessary. I take a different approach because the data imply a life prospects gap that cannot adequately be addressed by anything less than a comprehensive set of public programs. (p.105) I wish furthermore to show how such rectification can be required by uncontroversial considerations of political morality. For this purpose, my suggestions reflect the following additional considerations: (1) It is less controversial to assume that justice requires a fair social process than any particular set of distributive outcomes. Our society would seem, for example, to place a high value on the idea of fair competition in many spheres. Fair competition in what is sometimes called “the race of life” requires a substantially equal set of opportunities and resources. (2) An implication of the statistical picture is that many African American children grow up with disadvantages that largely reflect the legacy of slavery and Jim Crow. They begin the race of life without a fair share of opportunities and resources. They receive inadequate nutrition, medical care, housing, education, and job prospects. They are exposed to lead, air-borne pollutants, vermin, and infestation. They have inadequate time with parents who, because of low wages and benefits, are obliged to work longer hours to secure a subsistence income for their families. (See Oliver and Shapiro 1995: 91–126; Crawford et al. 2003.)

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 (3) Children are not responsible for the conditions they inherit. (4) Insofar as the conditions reflect the entrenched legacy of slavery and Jim Crow, it is implausible to suppose that their parents are responsible for the life prospects gap or can generally be expected to overcome those disadvantages.33 The 1996 repeal of Aid to Families with Dependent Children34 was motivated in part by the notion that many recipients of welfare are responsible to a substantial extent for their unenviable circumstances and have taken unfair advantage of government “handouts.” I believe it is demonstrable that such concerns are unfounded and that (p.106) they have been promoted for political purposes.35 Regardless, the approach I propose avoids this issue by focusing on the needs of children. (5) Given its overall regulatory responsibilities, it seems reasonable to assume that the federal government has a primary obligation to ensure equal opportunity—to ensure that social arrangements provide a fair share of favorable life prospects for each child. No morally defensible system of social organization would fail in that responsibility. (6) The moral requirement is not merely prospective. It is also laid down by considerations of corrective justice. The government is morally bound to eliminate unfair inequalities in opportunity that it has wrongfully promoted. This connects the present argument to reparations claims. To render the idea of a National Rectification Project even less potentially controversial, my proposals take into account the following considerations: (7) For much of United States history, many groups have been subjected to prolonged systems of discrimination, and as a result many additional children inherit a legacy of unequal opportunity. I do not want to suggest that all forms of unwarranted discrimination are equal, or that slavery and Jim Crow can properly be understood simply as systems of discrimination. To underscore this, I shall indicate the examples I have principally in mind: (A) For more than two centuries, Native Americans in United States territory have been subjected to massive thefts of land and other goods, displacement, fraud, and genocide, for which the federal government is primarily responsible;36 (B) For nearly two centuries, Mexican Americans have been subjected to massive losses of land by illicit means, for which the federal government is primarily responsible (see, e.g., Ebright 1994; Acuña 2000: 41–152); (p.107) (C) The United States provides entry to massive numbers of immigrants and guest workers, especially from Asia and Latin America, who

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 have been systematically exploited and maltreated by under-regulated employers (see, e.g., Takaki 1998; Gonzalez 2000). In each case, vast numbers of individuals suffer the legacy of past inequities and continuing discriminatory practices. In addition to these examples, US history includes a long list of immigrant groups from Asia and Europe that have been subjected to systematic discrimination for varying numbers of decades or generations. Not all groups still experience systematic discrimination, but some individuals may continue to suffer disadvantages that flow from these past inequities. It is important to address injustice evenhandedly—to promote public policies that address the most pressing needs first, especially needs stemming from past or present wrongs. The programs I shall suggest would focus on the most basic needs of children, in order to ensure equal opportunity on the least controversial basis possible. A. The Material Component

How can poor children’s life prospects be improved? We can begin to sketch aspects of a comprehensive program under familiar categories such as health, nutrition, housing, family life, education, and community conditions. The following sketch does not assume that all programs must be administered by government agencies. It is morally imperative, however, that the federal government ensures that adequate, effective programs be established and maintained for as long as the relevant conditions warrant. Children’s needs must be addressed effectively even before they are born, and must continue to be addressed through the pre-school and mandatory schooling periods. We require adequately funded and staffed programs to provide prenatal care for mothers, postnatal care for mothers and children, and adequate nutrition, which school breakfasts and lunches can help provide. These programs should include substantial outreach components to overcome language barriers and participants’ experience with insensitive or overtaxed service providers as well as to persuade families of their children’s right to available benefits. Many poor children live in overcrowded housing; many are homeless. We have massive need for affordable, well-maintained family housing, in (p.108) welltended neighborhoods, free of infestations, lead, and other poisons. Children must have adequate individual attention in their public schools. Class sizes must be small enough to be reasonably managed by the teaching staffs. Educational programs and facilities must provide children with adequate exposure to cultural and technical developments so they are not disadvantaged, relative to others in

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 the same stage of life, as potential employees or as potential continuing students. Children must have adequate time with their parents. This means that their parents must have jobs such that working only one shift enables the families to live in reasonable comfort. Furthermore, parents should have a range of choices that include the opportunity to care for their young children at home, especially those with special needs. When work or other responsibilities call parents away from the home, the children must have adequately staffed day care. Parents must have available to them adequate transportation to and from their workplaces, medical facilities, shopping, etc. As the previous points imply, poor children’s life prospects cannot be improved significantly without aiding their parents and their larger communities. Housing and schools must be built and maintained. Wages and benefits must be improved for parents. Public transportation must be expanded. We must increase greatly the numbers of teachers and other human service workers and must value their work in accordance with the inestimable value of their primary responsibility— our children—and must compensate and attract them accordingly. Most importantly, an adequate rectification project must address the black/white wealth gap. Equal opportunity requires more than prohibitions against discrimination. It is generally denied children in families that lack financial resources. A two-pronged approach is needed. First, economic security programs are required to cushion the effects of lay-offs and illnesses and to provide job training and educational opportunities at minimal cost to families. Second, families must be enabled to acquire homes and other assets so their children can begin their working lives on reasonably equal terms with their peers. Public policies have prevented fair access to wealth formation by African Americans and morality now requires public policies that will rectify that wrong.37 (p.109) To ensure that basic needs are met and, in some contexts, to minimize the possibility of arbitrary allocation and stigmatization, many of the benefits and services mentioned should be provided without fee. This would probably include not only education, but also school lunches, child care, public transportation, and health care. Such programs would be friendly to the environment and would minimize administrative costs while freeing up labor for an expanded realm of labor-intensive human services. Crash programs would initially be required for communities in great need. Some of those communities are populated mainly by European Americans. The children of the rural poor, white as well as black, should be high on such a list.38

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 B. The Moral Component

The approach I have sketched would address a good deal of the legacy of past injustices. However, the wrongs suffered by African Americans under slavery and Jim Crow have by no means been limited to material losses. Racist derogation has been a central feature of racial subjugation in the United States. The wrongs have included systematic insults, indignities, and humiliations; political exclusion and social subordination; harassment, terror, murder, rape, and public lynching. I call this the moral aspect of the relevant wrongs. Although racism is associated with overt hostility, violence, and brutality, those are not its only manifestations. Since the beginning of British settlements in North America, public policy has typically been formed while discounting the interests of African Americans (and of other peoples of color) relative to the interests of those who at a given time are regarded as white. Consider, for example, the attitude manifested in a judicial decision by Lemuel Shaw, highly respected Chief Justice of the Supreme Judicial Court of Massachusetts. Shaw rejected a habeas corpus petition seeking (p.110) the release of Thomas Sims (Thomas Sims’s Case, 61 Mass. 291–310 [1851]) who was being held as an escaped slave under the Fugitive Slave Act of 1850 (9 Stat. 462). Shaw cited conventional support for his ruling, such as the Supreme Court’s decision in Prigg v. Pennsylvania (41 U.S. 539 [1842]), which upheld the Fugitive Slave Act of 1793 (1 Stat. 302). Shaw added to his opinion an appendix in which he sought to justify the inclusion of the fugitive slave clause in the Constitution.39 Shaw argued that the welfare of the states was served by the clause, because it prevented conflict among the states. He claimed, for example, that failing to provide for the return of escaped slaves would have led to warfare between slave and non-slave states (Sims’s Case, at 317). That is plausible, but in considering its significance, Shaw ignored the well-known fact that thousands of slaves escaped during the War for Independence. (See, e.g., Nash 2006: 272–5.) His reasoning simply ignores the interests of African Americans, especially slaves. Such moral blindness has been a common feature of political dispositions. Consider the national toleration of lynching—a phenomenon that was frequently reported, about which there were national protest campaigns from the nineteenth century on. For decades, Congress was reminded annually by bills seeking a federal anti-lynching statute, which it always rejected. (See, e.g., Holden Smith 1996.) Given the stakes—thousands of human lives taken in brutally cruel and excruciatingly painful ways—a relatively uninformed person who learned of the practice could reasonably be expected to investigate further. A failure to do so, when it was understood that blacks were the typical victims, is culpable ignorance.

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 The moral attitudes thus manifested—which were encouraged by the seventeenth-century creation of a racial caste system, sustained by the eighteenth-century embrace of that system, and renewed by the nineteenthcentury endorsement of Jim Crow—function like tacit manifestations of the idea that was given expression by Roger Taney, Chief Justice of the United States Supreme Court, that African (p.111) Americans “had no rights which the white man was bound to respect” (Dred Scott v. Sandford, 60 U.S. 393, at 407). These attitudes are poisonous ingredients of the persisting legacy of slavery and Jim Crow. It would seem, then, that an essential element of the required rectification is an informed acknowledgment of the moral as well as material aspects of the wrongs of slavery and Jim Crow and an effective undertaking to combat racism. It is, moreover, imperative that the moral aspects of racial subordination in the United States be addressed directly. The persistence of racism helps to account for the lack of political will to implement a genuine reconstruction. Given the magnitude of what corrective justice requires and a realistic assessment of the political prospects, the National Rectification Project I have described may be regarded as utopian. That is one reason I have tried to present a case that is based on well-grounded factual claims and minimally controversial principles. We have at least two reasons for imagining such a project. First, we need a benchmark, an understanding of what corrective justice requires, so that we can identify intermediate objectives that are now more feasible. Second, circumstances change, and objectives that seem unreachable today may become practical tomorrow. The civil rights bills of the mid-1960s lacked any chance of realization until shortly before they were enacted; changed circumstances made what had been impossible achievable. We must try to create conditions that are conducive to morally imperative changes and be prepared to take advantage of such opportunities as they arise. Given the disastrous current direction of US foreign and domestic policy, we might find before long that political circumstances will be radically altered. New conditions may offer new opportunities for rectifying the massive legacy of slavery and Jim Crow. Notes:

(1) This paper is a sequel to Lyons 2003; Chapter 4. It develops ideas that were sketched briefly in the last section of that paper as well as in Lyons 2004a: 184– 5. I am grateful for comments on earlier versions of the current paper by many persons at Boston University, UCLA, and Boston College and for research assistance by Kathleen O’Malley and John B. Koss. (2) See McWhorter (2003: 191), which criticized the reparations movement for the lack of association between modern black Americans and their slave

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 ancestors, and argued that this lack of association would only get worse with increased interracial marriage. (3) In re African-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027, 1048, 1075 (N.D. Ill. 2004). (4) Alexander v. Oklahoma, No. 03-C-133-E, 2004 U.S. Dist. LEXIS 5131, at *37– 38 (N.D. Okla. March 19, 2004), aff’d, 382 F.3d 1206 (10th Cir. 2004), reh’g en banc denied, 391 F.3d 1155 (10th Cir. 2004), cert. denied, 544 U.S. 1044 (2005). (5) As public facilities and accommodations for African Americans were either unequal or unavailable, economic and social discrimination were pervasive, and violence, coercion and terror were employed to exclude African Americans from the political process, “racial subordination” or “subjugation” is more descriptive of the system than “racial segregation” (Lyons 2004a: 178 n. 2). (6) Further measures would have been required to address the wrongs done to those who did not survive capture, imprisonment, the Middle Passage, and enslavement in North America. (7) See, e.g., In re African-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027, 1048, 1075 (N.D. Ill. 2004). (8) This does not rule out legal claims by descendants of slaves against descendants of slaveholders, but it suggests that they would not be based on inherited moral debts. Such claims might alternatively be based on unjust enrichment, which I discuss below. (9) See, e.g., U.S. Const. amend. XIV, XV; Foner 1989: 587. (10) See, e.g., U.S. Census Bureau, Poverty 2003 Tables, Table 4, Number in Poverty and Poverty Rates by Race and Hispanic Origin Using 2- and 3-Year Averages: 2001 to 2003, at 〈〉 〈http://〉 (last accessed July 9, 2012). (11) One problem with the test, as it is usually presented, is that it considers only the material effects of injustice and neglects its moral aspect, discussed in Part IV. (12) See Council of Economic Advisors for the President’s Initiative on Race 1998. (13) For a general account of African Americans’ plight in labor unions, see Frankel (2000: 262–3).

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 (14) This rebuttal ignores the non-material aspects of racial subjugation—the egregious indignities, humiliations, etc.—to which blacks, but not whites, have been subjected. (15) For example, Brown & Williamson Tobacco Company, R. J. Reynolds Tobacco Company, CSX, Fleetboston Financial Corporation, Norfolk Southern Railway Company, Canadian National Railway Company, Lloyd’s, and Aetna, Inc. were named as defendants in recent reparations litigation. See In re African-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027, 1048, 1075 (N.D. Ill. 2004). (16) For a more detailed account, see Essay 4. (17) See Morgan 1975: 327–37; Higginbotham 1978: 19–60; Lyons 2003: Part I. (18) See also Essay 4: Part II. (19) “The Convention debates, however, suggest that the Deep South did not need to be lured into the Union; the delegates from the Carolinas and Georgia were already deeply committed to the Constitution by the time the slave trade debate occurred” (Finkelman 2001b: 31). (20) U.S. Const. art. IV, § 2, cl. 3; art. I, § 9, cl. 1; art. V; art. I, § 2, cl. 3. (21) See Essay 4: Part Part II. (22) Civil Rights Act of 1875, 18 Stat. 335, Reconstruction Act of 1867, 14 Stat. 428, Freedman’s Bureau Act of 1866, 14 Stat. 173, Civil Rights Act of 1866, 14 Stat. 27. (23) See e.g. Civil Rights Cases, 109 U.S. 3 (1883), United States v. Reese, 92 U.S. 214 (1876), Slaughterhouse Cases, 83 U.S. 36 (1873). (24) See Essay 4: Part IV. (25) See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 100 Stat. 2105. (26) Kington and Nickens 2001: 259; Sandefur et al. 2001: 82–3, table 3.10, 86–7, table 3.11, 88–9, table 3.12. (27) See Jenkins 2001: 351–70; Kington and Nickens 2001: 281; Williams 2001: 371–410. (28) See also Conrad 2000: 124–51; Blank 2001: 25–7; Bonilla and Camarillo 2001: 103, 113, table 4.4; Holzer 2001: 98–123; Smith 2001: 52, 56.

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 (29) For example, when the Chicago Housing Authority was ordered by a federal judge to reform its construction practices, the CHA instead halted public housing construction altogether. Massey and Denton 1993: 190–1. (30) Massey and Denton 1993: 230. The Comprehensive Education and Training Act of 1973, 87 Stat. 839, was repealed by the Job Training Partnership Act, 96 Stat. 1357 (1982). (31) The alternative is to suppose that the life prospects gap is largely a result of choices made by African Americans, that those choices have been freely made, and that they are not themselves largely a result of the African American experience. I regard that alternative account as implausible, but the approach developed below does not require proving the point. (32) An alternative approach is to regard the African American community as a collective claimant to which reparations are due, as is suggested by Westley 2003: 127–32. The non-material aspects of the injuries suffered by members of the African American community—the indignities and psychological costs of subordination and terror—lend plausibility to such an approach. (33) “Studies find either that the savings rate of blacks exceeds that of whites or that black and white rates are identical. Like our analysis, these findings are inconsistent with the conspicuous-consumption thesis…[that]…lavish spending on cars, clothes, and cultural entertainment…account[s] for blacks’ lack of financial assets” (Oliver and Shapiro 1995: 107–8). “Never married, separated, divorced, and widowed whites all command substantially greater incomes and assets than similarly situated blacks” (Oliver and Shapiro 1995: 123). “These asset findings pose a clear challenge to the contention that the predicament of female-headed households is primarily a factor of gender.…[W]e have found that significant racial resource stratification occurs regardless of family status, gender, or labor force participation” (Oliver and Shapiro 1995: 124). (34) See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 110 Stat. 2112, repealing AFDC. (35) For example, one of the myths surrounding welfare is that it provided attractive continuing support for successive generations of women and children (usually represented as black). Longitudinal data showed, on the contrary, “that 70 percent of women who receive AFDC leave the rolls within two years, either to work or to marry, and that only 7 percent stay for more than eight years,” and that “most of the returnees only used welfare as a short-term economic back-up during a crisis. A small number did need assistance for longer than eight years, but these tended to be single mothers of young children who were school dropouts with little work experience, or women who were too ill or disabled to work at all.” In other words, AFDC functioned as a safety net. Abramovitz 1996: 30–1.

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Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow 1 (36) This process began, of course, nearly two centuries earlier, before the United States was established. See, e.g., Jennings 1976b; Deloria and Lytle 1983: 1–24; Nash 2006: 279–87, 291–7. (37) For suggestions ranging from tax reforms to the creation of asset accounts, see Oliver and Shapiro 1995: 177–88. (38) The approach I have sketched does not directly address inequities suffered by adults who do not have children. By and large, their needs would be addressed indirectly. The programs required to provide equal opportunity for children would improve most, if not all, relevant conditions that affect all individuals (housing, services, and transportation, for example) and would provide many new jobs with pay and benefits that would in effect establish new minimum standards. I assume independently that a decent society will provide for those who are retired, unable to work, or unemployed. (39) Thomas Sims’s Case, 61 Mass. at 311–19. Noteworthy too is the fact that Shaw ignored obvious differences between the statutes. Unlike the 1793 Act, the 1850 Act explicitly required summary hearings to determine whether someone who was being held as an alleged fugitive should be turned over to a slaveholder, it barred testimony on behalf of the alleged fugitive, and it gave hearing officers a financial incentive to decide in favor of slave-holder claimants.

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Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 David Lyons


Abstract and Keywords Most philosophical work on civil disobedience assumes that peaceful, conscientious but unlawful protest against unjust law requires moral justification, because of a comprehensive moral obligation to obey the law, and that practitioners of civil disobedience agree because they regard the prevailing systems as “reasonably just.” By examining the views of the most respected and articulate practitioners of civil disobedience and the circumstances of their political activities, this paper argues that the assumptions of the literature are seriously mistaken and differ from the views of Henry David Thoreau, Mohandas Gandhi, and Martin Luther King, Jr., who expressed eminently reasonable, radical criticism of their respective societies, dominated as the latter were by, respectively, chattel slavery, brutally oppressive colonial rule, and Jim Crow. The paper ends with reflections on the moral myopia of the civil disobedience literature. Keywords:   legal theory, legal theorists, political obligation, legal obligation, injustice, political history

I am going to generalize about legal theorists on the basis of a small but important sample. Even if the theorists that I shall mention are not representative, they have surely been influential, and one may well assume that their views have affected the agenda for legal theorizing. Some theorists view law too favorably by assuming that there is normally a moral presumption favoring obedience to law, a presumption that applies to all members of the society, based not on rational fear of legal sanctions but on the Page 1 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 virtues of law. This implies an excessive regard for law. For it is doubtful that any society satisfies the conditions required for there to be such a presumption. Some theorists present law too favorably by placing legal requirements on the same level as moral obligations within the framework of their analyses of morality and law. This makes it easier to believe that legal requirements automatically make a legitimate claim to our respect. It exaggerates law’s moral credentials, or creates them out of nothing. In what follows I shall usually speak of a moral presumption favoring obedience to law instead of a moral obligation to obey the law because my concern extends to those, such as Bentham, who do not recognize moral obligations but who can nevertheless hold that there is a moral presumption favoring obedience to law, or in other words that the burden of proof falls on those who believe that disobedience can be justified. (p.113) Theorists may assume that law is a valuable institution, useful enough to support a moral presumption favoring obedience, but fragile enough to require one. It is often suggested (not only by Hobbes) that life without law would be nasty, brutish, and short. The trouble is that life has been just that way for most people throughout legal history. Furthermore, the benefits of living under law have never been fairly distributed. No doubt some gain greatly from the protections and facilities provided by law. But it is by no means obvious that law normally provides a fair net gain for most people. We have no reason a priori to accept a presumption favoring obedience to law, and neither experience nor theory favors such a presumption. We have no plausible theory which is capable of supporting the claim that there is normally a moral presumption favoring obedience to law. And we are unlikely to discover such a theory, because it is implausible to suppose that minimal requirements of moral decency have normally been satisfied by the sorts of law to which the vast majority of people have actually been subjected throughout most of legal history and to which the vast majority of people are subjected today. I do not mean to suggest that we may normally violate the law. We often have adequate reason to act as it requires. First, the laws that are most directly applicable to our conduct may be morally defensible. Except with special justification, we should not harm, threaten, or endanger others, which we might do if we fail to follow the law. We should cooperate and coordinate our behavior with others, which we might fail to do if we ignore the law. Second, by violating bad law we may expose others to the state’s coercive force, and we should not needlessly do so. Third, the likely personal costs of disobedience argue for compliance. But considerations like these do not support the moral claim that we should respect laws when they systematically victimize some members of society

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Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 —a normal feature of legal arrangements. They do not establish a general presumption in favor of obedience to law. It might not seem surprising for legal theorists to give the benefit of the doubt to law. Like other professionals, theorists are likely to come from privileged social strata or to have gained from upward social mobility. Beneficiaries might be expected to underestimate the imperfections of these arrangements. But the cases that I have in mind are somewhat surprising because the writers are prominent theorists who have earned our respect, and whose (p.114) expressed attitudes towards law often do not comport well with their theories or with the moral stance towards law that they endorse. These theorists have not generally asserted that law normally merits the respect shown by compliance, and I am doubtful that they would all be prepared to do so. That is one reason why the favorable attitudes towards law that are revealed by their writings merit comment.

I I begin with Bentham. He understood laws to be essentially coercive. And so he wrote in Of Laws in General: No law can ever be made but what trenches upon liberty: if it stops there, it is so much pure evil: if it is good upon the whole, it must be in virtue of something that comes after. It may be a necessary evil: but still at any rate it is an evil. To make a law is to do evil that good may come. (Bentham 1970: 54) The last sentence suggests too sanguine a view of those who wield lawmaking power. It suggests that Bentham was viewing the law from the standpoint of an ideal utilitarian legislator. Despite this, Bentham’s basic message is clear: law has unavoidable costs but only contingent benefits. If we are fortunate, the good exceeds the harm; but that does not happen automatically, and it cannot be assumed. These points do not entail, but they strongly suggest, that the burden of proof falls on one who wishes to maintain that law merits our respect. They provide a theoretical foundation for Bentham’s lack of reverence for the law. In the Fragment on Government, Bentham characteristically insisted on the need for detached, objective criticism of law. But in one passage he combined this point with another, as follows: “Under a government of Laws, what is the motto of a good citizen? ‘To obey punctually; to censure freely’” (Bentham 1977: 399). This passage, too, may be somewhat misleading. It seems to imply that disobedience cannot ever be justified, and that surely overstates Bentham’s point. It would be implausible for anyone to claim that a moral presumption in favor of obedience to law is absolutely irrebuttable. We have no reason to assume a priori that there cannot be sufficient reason to act in a way that is Page 3 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 prohibited by law. And in the same work Bentham explicitly allowed room for justified disobedience to law (Bentham 1977: 483–4) (As a utilitarian, he could hardly have maintained the contrary.) To allow (p.115) for that possibility would make more tenable the claim that there is a presumption favoring obedience to law. It would accordingly seem best to understand Bentham as making no stronger claim. Either way, in the last quoted passage Bentham implies that disobedience to law requires moral justification even when law is morally deficient. That is just the opposite of what the previously quoted passage suggested. Bentham’s theories did not require him to believe that; they suggest the contrary. And it is unclear why he gave the benefit of the doubt to law.2 Bentham is not alone. The same idea appears in Hart’s Concept of Law. Hart assumes the point in passing, much as Bentham did. Hart argues that the analysis of law should be informed by a keen awareness of the horrible uses to which law has been put. He claims it is “better, when faced with morally iniquitous demands,” to think, “This is law but too iniquitous to obey or apply” rather than “This is in no sense law.”3 He explains, in part, as follows: What surely is most needed in order to make men clear sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny. (Hart 1994: 210) Hart’s way of making his important point is unfortunate because his words suggest a moral presumption favoring obedience to law. He poses the question whether law’s demands are conclusive of obedience. But this jumps a step. We have no a priori reason to assume that law’s demands merit any moral respect at all. And Hart gives us no reason to assume that they do.4 On the contrary. We face a complication here. As I have suggested, there can be different kinds of reasons to comply with law—on the one hand, because law merits respect; on the other hand, because of the consequences of non-compliance. These reasons do not necessarily go together. For example, it can sometimes (p.116) be unreasonable or morally unjustifiable to violate law, not because of any moral virtues possessed by the law, but solely because it is reasonable to expect harsh governmental reactions to disobedience. In the latter case, we might be tempted to say that the law merits respect, but it is the kind of respect that is grounded on the danger rather than the virtues of the object of respect. In this paper I always mean the other kind of respect—grounded on virtue or on a special relationship with law that presupposes some minimal level of virtue in the law.

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Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 It is possible that Bentham did not exaggerate law’s merits but rather estimated the likely retribution of those who act in the name of the law. But this does not apply to Hart. Another passage even more clearly implies an inflation of the moral credentials of law. Hart holds that justice involves treating like cases alike. This requires interpretation, which varies with the context. (At the time Hart wrote The Concept of Law, that was a standard analysis of justice.) Hart says, when the justice of the law itself is at issue, the resemblances and differences that justice requires or allows us to take into consideration and the appropriate treatment of cases are determined by standards which are independent of positive law. So far, so good. But, Hart holds, justice in the administration of the law consists in conformity to law: For here the relevant resemblances and differences between individuals, to which the person who administers the law must attend, are determined by the law itself. To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids. (Hart 1994: 160) Hart’s reference to impartiality seems to point in the right direction. That suggestion is, however, vitiated by his assumption that official deviation from the law necessarily involves injustice because it reflects “prejudice, interest, or caprice” (Hart 1994: 161). That is mistaken. An official’s refusal to follow law can be perfectly impartial. An official might deliberately prevent an injustice by failing to follow an unjust law. An injustice might simultaneously be done if the official act preventing an injustice to one person results in an injustice to someone else. But this need not happen. Some injustices are done by application of unjust criminal laws, for example, deviation from which does not automatically do an injustice to anyone else (as I believe Hart would agree). We have no a priori reason to assume that law constitutes a standard of justice, regardless of what it requires or allows. To assume that injustice is (p.117) done by official deviation from the law one is charged with administering is to assume something like the following: that officials are under a moral obligation of fidelity to law, violation of which constitutes an injustice. But this is not necessarily the case. One can be coerced into serving without assuming an obligation of fidelity to law. And even a genuine undertaking of fidelity to law is not capable of generating an obligation to apply outrageously unjust and inhumane laws. In favorable circumstances law can provide norms that justice requires us to respect. But to claim that the law itself is the standard of justice in the administration of the law is to exaggerate law’s moral credentials. All of this is quite surprising in view of Hart’s clear commitment to detached moral criticism of law, his explicit acknowledgment that law is capable of the Page 5 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 most outrageous injustice and oppression, and his analysis of obligation in terms of reflective critical attitudes.

II Under what conditions might there be a moral presumption in favor of obedience to law? One often hears talk of a “social contract.” I believe that idea is best explained in terms of a view, now widely accepted, which was developed by Rawls following a suggestion by Hart: fairness (or fair play) requires that we comply with law when our turn comes, because we benefit from others’ compliance with law. (See Rawls 1958 and Hart 1955.) We should not be “free riders,” taking the benefits without assuming our share of the burdens. Other grounds are occasionally suggested for a moral presumption favoring obedience to law, but a closer look at this argument for compliance will suffice to make some general points. It will be useful here to be guided by Rawls’ further reflections on the fairness argument for obedience to law. In A Theory of Justice Rawls distinguishes the “natural duty” that requires support of just institutions from “fairness-based obligations” (Rawls 1971: 113–16). The natural duty applies unconditionally, and it applies automatically to all persons. It requires one to promote and support institutions that are just, but it does not argue generally for obedience to law unless the law itself is just. Such a duty would seem to require non-compliance with law if that would help to replace unjust institutions with more just institutions. It might also be (p.118) understood to argue against cooperation with unjust law whenever that could reasonably be expected to prevent or minimize an injustice. Fairness-based obligations are different. They apply conditionally, not automatically to all persons. A fairness-based obligation arises within the context of a cooperative or coordinated practice which is both mutually beneficial and fair. If a practice is not both beneficial and fair, then some participants are required to comply without any reasonable expectation of gains that are morally commensurate with their contributions, and those individuals cannot be under a fairness-based obligation to comply. Rawls and others assume that a fairness-based obligation arises only for one who has deliberately sought out the benefits that derive from such a practice. Thus Rawls believes that people who have voluntarily sought and achieved public office and who enjoy special benefits as a result, including political power, have an obligation to respect the rules of the relevant institutional framework. This may be too restrictive. It may be that one need not have deliberately sought out such benefits but that willing acceptance of them with the understanding that this entails a commitment to cooperate is sufficient for one to acquire a fairness-based obligation to comply with the rules. It does not matter for present

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Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 purposes. My point now is that the relevant conditions are not generally satisfied within political communities. If that is right, it may be the case that some members of political communities— those who mainly benefit from coordinated practices—are under a limited fairness-based obligation to comply with the law. It does not follow, and it is not generally true, that all members of political communities fall under such an obligation. For we are concerned with a moral requirement that applies not only to privileged members of political communities—not only to those who benefit specially from existing arrangements—but to all community members. And (aside from the fact that community membership may be less than fully voluntary) I do not believe it is generally true that all members of political communities enjoy a fair share of benefits from the legally supported institutional arrangements. Without assuming that Rawls’ theory of justice is sound, it may be useful to pursue this matter further within his familiar theoretical framework. Now, no one claims that existing laws and institutions satisfy perfectly the demands of justice. If perfect justice under law were a necessary condition for a moral presumption favoring obedience to law, it would be absurd to endorse the presumption. Any plausible version of (p.119) the claim that there is a moral presumption favoring obedience to law must assume that compliance can be morally required even when the law is morally imperfect. I think it is reasonable to develop this idea further by saying that compliance with law can be morally required only when the political system as a whole meets some minimal moral standard—when the system crosses some threshold of moral decency. If so, one who believes that a presumption favoring obedience to law truly exists within a particular political community must suppose that the community has achieved the relevant measure of moral decency. And a theorist who believes that the moral presumption normally obtains within political communities must assume that political communities normally achieve that measure of moral decency. Rawls provides a term we might to apply to such cases: he speaks of “nearly just” societies. Let us say that the idea of a moral presumption favoring obedience to law is limited in scope to nearly just societies.5 I find no evidence of a consensus regarding the relevant condition of moral decency, nor am I aware of any systematic treatment of the subject. But I can suggest how the gap between moral perfection and moral decency might begin to be filled (as it is, for example, by Rawls). Because other social institutions are substantially subject to control by law, when law itself is effectively subject to control by all those whose interests justice requires us to consider (in other words, when there is effective popular sovereignty), it may be thought that the community has taken the most important steps towards insuring justice. In fact, Page 7 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 the development of genuine political democracy seems often to be regarded as sufficient to generate a moral presumption in favor of compliance with the law. Reasoning like this might help to account for the generous assumptions made about political communities that are conventionally described as “democratic.” One way to think about the conditions necessary or sufficient for the existence of a moral presumption favoring obedience to law is in terms of a (p.120) reasonable degree of satisfaction of the principles of political, social, and economic justice. In the Rawlsian scheme, one pursuing the present point would stress reasonable satisfaction of the principle that requires the establishment and effective enjoyment of equal maximum rights of political participation. I do not believe that we have plausible grounds along these lines for assuming that there is a moral presumption favoring obedience to law in our political communities. Few if any communities could plausibly be said to have had political systems sufficiently democratic to compensate for their substantive injustice. We should not be misled here by political rhetoric or the terminology favored by many political theorists. Under their conventions, a society counts as democratic if there is more or less widespread adult suffrage. Ancient Athens has been called a democracy although only a small fraction of its adults had even formal rights of political participation; women, slaves, and resident aliens—the vast bulk of Athenian adults—lacked political rights. The US has been called a democracy throughout most of its legal existence although for much of that time a comparably large portion of its adult population had no rights of political participation. The franchise has gradually been extended so that most American adults now possess formal rights of political participation. But experience shows that the franchise does not insure effective control by eligible voters. Rawls observes: Historically one of the main defects of constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained. Disparities in the distribution of property and wealth that far exceed what is compatible with political equality have generally been tolerated by the political system. Public resources have not been devoted to maintaining the institutions required for the fair value of political liberty…Political power rapidly accumulates and becomes unequal; and making use of the coercive apparatus of the state and its law, those who gain the advantage can often assure themselves of a favored position. Thus inequalities in the economic and social system may soon undermine whatever political equality might have existed under fortunate historical conditions. Universal suffrage is an insufficient counterpoise; for when parties and elections are financed not by public funds but by private Page 8 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 contributions, the political forum is so constrained by the wishes of the dominant interests that the basic measures needed to establish just constitutional rule are seldom properly presented.6 (p.121) I see no reason to disagree. But if Rawls is right, it is doubtful that any society has ever achieved the threshold of moral decency required to sustain a moral presumption favoring obedience to law.

III I mentioned at the start that legal theorists sometimes present the law too favorably by placing legal requirements on the same level as moral obligations. Here is what I mean. Like Bentham, John Austin conceived of obligations as generated by coercive requirements and prohibitions. Unlike Bentham, however, Austin acknowledged moral obligations. This would have enabled him to embrace the idea of a moral obligation to obey the law. He did not do that, but he did achieve a similar result. Austin distinguished three kinds of “law” and held that each imposes obligations. He treated “divine law” as the proper basis for appraising human law (Austin 1954: 128). The obligations created by divine law would seem to correspond most closely of all to our usual notion of moral obligation. But Austin’s analysis of obligation in terms of coercive commands had perverse implications. Austin explained that the commands of divine law are superior to those of “positive law” and “positive morality” because God has more power to punish than any human (Austin 1954: 24). This implies that moral obligations are no better than coercively imposed requirements. One who wished to disparage the idea of moral obligation might understand it in this way. But Austin’s insistence on the separation of law and morals and his distinguishing divine law from positive morality imply that his purpose was not to discredit moral obligations. It was at least in part to allow for a distinction between conventional wisdom and sound moral judgment. Viewed in one way, then, Austin’s analysis of obligation illicitly lowers morality to the level of coercively imposed requirements. Viewed another way, Austin’s theory illicitly raises positive law to the level of sound morality. For, on his view, legal requirements are just as genuinely obligations as those laid down by divine law. As Hart reminds us, however, to ascribe an obligation involves a reflective, critical attitude: it is to hold that someone who fails to perform as the obligation requires is justifiably (p.122) subject to criticism.7 It is to hold that failing to perform entails the judgment that one has acted wrongly.8 These are features of beliefs about obligations generally.

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Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 Because Austin assumes that legal requirements constitute obligations, he seems committed to the claim that one’s failure to perform as the law requires entails the judgment that one has acted wrongly, even when the law in question is outrageously unjust and morally indefensible. That is implausible. If the law is unjust and there is no moral obligation to obey it, then one’s failure to perform as the law requires does not justify criticism of one’s conduct, not even to the slightest degree. One way of reading Austin’s theory, then, is as exaggerating the moral character of law and thus encouraging a favorable attitude towards obedience to law. This does not comport well with his insistence upon the separation of law and morals. Austin is not alone. Despite Hart’s incisive criticism of Austin’s analysis of obligation, his own analysis has similar implications. Hart links obligation with reflective, critical attitudes. But he also treats obligations as creatures of positive law and conventional morality. Hart holds that there are no necessary moral limits on what can count as positive law, and that prevailing social standards need not survive moral criticism. If we add to this Hart’s point about reflective critical attitudes, we find him committed to claims much like Austin’s. If legal requirements were by their nature genuine obligations, one would automatically be subject to sound criticism for failing to comply with them, even when the requirements were outrageously unjust and morally indefensible. Given Hart’s analysis of obligations in terms of reflective, critical attitudes, however, legal requirements do not automatically qualify as genuine obligations. That is because one is not automatically subject to sound criticism for failing to comply with them (not even “prima facie”). One is subject to such criticism only if the law itself is just or there is a moral obligation to comply with it, neither of which need be the case. (p.123) The implications of Hart’s theory of obligation do not comport well with his general attitude towards law, and I do not believe that it expresses his considered view on the subject. It is noteworthy, therefore, that in The Concept of Law Hart became committed to a position which exaggerates law’s claim to respect.

IV I turn now to similar problems in the work of a contemporary theorist who is not usually classified as a positivist: Ronald Dworkin. This exercise might seem unnecessary. For Dworkin has frequently been perceived as a champion of “natural law” jurisprudence,9 which has often been charged with a wildly excessive regard for the law.10 Until ten years ago, Dworkin’s writings did suggest such a position.

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Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 Part of the point of my discussion up to now has been to place Dworkin’s theory in proper perspective. Dworkin has a generously favorable view of law. But his view is not radically different from views that have been assumed by leading legal positivists. The difference is that Dworkin does not merely assume but explicitly endorses a favorable view of law. I shall argue that Dworkin offers inadequate support for his generously favorable view of law. As I have suggested, I do not believe that adequate support is available. Dworkin’s theory of legal interpretation requires that the enforcement of existing law enjoy some measure of moral justification. When law cannot be justified at all, his theory does not apply (Dworkin 1986: 105–8). But Dworkin assumes that “legal argument takes place on a plateau of rough consensus that if law exists it provides a justification for the use of collective power against individual citizens or groups” (Dworkin 1986: 108–9). In other words, law and its enforcement are normally justifiable, at least to some degree. According to Dworkin, substantive rules of law should be interpreted so that they most effectively serve principles that place past official practice in (p.124) the best light. These principles are supposed to justify past authoritative decisions. This approach would seem to enhance law’s capacity to justify new decisions. Because law is far from perfect, however, that aim is difficult to achieve. Dworkin reduces the difficulty in two complementary ways. First, he does not claim that law should always be enforced. He recognizes that there can be good reason not to enforce it, and he wishes to account only for defeasible justification.11 Second, he believes that principles can provide some measure of justification for decisions when they express plausible but unsound moral positions.12 Consider how this theory applies to common law adjudication. Dworkin holds that common law decisions can be justified only by invoking moral principles, but he does not assume that the common law is perfect. Here is a situation that the theory must cover. Suppose that personal injury law firmly embraces the doctrine of contributory negligence. The victim of another’s careless conduct is entitled to compensation only if she has not contributed to her loss by her own carelessness. Imagine that Alice was very careless and as a result Barbara suffered greatly, but that if Barbara had not been slightly careless she would have suffered slightly less. Under the doctrine of contributory negligence, Barbara has no valid legal claim at all to compensation from Alice. This example suggests why courts rejected the doctrine. Dworkin presumably regards the doctrine of contributory negligence as providing some measure of justification for decisions because it is a plausible moral conception: it requires compensation justly in many cases (where the injured party has not herself been negligent) and it draws a plausible distinction based on a relevant consideration (faulty conduct by the injured party). As Page 11 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 contributory negligence is a familiar feature of recent law and Dworkin suggests that all decisions under our recent law enjoy some measure of moral justification, he seems committed to the view that a judgment denying Barbara compensation is justifiable to some degree. But the fact that contributory negligence justly requires compensation in other cases would not seem to confer any measure of justification on its (p.125) application in this sort of case. That fact seems irrelevant. It has no argumentative force against Barbara’s objection to application of the doctrine. The problem for Dworkin’s theory is to explain how justification is conferred on those applications of non-ideal principles that specifically embody their moral defects. He does not explain this. If non-ideal principles alone cannot do the moral work, perhaps Dworkin’s principle of “political integrity” can bridge the gap. Political integrity is the property of a system in which courts view past decisions as commitments to moral principle. It requires courts to interpret past decisions in terms of principles that are capable of justifying them. This is an attractive feature of Dworkin’s theory, for it would seem to enhance the capacity of law to justify new decisions. As Dworkin appreciates, however, this approach cannot guarantee that authoritative decisions enjoy any measure of justification at all. Interpretation is morally limited by the deficiencies of past authoritative decisions. Political integrity is viewed by Dworkin as a genuine value, and, insofar as legal practice embodies that principle, perhaps its value can be thought somehow to contribute to the justifiability of decisions made within such a system. Dworkin claims that widespread acceptance of political integrity promotes the most desirable form of political community, in which each person accepts responsibility of equal concern for all other members, and because the constitutional foundation of such a community is most likely to generate a genuine obligation to obey the law (Dworkin 1986: 190–1). Suppose these claims are sound—that general acceptance of political integrity would have those desirable consequences. I do not see how that helps to justify decisions representing the morally deficient aspects of existing law. These consequences do not seem relevant to the justification of a judgment denying Barbara compensation. Let us turn now to the statutory context. Dworkin appears to hold that unjustifiable statutes can justifiably be enforced. He does not explain how, but he suggests that a decision which cannot be justified directly, on its merits, may still be justifiable indirectly. We can construct an example from the following case.13 Mr. Daniels purchased a bottle of lemonade from Mrs. Tarbard at her pub. The lemonade contained Page 12 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 carbolic acid, and when Mr. and Mrs. Daniels drank the (p.126) lemonade they suffered accordingly. Mr. and Mrs. Daniels each sued the manufacturer of the lemonade as well as Mrs. Tarbard. Different standards of liability applied to the two defendants. On the one hand, although the acid must have combined with the lemonade in the bottling plant, Judge Lewis (applying the then-current legal standard of manufacturers’ liability) held the manufacturer free of liability because he found that the plaintiffs had failed to establish that defendant’s negligence. On the other hand, although Judge Lewis acknowledged that Mrs. Tarbard was “entirely innocent and blameless in the matter,” he held her liable to Mr. Daniels because the Sale of Goods Act imposed strict liability. To make this into a suitable example for our purpose, let us suppose Judge Lewis believed that his judgment against Mrs. Tarbard was not only required by law but also morally defensible. Now, he might have believed that the decision was regrettable but fair, but his words suggest that he believed it was unfair to Mrs. Tarbard, and this is the possibility we need to consider. If Judge Lewis believed that his judgment was morally defensible although unfair to Mrs. Tarbard, then he must have believed that it could be justified indirectly. He might have regarded the Sale of Goods Act as justifiable, despite such regrettable applications. For present purposes, however, we should imagine that he regarded the strict liability provision as unfair. That brings us to the need for a justification of the judgment against Mrs. Tarbard based on the notion that unfair statutes can justifiably be enforced (at least sometimes) even when they have unfair applications. In Law’s Empire Dworkin suggests that indirect justification in a statutory context assumes a fair distribution of political power. He does not develop the point, but he once suggested such an argument in the following way: The constitution sets out a general political scheme that is sufficiently just to be taken as settled for reasons of fairness. Citizens take the benefit of living in a society whose institutions are arranged and governed in accordance with that scheme, and they must take the burdens as well, at least until a new scheme is put into force either by discrete amendment or general revolution. (Dworkin 1978: 106) This resembles the Rawlsian fair play argument and it is limited accordingly. It is plausible only if we assume that unjust laws are aberrations. It is implausible when applied to someone who suffers injustice systematically under the law. (p.127) Consider Sims’s Case (61 Mass. 285 [1851]). Under the 1850 Fugitive Slave Act, Thomas Sims was taken prisoner in Boston and held for a hearing in which he would be barred from testifying. After receiving the slave-owner’s Page 13 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 evidence, the hearing officer could authorize the transportation of the prisoner to the slave-owner’s locale. When these proceedings were challenged in the Massachusetts courts, Chief Justice Shaw accepted the federal courts’ judgment that the Act was authorized by the Constitution’s Fugitive Slave Clause. He defended the clause as essential to the constitutional settlement and as justifiable because it served the interests of the several states that formed the union. Suppose that Shaw was correct in his claim that protecting slavery under the Constitution had secured benefits. Thomas Sims was no beneficiary of the arrangement, nor was he meant to be. Shaw does not suggest that the interests of African Americans were overridden by competing interests, nor could mere marginal utility calculations have justified the retention of chattel slavery. Shaw suggests, rather, that the interests of African Americans were irrelevant to the issue. Shaw’s arguments seem incapable of helping to justify the decisions against Sims. And it is unclear how any available considerations could have helped to justify the enforcement of American slave laws against African Americans. Dworkin originally suggested that decisions for slave-owners under the Fugitive Slave Act might enjoy some measure of justifiability (Dworkin 1982: 186). He was understandably uncertain about the point. He did not explain how it could be defended, and I see no prospect of success. In Law’s Empire, the principle of political integrity displaces fairness. Political integrity might argue indirectly for the enforcement of unjust statutes, if the legislative process satisfies plausible principles of representative democracy. That condition was not satisfied. In 1850 the vast majority of adults lacked political rights. The disenfranchised included almost all who had been disenfranchised in 1789—not only African Americans but also women, Native Americans, and aliens; only property qualifications for adult white males had been relaxed. That system satisfied plausible principles of representative democracy if it is plausible to suppose that democracy encompasses rule of, by, and for a privileged minority. Not otherwise. This is an extreme case, but I have suggested how it might be generalized. I see no reason to believe that persons who are victims of systematic injustice which is either imposed or condoned by law, who are excluded from effective participation in the political system, fall under a moral (p.128) presumption favoring obedience to law, or that the enforcement of such laws against them enjoys some measure of moral justification. I shall not speak of other societies, only of my own. Three observations may be sufficient. First, it is no secret that American society encompasses readily identifiable groups who are denied equal access to economic and social benefits. These groups include not only those who suffer from the legacy of racist discrimination but also millions of European Page 14 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 Americans who are simply poor. Secondly, their economic and social disadvantages preclude their effective political participation. Third, there remains a significant measure of legally imposed (not merely tolerated) discrimination within American society. The most obvious example is discrimination against lesbians and gay men, who comprise a significant segment of the community.14 So it seems implausible to suggest that a moral presumption favoring obedience to law applies generally to members of the American political community. If that community is not atypical, then it is implausible to suggest that a moral presumption favoring obedience to law normally obtains within political communities. Dworkin appears to assume the contrary, and thus he appears to make excessively generous assumptions about the justifiability of real law. I do not mean to suggest that our political communities are morally bankrupt. Nor do I mean to ignore moral progress that has been made. But the elimination of some injustices does not generate a moral presumption favoring obedience to law which applies to current victims of injustice.

V Two final comments, the first on Dworkin’s notion of political integrity. It requires “consistency in principle”: consistency between past authoritative decisions and new decisions, mediated by principles that place past decisions in the best light possible. Dworkin thinks of law as capable of having integrity because he personifies law, thinking of all authoritative decisions as if they were made by one single individual. The relevant notion of integrity is normative, not metaphysical. When applied to ordinary individuals, this notion connotes (p.129) more than mere consistency in judgment. No less important is the consistency of one’s conduct with one’s moral commitments. But Dworkin’s discussion of integrity ignores the problem of how well official conduct adheres to announced or interpreted law. The systematic deviation of official conduct from law seems to me a major problem. We have good evidence that in the US, for example, members of disadvantaged groups, such as African Americans, are disadvantaged further, in arrests, police handling, convictions, and sentencing under the criminal law. Dworkin’s neglect of this aspect of integrity may help to explain his excessively favorable attitude towards law. Second, to assume that there is normally a moral presumption favoring obedience to law is, I believe, to view law from the perspective of its beneficiaries. In one important respect this is a morally commendable attitude to take. For it is to accept moral responsibility towards other members of one’s community, including others to whom one is not linked by affection or concern.

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Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 In another respect, however, to assume that there is normally a moral presumption favoring obedience to law is to turn a blind eye to the injustices sustained by law and their victims. It is to assume that no significant injustices normally exist, that political communities are by and large nearly just, so that the injustices that do arise are aberrations. It is to ignore the question, what must be done to help one’s society to cross the threshold of moral decency. Some of the injustices that we must face involve explicit, deliberate legal provisions, such as laws denying benefits to, limiting the freedom, and attacking the dignity of some members. Such discrimination is neither invisible nor accepted by its victims, who normally lack effective recourse through the political system. Other injustices are easier to overlook because they have largely been taken for granted throughout legal history. I am thinking now of the systematic deprivations suffered by vast members of our populations—those who are economically disadvantaged. Poverty is a persistent and pervasive problem, and its first victims are children, who cannot plausibly be held responsible for their condition. In my American political community, millions of children suffer lack of food, shelter, medical care, and education, when the resources are available. The law that sustains such social arrangements is not inherently evil. But neither can it claim to merit our respect. Notes:

(1) The Austin Lecture presented to the 1992 Conference of the UK Association for Legal and Social Philosophy, the University of Sheffield, April 2, 1992. This paper incorporates some points that are developed further in Lyons 1993a. (2) Bentham presumably believed that the likely costs of disobedience normally exceed by far its likely benefits. That may be enough for a utilitarian, but it is unclear why Bentham should have assumed even that much was true. (3) Hart 1994: 210. Notice that Hart speaks of law as being too iniquitous not only to obey but also to apply. (4) Hart’s theory of the “minimum content of natural law” (1994: 193–200) implies that in stable social systems some persons have self-regarding reasons to comply with law; it does not imply that legal systems generate moral reasons to comply. (5) Rawls applies this term to societies that are “well-ordered for the most part but in which some serious violations of justice nevertheless do occur” (1971: 363). He calls a society “well-ordered when it is not only designed to advance the good of its members but…(1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles” (1971: 4– Page 16 of 17

Normal Law, Nearly Just Societies, and Other Myths of Legal Theory 1 5). I do not assume that these conditions determine “near justice” for our immediate purposes; I leave that question open. (6) Rawls 1971: 226. I am grateful to Alan Gilbert for reminding me of this passage. (7) Hart 1994: 82–3. Hart links the reflective critical attitude to ascriptions of obligation not directly but by claiming that obligations are creatures of social rules (cf., e.g., 1994: 79–88). Consistently with this approach, Hart strongly suggests that, unlike moral ideals, moral requirements are creatures of social rules (1994: 176). (8) A judgment subject to reversal if one has adequate justification for nonperformance. (9) Dworkin (1982) encouraged this. (10) Natural law theories are said to hold that an unjust law is not a law. The charge against Aquinas is rebutted by Kretzmann 1988. Kretzmann does not consider the apparent conflict between Aquinas’ explicit reference to unjust law and his definition of law which on Kretzmann’s account implies that laws are essentially just. (11) See Dworkin (1986: 108–13), on the “grounds” and “force” of law. (12) When we assume that we have a right to compensation for injuries suffered as a result of others’ faulty behavior, we do not suppose that the system of property under which we owned what was lost was morally perfect. Our assumption may be mistaken; but our making it renders Dworkin’s suggestion plausible. (13) Daniels and Daniels v. R. White & Sons, Ltd., and Tarbard ([1938] 4 All E.R. 258). (14) See e.g. Robson 1992. I am grateful to the publisher, Nancy Bereano, for providing me with pre-publication proofs.

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Moral Judgment, Historical Reality, and Civil Disobedience 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Moral Judgment, Historical Reality, and Civil Disobedience 1 David Lyons


Abstract and Keywords Thoreau’s famous essay on civil disobedience places his own tax resistance within a critique of government in general and the ante‐bellum US government in particular. This essay interprets and defends Thoreau’s conception of political responsibility, including his rejection of a blanket duty to obey and his endorsement of a duty to disobey (the latter an important idea, which is embraced by other prominent and articulate resisters, such as Gandhi and King, but that is neglected in the academic literature on civil disobedience). Given US policies on slavery, its war on Mexican, and its treatment of Native Americans, Thoreau renounced his allegiance to the government. Although he seemed to suggest that one might simply deny complicity in the government’s injustices, he insisted that persons and peoples have an absolute duty to undo the wrongs they have done, whatever the cost Keywords:   civil disobedience, political obligation, thoreau, gandhi, king, slavery, colonial rule, jim crow

This article concerns two strands of civil disobedience theory. One involves the moral judgment of theorists. The other concerns moral judgments that theorists ascribe to those who engage in civil disobedience. Our philosophical literature on civil disobedience is largely a product of the late 1960s and early 1970s. Responding to critics of the civil rights and anti-Vietnam War movements, philosophers argued that unlawful protest can sometimes be justified. For a number of these writers, justifying civil disobedience means Page 1 of 17

Moral Judgment, Historical Reality, and Civil Disobedience 1 overcoming a serious moral objection. They assume we have a moral obligation to obey the law—in other words, political obligation.2 Regarding this first strand of civil disobedience theory, I argue that the assumption of political obligation is morally untenable. (p.131) Political obligation has recently received close philosophical scrutiny, which reveals that various arguments for it are exceedingly problematic.3 These criticisms do not address the grievances of civil disobedients. My strategy is different. I propose a moral condition for political obligation, and I argue that this condition is clearly violated in paradigmatic cases of civil disobedience. As a consequence, we cannot assume civil disobedience requires moral justification, because we cannot assume there is a moral obligation to obey the law. Regarding the second strand of civil disobedience theory, some theorists assume that civil disobedients consider the prevailing system as “reasonably just” and accordingly seek limited reform, not radical change.4 This interpretation might seem to explain why civil disobedients accept arrest and punishment: their submission signifies acceptance of the prevailing system and acknowledges a moral obligation to obey the law. I argue that this view of civil disobedients is historically untenable. The issue might seem to turn uninterestingly on how civil disobedience is delimited by theorists. In everyday speech, any principled disobedience to law may be counted as civil disobedience.5 But theorists often define it narrowly, distinguishing civil disobedience from other forms of principled non-compliance with law, and they may have perfectly good reason to do so.6 But when theorists regard as civil disobedience only acts of individuals who accept the prevailing system (and presumably recognize an obligation to comply with its laws), they impute such an outlook to paradigm practitioners of civil disobedience, such as Henry David Thoreau, Mohandas K. Gandhi, and Martin Luther King, Jr.7 The result is a false picture of historically significant resistance.8 (p.132) Thus my criticisms of civil disobedience theory center on three paradigm resisters and the targets of their resistance: chattel slavery, British colonial rule, and Jim Crow. I argue that none of these three regarded the prevailing system as “reasonably just” or accepted a moral presumption favoring obedience to law, and that their views were sound. I am not concerned here with the definition of civil disobedience. I am concerned with the fact that some theorists embrace untenable judgments of American society and a false picture of political resistance. Page 2 of 17

Moral Judgment, Historical Reality, and Civil Disobedience 1 Section I discusses the idea of political obligation that is implicit in civil disobedience theory. Section II argues that political obligation could not plausibly be imagined to have existed in the relevant settings. Section III argues that none of the paradigm resisters had a favorable appraisal of the prevailing system and that none endorsed political obligation. Section IV notes some arbitrary lines drawn by civil disobedience theory and seeks to explain the untenable judgments found within it.

I Theorists who do not explicitly endorse political obligation may assume that civil disobedience is morally problematic and requires moral justification. If they do not suppose that obedience to law requires justification, they assume a moral obligation to obey the law. This can be seen as follows. Civil disobedience may be understood broadly, as principled non-violent disobedience to law. But theorists commonly understand it narrowly, as, say, public protest aimed at persuading others that a law or governmental policy is morally indefensible and must be changed, performed by someone who respects the prevailing system and willingly suffers the legal consequences of disobedience. On either a broad or narrow definition, the properties of civil disobedience other than disobedience to law are, and are regarded as, morally unobjectionable.9 The only plausible explanation for this set of views—that non-violent civil disobedience requires justification but obedience to law does not—is a moral presumption favoring obedience to law (political obligation). (p.133) I say “moral presumption” because political obligation is reasonably understood by theorists to be defeasible, not absolute. If it exists, moral justification is required for disobedience to law. Theorists commonly assume that adequate justification may be available, in which case political obligation is outweighed. It seems reasonable to suppose that just laws merit respect. But the same cannot be said of unjust laws. Because political obligation argues for obedience to both just and unjust laws and unjust laws do not automatically merit respect, theorists understand that political obligation itself requires justification. There may be sound arguments for political obligation, but they would be limited by the principles they invoke. Consent principles, for example, apply when, but only when, there is genuine consent. My concern here is with moral limits to such arguments. I assume that one cannot acquire a moral obligation to do certain things, such as participate in genocide or force someone into slavery, simply by consenting to do so. Like limits presumably apply to open-ended commitments, such as consenting to abide by the decisions to be made by some group of persons, which might

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Moral Judgment, Historical Reality, and Civil Disobedience 1 include decisions to engage in genocide or to enslave others. Thus consent arguments for political obligation are morally limited. Champions of the fairness argument believe that one is obligated to comply with social rules whose benefits one has sought and enjoyed. They apply the fairness principle to social systems as a whole.10 But fairness does not require one to acquiesce in an unjustly small share of benefits or an unjustly large share of burdens.11 Fairness arguments for political obligation assume a just distribution of benefits and burdens. Such limits have their limits. If the point is to argue for obedience to unjust laws, we must assume that political obligation is possible in systems that are not perfectly just. To allow for the possibility that an obligation based on fairness might call for compliance with unjust laws, a fairness argument for political obligation cannot require a perfectly just distribution of benefits and burdens. (p.134) Thus theorists assume that political obligation can obtain when a system is not perfect, but is (as may be said) “nearly just,” “reasonably just,” or “fundamentally just.”12 Such terms suggest the truism on which I shall now focus: there are limits to the injustice that is compatible with political obligation. Theorists do not explain what qualifies as a “nearly just,” “reasonably just,” or “fundamentally just” society, and I shall not try.13 I shall work instead from the other direction. My argument requires one limit on political obligation (there may well be others). It is suggested by Rawls when he says that “in the long run the burden of injustice should be more or less evenly distributed over different groups within society, and the hardships of unjust policies should not weigh too heavily in any particular case.” Rawls then observes that “the duty to comply is problematic for permanent minorities that have suffered from injustice for many years” (1971: 355). That would seem a “provisional fixed point” of political morality.14 The proposition might be framed more generally: political obligation cannot coexist with significant, systematic injustice that is deeply entrenched. Although there can be reasonable disagreement about the application of these terms to some cases, that will not affect the present argument. The three examples I shall later discuss provide clear illustrations of deeply entrenched, significant, systematic injustice. Before turning to the main argument, I should emphasize that I am not calling for disobedience to law. Political obligation is not the only moral factor favoring compliance. Other considerations can provide strong reason to abide by law, even when there is significant, deeply entrenched, systematic injustice.

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Moral Judgment, Historical Reality, and Civil Disobedience 1 Here are some examples. Some moral principles argue, in effect, for compliance with those laws that prohibit immoral behavior. One does not normally have the moral right to assault, cheat, coerce, harass, imprison, or kill another human being. Some moral principles endorse commitments to (p.135) obey morally defensible subsets of the law. A doctor, for example, might be morally obligated to abide by a reasonable, legally enforced code of conduct for his profession. Such arguments do not assume political obligation. Even those who are treated unjustly can have moral reason to comply with the culpable laws—when, for example, disobedience would expose innocent persons to risks they have not agreed to assume. And we can have moral reason to support a regime that is profoundly unjust—when it is endangered, for example, by forces that threaten to impose much worse injustice. As these comments suggest, political responsibility goes well beyond an obligation to comply. Obedience is neither central nor essential. Whether our political responsibilities involve an obligation to obey depends on the character of the system and the circumstances. By the same token, the absence of political obligation does not prevent us from identifying with our community and its people. Neither affection for nor solidarity with others is contingent upon respect for the prevailing system, loyalty to the regime in power, or acceptance of political obligation.

II I turn now to the three examples and begin with what is presumably the easiest case. 1. Chattel Slavery. Thoreau’s chief concern was slavery in the United States.15 Its atrocities began with the commercial trade in slaves, in which vast numbers of Africans lost freedom, family, and homeland, and very many their lives, under horrible conditions. Survivors of the Middle Passage and their descendants were then treated as property to be used at their owners’ pleasure or as outlets for their owners’ cruelty. Slaves’ economic value was the principal check on slavery’s brutality. When the international slave trade was outlawed and reduced, it was supplemented by an internal trade built upon the systematic “breeding” of slaves. Slavery was, of course, not a peripheral institution of ante-bellum America. Though gradually abolished by Northern states within the first half of the nineteenth century, the practice of buying, selling, oppressing, (p.136) and super-exploiting a distinguishable class of human beings had by then existed for two hundred years, and its racist legacy pervaded American society. (See, e.g., Litwack 1961; Curry 1981.) Trade in slaves and their products enriched

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Moral Judgment, Historical Reality, and Civil Disobedience 1 Northern as well as Southern society. New England’s industrial development rested squarely on manufacturing yarn and cloth from Southern cotton. I assume there could be no moral presumption favoring obedience by slaves to laws that support their enslavement.16 That precludes political obligation. Some federal and state laws under slavery were no doubt worthy of respect, and the circumstances of specific actions could create good reasons to comply with laws supporting slavery, but all that is compatible with the present point. 2. Colonial rule. Gandhi resisted British colonial rule first in South Africa and then in South Asia.17 Consider Gandhi’s view of the latter case: The British made India bear the cost of unnecessary wars, “maintained a ruinously costly civil and military administration, destroyed indigenous industries and de-industrialised India, ignored its agricultural development, caused massive unemployment and famine, and in general mercilessly exploited it.” The British, Gandhi argued, “sapped the foundations of Indian civilisation, de-nationalised the Indians, ridiculed their society and religion, and foisted their values on them” (Parekh 1991: 127–8). British rule was moreover racist, degrading, violent, and brutal. Now consider the following contrast. In the US it is widely assumed that by 1776 Britain had forfeited any right to rule its American colonies. This judgment is based largely on Britain’s efforts to tax them. Britain’s relations with its own colonists were benevolent by comparison with its subjugation of indigenous peoples in Africa and Asia. British colonial rule there involved significant, deeply entrenched, systematic injustice. Neither Africans nor Asians could plausibly be regarded as morally obligated to accept British rule and obey laws that supported their subjugation. Some British colonial laws were no doubt worthy of respect, and the circumstances of specific actions could generate (p.137) reason to comply with laws supporting British rule, but that is compatible with the present point. 3. Jim Crow. King’s resistance activities were primarily directed against the system known as Jim Crow.18 This was not primarily an arrangement of racial separation but a system of white supremacy—degrading, exploitative, and secured by terror. After slavery was abolished, the federal Constitution was amended to secure basic rights for African Americans. In 1877, however, the federal government aborted efforts to enforce those rights. Violence and fraud were permitted to eliminate the remnants of Reconstruction and white supremacy was soon reestablished. State laws and constitutions were modified to exclude African Americans from the political process. Protections against rape, kidnapping, harassment, and murder were denied African Americans. All that was possible

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Moral Judgment, Historical Reality, and Civil Disobedience 1 because of unlawful behavior by officials, the acquiescence of some, and the indifference of others.19 The United States was publicly committed to due process, equal protection, and the rule of law, but for many decades government sanctioned their brutal, systematic denial to African Americans. Local officials would rarely interfere with, no less prosecute, violence against blacks; they were frequently involved. And the federal government would not interfere. For African Americans, the rule of law was a false promise. The Jim Crow system involved significant, deeply entrenched, systematic injustice. It is implausible to hold that a sound moral presumption favored obedience to all the laws of the land, including those that supported Jim Crow.20 Some federal and state laws were worthy of respect, and the circumstances of specific actions could generate reasons to comply with Jim Crow laws, but that is compatible with the present point. Jim Crow provides a third refutation of the notion that civil disobedience can be assumed to require moral justification. Insofar as civil disobedience theory assumes that political resistance requires moral justification even in settings that are morally comparable to Jim Crow, it is premised on serious moral error.21

(p.138) III I turn now to the notion that those who engage in civil disobedience assume that their unlawful conduct requires moral justification. True civil disobedients are supposed by theorists to regard the systems under which they live as morally flawed but basically just and requiring modest reform rather than fundamental change. Evidence of this outlook is seen in the disobedients’ non-violent methods and use of moral suasion rather than violent rebellion. Their submitting to arrest and punishment is taken as further evidence of respect for legal authority and recognition of a moral obligation to obey. Theorists who mention specific resisters generally assume this is true of King; many include Gandhi; some add Thoreau. (See note 6.) Thoreau and Gandhi are of course very closely associated with the idea and practice of civil disobedience, as the term is used in everyday speech. Theorists do not deny that obvious point; and I do not object to their restricting the term “civil disobedience” to just one species of principled resistance. My concern is the resulting suggestion that the most respected resisters favorably appraised their systems and embraced a moral presumption favoring obedience to their most unjust laws. Given the settings of their resistance, reviewed in Section II, it would not have been reasonable for Thoreau, Gandhi, or King to have regarded the prevailing system as sufficiently just to support political obligation. As these were not

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Moral Judgment, Historical Reality, and Civil Disobedience 1 unreasonable men, the second part of my argument might end here. But, to strengthen the argument, I shall consider their views more fully. Thoreau, Gandhi, and King believed, with good reason, that their systems required fundamental change. They did not regard themselves as morally bound to obey unjust laws. No such notion framed the dilemmas they confronted when contemplating unlawful resistance. Their acceptance of legal sanctions signified a strategic, not a moral, judgment. Gandhi’s and King’s rejection of violence reflected both moral scruples and prudent judgment, not an outlook favoring modest reform.22 (p.139) Violence was not a promising means of effecting the sort of social changes they sought, which included the support of those who were bound to lose their privileged status in a more equitable society. 1. Thoreau.23 In his lecture on civil disobedience,24 Thoreau linked his refusal to pay the Massachusetts poll tax to his state’s support of the federal government’s favorable policies towards chattel slavery. That essay also reveals his view that government possesses no moral authority. “Government is at best an expedient; but most governments are usually, and all governments are sometimes, inexpedient.” Now conducting an aggressive, expansionist war against Mexico, which promised more scope for slavery, the US government, he said, was “each instant losing some of its integrity” (RP 65). One “cannot without disgrace be associated” with “this American government today. …I cannot for an instant recognize that political organization as my government which is the slave’s government also” (RP 67). Thoreau regarded law no more favorably: “Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice” (RP 65). Undue respect for law leads the “mass of men [to] serve the state…not as men mainly, but as machines, with their bodies.… Others…serve the state chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God” (RP 66). Thoreau believed we should sometimes comply with unjust law. “If the injustice is part of the necessary friction of government, let it go, let it go: perchance it will wear smooth” (RP 73). But “when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer” (RP 67). It might be suggested that Thoreau provides no counter-example to the notion that civil disobedients accept an obligation to obey the law. Rawls believes that Thoreau’s tax refusal was not civil disobedience narrowly construed (which publicly calls for reform) but “conscientious refusal” (which may be done in Page 8 of 17

Moral Judgment, Historical Reality, and Civil Disobedience 1 private). Thoreau refused to pay the tax “on the grounds that to [pay] would make him an agent of grave injustice to another” (Rawls 1971: 368). But Thoreau knew that others in Concord had been arrested for tax resistance and that his failure to pay would not go undetected. When asked (p.140) by the tax collector for payment, Thoreau invited arrest, which he seems to have sought in order to dramatize his protest. As he expected, all of Concord soon learned of his jailing. His subsequent lecture implored others to act on their own antislavery convictions. If we regard his lecture as part of his continuing tax resistance, then the latter qualifies as civil disobedience, even under a narrow definition, and Thoreau provides a counter-example to the notion that civil disobedients have a favorable judgment of the prevailing system and accordingly acknowledge a moral presumption favoring obedience to law. 2. Gandhi.25 Gandhi championed public, non-violent protest, conduct that was calculated to cause opponents to consider grievances from the petitioners’ point of view, and acceptance of punishment for unlawful resistance. These facts may suggest that Gandhi accepted the legitimacy of British rule and acknowledged a moral obligation to obey the law. But that would be a mistake. Gandhi went to South Africa in 1893 to do some legal work. Soon becoming an outspoken critic of racist practices under British rule, he remained for two decades, mobilizing Asians and developing his theory of satyagraha. He first sought reforms by appealing to the doctrine of equal rights for all British subjects. But experience destroyed his respect for British rule and Britain’s notion of civilization. For the last three decades of his life, Gandhi labored for Indian independence. He led major campaigns in the 1920s and 1930s and developed the “Quit India” program of the 1940s, which called on the British to leave despite the Japanese invasion. Gandhi held that, by its broken promises as well as its degrading and brutal treatment of Indians following World War One, Britain had “forfeited all claim to his allegiance.” The colonial government showed “utter contempt” for the rights and dignity of its subjects. The colonial administration was corrupt and relied on terror. Indians “had a right to disobey it…and a duty to do so because as moral beings they had a duty to fight for the self-respect and dignity of their fellowcitizens.” Although Gandhi believed a good state “deserved the benefit of the doubt,” he held that one had no duty to comply with unjust laws (Parekh 1991: 125–9). (p.141) Thus Gandhi rejected both the prevailing system and a presumption favoring obedience to all of its laws.

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Moral Judgment, Historical Reality, and Civil Disobedience 1 3. King.26 If any civil disobedient might be imagined to accept the moral legitimacy of the prevailing system and recognize an obligation to obey its laws, it would be Martin Luther King, Jr. King called on the federal government to enforce the law. He agonized over disobeying patently unlawful court orders. He said that his campaigns expressed “the highest respect for law” (TH, e.g., 49, 293–4). But we must look more closely. First, we should not be misled by the limited aims of King’s resistance activities. Campaigns for social justice usually advance goals that are more modest than the participants’ ultimate objectives. The Montgomery bus boycott made very limited demands, which did not even include an end to segregation, but the boycotters’ ultimate aim was clear. As King said at the time, “What the Negro wants—and will not stop until he gets—is absolute and unqualified freedom and equality” (TH, 353). Modest goals were important because Jim Crow was firmly entrenched. Blacks lacked power in the system, and many doubted their ability to effect even modest goals. King stressed that rights could not be realized without persistent mass action. To mobilize participants, campaigns must have realizable goals. To maintain participation, campaigns must sometimes succeed. White supremacists understood that their system would not survive if modest campaigns succeeded, for it would mean that African Americans could effect change despite their exclusion from public office and the ballot. Each victory would increase their self-confidence and dishearten those seeking to preserve the racial hierarchy. That is why reactions to the boycott included official harassment and lawless violence. Second, King’s commitment to non-violence did not reflect favorably on the system. He emphasized that violent protest was not only immoral but impractical (TH, e.g., 17, 55, 83, 102, 361, 449, 525–6). Although violence was justifiably used in self-defense, it had no place in organized resistance, where it would divert attention from the issues and defeat the long-term goal of improving relations with whites. And it would be futile, as blacks were outnumbered and outgunned (TH, e.g., 32–3, 56–7). (p.142) Third, acceptance of punishment was strategic. “If you confront a man who has been cruelly misusing you, and say ‘Punish me, if you will; I do not deserve it, but I will accept it, so that the world will know I am right and you are wrong,’ then you wield a powerful and just weapon” (TH, 348). Fourth, King called the system not only “unjust” but “evil” (TH, e.g., 47–8, 360, 429). “The thing to do is get rid of the system” (TH, 47). It might be thought that King condemned only a local aberration. But legally enforced discrimination was pervasive. White domination was maintained by violent and degrading criminal activities that were officially sanctioned rather than prosecuted. Only the federal Page 10 of 17

Moral Judgment, Historical Reality, and Civil Disobedience 1 courts had taken dramatic steps in the direction of reform, but these were still quite limited, and the results were uncertain. Fifth, King’s references to “the highest respect for law” accompanied his distinction between just and unjust law (TH, e.g., 48f., 293–4, 356). King, like Gandhi, held that unjust laws merit no respect, and went on to refute a presumption favoring obedience. In his “Letter from Birmingham City Jail,” for example, his review of the distinction between just and unjust law introduces a condemnation of Jim Crow. He first explains how it wrongs the individual. Then he stresses that Jim Crow law is imposed by a majority on a minority that is excluded from the political process (TH, 294). This clearly anticipates and rebuts an argument for political obligation that invokes the notion of democracy. Jim Crow laws cannot merit respect as products of a democratic process because the process that generates Jim Crow law excludes African Americans and is inherently undemocratic. Finally, King never suggested that when he contemplated civil disobedience he faced a moral dilemma which included an obligation to obey the law. His first decision to violate a court order illustrates the point. The Birmingham campaign of 1963 included a boycott of downtown stores to pressure the owners into ending racist practices. It was important because it followed an unsuccessful campaign in Albany, Georgia. Birmingham was, moreover, a stronghold of segregation. Two moral dilemmas developed. Demonstrations had been postponed to avoid involvement in a municipal election. But as the Easter shopping season was ending, demonstrations were needed to strengthen the boycott. A march planned for Good Friday was then banned by an illicit court order. King had obeyed such an order in Albany, which he now regretted. (p.143) But the Birmingham organizers feared that defiance of a court order might appear unprincipled to financial supporters—inconsistent with King’s reliance on law. And financial help would be needed to bail out arrested demonstrators. That was the first dilemma. When King and his colleagues were satisfied that they could persuade their supporters of the importance of the march, they decided to defy the order, and the first dilemma was resolved. A second dilemma arose the evening prior to the march. The city told a local bondsman who supplied bail for the demonstrators that he could not continue because his financial assets were inadequate. King later recalled: “It was a serious blow. We had used up all the money we had on hand for cash bonds. There were our people in jail, for whom we had a moral responsibility. Fifty more were to go with Ralph [Abernathy] and me.…Without bail facilities, how could we guarantee their eventual release?” (TH, 542).

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Moral Judgment, Historical Reality, and Civil Disobedience 1 The organizers met the next morning to decide what to do. One said: “Martin… this means you can’t go to jail. We need money. We need a lot of money. We need it now. You are the only one who has the contacts to get it. If you go to jail, we are lost. The battle of Birmingham is lost” (TH, 543). King resolved this dilemma as follows: I walked to another room.…I thought of the three hundred, waiting in prison. I thought of the Birmingham Negro community, waiting. Then…I thought of the twenty million black people who dreamed that someday they might be able to cross the Red Sea of injustice and find their way to the promised land of integration and freedom. There was no more room for doubt. (TH, 543) King and his associates marched and were arrested.27 Both dilemmas involved moral considerations and practical uncertainties. Neither involved a moral presumption favoring obedience to law. King did appeal to the central values that we associate with the Declaration of Independence and the Constitution. But he stressed that America’s commitments had not been translated into practice. He did not confuse promise with achievement. He praised our ideals but condemned our practice (TH, e.g., 274). (p.144) King did not regard racism as a peripheral problem of American society, and he was right. He too refutes the notion that civil disobedients accept an obligation of obedience to law.

IV I want now to suggest some lessons to be drawn from my argument. 1. Lawful and unlawful conduct. Much of civil disobedience theory assumes there is a morally significant difference between lawful and unlawful resistance. The first part of my argument shows that assumption to be mistaken in leading cases. In the absence of a blanket moral obligation to comply with law, we cannot assume that the distinction has moral significance. If the condition I employed in that argument is sound, then I think the assumption can rarely, if ever, be made. Few, if any, human societies have been free of significant, deeply entrenched, systematic injustice. The second part of my argument reveals that the distinction between lawful and unlawful resistance had practical but not moral importance to Thoreau, Gandhi, and King.28 I would suggest that the same is true of principled resisters generally. Those with grievances serious enough to lead them into perilous conflict with dominant groups do not typically embrace a favorable appraisal of

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Moral Judgment, Historical Reality, and Civil Disobedience 1 the prevailing system; nor do they think of themselves as morally bound to obey laws that seem to them outrageously unjust. I suggest, further, that the distinction is practically of no greater importance to the resisters’ opponents, those who defend the status quo. Experience shows that, in the face of resistance against significant, deeply entrenched, systematic injustice, those who break the law, at least initially, are often not resisters but officials and their supporters, employing unlawful methods against resisters and failing to arrest unlawful attacks on them or to prosecute the perpetrators. This has been true in the US,29 and I suspect it is true elsewhere as well. (p.145) Insofar as civil disobedience theory assumes political obligation, it distorts the outlook of principled resisters. The literature also tends to ignore the governments’ repression of lawful protest and dissent. 2. Moral misjudgment. Given the first part of my argument, one cannot help wondering why theorists of civil disobedience should have imagined a moral presumption favoring compliance with laws supporting brutally oppressive institutions. For the injustices addressed have been significant, systematic, and deeply entrenched, and the theorists have usually been sympathetic to the resisters’ grievances. It might be suggested that the assumption of political obligation had merely tactical value. The relevant literature defended civil rights and anti-war campaigns that were condemned by officials and other prominent citizens. Despite the decorous character of most civil rights campaigns, for example, the movement was highly controversial. It emerged in the 1950s, during a period of anti-Communist hysteria and political repression, in which the government at all levels routinely persecuted lawful dissenters. Civil rights activists went further than most other dissenters not only by challenging authority but by occasionally breaking the law. To make matters worse, most civil rights activists were Americans of color, who were expected to know their place in the officially sanctioned system of white supremacy. Under the circumstances, the most pressing issue for theorists who sympathized with the movement was the justifiability of its unpopular actions even when they broke the law. For critics of civil disobedience invoked the notion of a comprehensive moral obligation to comply with law, especially in a self-styled constitutional democracy. Theorists understood that any plausible obligation to obey must be defeasible and could be outweighed. They saw that the movement identified grave deficiencies that officially sanctioned procedures failed to address. They argued that a just system allows room for a limited class of unlawful acts which aim at reform. They focused, understandably, on the most decorous, least threatening, most easily justifiable form of political resistance, in which disobedients act publicly and accept arrest and punishment. Page 13 of 17

Moral Judgment, Historical Reality, and Civil Disobedience 1 The theorists’ assumption of political obligation does not appear, however, to have been merely tactical. A number of sympathetic theorists (p.146) agreed with critics that the burden of justification falls on one who disobeys the law.30 But how could philosophers of good will have assumed that moral justification was required to disobey laws supporting chattel slavery, racist colonialism, or Jim Crow? If I am right in regarding that assumption as morally indefensible, then we must entertain the possibility of a systematic defect in the moral framework that obtained. The judgment of those of us who took political obligation for granted—despite the obvious existence of intolerable, deeply entrenched, systematic injustice against clearly identified groups within our society—was distorted by inadequate sensitivity to the palpable impact of the oppression, especially on those of color. Many Americans of European ancestry disapproved of white supremacy but did little about it.31 Their moral judgment affected their choice of political party and of candidates for public office, but not much else. White supremacy was not perceived as a pressing moral problem that called for concerted action.32 That was a moral failing. The discounting and resultant toleration of outrageous, deeply entrenched, systematic injustice amounted to culpable indifference. Racism often involves naked hostility, inhuman cruelty, and brutal violence towards persons who are identified in racial terms. It often involves harsh measures to secure status in a racial hierarchy. It often involves such overtly racist behavior—but not always. I suggest it can also involve, for example, tolerance of racist conduct or of racist social arrangements because of a failure to attach proper importance to known facts which primarily concern people with whom one does not identify in racial terms.33 My suggestion, then, is that theorists’ endorsement of political obligation, while possessing sufficient knowledge of settings like Jim Crow, can reasonably be characterized as a derivative but socially important form of racism. (p.147) Two qualifications are required. First, most of the relevant literature is now twenty-five years old or more. Political philosophy has since changed. Many of us have become skeptics about political obligation. Our moral sensibilities have also changed. It is more difficult than ever before for one to discount the interests of groups that are identified in racial terms. The related difficulty that we now face is the idea that the legacy of racial injustice can be rectified by “color blind” political policies. But that is a subject for another occasion. Second, although white supremacy remains a major feature of American society, it would be a mistake to depict the moral failing to which I have referred in Page 14 of 17

Moral Judgment, Historical Reality, and Civil Disobedience 1 purely racial terms. Analogous attitudes have affected judgment and conduct concerning women as well as various ethnic groups. In these connections, too, moral sensibilities have improved. It remains to be seen by how much and whether we shall develop collective action that is calculated to overcome the significant, deeply entrenched, systematic injustice that remains. Notes:

(1) Work on this paper was aided by a fellowship from the National Endowment for the Humanities. Earlier versions were presented at Boston University, Cornell University, Harvard University, New York University, the University of Nebraska, the Boston Chapter of the Conference for the Study of Political Thought, and the Pacific Division of the American Philosophical Association. I am grateful for comments on those occasions and from the editors of Philosophy & Public Affairs. I am also grateful to Scott Attaway, Henning Herrestad, and Crystal Talley for research assistance; to Sandra Lyons for editorial advice; and to Matthew Lyons for collaborative research. (2) See, e.g., Rawls 1964: 3; Bedau 1969: 215; Cohen 1971: 2, 6; Murphy 1971: 5–8; Cohen 1972: 288–96; Singer 1973: 136–47; Harris 1989: 2–3, 13–17, 34. Two qualifications: In a review, Bedau (1972: 184–5) questions Carl Cohen’s assuming political obligation without argument. But he does not reject it there or in Bedau 1991. More significantly, Rawls (1971: 226, 355) provides grounds for rejecting political obligation in the US and similar societies. (I discuss the latter below.) (3) For a survey of the literature, see Smith 1996. (4) See, e.g., Cohen 1971: 44 (“reasonably just,” 6); Murphy 1971: 1; Cohen 1972; Woozley 1976: 325. (5) Non-violence may be assumed; to simplify matters, I assume it here. For another view, see Morreall 1976. (6) For a survey of the definitions, see Harris 1989: 1–15. (7) Some writers regard Gandhi as too radical to be a civil disobedient; see, e.g., Murphy (1971: 2). Some regard Thoreau’s tax refusal as insufficiently public to qualify as civil disobedience; more on this below. King’s case is of special interest because his resistance occurred so recently in the US. Most who raise the point assume that King accepted the prevailing system; see, e.g., Gewirth 1970: 541 (King); Cohen 1971: 108–9 (King a loyal disobedient); Cohen 1972: 296 (both Gandhi and King); Woozley 1976: 325 (Gandhi and King). (8) I sometimes refer to “resisters” and “resistance” so as not to prejudge what should count as civil disobedience.

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Moral Judgment, Historical Reality, and Civil Disobedience 1 (9) Assuming civil disobedience is non-violent. Moral objections to violent resistance are irrelevant to the present point. (10) See Rawls 1964. In A Theory of Justice, Rawls rejects the fairness argument and offers the duty of justice as a foundation for political obligation (see 1971: 113–14, 335–7). (11) Nor does it permit one to command an unjustly large share of benefits or an unjustly small share of burdens. (12) See, respectively, Cohen 1971: 6; Rawls 1971: 351; Storing 1991. (13) Rawls defines “a state of near justice” as “one in which the basic structure of society is nearly just, making due allowance for what it is reasonable to expect in the circumstances” (1971: 351). I understand the qualification to require us to consider official conduct. That is important because official conduct may be systematically unlawful in very significant ways for a long time, as under Jim Crow (discussed in Section II). (14) For the idea of a provisional fixed point, see Rawls 1971: 18–20, 46–8. (15) For the setting of Thoreau’s resistance activities, see, e.g., Kolchin (1993). (16) At least, not in a system of slavery like that in the US. That is presumably a “provisional fixed point” if anything is. (17) For the setting of Gandhi’s resistance activities, see Huttenback (1971); Brown (1972); Hutchins (1973); Brown (1977). (18) For the setting of King’s resistance activities, see, e.g., Woodward 2002. (19) See, e.g., President’s Committee on Civil Rights 1947; United States Commission on Civil Rights 1961 and 1965; Berry 1994. (20) The argument from democracy for political obligation is addressed by King; see Section III. (21) I return to this point in Section IV. (22) Thoreau was not similarly committed to non-violence. (23) See, e.g., Harding 1982. (24) Thoreau’s lecture is reprinted in Thoreau (1973: 63–90), under its original title, “Resistance to Civil Government.” Page references to that edition follow “RP” in the text. For more on Thoreau’s essay, see Chapter 8. (25) In addition to the sources already cited, see also Gandhi 1968 , 1946 , and 1942. Page 16 of 17

Moral Judgment, Historical Reality, and Civil Disobedience 1 (26) Quotations in this section are from King 1991c and are indicated by “TH” and the page reference. Information is also derived from Branch 1988. (27) While in custody, King wrote “Letter from Birmingham City Jail,” King 1991a: 289–302. (28) Gandhi’s and King’s lawful resistance was quite important and has not always been distinguished from their unlawful resistance. Non-cooperation with the colonial government, the principal means of the all-India independence campaign of the 1920s, did not violate colonial law. Refraining from bus usage in Montgomery was not itself unlawful. (29) See, e.g., Donner 1980 and 1990; Churchill and Vander Wall 1988 and 1990. (30) See note 1 for explicit endorsements (not merely tactical assumptions) of political obligation. (31) As Thoreau made clear, they were his intended audience. (32) I say concerted action because political responsibility only occasionally calls for isolated acts by individuals outside the context of a movement for reform. (33) Racism can take other forms, e.g., neglecting to learn about such phenomena when one is vaguely aware of their existence.

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Political Responsibility and Resistance to Civil Government 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Political Responsibility and Resistance to Civil Government 1 David Lyons


Abstract and Keywords Theorists define civil disobedience as unlawful protest for limited reform by individuals who regard the prevailing system as basically just. Those terms do not describe many respected examples of conscientious protest, so this essay employs instead the broader concept of political resistance, while it celebrates the many lesser-known individuals whose resistance required great courage. Three of the individuals discussed acted during wars abroad: Hugh Thompson interrupted a massacre by soldiers of his own side in My Lai, South Vietnam, Mordechai Growas acted out of deep compassion for a fellow Warsaw Ghetto resister and Henryk Iwanski aided resisters in the Ghetto; and two‐Samuel Block and Annie Devine—campaigned for voting rights under front‐line conditions in Jim Crow Mississippi. Keywords:   thoreau, civil disobedience, political obligation, unjust enrichment, wrongful gain, restitution, fairness, exploitation

Like most prominent theorists of civil disobedience, Thoreau was a practitioner too. His famous essay on the subject was delivered as a public lecture after his brief jailing for tax refusal.2 Although Thoreau refers there to that episode, he mainly discusses in general terms our moral responsibilities under governments that support unconscionable injustice. He thus broaches an issue that theorists have hardly discussed—the duty to address wrongs done to others by one’s government.

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Political Responsibility and Resistance to Civil Government 1 Thoreau’s essay influenced both Gandhi and King.3 Gandhi called it a “masterly treatise” (Gandhi 1958: 3). Nevertheless, although philosophers have recently written much about his subject, Thoreau’s ideas have largely been neglected.4 (p.149) This neglect is understandable. Thoreau was a brilliant prose stylist who could secure the attention of an audience and compel them to face discomfiting questions. But he was not a systematic theorist or rigorous analyst. An appraiser of Thoreau’s political writings might conclude that he could provoke political discussion and inspire resistance without illuminating basic moral issues. The scholarly slighting of his essay might also be meant as benign neglect, for Thoreau’s views are controversial. His view of law and government is radical, compared with that of the philosophical literature on civil disobedience.5 Recent theorists maintain that true civil disobedience manifests respect for the prevailing political system; Thoreau tells us plainly how little respect it deserves. Recent theorists argue, moderately and defensively, that disobedience may sometimes be justified, at least if it is decorous and respectful. Thoreau contends rather that disobedience is morally required—that compliance with governmental policies like those he condemns is simply wrong. Paradoxically, he also appears to embrace an exceedingly narrow conception of political responsibility—so cramped as to suggest that he is preoccupied not with the suffering of those who have been wronged by laws and governmental policies but with his own moral purity. This paper has two aims. One is to gain a clearer view of Thoreau’s ideas about political responsibility—especially what I shall call individual accountability, or the duty to address social wrongs;6 for I believe that the picture of Thoreau’s position I have just offered is inaccurate. Another aim is to suggest and to encourage discussion of a broader conception of political responsibility than our philosophical literature generally acknowledges—a conception capable of supporting a duty of disobedience in view of social wrongs. Section I examines Thoreau’s controversial attitude towards law and argues that it is reasonable. Section II presents an initial interpretation of Thoreau on individual accountability. Section III compares the initial (p.150) reading with other conceptions of accountability and offers a new interpretation of Thoreau.7

I Political Responsibility Political obligation and the duty to disobey. I shall refer to the collection of moral requirements (such as duties or obligations) that may result from one’s belonging to a political community as political responsibility. Only one aspect of political responsibility has been addressed extensively by theorists. That aspect is political obligation—a moral requirement of obedience to the law of one’s community. As it is usually understood, political obligation is comprehensive—a

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Political Responsibility and Resistance to Civil Government 1 triply general requirement, applying to all members of a political community, all of its laws, and all occasions for compliance. Because moral requirements can conflict, so that it becomes impossible to follow all of their guidance for conduct, most duties and obligations are best regarded as defeasible. A defeasible requirement calls on one to behave in a certain way, implying it would be wrong to behave otherwise unless the precept is outweighed in specific circumstances by some more pressing consideration. For this reason, as well as the fact that morally unconscionable laws can provide occasions for disobedience, political obligation is best construed as defeasible. If it were absolute it would be vastly more difficult, perhaps impossible, to defend. Most generously construed, then, political obligation amounts to a comprehensive moral presumption favoring compliance with law.8 To understand political obligation as defeasible is to imply that lawbreaking might sometimes be justified. Philosophers who have recently addressed civil disobedience have generally held that it can be justified. As this suggests, however, theorists have generally assumed that civil disobedience requires justification. They assume, in effect, that political obligation obtains. This can be seen as follows. One may think of civil disobedience (p.151) broadly, as principled lawbreaking, but many theorists have recently defined civil disobedience narrowly—as lawbreaking that is public, non-violent, performed by someone who accepts the prevailing system and willingly suffers the legal consequences of disobedience, or in other words as a conscientious, respectful, submissive, and decorous form of lawbreaking.9 Why might anyone regard such conduct as in need of justification? The only aspect of civil disobedience, so conceived, that might make it seem to need justification is its non-compliance with law. The belief that civil disobedience requires justification thus presupposes that lawbreaking itself requires justification. In other words, theorists of civil disobedience generally assume that political obligation obtains.10 The recent literature on civil disobedience was initially occasioned by resistance to admittedly unjust laws and social arrangements, such as the brutally oppressive system of white dominance known as Jim Crow.11 To assume political obligation in that context is to hold that moral justification is required even for disobedience to unconscionable laws and public policies. That is precisely the point of the doctrine. Critics and champions of political obligation both recognize that even the best system in the real world can encompass unjust laws. Most champions assume that political obligation obtains in some real world systems, such as that of the United States. Political obligation was traditionally supposed to be grounded on a valid moral commitment by the individual to comply with all of the community’s laws. As it is implausible to suppose that all the members of a political community make such Page 3 of 28

Political Responsibility and Resistance to Civil Government 1 a commitment, one who embraces political obligation is well advised to seek more promising foundations. Recent theories have conditioned political obligation on a political system’s fundamentally just character or on the principle of fairness. Theorists generally count principled lawbreaking as civil disobedience only if the resister respects the system as a whole and acknowledges a moral presumption favoring obedience to law. That is one reason why theorists (p.152) assume that civil disobedience involves willing submission to arrest and punishment. In submitting, the resister expresses respect for the system as a whole and acknowledges having breached a moral obligation to comply. That view of the matter contrasts sharply with the orientation of many resisters, including Thoreau. Resisters often say that they could not in good conscience comply with the law. They see themselves as not merely justified in resisting unconscionable laws and governmental policies but as morally required to resist. Despite such differences, the positions taken by theorists and resisters might be compatible. The claim that compliance would be wrong does not necessarily exclude acknowledgment of political obligation. Resisters could recognize an obligation to obey the law but regard it as overridden in the circumstances. In the complexity of concrete social situations, some moral principles can prescribe compliance while others call for non-compliance. Moreover, a practitioner’s stress on a duty to disobey would be understandable, as it offers a more powerful justification for disobedience than an argument that merely makes disobedience morally permissible. Theorists’ stressing an obligation to obey would likewise be understandable, if they wished to influence critics who assume that civil disobedience is wrong because there is a moral obligation to obey the law. Theorists sympathetic to civil disobedience might try to convert such critics by first acknowledging political obligation and then showing how an obligation to comply with the law can sometimes be overridden. Much of the recent literature on civil disobedience developed in the context of vigorous civil rights campaigns and anti-war protests that were especially controversial when participants broke the law. The civil rights movement of the 1950s emerged in a period of political repression during the first stage of the Cold War. While officials at all levels in federal, state, and local governments were illicitly persecuting dissenters who acted within the law, civil rights activists not only challenged the established hierarchy but sometimes did so by breaking the law. Even worse, in the eyes of those in power, most civil rights activists were African Americans who were expected to know their place in the officially sanctioned system of white supremacy. It is no wonder, then, that many prominent persons criticized unlawful protests that were peaceful, public, nonviolent, morally motivated, and whose targets were legal arrangements that the critics agreed were morally indefensible, such as Jim Crow laws. Theorists Page 4 of 28

Political Responsibility and Resistance to Civil Government 1 sympathetic to civil disobedience saw that some of the critics mistakenly (p. 153) assumed that political obligation is absolute. Those theorists proceeded to explain that political obligation, like other obligations, is likely to be defeasible, in which case it can be outweighed, so that disobedience can sometimes be justified. Thus, their emphasis on an obligation to obey may well have been predicated on a wise strategy of argument aimed at converting critics. Just as it is possible for resisters who stress a duty of obedience to acknowledge political obligation, it is possible for theorists who assume political obligation to recognize a duty to disobey. So the positions of theorists and resisters could be compatible; the differences between their expressed positions might merely be one of emphasis. All that is possible. But there is reason to believe they really disagree. On the one hand, the orists have not merely stressed political obligation; they have ignored the idea that political responsibility can include a duty to disobey. On the other hand, while some resisters may acknowledge an obligation to obey the law, along with the respect for the political system that acceptance of political obligation assumes, such an attitude is not, I believe, characteristic of resisters. Although I shall not try to defend that general claim here, I shall argue that Thoreau lacked such respect for the political system, did not accept an obligation to obey, and that his position was quite reasonable.12 I shall consider first Thoreau’s tacit rejection of political obligation and then turn later to his ideas about a duty to disobey. Thoreau on law. Thoreau begins his essay by disparaging both government and law. “Government is at best an expedient; but most governments are usually, and all governments are sometimes, inexpedient” (T 63).13 Political systems have no inherent virtue. Any respect they merit they must earn, and that is normally not much. The US system is no exception. Thoreau accordingly says, “It is not desirable to cultivate a respect for the law, so much as for the right.…Law never made men a whit more just; and, by means of their respect for it, even the welldisposed are daily made the agents of injustice” (T 65). “Undue respect for law leads the (p.154) mass of men [to] serve the State…not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables, &c…Others, as most legislators, politicians, lawyers, ministers, and office-holders, serve the State chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God. A very few…serve the State with their consciences also, and so necessarily resist it for the most part; and they are commonly treated by it as enemies.” (T 66) But Thoreau neither expects nor demands perfection in government. “If the injustice is part of the necessary friction of the machinery of government, let it go, let it go: perchance it will wear smooth” (T 73). He cautions potential Page 5 of 28

Political Responsibility and Resistance to Civil Government 1 resisters to consider whether the government “does enough good to counterbalance the evil” (T 67), and “whether the remedy will not be worse than the evil” (T 73). “But,” he says, “when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer” (T 67). As those words may suggest, Thoreau’s position is shaped by his view of official conduct. Although he begins his tax refusal in protest of the federal government’s support of slavery and his state’s support of federal policies, by the time he delivers his lecture on civil disobedience the US has invaded Mexico in an aggressive, expansionist war, designed in part to provide more space for chattel slavery. The US government, he says, is “each instant losing some of its integrity” (T 65). When jailed for tax refusal, Thoreau “saw that the State was half-witted…and that it did not know its friends from its foes, and I lost all my remaining respect for it, and pitied it” (T 80). Thoreau perhaps comes closest to explicitly rejecting political obligation when he asserts that one should “break the law” in order to avoid becoming “the agent of injustice to another” (T 73). That does not necessarily exclude a defeasible obligation to obey the law. Nevertheless, I think it reasonable to take his statements about law and government to imply a rejection of any comprehensive moral presumption favoring obedience to law. I now want to explain why that position itself is quite reasonable. The claim that there is a moral presumption favoring obedience to law requires justification because just laws merit respect but unjust laws do not. If there is an initial moral presumption regarding unjust laws, it must be to regard them with disrespect. A sound argument is required to show why we should comply with them. This does not mean that political obligation is impossible or that there cannot be good reason to comply with unjust (p.155) laws. It means that the burden of proof falls initially on the defender of political obligation. And it has amply been shown that the burden is difficult to sustain.14 We can understand why by considering Thoreau’s America. Shall we suppose that the African American slave, the Mexican whose homeland has been taken over by an invading American army, and the Native American who has lost freedom, land, and kin at the hands of the government are all morally bound to comply with all US laws and official orders, including the laws most directly implicated in the government’s unconscionable conduct? It does not seem much more far-fetched to claim that the Jews of the Warsaw Ghetto owed an obligation of obedience to the surrounding German forces. No sound moral argument could show that every member of Thoreau’s political community had a moral duty or obligation to obey the law. To suppose otherwise is, for example, to endorse Chief Justice Taney’s statement in his Dred Scott Page 6 of 28

Political Responsibility and Resistance to Civil Government 1 opinion that African Americans “had no rights which the white man was bound to respect” (1857: 407). But African Americans were subject to legal restrictions. They were required by law to behave in certain ways, including ways prescribed by the laws maintaining chattel slavery. I see no reason to suppose that there was any moral presumption favoring their obedience to such laws. It is implausible to suppose that disobedience to their legally recognized masters or escape from their legally sanctioned enslavement required any moral justification at all. The mere fact that laws supported such a system could not by itself create a moral presumption to the contrary. But if African American slaves were not morally bound to obey all of the laws of their political community, that fact alone precludes a comprehensive moral presumption favoring obedience to law. The point can be generalized, in two ways. The first point is suggested by Rawls when he says that “in the long run the burdens of injustice should be more or less evenly distributed over different groups within society, and the hardships of unjust policies should not weigh too heavily in any particular case.”15 That seems a necessary condition for a political (p.156) system to merit respect. Political obligation is compatible with some kinds of injustice, but it is incompatible with deliberate, systematic, unjustifiable discrimination (or worse) against some segment of the political community. Compliance even with unjust laws might be morally required there, in special circumstances, e.g., if that were necessary in order to avoid worse injustice. But it could morally be required only on a circumstantial, case by case basis; it could never reasonably be assumed. If that is right, it is questionable whether any known political system has merited political obligation. The facts of human history argue to the contrary. This is not of course to say that individuals never have good reason to do what the law requires. A system supporting widespread injustice can have many just laws. For example, one should not, generally speaking, assault, cheat, coerce, harass, imprison, or kill another human being. Laws prohibiting such behavior can generally be justified, and governments can presumably be justified in enforcing such laws. A system can furthermore create moral reasons to comply with laws by coordinating behavior in fair and useful ways. Even victims of legally imposed injustice can have strong moral reason to comply with unjust laws, if, for example, their disobedience can expose innocent persons to risks they have not agreed to take. Nor is this to say that there are no morally significant differences among systems. But none of this assumes or implies political obligation. Second, the targets of deliberate, systematic discrimination are not the only members of a political community who cannot morally be bound to respect the responsible laws. It makes no moral sense to suppose that beneficiaries or third parties are morally required to support deliberate, systematic injustice. It seems Page 7 of 28

Political Responsibility and Resistance to Civil Government 1 even more outlandish to suppose that moral principles could routinely require citizens to contribute to the systematic oppression than to suppose that its victims are required to cooperate in their own oppression. Other things being equal, morality would support a blanket presumption against compliance. These points can be bolstered by noting the implications in the real world of the most widely accepted grounds of political obligation: The fairness principle. Many theorists have been impressed by the promise of John Rawls’ fairness argument.16 The argument seems, for example, (p.157) reasonably to explain what others have vaguely suggested by speaking of a “social contract.” Rawls clarified the relevant notion of fairness by framing the general principle that, when one benefits from others’ burdensome compliance with the requirements of a just and beneficial social practice, fairness requires that one comply with those requirements. The principle applies when a social practice produces goods that are available not only to persons who contribute to their production but also to persons who do not contribute. Some persons who receive such benefits are excused from contributing to their production because they merit special consideration (perhaps they are physically unable to do what the rules require). But others are simply “free-riders.” They accept the benefits but fail to contribute to their production by complying with the rules, when it would be impossible for all to do so who had equal claims to the benefits. If everyone who had equal claims failed to comply with the rules, the benefits would not be produced. The idea, then, is that one who accepts the benefits is under an obligation to those persons who help produce them. One who accepts the benefits without assuming the burdens takes advantage of those persons on whose burdensome compliance one’s benefiting depends. Rawls then observed that some important benefits that we enjoy depend on others’ compliance with the law. Apparently because some of these benefits, such as personal security, may be said to flow from the system as a whole (or, more precisely, from others’ respect for law), Rawls supposed that the relevant social practice, for the application of the fairness principle, is the system as a whole. He argued that the fairness principle supports a comprehensive moral obligation to obey the law when one’s benefits are generated by others’ obedience to the law. In condemning free-riding, the fairness principle may be said to require an equitable distribution of benefits and burdens. As Rawls notes, however, this assumes that the rules themselves distribute benefits and burdens fairly. Fairness cannot require one to be exploited by others—to acquiesce in an unjustly small share of benefits or an unjustly large share of burdens; but neither can it permit one to exploit others—to command an unjustly large share Page 8 of 28

Political Responsibility and Resistance to Civil Government 1 of benefits or an unjustly small share of burdens. If the benefits generated and the burdens imposed by the social practice are not distributed justly, the fairness principle does not apply. When laws support exploitation, such as chattel slavery or racial stratification, fairness does not require anyone to comply with those rules (Rawls 1971: 112). (p.158) When the law supports unjust distributions of benefits and burdens, fairness cannot argue for compliance on anyone’s part. But that limitation of the fairness argument cannot reasonably be seen as a shortcoming. When the argument fails to support a moral presumption favoring obedience because of unfairness in the law, that is as it should be.17 So much for the fairness argument and compliance.18 Let us now consider its possible implications for non-compliance. As we have understood it, following Rawls, the fairness principle applies only to non-exploitative practices. But its root objection to one’s deliberately taking advantage of others would seem to have wider application. Our reasoning suggests that the fairness principle derives from a broader moral conception that objects to exploitation generally, including exploitative practices. When social arrangements are exploitative, fairness calls for corrective action. When a social system permits or provides for exploitation, the fairness principle calls for reform. Insofar as resistance to prevailing arrangements is needed for reform, fairness requires resistance rather than conformity. Thus, reasoning that might theoretically be capable of accounting for political obligation seems likely in the real world to support resistance. We can connect this with the spirit of the fairness principle, which emphasizes moral relations between individuals. According to the fairness account of political obligation, compliance is owed to other members of one’s community. The fairness argument does not suggest that the government, the state, or its laws have any moral claim on us. It locates any valid claim in those who have helped produce the benefits we willingly enjoy. It is no wonder then that fairness calls for resistance to exploitative arrangements under which we live together. Such arrangements victimize other members of our community. Thus the moral conception that underlies the fairness principle supports a notion of political solidarity rather than conformity. (p.159) The duty of justice. Rawls has had second thoughts about fairness as a ground of political obligation. As now understood, the fairness argument does not apply to everyone who receives benefits from others’ compliance with the rules of a fair and useful social practice. One who acquires a fairness-based obligation “has voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers to further one’s interests.”19 Rawls believes that this condition is not satisfied by ordinary citizens, but only by individuals who deliberately seek and obtain special benefits, such as Page 9 of 28

Political Responsibility and Resistance to Civil Government 1 entrepreneurs and those who pursue and secure public office. If one wishes to account for political obligation, an alternative theory is required. For this purpose Rawls now invokes the natural duty of justice, which “binds citizens generally and requires no voluntary acts in order to apply” (Rawls 1971: 116): “This duty requires us to support and to comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established, at least when this can be done without too much cost to ourselves” (Rawls 1971: 115). Two features of the duty are especially important here. First, like the fairness principle, its application is limited by considerations of social justice. The duty of justice can ground a comprehensive moral presumption favoring obedience to law, including unjust laws, but only within a political system that is basically just (Rawls 1971: 354–5). Except in special circumstances, the duty of justice cannot require anyone to comply with laws that violate basic rights. Rawls says not only that “the duty to comply is problematic for permanent minorities that have suffered from injustice for many years,” but also that “we are not required to acquiesce in the denial of our own or others’ basic liberties.”20 That is what we should expect of a general duty of justice.21 Second, the duty of justice is even more clearly two-sided than the principle of fairness. It explicitly requires us to promote just institutions (p.160) that do not yet exist (which means replacing unjust social arrangements) and to address social injustice.22 How one should do so depends, of course, on circumstances; but it seems clear that the duty of justice can call for resistance rather than conformity. As the principle of fairness and the duty of justice concern individual conduct in a political context, they help to delineate political responsibility. Political theorists have perceived them as possible grounds of political obligation, and nothing said here rebuts that possibility. The problem with such arguments for political obligation is to be found, not in the principles, but in the real social circumstances, which rarely if ever satisfy the conditions required for the principles’ application. Political systems have generally supported deliberate, systematic oppression of or unwarranted discrimination against some portion of their populations. No plausible moral principle could support a comprehensive presumption favoring obedience to law under those conditions (except as noted below). Political theorists rarely observe that these principles have implications for individual conduct when institutions are unjust. When justice or fairness can best be promoted by disobedience, that’s what those principles require. Thus, political responsibility goes significantly beyond political obligation, and it does not always counsel compliance with law.

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Political Responsibility and Resistance to Civil Government 1 Two further comments before moving on. First, morality can call for compliance to law in the midst of outrageous injustice because conditions can get worse as well as better. Compliance is then required, not as an expression of respect for the system, but as a means of preventing worse immoralities.23 Second, to believe that the system under which one lives possesses deep moral flaws is neither to condemn one’s neighbors nor to assume that the system is irremediable. It is often to recognize the need for principled resistance.24

(p.161) II Tax Refusal The initial reading of Thoreau. I have argued so far that Thoreau’s rejection of political obligation was reasonable. I have also suggested a possible basis for the judgment of many resisters that they are morally required to resist. When their resistance is a response to societal injustice, we can account for that judgment in terms of a moral conception like the duty of justice. That is especially tempting in cases like Thoreau’s, when resisters protest wrongs done to others. Thoreau’s essay suggests, however, a quite different view. Many of Thoreau’s neighbors in Concord, Massachusetts, condemned governmental policies that supported slavery. Given the enormity of the evil, Thoreau regarded mere expressions of disapproval as inadequate. He began withholding payment of the Massachusetts poll tax in 1842 or 1843. He expected to be jailed and welcomed the prospect, for he wished to dramatize his protest. But he was not pressed for payment by the local tax collector (who was also the town constable, and a friend) until the summer of 1846. Persisting in his refusal, and inviting imprisonment, Thoreau was promptly locked up in Concord jail. His stay was unexpectedly brief, however, because someone paid the tax, contrary to his wishes. Thoreau offered a public explanation of his tax refusal in the form of a lecture delivered in Concord (the work we have been considering). By the time he did so, in early 1848, there were new outrages to protest. The US was invading Mexico, not least because those who profited from slavery sought more territory.25 Thoreau thus says, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign army, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is the fact, that the country so overrun is not our own, but ours is the invading army. (T 67) Thoreau says one “cannot without disgrace be associated” with “this American government to-day.…I cannot for an instant recognize that political organization as my government which is the slave’s government also” (T 67). But reform cannot be achieved by legal means, for “the State has provided no way” to Page 11 of 28

Political Responsibility and Resistance to Civil Government 1 remedy these evils: “its very Constitution is the evil” (T 74). So Thoreau invokes “the right of revolution; that is, the right (p.162) to refuse allegiance to and to resist the government” (T 67), even if “blood should flow” (T 77). Thoreau does not go on to propose a bloody rebellion, not because he champions non-violence, but because he believed at the time that the revolution must first occur in the individual. Thus he urges personal resistance: “those who call themselves abolitionists should at once effectually withdraw their support, both in person and in property, from the government of Massachusetts” (T 74). He translates this into tax refusal: I meet this American government, or its representative the State government, directly, face to face, once a year, no more, in the person of the tax-gatherer…and then it says distinctly, Recognize me; and the simplest, the most effectual, and, in the present posture of affairs, the indispensablest mode…of expressing your little satisfaction with and love for it, is to deny it then. (T 75) Because of their further involvement with the government, officials must do more to disengage: “If the tax-gatherer, or any other public officer, asks me, as one has done, ‘But what shall I do?’ my answer is, ‘If you really wish to do any thing, resign your office’” (T 76–7). Thoreau’s actual prescriptions for resistance may seem rather weak, given his suggestion that a bloody revolution could be justified. It is unclear whether he believed that tax refusal could have the desired impact. In one place he seems to say that it would: I know this well, that if one thousand, if one hundred, if ten men whom I could name,—if ten honest men only, aye, if one HONEST man, in this State of Massachusetts, ceasing to hold slaves, were actually to withdraw from this copartnership, and be locked up in the county jail therefor, it would be the abolition of slavery in America. (T 75) On a quick reading, this passage might seem to suggest that one person’s withdrawal of support from the government would lead to radical reform. But that notion seems to be falsified by Thoreau’s own case, for his tax refusal had no such repercussions. Also, he does not imagine merely dissociating from the government but also “ceasing to hold slaves.” That cannot be taken literally, as chattel slavery had already ended in Massachusetts. I shall not try to unlock the meaning of that passage. Instead, I shall quote another passage in which Thoreau appears to explain the ground of his prescription for resistance:

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Political Responsibility and Resistance to Civil Government 1 (p.163) (P) It is not a man’s duty, as a matter of course, to devote himself to the eradication of any, even the most enormous wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support. (T 71) One has no overriding duty to battle injustice; but one may not ignore it: we are morally bound to avoid complicity in wrongdoing. “If I devote myself to other pursuits and contemplations, I must first see, at least, that I do not pursue them sitting upon another man’s shoulders” (T 71). “What I have to do is to see…that I do not lend myself to the wrong which I condemn” (T 73). One must not be a party to injustice. Passage (P) suggests that one’s accountability is limited to withdrawing support. That means we need not help redress the wrongs that have already been done. This might explain Thoreau’s recourse to tax refusal. As I shall suggest, however, that reading commits Thoreau to an impoverished conception of individual accountability. It suggests that his real concern is not the enslaved African American, the subjugated Mexican, or the betrayed and displaced Native American, but his conscience. He seems preoccupied with his own moral purity. Bedau’s commentary. Before pursuing that point, we must take note of Hugo Bedau’s commentary. Bedau interprets Thoreau’s tax refusal as motivated by the desire “to exculpate [himself] from further complicity in injustice” (B 63).26 In that respect, my initial reading of Thoreau concurs. We are both also critical of the positions attributed to Thoreau, but on different grounds. I’ll examine Bedau’s comments here and offer my own in the next section. Bedau understands Thoreau to hold that an individual taxpayer for his part authorizes the government to do what he knows it is doing and to some extent enables the government to do it.27 If the government acts unjustly, then the individual is morally required to revoke his authorization and to withdraw his support (B 60–3). There is some textual basis for this finer-grained reading. We have seen, for example, that Thoreau says, “those who call themselves abolitionists should at once effectually (p.164) withdraw their support, both in person and in property, from the government of Massachusetts” (T 74). Passages like this suggest that Thoreau believes paying taxes involves two kinds of support. Support “in property” presumably refers to financial backing. Support “in person” is not so clear. Bedau believes it refers to one’s authorizing the government’s acts by paying taxes.

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Political Responsibility and Resistance to Civil Government 1 Thoreau seems to assume that his tax payment makes a difference to the government’s ability to implement its policies. If he did not think so, it is unclear what he could mean by support “in property” and “[practical] support.” In one place he says, “I do not care to trace the course of my dollar, if I could, till it buys a man, or a musket to shoot one with” (T 84). To imagine that his dollar buys any such thing is to suppose that his individual tax payment makes a nonnegligible difference to the ability of the government to finance its policies. It unclear, however, whether Thoreau believes that in paying taxes he authorizes the government’s acts. When he speaks of support “in person” he might be referring to the service that, as he observes, many citizens give to the government, some even allowing themselves to be used as cannon fodder. He does call on those who condemn the government’s conduct “to dissolve…the union between themselves and the State,—and refuse to pay their quota into its treasury” (T 72). This supports Bedau’s reading if—but only if—we make two assumptions. Thoreau must also believe, first, that as tax refusal can dissolve the union between individuals and the state, tax payments create such a union. Second, Thoreau must believe that the union involves the individual’s authorizing the state to implement its policies. We have some reason to hold that Thoreau does not believe these things. He says, for example, that he always pays the road tax because he wants to be “a good neighbor” (T 84). Tax payments affect moral relations with his neighbors, not with the government that levies the tax. Furthermore, Thoreau suggests that tax refusal is a means for something more radical than withdrawing authorization of government policies: It is for no particular item in the tax-bill that I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually…In fact, I quietly declare war with the State, after my fashion, though I will still make what use and get what advantage of her I can, as is usual in such cases. (T 84) (p.165) Tax refusal does not merely withdraw authorization of the government’s conduct; it denies allegiance to the government. The passage just quoted recalls another, in which Thoreau recounts his rejection of the government’s demand that he support the local church, which he never attended. To remove his name from that roll, he was obliged to submit a formal statement that he did “not wish to be regarded as a member of any incorporated society which I have not joined” (T 79). He could not do the same with his government. As he did not emigrate, he was regarded by the government as subject to its authority. We have already seen what he thinks of that. To make clear that he does not accept the government’s moral authority, he withholds the tax it levies. He acts so as to emphasize the morally neutral relation he already Page 14 of 28

Political Responsibility and Resistance to Civil Government 1 bears to the state. Thoreau does not understand his relation to the government in moral terms, nor does he see the government as his agent. Bedau believes that Thoreau’s tax refusal can be understood as a morally principled act only if he embraces the following complex position: A person becomes responsible for the acts of another (person, government) if and only if (and to the degree that) he (a) has authorized that other to act, or (b) has enabled that other to act, (c) knows that the other has used his position and authority to act, and (d) he continues to do (a) and (b), i.e., he does not act to revoke the authority granted or to prevent its abuse. Anyone at all responsible for unjust acts, whether of his own or of another’s, must act so as to acquit himself of the fault incurred by that responsibility. (B 61–2)28 Bedau believes that this commits Thoreau to the notion that the quantity of one’s protest must equal one’s degree of complicity, and he faults this requirement as impossible to satisfy (B 65). For there is no standard way to measure quantities of protest or degrees of responsibility, no less compare them. But this criticism has unclear application to Thoreau, who never suggests that we measure protest or responsibility or that one should equal the other. Thoreau simply calls on us to withdraw personal and material support of the government. With no textual ground for the attribution, (p.166) it seems ungenerous to interpret Thoreau as committed to a comparison that is admittedly impossible. Bedau also says that Thoreau’s principle creates “an inescapably tragic dilemma” for resisters (B 66). Tax refusal is supposed to reduce one’s responsibility for authorizing or enabling the government to implement unjust policies. By parity of reasoning, an individual who authorizes or enables the government to implement just policies incurs credit for its good works. As a consequence, “the very act by which [the tax withholder] exculpates his responsibility for injustice is also an act by which he removes support for his share of the just practices of government. Tax withholding is a very blunt social instrument” (B 65–6). This point assumes that reducing responsibility with merit along with responsibility with fault is no better than retaining both. But that is doubtful. Consider the worst case according to Bedau’s reasoning. If the government does more good than harm, tax refusal might result in a greater loss of moral credit than of moral fault. But that should not be cause for concern, because the tax refuser succeeds in avoiding all the fault that would be incurred by paying taxes while remaining capable of gaining moral credit through action as an independent moral agent. I see no “tragic dilemma” there.

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Political Responsibility and Resistance to Civil Government 1 But even the appearance of a dilemma arises only if Bedau is right in saying that tax refusal is a “blunt social instrument.” He seems to mean it is incapable of targeting just those policies and programs that are held to be objectionable. That seems to be mistaken. Bedau’s reasoning assumes that tax payments go into a general fund which supports all governmental operations. By failing to pay the tax, one reduces support for good as well as bad programs. In fact, the results could be even worse than Bedau suggests. When revenues are inadequate to fund all programs, the government may implement programs selectively and favor unjust programs. Tax refusal could be counter-productive. There are three errors here. First, tax refusal is not necessarily a blunt instrument. A tax refuser can explain her protest and identify the laws and policies to which she objects. In his public lecture Thoreau explains his tax refusal and identifies the governmental policies he regards as unconscionable. Second, a targeted program may be supported by revenue from a dedicated tax. One who wishes to withhold support from the program can refuse to pay that tax. If the poll tax were dedicated to the activities (p.167) condemned by Thoreau, his refusal to pay would be discriminating in this respect. The Massachusetts poll tax was probably not dedicated in that way. If so, Thoreau’s tax refusal could not be assumed to withhold material aid from the government’s support of slavery, its war on Mexico, or its treatment of Native Americans, without withholding support from desirable governmental programs. But thirdly, and most importantly, Thoreau’s poll tax payment is unlikely to make any material difference. A single individual’s poll tax in a populous state involves too small an increment of revenue relative to the total that is either reasonably predictable or actually received to make any appreciable difference to the government’s financial resources. The same is true today of most individuals’ annual income tax assessments. As we have seen, Thoreau appears to assume that his taxes make a difference to the government’s ability to finance its objectionable policies. If so, he was probably mistaken. But the financial effect of tax refusal does not exhaust its material impact. Although the direct financial repercussions of tax refusal by a single individual may be negligible, tax refusal may nevertheless be a significant form of protest. Accompanied by an explanatory message, it can inspire others to resistance. Impressed by the commitment of a few resisters in the face of legal sanctions, officials might fear that many will follow their example and withhold their taxes or take other, concerted action. This can affect the government’s willingness to implement targeted programs. Thoreau was right to think that governments can Page 16 of 28

Political Responsibility and Resistance to Civil Government 1 be resisted “with some effect” (T 85). Small numbers of resisters can have a big impact. Bedau’s objections to the principle that he attributes to Thoreau are weak.29 They also seem directed at the wrong target. The reading we have both given to Thoreau does face a serious criticism, but it does not turn on the efficacy of tax refusal.

(p.168) III Individual Accountability A narrow conception. To see the essential shortcoming of the view we have so far imputed to Thoreau, we can contrast it with the uncontroversial moral idea that we owe recompense to those we have wronged. Following Ross (1930: 21), I’ll call this the duty of reparation. Wrongs vary widely—from unfair judgments to betrayals, negligence to broken promises—as do their consequences. Partly for that reason, we cannot say much more about the requirements of reparation than that we must undo the wrongs we have done. That is, we should take appropriate measures to undo the wrongs; for we cannot be required to undo fully all the wrongs that we have done. First, it may be impossible fully to undo a wrong. We may be unable to undo the damage done by an unwarranted insult or unfair judgment. We may be unable to secure all the resources necessary to repair a wrongful harm. We can no longer undo wrongs to those who have since died. I assume, however, that we are morally bound to address the wrongs we ourselves have done, by ending them, alleviating them, and compensating for them as best we can. Second, in redressing injuries, we are not free to disregard other moral requirements. Reparation is presumably a defeasible requirement; it may be overridden by more pressing moral claims. Third, there may be limits to the degree of personal sacrifice one is morally required to make in redressing wrongs. But the duty of reparation is also somewhat wider than it might at first appear. It presumably concerns not only wrongs we have done alone but also wrongs in which we have participated or are complicit. It seems to presuppose a condemnation of such wrongdoing. If so, it would seem to imply that we should stop that wrongdoing or at least do what we can to reduce it. Perhaps most importantly, the duty of reparation calls on us to work with others where possible, inside or outside established political processes, to improve laws and institutions, reform public policies, and marshal resources to redress the wrongs that we have collectively done. This may well be the most demanding requirement of reparation. It converges with political responsibility.

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Political Responsibility and Resistance to Civil Government 1 (p.169) The duty of reparation seems a minimal conception of one’s individual accountability for social wrongs.30 Decency requires nothing less than addressing the wrongs that we ourselves have done or to which we have contributed. This is a narrow conception because it does not require us to address wrongs done to others that we ourselves have neither done nor aided. A minimal conception of individual accountability holds, in other words, that individual accountability is coextensive with individual responsibility. The initial reading of Thoreau includes a notion of individual accountability that is narrower than this minimal conception in a fundamental way. The initial reading says that one must not be complicit in the government’s injustices. If my government commits a crime, I must withdraw support. But that is all. To “wash one’s hands” is to disengage and walk away. Thus Thoreau seems to hold that one need not act to prevent wrongdoing that might go on without one’s involvement and—most important here—that one is not required to redress the wrongs already done in which one was complicit. By contrast, the duty of reparation—or, in other words, the narrow conception— calls on us to help rectify those wrongs. The notion that we may merely disengage contradicts the idea that we owe recompense to those we have already wronged. Thoreau’s rationale for tax refusal assumes that by paying taxes when we know of the government’s crimes we are complicit in them. It would seem that Thoreau had earlier paid taxes while knowing of what the government was doing. The narrow conception requires him to help redress the wrongs to which he has already contributed. He is not free to “wash his hands” of the matter. The initial reading of his position denies that. To call a conception of individual accountability “narrow” is to allow for the possibility that we are in fact morally required to address a wider class of social wrongs, including some wrongs for which we are in no way responsible. I will distinguish three ideas that go beyond the narrow conception. Consider a young German who believes herself morally bound to help redress wrongs done under the Nazi regime before she was born. She believes it morally incumbent on her to contribute to compensatory (p.170) measures, although she understands that she was not responsible for her government’s wrongdoing. How can we interpret her moral convictions? The problem is not that there is no wrong left to address. On the contrary, wrongs done years ago can result in wrongful suffering and handicaps today, if not for the original victims then for others, such as their descendants. Recompense can still be required. The problem is how persons who were not parties to the original injustice could be morally required to address it.

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Political Responsibility and Resistance to Civil Government 1 A political conception.31 We should first consider the possibility that citizens32 are automatically accountable for the wrongs that have been done by their government, just because it is their government, even when they themselves were not parties to the government’s wrongdoing. That idea might lie behind the young German’s judgment that she is morally bound to help redress wrongs for which she does not hold herself responsible. A political conception of individual accountability would seem to have a natural affinity to the assumption that citizens are morally bound to comply with the laws of their respective communities. Both may be considered specific expressions of the notion that citizenship automatically involves significant moral obligations. But the two ideas seem separable. One who believes it is incumbent on him to help prevent and redress wrongs done by his government could consistently deny that there is a comprehensive moral presumption favoring obedience to law. Citizenship does not seem to be a condition of individual accountability. It is not a sufficient condition. Consider a former slave who was responsible neither for his enslavement nor for the disadvantages that result from his having been enslaved. It is implausible to regard him as morally required to help compensate himself for the wrongs that were done to him by others. If the government supported his enslavement, he is not morally required to help in such a way to redress some of the wrongs done by his government. The point may be generalized. Victims of a government’s (p.171) wrongdoing have a right to redress for those wrongs, not an unqualified duty to help redress them.33 Citizenship is not a necessary condition of individual accountability, either. We may be morally required to address wrongs done by our government, but for reasons that are independent of our citizenship. Those who participate or are complicit in a government’s wrongdoing need not be members of that political community. Operators of a profitable slave trade, for example, can be outsiders. Because such a political conception is itself insupportable, it is incapable of supporting the idea that one is accountable for wrongs done by one’s government for which one was in no way responsible. I shall now suggest two other conceptions of accountability that could support such a judgment. Unjust enrichment.34 The young German might have an obligation to help redress wrongs done by her government before she was born, if she has benefited from that wrongdoing, even though she had no other part in it. She might, for example, have inherited property that was expropriated from victims of the Third Reich. Although she did no wrong, some of her advantages might derive from injustices to others. She might enjoy a standard of living she would not otherwise have achieved. If so, she owes redress to those who have unjustly been disadvantaged by the wrong. Page 19 of 28

Political Responsibility and Resistance to Civil Government 1 I do not pretend to know what redress might be required. It seems reasonable to suppose, for example, that she would be bound to share such a windfall with one who is worse off than she and who would have been better off but for the injustice. But even so simple (perhaps overly simple) a formula seems practically impossible to apply, as it relies on imponderable counterfactuals. This suggests one reason why a political conception may seem plausible. Though unjust enrichment need by no means be distributed throughout a political community, it may be fairest and wisest to distribute the cost of whatever restitution is morally required. There may be no reliable and fair way to measure unjust enrichment or legitimate claims. As governments (p.172) alone may have the means and resources to effect compensation, the best approach might be for the government to provide some measure of restitution and distribute the costs among its citizenry. A related consideration suggesting a political or community-wide approach is this. The persons who are most likely to have valid claims (or the most pressing claims) to restitution as a result of wrongs done by the government are those who need assistance. A humane and just community should undertake to address their needs in any case. There will be little if any need for restitution within a community that provides all of its members with basic economic, political, and social rights—or in a community that seriously commits itself to and embarks upon such a program. We have already seen that accountable beneficiaries of a government’s wrongdoing need not be citizens. Now we can add that, even when they are citizens, their citizenship need not be the factor that determines their accountability, for unjust enrichment is not automatically distributed throughout a political community. For the reasons just given, however, a political or community-wide approach to accountability can be defended. The idea of unjust enrichment might be explained, incidentally, by reference to the moral conception that underlies the principle of fairness. The principle condemns free-riding, which is exploitation on a small scale. As I suggested earlier, it would seem derivative of a broader moral conception that also condemns exploitation on a large scale, as in social practices distributing benefits and burdens inequitably. Unjust enrichment is a possible consequence of such inequity. A wide conception. The duty of justice35 implies a wide conception of individual accountability for social wrongs, for we cannot promote justice without redressing injustice. The duty requires us not only to help eliminate unjust social arrangements but also to help redress the wrongs that others have suffered, no matter who has done them, even if we are in no way responsible for their having

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Political Responsibility and Resistance to Civil Government 1 been done. The duty of justice makes it incumbent on each of us to play our part in righting them. The duty of justice places no special importance on political boundaries. We have (at least in the abstract) no less of an obligation to address wrongs done on the other side of the world than those in our neighborhood. (p.173) Given the magnitude of suffering that flows from wrongdoing, that seems like quite a demanding doctrine. But its actual implications for conduct are limited by practical considerations. Qualifications like those we have noted for the duty of reparation apply here, too: we cannot be expected to do the impossible; even if the general duty of justice is itself pre-eminent, we must initially assume that the various specific requirements that flow from it are defeasible (as some of them may conflict with others); and there may be limits to the degree of personal sacrifice one is morally required to make in redressing wrongs. To do any good at all we must also focus our efforts. We must consider not only the relative importance of different claims, but also where we can most effectively address social wrongs. Most individuals’ efforts can best be applied in their own political communities. That is generally where we can most effectively join forces with others—for collective action is generally necessary to address significant social wrongs. Furthermore, working in our home communities usually enables us to respect our other obligations, based on our past interactions and current relationships with others. We may summarize our provisional findings as follows. First, I can be morally bound to help redress wrongs for which I was not responsible, if I have been unjustly enriched through them or—in any case—as a consequence of a general duty of justice. Second, both factors suggest a political approach to the redress of social wrongs. Thoreau reconsidered. We are now in a position to review our initial reading of Thoreau. In constructing it, I ignored Thoreau’s qualifications as well as other passages in which Thoreau endorses reparation. The passage we relied upon is this: (P) It is not a man’s duty, as a matter of course, to devote himself to the eradication of any, even the most enormous wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support. (T 71) We took this to mean that one must disengage from wrongdoing but that one has no duty of reparation. This suggests that Thoreau is morally self-centered,

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Political Responsibility and Resistance to Civil Government 1 concerned only to reduce his personal share of responsibility for the government’s wrongdoing. But notice that Thoreau says a person is not morally bound “to devote himself” to correcting wrongs—that morality allows room for “other (p.174) concerns.” That qualification leaves room for a duty of reparation.36 This revised reading is confirmed when Thoreau says that there are cases in which a people, as well as an individual, must do justice, cost what it may. “If I have unjustly wrested a plank from a drowning man, I must restore it to him though I drown myself…This people must cease to hold slaves, and to make war on Mexico, though it cost them their existence as a people” (T 68). This is not only to acknowledge the duty of reparation but to regard it as having great weight.37 If I am responsible to any degree for another’s wrongful injury, I may not simply cease my wrongdoing. I must do what I can to undo the wrong. Thoreau here establishes a basis for accountability in one’s past support for government actions which wrongfully injure others. One might nevertheless wonder whether that is too generous a reading of Thoreau. The only action we have seen him take is tax refusal, and that would not seem to help repair the wrongs that have already been done. Because Thoreau believes that his tax payment would materially support the government’s wrongdoing, he assumes that refusing to pay withdraws what material support he might give. But that is only a prospective remedy (and an incomplete one too, as it does not minimize continued wrongdoing by the government); it does not redress any wrongful injuries to which, as he must believe, he has already contributed by paying taxes in the past. Either our initial reading was on the right track after all, and Thoreau’s seeming endorsement of reparation is misleading, or else Thoreau’s practice did not match his moral convictions. It is quite possible that Thoreau did not live up to his professed principles. Few of us do. But there was more to his resistance than his essay reveals. As I noted at the start, Thoreau was not a rigorous analyst or systematic theorist. I suggest, however, that his moral instincts were sound, even if his analysis of tax refusal was faulty. Thoreau was an active conductor on the Underground Railroad. (See Harding 1982: 195–6, 314–17.) This work began some time before his (p.175) 1848 lecture on civil disobedience (his family home was a center of anti-slavery activity) and continued after enactment of the 1850 Fugitive Slave Act. Thoreau did not publicly discuss his assistance to fugitive slaves. To do so would have

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Political Responsibility and Resistance to Civil Government 1 been irresponsible, as publicity might have endangered those he aided and might have closed a route to freedom. Given his work on the Underground Railroad, Thoreau’s practice does not seem that of someone preoccupied with his own moral purity. For the 1850 Act provided severe penalties for such activities.38 And his efforts increased as he perceived the greater need.39 Thoreau did not devote himself to the abolition of slavery or to other radical reforms that he regarded as morally imperative. He did act as one who believes himself morally bound to aid those who are wronged and to help alleviate the wrongs. Because he seemed to assume that his tax payment materially supported the government’s wrongdoing and that he had some responsibility for unconscionable government policies, his assistance of fugitive slaves could manifest either a narrow or a wide conception of individual accountability. Unjust enrichment might also be relevant. Thoreau was, after all, a relatively privileged member of his society. He was not wealthy, but he lived on territory and used resources that had been seized by force, trickery, and terror from Native Americans. The standard of living that he enjoyed may well have been enhanced by his state’s participation in the slave trade (and perhaps by its provisioning US forces invading Mexico). This could explain Thoreau’s accountability for the wrongs that he recognized. It is important to stress the relevance of unjust enrichment because it applies to us today. One need not be a party to past injustices in order to (p.176) owe redress to those of our neighbors who suffer from the legacy of past injustices. One need not embrace either an implausible political conception or even a wide conception of individual accountability to recognize our obligation to help redress our government’s past wrongs. One need only forswear unjust enrichment. Given the considerable social and economic disadvantages imposed by past systems of injustice on immediate victims and their descendants, one need not be especially prosperous to be a possible beneficiary of unjust enrichment. In considering alternative conceptions of individual accountability, I used the example of a young German who believes herself morally bound to help redress wrongs done by her government before she was born. I might instead have mentioned a young American who believes he is morally required to help redress wrongs done by his government during the periods of chattel slavery and subsequent racist regimes. If he is white and not impoverished, then he may well be the beneficiary of unjust enrichment. But one need not have recourse to claims of unjust enrichment. The duty of justice will suffice. For racism continues, though its forms evolve. Exploitation, scapegoating, and brutal stratification are persisting features of our political Page 23 of 28

Political Responsibility and Resistance to Civil Government 1 community. Current policies intensify the injustices and rob our least powerful neighbors of their rights and dignity. On any plausible conception of individual accountability, it is incumbent on us to address those wrongs, as well as the legacy of past wrongs. Notes:

(1) An earlier version of this paper was delivered at SUNY Brockport on October 5, 1995. I am grateful to Joe Gilbert for comments on that version and to Sandy Lyons for comments on the penultimate draft. Work on this paper was supported in part by a fellowship from the National Endowment for the Humanities and by sabbatic support from Cornell University, which I gratefully acknowledge. Some of the ideas developed in it derive from collaborative research and teaching with Matthew Lyons, who is not responsible for the shape they have assumed here. (2) Thoreau referred to that lecture as concerning “The Rights and Duties of the Individual in Relation to Government.” It was first published as “Resistance to Civil Government” in the periodical Aesthetic Papers (1849) and was published posthumously as “Civil Disobedience” in a collection of his writings, A Yankee in Canada, with Anti-Slavery and Reform Papers (1866). See Thoreau 1973: 313– 21. See also Harding (1982: 199–208), on Thoreau’s tax refusal generally. (3) According to Parekh (1991: 20–1), Gandhi was “deeply influenced” by Thoreau, one of the few Western writers whom Gandhi “greatly admired.” See also Iyer 1973: 266–70. For Martin Luther King, Jr., see King 1991b: 418–90. (4) The only previous study of Thoreau by a contemporary philosopher that I have found is Bedau 1970. I discuss Bedau’s interpretation and critique of Thoreau below. (5) For a survey of the recent literature, see Harris 1989. I address the political and analytic shortcomings of that literature in Essay 7. (6) I speak of “accountability” when referring to the moral requirement that one address social wrongs, in order to allow for its possible independence from personal responsibility for (e.g., complicity in) the wrongs. (7) Theorists usually refer to the governmental wrongs that are opposed by political resisters as “injustices.” That description is often apt; it also suggests the gravity of the government’s wrongdoing. However, the term does not fit some wrongs that have been addressed by resisters like Thoreau, which range from genocide to expansionist war. The distinction makes no difference for present purposes. (8) Such a presumption would presumably be limited to a particular community and a morally relevant period of time.

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Political Responsibility and Resistance to Civil Government 1 (9) Such a definition would exclude Thoreau’s tax withholding; but the definition is not at issue here. (10) This is noteworthy because many contemporary political philosophers have come to the conclusion that political obligation does not in fact obtain. Political obligation is an intelligible idea, but it assumes social conditions that are rarely if ever satisfied. (11) It is at best misleading to refer to Jim Crow as a system of segregation, for it was brutally enforced and was inseparable from an ideology of white superiority. (12) I argue in Essay 7 that Gandhi and King, as well as Thoreau, did not believe there is a comprehensive moral presumption favoring obedience to law and that they too saw the need for radical change of the systems under which they lived. (13) Citations of this form refer to pages of Thoreau’s essay in Thoreau 1973. (14) See, e.g., Feinberg 1979: 151–73; Simmons 1979; and Gans 1992. For insightful discussions of both civil disobedience and political obligation, see Greenawalt 1987. (15) Rawls 1971: 355. Rawls does not elaborate on this point because he focuses on the defining characteristics of just (and “nearly just”) societies. (16) See Rawls 1964. Rawls clarified the fairness argument further in Rawls 1971: especially 111–14, 335–6, 342–50, 376–7. (17) In his earlier paper Rawls assumed political obligation (Rawls 1964: 3). His account of political obligation in Rawls 1971 applies only to just or “nearly just” societies, and Rawls makes no claim that political obligation obtains. On the contrary (as I note below), he indicates that its condition (satisfaction of the first principle of justice) does not exist (Rawls 1971: 226–7). (18) Joel Feinberg argues that some kinds of lawbreaking do not involve unfairness; see Feinberg 1979: 53–5. Feinberg’s argument applies to some just laws in just societies. This suggests that it may be a mistake to apply the fairness argument to a legal system as a whole. Conversely, there may be beneficial and just social practices on a smaller scale to which a fairness argument applies, even within unjust societies. (19) Rawls 1971: 112; see also 113, 116. This point accommodates Robert Nozick’s objection in Nozick 1974: 90–5. (20) Rawls 1971: 355 (emphasis added). Rawls (1971: 226–7) explains how existing political systems, including those usually called democracies, substantially violate basic liberties. Thus Rawls should be distinguished from recent theorists of civil disobedience who assume political obligation and the Page 25 of 28

Political Responsibility and Resistance to Civil Government 1 conditions it presupposes. His theory concerns “nearly just” societies, not those we know. (21) This is important because our concern here is with justice, not with the details of Rawls’ theory. (22) Rawls does not develop this aspect of the duty as he does not deal extensively with non-ideal conditions. (23) Reasoning like this might argue for defense of the Union against the Confederacy as well as defense of independent governments in Latin America against US attempts to replace them with more compliant regimes. (24) It is undoubtedly a virtue for a system to be capable of reform as a consequence of political resistance. That property should not be confused with the absence of profound systematic injustice. (25) Thoreau also mentions a third set of governmental crimes: without elaborating he refers to the wrongs done to Native Americans (T 76). (26) Citations of this form refer to pages of the (1991) reprinting of Bedau (1970) essay. (27) It should be noted that Bedau refers to “the task of justifying civil disobedience” (B 66) when the only aspect of civil disobedience as he defines it (B 51) which might be thought to make it need justification is its illegality. Bedau thus assumes political obligation, and he seems to attribute the same assumption to Thoreau. (28) Bedau’s formulation may be incomplete. It implies that knowledge plus either authorizing or enabling is sufficient for incurring responsibility for the government’s injustices. The exculpating actions include revoking authority and preventing its abuse but do not include refusing (further) enablement. (29) Bedau also says that the principle he ascribes to Thoreau does not help to justify civil disobedience because it does not exclude violence, but he recognizes that resisters can have adequate independent reason for avoiding violence (B 66). He says that the principle cannot justify indirect resistance by those who “do not see themselves as having any responsibility for the injustices they wish to protest” (B 64), but he seems unsure whether this constitutes a failing of the principle or of those resisters. (30) The least demanding conception would require one to devote little effort and resources to redress wrongs and would allow the obligation to be overridden easily.

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Political Responsibility and Resistance to Civil Government 1 (31) A political conception would presumably supplement rather than replace the narrow conception. (32) I refer here generally to those who normally reside in and are routinely subject to the laws of a political community, not to some privileged subclass called “citizens” who enjoy special status and who alone possess a full share of political rights. (33) One can have a duty to help redress wrongs done to oneself because one can have a duty to bring wrongs to public notice and to take appropriate action to rectify the wrongs, e.g., when others have also been victimized or others may well be wronged unless such action is taken. I am grateful to Susan Koniak for this suggestion. (34) Unjust enrichment, too, would presumably supplement rather than replace the narrow conception. (35) As I noted earlier, our concern here is with how we may reasonably understand a duty of justice. We are not concerned with any particular theory, such as Rawls’. (36) Though it is ambiguous: it could mean that one is not accountable for all social wrongs or that the duty (whatever its scope) is defeasible. (37) Weight must be distinguished from scope. To regard the duty of reparation as very strong is not to imply accountability for wrongs done entirely by others. Thoreau’s examples may also mislead as to the weight he would assign the duty; in them reparation is totally impossible without great sacrifice. (38) The 1850 Act, which amended the Fugitive Slave Act of 1793, committed not only the federal government much more strongly to the support of slavery but the states and the entire population, e.g., by subjecting individuals to conscription into search and capture parties and imposing severe penalties on private individuals for failing fully to cooperate and strict liability on officials for alleged fugitives who escaped from their care. (Its provisions for summary hearings also violated due process in allowing no testimony from alleged fugitives and awarding commissioners double fees when they judged slave owners’ claims favorably.) (39) Thoreau responded to the crises of the 1850s by endorsing more militant measures against slavery. After the raid on Harper’s Ferry, Thoreau was the first and for some time the only public figure openly to defend John Brown. See Harding (1982: 415–26) on Thoreau’s support of Brown and his aid for Brown’s associates. His increasing militancy is evident in the Reform Papers essays: “Resistance to Civil Government” (1848), Thoreau 1973: 63–90; “Slavery in Massachusetts” (1854), Thoreau 1973: 91–109; and three essays on Brown Page 27 of 28

Political Responsibility and Resistance to Civil Government 1 (1859), Thoreau 1973: 111–53. See also the Textual Introductions in Thoreau 1973: 313–68.

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Courage and Political Resistance 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Courage and Political Resistance 1 David Lyons


Abstract and Keywords This essay relates the author’s personal experience to his academic interests. Growing up under the New Deal, he acquired values it became dangerous to act upon during the Red Scare that followed World War Two. Intense political activity during the early 1950s led the author to abandon college and devote himself to political organizing. Changing circumstances and reflection later led him to resume his studies and to move from engineering to philosophy. The author’s political orientation led him to moral theory and experience made him skeptical of assumptions made by philosophers of good will, such as the idea of a moral obligation to obey unjust as well as just law in the real world. The historical study of political resistance led the author to focus on racial aspects of American history. The deeper he delved, the more he found Americans confronting systemic injustice, some facets of which the other essays in this volume explore. Keywords:   civil disobedience, courage, bravery, my lai, warsaw ghetto, jim crow, mississippi, voting rights, SNCC, CORE

We celebrate courageous acts, but the conventional selection of acts to honor may sanction the slaughter of innocent persons. Most of those who are cited by governments for bravery are military personnel (I shall refer to them, generically, as “soldiers”). We can understand why governments routinely honor soldiers for bravery. Courage is required in warfare. To act as they are told that duty requires, soldiers must overcome reasonable fear of the gruesome dangers

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Courage and Political Resistance 1 that they face. And we can expect governments to claim that their soldiers did not die in vain, but served nobly in a just cause.2 Those claims are often false. Few wars can be justified, and legions of soldiers are sacrificed senselessly even in wars that might plausibly be considered justifiable. In modern war, military strategists deliberately target civilians, who suffer on a massive scale. They order carpet-bombing, fire-bombing, and worse on cities. News accounts may lead us mistakenly to think that systematic rape and ethnic cleansing are recent innovations. But they have long been elements of military strategy aimed at terrorizing and demoralizing civilian populations. Some soldiers who conduct these actions themselves become casualties, and— except in rare cases—they are honored for their service, as are their commanders and the military strategists. At least if they wind up on the winning side. (p.178) I begin with these unpleasant observations because some of my examples involve courage in war-time, including brave acts by combatants. I believe that the individuals I discuss should be honored for their courageous actions. But I also believe we should discriminate. We should grieve for all those whose lives are wasted by war—soldiers as well as civilians—but we should not celebrate courageous acts that are performed in the service of crimes against humanity. Brutal acts are sometimes characterized as “cowardly,” but they need not be. I do not doubt that courage has been displayed in every war. That is a problem; it is not something to celebrate.

I Political Resistance You might well wonder how all of this relates to my announced topic, which refers specifically to “political resistance.” I must explain this term of art for the word “political” may bring to mind contests for public office. Courage is sometimes displayed in that context, as it can be in any realm of human activity, but my focus is different. I began using the term “political resistance” several years ago when study and personal experience convinced me that most theories about the nature and justification of civil disobedience bore little relation to the real, historical acts, campaigns, and movements that are usually referred to when we speak of that category of political activity. Theories of civil disobedience typically assume that those who engage in civil disobedience (1) act unlawfully, (2) for limited reforms, (3) within a system that they respect because they regard it as generally decent and fundamentally just. That view of civil disobedience seems to me mistaken, on all three counts.3 In the first place, some of the most famous and important actions deemed to be civil disobedience were not unlawful. Examples include the non-cooperation campaigns led by Mohandas Gandhi, in which South Asians refused to cooperate

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Courage and Political Resistance 1 further with British colonial rule. Declining to participate in local government was not unlawful. (p.179) A similar case is the decision by African Americans to boycott segregated buses in Montgomery, Alabama—a year-long campaign that brought Martin Luther King, Jr., to public prominence. Walking to work instead of riding a bus is not unlawful. From the political activist’s point of view, the line between lawful and unlawful subsets of resistance is somewhat arbitrary and accidental. Declining to ride the buses in Montgomery, Alabama, was not unlawful, but law enforcement charged King with violating a local ordinance for helping to organize the boycott. An African American might not violate the law by merely requesting service at a “whites-only” lunch counter in Greensboro, North Carolina, but if she stayed there after being denied service and asked to leave, she would be trespassing. Distributing handbills, picketing, and the like may be lawful or unlawful, depending on local conditions. Furthermore, most political activists are neither lawyers nor recipients of legal counsel before they act, so they do not always know whether (for example) a contemplated, peaceful, non-violent action is lawful. On the other hand, they may have excellent reason to expect that police will treat lawful protest as if it were a crime. That reaction to lawful protest is as American as apple pie and racial segregation. These facts suggest the need for a category of political activity that includes both lawful and unlawful acts, which I meet by using the term “resistance.” This particular term seems especially appropriate because reformers must resist enormous pressures that are exerted by and on behalf of the status quo.4 Let us now consider the second and third points embraced by civil disobedience theories, which hold that those who engage in civil disobedience not only (1) act unlawfully, but also (2) act for limited reforms, (3) within a system that they respect because they regard it as generally decent and fundamentally just. Both the historical records and writings of Gandhi and King show that neither of them acted for merely limited reforms. Both regarded the systems against which they respectively struggled as fundamentally (p.180) flawed—undemocratic, brutal, and exploitative—and they expressed themselves clearly on the point. (See Essay 7: 140–4.) The same is true of Henry David Thoreau and, I believe, of most political resisters. (See Essay 8.) King may seem a doubtful case, as the Montgomery bus boycott called for very modest reforms and King publicly endorsed the democratic principles embedded in our Constitution (Essay 7: 141, 143). Nevertheless, King repeatedly made a point of distinguishing America’s official endorsement of democratic values from Page 3 of 16

Courage and Political Resistance 1 its deeply entrenched, profoundly undemocratic practice (Essay 7: 143). The practice that he initially condemned (his condemnation became wider with experience) was Jim Crow, the system of white supremacy that had been in place for generations. Jim Crow excluded African Americans from voting and public office, from decent schools, well-paying jobs, and public services. The Jim Crow system created an economic and social hierarchy in which African Americans were treated with callousness and contempt. Jim Crow was not a peripheral aspect of American society. Racial stratification in political, economic, and social spheres existed in the United States and in the colonial societies out of which it developed for 300 years. Racial stratification pervaded the nation, although more formally in the states of the Old South than elsewhere. After the Civil War, attempts to “reconstruct” the system and secure basic rights for African Americans were violently resisted and soon abandoned. Most importantly, Jim Crow was forcibly imposed. It was sustained by coercion, harassment, intimidation, and terror, and made possible by the most egregiously unlawful conduct of public officials. I am not referring here to officials’ routine enforcement of judicially sustained segregation laws. I am referring to officials’ involvement in kidnapping, rape, and murder. Lynching was commonplace under Jim Crow; it was publicly performed and endorsed as a means of keeping blacks in their place. Lynching is—among other things—murder. Public officials participated openly in lynchings. When they did not, they generally refused to enforce the law against those who did. On the rare occasions when prosecution was attempted, juries generally refused to convict. Federal officials in all three branches of government declined to intervene, even when they had the authority to do so. Theorists of civil disobedience generally ignore the historical fact that frequently, as in the American civil rights context, those who violate the law are not the resisters but the public officials who are committed more to (p.181) the status quo than to the rule of law. When one takes official conduct into account, it becomes much easier to see how King could embrace American ideals but regard the system as fundamentally flawed. For African Americans, the rule of law was a false promise. Inasmuch as Jim Crow and colonialism were not isolated practices but broad systems maintained by those who wielded political power, it is natural to regard resistance to them as political. And the term “political” has in recent years been used to emphasize the systemic dimensions of many serious problems faced by individuals. How broadly should we understand “political resistance”? I do not assume that every human act and interest is usefully thought of as political, but neither am I interested in drawing sharp boundaries around the realm. There seems to me a Page 4 of 16

Courage and Political Resistance 1 significant political dimension, for example, to the plight of the patient whose cancer is caused by toxic pollution that would not exist but for deeply entrenched social practices, which may include systematic violation of environmental laws, the systematic failure to enforce them, and other governmental practices. In addition, there is a political dimension to the cancer patient’s inability to secure adequate medical care because of large-scale efforts to prevent the development of a single-payer system with universal coverage as well as public policies that have encouraged employers to exclude medical insurance from their employees’ fringe benefits. Attempts to change the system can reasonably be classified as political. I note finally, in this connection, that people often show great courage in coping with such commonplace catastrophes. I turn now to a small set of examples in which individuals engaged in political resistance display extraordinary courage. These examples involve events with which we should all be familiar, but my focus is on individuals whose names may not be known to my readers.

II Saving Lives in My Lai On the morning of March 16, 1968, Chief Warrant Officer Hugh C. Thompson piloted a helicopter over the village of My Lai in South Vietnam.5 His job was to observe an action being conducted on the ground by American soldiers. What he saw led him to take a courageous act. (p.182) Thompson noticed wounded civilians lying in several places. He sent down smoke devices to mark the locations of persons needing evacuation for medical treatment. But then he saw American officers deliberately killing the wounded civilians. He also saw American soldiers firing upon other groups of civilians. He landed his helicopter where soldiers were firing at a group of children, women, and old men. He ordered the soldiers to stop firing and deliberately placed himself in the line of fire, between the soldiers and the Vietnamese civilians. Given what he had observed, he could not assume that the soldiers would stop firing. Some of the other officers resented his interference. If the soldiers made him a casualty so that they could continue with the killings, they could report his death as the unfortunate result of “friendly fire.” Many deaths were misreported in Vietnam, although they were usually the deaths of innocent civilians deliberately killed by American bullets. American troops increasingly regarded the Vietnamese as the enemy, and acted accordingly. The killings at My Lai expressed that attitude without inhibition. Thompson took the extraordinary step of calling on another American soldier to shoot at the threatening American troops if they should resume firing at the

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Courage and Political Resistance 1 civilians. But it was not clear that the American soldier would shoot other Americans in order to save Vietnamese civilians, even under such orders. We learned of this particular event because the soldiers did not fire on Thompson. As a result, he was able to rescue nine civilians—two old men, two women, and five children (one of whom died en route to the hospital). After he flew out, however, the soldiers resumed firing on a group of civilians that they had forced into a drainage ditch. Not all were killed at once, and when Thompson returned later he found and rescued another wounded child. Most of the Vietnamese civilians who survived had managed to flee the village early on. Others survived because the dead bodies of victims fell on top of them, shielding them from view. Wounded civilians who were found by the soldiers were killed by their bullets or, in many cases, by their bayonets. Before the events of that morning, 700 people lived in My Lai. On the morning of March 16, 1968, American soldiers killed between 450 and 500 civilians. Although we are told that the original purpose of the military operation in My Lai was to drive an enemy unit out of the village, the Americans saw (p.183) no soldiers and suffered no casualties. Their actions were not a response to enemy fire, for they received none. My Lai is in Quang Ngai province, which had been a center of independence activity under the French colonial regime. American forces regarded its inhabitants as sympathetic to the National Liberation Front and its military arm. The Americans who attacked My Lai that morning had been ordered to destroy the village, and they evidently decided to take the next logical step and kill every person in it as well. What Thompson witnessed and flew into that morning in My Lai has been called a massacre. To massacre civilians was contrary to official policy. Calling what happened in My Lai a massacre distinguishes the mass murders there from the mass killings of civilians by officially approved military actions, such as bombing unseen targets while knowing it would cause extensive civilian casualties and the American “scorched earth policy” that destroyed entire villages. I begin with this example for several reasons. First, as I have mentioned, courage is associated with military actions in war because they require overcoming reasonable fear and inhibitions. In a war-time setting, however, we do not usually think of a soldier facing down his own troops in order to save people deemed enemies. I want to celebrate, and I want you to remember, Hugh Thompson’s courageous action. Second, the example illustrates, in an unusual way, the category of political resistance. Thompson’s act clashed with established American practice, if not Page 6 of 16

Courage and Political Resistance 1 official policy, in Vietnam, and his concern clashed against the attitudes of his brutalized fellow soldiers. Thompson’s brave action was lawful and what he resisted was patently unlawful. As I have noted, however, that combination is not unusual in cases of political resistance. There is a third aspect to this example that is worth noting, and it is common to my other examples (though not, of course, to all cases of honorable resistance). Our soldiers and officials in Vietnam exhibited racist contempt for the Vietnamese. Resistance against racism is worth celebrating.

III Resisting in Warsaw6 My next example also has a war-time setting—the city of Warsaw, Poland, occupied by the German army during World War Two. (p.184) By October 1940, the Germans and their collaborators had driven almost half a million Polish Jews into a small district in the city that became the Warsaw Ghetto.7 German forces required non-Jewish Poles who lived in the designated area to move outside the Ghetto to homes Jews had been forced to abandon. The brick wall German forces constructed to create the Ghetto was eleven miles long, ten feet high, topped by broken glass, and heavily guarded by troops. Conditions within the confines of the Ghetto were disastrous. There was too little space for so many people—on average there were thirteen people to a room— and too little food. As a consequence, a hundred thousand people died in the Ghetto of disease or starvation. Warsaw was not under siege and living conditions were much better on the “Aryan” side of the wall. German forces imposed shortages of food, fuel, and medicine on the Ghetto. The point of the Ghetto was, after all, not simply to segregate Jews but to round them up for extermination. This aim was provisionally served by Ghetto conditions, as well as by random killings and systematic massacres. Ghetto residents managed to establish some illicit trade with the outside and their resourcefulness minimized the Ghetto death rate. In any case, starvation, disease, and gunfire were inefficient methods of extermination. The principal means became, of course, camps that were created for the purpose of extermination. Jews were to be transported by rail from the Ghetto to Treblinka —under conditions on trains that served the same murderous purpose. In 1942, the Germans began systematically rounding up Jews from the Ghetto for transportation to extermination camps. By mid-September, 300,000 had been transported, leaving 50,000 or 60,000 Ghetto residents behind. Of those who

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Courage and Political Resistance 1 remained, half evaded the Germans and half were slave laborers for German businessmen, producing uniforms for the German military. The Germans in charge referred to the transportation process as “resettlement,” but Ghetto residents had reliable reports of its true objective. Word had come of the systematic extermination of Jews in Vilna and (p.185) Chelmno. None of the 60,000 who remained could reasonably expect to survive, unless they escaped. Some Ghetto residents found the reality of “resettlement” too horrible to believe. Despite long Jewish experience with pogroms and German policy under the Third Reich, it remained difficult to think of humans as capable of organizing murder on so massive a scale. At any rate, many Ghetto residents were unwilling or unable to resist. So the first roundup, in the summer of 1942, seems to have met with no resistance. This did not last. About 1,500 young Jews decided to resist. Many joined underground fighting units centered around the remnants of left-wing and Zionist youth groups. Their first public act was taken at the beginning of the second “resettlement” operation, in January, 1943. Ten young Jews with hidden weapons joined a group that German soldiers were leading to the trains and suddenly attacked the soldiers. In the skirmish, German soldiers killed nine resisters. Still, the resisters’ bold act sparked other spontaneous acts of resistance that continued until the Germans ceased the operation after four days.8 These events shocked the Germans, who may have been persuaded by their own propaganda and the compliance up to then of Ghetto residents, that Jews were incapable of militant resistance. The next time, in April 1943, the Germans came in much greater force, for they were determined to complete “resettlement” promptly. But they encountered a more organized, expanded, and sustained resistance, which became known as the Warsaw Ghetto Uprising. The Uprising lasted (by official German count) for twenty-eight days. I do not wish to romanticize the Uprising. The resisters had pistols, grenades, a few rifles and automatic weapons, and some homemade incendiary and explosive bombs. Resisters smuggled some arms into the Ghetto. But they faced an army with tanks, artillery, flamethrowers, and many well-equipped soldiers. As they hoped they would, the resisters drew German blood; but they also suffered heavy casualties. Although they had food, they lacked medicine, and they could not provide much medical assistance to their wounded. They found shelter in bunkers hidden in Ghetto buildings, but the buildings were subjected to bombardment and (p.186) incendiary attack, which led to more casualties and made shelter increasingly difficult to find.

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Courage and Political Resistance 1 The resisters knew they had no hope of military success, and few expected to survive. Survival was possible only by escaping the Ghetto, perhaps to fight with partisans. Escape was difficult but possible, although only on a limited scale. Some resisters eventually left, through sewers and tunnels, with the aid of nonJewish Poles. After the first day of successful resistance, many chose to stay until they could fight no longer. The Ghetto resisters were not suicidal but wanted to make the point, to the world at large and specifically to Jews, that militant resistance was possible and honorable. It was a point they regarded as extraordinarily important. I believe the resisters were courageous. They manifested courage in many ways, and I want to note one way that might not normally be mentioned. One series of events on the first day of the Uprising has been described as follows: On the balcony of [a] corner building, a fighter named Yehiel, almost completely exposing himself to enemy fire, hung over the balustrade to fire more accurately.…After each hit, he had told his comrades inside the flat, he would make a motion with his foot to let them rejoice in his success. Yehiel moved his foot many times, then made no motion at all. An enemy bullet had severely wounded him. (Kurzman 1976: 99) Later, as the others rejoiced in having driven back the invaders, Yehiel was in great pain from his wounds. “Yehiel moaned and writhed in agony, and there was no way to help him—until Mordechai Growas, his group leader, aimed his pistol at him and ended his suffering” (Kurzman 1976: 100). Growas’ act was merciful. I think it was also courageous. Growas did not need to cope with fear or danger when he made this decision, but he had to overcome deep commitments and powerful, humane inhibitions. Resisters performed merciful and courageous acts of a similar nature during the Uprising on at least two other occasions. I want to note another series of courageous acts that might be neglected in a brief discussion of the Warsaw Ghetto Uprising. To underscore their significance, I must provide some background information. During the German occupation, a Polish government in exile was located in London. The Home Army was its underground military wing in Poland. The Home Army included anti-Semitic groups who welcomed the ethnic cleansing of Jews from Poland. They would not support the (p.187) Ghetto fighters, even if it would aid their own resistance efforts. Also, many leaders of the Home Army would not aid any group they regarded as Communist or that might cooperate with Communists. As some of the Ghetto’s fighting groups had ties to Polish Communists, the leaders of the Home Army would not support Ghetto fighters.

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Courage and Political Resistance 1 Not all members of the Home Army agreed with their leaders. Some regarded Jewish resisters as comrades in arms, fighting a common enemy. Captain Henryk Iwanski led a Home Army contingent that, acting on its own, aided the Ghetto resisters. These activities were very difficult and dangerous. The partisans smuggled arms into the Ghetto through the sewer system and led Jews out of the Ghetto by the same route. In entering the sewers through manholes outside the Ghetto, the partisans had to avoid being noticed by Germans and their informers. To find their way within the underground labyrinth, they had to identify Polish workers who were able and willing to serve as guides and who could be relied upon not to provide intelligence to the Gestapo. Iwanski’s efforts were not limited to the transfer of arms and ammunition. For example, on the eighth day of the Ghetto Uprising, he led sixty partisans into the Ghetto to deliver supplies and then to lead, or in some cases carry, civilians out. Before the partisans left, they became embroiled in heavy fighting. Iwanski was severely wounded. German soldiers killed several partisans, including Iwanski’s son, Roman, and brother, Edward. By the eighteenth day, Iwanski had recovered sufficiently to lead twenty-eight partisans into the Ghetto with supplies, and while inside they once again engaged in heavy fighting. His second son, Zbigniew, and a second brother, Waclaw, had insisted on being included, and they too were killed. Iwanski’s father was also killed in a Gestapo raid on a shop outside the Ghetto where Jews were hidden.9 Years later, Iwanski was asked why he risked so much to save Jews. Given the prevailing attitudes, the question was not presumptuous. He is said to have responded, “When a Jew cries, I cry. When a Jew suffers, I am a Jew. All are of my nation, for I am a man” (Kurzman 1976: 331)

(p.188) IV Organizing in Mississippi I turn now to Mississippi voting rights campaigns of the 1960s and specifically to two “local people,” Samuel Block and Annie Belle Robinson Devine.10 They died shortly before this paper was originally written—Block on April 13, 2000, at age 60, Devine on August 22, 2000, at 88. I have chosen to honor them because they are not nearly as well known as their associates Robert Moses and Fannie Lou Hamer.11 In the early 1960s, one needed considerable courage to promote participation by African Americans in Mississippi’s political process. Like other Southern states, Mississippi used various devices with the express aim of keeping blacks from voting and out of public office. These included the “white primary,” the poll tax, and the “understanding clause” of the voter registration laws. However, the principal method of exclusion, there and elsewhere, was brute force. As a result, Page 10 of 16

Courage and Political Resistance 1 94 percent of black adults in Mississippi were not registered to vote, and very few of those who had managed to register were foolhardy enough to try and exercise the franchise. African Americans who returned home after military service in World War Two were determined to end the oppressive system of white supremacy that by then was, in one form or another, three centuries old. They sought first of all to vote. But when, for example, in July 1946, Medgar Evers and other black veterans tried to register in Decatur, Mississippi, a mob of armed white men turned them away.12 Mississippi’s Senator Bilbo publicly urged the use of night-riding terror to dissuade blacks from voting. Blacks who were registered and attempted to vote were threatened, assaulted, and whipped. Law enforcement officers performed such acts and witnessed them without interfering. Many of those who suffered the threats, beatings, and reprisals filed complaints with federal authorities, but the FBI and Department of Justice declined to intervene. (p.189) In the spring of 1955, a voter registration rally in Mound Bayou (near Samuel Block’s hometown of Cleveland) was followed by death threats to the Reverend George Lee, one of the speakers at the rally, and his friend Gus Courts. Two weeks later Lee was murdered in his car and Courts was shot in his store. After calling on blacks to vote in the Democratic primary, Lamar Smith of Brookhaven was shot and killed before many witnesses, none of whom admitted seeing the killer. No arrests in these cases were ever made. Shortly thereafter, Emmett Till was lynched in Leflore County, and the jury refused to convict those identified as his killers. Till, a young teenager from Chicago, was thought to have been too forward with a white woman. Samuel Block. A native of Cleveland, Mississippi, born into a working-class family, Block was a brilliant student who would not accept second-class citizenship. After attending Marlboro College in Vermont for two years, Block transferred to Mississippi Valley State College, from which he was expelled for civil rights activity. In 1962, the Student Nonviolent Coordinating Committee (“SNCC”) asked Block, then twenty-three years old, to initiate a voter registration campaign in Leflore County. Block moved to Greenwood, the county seat, and engaged in that work in a steady and persistent manner, under battlefield conditions, for two exhausting years. Greenwood was the center of Mississippi’s cotton industry. In 1962, its public facilities remained segregated and it was home to the state offices of the White Citizens Council and to a chapter of the John Birch Society. Of the 50,000 African Americans in Leflore County, only 250 were registered to vote. Block began by getting to know the black community. He spent time at stores and juke joints. He had no car or money, and little food. He usually managed to find places to stay and he eventually found space for an office, though pressures Page 11 of 16

Courage and Political Resistance 1 on his hosts sometimes led to his eviction. He organized meetings at which he taught freedom songs and provided an opportunity for people to talk about their common troubles. After he accompanied several blacks to register at the courthouse, he was beaten severely. SNCC sent two more young field workers to Greenwood. When Block accompanied other blacks to register, the police chief cursed and threatened him, and that evening several men carrying guns and chains entered the SNCC office. The three SNCC workers had seen the attackers arriving and managed to escape out an upstairs window and across adjacent rooftops. (p.190) The attackers trashed the office. When Block contacted the Justice Department, they offered him no help except the advice to leave town. The black community became more fearful, but Block and a new co-worker continued the voter registration activities. After Block publicly defied the sheriff’s warning that he should leave town, local blacks rejoined the campaign. In response, Leflore County supervisors voted to stop taking part in a federal surplus commodities program which, at minimal cost to the county, provided food for farm workers’ families in winter, when work and money were scarce. There was terrible hunger in the county that winter; people lacked food, wood for heat, and adequate clothing. SNCC organized a new campaign: they collected food and clothing out of state and distributed it in Greenwood, while offering recipients voter registration forms. After one such shipment, the SNCC office received a telephone threat followed by an arson attack that destroyed buildings adjacent to the SNCC office. When Block publicly reported the sequence of events, police arrested him for inciting a breach of the peace. That was the seventh time police arrested Block during his first eight months in Greenwood. More than a hundred blacks attended his trial. They witnessed the judge offer Block a suspended sentence if he would leave town and Block’s reply, “Judge, I ain’t gonna do none of that” (Martin 2000: C7). That evening a record number attended the voter registration meeting. Block and other SNCC workers were repeatedly shot at, and one was wounded seriously. The SNCC office suffered a more accurate arson attack. Then shots were fired into the house of a local family that was active in the movement, and the black community reacted strongly. During a protest march in response to the shooting, police assaulted protesters using dogs and other methods. Ten leaders of the Greenwood movement were arrested, promptly convicted, and given jail terms and fines. The voter registration campaign then accelerated, though police regularly blocked applicants and had their dogs attack them. The open warfare on lawful registration activities, combined with a growing militancy in the black community, led SNCC to bolster its Greenwood staff and other civil rights groups to send in personnel. Nationally prominent figures, such as Dick Gregory, aided the interstate food drive. When they came to Greenwood, the media followed. The Justice Department followed the media. The Department Page 12 of 16

Courage and Political Resistance 1 started to intervene on (p.191) behalf of voting rights, but it made a deal with local officials that freed some blacks from jail, abandoning others, and effected no change in local conditions. Block and other SNCC field workers continued the voter registration campaign in Leflore County. The black community had become their strong supporters. Block, however, was wearing down. On their way to a SNCC meeting in Atlanta in June 1964, for example, a highway patrolman stopped Block and four other SNCC workers and savagely beat them in the Lowndes County Jail. Block spent the fall of 1964 back in Marlboro College.13 Annie Devine. A single mother of four, Annie Devine had been employed as a domestic worker and taught in an elementary school. When the Congress of Racial Equality (CORE) sent young field workers to begin a voting rights campaign in Canton and Madison County in 1963, Devine was employed by a black-owned insurance company. She had a keen understanding of how to work with people in her community. Long before CORE went to Canton, Devine and other black community leaders had discussed ways to organize local blacks. Devine did not join CORE upon their arrival. After she attended a CORE meeting, her landlord threatened her with eviction. That changed her mind. She gave up her secure job to work full-time for CORE. Devine helped to organize the voting rights campaign. She offered her extensive knowledge of Canton and Madison County, invaluable advice for working with the local black community, and mature, stabilizing leadership to the young field organizers sent by CORE to Canton. The campaign was met with economic reprisals, police roadblocks to prevent people from attending mass meetings, and shots fired at young canvassers. When the black community responded with a boycott of Canton stores, police raided the CORE office and arrested nine voting rights workers for violating a new ordinance requiring permits for literature distribution. Canton held a “Freedom Day” in February, 1964. Three-hundred and fifty blacks went to register at the courthouse. Only five were admitted. Television crews were present, as were federal officials. The Justice Department secured a court order to speed up the process. But when (p.192) the media left, so did the Justice Department, and the police resumed harassing and assaulting those who sought to register. In 1964, a number of blacks throughout Mississippi tried to participate in the process of selecting delegates to the Democratic National Convention, but were turned away. This led to the founding of the Mississippi Freedom Democratic Party (MFDP), which established a parallel party structure, with precinct meetings, city-wide meetings, and a state convention attended by 2,500 people.

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Courage and Political Resistance 1 Devine, Fannie Lou Hamer, and Victoria Gray were among the founders of MFDP, and the three worked closely together thereafter.14 Devine was one of the MFDP delegates who went to the Democratic Party convention in Atlantic City and challenged the credentials of the official state delegation, which had been chosen in a process that excluded African Americans. There was strong initial support for the challenge, but President Johnson and his associates, who were unwilling to alienate Democrats in the Jim Crow South, undermined the challenge. Back home, Devine, Gray, and Hamer sought to run as Democrats for Congress, but officials refused to accept their nominating petitions. In response, they conducted a symbolic, parallel campaign. After the election, the three initiated the Mississippi Challenge: they asked the House of Representatives to unseat the Mississippi delegation. King and other civil rights leaders supported this proposal. The President, again, opposed the measure and it failed. In June of that year, voting rights demonstrations in the state capital of Jackson led to more than a thousand arrests, including, for the first time, the arrest of Annie Devine. There was indeed progress, of the sort that was fought for so hard at so great a cost, after passage of the Voting Rights Act of 1965. But the South was not readily reconciled to the changes that were beginning. There is good evidence of this from participants’ reports of encounters in Jackson, organized by Devine and others, between black women from both the North and the South and white women from the North and the South. (p.193) Further evidence was the incendiary and shotgun attack in January 1966 that destroyed Vernon Dahmer’s house. Dahmer, who had been urging blacks in his Forrest County community to register and vote, managed to save his family, but died from his injuries. Annie Devine continued to live and work in Canton. She was a founder of the Child Development Group of Mississippi and worked as a volunteer in its Head Start program to involve parents, and develop community support.

V Postscript I have recalled for you, or told you about, several courageous people who took considerable risks for extraordinarily important causes. I will close with one qualifying comment. Some of the individuals I have focused on, and some I merely mentioned in passing, died as heroes. I do not want to suggest that courage in worthwhile resistance generally requires heroism. It does not. Nor do I want to suggest that the only suitable setting for courageous action is warfare, the domestic equivalent thereof, or that it must be political.

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Courage and Political Resistance 1 I know a young man who was afraid of water and heights. While a pre-teen, he faced down his own fear and learned to swim. As a teenager, he mustered up the courage to learn rappelling. As a college student, he decided to spend a year abroad, in a country he had never visited, amidst people whose language he had studied only in school. As he departed on that journey, he remarked that it felt like the first time he tried rappelling down a cliff. Many of you have had to face comparable challenges. I honor you for the courage you have had to muster up on occasion. I do not want to minimize its value. We are fortunate if we are not faced with circumstances and choices like those that confronted Hugh Thompson, Mordechai Growas, Henryk Iwanski, Samuel Block, and Annie Devine. In our own ordinarily mundane lives, however, we are occasionally faced with challenges stemming from racist attitudes or oppressive practices which we may find it difficult and uncomfortable to address. It takes courage to resist the small as well as the large manifestations of injustice. I encourage you to rappel down that cliff. Notes:

(1) This essay is a slightly revised version of a talk I gave on November 20, 2000, under the auspices of the Boston University Institute for Philosophy and Religion. I am grateful to Bart Gruzalski, Matthew Lyons, and Sandra Lyons for helpful suggestions. (2) A sensitive regard for those who have lost loved ones in war makes skeptics hesitate, on the official honoring occasions, to express their doubts about the real need for those sacrifices or the justice of the causes. (3) A typical definition holds civil disobedience to be “an illegal, public, nonviolent, conscientiously motivated act of protest, done by someone who accepts the legitimacy of the legal and political systems and who submits to arrest and punishment” (Harris 1989: 2). Such a definition involves a number of arbitrary limitations, but their examination would take us too far afield. (4) I do not mean to suggest that all those who resist prevailing political pressures have justice on their side. That would not be true, for example, of groups that are dedicated to maintaining—or, in their eyes, restoring—white supremacy. They are soldiers in an unjust war, and I shall say no more about them here. (5) This section describes events depicted in Hersh 1970. (6) This part draws upon the depiction of the Warsaw Ghetto Uprising in Kurzman 1976.

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Courage and Political Resistance 1 (7) The German army also forced a number of Roma or “gypsies” into the Ghetto, for they too were targets of the systematic extermination campaign. (8) Theorists have generally assumed that civil disobedience is by definition nonviolent. I make no such assumption about political resistance, even when it is justifiable, though I assume that violence always requires substantial justification. (9) Iwanski and his partisans continued their resistance throughout the German occupation. He was severely wounded again, in August, 1943, and twice more during the general Warsaw Uprising of 1944. (10) See generally Dittmer 1994. For additional discussion of Block, see Branch 1988: 633–6, 680, 712–13, 715–16, 718–19. For additional discussion of Devine, see Mills 1993: 110–11, 116, 130, 145–6, 151, 155, 160–2, 166–70, 197, 312–13, and Crawford et al. 1993: 16, 18–20. (11) For discussion of Moses, see Burner 1994; for Fannie Lou Hamer, see Mills 1993. (12) Evers, who became NAACP field secretary for Mississippi, was later assassinated, in 1963. (13) Block later moved to California. I have not been able to determine whether he returned at all to Mississippi. (14) During this organizing period, Freedom Summer brought hundreds of young people, including many Northern white college students, to work on voter registration in Mississippi. The response of local officials included their participation in the murder of three young voting rights workers, James Chaney, Andrew Goodman, and Michael Schwerner. As Goodman and Schwerner were white, their murders received considerable attention outside Mississippi. Chaney was buried the day following the MFDP state convention.

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Epilog: From Politics to Philosophy 1

Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Epilog: From Politics to Philosophy 1 David Lyons


Abstract and Keywords These essays challenge theorists and citizens to confront grave injustices committed by their country. They call on Americans to take a fresh look at their nation’s beginnings, such as why those who rebelled against English oppression were responsible for greater injustices against their Native American neighbors. Confronting injustice requires Americans to consider why the federal government abandoned Reconstruction after the Civil War and allowed former slave owners to establish a new system of racial oppression called Jim Crow. Confronting injustice calls upon political theorists to test their views in the crucible of social history. It challenges those who debate abstractly the idea of an obligation to obey the law to consider the implications of grievous injustices. It calls upon those who assume that their society is now “reasonably just” to ask when that transformation occurred, despite the fact that children who are black or poor lack are denied equal opportunity Keywords:   politics, philosophy, red scare, mccarthyism, political resistance, political obligation, American history

Politics led me to philosophy. Not the conventional politics of the two big American political parties but street-level agitation for peace and civil rights during the decade following World War Two. The government actively discouraged our activities. Unlike the measures it employed against dissidents like us, our actions were non-coercive, lawful, and public. As my political orientation and experiences have greatly influenced the choice and content of my philosophical projects, I shall interweave the personal narrative with the philosophical account and will include more detail than might be expected for Page 1 of 15

Epilog: From Politics to Philosophy 1 purely academic purposes. Besides, the political background is not likely to be familiar to my readers and may be more interesting than the philosophical story. My earliest political memory is of an experience in the early 1940s, when I was about seven. A friend came to school with traces of knife strokes on his face. That they bore the shape of a swastika was no coincidence, for anti-Semitism infected our divided Brooklyn neighborhood. The hatreds were mutual. Contempt for “gentiles” was commonplace on our side of the line. Our public elementary school, situated on the neighborhood’s fault line, reflected the social division, but its policies were not even-handed. In school assemblies, for example, we celebrated only Christian holidays. I declined to participate in singing Christmas carols—though that minor bit of passive resistance was probably not noticed. My critical faculties were sharpened in an experimental class that occupied the last four years of elementary school. Our teachers led us into (p.195) research projects and engaged us in critical analysis. We took apart advertising and political propaganda. Newspapers provided ample material, as a Red Scare was under way—the one that was later called McCarthyism. By the time we entered high school, a close friend and I had become active in a left-wing youth organization—the Young Progressives of America, which was the youth branch of the Progressive Party of the late 1940s and early 1950s. Given the government’s repressive measures, we assumed that our telephone conversations were not private. There was too much of a risk (later amply confirmed) that our conversations would be overheard by illicit, though official, eavesdroppers. So we omitted identifying references to persons and places. In high school, I became one of the “usual suspects.” On one occasion my friend and I were suspended following the distribution of political leaflets near the school. We were summoned from class to see the Assistant Principal, who held us in his office for hours while he grilled us about our politics and our parents’ choice of publications. It was assumed that we had helped distribute the leaflets, although in fact we had nothing to do with that particular action. In that political climate, I chose to study engineering in college, partly because of its political neutrality. By then I had become active in the Labor Youth League, which was the functional equivalent of a Young Communist League. Preoccupied with politics, after two years I dropped out of college. A friend suggested a machine shop where I might find suitable work. He advised me not to give his name as a reference, as he had earlier tried to unionize the workers. It was a small shop, in which a handful of machinists produced specialized equipment that required careful, close-tolerance work. The crew was cheerful and friendly. Seeing my aptitude, they taught me not only how to operate the Page 2 of 15

Epilog: From Politics to Philosophy 1 various machine tools but how to “set them up” to meet the product specifications and how to grind tool bits for differing materials and applications. I quickly became a capable machinist. A few months later, another friend told me of an apprenticeship that was open next to his workbench in a tool-and-die shop within a large factory. I was soon working with another group of friendly, skilled workers, who were responsible for creating and adapting the machines that were used in the manufacturing process. They too were happy to train a newcomer. I refurbished machine tools in our shop and made emergency repairs on the production lines in the larger factory. (p.196) The work was good, but the wages were low. This became significant another few months later, when my wife-to-be and I decided to get married. I sought a job that would support us both. A third political friend helped me find one in a factory that employed him as a pipe fitter. The work was mainly on thick-walled high pressure pipes that had to be bent to precise angles, often in three dimensions, for installation in power plants abroad. Although it involved working with lengths of pipe that weighed three thousand pounds, the bending process was an art. At crucial stages, the pipe fabricating process required skilled machine tool work, and the company’s increasing production orders could no longer be met by the shop’s one machinist. So my friend told the foreman of my background, and before long I was once again working as a machinist, sometimes directing a crew. I worked in that shop for more than a year, along with experienced welders and boilermakers who introduced me to their crafts. The shop was integrated, the workers comprising an ethnic rainbow, which was most unusual at the time, especially in the plumbers’ union, to which we were affiliated. Although the work we did was exceptionally technical and difficult for the industry, the shop was subject to discrimination by the union. During this time, the Old Left was in crisis, the result of governmental harassment as well as disillusioning revelations about the American Left and the Soviet Union. Without regretting the path we had taken and without abandoning our political ideals, my wife and I dropped out of organized political activity. Reading more widely—especially in contemporary Marxist theory, philosophy of education, and philosophy of science—I came to think that in the long run I would prefer work that used more of my mental skills. I valued and enjoyed the work that I was doing—the camaraderie no less than the machine tool work—but I decided to change directions. Lack of financial resources and ignorance of the possibilities limited what seemed feasible. I was aware, however, that fine, tuition-free colleges were accessible—the engineering school I had left and New York City’s public Page 3 of 15

Epilog: From Politics to Philosophy 1 municipal colleges.2 Thinking that a workable plan was to complete my engineering degree and seek a teaching career in that field, I returned (p.197) to those studies. This time, however, I took evening classes, so that I could continue working full-time while my wife completed her studies. My job was physically demanding and involved much overtime, which were incompatible with studying at night. With a reference from my older brother, I was able to secure work as a draftsman in the engineering department of a large sugar refinery. It was a marvelous arrangement. Armed with measuring tape, pad, and pencil, I would go into the refinery when changes were needed. After studying the situation, I’d return to my drafting desk to draw up a proposal. My engineering supervisor had me design as well as draw. It was sobering to realize that a real structure, filled with heavy machinery, based on my calculations, built from my plans, would arise nearby: this was not merely a problem set for a class. I held that job for two years, until I returned to college full-time during my wife’s last year of graduate school. After my thermodynamics class one evening, the instructor took me aside to urge me to move into a field that was more theoretical than mechanical engineering. His advice fitted my evolving interests. I thought at first of physics, which seemed a reasonable move from engineering. When I finally recognized what issues in my recent reading sparked my interest, however, I moved all the way to philosophy. During all of this time, the FBI made sure that political activists knew that they were continuing to monitor us. Even after I had dropped out of regular political activity, FBI agents would come to my workplace, seeking information from me about others, issuing threats when I declined to cooperate. Agents would visit my employers, presumably to make good on their threats. One personal confrontation was, for a change, more amusing than intimidating— at least in retrospect. When I declined once again to cooperate with their inquiries, one of the agents said angrily that I would never be able to get work as an engineer. They knew that I was back in engineering school. But they did not yet know that I had decided to switch from engineering to philosophy. At a later point I thought they might make good on their threats. This part of the story begins in 1957, when the US was still drafting men into its standing army. After a lengthy and intimidating process, the US Army formally determined that, for political reasons, I was unfit to serve in the military. I had mixed reactions to that outcome. I did not wish to (p.198) participate in American military interventions abroad. I also knew that I took more seriously than my government did the ideals of American democracy that had been so strongly emphasized as I was growing up during the war against fascism. Page 4 of 15

Epilog: From Politics to Philosophy 1 This story continues: After I entered graduate school three years later, the FBI continued in various ways to let me know that I remained a target of their attention. When I had all but completed my doctoral studies, my mentors offered to nominate me for a traveling fellowship. I hesitated to accept the nomination, partly because I was unsure the US government would issue me a passport.3 I had been a prominent activist and had been disparaged officially by the Army. When I explained the predicament, my dissertation supervisor (John Rawls) assured me of university support. My wife and I decided that I should accept the nomination. In due course I was awarded the fellowship, and the government issued the passport—perhaps because by then (1963) it had turned most of its attention away from the Old Left in order to concentrate on harassing activists in the civil rights movement. In graduate school I was drawn to moral philosophy,4 for I discerned a tendency in the utilitarian literature to favor socially conventional rules. (I’ll explain that in a moment.) That perception was enough to engage my dissident inclinations: I determined to counter any academic bias towards social conformism. But utilitarian theories varied along several dimensions. One day, while trying to think about them systematically, I sketched a dialogue between two differing theories, which I personified for the purpose. When pressed to explain how they evaluated conduct, their judgments seemed unavoidably to converge. This led to the conclusion that competing versions of utilitarianism are “extensionally equivalent”: when applied rigorously, they come to the same exact evaluations of individual actions. The argument fully supporting that thesis was complex and had to be developed carefully. The result, drafted in two weeks of intensive work, was my doctoral dissertation (Lyons 1963). My attempt simply to understand the theories led unexpectedly to my project becoming relatively abstract, far removed from my counter-conformist concerns. (p.199) Now to explain. Utilitarian theories evaluate conduct relative to the promotion of welfare5 but differ in the way they do so. “Act utilitarianism,” for example, holds that an act is morally permissible if, and only if, it promotes welfare at least as much as any alternative course of action. That theory had generally been regarded by theorists as the standard version of utilitarianism. Critics cited examples to show that the theory conflicted with our most reflective moral judgments by failing to take adequate account of our moral obligations, such as those that flow from promises and special relations. Some utilitarian theorists, sensitive to these examples, constructed utilitarian theories to withstand such criticism, e.g., by providing a utilitarian account of moral obligations. “Rule utilitarian” theories judge conduct by social rules that are believed to promote welfare and impose obligations. (The rule utilitarian theories that originally attracted my critical attention hold that rules of conventional morality promote welfare better than alternatives.) Other theories judge conduct by asking questions like “What if everyone did that?” The extensional equivalence argument holds that seemingly different utilitarian Page 5 of 15

Epilog: From Politics to Philosophy 1 theories come to the same practical conclusions in their evaluations of conduct. More generally, such variations on utilitarianism could not solve its assumed problems, and some made them worse. The following year, supported by the traveling fellowship, my wife, our infant son, and I lived in Oxford. My examining committee had urged me to turn the dissertation into a book. With further encouragement from my Oxford supervisor (Herbert Hart), I pursued the project, which lasted the entire year. I developed the argument in much greater detail, until I felt that I could do no more. At Hart’s invitation, I left the manuscript with the Clarendon Press (Lyons 1965). My concerns about the extensional equivalence argument did not match those of its subsequent critics. I was unsure, for example, that it was legitimate to employ, as the argument demanded, descriptions of actions that were based entirely on the distinct concerns of the respective theories rather than (p.200) descriptions that we would ordinarily use. That was an issue no critic mentioned. The comment I found most worrisome was that I should have ascribed consequences to actions on a “marginal” rather than a “contributory” basis. In my argument I asked, in effect, how much of the difference an action helps make to the promotion of welfare is attributable to the act itself rather than to other contributing factors, such as the actions of other persons. My critic suggested that I should simply have asked what difference the act itself makes to welfare promotion, given the surrounding conditions. On reflection, I came to recognize that I often reasoned as the critic urged. Many years later I persuaded myself that the extensional equivalence argument works equally well when acts are judged on either basis—but I never confirmed that comforting thought with a fully developed written argument. The extensional equivalence argument may have influenced the development of utilitarian theory. I had the impression that it diverted interest from rule utilitarianism back to act utilitarianism. As the latter theory seemed to me at odds with sensitive moral judgment, I did not welcome that result. At any rate, the argument did not discourage the further development of utilitarianism in various configurations. Utilitarians are not easily discouraged.6 The most important contribution of the extensional equivalence argument may have been the example it sometimes seems to have set in attempting to reason rigorously about normative ethical theory. Theorizing about utilitarianism, for and against, often involves unsupported claims about the consequences of actions. The extensional equivalence argument does not rely on any such estimates. It aspired to, and suggested the possibility of, tight reasoning, even about a theory whose implications depend on contingent facts.

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Epilog: From Politics to Philosophy 1 When we returned to the US from our year in Oxford, the immigration agent took some time consulting his books while processing my passport. I assumed then, and in similar situations later, that my name had triggered a search. The result, however, was only a brief delay, with an impatient toddler. (p.201) Upon our return we moved to Ithaca, New York, the home of Cornell University. Early on it appeared that I had been identified within the university administration as one of the “usual suspects.” (Had the FBI already come to call?) In the spring of 1965, during my first year at Cornell, I was one of a small group of faculty members asked by a high university official for advice concerning a student protest which was expected that evening when Averill Harriman (then US ambassador without portfolio) was to give a speech on campus. It was assumed that Harriman would defend widening American military interventions abroad—in Southeast Asia, where it was supporting a corrupt and unpopular government, and in the Caribbean, where it had just sent Marines into the Dominican Republic to insure that its government would be acceptable to ours. It was agreed that Harriman should give a brief talk instead of his prepared speech and then respond to questions from the audience. In the event, the audience was well behaved but Harriman wasn’t. He responded to students who questioned US military interventions by suggesting that they were “communists.” His stupid and intemperate response outraged the audience, and he hastily departed. The students thereupon decided to occupy the university meeting hall in symbolic protest. A clever faculty colleague prevented potential problems by securing permission from the university administration for the students to stay there overnight—provided that we two served as faculty chaperones! And so began my political career at Cornell. Over the years, I would be drawn from time to time into campus developments that reflected the more troubled world outside. In the spring of 1969, for example, I helped pull together a tiny group of faculty members who urged the university faculty to change its mind and listen to African American students whose grievances had led them briefly to occupy a university building. When we feared that faculty intransigence would result in the occupation of another building by black students, outside police brought to campus, and the shedding of blood, we offered to put ourselves in the potential line of fire: if they occupied a building, we would go along to reduce the likelihood of an armed police attack. Fortunately for all, the vast majority of Cornell students agreed that the faculty should listen to the black students’ grievances, the faculty reconsidered its position, and violence was averted. Another crisis developed in 1985, when students remained in the university’s central administration building after it closed for the day, as (p.202) part of the international campaign to seek divestment from companies doing business with Page 7 of 15

Epilog: From Politics to Philosophy 1 South Africa, so as to put pressure on the South African apartheid government to accept major reforms. The small initial contingent of students committing this most decorous form of civil disobedience was thereafter joined each day by hundreds of other Cornellians. Within a week the campus police had made twelve hundred arrests. As I was on sabbatic leave for the academic year and thus had more free time than most other faculty members, I assumed a good deal of responsibility for working with student and staff organizers. The campaign was long and frustrating. The university president and the board of trustees were anxious to defend a benefactor to the university whose company was heavily invested in South Africa. For a variety of reasons, my philosophical work expanded into legal and political theory. My last graduate school seminar had devoted half the semester to Hart’s recently published The Concept of Law. In Oxford the following year I attended Hart’s lectures and seminars, among others. Shortly after joining the Cornell philosophy department, a senior colleague suggested that I look into the topic of rights. I sought advice about readings on the subject and Hart’s suggestions led me into the jurisprudential literature. When the department reformed its undergraduate offerings, I created a course on the philosophy of law. I taught seminars on topics such as punishment. In 1969 a new member of the law faculty asked me to help him introduce analytical jurisprudence to the law school, and I co-taught his seminar on legal theory. I was soon invited to teach my own courses in that school and in 1979 to join its faculty. And so I came to divide my teaching and research between the two academic units, philosophy and law. An early research project that bridged the two fields was on Bentham. Agreeing to contribute a volume on Bentham to a new series, I taught a seminar on some of his principal works, and found myself puzzling over his explanation of utilitarianism. Conventionally regarded as a creator of utilitarian theory, Bentham differed in his focus from most theorists who supposedly followed his lead. Save for John Stuart Mill, most utilitarian philosophers have seemed preoccupied with particular acts performed by individuals, whereas Bentham was chiefly concerned with law and other institutions. In his Introduction to the Principles of Morals and Legislation, however, Bentham distinguishes the two realms and offers distinct criteria for them: the community’s interest for public policy and the agent’s (p.203) interest for private action. Only such a “dual” interpretation seems to take Bentham at his word (Lyons 1973, rev. 1991). The publications in which I presented that reading may have encouraged others to look more closely at what Bentham actually wrote—which was a message that Hart was more forcefully conveying in his revelatory work in the new collection of Bentham’s writings.

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Epilog: From Politics to Philosophy 1 Around the time my Bentham project ended, John Rawls’s A Theory of Justice appeared (Rawls 1971), which some appreciative reviewers declared meant the demise of utilitarianism. I was no champion of the condemned theory, but the history of ethics suggests that its obituary was premature. Rawls himself treats utilitarianism as the chief alternative to his conception of social justice. Although Rawls compares his theory of justice with a version of utilitarianism, he does not consider the only significant theory of justice that had been developed by a utilitarian, namely, John Stuart Mill’s. That theory has two stages. Mill first analyzes morality in terms of rules that determine moral obligations and, in the case of justice, moral rights as well. Then he argues that the rules are to be identified by means of a utilitarian test. The theory is presented sketchily, but my work on Bentham offered some clarifying clues. Mill criticized much in Bentham, but not Bentham’s conception of rules. That suggests how to explicate Mill’s theories of justice and morality, in terms of useful rules with sanctions attached. My Mill project asked, in effect, whether utilitarianism could ground a plausible theory of moral rights. Mill’s theory might do so if his conceptual analysis of rights in terms of moral rules reasonably excludes the possibility of approving the violation of useful rules when welfare would be maximized by doing so. I argued that Mill does not justify such a theory of rights and, in any case, that such a view would be incompatible with a utilitarian’s overriding commitment to promoting welfare. Generalizing from Mill’s case, it looks as if any utilitarian approach to moral rights would be undermined by the compromises it must make with direct utilitarian reasoning (Lyons 1994a). Of course, some utilitarians disagree; some do not care; and others have reconstructed Mill’s theories differently. Beyond Bentham, my work in legal theory has had two main parts: the “separation” of law and morals and the problem of legal interpretation (Lyons 1993a). In The Concept of Law, Hart seems to endorse the view “that there is no necessary connection between law and morals, or law as it is and law as it (p. 204) ought to be.” As he would probably have agreed, that formulation of the separation thesis needs refinement. Some “necessary connections” are irrelevant to the thesis. On the one hand, Hart acknowledged that prevailing moral values interact with law, which means that there may be causally necessary connections between the two. On the other hand, it is sometimes suggested that those who presume to speak on behalf of the law characteristically claim that it does justice. Even if such a claim were a conceptually necessary feature of law, it would seem irrelevant to the separation thesis.

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Epilog: From Politics to Philosophy 1 The central idea of the thesis seems to be expressed by the platitude that laws (in the ordinary, everyday sense) can be just or unjust, morally defensible or indefensible. Hart did not frame the separation thesis in this way, perhaps because he believed that a book like The Concept of Law should be neutral between skeptical and objectivist views of moral judgment. Hart suggested that laws lack conceptually necessary connections with any moral standards by which they may be judged. As a critic of skeptical conceptions of morality, I prefer to say that laws lack conceptually necessary connections with the standards by which they are properly judged. One commonplace qualification of the separation thesis is implied by the idea that adherence to law constitutes a species of justice—“formal” justice. The idea seems to over-generalize a valid point: that injustice can be done not only by applying unjust law but also by officials failing to follow the law. While Hart seems to embrace the idea of formal justice, he also suggests how the valid point requires qualification; for he says that injustice occurs when official deviation from the law embodies “prejudice, interest, or caprice” (Hart 1961: 157, 1994: 161). So qualified, the valid point does not imply that an official acts unjustly when he refuses to follow an unjust law precisely in order to prevent an injustice. No injustice of any kind would have been done, for example, if a Nazi official deliberately refused to accept conclusive evidence that a particular person qualified for transport to an extermination camp. A point related to the separation of law and morals is that the burden of proof falls on one who claims there is a moral obligation to obey the law. That is because a law’s injustice generates a moral presumption against compliance with it. Theorists who embrace the idea that we have a moral obligation to obey the law generally recognize that the obligation does not exist in all circumstances and that, when it does exist, it might be (p.205) overridden. So the idea is best understood as the claim that there may be good moral reason for all persons in a given community to comply with each and every one of its laws, the unjust as well as the just. I argue that this idea requires further qualification. I see no reason to suppose, for example, that one could be morally required to participate in genocide or some other violation of a fundamental right. It is not that the moral obligation would be overridden in such a case but rather that a moral obligation could not normally extend so far. These points apply to officials as well as to private persons. It seems possible for those who assume a public trust to acquire a special, more stringent moral obligation of fidelity to law. Such an obligation depends, however, on the circumstances of the case and the character of the law. If an individual is coerced into official service by a repressive regime, she may have no moral obligation to enforce the law. And some of the laws she is called upon to Page 10 of 15

Epilog: From Politics to Philosophy 1 implement may involve systematic violations of fundamental rights. For such reasons, it is implausible to suppose that officials always have a moral obligation of fidelity to all of the laws that they are legally required to implement or enforce. Now to legal interpretation: Soon after joining the Cornell law faculty I was urged by colleagues to venture into constitutional law because of its philosophical assumptions. That was an intriguing prospect for someone interested and experienced in political action that was dedicated to the realization of democratic principles. Embarking on the project, I quickly came to appreciate how atypical it had been for the US courts, in the third quarter of twentieth century, to enforce our most prized constitutional rights. I learned how the Supreme Court’s desegregation decision in Brown v. Board of Education had not been welcomed by a number of legal academics and had engendered a politically charged but theoretically confused field of constitutional theory. Consider the theory that asks courts to follow “original intent”—a view I’ll call intentionalism. When legislation and written constitutions must be applied, lawyers and theorists often seek guidance from the “intentions” of the lawmakers. I have argued that this theory, taken literally, is implausible. An individual lawmaker may support a statute intending it to have certain applications so that it might serve some intended purpose. But the lawmaker may be mistaken about what applications of the law would serve the desired end. If the law were applied as intended, it might undermine rather than serve the intended purpose, in which case intentionalism (p.206) generates conflicting imperatives—to apply and not to apply the same law to the same factsituation—which, of course, is guidance it is impossible to follow—and arguably self-contradictory. Also, when a legal change results from the actions of several persons, such as the members of a legislative assembly, sometimes no intention is shared widely enough within the group to justify ascribing an intention to the lawmakers or their enactment, in which case intentionalism implies, implausibly, that a perfectly intelligible law has no meaning or proper application! (Lyons 1999). In any other field, such consequences would discredit a theory. It is unclear, however, that my arguments have had any impact on theorists who work on the issue of legal interpretation. One reason may be that those who employ intentionalist legal reasoning appeal indiscriminately to intended applications and intended purposes, without considering whether those intentions are in fact compatible or, indeed, whether any relevant intention was widely enough shared within the enacting body. Another reason is that frequently the attribution of an intention to a set of lawmakers (or to the law they have enacted) seems tacitly to reflect a value Page 11 of 15

Epilog: From Politics to Philosophy 1 judgment about the law: that it can readily be seen to serve a reasonable (and thus reasonably justifying) purpose. On the one hand, because the value judgment is uncontroversial, it is not identified as such. On the other hand, the (justifying) purpose is ascribed to the law without any evidence that there was an intentional consensus among its enactors. This practice is significant because some who embrace intentionalism insist that laws can be interpreted without exercising value judgment and should always be interpreted in a value-neutral manner. That claim and the accompanying aim are defeated when a purpose is ascribed to a law not on historical grounds but rather because the alleged “purpose” provides a justifying rationale for the law. A related theory holds that the meaning of a law is determined not by the lawmakers’ intentions but by the “original understanding” of what the law meant when it was enacted or ratified. As an original understanding can concern the law’s purpose as well as its applications, this theory faces the difficulties that seem fatal to intentionalism. If the theory refers instead to an original understanding of the text, it will be incapable of helping if there had been no original consensus about the text’s meaning or if the consensus does not determine how the law should apply to the unanticipated fact situation that must now be addressed. (p.207) Intentionalist and comparable theories focus entirely on written law, such as legislative enactments and written constitutions. They ignore some of the law in a “common law” system like ours—the part that is generated when courts provide authoritative interpretations of the law. Because judicial precedents contribute to our law, our system requires a more complex interpretive theory. This gap was addressed in the 1980s when interpretive legal theory was revived by Ronald Dworkin.7 Dworkin argues that interpreting law involves the exercise of moral judgment as well as the attribution of moral principles to the law. He grounds this view on a more general theory about the interpretation of social practices. Dworkin’s theory holds that past authoritative decisions—constitutional, legislative, and judicial—should be understood in terms of those moral principles that show past practice in the best light, which involves justifying past decisions (as far as that is possible). This approach is by no means foreign to legal practice; examples are readily found in judicial opinions and scholarly writings. Dworkin does not claim, however, that judges or lawyers always reason in this way but rather that the approach is more defensible than the alternatives. I have argued that Dworkin’s theory cannot apply generally. The problem is that legal practice (like other social practices) is not always justifiable. Dworkin is aware, of course, that it may not be possible to justify all past authoritative Page 12 of 15

Epilog: From Politics to Philosophy 1 decisions, and that some judicial precedents may reasonably be regarded as “mistakes.” That is familiar judicial practice. But it does not solve the problem. Trouble arises not only when an entire legal system is morally corrupt, as some systems have seemed to be, but also when individual statutes or constitutional provisions are morally indefensible.8 Dworkin’s theory, which requires that statutes and constitutional provisions be interpreted so that they serve some truly justifying rationale, encounters the following predicament: first, we have no reason to assume that every statute or constitutional provision enjoys even a minimal measure of moral justification, and some reason to suppose the contrary; second, courts are not free to discount totally unjustifiable statutes or (p.208) constitutional provisions as “mistakes” that need not be enforced; third, such a statute or constitutional provision can be meaningful enough to have determinate applications in some range of cases. Because Dworkin’s theory holds that the legal meaning and proper application of statutes and constitutional provisions are determined by the principles that provide them with some measure of genuine moral justification, it implies that a morally indefensible statute or constitutional provision cannot be interpreted and lacks legally appropriate application. It would seem to follow that the theory is false or, at best, crucially incomplete. We are left with a conundrum—whether we can identify a plausible, generally applicable approach to the interpretation of law. My recent work has concentrated on the experiences of peoples of color in the United States and the antecedent British colonies over the past four centuries. This is political history, but it raises continuing questions of political morality. Governmental policies in this area have involved systematic discrimination, enslavement, and genocide. Two of the most obvious issues are what forms of resistance can morally be justified and what kinds of corrective justice are now morally required. Prior to my recent work in this area I had addressed the issue of civil disobedience. I was moved to do so upon finding that some of the recent literature misrepresented the judgments I associate with principled criticism of social injustice. Test cases were available in three of the leading theorists and practitioners of civil disobedience: Henry David Thoreau, Mohandas Gandhi, and Martin Luther King, Jr. A significant portion of the recent philosophical literature assumes that those who engage in civil disobedience regard the systems within which they act as sufficiently just to generate a moral presumption favoring obedience to law and thus that such activists faced a moral dilemma framed by a duty of justice and an obligation of fidelity to law. This view of the matter represents a striking gap between political theory and political practice. As the political concerns of Thoreau, Gandhi, and King centered, respectively, on chattel slavery, British Page 13 of 15

Epilog: From Politics to Philosophy 1 colonial rule, and Jim Crow, it would have been unreasonable for any one of them to have regarded the prevailing system as generating a moral presumption favoring obedience to all of the law, including the laws supporting slavery, enforcing British colonial rule, or giving us Jim Crow. And they were reasonable men. The writings of Thoreau, Gandhi, and King confirm their radically negative judgments of the systems under which they lived. King, for (p.209) example, emphasized the awful gap that existed between America’s democratic ideals and its outrageous political practice under Jim Crow. Following a suggestion made by Rawls, I argued that a moral obligation to obey the law is impossible in any community with deeply entrenched, systematic injustice. In such circumstances, there is no moral presumption favoring obedience to some of the community’s laws. This does not tell us what kind of disobedience can be justified, or precisely when, but it clears the way for a more realistic and defensible conception of political deliberation. The second issue, of corrective justice, has often been framed in terms of reparations for slavery. As slavery was abolished a century and a half ago, this way of thinking about the issue suggests that individuals’ claims for compensation today must be based on estimates of the disadvantages they currently suffer that can be traced to wrongs that were done long ago by slaveholders to slaves. As many generations have intervened, estimates of compensation that is morally required today would be, at best, practically impossible. The same applies to the identification of valid claimants and of those who today can justly be called upon to pay. But that way of framing the corrective justice issue is misleading. It obscures the fact that Reconstruction was aborted after the Civil War and that government policies at all levels led to the creation of Jim Crow, another violent system of racial subordination, which continued well into the second half of the twentieth century. Current conditions flow from practices of racial subordination that persisted until the relatively recent past. Slavery and Jim Crow were abolished, but without compensation for their victims. And their legacy is measurable, for example, in the enormous wealth gap between white and black Americans. It is exemplified in the deeply rooted disadvantages of African American children, whose conditions challenge the American ideal of equal opportunity. In their case, corrective justice calls for massive, sustained programs in medical services, housing, education, and other necessities of contemporary life. That returns us to politics, as seems appropriate.

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Epilog: From Politics to Philosophy 1 Notes:

(1) I am grateful to Aaron Garrett, Matthew Lyons, and Sandra Lyons for comments on earlier drafts. (2) The Cooper Union School of Engineering, while private, provided free tuition to its students, as did the municipal colleges New York City at the time. (3) As we were expecting our first child, I was also hesitant to turn down the attractive job offers I had received, which would be necessary if I allowed myself to be nominated. (4) My account will include work in moral and political as well as legal philosophy because they are central to my story and, in any case, legal philosophy is often understood broadly enough to encompass the issues on which I have worked. (5) The extensional equivalence argument is actually broader, applying not just to utilitarian theories but to “consequentialist” theories generally—theories which may embrace basic values in addition to or other than welfare. The extensional equivalence argument compares analogous theories, with identical theories of the good. It concerns only the ways in which those values are applied, that is, whether it makes any difference to evaluate acts individually, as members of sets of similar acts, or as required by useful rules. I refer to utilitarian theories in the text because that terminology is more widely familiar. (6) The same seems true of many philosophers who embrace general theories about right and wrong. They seem much more confident than I could imagine being about such matters. (7) Especially Dworkin 1986. Dworkin’s earlier work, in my view, was neither clear nor general enough to ground a theory of legal interpretation. (8) It is arguable, for example, that the fugitive slave clause of the US Constitution was morally unjustifiable.

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Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

References Cases cited

(p.210) Alexander v. Oklahoma, No. 03-C-133-E, 2004 U.S. Dist. LEXIS 5131, at 37–38 (N.D. Okla. March 19, 2004), aff’d, 382 F.3d 1206 (10th Cir. 2004), reh’g en banc denied, 391 F.3d 1155 10th Cir. 2004), cert. denied, 544 U.S. 1044 (2005). Anonymous (1698) 91. Eng. Rep. 118. Bolling v. Sharpe, 347 U.S. 497 (1954). Brown v. Board of Education, 347 U.S. 483 (1954). Butts v. Penny (1677) 84 Eng. Rep. 1011. Calvin’s Case (1609) 77 Eng. Rep. 377. Cartwright’s Case (ca. 1569) (see Van Cleve 2006: 609n30, 614, 627, 630). Civil Rights Cases, 109 U.S. 3 (1883). Daniels and Daniels v. R. White & Sons, Ltd., and Tarbard ([1938] 4 All E.R. 258). Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), at 407. Elizabeth Key’s Case, Northumberland County Record Book, 1652–1658, fols. 66, 67, 85; Northumberland County Record Book, 1658–1660, fol. 28; Northumberland County Order Book, 1652–1665, fols. 40, 46, 49 (see Billings 1973; Banks 2008). Fernando’s Case, Lower Norfolk County Order Book, 1666–1675, fol. 17 (see Billings 1973). Page 1 of 19

References Gayle v. Browder, 352 U.S. 903 (1954). Hills v. Gautreaux, 425 U.S. 284 (1976). In re African-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027, 1048, 1075 (N.D. Ill. 2004). King v. Inhabitants of Thames Ditton (1785). Miller v. McQuerry, 17 F.Cas. 335 (C.C.Ohio 1853). Moore v. Light, McIlwaine 354 (October 1673) (see Finkelman 1986: 13). Plessy v. Ferguson, 163 U.S. 537 (1896). Prigg v. Pennsylvania, 41 U.S. 539 (1842). Raven’s Case (1661) 84 Eng. Rep. 1065. Re Edward Mozingo, McIlwaine 316 (October 1672) (see Finkelman 1986: 13). Re John Punch, McIlwaine 466 (9 July, 1640) (see Finkelman 1986: 12). Slaughterhouse Cases, 83 U.S. 36 (1873). Somerset v. Stewart, (1772) 98 Eng. Rep. 499. Thomas Sims’s Case, 61 Mass. 285 (1851). (p.211) United States v. Reese, 92 U.S. 214 (1875). Legislation and other written law cited

Virginia colonial enactments (all in Virginia (1809–23), The Statutes at Large, ed. W. W. Hening, Vols. I–III (Richmond: Samuel Pleasants). Act I, March, 1655–6, in I, 396 (Indian children brought in as hostages not to be treated as slaves). Act XVI, March, 1659–60, in I, 540 (An Act for the Dutch and all other Strangers for Tradeing to this Place). Act XII, December, 1662, in II, 170 (Negro womens children to serve according to the condition of the mother). Act III, September, 1667, in II, 260 (An act declaring that baptisme of slaves doth not exempt them from bondage). Act I, October, 1669, II, 270 (An act about the casuall killing of slaves). Act XII, October, 1670, in II, 283 (What tyme Indians to serve). Page 2 of 19

References Act I, November, 1682, in II, 490–2 (An act to repeale former law making Indians and others ffree). Act XVI, April, 1691, in III, 86 (An act for suppressing outlying slaves). Chap. XLIX, October, 1705, in III, 447–62 (An act concerning servants and slaves). Other colonial law

Bull Inter Caetera of Alexander VI, May 3, 1493, in F. G. Davenport (ed.), European Treaties Bearing on the History of the United States and its Dependencies (Gloucester, MA: Peter Smith, 1967), 60–3. Bull Romanus Pontifex of Pope Nicholas V, January 8, 1455, in S. Z. Ehler and J. B. Monall (trans. and eds.), Church & State Through the Centuries (London: Burns & Oates, 1954), 144–51. First Charter of Virginia (1606), in W. MacDonald (ed.), Select Charters and Other Documents Illustrative of American History 1606–1775 (London: Macmillan, 1899), 1–11. First Letters Patent Granted to John Cabot and His Sons, in J. A. Williamson (ed.), The Cabot Voyages and Bristol Discovery under Henry VII (Cambridge: Cambridge University Press, 1962), 204–5. Massachusetts (1976), The Laws and Liberties of Massachusetts 1641–1691: A Facsimile Edition, Containing Also Council Orders and Executive Proclamations, ed. J. D. Cushing, Vol. 3 (Wilmington, DE: Scholarly Resources). Quebec Act of 1774, 14 Geo. III, c. 83. Royal Proclamation of 1763, in A. Shortt and A. Dougherty (eds.), Documents Relating to the Constitutional History of Canada, 1759–1791, 2nd edn. (Ottawa: Historical Documents Publication Board, 1918), 163–6. Scotland [Colliers and Salters] Act of 1606, 4 Jac., c. 2 (Eng.). Second Charter of Virginia (1609), in W. MacDonald (ed.), Select Charters and Other Documents Illustrative of American History 1606–1775 (London: Macmillan, 1899), 11–16. (p.212) Statute of Artificers, 1563, 5 Eliz. c. 4 (Eng.). Third Charter of Virginia (1612), in W. MacDonald (ed.), Select Charters and Other Documents Illustrative of American History 1606–1775 (London: Macmillan, 1899), 17–23. Vagrancy Act of 1547, 1 Edw. 4, c. 3 (Eng.) Page 3 of 19

References Post-colonial law

Aid to Families with Dependent Children, Social Security Amendments of 1974, 88 Stat. 2337, 2359; formerly Aid to Dependent Children, Social Security Act of 1935, 49 Stat. 620. Civil Rights Act of 1866, 14 Stat. 27. Civil Rights Act of 1875, 18 Stat. 335. Civil Rights Act of 1964, 78 Stat. 241. Community Reinvestment Act of 1977, 91 Stat. 1147. Comprehensive Employment and Training Act of 1973, 87 Stat. 839. Constitution of the United States. Enforcement Acts of 1870, 16 Stat. 140, 16 Stat. 254. Enforcement Act of 1872, 17 Stat. 347. Equal Employment Opportunity Act of 1972, 86 Stat. 103. Fair Housing Act of 1968, 82 Stat. 81. Fair Housing Amendment Act of 1988, 102 Stat. 1619. Food Stamp Act of 1964, 78 Stat. 703. Food Stamp Reauthorization Act of 2002, 116 Stat. 312. Freedmen’s Bureau Act of 1865, 13 Stat. 507. Freedman’s Bureau Act of 1866, 14 Stat. 173. Fugitive Slave Act of 1793, 1 Stat. 302. Fugitive Slave Act of 1850, 9 Stat. 462. Head Start Act of 1981, 95 Stat. 499. Home Mortgage Disclosure Act of 1975, 89 Stat. 1125. Homestead Act of 1862, 12 Stat. 392. Housing and Community Development Act of 1974, 91 Stat. 1111. Indian Non-Intercourse Act of 1790, 1 Stat. 137. Job Training Partnership Act of 1982, 96 Stat. 1322, 1357.

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References Medicaid, Social Security Amendments of 1965, 79 Stat. 343. Medicare, Social Security Amendments of 1965, 79 Stat. 286. 21. National Minerals Act of 1866, 14 Stat. 251. Naturalization and Enforcement Act of 1870, 16. Stat. 254. (p.213) Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 110 Stat. 2112. Proclamation of Amnesty and Reconstruction (December 8, 1863), in J. D. Richardson (ed.), Messages and Papers of the Presidents, Vol. 6 (Washington, DC: Bureau of National Literature and Art, 1905–6), 213–15. Reconstruction Act of 1867, 14 Stat. 428. Second Confiscation Act, 12 Stat. 589 (1862). Social Security Act of 1935, 49 Stat. 620. Social Security Amendments of 1965, 79 Stat. 286, 343. Social Security Amendments of 1972, 86 Stat. 1465. Southern Homestead Act, 14 Stat. 66 (1866). Supplemental Security Income, Social Security Amendments of 1972, 86 Stat. 1329, 465. Supplementary Freedmen’s Bureau Act of 1865, 13 Stat. 507. Voting Rights Act of 1965, 79. Stat. 437. Books and articles cited

Abernathy, T. (1959), Western Lands and the American Revolution (New York: Russell and Russell). Abramovitz, M. (1996), Under Attack, Fighting Back: Women and Welfare in the United States (New York: Monthly Review Press). Acuña, R. (2000), Occupied America: A History of Chicanos, 4th edn. (Boston: Addison Wesley Longman). Allen, J. (ed.) (2000), Without Sanctuary: Lynching Photography in America (Santa Fe: Twin Palms). Allen, T. W. (1994), The Invention of the White Race, Vol. I: Racial Oppression and Social Control (London and New York: Verso). Page 5 of 19

References —— (1997), The Invention of the White Race, Vol. II: The Origin of Racial Oppression in Anglo-America (London and New York: Verso). American Heritage Dictionary of the English Language (1992), 3rd edn. (Boston: Houghton Mifflin). Austin, J. (1983), The Austinian Theory Of Law: Being an Edition of Lectures I, V, and VI of Austin’s “Jurisprudence,” And Of Austin’s “Essay On The Uses Of The Study Of Jurisprudence With Critical Notes and Excursus,” ed. W. J. Brown (Littleton, CO: Rothman). —— (1954), The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence, ed. H. L. A. Hart (London: Weidenfeld & Nicolson). Bair, B. (2000), “Though Justice Sleeps: 1880–1900,” in R. D. G. Kelley and E. Lewis (eds.), To Make Our World Anew: A History of African Americans (Oxford: Oxford University Press), 281–302. (p.214) Baker, P. and Harris, D. (1999), Food Stamp Advocacy Guide 1 (Boston: Massachusetts Law Reform Institute). Banks, T. L. (2008), “Dangerous Woman: Elizabeth Key’s Freedom Suit— Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia,” Akron Law Review 41: 799–837. Bedau, H. A. (1969), Civil Disobedience: Theory and Practice (Indianapolis: Pegasus). —— (1970), “Civil Disobedience and Personal Responsibility for Injustice,” The Monist 54: 527–35; reprinted in Bedau (1991), 49–67. —— (1972), “Civil Disobedience: Conscience, Tactics, and the Law by Carl Cohen,” Journal of Philosophy 69: 179–86. —— (ed.) (1991), Civil Disobedience in Focus (London and New York: Routledge). Bentham, J. (1977), Comment on the Commentaries and A Fragment on Government, ed. J. H. Burns and H. L. A. Hart (London: Athlone Press). —— (1970), Of Laws in General, ed. H. L. A. Hart (London: Athlone Press). Berlin, I. (1998), Many Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge, MA: Harvard University Press). —— (1976), “The Revolution in Black Life,” in A. F. Young (ed.), The American Revolution: Explorations in the History of American Radicalism (DeKalb, IL: Northern Illinois University Press), 349–82.

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References Berry, M. F. (1994), Black Resistance/White Law: A History of Constitutional Racism in America (New York: Penguin). Billings, W. M. (1973), “The Cases of Fernando and Elizabeth Key: A Note on the Status of Blacks in Seventeenth-Century Virginia,” William and Mary Quarterly 30: 467–74. Blackburn, R. (1998), The Making of New World Slavery: From the Baroque to the Modern, 1492–1800 (London and New York: Verso). Blank, R. M. (2001), “An Overview of Trends in Social and Economic Well-Being, by Race,” in N. Smelser, W. Wilson, and F. Mitchell (eds.), America Becoming: Racial Trends and Their Consequences, Vol. 1 (Washington, DC: National Academy Press), 21–39. Bonilla, F. and Camarillo, A. M. (2001), “Hispanics in a Multicultural Society: A New American Dilemma?,” in N. Smelser, W. Wilson, and F. Mitchell (eds.), America Becoming: Racial Trends and Their Consequences, Vol. 1 (Washington, DC: National Academy Press), 103–34. Boxill, B. (1972), “The Morality of Reparation,” Social Theory and Practice 2: 113–23. Branch, T. (1988), Parting the Waters: America in the King Years, 1954–1963 (New York: Simon & Schuster). Brophy, A. L. (2002), Reconstructing the Dreamland: The Tulsa Riot of 1921— Race, Reparations, and Reconciliation (Oxford: Oxford University Press). (p.215) Brown, J. M. (1972), Gandhi’s Rise to Power: Indian Politics 1915–1922 (Cambridge: Cambridge University Press). —— (1977), Gandhi and Civil Disobedience: The Mahatma in Indian Politics 1928–1934 (Cambridge: Cambridge University Press). Burner, E. (1994), And Gently He Shall Lead Them: Robert Parris Moses and Civil Rights in Mississippi (New York: New York University Press). Bush, J. A. (2002), “The British Constitution and the Creation of American Slavery,” in P. Finkelman (ed.), Slavery & the Law (Lanham, MD: Rowman & Littlefield), 379–418. Churchill, W. and Vander Wall, J. (1988), Agents of Repression: The FBI’s Secret War Against the Black Panther Party and the American Indian Movement (Cambridge, MA: South End Press). —— —— (1990), The Cointelpro Papers: Documents From the FBI’s Secret War Against Domestic Dissent (Cambridge, MA: South End Press). Page 7 of 19

References Cohen, C. (1971), Civil Disobedience: Conscience, Tactics, and the Law (New York: Columbia University Press). Cohen, M. (1972), “Liberty and Disobedience,” Philosophy & Public Affairs 1: 287–96. Collins, K. (2000), “When Fathers’ Rights Are Mothers’ Duties: The Failure of Equal Protection in Miller v. Albright,” Yale Law Journal 109: 1669–1708. Conrad, C. A. (2000), “Racial Trends in Labor Market Access and Wages: Women,” in N. Smelser, W. Wilson, and F. Mitchell (eds.), America Becoming: Racial Trends and Their Consequences, Vol. 2 (Washington, DC: National Academy Press), 124–51. Council of Economic Advisors for the President’s Initiative on Race (1998), Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin (Washington, DC: Council of Economic Advisers for the President’s Initiative on Race). Cover, R. M. (1975), Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press). Craven, W. F. (1971), “Twenty Negroes to Jamestown in 1619?,” Virginia Quarterly Review 47: 416–20. Crawford, J., Nobles, W. W., and Leary, J. D. (2003), “Reparations and Health Care for African Americans: Repairing the Damage from the Legacy of Slavery,” in R. Winbush (ed.), Should America Pay? Slavery and the Raging Debate on Reparations (New York: Amistad), 251–81. Crawford, V. L., Rouse, J., and Woods, B. (eds.) (1993), Women in the Civil Rights Movement: Trailblazers and Torchbearers, 1941–1965 (Bloomington: Indiana University Press). Currey, C. B. (1968), Road to Revolution: Benjamin Franklin in England 1765– 1775 (Garden City, NY: Anchor Books). (p.216) Curry, L. P. (1981), The Free Black in Urban America, 1800–1850: The Shadow of the Dream (Chicago: University of Chicago Press). Davis, D. B. (2001), “The Enduring Legacy of the South’s Civil War Victory,” The New York Times (August 26). —— (2006), Inhuman Bondage: The Rise and Fall of Slavery in the New World (Oxford: Oxford University Press).

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References DeBow, J. D. B. (1963), “The Interest in Slavery of the Southern NonSlaveholder,” in E. L. McKitrick (ed.), Slavery Defended: The Views of the Old South (Upper Saddle River, NJ: Prentice Hall), 169–77. de Las Casas, B. (1992), In Defense of the Indians, trans. S. Poole (DeKalb, IL: Northern Illinois University Press). Deloria, V. and Lytle, C. (1983), American Indians, American Justice (Austin: University of Texas Press). Denton, N. (2001), “The Role of Residential Segregation in Promoting and Maintaining Inequality in Wealth and Property,” Indiana Law Review 34: 1199– 211. Dittmer, J. (1994), Local People: The Struggle for Civil Rights in Mississippi (Champaign, IL: University of Illinois Press). Donner, F. J. (1980), The Age of Surveillance: The Aims and Methods of America’s Political Intelligence System (New York: Knopf/Random House). —— (1990), Protectors of Privilege: Red Squads and Police Repression in Urban America (Berkeley: University of California Press). Dray, P. (2002), At the Hands of Persons Unknown: The Lynching of Black America (New York: Modern Library). Dworkin, R. (1978), Taking Rights Seriously (Cambridge, MA: Harvard University Press). —— (1982), “‘Natural’ Law Revisited,” University of Florida Law Review 34: 165– 88. —— (1986), Law’s Empire (Cambridge, MA: Harvard University Press). Ebright, M. (1994), Land Grants and Lawsuits in Northern New Mexico (Albuquerque: University of New Mexico Press). Eccles, W. J. (1992), “The Fur Trade and Eighteenth Century Imperialism,” in A. Karras and J. R. McNeill (eds.), Atlantic American Societies From Columbus Through Abolition 1492–1888 (London and New York: Routledge), 212–41. Ellis, J. (2001), Founding Brothers: The Revolutionary Generation (New York: Knopf). Fehrenbacher, D. E. (1978), The Dred Scott Case: Its Significance in American Law and Politics (Oxford: Oxford University Press).

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References Feinberg, J. (1979), “Civil Disobedience in the Modern World,” Humanities in Society 2: 37–59. Reprinted in P. Harris (ed.), Civil Disobedience (Lanham, MD: University Press of America, 1989). (p.217) Finkelman, P. (ed.) (1986), The Law of Freedom and Bondage: A Casebook (New York: Oceana). —— (2001a), “The Founders and Slavery,” Yale Journal of Law and the Humanities 13: 413–49. —— (2001b), “Making a Covenant with Death,” in Slavery and the Founders, 2nd edn. (Armonk, NY: M. E. Sharpe), 3–36. Foner, E. (1989), Reconstruction: America’s Unfinished Revolution 1863–1877 (New York: Harper & Row). Frankel, N. (2000), “Breaking the Chains: 1860–1880,” in R. D. G. Kelley and E. Lewis (eds.), To Make Our World Anew: A History of African Americans (Oxford: Oxford University Press), 227–80. Franklin, J. H. (1994), Reconstruction After the Civil War, 2nd edn. (Chicago: University of Chicago Press). —— and Moss, A. A., Jr. (1994), From Slavery to Freedom: A History of African Americans, 7th edn. (New York: Knopf). Gandhi, M. K. (1942), Quit India, revised edn. (Bombay: Padma Publications). —— (1946), Hind Swaraj or Indian Home Rule, revised edn. (Ahmedabad: Navajivan Publishing House). —— (1958), Satyagraha [Non-Violent Resistance] (Ahmedabad: Navajivan Publishing House). —— (1968), “Satyagraha in South Africa,” in The Selected Works of Mahatma Gandhi, Vol. 3 (Ahmedabad: Navajivan Publishing House). Gans, C. (1992), Philosophical Anarchism and Political Disobedience (Cambridge: Cambridge University Press). Gewirth, A. (1970), “Civil Disobedience, Law, and Morality: An Examination of Justice Fortas’ Doctrine,” The Monist 54: 536–55. Gipson, L. (1988), “The American Revolution as an Aftermath of the Great War for the Empire, 1754–1763,” in P. Hoffer (ed.), A Nation in the Womb of Time (New York: Garland), 47–65.

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Confronting Injustice: Moral History and Political Theory David Lyons

Print publication date: 2013 Print ISBN-13: 9780199662555 Published to Oxford Scholarship Online: September 2013 DOI: 10.1093/acprof:oso/9780199662555.001.0001

Index (p.225) Abernathy, Ralph, 143 abolition, 2, 11–12, 63–65 as a goal of the Civil War, 67 and North-South relations, 60 and racial stratification, 48 in the South, 36 and Thoreau’s tax refusal, 162 accountability, government, 87, 88, 95, 103 accountability, individual and citizenship, 170–171, 170 n. 32 and the duty of justice, 172–173 relevance to the present, 176 and reparations, 88, 168–169, 169n and responsibility, 149 n. 6 Thoreau’s ideas on, 149, 163, 175 act utilitarianism, 199, 200 activism, right wing, 179n activism, youth, 195, see also specific groups Aetna, Inc., 94 n. 15 African Americans, see also civil rights;Jim Crow; lynching; racism; Reconstruction; slavery and the American Revolution, 6–7 and Bacon’s Rebellion, 57, 57n and civil disobedience, 152, 179 civil rights for, 37, 69, 188–193 corrective justice for, 81, 87, 104, 104 n. 32 economic disadvantages, 32, 77 and government, 35, 60, 74, 86 n. 5, 103–104 impact of Revolution on, 10–11 and Jim Crow, 83, 98, 100, 137, 180 King’s campaigns for, 141–144 Page 1 of 29

Index lack of political representation, 48, 95 laws unfavorable to, 127 and political obligation, 155 race riots against, 33–34, 33n, 185 and Reconstruction, 31–32, 66 and residential segregation, 78–79 suffering of, 109–110 treatment at Cornell, 201 Africans and the early slave trade, 49–50 in early Virginia, 17, 19–21, 21 n. 15 enslavement of, 14, 18, 54–55 familiarity with Europeans, 56 before slavery, 47 agriculture during the Civil War, 71 farm workers, 56, 68, 70 n. 36, 190 and land reform, 70 and Native Americans, 7 and slave labor, 50 tobacco farming, 17, 21, 50, 61 Aid to Families with Dependent Children and individual responsibility, 105–106 rise and fall of, 76, 77, 99–100 Albany, Georgia, 142 ambassadors, 201 American Revolution, see War for Independence analytical jurisprudence, 202 antebellum period, 38, 60–61, 62 n. 25, 81, 135 anti-Communism, 145, 187, 195, 197, 201 anti-Semitism, 186–187, 194 anti-slavery sentiment, see also abolition in the antebellum period, 60–61 coexistence with racism, 61n and North-South compromise, 96–97, 97 n. 19 and Thoreau, 139–140, 154, 161 in the Upper South, 63 apartheid, 202 Aquinas, Thomas, 123 n. 10 Army, United States, 197–198 arrests, see also law enforcement; police at Birmingham demonstration, 143 on college campuses, 202 for tax refusal, 161 and Thoreau, 139–140 during voting rights campaigns, 190–192 arson attacks, 190 (p.226) Asian workers, 13, 107 Athens, ancient, 120 Page 2 of 29

Index Austin, John, 120–122 Bacon’s Rebellion, 12–13 aftermath, 23 n. 23 motivations for, 57, 57n bail for protesters, 143 baptism, see also Christianity of children of color, 55 and emancipation, 53 n. 13 and slavery, 18 n. 12, 20, 22, 22 n. 20, 52–53, 52 n. 12 Bedau, Hugo, 130n, 163–164, 163 n. 27, 165n, 167n beneficiaries and the fairness principle, 157–159 of unjust laws, 156 of white supremacy, 146 of wrongs done to others, 171 Bentham, Jeremy And Austin, 121 and consequences ofdisobedience, 116 on obedience to law, 112, 115 and utilitarianism, 114, 202–203 Bilbo, Theodore G., U.S. Senator, 188 Bill of Rights, 7 Birmingham, Alabama, 142–143 black codes, 67 blacks, see African Americans block-busting, 78, 79, 101–102 Block, Samuel, 188–191, 191n bombing of cities, 177 boxing, heavyweight, 33n boycotts legality of, 179 of Montgomery buses, 141, 144 n. 27 during voting rights campaigns, 142–143, 191 Bradley, Justice Joseph P., 37–38 British colonies, see colonies, British Brooklyn, New York, 194 Brown & Williamson Tobacco Company, 94 n. 15 Brown v. Board of Education, 29 n. 2, 75, 98, 205 Brown, Justice Henry Billings, 38 Brown, John, 175 n. 39 Butler, Benjamin F., 70–71 Cabot, John, 52 n. 12 Canadian National RailwayCompany, 94 n. 15 Canton, Mississippi, 191 capital punishment, 26 Caribbean, 201 caste system, see racial stratification Chaney, James, 192n change, radical, 138 Page 3 of 29

Index Charleston, South Carolina, 71 charters, Virginia Company’s, 19, 19n chattel slavery, see slavery Chelmno, Poland, 185 Chesapeake region, 16, 61, 63 Chicago Housing Authority, 101n Child Development Group ofMississippi, 193 children and daycare, 77, 104, 108, 109 enslavement of, 21–22, 135 and equal opportunity, 84, 87,105–106 in the My Lai massacre, 182 needs of, 107–108 and poverty, 3, 78, 83, 103, 129 Christianity, see also baptism in Africa, 56 government support for, 165 and the Pope, 52 n. 12 in schools, 194 and slavery, 20, 22, 23 n. 23, 52–55, 54 n. 16 citizenship for African Americans, 35–36, 67,67 n. 35 definitions of, 170 n. 32 and individual accountability, 170–171 naturalized, 55 n. 18 civil disobedience, 4–5 Bedau’s views on, 167n consequences of, 113, 116 definition of, 131, 131 n. 6, 131 n. 7, 132, 150–152, 178n and divestment movements, 202 and endangering others, 135 justification for, 114–115, 115 n. 2, 137, 163 n. 27 King’s reform goals, 141 legal aspects, 144, 178–179 moral judgments of, 130, 149 vs. political resistance, 185n (p.227) and Rawls, 159 n. 20 Thoreau’s views on, 148 civil rights, 35 and civil disobedience, 152 controversy surrounding, 145 failure to enforce, 74 legislation, 98–99 peaceful demonstrations for, 5, 75 and states’ rights, 37 Supreme Court dismantling of, 39 voting rights campaigns, 188–193 Civil Rights Act of 1866, 67 Civil Rights Act of 1875, 37, 68 Page 4 of 29

Index Civil Rights Act of 1964, 75 Civil Rights Cases, 37–38, 38n, 69 Civil War and the cotton industry, 71 justification for, 160 n. 23 motivations for, 67 veterans of, 72 civilians, 177, 182, 187 claimants, see reparations class dynamics, 12–13 clean hands provision, 26, 26 n. 27 Cleveland, Mississippi, 189 coercive laws, 114, 121 Cohen, Carl, 130n Cold War, 2 collective action, 141, 173 colonies, British, 19 and civil disobedience, 132, 178 and European law, 15 Gandhi’s resistance to, 136, 140 legal status of, 52 profitability of, 16 and slave labor, 17 colonies, French, 183 color blindness, 147 common law, see also law and children, 21–22 and Elizabeth Key case, 20 and legal interpretation, 207 moral foundations of, 124 and slavery, 18–19, 18 n. 12, 27, 51–52, 52 n. 10 and social norms, 25 Communism, see anti-Communism Community Reinvestment Act, 79 compensation, 82–83, 82n, 83n and contributory negligence, 124–125 to former slaves, 2, 70, 81, 85 of living people, 88 competition and equal opportunity, 105 complicity, 163, 165, 165n, 168–169, see also accountability, individual Comprehensive Employment and Training Act (CETA), 76, 77 rise and fall of, 80, 99, 102 concentration camps, 184–185 Concord, Massachusetts, 139–140, 161, 162 Confiscation Act, 72 conformism, social, 198 Congress of Racial Equality(CORE), 191 Congress, U.S., 33 and African American rights, 39,67–68 Page 5 of 29

Index authority of, 37–38, 38n, 59 and civil rights, 75, 97 and land reform, 71, 72, 98 and racist housing policy, 100 and the three-fifths clause, 62 tolerance for lynching, 33, 110 treatment of former slaves, 32 undermining by Supreme Court, 69 and voting rights, 192 consequentialist theories, 199n consistency in principle, 128–129 Constitution, (U.S.) “diversity clause,” 35–36, 35 n. 11 amendments to, 37, 67 n. 34, 68 Dworkin’s assessment of, 126 and fugitive slaves, 59, 62, 97, 110, 110n, 127 King’s support for, 180 and North-South compromise, 96–97, 97 n. 19 oblique references to slavery, 59, 61–62, 62 n. 26 and segregation, 31 support for slavery, 2, 6, 7, 36, 48, 65 undermining by Supreme Court, 69 and unjust laws, 207 n. 8 Constitutional Convention, 2, 36, 96 constitutional law, 205 Continental Congress, 36 contributory negligence, 124–125 Cooper Union School ofEngineering, 196n Cornell University, 201 (p.228) corporations, 73, 86, 94, 94 n. 15 corrective justice, see also reparations and equal opportunity, 91 and government accountability, 3, 87, 104, 106 magnitude of, 111 cotton industry, 64n, 71, 189 counter-factual test, 90–91, 90 n. 11 courage, 5, 177, 182–183, 186–187, 193 Courts, Gus, 189 Crusades, 52 n. 12 CSX Corporation, 94 n. 15 cultural differences, 56 customary law, 24–25 Dahmer, Vernon, 193 Daniels, Mr. and Mrs., 125–126 Davis Bend, Mississippi, 71, 72 day care, 77, 84, 108, 109 de Las Casas, Bartolomé, 12 debt, national, 72 Decatur, Mississippi, 188 Page 6 of 29

Index decisions, judicial, see judicial decisions democracy, 119, 120, 127, 159 n. 20 and inequality, 81 lack of, during Jim Crow, 142 and liberation struggles, 7 and political obligation, 137 n. 19 Democratic National Convention, 192 demonstrations, see protests Department of Justice, 188 derivative claims, 88 descendants, 88–90, 89n, 91, see also inheritance Devine, Annie, 188, 191–193 disabled, programs for, 76 discipline, see punishment discrimination, 37–38, 38n, 106–107, 129 forms of, 128 and political obligation, 156 ubiquity of, 160 disobedience, see civil disobedience diversity clause, 35, 35 n. 11 divestment movements, 202 divine law, 121 Dominican Republic, 201 draft, 197 Dred Scott v. Sandford, 35–38, 37 n. 14, 60, 155 reversal of decision, 67 Dutch slave trade, 1, 14, 19, 49 duty of justice, 159–160, 159 n. 20 and individual accountability, 172–173 relevance to the present, 176 Thoreau’s views on, 4, 161, 163 Dworkin, Ronald, 123–129 early work, 207 n. 7 on imperfect morals, 124 n. 12 and legal interpretation, 207–208 economy, North American and African Americans, 76 and Native Americans, 7 and North-South relations, 64 n. 28 and slavery, 2, 50, 55, 96, 135–136 education, see schools egalitarians, racial, 41, 43 elections, 66, 97, 120, 192 electoral college, 62, 66 Ellsworth, Oliver, 62–63 emancipation, 53 n. 13, 60, 63, 64–65, 65 n. 30, 65 n. 31 employment, 84, 102, 107, 195–196 engineering, 195, 197 English law and slavery, 51–52, 52 n. 10 Page 7 of 29

Index enslavement, 21–23, 52–53, see also slavery Equal Employment Opportunity Act of 1972, 75 equal opportunity, 87, 105, 106 equal rights in the antebellum period, 38 for British subjects, 140 and compliance with law, 118 lack of, 3, 69 and life prospects, 77 and political obligation, 133 progress towards, 76 ethical theory, normative, 200 European Americans, see poor whites; white people European Enlightenment, 96 Evers, Medgar, 5, 188 exports, regulation of, 61 extensional equivalence argument, 198–200, 199n Fair Housing Act, 75, 79, 100 fairness and compliance with law, 117–118 and indirect justification, 126 and political integrity, 127 (p.229) and political obligation, 133, 133 n. 9, 133 n. 10, 151, 156–158, 160 problems with, 158 n. 18, 159 and unjust enrichment, 172 famine in India, 136 farms, see agriculture fascism, 198 federal aid, 73–74, 76–77 Federal Bureau of Investigation, 188, 197, 198, 201 federal government, see also government; specific government entities and African Americans, 66, 82–84, 84n, 103–104 and enforcement of correctivejustice, 107 during Jim Crow, 2, 74–75, 180–181 King’s dealings with, 141 and land reform, 71, 73 limited power of, 61, 69 moral responsibility of, 49 promises to Native Americans, 10 and racial subjugation, 34–35, 86–87 and Reconstruction, 32, 98 and redlining, 79, 100 and states’ rights, 37, 62 support for slavery, 175 n. 38 and voting rights, 68 Federal Housing Administration, 79, 100 Feinberg, Joel, 158 n. 18 Fernando, 22, 25 Fifteenth Amendment, 68 Page 8 of 29

Index Final Solution, 15 finances, see also credit; unjustenrichment and individual responsibility, 105–106, 105 n. 33 and racial inequity, 100, 102–103,108, 108n Fleetboston Financial Corporation, 94 n. 15 Florida, 71 food stamps, 75, 77, 99 formal justice, 204 Forrest County, Mississippi, 193 Fourteenth Amendment, 37, 67 n. 34, 68, 69, 97 Franklin, Benjamin, 8 free-riders, 157, 172 freedmen, 38, 68, 86 after the Civil War, 67 as agricultural laborers, 70 n. 36 betrayal of, 74 compensation for, 81, 85 lack of economic opportunity, 73 and land reform, 70, 97–98 refuges for, 71 suffering during slavery, 93 in the Upper South, 51, 63 Freedmen’s Bureau, 32 Congress’ support for, 97 and land reform, 70, 71, 72, 98 opposition to, 73–74 renewal of, 67–68 freedom, see also emancipation and Bacon’s Rebellion, 57 of indentured servants, 20 and land acquisition, 56 legislation restricting, 58 suits for, 20–21, 22 Freedom Day, 191 Freedom Summer, 192n French and Indian War, 8, 9 Fugitive Slave Act of 1793, 110, 110n Fugitive Slave Act of 1850, 62 n. 25, 127, 175, 175 n. 38 Fugitive Slave Clause, 59, 62, 97 fugitive slaves, 24, 64, 109–110, 175 punishment of, 20, 27, 58 fundamentally just societies, see nearly just societies fur trade, 9 Gandhi, Mohandas K., 4–5 and civil disobedience, 131, 131 n. 6, 140–141, 153 n. 12, 208–209 goals of, 138, 179 legality of protests, 144 n. 23, 178 Thoreau’s influence on, 148 n. 3 gay men, 128 Page 9 of 29

Index Gayle v. Browder, 31 n. 5 genocide, 6 in Europe, 48, 95, 184 as military strategy, 177 Georgia, 2, 36, 61, 64, 96–97, 97 n. 19 Germany, see Nazi Germany Gerry, Elbridge, 65 n. 30 Gestapo, 187 ghettos, black, 78–79, 101–102 Goodman, Andrew, 192n governance African American participation in, 31 (p.230) of the American colonies, 19, 52, 52 n. 11 in a just society, 119, 120 government, 177, see also federal government citizens’ support for, 163–164 defects of, 120 and individual accountability, 170–171 repression of leftists, 195, 197–198 resistance to, 148 responsibilities of, 86, 94–95, 106 role in reparations, 171–172 Thoreau’s views on, 139, 153 wrongdoing by, 150 n. 7 government, British, 140 government, Polish, 186 Grant, Ulysses S., 71, 72 Gray, Victoria, 192 Greensboro, North Carolina, 179 Greenwood, Mississippi, 189 Gregory, Dick, 190 Growas, Mordechai, 186 gypsies, see Roma Hamer, Fannie Lou, 188, 192 Hampton, Fred, 5n Harlan, Justice John Marshall, 38n Harper’s Ferry, 175 n. 39 Harriman, Averill, 201 Hart, H.L.A. (Herbert), 39–40, 199 distrust of law, 115 on fairness, 117 on morals and law, 203–204 on obligation to obey the law, 121–123, 122 n. 7 theory on acceptance, 30, 42–43 on unlawful behavior, 115 n. 3 on the virtues of law, 116–117 writings on Bentham, 203 Hayes, Rutherford B., 66, 68, 97 Head Start programs, 76, 193 Page 10 of 29

Index health care, 10, 107, 109, 181 heavyweight boxing, 33n Henry VII, 52 n. 12 Henry, Patrick, 8 hierarchy, racial, see racial stratification higher education, 196, 196n Hispanic people and poverty, 78 history, legal, 113 history, misrepresentations in, 48 history, political, 208 Hobbes, Thomas, 113 Holland and slave trade, 1, 14, 19, 49 Holocaust, see Nazi Germany Home Army, Polish, 186–187 Home Mortgage Disclosure Act of 1975, 79 Home Owners Loan Corporation, 79, 100 home ownership, 100–103 House of Representatives, see Congress housing for children, 84, 107–108 and racial inequity, 100–103 and segregation, 78–79 Housing and Community Development Act of 1974, 79, see also civil rights human rights, 59, 96 violations of, 16, 28 hunger, 190 hyper-segregation, 78–79, 102–103 immigrants from Africa, 56 to the British colonies, 7–8, 50 in enclaves, 78 exploitation of, 107 imprisonment, slavery as, 15 indentured servants, 17, 50 African, 20, 51 definition of, 15, 19, 59 punishment of, 53 runaways, 27 and white skin privilege, 23 independence movements, 7, 75, 140, 144 n. 27 India, 136, 140–141, 144 n. 27 Indian Non-Intercourse Act, 10 indigo farming, 50 individual accountability, see accountability, individual individual responsibility, see responsibility, individual inequality, racial, 89–90, 95 infidels, persecution of, 52 n. 12 inheritance and life prospects gap, 3, 103, 105–106 Page 11 of 29

Index of moral debt, 88–90, 89n regulation of, 83 of slave status, 54–55 and unjust enrichment, 92, 171 (p.231) injustice avoiding complicity with, 163 in the colonies, 6, 136 and compliance with law, 116–118, 153–154 degrees of, 135, 150 n. 7 distribution of, 134, 155–156, 155 n. 15, 157–158 and entrenched illegality, 45–46 of existing political systems, 120 forms of, 204 during Jim Crow, 137 and legal theorists, 3–4 resistance to, 142, 148, 193 ubiquity of, 144 and unjust laws, 122, 129, 139 victims of, 127–128 institution model, 94, 94 n. 15 insurance, medical, 77 integration, 78, 196, see also segregation integrity, individual, 128–129 intentionalism, 205–207 interpretation, legal, 205–207, see also specific legal theories Irish rebellion, 18 Ithaca, New York, 201 Iwanski, Henryk, and family, 187, 187n Jackson, Mississippi, 192 Jamestown, Virginia, 1, 16, 49 and Bacon’s Rebellion, 12–13, 57 indentured servants in, 19 slavery in, 14 Japanese Americans, internment of, 95 Jeffries, Jim, 33n Jews, 48, 155, 183–187 Jim Crow, 34 brutality of, 28, 151 n. 11 establishment of, 2, 74–75 and government responsibility, 41–44, 89, 103, 209 international condemnation of, 75 legacy of, 3, 76–79, 83, 106–107 and Martin Luther King Jr., 137, 141–144, 180 precursors to, 16 resistance to, 5, 132, 152 and the Supreme Court, 35–39 and unjust enrichment, 92 unlawful conduct during, 29–31, 180–181 violence during, 32–34 Page 12 of 29

Index jobs, 84, 102, 107, 195–196 John Birch Society, 189 Johnson, Andrew, 67, 72–73, 73n, 74, 97 Johnson, Jack, 33n Johnson, Lyndon, 192 judges, 40, 44, 44 n. 21, see also specific judges judgment, moral, 121–122, 122 n. 8 judicial decisions, 48n, 110, 207, see also specific decisions Julian, George W., 70–71 jurisprudential literature, 202 justice of laws, 116–118, 156 in nearly just societies, 119n of past decisions, 128 of political systems, 119–120 Rawls’ theory of, 203 Justice Department, 190–192 justification of civil disobedience, 132, 138, 145–146, 150, 152 of past decisions, 123–124, 125, 207–208 of political obedience, 133 of specific laws, 206 of unfair judgments, 126 of unlawful behavior, 155 of violent resistance, 185n Kentucky, 24 Key, Elizabeth, 20–21, 20n, 24n, 25 parents of, 22 n. 19 Keyser, Thomas, 26 kidnapping and enslavement, 26–27 King, Martin Luther Jr., 4–5 and civil disobedience, 131, 131 n. 6, 141–144, 153 n. 12, 208–209 goals of, 138, 179–180 legality of protests, 144 n. 23, 179 and political obligation, 137 n. 19 resistance to Jim Crow, 137 Thoreau’s influence on, 148 and voting rights, 192 Kretzmann, Norman, 123 n. 10 Ku Klux Klan, 33, 188 Labor Youth League, 195 land, 7–9, 17, 80 and Bacon’s Rebellion, 13, 57, 57n compensation for seizure of, 82, 94 (p.232) and federal revenue, 65 grants to indentured servants, 50 and Native American territory, 65 n. 31 owned by slaves, 55–56 and power, 69–70 Page 13 of 29

Index redistribution of, 2, 70–73, 70 n. 37,80, 97–98 Latin America, 107, 139, 160 n. 23, 161 law, see also specific branches of law basis for slavery, 14–15 beneficiaries of, 157 Bentham’s theory of, 114–115, 115 n. 2 in British colonies, 136–137 and the disenfranchised, 127–128 in England, 18–19 imperfections of, 118–119, 124 n. 12, 125–126 interpretation of, 205–208 during Jim Crow, 137 justice of, 116–118, 133 local laws, 45 M.L. King’s respect for, 141, 142 and morals, 203–204 obedience to, 112, 113, 118, 122,134–135 overly positive views on, 123 Thoreau’s views on, 139, 153 types of, 121 and utilitarian theory, 202–203 law enforcement, 124, 128, see also police after Jim Crow, 2, 99 and customary law, 24–25 and desegregation, 29 n. 2 failures of, 103 and housing discrimination, 79 during Jim Crow, 34, 42, 180–181 and just laws, 156 of unjust law, 116, 123, 205 and racism, 188–189 and slavery, 15–16 unevenness of, 129 and unjust laws, 115, 115 n. 3, 125, 127 and violence, 179 law schools, 202 Lee, Reverend George, 189 Leflore County, Mississippi, 189–191 leftists, repression of, 145, 185, 195 legal interpretation, 205–207, see also specific legal theories legal norms, 39–40, 42 legal theory, 3–4, 113–114, 145, 146–147, 202, see also specific theories legislation anti-lynching, 68, 98 governing slave owners, 53 of slavery, 15–16, 17, 21, 21 n. 16, 24, 51–52 lesbians, 128 liability, 126 liberation movements, 7, 75, 140, 144 n. 27 Page 14 of 29

Index libraries, public, 34 life expectancy, 100 life prospects gap, 3, 76–77, 83, 84 corrective justice for, 104–105, 107 government responsibility for, 104 n. 31, 106 and wealth, 100, 103 Lincoln, Abraham, 67 Lloyd’s (Insurance), 94 n. 15 London, England, 186 Louisiana, 68, 71 Lower South, see also specific states and regions attitude toward abolition, 36 legal protection for slavery in, 96–97, 97 n. 19 power relative to the North, 64 shortage of slave labor, 61, 63 Lowndes County Jail, 191 Luizzo, Viola, 5 lumber, 16, 73 Luxembourg Income Study, 78 lynching after Reconstruction, 68 during Jim Crow, 32–33, 74–75, 180 prosecutions for, 42 tolerance for, 31, 110 machinists, 195–196 Madison County, Mississippi, 191 malfeasance, 15, 16, 28, 45 Mansfield, Lord (William Murray, 1st Earl of Mansfield), 18 n. 12 Marlboro College, 189 marriage, 22 interracial, 20n, 55, 58, 86 n. 2 Marxism, 196 Maryland, 50, 61, 96 Mason, George, 96 mass action, 141, 173 (p.233) Massachusetts anti-slavery sentiment, 161 fugitive slaves in, 109–110, 110n, 127 slavery in, 25–27, 26 n. 26, 27 n. 30 support for slavery, 139 tax refusal in, 167 Massachusetts General Court, 26 massacre at My Lai, 181–183 material disadvantage model, 90–91 McCarthyism, 195 McLean, Justice John, 24 media, 190, 191–192 Medicaid and Medicare, 75, 77, 77n, 99 medicine, preventive, 77 Page 15 of 29

Index Mexican Americans, 106 Mexican land, 139, 161 middle class, 78 Middle Passage, 87n, 135 military force against civilians, 181–183 international, 198, 201 during Reconstruction, 2, 69 seizure of black-owned land, 73 Thoreau’s views on, 161 Mill, John Stuart, 202, 203 Miller v. McQuerry, 24 mining companies, 73 minority rule, 127 misconduct, official, see officials; unlawful conduct Mississippi, 71, 188–193, 192n Mississippi Challenge, 192 Mississippi Freedom Democratic Party (MFDP), 192 Mississippi Valley State College, 189 Missouri, 35 mobility, upward, 103, 113 monopolies, 37 Montgomery bus boycott, 141, 144 n. 23, 179, 180 moral debt model, 88–90, 89n morals and morality and acceptance of legal norms, 40–41 accountability, 89 and Americans of color, 12 and civil disobedience, 140 of common law, 124 complicity in white supremacy, 146–147 for the disenfranchised, 127–128 and government, 94–95, 106 and individual responsibility, 93, 166 and law, 15, 43–44, 44 n. 20, 203–204 laws that dovetail with, 134 and legal interpretation, 207–208 Mill’s work on, 203 moral authority, 139 moral blindness, 110 moral obligation, 121–123, 122 n. 7, 132–133 moral philosophy, 200, 200n and obedience to law, 112, 117 obligation created by, 121–122 and political obligation, 45, 133 and political responsibility, 150 of political systems, 119–120 and racial subjugation, 105, 109–111 and racism, 36, 48, 80, 87 Page 16 of 29

Index of slave owners, 60 and social rules, 122 n. 7 and unjust laws, 152, 156, 160 and unlawful conduct, 115, 115 n. 2, 115 n. 4 Morris, Gouverneur, 62, 65, 96 Moses, Robert, 188 mothers, 107, 191 and welfare, 77, 100, 106 n. 35 Mound Bayou, Mississippi, 189 murder of slaves, 22–23, 53, see also lynching My Lai massacre, 181–183 myopia, moral, 46 national debt, 72 National Liberation Front, 183 National Minerals Act of 1866, 73 Native Americans, 9, 12, 64, 106, 106 n. 36 and the American Revolution, 1, 6–7 before colonization, 7 enslavement of, 21 as indentured servants, 54 n. 16 and the Jamestown settlement, 16 lack of citizenship, 67 n. 35 land seized from, 57, 65 n. 31, 82, 175 and political obligation, 155 reparations for, 94 Thoreau’s support for, 161n and the three-fifths clause, 59 natural duty, 117–119 natural law, 123, 123 n. 10 Navy, United States, 71 (p.234) Nazi Germany, 1, 48, 95 and individual accountability, 169–170, 171 occupation of Warsaw, 183–187, 184n, 187n nearly just societies, 4, 119, 129 and civil disobedience, 138 and the duty of justice, 159, 159 n. 20 and political obligation, 134, 134 n. 12, 151, 158 Rawls’ views on, 155 n. 15 negligence, contributory, 124–125 neighborhoods, segregated, 78–79, 101 New England, 62–63, 63n, 96–97, 97 n. 19, see also specific states New York City, 194 night-riding, 33, 188 non-profit organizations, 80 non-violence, 131 n. 4, 132n, 138, 140, 141 nonfeasance, 15, 16, 45 Norfolk Southern Railway Company, 94 n. 15 norms, legal, 39–40, 42 North Carolina, 2, 50, 61, 97 n. 19 Page 17 of 29

Index Northern states, 60, 61, 63–64, 96–97,see also specific states and regions Northwest Ordinance, 36 Northwest Territory, 60–61, 65, 96 nutrition for children, 107 obedience to law, 128 moral obligation, 121–123, 122 n. 7, 132–133 and unjust laws, 129, 138 obligation, and moral criticism, 121–122, 122 nn. 7–.8 political, see political obligation officials, see also police; politicians and the formal justice argument, 204 interpretation of law, 123–124 and Jim Crow, 2, 103, 137 and legal norms, 40 and moral obligations, 205 and racial subjugation, 89 response to resisters, 167 Thoreau’s advice for, 162 and unlawful conduct, 41, 116, 129, 134 n. 12, 142, 144, 180–181 and voting rights campaigns, 191–192 Old Left, 196, 198 organizing, 189–192 original intent, 205–207 Oxford University, 199 parents, working, 105, 108, 198 n. 3 parks, public, 34 Parliament, English, 6, 18, 18 n. 11, 18 n. 12, 52 paternity of enslaved children, 51 patients’ rights, 181 Pennsylvania, 62 pensions for veterans, 72 people of color, 51, 56 n. 19, 81, 145,208, see also slavery; specific ethnic groups disenfranchisement, 128 persecution of, 106–107, 106 n. 36 and political obligation, 155 and poverty, 3, 78 and racial stratification, 47 n. 2 People’s Party, 74 personal injury law, 124 Phillips, Wendell, 70–71 philosophy, 149, 194, 197 branches of, 198, 198 n. 4 plantations, 63, 67, 69–70, 71, 72 Plessy v. Ferguson, 30–31, 34, 38–39, 68 pogroms, 33–34, 33n, 185, see also violence Poland, 183–187 police, 201 brutality of, 5n, 75 Page 18 of 29

Index during Jim Crow, 34, 189–192 response to peaceful protests, 179 violence against African Americans, 188 political integrity, 125, 127, 128–129 political obligation, 4–5, 45–46, 156 assumptions of, 130–132, 130n Bedau’s views on, 163 n. 27 changing views on, 147, 151 n. 10 circumstances for, 160 and civil disobedience, 132, 144 defeasibility of, 150–153, 150 n. 8 definition of, 150 and democracy, 137 n. 19 and individual accountability, 170 King’s arguments against, 142 limits of, 133–135 Rawls’ views on, 158 n. 17 theories of, 145–146 (p.235) Thoreau’s views on, 139, 154–155 and unjust laws, 136, 136 n. 15, 204–205 political power, 74–75, 92, 118, 120, 126 political resistance, 178, 181–183, 185n political responsibility, 150, 153,160, 168 political theory, 202 politicians, 118, 154, 159 politics and philosophy, 194 poll tax, 188 poor whites, see also poverty; white people aid to, 97 corrective justice for, 109 disenfranchisement of, 128 and land reform, 81, 98 in People’s Party, 74 and redistribution of land, 70 during slavery, 93 population in the colonies, 8, 16–17, 22 and the three-fifths clause, 59, 62 Port Royal, South Carolina, 72 Portugal, 18, 52 n. 12 Portuguese colonies, 17, 18, 52 positivism, 121–123 poverty, 8, 75, 80, 83, 129, see also poor whites and Bacon’s Rebellion, 12–13 in black ghettos, 79, 102 corrective justice for, 3, 107 and government programs, 99 impact on children, 84 and income disparity, 78 Page 19 of 29

Index precedents, judicial decisions as, 110, 207 Prigg v. Pennsylvania, 44, 44 n. 21, 62 n. 25, 110 principled disobedience, see civil disobedience prisoners, abuse of, 32 privilege, 113, 138, see also unjust enrichment; white supremacy programs, social, 107–108 Progressive Party, 195 property. see also home ownership; land human beings as, 19, 23, 49, 53, 53 n. 15, 60, 62 losses during the Civil War, 72 protection of, 62, 64–65 and taxes, 164 unequal distribution of, 120 Protestant churches, 52–53 protests, 4–5, 167, see also civil disobedience anti-war, 152 on college campuses, 201 against Jim Crow, 141 legality of, 179 against lynching, 110 and Martin Luther King, Jr, 142–143 and police violence, 190 and Thoreau, 154 provisional fixed point, 134, 134 n. 13, 136 n. 15 public services for children, 84 and inequality, 68, 86 n. 5 public housing, 77, 79, 99, 101, 101n and segregation, 43, 79 and unjust enrichment, 92 public transportation, 79, 108, 109, see also Montgomery bus boycott Punch, John, 27, 28n punishment of civil disobedients, 131, 138, 152 and divine law, 121 Gandhi’s views on, 140 for helping fugitive slaves, 175 n. 38 of indentured servants, 20 of slaves, 22–23, 53 strategic acceptance of, 142 Quebec Act of 1774, 9 Quit India program, 140 R.J. Reynolds Tobacco Company, 94 n. 15 race of life, 105 race riots, see pogroms racial stratification, 28, 29–30, 47 n. 2, 180 after Reconstruction, 74 and anti-slavery sentiment, 61n beneficiaries of, 146 Page 20 of 29

Index creation of, 2, 47–48, 57–58 disadvantages to white workers, 93 persistence of, 49, 90 reduction of, 76 responsibility for, 80 support for, 66, 97 and unjust enrichment, 92 (p.236) racial subjugation corrective justice for, 104 and individual responsibility, 94 legacy of, 91 and public policy, 86, 86 n. 5 suffering caused by, 109 racism, 12 decline of, 75 forms of, 109, 146–147, 146 n. 32 growth of, 58 King’s views on, 144 and the My Lai massacre, 183 persistence of, 60, 111 relationship with slavery, 57, 61n resistance to, 76, 193 systemic, 86, 86 n. 5, 89 railroads, 38n, 73 rape, 22, 30, 177 Rawls, John and the duty of justice, 159–60, 159 n. 20, 160 n. 22 on fairness, 126, 156–158 on injustice, 134, 155–156, 155 n. 15 and nearly just societies, 119–121, 119n, 134 n. 12 and political obligation, 117–118, 130n, 133 n. 9, 158 n. 17, 209 theory of justice, 203 on Thoreau, 139 real estate agents, 78, 80 reasonably just societies, see nearly just societies Reconstruction, 31–32, 66, 70 n. 36 failure of, 2, 69, 90, 97–98, 180 and land reform, 70–73, 80–81 legal aspects, 37 and racial stratification, 48 Reconstruction, Second, 76, 90 rectification, see corrective justice; reparations Red Scare, see anti-Communism Redemption period, 66 redlining, 78–79, 101–102 Reeb, James, 5 reform, 146 n. 31, 160 n. 24, 162 and civil disobedience, 131, 138, 162, 179–181 and the fairness principle, 158 Page 21 of 29

Index justification of, 145 and Martin Luther King, Jr., 141 religion, see specific religions reparations, 32, 73, see also corrective justice and accountability, 92, 93 and ancestry, 86 n. 2 claims against corporations, 94, 94 n. 15 complicating factors, 65 n. 29, 81–83, 83n, 85 and distribution of recompense, 171–172 effectiveness of, 173 and government responsibility, 49, 95 and individual accountability, 168–169, 169n missed opportunity for, 2, 87, 87n and the moral debt model, 88–90, 89n for non-economic factors, 83n for recent wrongs, 3, 86 and rectification, 104, 111 redistribution of land, 70–73 Thoreau’s views on, 173–174, 174 n. 37 repression, government, 145, 185, 195 Republican Party, 2, 32, 66, 73 requirements, moral, 150 resettlement, 184–185 resistance, 138, 167, see also civil disobedience; political resistance; protests and courage, 193 and the duty of justice, 160 and the fairness principle, 158 to Jim Crow, 2 legality of, 144 n. 27, 179 as a moral imperative, 152, 161 tax refusal as, 162 Thoreau’s views on, 154 in the Warsaw Ghetto, 183–187 responsibility and accountability, 94, 149 n. 6, 169 and Bedau’s reading of Thoreau, 165–166 collective, 80–84, 84 n. 46 individual, 87 for Jim Crow, 89 and the life prospects gap, 105–106, 105 n. 33 and the material disadvantagemodel, 91 and political obligation, 160 for racial inequity, 80 and tax refusal, 162 and unlawful conduct, 116–118 (p.237) revolution, 161–162, see also independence movements Revolutionary War, see War for Independence rice farming, 50 right-wing groups, 189 Page 22 of 29

Index Roma, 48, 184n rule of law, 15, 46 for African Americans, 137 during Jim Crow, 181 and military force, 69 and unlawful enslavement, 1, 16, 28 rule utilitarian theories, 199, 200 rules of adjudication, 39 rules of change, 39 rules of recognition, 40 rules, legal, 39–40, 44, 44 n. 20 rules, social, 199 Sale of Goods Act, 126 Sanford, John, 35, 35 n. 10 satyagraha, 140 schools, 68 access to education, 77 free lunches, 107, 109 in ghettos, 79 inadequacy of, 84 needs of poor children, 107, 108 and religion, 194 and segregation, 29 n. 2, 34 Schwerner, Michael, 192n scorched earth policy, 183 Scott, Dred, see Dred Scott v. Sandford Second Confiscation Act of 1862, 71 Second Reconstruction, 76, 90, 99 Section 8 housing, see public services security, personal, 157 segregation, 3, 86 n. 5 in cities, 78–79 in the Deep South, 189 financial effects, 103 and government policies, 101–102, 101n legality of, 30–31 protests against, 141 of schools, 29 n. 2 and separate but equal doctrine, 39 self-ownership, 27 Selma, Alabama, 5 Senate, U.S., see Congress Seven Years War, 8, 9 sexism, 12 sexual violence, 22, 30, 177 sharecroppers, 2, 68, 70 n. 36 Shaw, Chief Justice Lemuel, 109–110, 110n, 127 Sherman, William Tecumseh, 71, 72 shipping industry, 50 Page 23 of 29

Index Sims, Thomas, 109–110, 127 Slaughterhouse Cases, 37, 69 slave codes, 67 in Spanish colonies, 56 n. 19 and violence toward slaves, 53 n. 15 in Virginia, 21, 21 n. 17, 23 slave owners and baptism of slaves, 53 n. 13 descendants of, 82 and emancipation, 64–65 and fugitive slaves, 127 government support for, 16, 110n and political power, 59 rape of female slaves, 22 responsibility to former slaves, 81, 85 slave trade, 25–27 in 17th century Virginia, 49 benefits to non-slave states, 63n changes over time, 56 and the Constitution, 59, 97 external vs. internal, 23 n. 23, 61, 63, 135 government incentives for, 21 profitability of, 52 slavery, 11, 93, 135–136, see also reparations and civil disobedience, 132 and the Constitution, 6, 7, 36, 59–60, 61 eligibility for, 54–55, 54 n. 16 in European law, 18, 18 n. 11 government tolerance for, 63 legacy of, 3, 76, 82 legal authorization of, 1, 14–27, 51–52 and political obligation, 155 rectification of, 81–83, 83n responsibility for, 80 Thoreau’s protest of, 139–140 in Virginia, 17, 49–50 in the Warsaw Ghetto, 184 slum clearance programs, 79 Smith, John, 26 Smith, Lamar, 189 social justice, 159–160, 173 social mobility, 56, 58 (p.238) social programs, 75–76, 76–77,105–106 soldiers, 18, 177, 177n, 181–183, 185 solidarity, 57–58, 158 Somerset v. Stewart, 18 n. 12 South Africa, 136, 140, 202 South Asia, 136, 178 South Carolina, 64 Page 24 of 29

Index disputed elections, 68 and land reform, 71–72 shortage of slave labor, 61 and slavery, 36, 50, 96–97, 97 n. 19 Southeast Asia, 181–183, 201 Southern Homestead Act, 72, 73 Southern states, see also specific states and regions adoption of Jim Crow, 74 and class system, 66, 69–70 and land reform, 71, 72 and political power, 2 racial stratification in, 180 during Reconstruction, 68 and slave labor, 50 Soviet Union, 2, 196 Spain, 18, 52 n. 12 Spanish colonies free people of color in, 56 n. 19 and fugitive slaves, 64 legal status of, 52 and Native Americans, 12 and the slave trade, 17, 18 state governments, 45, 68, 71–72, 74 states’ rights, 37, 62 Stevens, Thaddeus, 70–71, 72, 98 stratification, racial, see racial stratification strikebreakers, 93 student activists, 201–202 Student Nonviolent Coordinating Committee (SNCC), 189–191 subjugation in colonies, 136 suburbs, white, 78, 102 Sumner, Charles, 70–71 Supplemental Security Income, 76, 99 Supreme Court, 37 n. 14, 205, see also specific decisions and fugitive slaves, 110, 110n and Jim Crow, 31, 31 n. 5, 35, 98 undermining of Reconstruction, 97 Supreme Judicial Court of Massachusetts, 109–110, 110n Taney, Chief Justice Roger, 35–38, 60, 110–111, 155 Tarbard, Mrs., 125–126 taxes and abolition, 65 on colonists, 6, 9 on exports, 61 and incentives for slave traders, 21 on land, 66 non-payment of, 71 political significance of payment, 163–164 refusal to pay, 139–140, 161–167,169, 174 Page 25 of 29

Index Temporary Assistance to Needy Families, 77, 100 tenant farmers, 70 n. 36 territory, see land Texas, 71 theories of civil disobedience, 152–153 theory, legal, 113–114, 145, 146–147, 202, see also specific theories theory, utilitarian, 198–199 Third Reich, see Germany Thompson, Hugh C., 181–183 Thoreau, Henry David, 5, 135n assistance to fugitive slaves, 175 Bedau’s views on, 163–164 and civil disobedience, 131, 131 n. 6, 139–140, 148, 151 n. 9, 152, 153 n. 12, 208– 209 defender of John Brown, 175 n. 39 goals of, 138, 180 and individual accountability, 169, 173–174, 174 n. 36, 174 n. 37 influence on Gandhi, 148 n. 3 objections to slavery, 135 reasons for tax refusal, 4, 161–162 stance on non-violence, 138n views on law, 153 three-fifths clause, 59, 61–62, 62 n. 24, 97 Tilden, Samuel, 66, 68, 97 Till, Emmett, 189 tobacco farming, 17, 21, 50, 61 transportation, public, 108, 109 Treblinka, 184 Tuskegee syphilis experiment, 95 Underground Railroad, 4, 174–175 understanding clause, 188 unemployment, 79, 100, 136 (p.239) unions, labor, 13, 93, 196 United Nations, 75 United States formation of, 96–97, 97 n. 19 restoration after the Civil War, 67 United States Postal Service, 68 United States v. Reese, 69 Universal Declaration of HumanRights, 75 unjust enrichment, 92–94 and individual accountability, 171–172, 173, 175–176 unjust laws and the duty of justice, 159 and the fairness principle, 157–158 Gandhi’s views on, 140–141 and legal interpretation, 207, 207 n. 8 and political obligation, 151, 154–155 unlawful conduct, see also civil disobedience Page 26 of 29

Index consequences of, 116 and the fairness principle, 158, 158 n. 18 during Jim Crow, 137 justification for, 4, 115, 150 lynching, 32–33 and moral standards, 113 in nearly just societies, 134 n. 12 by officials, 2, 29 Upper South, 36, 63, 96, see also specific states and regions uprisings, 57, 62 n. 26, see also Bacon’s Rebellion utilitarianism, 114, 115 n. 2 Bentham’s writings on, 202–203 competing versions of, 198–200 Vermont, 189 veterans, 8, 72, 75, 188 Veterans Administration, 79, 100 victims, duty of, 170–171, 171 n. 33 Vietnam War, 181–183 Vilna, 184 violence, 167n against civilians, 181–183 against former slaves, 67, 98 against freedmen, 74 against Jews, 194 during Jim Crow, 2, 30, 32–34, 137, 180 justification for, 185n and rape, 22, 30, 177 and residential segregation, 78 against slaves, 22–23, 28, 53, 53 n. 15 and voting rights, 188–189 Virginia and anti-slavery sentiment, 36, 96 Bacon’s Rebellion, 12–13, 23 n. 23,57, 57n revocation of charter, 52 n. 11 and slave trade, 49–50, 61 and slavery, 1, 14, 16, 18 n. 12, 51,51 n. 6 Virginia Company of London, 19, 19n voting rights, 5, 120, see also civil rights for African Americans, 66, 67, 68, 76 campaigns for, 188–193, 192n and democracy, 81 universal male suffrage, 73, 97 for women, 66 n. 33, 81 Voting Rights Act of 1965, 75, 192 wage labor, 73, 84 Wannsee conference, 48, 95 war, 26, 139, 164, 177, 177n, see also specific wars War for Independence, 1, 6–13, 96, 110, see also liberation movements War on Poverty, 83, 99 Page 27 of 29

Index Warsaw Ghetto Uprising, 155, 183–187 Warsaw Uprising of 1944, 187n Washington, George, 8 wealth, see also unjust enrichment and income disparity, 78 and individual responsibility, 83 and political power, 69–70 and racial inequity, 3, 100, 102–103, 105–106, 105 n. 33, 120 rectification of inequality, 108, 108n of slave holders, 92 welfare corporate, 76 expansion of, 76 and individual responsibility, 105–106 myths surrounding, 106 n. 35 reform, 77 and utilitarianism, 199, 199n, 203 West Indies, 17 Western states, 71 White Citizens Council, 189 white flight, 78, 101–102 white people, 107, see also poor whites and Bacon’s rebellion, 57 as factory workers, 13 (p.240) and home ownership, 101 and interracial marriage, 58 life prospects of, 100 and moral blindness, 110 and naturalized citizenship, 55 n. 18 passive response to white supremacy, 146, 146 n. 30 and residential segregation, 78–79 and unjust enrichment, 92–93, 176 white primary election, 74, 188 white skin privilege, 23, 23 n. 23 white supremacy, 2, 76, 141 after Reconstruction, 66, 68 benefits to European Americans, 94 and desegregation, 42 in the Dred Scott decision, 36, 60 entrenchment of, 74 and Jim Crow, 98, 137, 151 n. 11 King’s views on, 180 manifestations of, 109–110 passive disagreement with, 146 and right-wing activists, 179n support for, 33, 46, 67 in the Virginia legislature, 58 and voting rights, 188–189 women, 11 Page 28 of 29

Index women’s suffrage, 66 n. 33, 81 working class, 13, 23, 23 n. 23, 50, 93 World War II, 1, 75, 95, 183–187, 188 xenophobia, 56 Young Communist League, 195 Young Progressives of America, 195 Zionist youth groups, 185

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