Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration of Black Life Under American Law from 1619 to 1972 and a Challenge to Prevailing Notions of Legally Based Reparations

Boston College Third World Law Journal Volume 26 | Issue 2 Article 1 4-1-2006 Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration of Black Life Under American Law from 1619 to 1972 and a Challenge to Prevailing Notions of Legally Based Reparations Carlton Waterhouse Florida International University College of Law, Follow this and additional works at: http://lawdigitalcommons.bc.edu/twlj Part of the Civil Rights and Discrimination Commons Recommended Citation Carlton Waterhouse, Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration of Black Life Under American Law from 1619 to 1972 and a Challenge to Prevailing Notions of Legally Based Reparations, 26 B.C. Third World L.J. 207 (2006), http://lawdigitalcommons.bc.edu/twlj/ vol26/iss2/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Third World Law Journal by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact . AVOIDING ANOTHER STEP IN A SERIES OF UNFORTUNATE LEGAL EVENTS: A CONSIDERATION OF BLACK LIFE UNDER AMERICAN LAW FROM 1619 TO 1972 AND A CHALLENGE TO PREVAILING NOTIONS OF LEGALLY BASED REPARATIONS Carlton Waterhouse* Abstract: The growing body of literature on reparations consists primarily of articles showing that black reparations are consistent with various legal theories, promote racial justice, or further broader societal goals like eliminating poverty and promoting education. This article takes the distinct position of challenging reparations supporters to justify their conªdence in the legal system to deliver meaningful reparations for slavery and segregation in light of the historic use of law as a means of instantiating white racial supremacy and the prospective individualistic approach to race adopted by contemporary judges and legislators. The article also challenges those who oppose reparations based on its supposed unfairness to contemporary citizens to explain how their position differs from that of past generations who opposed reparations and related legal efforts to redress racial injustices as unfair at that time. To support the challenge to reparations commentators, the article examines the historical framework of blacks’ relationship to the law through legislation and court rulings from 1619–1963. The article closes by presenting an alternative approach to reparations focused on building and strengthening black political, economic, and educational institutions. * © 2006, Carlton Waterhouse, Assistant Professor of Law, Florida International University, College of Law; B.A. Penn State University; J.D. Howard University; M.T.S. Emory University; A.B.D. Emory University. I am unable to express my gratitude to all of those who provided guidance and support during the preparation of this Article, but I would especially like to thank Charles Pouncy, Ediberto Roman, Heather Hughes, and Andre Smith for their comments. Rosta Telfort, Ronald Parkman, and Lina Busby provided important research assistance, for which I am grateful. I also extend special thanks to Derrick Bell, for taking the time to share his insights into the project. Finally, I wish to thank Roy Brooks and Al Brophy for their deliberate examination of early drafts of the article. 207 208 Boston College Third World Law Journal [Vol. 26:207 If you stick a knife nine inches into my back and pull it out three inches, that is not progress. Even if you pull it all the way out, that is not progress. Progress is healing the wound, and America hasn’t even begun to pull out the knife. —El Hajj Malik El Shabazz (Malcolm X 1964) Introduction In a series of children’s books and a recent feature ªlm, Lemony Snicket chronicles the lives of the Baudelaire orphans—three orphaned children from a wealthy family imperiled by a conspiring unscrupulous adversary, a neglectful guardian, and an otherwise dangerous world.1 Following the demise of their parents, these children ªnd themselves subject to the schemes of uncaring adults seeking to gain their sizable fortune.2 Instead of rescuing them, the intervention of a neglectful banker responsible for providing them with a safe environment merely carries them from one set of unfortunate events to another.3 To survive, the children draw on their own unique abilities to stay alive and escape the plots launched against them.4 The title for this article emanates from that story because it offers a helpful, albeit imperfect, metaphor for blacks’ experiences under law in America, from their arrival in 1619 to the close of the second reconstruction in 1972 and beyond.5 Rather than a crowning achievement of American democracy, the civil rights legislation of the 1960s and 1970s represented one more step in a series of unfortunate legal events that ultimately reºected the dominant attitude of society’s white majority toward ending the Jim Crow practices of the south.6 Despite their role in removing the 1 See generally Lemony Snicket, A Series of Unfortunate Events (1999). 2 See id. 3 See id. 4 See id. 5 I chose 1619 and 1972 based on the milestones in black experiences in America that these dates represent. 1619 marks the arrival of the ªrst blacks in the American colonies aboard a Dutch man-o-war. These men were traded into servitude following their arrival. See A. Leon Higginbotham, In the Matter of Color: Race and the American Legal Process: the Colonial Period 20 (1978) (discussing the ªrst Africans’ enslavement in what would become America). Three centuries later, the United States Congress passed the Equal Employment Opportunity Act. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103. This act represents the last of a series of civil rights laws passed from 1964 to 1972 to proscribe racial discrimination in America. See generally Roy L. Brooks et al., Civil Rights Litigation: Cases and Perspectives (1995). 6 See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 5–6 (2004) (discussing the historic relationship between civil rights laws and broader society); Derrick A. Bell, Brown v. Board of Educa- 2006] A Challenge to Prevailing Notions of Legally Based Reparations 209 imprimatur of legal legitimacy from much overt discrimination against blacks and others, these laws were merely a continuation in a series of unfortunate legal events.7 The courts’ subsequent rejection of afªrmative action as a remedy for historic racial bias, and the shifting legal standards applied in Equal Protection, Title VI, and Title VII civil rights cases, over the intervening thirty-three year period, reºect the most recent events in the unfortunate series.8 Like the Baudelaire orphans, blacks still have not found a guardian whom they can depend on to protect them from those who would betray their rights. T (...truncated)