How it Happened: Race and Gender Issues in U.S. Law

1. +
Part VII
How It Happened: Race and
Gender Issues in U.S. Law

2. +
Indian Tribes: A Continuing Quest
for Survival: U.S. Commission on
Human Rights
 The U.S. Commission on Human Rights notes several
differences.
 One example is that American Indian civil rights issues have
unfolded “in reverse order from those of other minorities” in
the United States:
 Politically, other minorities started with nothing and
attempted to obtain a voice in the existing economic and
political structure.
 Indians started with everything and have gradually lost
much of what they had to an advancing alien civilization.

3. +
Indian Tribes: A Continuing Quest
for Survival: U.S. Commission on
Human Rights
The consequence of this ongoing racism has been
a sustained view that
 Indians are wards of the Government who need the
protection and assistance of Federal agencies
 and it is the Government’s obligation to recreate their
governments, conforming them to a non-Indian
model, to establish their priorities, and to make or
approve their decisions for them.

4. + An Act for the Better Ordering
and Governing of Negroes and
Slaves, South Carolina, 1712
Section XII prohibits, on pain of death, any form
of “mutiny or insurrection, or rise in rebellion
against the authority and government” by slaves
or anyone assisting slave rebellions.
The fact that this was a measure introduced into
law reveals the degree to which slaves resisted
these structures.

5. +
The “Three-Fifths Compromise”:
The U.S. Constitution, Article I,
Section 2
 The short introduction to this reading notes that Article I,
Section 2 of the U.S. Constitution establishes for slave
owners three-fifths representation for their slaves
 a calculation that derived from the establishment of the
enslaved person being 3/5ths of a person.
 Reflect on the significance of the compromise and its role in
this founding document of the U.S. government.
 https://www.youtube.com/watch?v=dsIz1t43Uww

6. +
An Act Prohibiting the Teaching
of Slaves to Read
 Reading allowed enslaved people to find other sources of
resistance, to find places of refuge; and writing offered ways of
traveling and moving through spaces more freely.
 Slaveholders were threatened because enslaved people who were
able to read and write could challenge the legitimacy of slave
owners
 and in the process help to dismantle the racist belief that enslaved
people were not intelligent, autonomous, or even human.
 The legal system’s attempts to manage a racist, white supremacist
system of slavery could not hide its own racial hierarchy.
 The laws of this period, therefore, always dehumanized enslaved
people and people of color in order to maintain a society designed
for white citizens.

7. +
Declaration of Sentiments and
Resolutions, Seneca Falls
Convention, 1848
 The Declaration of Sentiments lists several, including
electoral disenfranchisement, subjection to unequal laws,
and rights withheld from women that are given easily to
men who are “natives and foreigners.”
 https://www.youtube.com/watch?v=TcYhuG1y3bc

8. +
People v. Hall, 1854
 The purpose of People v. Hall is to declare that evidence
provided by Chinese witnesses is inadmissible in the
court of law.
 Looking to several existing laws that legally dismissed
evidence produced by “Black, Mulatto or Indian” people if
it was directed “against a white man,” the court sought to
extend the scope of these laws to include “Asiatic”
peoples.
 Here, as in many nineteenth-century court cases dealing
with crime, property, and economic matters, justices often
participated in the construction of racial and ethnic
categories.

9. +
Dred Scott v. Sandford, 1857
 The problem before the court is: “Can a negro, whose ancestors were
imported into this country, and sold as slaves, become a member of the
political community formed and brought into existence by the Constitution
of the United States, and as such become entitled to all the rights, and
privileges, and immunities, guarantied [sic] by that instrument to the
citizen?”
 According to the court, “the enslaved African race were not intended to be
included, and formed no part of the people who framed and adopted this
declaration.”
 The Supreme Court reverses the decision of the lower court, declaring that
Dred Scott is not a citizen of the United States and therefore does not have
the right to bring this matter before the court.
 https://www.youtube.com/watch?v=znzyPlk4Zy4

10. +
The Emancipation Proclamation
 This is the proclamation issued during the Civil War by
President Lincoln that freed enslaved people:
 “That on the first day of January, in the year of our Lord one
thousand eight hundred and sixty-three, all persons held as
slaves within any State or designated part of a State, the
people whereof shall then be in rebellion against the United
States, shall be then, thenceforward, and forever free.”
 Role the U.S. military play in this new shift in American
history
 Lincoln notes several concerns regarding the military’s role,
including the recognition of military enforcement of the new
law, as well as military service for “such persons of suitable
condition.”
 https://www.youtube.com/watch?v=SUVkXthLz4w

11. +United States Constitution: Thirteenth (1865),
Fourteenth (1868), and Fifteenth (1870)
Amendments
 The Thirteenth Amendment (1865) makes all forms of slavery and
involuntary servitude illegal in the Unites States.
 In the Thirteenth Amendment, slavery is outlawed except in the case of
incarceration: “Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States….”
 The Fourteenth Amendment (1868) addresses several concerns on
determining citizenship, as well as rights and privileges for citizens. It
specifically establishes due process of law and equal protection under
the law.
 The Fifteenth Amendment (1870) protects the right of U.S. citizens,
regardless of “race, color, or previous condition of servitude.”
 https://www.youtube.com/watch?v=90Xxt6Ukff8

12. +
The Black Codes: W. E. B. Du
Bois
 The Black Codes are laws—legislation passed mostly by
Southern states—that systematically limited the rights and
liberties of black Americans.
 Du Bois carefully outlines the ways that post-slavery
conditions were not very different from the conditions under
legalized systems of slavery:
 “Negroes were liable to a slave trade under the guise of vagrancy and
apprenticeship laws;
 to make the best labor contracts, Negroes must leave the old
plantations and seek better terms;
 but if caught wandering in search of work, and thus unemployed and
without a home, this was vagrancy, and the victim could be whipped
and sold into slavery.”
 https://www.youtube.com/watch?v=aAUXdd-DAh0

13. +
The Chinese Exclusion Act
 The Chinese Exclusion Act suspended the migration of Chinese
laborers to the United States.
 The act affected both skilled and unskilled laborers and Chinese
people employed in mining.
 “[T]he coming of Chinese laborers to this country endangers the
good order of certain localities within the territory…”
 In other words, the Chinese Exclusion Act prevents the disruption
of existing social and racial hierarchies that were believed to be
threatened by the migration of Chinese workers.
 https://www.youtube.com/watch?v=4Upic9sUagQ

14. +
Elk v. Wilkins, 1884
 The question for the court in Elk v. Wilkins is
 “whether an Indian, born a member of one of the Indian
tribes within the United States, is, merely by reason of
his birth within the United States, and of his afterwards
voluntarily separating himself from his tribe and taking
up his residence among white citizens, a citizen of the
United States, within the meaning of the first section of
the Fourteenth Amendment of the Constitution….”

15. +
Plessy v. Ferguson, 1896
 Plessy v. Ferguson takes up the issue of equal protection
under the law as established in the Fourteenth
Amendment.
 This proposition is rejected on the following grounds: “If
the two races are to meet upon terms of social equality, it
must be the result of natural affinities, a mutual
appreciation of each other’s merits and a voluntary consent
of individuals.
 https://www.youtube.com/watch?v=vsDTqtyiNZk

16. +
United States Constitution:
Nineteenth Amendment (1920)
 The Nineteenth Amendment protects the right of women
to vote
 https://www.youtube.com/watch?v=PNlCS85FVmU

17. + United States v. Bhagat Singh
Thind, 1923
 The question that this case put before the court is whether Bhagat Singh Thind, “a
high-caste Hindu, of full Indian blood, born at Amritsar, Punjab, India,” is a white
person.
 Although Caucasian is technically a “scientific” term, the court said that it is “a
conventional word of much flexibility” and that the meaning commonly ascribed to it is
the one that should be considered.
 In other words, the common understanding is that Caucasian means “white” and not a
specific ancestral history or “scientific” or racial category.
 The court states that even if Thind is technically Caucasian, “the physical group
characteristics of the Hindus render them readily distinguishable from the various
groups of persons in this country commonly recognized as white.”
 The common understanding of what it means to be white is more important than the
“scientific” designation as Caucasian; Thind can be Caucasian but not white.
 https://www.youtube.com/watch?v=yYLSM1ng4Aw

18. +
Brown v. Board of Education of
Topeka, 1954
 Black children denied admission to schools attended by white
children under laws requiring or permitting segregation
according to race.
 Despite current laws which establish the constitutionality of
“separate but equal,” the plaintiffs, who are Black minors, here
contend that “segregated public schools are not ‘equal’ and
cannot be made ‘equal,’ and that hence are deprived of the
equal protection of the laws.”

19. +
Brown v. Board of Education of
Topeka, 1954
 Citing Sweatt v. Painter on the psychological cost of segregation on black
students, the court states that segregation policies essentially produce
the sentiment that schools for black students are inferior to schools for
white students.
 Quoting the decision in Sweatt v. Palmer, the court asserts: “A sense of
inferiority affects the motivation of a child to learn.”
 Segregation with the sanction of the law, therefore, has a tendency to
delay the educational and mental development of Black children and to
deprive them of some of the benefits they receive in a racially integrated
school system.
 https://www.youtube.com/watch?v=TTGHLdr-iak

20. +
Roe v. Wade, 1973
 Roe v. Wade establishes a woman’s right to terminate her
pregnancy by abortion.
 The ruling is based on the right of privacy found in the
language of the Ninth and Fourteenth amendments.
 The decision also recognizes the “interest of the state in
regulating decisions concerning the pregnancy during the
latter period as the fetus developed the capacity to
survive outside the woman’s body.”
 https://www.youtube.com/watch?v=9HZj8Qp4p2A

21. +
Equal Rights Ammendment
(Defeated)
 The Equal Rights Amendment (ERA) was first introduced
in 1923, but was not passed until 1972.
 The ERA did not become part of the Constitution, however,
because it was not ratified by the required number of
states by the July 1982 ratification deadline.
 https://www.youtube.com/watch?v=u-Sgl2C9i3U

22. +
Obergefell v. Hodges, 2015
 The ruling in Obergefell v. Hodges
 Establishes that the Fourteenth Amendment requires a state to license a
marriage between two people of the same sex
 And to recognize a marriage between two people of the same sex when their
marriage was lawfully licensed and performed in a different state.
 The four principles that are named to show that the Obergefell decision is
constitutional are:
 The due process clause of the Fourteenth Amendment protects personal choices
central to dignity and autonomy;
 Marriage is fundamental under the Constitution and should be applied with equal
force to same-sex couples;
 The right of same-sex couples to marry is included under the equal protection
guarantee in the Fourteenth Amendment;
 The right to marry is a fundamental individual liberty.
 https://www.youtube.com/watch?v=1rWSvCNBZxY