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Dear Reader,

The editorial team is proud to present the second volume of the Stanford Undergraduate Law Review.

This collection of articles features a diversity of issue areas ranging from redlining in Los Angeles to felony disenfranchisement and reparations within the strictures of international law. Our student authors provide critical reflection on historical and racial injustices manifest in the law and the contours of society shaped by their legacies. Each offer a unique, pointed perspective on the institutions delimiting for whom civil rights and liberties protections are afforded— legal scholarship crucial for building a more just and equitable society. We encourage you to engage deeply and critically with their work.

We would like to thank the many contributors who have made the publication of this issue possible. Our dedicated student staff and editors have worked tirelessly to highlight the work of our writers over the course of the year They, along with our authors, are truly the foundation of the journal's success. We would also like to extend our sincere gratitude to the SULR Executive Team: Serena Zhou, Nicole Domingo, Grace Geier, and Paloma Ronis Von Helms. Their continued dedication and leadership has been invaluable to preserving the vision of the journal.

Hailey Rochin & Claudia Sung SULR Editors-in-Chief

How Redlining Angeles

Gabriel Frank-McPheter | Stanford University

Winter 2024

I. Introduction and Historical Context

Los Angeles is the direct descendant of San Gabriel— a city that at first glance appears to be just another LA suburb, yet carries a past marred with colonialism, housing injustice, and economic change. In 1771, Spanish colonist and priest Junipero Serra founded the San Gabriel Arcángel Mission, subjecting the indigenous Tongva to “religious indoctrination, labor, restructuring of gender structures, and violence” (Yvette, 20). As California passed from Spanish to Mexican to American colonial hands, the San Gabriel Mission laid the foundation for the growth of Los Angeles, and still stands to this day. (see Figure 1). Playing on words, the present-day City of San Gabriel brands itself as a “City With A Mission” in official government documents and signage. But, what has the city’s symbolic mission throughout history been? From redlining, to rapid suburban development, to waves of Asian-American immigration, San Gabriel has a unique history of demographic and economic change worthy of substantial investigation. Based on historical redlining and trends in demographics and wealth, this paper focuses on what it classifies as the Mission Road Neighborhood of San Gabriel (Census Tracts 4811.01 and 4811.03, see figures 2, 3, 4, and 5). Statistical and historical evidence indicates that redlining produced economic disparity and Latino segregation in the Mission Road neighborhood, but also in part facilitated Asian-American migration that produced white flight and a gentrified ethnoburb.

Figure 2, Map of San Gabriel

Figure 3, Map of San Gabriel Census Tracts (Social Explorer)

II. Redlining in the Mission Road Neighborhood, 1930s-1940s

The Mission Road neighborhood was deliberately redlined to segregate Latinos. In the 1930s-1940s, the Home Owners Loan Corporation (HOLC) assessed neighborhoods for “investment potential”, assigning them a letter grade and color often corresponding to the prevalence of people of color in the neighborhood, draining investment from minority communities and keeping them segregated (Coates, 58). What now makes up most of the Mission Road neighborhood was assigned the worst grade, a redlined “D13” (see figure 6, 7, and 8). In its description of the neighborhood, the HOLC wrote “Construction and maintenance are uniformly of poor quality and the area [sic] has an extremely shabby and ill-kept appearance… The vast majority of the population, while American-born, are still ‘peon Mexicans’, and constitute a distinctly subversive racial influence… hybrid Mexicans of American birth who are a distinctly less desirable type…This area is considered a menace to this whole section and pressure is being exerted to confine the population and keep it from infiltrating into other districts” (Mapping Inequality). Because Latinos were classified as “white” and San Gabriel was not divided into smaller census tracts, it is difficult to conclude if the Mission Road neighborhood was completely homogeneously Latino (See Figure 9). Nonetheless, the overtly racist language unambiguously demonstrates that the Mission Road Neighborhood was redlined to segregate Latinos.

This redlining produced economic disparity in the Mission Road neighborhood. According to HOLC’s description of the neighborhood, “Construction and maintenance are uniformly of poor quality and the area [sic] has an extremely shabby and ill-kept appearance.” HOLC went on to describe the population as “laborers, artisans and WPA [Works Progress Administration] workers. Income level $700 to $1200” (See Figure 8). Conversely, the North San Gabriel neighborhood, “greenlined” as a neighborhood ripe for development, was described as being racially “homogeneous,” with “good standard quality and architectural designs [that] are individually attractive and collectively harmonious… the area will continue its rapid growth.” Likewise, HOLC described the population as “Business and professional men, public officials, Jr. executives, and white collar workers. Income $1800-$5000.” Clearly then, in the 1940s, the population of the Mission Road neighborhood consisted predominantly of working class Latinos,

A City With A Mission

many of whom were likely direct descendants of the blatant colonization that took place at the Mission, or migrants from within or outside of the Los Angeles area who settled there given the pre-existing Latino community. Redlining, however, prevented these Latinos from accessing social mobility post-colonization, diverting the capital funds needed to improve the Mission Road neighborhood to the white and wealthy North San Gabriel area, while confining Latinos to Mission Road. As shown in Figure 8, disparities in income, home values, and demographics between the Mission Road and North San Gabriel neighborhoods consequently persist to this day Evidently, then, the law in the U.S. directly perpetuated economic disparities in San Gabriel traceable to colonialism.

Inequality)

Figure 6, Redlining Overlayed with Current Census Tracts (University of Richmond, Mapping Inequality)

Figure 7, Legend and Accompanying Chart for Figures 6 and 7 (University of Richmond, Mapping Inequality and Social Explorer)

HOLC Grade A18

Present-day Neighborhood North San Gabriel

2021 Census Track

4802.01, 4802.02

1940 Income $1800-$5000

Split between north and mission road neighborhoods; south of Las Tunas and west of Del Mar is Mission Road neighborhood

Portions of 4802.01, 4811.1, and 4811.02

Split between Mission Road neighborhood and an eastern neighborhood Mission Road Neighborhood Southern San Gabriel Neighborhood

Portions of 4811.1, and 4811.02

4811.01, 4811.03

4814.01, 4814.04, 4814.03

Figure 8, Demographic Makeup of San Gabriel, 1940 (Social Explorer)

III. Development, Disparity, and Immigration, 1950s-1980s

As the suburb developed in the 1950s-1980s, ethnic heterogeneity increased, but economic disparity and racial segregation in the Mission Neighborhood persisted. In 1980, the

Mission Road

Mission Road Neighborhood was included in a larger census tract (See Figure 10), making the dataset not perfectly comparable with the previously redlined or present-day neighborhood.

Nonetheless, this central census tract had a plurality concentration of Latino residents at 46.9%, with a 44.2% non-Latino white population. Comparatively, the previously greenlined “homogenous” white North San Gabriel neighborhood had a non-Latino white population of 81% and a Latino population of just 13.1%. Likewise, median incomes in North San Gabriel were 64% higher than incomes in the central and southern tracts (See Figure 11). Thus, despite some increase in ethnic heterogeneity, disparities in geographic location and wealth between whites and Latinos persisted.

Moreover, redlining had an unintended consequence: depressed property values and ethnic heterogeneity likely encouraged the influx of Asian-American migrants. Excluded from homeownership in most white neighborhoods, Chinese and Japanese Americans in Los Angeles began immigrating to less racially restrictive Monterey Park and neighboring cities in the 1950s, forming an “ethnoburb” in the San Gabriel Valley (Cheng, 16). Consequently, in 1980, the Asian-American population in San Gabriel was 12.5% in the southernmost census tract, 7.3% in the central Mission Road Neighborhood tract, and just 4.9% in the northernmost tract (See Figure 11). Proximity to the increasingly Asian-American Monterey Park is likely in part responsible for these trends. However, given that Asian Americans immigrated disproportionately to neighborhoods previously red-lined as risky investment and “yellow-lined” as moderately risky investment, it is somewhat likely that redlining produced depressed property values and ethnic heterogeneity, partly motivating these migration trends.

Figure 10, Demographic and Income Distribution of San Gabriel in 1980 (Social Explorer)

Census Tract

4802 (North San Gabriel)

Census Tract

4811 (Central, Mission Road Neighborhood)

Census Tract

4814 (Southern San Gabriel)

Census Tract

4823.1 (Southernmost, Bordering Monterey Park)

IV. Asian-American Immigration, White Flight, and Gentrification, 1980s-Present

By 2021, the Asian-American population in the Mission Road Neighborhood had exploded, but the legacy of redlining remained. A second wave of Asian-American immigrants, predominantly wealthier first-generation immigrants from China, formed an ethnoburb in the San Gabriel Valley (Chang). In 2021, San Gabriel had a 60.2% Asian-American population, and every census tract was plurality Asian-American. Nonetheless, the two tracts comprising the Mission Road Neighborhood (See Figures 4 and 5) still contain some of the largest Latino populations, at 32.9% and 35.0%, compared to 25.8% city-wide. Likewise, economic disparity persists: Mission Road Neighborhood tracts have the highest poverty level at 13.9% and 16.8% compared to 0% and 4.9% in the previously green-lined northern tracts; its median household income is $68,000 and $75,000 compared to $135,000 and $99,000; and 0% and 6% of homes are valued at above $1,000,000 compared to 31.7% and 26.3% (See Figure 13). These economic disparities and the disproportionate concentration of Latinos in the Mission Road Neighborhood

indicate that the legacy of redlining still somewhat affects the neighborhood.

Moreover, it is evident that Asian-American immigration produced white flight across all neighborhoods, including the Mission Road Neighborhood. Scholars have recognized throughout California a “mobilization and suburbanization of segregation” as some denser, poorer suburbs became more segregated as middle-income whites fled areas with minorities (Schafran 27-30). Simultaneously, between 1980 and 2021, the Asian-American percentage of the population in the Mission Road Neighborhood sugred from 7.4% to 51.5%, while the non-Latino white population shrunk from 44.2% to 10.2% (See Figure 12). These extreme trends unambiguously demonstrate the occurrence of white flight as Asian Americans immigrated to the neighborhood.

However, Asian American immigration may be causing gentrification. Many academics have focused on the phenomenon of Black middle-class homebuyers moving into and gentrifying poor Black neighborhoods (Patillo, 85-86). A similar process of a racially marginalized but wealthier group gentrifying a racially and economically marginalized community may be occurring in the Mission Road Neighborhood. Luxury apartments are in construction at the previous site of a nursery (Figure 14). In 2021, the Chinese-American-owned, middle-income priced food court Blossom Market Hall opened next to the colonial site of the mission (Figure 15). Median home values in the Mission Road Neighborhood rose from between $150,000 to $299,000 in 1990 to a little under $750,000 in 2021. It is difficult to draw definitive causal conclusions from this data alone, but the Latino population has declined by over 30% from an apex of 4,574 in 1990 to 3,175 in 2021 (See Figure 13). These trends make it somewhat likely that Asian-Americans have gentrified the Mission Road Neighborhood and displaced some poorer Latino residents.

Figure 12, Graph of Demographic Change in Mission Road Neighborhood from 1980-2021 (Social Explorer)

Figure 13, Demographics, Income, and Home Values Across San Gabriel, 2021 (Social Explorer)

000

A City With A Mission

Figure 15, Blossom Market Hall in San Gabriel’s Mission District (Kotowski)

V. Conclusion

Historical and statistical examination produces nuanced understanding of the development of the Mission Road Neighborhood in San Gabriel. The neighborhood was redlined in the 1930s-1940s with overtly racist intentions of confining the Latino population, exacerbating and perpetuating economic disparity. Despite increased racial heterogeneity in the 1950s-1980s and beyond, disproportionate representation of Latinos and economic disparity in the neighborhood persists. Asian-Americans began to immigrate into the neighborhood in the 1950s-1980s, and rapidly immigrated in the 1980s-2021, likely in part because redlining depressed property values and prevented a white ethnic majority from discriminating against Asian-American home buyers. This, in turn, produced mass white flight from the area and potentially caused gentrification, with a changing business and real estate landscape, soaring home values, and a significant decline in the net and proportional Latino population. These conclusions, however, are limited. The previously redlined neighborhoods do not perfectly overlap with current or previous census tracts, causing some differences in the precise geographic regions examined. The data also does not allow for the examination of micro-segregation within neighborhoods, or income disparities between ethnic group. It is also difficult to determine conclusively the causal weight of redlining on Asian-American immigration, and the causal weight of Asian-American immigration on gentrification and the displacement of Latino residents. Nonetheless, it is clear that the legacy of redlining, and the failure of policymakers to address it, has perpetuated disparities in San Gabriel to this day.

Unfortunately, San Gabriel is not alone. As the birthplace of Los Angeles, its history is indicative of the broader trend in the City, State, and Nation. The lasting effects of redlining in San Gabriel demonstrate the ability of the law to perpetuate inequities for decades, and the need to wield the law to correct its mistakes. The failure of San Gabriel to adequately invest in previously redlined communities, protect tenants from displacement through policies like rent control, and address its history of legal wrongs demonstrates the need to ensure equal opportunity for all even after equal protections under the law are granted to end the most direct forms of discrimination. It’s time for the “City with A Mission” - and the rest of the country - to make its mission of protecting and investing in the communities the law has left behind.

Works Cited

Cheng, Wendy. “The Changs Next Door to the Diazes: Suburban Racial Formation in Los Angeles’ San Gabriel Valley.” Journal of Urban History 39, no. 1 (2012): 16. https://doi.org/10.1177/0096144212463548.

Coates, Ta-Nehisi. “The Case for Reparations.” The Atlantic, February 2, 2023. https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/.

Cole, Carolyn. A fire at the San Gabriel Mission burned most of the roof and interior Photograph. San Gabriel, July 11, 2020. Los Angeles Times.

Kotowski, Jason. Lines form early for vendors inside Blossom Market Hall. Photograph. San Gabriel, February 12, 2022. KGET.

Pacific Plaza Premier Development Group. Pacific Square San Gabriel. n.d. Photograph.

Pattillo, Mary E. “The Black Bourgeoisie Meets the Truly Disadvantaged.” Essay. In Black on the Block: The Politics of Race and Class in the City, 85–86. Chicago, Illinois: University of Chicago Press, 2008.

Robert K. Nelson, LaDale Winling, Richard Marciano, Nathan Connolly, et al., “Mapping Inequality,” American Panorama, ed. Robert K. Nelson and Edward L. Ayers, accessed May 23, 2023, https://dsl.richmond.edu/panorama/redlining/#loc=14/34.092/-118.116&city=los-angeles ca

San Gabriel Historical Walk - Mural. n.d. Photograph. Spanish Missions in California.

Schafran, Alex. “The Suburbinization of Segregation.” Essay. In The Road to Resegregation: Northern California and the Failure of Politics, 27–30. Oakland, California: University of California Press, 2019.

Total Population, 2021. Social Explorer, (based on data from U.S. Census Bureau; accessed 23 May 2023 at 22:28:18 GMT-7).

Total Population, 2010. Social Explorer, (based on data from U.S. Census Bureau; accessed 23 May 2023 at 22:28:18 GMT-7).

Total Population, 2000. Social Explorer, (based on data from U.S. Census Bureau; accessed 23 May 2023 at 22:28:18 GMT-7).

Total Population, 1990. Social Explorer, (based on data from U.S. Census Bureau; accessed 23 May 2023 at 22:28:18 GMT-7).

Total Population, 1980. Social Explorer, (based on data from U.S. Census Bureau; accessed 23 May 2023 at 22:28:18 GMT-7).

Total Population, 1940. Social Explorer, (based on data from U.S. Census Bureau; accessed 23 May 2023 at 22:28:18 GMT-7).

Witnessing Racism Witness Testimony Winter 2024

Seeing Black is always a problem in a visual field that structures the troubling presence of Blackness.” - Nicole Fleetwood

I. Introduction

I am going to tell you about a time that I fell victim to implicit racial bias. Implicit racial bias is “a negative attitude, of which one is not consciously aware, against a specific [race].” This instance of bias was a time when my thoughts conflicted with the anti-racist 1 agenda I’ve laid out for my life. As a Black woman, I had never thought of myself as having racial bias against Black women. Sitting in a courtroom on the seventh floor of the Los Angeles Central District Court, that perception changed. Here’s what happened.

At home, I work as an intern for a federal judge, and the cases that come through his court frequently involve Black people, both in the audience and on the side of the defense. During one sentencing, the daughter of a murder victim came up to the podium to give a statement of victim impact, and I am ashamed to reflect on the thoughts that came into my head when she began to speak. She was a young Black woman, and I remember looking at her outfit—tight athleisure, Yeezy slides, and big gold hoops—and wondering why she didn’t wear something more professional to court. I remember looking at her hair, worn natural, and wondering why she didn’t put any more effort into making it look presentable At the time, I was also shocked by her use of African American Vernacular English (AAVE). These thoughts, about factors of her appearance completely separate from the powerful statement she was making, prevented me from absorbing the full message of her speech. She was speaking about the profound impact her father ’s murder had on her Why was I musing about her appearance and language use?

During that experience, I called myself out and began reflecting on the thoughts going through my head. Not everyone would have done that, in fact, I’d wager most people wouldn’t have done that, and that lack of awareness can have huge consequences— consequences exemplified by the treatment of one Rachel Jeantel.

Rachel Jeantel is a young Black woman who was a key witness in the trial for policeman

1 American Psychological Association, Implicit bias, https://www.apa.org/topics/implicit-bias.

George Zimmerman’s killing of Trayvon Martin. Jeantel’s testimony was meant to be a turning point for the trial, and it did end up making an impression, but not for the reasons it should have. In the media and in the courtroom, Jeantel’s entire being was picked apart. Being of Haitian and Dominican descent, her citizenship was called into question. Being a woman, her romantic 2 history (or, truly, lack thereof) with Martin was called into question. Being a Black woman, her 3 size, language use, and overall respectability were all called into question. Something that was 4 rarely, if ever, focused on by the public was her actual testimony. Jeantel lost her credibility because of her persona, which was inextricably tied to Blackness, but nowhere in any legal document is a witness required to comport themself as another race. So where is the expectation of whiteness coming from? Ruminating on that question led me to ask the central question: How do respectability politics and implicit racial bias affect the treatment of Black women’s witness testimonies in the courtroom? In my research, I have come to the conclusion that implicit anti-Black racial bias in the courtroom necessitates the unfair usage of respectability politics, specifically for Black women witnesses. Due to courtroom elevation of whiteness, marginalization and ostracization of Blackness, and jury bias against Black womanhood, Black women witnesses are forced to employ respectability politics in order to gain any semblance of credibility in the courtroom, ultimately sacrificing racial justice in rejecting honest self-expression.

II. Background

A key term that I mentioned in my central question is respectability politics, which must be defined and subsequently explored in answering this question. The term “respectability politics” was coined in 1993 by Black woman and Harvard professor of African American Studies Evelyn Higginbotham. She used the term to refer to how “early 20th century Black women presented themselves as polite, sexually pure, and thrifty to reject stereotypes of them

2 Amanda Carlin, “The Courtroom as White Space: Racial Performance as Noncredibility,” UCLA Law Review 250, (2016): 4.

3 Jelani Cobb, “Rachel Jeantel on Trial,” New Yorker, June 27, 2013, https://www newyorker com/news/news-desk/rachel-jeantel-on-trial

4 Alexander Abad-Santos, “My Star Witness Is Black: Rachel Jeantel's Testimony Makes Trayvon a Show Trial,” The Atlantic, June 27, 2013, https://www theatlantic com/national/archive/2013/06/rachel-jeantel-testimony-trayvon-martin-trial/31379 2/.

as immoral, childlike, and unworthy of respect and protection.” According to Higginbotham, 5 the politics of respectability require “reform of individual behavior as a goal in itself and as a strategy for reform.” In 2003, Paisley Harris, a Black female scholar for Johns Hopkins 6 University, added nuance to the concept: “respectability politics had two audiences: African Americans, who were encouraged to be respectable, and white people, who needed to be shown that African Americans could be respectable.” If I were to synthesize all that I’ve read about 7 the concept and define it as it stands now for Black women, I’d say that respectability politics is when, as their sole means of social mobility, Black women are forced to pander to respectability and in that process reject their cultural practices or anything associated with Blackness, since their identity as Black women has been denigrated by society To provide context, I will speak specifically about respectability manifestations in hair, attitude, and language.

A. Hair

For Black women, hair is everything: “Identity is inextricably linked to their relationship to and presentation of their hair.” If you ask a Black woman about her hair, there is no way that 8 the conversation won’t turn personal; hair is part of the Black female identity But the act of wearing her hair natural, for a Black woman, is much more societally charged than for women of other races. For instance, a young Black girl was once disciplined at school for “breaking the dress code,” since she had worn braids, a Black hairstyle, to school. To exemplify this 9 phenomenon, a study conducted by psychologists at Princeton University found that “African American women wearing natural hairstyles are explicitly [seen] as less competent than African American women wearing Eurocentric hairstyles.” In other words, in order to garner bare 10

5 Evelyn, Higginbotham Righteous Discontent: The Women’s Movement in the Black Baptist Church, 1880–1920 (Cambridge: Harvard University Press, 1993), Chapter 1

6 Higginbotham, Evelyn, Righteous Discontent, Chapter 1

7 Paisley Harris, “Gatekeeping and Remaking: The Politics of Respectability in African American Women’s History and Black Feminism,” Johns Hopkins University Press 15, no. 1 (Spring 2003): 3.

8 Tabora Johnson and Teiahsha Bankhead, “Hair It Is: Examining the Experiences of Black Women with Natural Hair,” Open Journal of Social Sciences 2, (2014): 1

9 Rosenblatt, Kalhan, “Louisiana girl sent home from school over braided hair extensions,” NBC News, August 22, 2018, https://www nbcnews com/news/nbcblk/louisiana-girl-sent-home-school-over-braided-hair-extensions-n902811

10 Aladesuru et al, “To Treat or Not to Treat: The Impact of Hairstyle on Implicit and Explicit Perceptions of African American Women’s Competence,” Open Journal of Social Sciences 8, Vol. 10 (October 2020): 10,

minimum levels of respect, Black women are expected to hide their natural hair

B. Attitude

Hair is not the only thing that Black women must police, however, which brings me to attitude. In her renowned piece, “When White Women Cry,” Dr. Mamta Accapadi describes women of color as “fish that must swim upstream.” She argues that women of color are 11 oppressed from multiple directions, causing them to have to work harder to police their attitude, particularly when compared to white women. Black women who are not completely devoid of any “attitude” are stereotyped using prominent stereotypes of Black women’s character, such as the infamous Angry Black Woman stereotype. In summary, Black women who do not behave 12 absolutely perfectly by white patriarchal standards are quickly stereotyped based on their race and gender. Where white women are given the room in society to make mistakes, a Black woman cannot step a toe out of line without being made into an example or caricature of everything perceived as ‘wrong’ with Blackness.

C. Language

Also victim to respectability judgments is Black women’s language use. A large part of Black culture is the use of AAVE, a dialect of English that follows its own—valid and grammatical—syntactic rules, but is often treated as inferior in modern society For instance, 13 you may have heard of the ‘achievement gap,’ often touted as existing between white and Black students, where Black students are found to perform worse academically than white students.14 In fact, much of the reason for the ‘achievement gap’ is that teachers in American schools

4236/jss.2020.810002. For reference, natural hairstyles may include a Black woman’s natural curls or a protective style, like braids To achieve a Eurocentric hairstyle, a Black woman must braid her hair or wear a wig

11 Mamta Accapadi, “When White Women Cry: How White Women's Tears Oppress Women of Color,” College Student Affairs Journal 26, no 2 (2007): 1

12 Some other popular stereotypes of Black women include the Mammy, the Sapphire, and the Jezebel, to name a few. To learn more on this, I recommend reading Woodward and Mastin’s “Black Womanhood: Essence and its Treatment of Stereotypical Images of Black Women.”

13 AAVE developed because of antebellum-era anti-literacy laws that prevented Black people from learning “standard English” grammar For more on this, I’d recommend Gelsey Beaubrun’s “Talking Black: Destigmatizing Black English And Funding Bi-Dialectal Education Programs ”

14 Carrie Spector, “Racial disparities in school discipline are linked to the achievement gap between Black and white students nationwide, according to Stanford-led study,” https://ed.stanford.edu/news/racial-disparities-school-discipline-are-linked-achievement-gap-between-black-and-whi te.

punish Black students for how they communicate: AAVE is often used among Black kids, but teachers in schools whose curriculums are based on whiteness will mark down or even refuse to teach AAVE-speaking kids due to their bias against it. AAVE is no less a language than the 15 mythic “Standard American English”—which is simply upper class, white English—but the way it’s treated when used in academic or professional settings leads many to believe it is.16 Most importantly, the dialect is staunchly a part of Black culture and is something that would be incredibly difficult for many Black people to simply not use, much like their natural hair or authentic attitudes.

III. The Courtroom

In order for the courtroom to ostracize Blackness, whiteness first had to be established as a baseline. In her article on exclusion in the courtroom, legal scholar at UCLA Amanda Carlin establishes that the courtroom was, at its inception, an exclusionary white male space (the very opposite of a space made for Black women). As a result of courtroom practice in America being founded solely by white people and therefore on exclusively white behavior, “truth developed as distinctly white, as only white people ever spoke legal truths.” In other words, everyone in the 17 courtroom, a center for truth in the pursuit of justice, established white-coded behavior as the only way to express legal truth. This whitewashing developed passively, but that does not change the fact that a problematic status quo evolved. People of color were eventually permitted to provide testimony in a courtroom, almost a century later, with the passing of the Civil Rights Act of 1866, which granted citizenship to anyone born in the United States “without distinction of race or color, or previous condition of slavery or involuntary servitude.” However, this 18 change did not mean that people of color were readily welcomed into the courtroom. When witnesses of color entered the court to take the stand, they entered a space that was entirely built in opposition to their being. When they entered this space of such opposition, where they

15 Gelsey G Beaubrun, “Talking Black: Destigmatizing Black English And Funding Bi-Dialectal Education Programs,” Columbia Journal of Race and Law, (July 15, 2020): 4.

16 Laura Greenfield, Writing Centers and the New Racism, (Logan: Utah State University Press, 2011), “The ‘Standard English’ Fairytale,” 2

17 Carlin, “The Courtroom as White Space” 4

18 Ballotpedia “Civil Rights Act of 1866,” https://ballotpedia.org/Civil Rights Act of 1866#:~:text=The%20Civil%20Rights%20Act%20of,United%20Stat es%20 Congress%20and%20the.

couldn’t help but stand out, this racial difference impacted testimonies of all races, not only contributing positively to perception of white testimonies, making them “legally unassailable,”19 but also generally shooting down the credibility of non-white testimonies. When humans make decisions of uncertainty, as when members of a jury must decide whether to interpret a witness testimony as truthful, we fill certain gaps in immediate clarity by relying on what we know, in other words, what is in our subconscious. Accordingly, in an environment where something is 20 intrinsically marked as different or as not belonging, one will become even more uncertain, and their evaluation of its truth will lean away from that thing. The courtroom as a white space 21 encourages implicit bias that arises from basic human processes to begin the systemic discrediting of people of color ’s witness testimonies.

The courtroom as an anti-Black space continues this process of systemic discrediting. It not only uplifts whiteness, but also, in turn, rejects Blackness. When Black people step into the courtroom, they are stepping into a place that is not built for them— they will never benefit from the privilege of invisibility, from knowing that their race will never be a negative factor in their perception. A major way in which Blackness is shot down in the courtroom is through the phenomenon of “Blackness as character evidence,” described by scholar Mikah K. Thompson. Implicit bias against Black people has created a widespread societal belief that Black people are, among other things, “inherently violent.” This belief is hard—if not impossible—to avoid, as it 22 permeates all levels of social exposure. The community least likely to hold this belief is Black people, since they can refer to their lived reality to rebut it. Since most juries are majority white and thus more likely to hold implicit bias against Black people, the majority of jurors will enter the courtroom harboring these beliefs. The court exacerbates this problem in an unexpected 23

19 Carlin, “The Courtroom as White Space,” 4

20 Amos Tversky and Daniel Kahneman, “Judgment Under Certainty,” Science 185, no 4157 (September 27, 1974): 3

21 Joseph W Rand, “The Demeanor Gap: Race, Lie Detection, and the Jury,” Connecticut Law Review 33, no 12 (2000), 11.

22 Richard R Banks, “Discrimination and Implicit Bias in a Racially Unequal Society,” California Law Review 94, no. 4 ( July 2006): 5. Further context for this finding: in the words of Mikah K. Thompson in “Blackness as Character Evidence,” there is an “institutionalized narrative in our society that Blacks are intellectually inferior to Whites, inherently violent, and more likely to commit crimes than Whites ”

23 Dora Mekouar, “Why a Jury’s Racial Composition Matters,” VOA News, April 21, 2021, https://www voanews com/a/usa all-about-america why-jurys-racial-composition-matters/6204882 html#:~:text= He%20 found%20that%20diverse%20juries,longer%20than%20all%2Dwhite%20juries. (If you are looking for more information on how this phenomenon has taken shape in America, I very much recommend reading this

way Beliefs of inherent Black violence (and thus, criminality) are not talked about or addressed in the courtroom, since racism is rarely, if ever, used as a means of arguing a case, but these 24 beliefs are instead reinforced by playing into implicit bias. By keeping the preconceived notions implicit, the manifestations of these biases are used to sway court verdicts in favor of whites. Blackness is used as character evidence in the courtroom in that lawyers will play into proven stereotypes about Black people to make them seem more guilty, or, in turn, to make whites seem less guilty. In not using racism as concrete evidence but allowing lawyers to play into 25 stereotypes of a Black person’s race as character evidence, Blackness is further discredited in the courtroom.

Another way in which the racial coding of the courtroom becomes very apparent is language. Witness testimonies are given verbally, so language becomes the main universal indicator of witness credibility, and, as we know, language is often a way through which Blackness is separated from whiteness (recall: AAVE). In the words of Amanda Carlin, “underlying notions of powerful and powerless speech is the tradition of whiteness in the courtroom.” The norm for language in the courtroom is that spoken by white men.

Accordingly, a study on racial language bias against witnesses conducted by Lara Frumpkin found that “higher-status accents were rated more favorably than lower-status accents in black eyewitnesses,” causing them to view defendants as consequently more guilty. Further, a study 27 by Kurinec and Weaver found that “jurors found defendant[s] who used AAVE less professional and less educated.” This juror perception of defendants logically implies the application of this 28 belief to anyone speaking AAVE in the courtroom, like a witness. Devaluation of a witness, viewing them as unprofessional and uneducated due to their vernacular choices, would lead to

24 Mikah K Thompson, “Blackness as Character Evidence,” Michigan Journal of Race and Law 321, no 20 (2015): 14 article )

25 For those who are curious, an example of this phenomenon occurred in the trial of the officer who shot young Black man Ahmad Arbery to death. The officer had confederate flag memorabilia in his truck, but that was never mentioned as a possible motive for the murder. Rather, the trial was spent trying to prove that Arbery seemed violent For more, visit The Guardian’s “Ahmaud Arbery murder: trial laid bare America’s faultlines on race ”

26 Carlin, “The Courtroom as White Space,” 21

27 Anna Stone and Lara A Frumkin, “Not all eyewitnesses are equal: Accent status, race and age interact to influence evaluations of testimony,” Journal of Ethnicity in Criminal Justice 18, no 2 (February 6, 2020): 2

28 Charles A. Weaver III and Courtney A. Kurinec, “Dialect on trial: use of African American Vernacular English influences juror appraisals,” Psychology, Crime & Law 25, no. 8 (2019), 18.

devaluation of their testimony

One might argue that AAVE is merely incomprehensible for non-Black witnesses, but “policing language is more about race and class than it is about communicative ability.” AAVE 29 is a mutually intelligible dialect to a speaker of any kind of English; the difference it carries is merely in the widespread implicit racial bias it carries. Further, it has been proven that the discrediting of AAVE in the courtroom does not come from concern about legibility but rather concern about witness demographics, particularly since, as Frumkin found, jurors tended to view AAVE speakers as less educated. Rachel Jeantel’s treatment by the jury provides an example: the grammar that Jeantel used was referred to as “subpar,” and juror B37 from the trial was interviewed and said that Jeantel was hard to understand and that “she did not think that Ms. Jeantel made a good witness because of some of the language that Ms. Jeantel used.” Notably, 30 though, no juror asked for a transcript of Jeantel’s witness testimony, even when it was completely available to them, which is just further proof of the fact that complaints lodged 31 against Black language in the courtroom take issue solely with the fact that the language comes from Black people. For those with this linguistic bias, the issue with the use of AAVE is not that it inhibits the expression of truth; it is that AAVE allows for the expression of Blackness in a space where it is traditionally unwelcome.

Until now, I have only addressed how the courtroom makes itself a hostile space to the performance of Blackness in general, but where does Black womanhood come in? For everything aforementioned, Black women are the most acutely affected and burdened by it. If the courtroom is established as a safe space for white men, the person who is, resultantly, least welcome there is the Black woman, and that is because Black women must not only navigate the obstacle course of anti-Blackness in the courtroom, but also misogyny Ultimately, “the intersectional experiences of women of color place them at the bottom of the credibility hierarchy, as they are refused both the privilege of whiteness and the privilege of maleness.”32

29 Carlin, “The Courtroom as White Space,” 26

30 Montre D Carodine, “Contemporary Issues in Critical Race Theory: The Implications of Race as Character Evidence in Recent High-Profile Cases,” The University of Pittsburgh Law Review 75, no 4 (2015): 11

31 John Rickford, Variation, Versatility and Change in Sociolinguistics and Creole Studies, (Cambridge: Cambridge University Press, 2019), Chapter 12.

32 Carlin, “The Courtroom as White Space,” 28.

Women, as linguist Robin Lakoff argues in “Language and Woman’s Place,” are expected to demur in their speech; one would imagine that this occurs greatly in formal settings like that of a courtroom. Contrastingly, if a woman takes the witness stand and uses the subservient 33 language and attitude Lakoff argues that society so regularly requires of women, that damages her credibility as a witness; she seems unsure.

So what if a woman does what Jeantel did, and refuses to portray herself as lesser than, and does not shy away from combat, ‘like a man’? Then the arsenal of name-calling and respectability comes out: the Angry Black Woman trope gets thrown around like a grenade. 34 Jeantel was viciously attacked for her “difficult” persona. As Accapadi lays out in her piece on respectability, there is no successful persona for a woman of color to employ, but when she stands up for herself in any way, the vitriol that emerges is overwhelming. Being perceived as angry results in the dismissal of women of color, and their expected submission and silence when trying to avoid being stereotyped does nothing to help them advocate for themselves, either, something made apparent in the courtroom. Further, with regard to gender, the 35 allegations lodged against Jeantel by the attorneys in their attempts to discredit her were distinctly gendered: for a significant portion of her cross-examination, Jeantel was interrogated by a prosecutor about whether she was Trayvon Martin’s girlfriend and about the details of her sex life, something which never would have come up had Jeantel been a man. Even after the trial, Jeantel was given a very public “makeover” to fix some of what society had so hated about her: her hair, her weight, her clothes. It is hard to imagine that anything similar would ever 36 happen to a man after a witness testimony It is apparent, then, that Black women who take the stand are facing overlapping forces of opposition to both their race and their gender. When we examine what happens to a Black woman who takes the witness stand in terms of the hostility built up against her, it is no wonder that she might feel forced to employ respectability politics. If the courtroom so clearly privileges whiteness and denigrates

33 Robin Lakoff, “Language and Woman’s Place,” (Stanford: Stanford University, 1972), 6

34 Melissa V Harris-Perry, “Sister Citizen: Shame, Stereotypes, and Black Women in America,” (New Haven: Yale University Press, 2013), 25

35 Accapadi, “When White Women Cry,” 6

36 TheGrio, “Rachel Jeantel Gets Makeover Compliments Of Ebony Magazine,” Huf ington Post, November 19, 2013), https://www.huffpost.com/entry/rachel-jeantel-makeover-ebony-thegrio n 4303277.

Blackness, that is a phenomenon that asks, or rather, virtually requires a Black witness to perform whiteness to gain credibility. Respectability politics never arises without reason; it has always been employed out of necessity, and the courtroom is no exception. That being said, how is a Black female witness supposed to know about this expectation with which she must comply in order to be taken seriously? The oath she will take, promising only to be truthful, says absolutely nothing about that. Jeantel came to the witness stand, angry, grieving the murder of her friend, and profoundly Black; in other words, she came as herself. She was torn to shreds as a result. For the sake of credibility, she would have had to completely change her being (without ever directly being told to do so) to be respected, to be listened to. What are Black women supposed to do, then, when these rules at play are implicit, and the stakes are so high in both scenarios—either sacrificing justice in the courtroom, or sacrificing justice to herself? If she employs respectability politics, she must reject her very being; if she does not, justice may not be served. Ultimately, it seems that either way, an injustice will occur.

IV. Solution

Many would be left wondering, after learning of the outlandish unwritten expectations for witnesses, what’s the solution here? Several companies have argued that the easy solution is training witnesses to properly comport themselves on the stand. If there are these standards that witnesses have to adhere to to earn credibility, why not train them to meet them? Companies like SEAK, the “Expert Witness Training Company,” exist for this very reason. One paper on the 37 implicit bias witnesses face even makes the point that “attorneys may want to consider… whether to put the [Black] witness on the stand or not.” Although the intentions of SEAK are 38 admirable, many others, including myself, would argue that training or hiding is not the solution. To train Black women for “successful” witness testimonies or to not allow them to testify at all would be akin to allowing the masked racism inherent in respectability politics to continue to pervade society. As an article in the Journal of Hip-Hop Studies argues, “respectability politics places Black people in a box, with those who are operating within the confines of those ideologies inside, and those who do not conform to normative expectations on the outside of the

37 SEAK: The Expert Witness Training Company, https://www.testifyingtraining.com/.

38 Frumkin and Stone, “Not all eyewitnesses are equal,” 27.

box.” Black women everywhere are fighting against this box, but this fight should not be

39 fought by them alone. Further, in the words of sociologist Tressie McMillan Cottom, “the social norms around respectability that we black people use . . . do the dominant culture’s work of disciplining other black people’s identities, behaviors, and bodies.” Cottom also argues that 40 there’s no guarantee or real win when it comes to the “crapshoot” of respectability politics; it 41 will always be a way to keep the dominant culture dominant and to keep everyone else subservient, struggling to reach the top. Appropriately, the website “Therapy for Black Girls” reminds us that “the problem with respectability politics is that it doesn’t work. It places the responsibility and blame on the victim instead of the systems that uphold it.” We shouldn’t 42 blame Black women for desiring upward mobility, but we should still strive to take away the sentiment that they need it, or that they need to employ respectability politics to achieve it.

So, what should we do? Or, what can you do? The first step is to identify and evaluate your implicit racial biases. If you find yourself holding someone to a standard that realistically shouldn’t be applied to them, judging or denigrating someone just for embodying their own identity, stop yourself, and try to set your mind on a different path. Then try to continuously correct that judgemental mental pattern. I hope that this research has not only informed you of a problem of which you may not have been aware, but also taught you ways to identify when it is being perpetuated. I implore you to use them.

Further, when it comes to the courtroom, employ special caution. It is more likely than not that we will all find ourselves reporting for jury selection in the near future, and if you are chosen, that is a burden. The judicial system is an integral part of our society, but it is also always resting on some very shaky integrity. This is your chance to do your part to weave justice back into that system. If you are ever feeling doubtful about that integrity, and about one’s responsibility in upholding it, I hope the chance to do good here offers consolation.

39 Ashley Payne, “The Cardi B–Beyoncé Complex: Ratchet Respectability and Black Adolescent Girlhood,” (Journal of Hip-Hop Studies 7, no. 1 (2020): 9.

40 Tressie McMillan Cottom, THICK: And Other Essays, (New York City: The New Press, 2019), 69

41 Tressie McMillan Cottom, THICK: And Other Essays, 167

42 Jordan Madison, “The Skin I’m In: Respectability Politics in the Context of Black Womanhood,” Therapy for Black Girls, July 1, 2021, https://therapyforblackgirls com/2021/07/01/the-skin-im-in-respectability-politics-in-the-context-of-black-womanho od/.

Instead of expecting Black women to mold themselves into whiteness, embrace them as they are; accept them as they come. I am sure you would hope, and maybe even expect, that they would do the same for you.

V. Conclusion

Throughout this essay, I have unraveled how powerful implicit bias can be, which ultimately manifests in grave and tangible real-world consequences. We’ve seen how implicit bias against Black womanhood, coupled with the construction of the American judicial system, causes Black women witnesses to have to employ respectability politics for the sake of credibility The guiding case study in this essay was Rachel Jeantel, who went from a grief stricken 19-year-old girl to “everything wrong with [an entire] race” in a matter of hours due to 43 her refusal to employ respectability politics. Instead, the useful ways in which Jeantel was able to add clarity to the events of the case should have been highlighted, and her grief should have been respected. Most importantly, it is my hope that we have digested all the ways in which that is unfair and needs to be changed. And change it we can; it is, in fact, up to us to be the change.

Because yes, Black women take the witness stand promising to tell “the truth, the whole truth, and nothing but the truth,” but the ability to freely live their truth should not be mutually 44 exclusive.

43 Meraji, Shereen “What [BLANK] Folks Don't Understand About Rachel Jeantel,” NPR, June 29, 2013, https://www npr org/sections/codeswitch/2013/06/29/196709577/what-blank-folks-dont-understand-about-rachel-jea ntel.

44 Witness Oath - ADR, https://www.adr.org/sites/default/files/document repository/Witness Oath.pdf.

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Harris, Paisley Jane. “Gatekeeping and Remaking: The Politics of Respectability in African American Women's History and Black Feminism.” Journal of Women's History 15, no. 1 (2003): 212-220. https://doi.org/10.1353/jowh.2003.0025.

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Challenges to Felony Disenfranchisement in Mississippi

Landon Miller | Stanford University

Winter 2024

I. Introduction

Mississippi has the highest incarceration rate in the nation, imprisoning 584 per 100,000 residents. Comparatively, the rest of the nation has an average incarceration rate of 358 per 100,000 residents. Inhumane prison conditions and absurdly delayed trial dates are cause 1 2 enough for profound scrutinization of the civil rights granted to the citizens of Mississippi, and yet the implications of incarceration do not end after the completion of a citizen’s sentence. Per the 1890 Mississippi state constitution, convicted felons are barred from ever voting in federal, statewide, and local elections. Article XII Section 241 of the Mississippi state constitution currently disenfranchises over 200,000 people and over 16% of the African American electorate3 in the Magnolia State, where the last gubernatorial election was decided by a margin of 26,619 votes.4

Furthermore, the abject racism of the 1890 constitution and the disproportionate rate at which African American Mississippians are charged and convicted of felonies has put the statute under great scrutiny under various constitutional provisions, including the Eighth Amendment protection against cruel and unusual punishment and the Fourteenth Amendment’s equal protection clause. In 2017, the Southern Poverty Law Center raised these objections and sued the Mississippi Secretary of State’s office on behalf of disenfranchised citizens in Hopkins v Hosemann. As of November 2023, the plaintiffs await a ruling from the Fifth Circuit’s en banc hearing where all judges on the circuit court will decide the case by a majority vote after the Fifth Circuit Court of Appeals ruled § 241 unconstitutional. A similar disenfranchisement statute in Alabama was struck down in Hunter v. Underwood (1985) under the Fourteenth Amendment, yet the Fifth Circuit has failed to apply the same precedent to Hopkins Thus, the plaintiffs’ argument now rests upon the Eighth Amendment protection against cruel and unusual punishment.

This article will examine the history of voting rights in Mississippi, tracing the expansion

1 Carson, “Prisoners in 2021 - Statistical Tables ”

2 Mitchell, “Conditions at Mississippi’s Most Notorious Prison Violate the Constitution, DOJ Says ”

3 Mississippi NAACP, “Felony Disenfranchisment in Mississippi.”

4 Times, “Mississippi Governor Election Results 2023.”

of voting rights in Mississippi from the Reconstruction amendments to the Voting Rights Act. It follows from the discriminatory history of the 1890 constitution that § 241 should be challenged on Fourteenth Amendment grounds; however, due to the rulings in Cotton v Fordice and Harness v Watson, the court will not hear such challenges. I will analyze the validity of the arguments in Cotton and Fordice, finding them both erroneously decided, before providing my own argument that § 241 undoubtedly violates the Equal Protection Clause of the Fourteenth Amendment in accordance with the precedent set by Hunter v. Underwood. Nonetheless, since the Fifth Circuit cannot overrule the Supreme Court’s ruling in Cotton, the plaintiffs in Hopkins now depend on a novel Eighth Amendment challenge, a weaker yet still viable claim. I will conclude by illustrating what the next courses of action might be for proponents of voting rights in Mississippi should Hopkins be thrown out by the Fifth Circuit or Supreme Court.

II. History of Voting Rights in Mississippi: 1865-1985

A. Reconstruction Amendments and “Redeemers”

After defeating the southern states in the Civil War, the Republican-controlled federal government occupied and directly administrated the southern states and passed sweeping reforms, including civil rights and voting rights legislation for newly freed African Americans. Following the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution, African American men in the South experienced previously unimaginable equality in the political sphere. Under the federal administration of Mississippi, African American men in Mississippi enjoyed equal protection under the law and the right to vote and hold office in the state that just 20 years prior denied their humanity. African Americans, who made up a majority of Mississippi’s population, were elected to every federal and statewide office. Mississippi 5 elected the first and second African American U.S. Senators, Hiram R. Revels and Blanche K. Bruce. In compliance with federal demands, Mississippi adopted a new, federally pre-cleared 6 constitution in 1869 and was readmitted to the union in 1870.

5 U.S. Census Bureau, 1870 Aggregate Population with Race, State of Mississippi

The Republican government that led the Reconstruction era remained dominant in the state for a short time, until white conservatives executed the first step of a grand scheme to 6 Miss. Department of Archives and History, “The First Black Legislators in Mississippi.”

regain control of the political system. These so-called “Redeemers” who sought to redeem their idealized Southern social order of white supremacy were enraged by the ascension of African Americans in the political and social spheres. They began plotting a strategy for reestablishing white supremacy in law as soon as federal administration of the state ended. In the late 1870s white conservatives executed the first step of the “Mississippi Plan,” a coordinated effort to end African American political participation and codify white supremacy in law By intimidating African American voters and blatantly committing election fraud, white 7 8 conservatives regained control of the state legislature, and by 1876, they impeached the sitting Republican governor and lieutenant governor.9

B. The 1890 Mississippi Constitutional Convention and § 241

After regaining control of the state government, conservatives in Mississippi wasted little time before convening a constitutional convention to restructure the state government fundamentally The express and undeniable goal of the convention, according to its participants, was to reestablish the antebellum state of race relations. Delegate George P. Melchior of Bolivar County said, “It is the manifest intention of this Convention to secure to the State of Mississippi, ‘white supremacy.’” The president of the convention, Judge Solomon Saladin Calhoon of Hinds 10 County addressed the assembly thus: “Let’s tell the truth if it bursts the bottom of the Universe. . . We came here to exclude the Negro. Nothing short of this. . . . Negro suffrage is an evil.”11

There is no doubt that the contemporaries of the 1890 constitution were determined to relegate African Americans to their former state of oppression through whatever legal means were available.

The 1890 constitution included infamous provisions such as the poll tax, literacy tests, and a kind of electoral college for statewide elections that ensured African Americans could never elect leaders, even with an outright majority Among these provisions is § 241, the lifetime disenfranchisement of citizens convicted of felonies, which states:

7 Miss Department of Archives and History, “The Clinton Riot of 1875”

8 Equal Justice Initiative “Reconstructions’s End,” 89

9 Miss Department of Archives and History, “Adelbert Ames”

10 Martin, Journal of the Proceedings, 275.

11 Miss. Department of Archives and History, “Isaiah T. Montgomery, 1847-1924 (Part II) - 2007-02.”

Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector 12

The federal government, weary after years of Reconstruction and now dependent on votes from Southern states’ representatives, had no desire to intervene in Southern states to enforce racial equality. In Williams v. Mississippi (1898), the Supreme Court upheld the discriminatory voting provisions in the 1890 Mississippi constitution, saying that the provisions had no explicitly discriminatory language. There was no consideration of the fact that there was overt discriminatory intent in creating the law, and the operating principle was merely to call overt discrimination in voting laws unconstitutional. As a result, African Americans were disenfranchised en masse, as the laws were unequally applied to African American and white citizens. While the former were expected to produce entire sections of the state constitution to county registrars, the latter could get away with writing mere sentences or even just their names. In 1964, immediately before the Voting Rights Act banned most disenfranchisement provisions of the 1890 constitution, African American voter registration was abysmal, at 6.7 percent.13

C. Congressional Expansion of Voting Rights

These discriminatory voting laws remained in place until the Civil Rights era in the 1960s, after widespread organization and protests by African Americans in the South and sympathetic Northerners. The ratification of the Twenty-Fourth Amendment rendered poll taxes unconstitutional, immediately striking down such provisions in several southern states. The Voting Rights Act of 1965, an “act to enforce the fifteenth amendment to the Constitution,” outlawed literacy tests and provided federal oversight of elections in places with prevalent racial

12 Miss, Const art XII, § 241

13 U.S Commission on Civil Rights, “The Mississippi Delta Report,” Ch. 3

discrimination like Mississippi. It also included a provision that such states with a history of discriminatory voting laws and practices had to receive pre-clearance from the Department of Justice for any legislation concerning voting. As a result of the Voting Rights Act, African Americans across the South were guaranteed their voting rights for the first time since Reconstruction, and African American voter participation skyrocketed.14

III.

Past Fourteenth Amendment Challenges to Felony Disenfranchisement A. Hunter v. Underwood (1985)

Despite the dramatic expansion of voting rights in the 1960s, no act of Congress explicitly outlawed criminal disenfranchisement provisions such as § 241 of the Mississippi state constitution. One such provision, § 182 of Alabama’s 1905 constitution, prevented plaintiffs Carmen Edwards, an African American, and Victor Underwood, a white man from voting after each man was charged for writing bad checks. After finishing their sentences, the men brought suit to the Alabama Board of Registrars, challenging the constitutionality of the provision under the Fourteenth Amendment on account of the racially discriminatory impact and intent of the provision.

In Hunter v Underwood, the Supreme Court ruled that laws with racially disparate outcomes that were written with discriminatory intent violate the Equal Protection Clause, even if the wording of the law itself is neutral. Hunter set an important precedent by which other 15 criminal disenfranchisement provisions also be examined, especially in Southern states, and several challenges to Mississippi’s voter disenfranchisement provision were argued along the same lines.

A. Cotton v. Fordice (1998)

In another suit brought against the governor of Mississippi, the plaintiffs in Cotton v. Fordice argued that § 241 violated the Equal Protection Clause of the Fourteenth Amendment due to the racially discriminatory intent of the lawmakers at the time of passage in 1890. The Fifth Circuit then ruled that the updates to the law, in 1950 and 1968, removed the discriminatory taint of the law, thus differentiating this case from the precedent established in Hunter v 16

14 Times, “U S Negro Voters Put at 5 5 Million ”

15 Hunter v. Underwood, 471 U.S. 222 (1985)

16 Jarvious Cotton v. Kirk Fordice, 157 F.3d 388 (5th Cir. 1998)

Underwood The standard since Cotton has been that any subsequent amendment to a discriminatory statute must also have established discriminatory intent to violate the Fourteenth Amendment.

In August of 2023, the Fifth Circuit Court of Appeals refused to hear challenges to § 241 rooted in the Fourteenth Amendment, citing the precedent previously established by the Eleventh Circuit Court in Johnson v Governor of State of Florida (2005), that the “felon disenfranchisement provision did not violate the Equal Protection Clause because the current provision was adopted without discriminatory intent” In Johnson, the 1898 provision in 17 question had been amended by legislators in 1968, leaving the court to decide whether the precedent in Hunter was satisfied. Along those lines, the majority of the Fifth Circuit cited the fact that the state legislature amended § 241 in 1950 to remove “burglary” from the list of crimes that triggered disenfranchisement and in 1968 to add “rape and murder.” Thus, the discriminatory taint of the law was removed, rendering any Fourteenth Amendment challenge invalid.

The problem with the ruling in Cotton is the nature of the amendments, especially the most recent amendment, which in no way diminishes the effect of the statute as passed in 1890. I argue that the most reasonable standard for removing the discriminatory taint of a statute is that any amendment must amount to a fundamental change in the statute or a dramatic decrease in how restrictive the statute is. As it stands, there is a strict line of continuity between each version of § 241 that neither amendment fundamentally altered. Firstly, the 1950 amendment removing burglary from the list of offenses cannot amount to a fundamental change in the law since the general meaning and content of § 241 that most felonies will result in lifetime disenfranchisement was not changed. The well-established discriminatory intent of the 1890 delegates lives on in all of the other listed crimes that were left unchanged. Secondly, the fact that the legislature made the provision more restrictive in 1968 by including rape and murder makes the notion of § 241’s removal from discriminatory intent even more implausible. The conclusion that increasing the restrictiveness of a law first enacted as an overtly discriminatory measure could somehow wash away the discriminatory nature of the bill is absurd. Suppose that

17 Johnson v. Governor of State of Florida, 405 F.3d 1214 (11th Cir. 2005)

the Twenty-Fourth Amendment, banning poll taxes, was never enacted, and in 1968, the provision in Mississippi’s 1890 constitution for a $2.00 poll tax stood. By the precedent in Cotton, are we to say that the discriminatory intent of the poll tax could be washed away if the legislature in 1968 increased the poll tax to $4.00? Increasing the degree to which the law fulfills the intent of its discriminatory passage cannot wash away the intent. The only way to change such a statute per the Fourteenth Amendment is to fundamentally alter the restrictions of the law, and typically the best way to ameliorate the intent is to simply strike down the law. C. Harness v. Watson (2022)

In 2022, plaintiffs Roy Harness and Kamal Karriem, two Mississippi natives and convicted felons, brought suit against Mississippi Secretary of State Michael Watson in his official capacity. They sought injunctive relief to restore their voting rights as convicted felons, claiming § 241 violated the Fourteenth Amendment’s Equal Protection Clause because the 1890 provision maintained its discriminatory intent despite subsequent amendments. The case was heard because the question was whether the 1968 amendment to § 241, adding rape and murder to the list of disqualifying crimes, was passed with discriminatory intent. The Fifth Circuit, in an en banc hearing, reaffirmed the ruling in Cotton, saying that the provision as it currently stood had been washed of its discriminatory taint, and since the plaintiffs were unable to establish discriminatory intent in the 1968 legislature’s passage of the amendment, the precedent was maintained. The following year, the Supreme Court declined to hear the case. 18

For the reasons above, I believe the standard in Cotton was asking the wrong question, and the court’s reaffirmation of the decision has led to Fourteenth Amendment challenges of § 241 being unreliable for plaintiffs. Harness also sets the troubling standard that any amendment to a law passed with discriminatory intent, however trivial, can remove the initial intent’s relevance in Fourteenth Amendment challenges. Such a standard puts civil rights casework generally into an awkward position, as many discriminatory provisions passed in the post-Reconstruction era have been amended at some point thereafter

18 Harness v. Watson, No. 19-60632 (5th Cir. 2022)

IV. Fourteenth Amendment Challenge to § 241

A. Application of Precedent Established in Hunter v. Underwood (1985)

Having established why Cotton and Harness were decided poorly, we may now proceed to challenge § 241 on Fourteenth Amendment grounds. My argument is not a novel one, but rather it seeks to apply the standard the Court established in the 1985 case Hunter v. Underwood. Due to the similar nature of both cases, I argue that the standard applied in Hunter should also be applied to Hopkins.

In Hunter, the Court stated the need for evidence of both racially disparate outcomes and racially discriminatory intent in making the law. After both have been established, the burden shifts to the defendant to prove that the law would have been written otherwise if not for the racially discriminatory intent. By this standard, § 241 should also be ruled unconstitutional by the Equal Protection Clause. I will walk through each step of the Court’s standard, showing how the plaintiffs in Hunter met them and how the plaintiffs in Hopkins would meet them. Firstly, Mississippi’s § 241 and Alabama’s § 182 are exceedingly similar, both in that they are the only constitutional provisions in the country that explicitly list the crimes that disqualify citizens from voting and in their neutral wording. The list of offenses that prevent Mississippi citizens from voting is as follows: …and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector…19

The statute is generally taken to mean any felony conviction results in lifetime disqualification from voting. Similarly, Alabama’s § 182 disenfranchised: All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife,

19 Miss. Const. art. XII, § 241.

bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude.20

Alabama’s statute is rather more restrictive specifically, the disqualifications of any person who commits a crime punishable by imprisonment or a crime involving moral turpitude, which, as one might expect, were very flexibly applied. Both statutes used racially neutral language, making them permissible under the Fifteenth Amendment at the time these constitutions were adopted.

Mississippi’s statute also meets the same standard of creating sufficiently disparate outcomes by race as Alabama’s statute. In oral arguments before the Court, the plaintiffs in Hunter cited one of the historians called as a witness:

In fact, the Defendants' own expert, the Appellants' own expert testified that 90 percent of the people who were disfranchised in the first year after the passage of the Constitution for commission of a misdemeanor were Black. African Americans were disenfranchised at such an 21 extreme proportion despite making up only 45% of the population of Alabama in 1900, clearly 22 showing disparate outcomes. Similarly, the impact of the Mississippi provision has led to demonstrably discriminatory outcomes. According to a petition filed by the Mississippi Center for Justice on behalf of the plaintiffs in Harness, “African American adults are … 2.7 times more likely than white adults to have been convicted of a disenfranchising crime.” The statute creates 23 extremely disparate outcomes in the present day, and it has historically been even more overwhelmingly discriminatory. Thus, the challenge of § 241 reaches the standard established by Hunter for discriminatory impact.

The plaintiffs in Hunter, further, had to establish discriminatory intent in the passage of the law to challenge it on Fourteenth Amendment grounds, and the evidence they used is near-identical to evidence used in other cases to prove discriminatory intent in the passage of § 241. They offered up the words of the presiding officer of the 1901 Alabama constitutional

20 Ala Const art VII, § 182

21 Proceedings Before The Supreme Court, Hunter v Underwood (1985), Official Transcript, 28-29 22 “Alabama’s Population: 1800 to the Modern Era ”

22 Al.com, undefined, “Alabama’s Population: 1800 to the Modern Era

23 “U.S. Supreme Court Declines to Review Mississippi Disenfranchisement Policy.”

convention, John B. Knox. He stated in his opening address, "And what is it that we want to do? Why it is, within the limits imposed by the Federal Constitution, to establish white supremacy in this State.” They used other statements from delegates at the convention, as well as the 24 racialized nature of other seemingly neutral provisions in the constitution that had since been struck down, to establish the racially discriminatory intent of the lawmakers. Similarly, statements from the 1890 Mississippi Constitutional Convention provide a wealth of insight into the intent behind the passage of the law. Judge Solomon Saladin Calhoon said in his opening remarks:

“This ballot system must be so arranged as to affect one object… for we find two races now together, the rule of one [African Americans] has always meant economic and moral ruin; we find another race [whites] whose rule has always meant prosperity and happiness.”25

Just as with the statements by Knox, Calhoon’s words demonstrate how the Constitution’s statutes on voting were entirely driven by a desire to disenfranchise African Americans. Regardless of the neutral language on § 241, the intent was clearly to ensure fewer African Americans were able to vote.

V. Plaintiffs’ Challenge to § 241 in Hopkins v. Hosemann (2023)

The Southern Poverty Law Center brought a class action suit against the State of Mississippi for the felony disenfranchisement provisions in its state constitution § 241 and § 253 (for our purposes, we’ll only be focusing on § 241). They claimed that the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection under the law rendered § 241 and § 253 unconstitutional. The Fourteenth 26 Amendment follows the same formula that I have presented, that the intent and impact of the law is demonstrably disciminatory. Due to such Fourteenth Amendment challenges already being settled by the Supreme Court for the time being, the Fifth Circuit and the Fifth Circuit Court of Appeals refused to hear this argument.

However, the plaintiffs presented a novel argument by challenging the statute on Eighth Amendment grounds. They argued that Mississippi’s statute gives a greatly disproportionate

24 “Alabama’s 1901 Constitution: Instrument of Power ”

25 McKeever, “Voter Suppression Has Haunted America since It Was Founded.”

26 “Dennis Hopkins, et al. v. Secretary of State Michael Watson.”

punishment to crimes listed that are relatively benign, thus violating the prohibition on cruel and unusual punishment. For example, a citizen in Mississippi can be disenfranchised for life merely for possessing three oxycodone pills with no recourse except by an individual act of the 27 legislature. The plaintiffs continued, saying that Mississippi has more elected public offices than most other states, including public service commissioners, tax collectors, and county clerks as well as typical statewide offices like the governorship. They argue that this aspect of political life in Mississippi amplifies the impact of the punishment by shutting out the disenfranchised citizens more so than in other states.28

The plaintiff ’s argument is compelling, but it is unlikely the conservative Fifth Circuit at large will be convinced. The extent of the punishment often does greatly outweigh the disenfranchising offense, and most of the people being disenfranchised are not murderers or rapists. Felons in Mississippi are more typically guilty of grand larceny stealing property valued greater than $1,000 but less than $5,000 or lesser crimes. Moreover, the criminal act is often committed when the citizen was young, but their disenfranchisement lasts for the rest of their lives.

In the wake of the Fifth Circuit’s call for an en banc hearing, the future of Hopkins isn’t optimistic. The Fifth Circuit is not known for reading Voting Rights laws broadly, nor is the Supreme Court and its 6-3 conservative majority. The Fifth Circuit Court of Appeals believed that the argument was strong enough to strike down the statute, but the Fifth Circuit at large is likely to uphold the statute.

VI. Conclusion

In the long, arduous path towards securing full voting rights in Mississippi, African Americans have often depended on Congress to affirm its commitment to such ends. The courts, especially in the wake of the Voting Rights Act, have been unreliable in ruling in favor of expanding voting rights. The Fifth Circuit will in all likelihood rule against the plaintiffs, pushing the case to the Supreme Court.

Unfortunately, the Supreme Court has denied the plaintiffs’ most straightforward and

27 Miss. Code §§ 41-29-115

28 Hopkins, et al v. Hosemann, No. 19-60678 (5th Cir. 2023)

well-established means of arguing for their re-enfranchisement. If Hopkins is unsuccessful, either in the Fifth Circuit en banc hearing or the Supreme Court, then there seems to be little recourse. State leaders in the state of Mississippi have made no mention of changing their felony disenfranchisement statute, which undeniably benefits Republicans due to the extreme racial polarization in voting. Furthermore, the ballot initiative process, whereby the citizens could 29 force the issue onto the ballot, has been ruled unconstitutional by the state supreme court, with 30 similar political apathy for restoring this process on the part of the state leaders.31

With an eye toward the future, proponents of voting rights in Mississippi should place their hopes in, first and foremost, the United States Congress. While voting rights might not be as much of a hot-button issue as during the Civil Rights era, most representatives and senators come from states without criminal disenfranchisement laws, giving hope for consensus on the issue. Otherwise, voting rights in Mississippi can wait only for voters in the state to elect leaders willing to burn political capital to amend the constitution and remove § 241.

29 Pew Research Center, “Religion in America: U S Religious Data, Demographics and Statistics”; U S Commission on Civil Rights, “The Mississippi Delta Report,” Ch 3

30 “Mississippi Supreme Court Overturns Voter-Approved Medical Marijuana Initiative.”

31 Pettus, “Mississippi Senator Kills Initiative Plan, Minus Abortion | AP News.”

Works Cited

Al. “Alabama’s Population: 1800 to the Modern Era,” December 28, 2019. https://www.al.com/news/2019/12/alabamas-population-1800-to-the-modern-era.html.

Carson, E. Ann. 2021. “Prisoners in 2020 – Statistical Tables.” Bureau of Justice Statistics, NCJ 302776, https://bjs.ojp.gov/library/publications/prisoners-2020-statistical-tables.

Democracy Docket. “DEMOCRACY ALERTS - U.S. Supreme Court Declines to Review Mississippi’s Jim Crow-Era Felony Disenfranchisement Policy - Democracy Docket,” June 30, 2023.

https://www.democracydocket.com/news-alerts/u-s-supreme-court-declines-to-review-mississ ippis-jim-crow-era-felony-disenfranchisement-policy/.

Equal Justice Initiative. “RECONSTRUCTION’S END.” RECONSTRUCTION IN AMERICA: Racial Violence after the Civil War, 1865-1876. Equal Justice Initiative, 2020. http://www.jstor.org/stable/resrep30690.8. https://doi.org/10.14325/mississippi/9781496822574.003.0005, accessed 31 Oct. 2023.

Journal of the Proceedings in the Constitutional Convention of the State of Mississippi. United States: E.L. Martin, 1890.

Litera Scripta. “Alabama’s 1901 Constitution: Instrument of Power,” November 20, 2023. https://www.law.ua.edu/specialcollections/2016/12/09/alabamas-1901-constitution-instru ment -of-power/.

McKeever, Amy “Voter Suppression Has Haunted America since It Was Founded.” History, May 3, 2021.

https://www.nationalgeographic.com/history/article/voter-suppression-haunted-united-states-s ince-founded.

Mississippi Department of Archives and History, “Adelbert Ames: Twenty-Seventh and Thirtieth Governor of Mississippi: 1868-1870;1874-1876 - 2003-12,” n.d.

https://www.mshistorynow.mdah.ms.gov/issue/adelbert-ames-twenty-seventh-and-thirtieth-go vernor-of-mississippi-1868-18701874-1876.

Mississippi Department of Archives and History, “The Clinton Riot of 1875: From Riot to Massacre - 2015-09,” n.d.

https://www mshistorynow mdah ms gov/issue/the-clinton-riot-of-1875-from-riot-to-massacre

Mississippi Department of Archives and History, “The First Black Legislators in Mississippi2022-07,” n.d.

https://mshistorynow.mdah.ms.gov/issue/first-black-legislators-mississippi.

Mississippi Department of Archives and History, “Isaiah T. Montgomery, 1847-1924 (Part II)2007-02,” n.d.

https://www.mshistorynow.mdah.ms.gov/issue/isaiah-t-montgomery-1847-1924-part-ii.

Mississippi NAACP, The Sentencing Project, “Felony Disenfranchisement in Mississippi.” The Sentencing Project, September 26, 2022.

https://www.sentencingproject.org/policy-brief/felony-disenfranchisement-in-mississippi/.

Mitchell, Jerry “Conditions at Mississippi’s Most Notorious Prison Violate the Constitution, DOJ Says.” ProPublica, December 20, 2023.

https://www.propublica.org/article/conditions-at-mississippis-most-notorious-prison-violate-t he-constitution-doj-says.

NBC News. “Mississippi Supreme Court Overturns Voter-Approved Medical Marijuana Initiative,” May 14, 2021.

https://www.nbcnews.com/politics/politics-news/mississippi-supreme-court-overturns-voter-a pproved-marijuana-initiative-n1267472.

Pettus, Emily Wagster. “Mississippi Senator Kills Initiative Plan, Minus Abortion | AP News.” AP News, March 23, 2023.

https://apnews.com/article/mississippi-ballot-initiative-election-abortion-443d0f2d05ffdb574a b8c72377bf90df.

Pew Research Center ’s Religion & Public Life Project. “Religion in America: U.S. Religious Data, Demographics and Statistics | Pew Research Center,” June 13, 2022. https://www.pewresearch.org/religion/religious-landscape-study/compare/party-affiliation/by/ racial-and-ethnic-composition/among/state/mississippi/.

Southern Poverty Law Center “Dennis Hopkins, et al. v Secretary of State Michael Watson,” n.d.

https://www.splcenter.org/seeking-justice/case-docket/dennis-hopkins-et-al-v-secretary-st ate michael-watson.

Supreme Court of the United States, Official Transcript of Proceedings before the Supreme Court of the United States, Hunter v. Underwood (1985). https://www.supremecourt.gov/pdfs/transcripts/1984/84-76_02-26-1985.pdf

Times, New York. “Mississippi Governor Election Results 2023: Reeves vs. Presley.” The New York Times, January 16, 2024. https://www.nytimes.com/interactive/2023/11/07/us/elections/results-mississippi-governor.ht ml.

New York Times, “U.S. Negro Voters Put at 5.5 Million,” The New York Times, October 13, 1964, https://www.nytimes.com/1964/10/13/archives/us-negro-voters-put-at-55-million.html.

U.S. Census Bureau (1870).General Tables of Aggregate Population with Race, Mississippi. Retrieved from [https://www.census.gov/library/publications/1872/dec/1870a.html].

United States Commission on Civil Rights, “The Mississippi Delta Report,” n.d. https://www.usccr.gov/files/pubs/msdelta/main.htm.

Demands:

I. Introduction: Reparations Contra International Law

In 2014, The Caribbean Community (CARICOM) – an intergovernmental organization comprised of 15 member states in the Caribbean – developed a 10-point program for reparatory justice, under the aegis of the reparations commission. The program begins by underscoring the constitutive involvement of European nations in the historical-political matrix of colonial violence; it asserts that European governments “were owners and traders of enslaved Africans; instructed genocidal actions upon indigenous communities; created the legal, financial, and fiscal policies necessary for the enslavement of Africans.” It thereafter establishes a set of 10 programs for reparatory justice: a full formal apology; the legal right to return to indigenous homelands; an indigenous people’s development program; the development of cultural institutions; an acknowledgement that colonialism has constituted a public health crisis; illiteracy eradication; an African knowledge program; psychological rehabilitation; a transfer of European technology; and the cancellation of all accrued debt between the colonized nations, and their former colonizers. These programs, broad in their range and application, provide material challenges to 1 the enduring effects of colonial violence and extraction.

CARICOM’s reparatory program is part of a larger constellation of reparations-based projects that first began at the Pan-African Conference on Reparations in 1993 and continued at the World Conference against Racism in 2001. These projects not only demand monetary 2 compensation for the historical violence inflicted upon peoples of African descent, but also foreground the necessity of illuminating – and ultimately contesting – the structural precarities that persist as the longue durée of colonialism and racial slavery. In this sense, they present a meaningful challenge to the normative logic of reparations within contemporary international law, which, as Vasuki Nesiah notes, typically emphasizes financial payouts for “violations during a clearly demarcated historical period committed by state authorities in that jurisdiction.” The 3

1“10-Point Reparation Plan ” Caribbean Reparations Commission, 7 May 2016, http://caricomreparations org/caricom/caricoms-10-point-reparation-plan/

2 Ibid

3 Nesiah, Vasuki. “German Colonialism, Reparations and International Law.” Völkerrechtsblog, Nov. 2019, doi:10.17176/20191121-122114-0.

10-point program refuses both the structural and intertemporal limits of complementary norms around reparations in international human rights law by insisting that the structural effects of racial slavery and colonialism are ongoing and, as such, any reparatory project must be fundamentally ameliorative of the structural failures that persist in their wake.

As I will argue in this essay, the radical departure from the status quo instantiated by these reparations claims is, at least, part of the reason why these projects have failed to yield their realization in the domain of international human rights law. As former UN Special Rapporteur on Racial Discrimination and Xenophobia, E. Tendayi Achiume, notes in her special report on Reparations for Racial Discrimination, reparatory projects – like that of CARICOM –often face myriad forms of political and legal resistance: “Serious political opposition to reparations for colonialism and slavery remains among the countries that benefited the most from both.” In 2001, for example, both the United States and Canada opposed the inclusion of a 4 paragraph in the Regional Report for the World Conference against Racism that acknowledged the necessity of a reparations program for the extensive harms of racial slavery. Nearly seven years after CARICOM’s 10-point program was released, there has been little, if any, movement within the institutional matrix of human rights to acknowledge and incorporate the demands of the formerly colonized Caribbean nations.

Yet, the failure of CARICOM to constitute significant political or historical progress is precisely why it is invoked here; the consummate failures of these programs to cultivate legitimate redress for black people in the cudgels of ongoing racial terror suggests that, as Rinaldo Walcott writes, “[t]he conditions of Black life, past and present, work against any notion that what Black people] inhabit in the now is freedom.” Though Black people, in various 5 contexts, have been subject to the historical process of formal emancipation under the law – vis a vis the end of the slave trade, the era of decolonization, and the tenuous abolition of de jure segregation – such emancipation has yet to produce, it seems, a kind of formal equality under the law; that is, a formal equality that would, by necessitas, suppose an entitlement to legal remedy and repair for the persistent violence of racial slavery and colonialism. In fact, taking Walcott’s

4 “Reparation, Racial Justice and Equality: Report ” OHCHR, https://www ohchr org/en/special-procedures/sr racism/reparation-racial-justice-and-equality-report.

5 Walcott, Rinaldo. The Long Emancipation: Moving toward Black Freedom. Duke University Press, 2021. P. 1

proposition seriously, we might understand the law itself as a vehicle for the reproduction of what Saidiya Hartman calls “the afterlife of slavery…a racial calculus…entrenched centuries ago” that predisposes Black people globally to “skewed life chances, limited access to health and education, premature death, incarceration, and impoverishment.” Even though the law fashions 6 the formal emancipation from slavery and colonialism, it remains imperiled by the racial calculus of devaluation and premature death that prefigured the entwined apparatuses of slavery and colonialism. As Achiume notes, “many contemporary manifestations of racial discrimination must be understood as a continuation of insufficiently remediated historical forms and structures of racial injustice and inequality.”7

The failure to sufficiently remediate what Achiume identifies as the “historical forms and structures of racial injustice” produces – within the scene of the law – a kind of quixotic tension, as I noted previously, between formal emancipation and formal equality As I will explain further, the dominant norms of international human rights law work to perfect this tension, especially as it pertains to reparatory justice for slavery and colonialism – wherein the supposition of former colonial nations’ legal obligation to remedy and repair is antagonized by the institutional failures of international human rights law to establish and perform an obligation as such. In this mode, we might read the reparatory demands made by CARICOM as “impossible demands” – a set of demands almost entirely incommensurate with the field and function of their object. Such a reading of these demands uproots the fantasy of international human rights law as a neutral zone where universal norms of inclusion, self-determination, and equality readily materialize at their invocation, and exposes the human rights regime as one rooted in an “arrogant Eurocentric rhetoric and corpus” that structurally limits the formal equality of black life in its horizon. What is evinced here is that reparations claim for colonial harm, though 8 emancipatory in intention and iteration, fail to yield their realization, in part because the domain from which they seek repair – international human rights law – is precisely what structurally undermines them. In situating these decolonial reparation projects alongside a critical reading of normative reparations in human rights law, I hope to bring into relief the latter ’s politico-ethical

6 Hartman, Saidiya Lose your mother: A journey along the Atlantic slave route Macmillan, 2008 Pg 7

7 Achiume, p. 18

8 Makau Mutua, “What is TWAIL?”, 94 American Society of International Law Proceedings (2000) p. 37

limits – and to attune towards the “impossible demand” of decolonial reparations as a conceptual space for radically reimagining the horizon of international human rights law.

II. Scene Of Predation: Human Rights, Hegemony, & Nobodies

If one were to glean the history of the human rights project, they might discover that it is bound up in a single aspiration: the collective, universal realization of human dignity, freedom, and self-determination across the globe. As the 1948 United Nations Declaration underscores, human rights must consolidate “the inherent dignity and of the equal and inalienable rights of all members of the human family.” Here, the universality of human rights is assumed perhaps not 9 because of a shared human morality, but because of an assumed universal significance, which imbues the human rights project with a dispositive function. It becomes a medium through which the social, political, and economic conditions of everyday life might be affirmed or contested given their fidelity to the project of human freedom.

Perhaps this is why Paul Lauren, in The Evolution of International Human Rights: Visions Seen, describes human rights as a set of “visions” charged with the “capacity to challenge, to generate fear, to hold out hope and inspire, and to change the world.” These 10 visions, he writes, “did not evolve from any single society, political system, culture, geographical region or manner,” and in many cases, emerged out of necessity in the wake of “exploitation, slavery, racial segregation and apartheid…conquest, and the mass exterminations of genocide.”11

Lauren foregrounds human rights as a project made universal not by a singular, fundamental bedrock from which all of its conceptions emerge, but a commonly understood significance of human rights – as an instrument through which liberties may be vouchsafed and abuses may be contested. Lauren’s conception of universality-as-universal significance gives the human rights project a fantasy of inexorable power Fundamentally, it assumes that the entire field of the human rights regime – everyday people, institutions, political actors, et cetera – is bound up in a mythical bent towards constant historical progress.

The divergent origins of human rights visions, as Lauren argues, find their common

9 “Universal Declaration of Human Rights ” United Nations, United Nations, www un org/en/about-us/universal declaration-of-human-rights

10 Lauren, Paul Gordon The Evolution of International Human Rights: Visions Seen University of Pennsylvania Press, 2013.Pg. 2

11 Ibid.

ground in a shared quality of resistance to the status quo: “[T]hese visions challenged traditional authority and attempted to limit the arbitrary exercise of power.” In formulating human rights 12 as a resistant vocabulary, Lauren asks us to read human rights as an aspirational lexicon – a language for a set of conditions that have to be negotiated, contested, or willed into existence. Human rights becomes the thing that must be defended against structures of domination and violation, not something that can be couched within those very structures. They form the mode by which “modern politics and society are defined,” as “the global community” acquiesces to “the universal culture of human rights.” This universal culture of human rights should, within 13 normal means, entitle all subjects to a shared set of inalienable rights and privileges, given the legal provisions that bound those rights and privileges.

Yet, such a vision of human rights risks rehearsing the same logic of hegemony it purports to contest. David Kennedy writes in “The International Human Rights Movement: Part of The Problem,” that “human rights has so dominated the imaginative space of emancipation that alternatives can now only be thought…as negations of what human rights asserts.” In 14 other words, the human rights regime establishes itself as the dominant force through which emancipation ought to be negotiated, effectively casting alternative strategies of emancipation to the periphery. This hegemonic model of human rights privileges its own complementary institutions, legal norms, and practices, effectively disavowing alternative modalities of rights proclamation and redress. Given this tendency to diminish other models of rights discourse, Kennedy argues that invoking human rights “as a dominant emancipatory vocabulary” for the so-called global community “may have fully unintended negative consequences for other existing emancipatory efforts.” Here, Kennedy identifies a propensity for human rights 15 discourse to establish its own field of domination – purporting itself to be the most legitimate vehicle for redress and collective emancipation. The hegemonic structure of human rights, as such, propagates a “one-size-fits-all emancipatory practice” that curtails the “possibility for

12 Ibid

13 Ibid, pg 4

14 Kennedy, David “The International Human Rights Movement: Part of the Problem?” Human Rights, Routledge, 2017, p. 108

15 Ibid.

particularity and variation.” In its tending-towards universality, the normative human rights 16 model establishes a threshold for what constitutes its affirmations or violations; this threshold, when seized from the scenes of variation, can delegitimize certain claims about human rights that exist outside of its field of moral vision.

This model of hegemonic thinking also crowds out meaningful challenges to the conception of human rights as a universal – rather than Western – conception. Such challenges suppose, as International Law scholar Anthony Anghie argues, that “international human rights law presents, as universal and as binding on all states a very specific model of society whose origins can be traced back to…Western experiences.” This tending to Western experiences 17 anchors human rights discourse within a Western rights modality that manifests in fidelity to the rule of law. As Charles Taylor notes, “[t]he Western rights tradition…is a legal tradition, legitimating certain kinds of legal moves, and empowering certain kinds of people to make them.” This legal tradition is organized by a set of views “on human nature, society, and the 18 human good that are elements of an underlying justification.” These views are ultimately 19 bound up in Enlightenment conceptions of universal morality, self-determination, and propriety that foreground what constitutes a claim to human rights. Though a rigorous critique of the Enlightenment’s political and philosophical commitments to racialized subjection well exceed the scope of this paper, they are foregrounded most visibly in what philosopher Achille Mbembe identifies as “the birth of the racial subject – and therefore blackness” – a philosophical foil for emerging discourses on human freedom, morality, and property.20

The racial subject is constituted by a “double impulse towards…the unlimited violation of all forms of prohibition and…the abolition of any distinction between ends and means.”21 This violation predisposes the racial subject – and therefore the black subject – to the excess of violence: chattel slavery, material dispossession of land and property, manufactured

16 Ibid, p. 109

17 Anghie, Antony. “International Human Rights Law and a Developing World Perspective.” Routledge Handbook of International Human Rights Law, Routledge, http://dx doi org/10 4324/9780203481417 ch7

18 Taylor, Charles “A World Consensus on Human Rights?” Dissent Magazine, 1 July 1996, http://www dissentmagazine org/article/a-world-consensus-on-human-rights

19 Ibid

20 Mbembe, Achille, and Laurent Dubois. Critique of Black Reason. Wits University Press, 2017. P. 179

21 Ibid.

impoverishment, and surveillance. Black people – in the politico-economic scene of the Western legal tradition – are prefigured, as critical theorist Denise Ferreira da Silva writes, as “persons without value, ‘nobodies’— that is, ethical-juridical subjects without right to the formal (negative) protection of the law.” This form of extra-legal precarity takes the form of a logic of 22 obliteration: an ethical juridical architecture that mobilizes violence to “curb political and social unrest that expose the modalities of economic expropriation.” The total violence enacted upon 23 Black people – by capitalist extraction, colonization, and the enduring effects of slavery – is mobilized through the law and, at the very same time, the law is what disavows them of juridical personality. In returning to Lauren’s conception of human rights as a “universal vision,” one sees how such a project – originated in its emphasis on “the universal rights of democratic self-determination, freedom of conscience and expression, protection from political violence and, above all, the anathematization of genocide” – emerges despite and in the backdrop of dispossession, obliteration, ‘legitimate violence,’ and the anathematization of the racial Other.24 This mode of human rights works, by way of elision, to maintain the subjection of the racial subject vis a vis “the racialization and instrumentalization, the commodification and securitization, the expropriation and forcible transportation, the sexual violation and reproductive alienation of [racial Others].” What the imperatives of a universal human rights 25 project ultimately reflects, then, is not the ongoing realization of our shared, collective human dignity, but rather, the preservation of a “human family” of which the law’s “nobodies” are denied access.

III. Rethinking Remedy: Reparations in International Human Rights Law

The conceptual framework of the human rights regime as hegemonic universalism –underwritten by fantasies of racial exclusion and historical progress – provides a meaningful heuristic with which to understand the complementary norms around reparation in international human rights law. The tendency of the law to reduce Black people to “nobodies” within its

22 Silva, Denise Ferreira Da “The Racial Limits of Social Justice: The Ruse of Equality of Opportunity and the Global Affirmative Action Mandate ” Critical Ethnic Studies, vol 2, no 2, 2016, p 184

23 Ibid, pg 185

24 Walter Johnson “To Remake the World: Slavery, Racial Capitalism, and Justice ” Boston Review, 17 Nov 2021, bostonreview.net/forum/walter-johnson-to-remake-the-world/.

25 Ibid.

ethico-juridical schema, as I argued above, produces a set of conceptual challenges for imagining how a reparatory claim made by majority-black populations might yield its realization within a Western human rights modality. Beyond this conceptual aporia, the domain of public international human rights law produces a set of structural challenges for approaching these reparations claims. In the following section, I will try – however inexhaustibly – to outline them. The prevailing statute for reparations in public international law is the 2005 “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.” In its preamble, the Basic Principles and Guidelines emphasizes the “importance of addressing…remedies and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law…at the national and international levels.” It concedes that its succeeding set of guidelines “do not entail new international or domestic legal obligations.” Rather, they identify “mechanisms, modalities, 26 procedures, and methods for the implementation of existing legal obligations under international human rights law.” These mechanisms, and their corresponding norms, are anchored by a 27 reading of reparations as an individualized not structural remedy for the gross violation of civil and political rights. In outlining the scope of reparations, the Guidelines emphasize an ethics of proportionality: “reparation should be proportional to the gravity of the violations and the harm suffered.” In other words, the reparations should correct the violations at the level of 28 their scale and scope. Such corrections can include but are not limited to: the restitution of victims to their original status prior to the event of violation; monetary compensation for “any economically assessable damage,” including “moral damage,” “lost opportunities,” and physical or mental harm; and rehabilitation through medical and psychological care. Within this 29 framework, the ideal of reparations is to provide ameliorative closure for victims of atrocity by correcting, in scale, the assessable harm enacted upon them. Yet, as Vasuki Nesiah notes in “A

26 “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law ” OHCHR, https://www ohchr org/en/instruments-mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and reparation

27 Ibid

28 Ibid.

29 Ibid.

Double Take on Debt,” this approach to “the scope of the right to reparations” is fundamentally misguided because it is “often apiece with a reading of atrocity itself as arising from a violation of the rule of law, rather than symptomatic of the rules of the game.”29 In other words, the fundamental assumption laden in the right to reparation is that the atrocity experienced must be exceptional to the rule of the law, and not constitutive of the law’s unfolding. This atomized conception of reparations can only read historical atrocities – enslavement, dispossession, mass murder, genocide, et cetera – as singular events “disconnected from their enabling conditions and their structural work.” The treatment of historical atrocities as exceptional rather than 30 conditional limits the right to reparation by undermining the structural forces – namely, the rule of law – that must proceed to make atrocity possible; this means that reparations can only be conceived when atrocity is extra-judicial and enacted outside of the terms of law. Within this framework, it becomes incredibly difficult to qualify the structural violence of Western colonization – conceived within and through the rule of law – as an “assessable harm” that can be corrected through legal remedy 31

Even when colonial violence is remediated through reparatory projects, the normative emphasis on “assessable harm” often truncates the scope of reparation by emphasizing a privatized model of remedy rooted in personal, rather than structural, injury For example, the reparations for apartheid that followed the South African Truth and Reconciliation Commission were largely financial compensations towards individuals that the commission could determine were eligible victims of atrocity; that is, they experienced atrocity characterized by the violation of their individual integrity, such as acts of torture. As such, the reparations did not engage the actual interlocutors of apartheid in moral or financial accountability because the target of reparation was not the system itself, but its aberrations. Here we see how the normative 32 emphases on individual injury and “assessable harm” radically limit the horizon of reparations claims by disavowing the structural forces that authorize the performance of atrocity Within the

30 Nesiah, Vasuki "A Double Take on Debt: Reparations Claims and Regimes of Visibility in Politics of Refusal " Osgoode Hall LJ 59 (2022): 153 Pg 157

31 Ibid

32 Mahmood Mamdani, “A Diminished Truth” in Wilmont James & Linda Van de Vijver, eds, After the TRC: Reflections on Truth and Reconciliation in South Africa (David Phillips, 2000) 58-61.

legal-political framework of the Basic Principles and Guidelines, a claim for reparations rooted in the historical longue durée of slavery and colonialism – as is the case for CARICOM – is functionally illegitimate, insofar its justifications are rooted in ongoing collective injury and innumerable degrees of political, institutional, and cultural harm. The reparatory claims outlined by CARICOM are further disqualified by international law’s intertemporal principle. The intertemporal principle as codified in the articles on responsibility of States for internationally wrongful acts outlines the scope of responsibility for the violation of international law. The 33 principle iterates that a State is only accountable to violations of international legal statute if, at the time of the violation, the State was subject to the legal provisions it contravened. In other words, it brackets the horizon of accountability to the moment a State is bound to a legal provision. As Achiume underscores in her report on “Reparations for Racial Discrimination,” the intertemporal principle operates as a conduit for former colonial powers to appeal to “the non-retroactive application of international law to deny that they have a legal obligation to provide reparations.” In the case of the German genocide of the Ovaherero and Nama peoples 34 of Namibia, for example, Germany has “stressed the intertemporal principle as a barrier to its international responsibility for both the genocide and reparations.” The intertemporal principle thus serves as a conduit for the disavowal of responsibility, on the part of former colonial nations, to perform remediation for their dispossession, extermination, and calculated imperilment of colonized peoples. The intertemporal principle is nevertheless subject to a set of exceptions that trouble its utility as an appeal against reparative responsibility, including when a “wrongful act’s ongoing consequences extend into a time when the act and its consequences are considered internationally wrongful.” Within these parameters, the ongoing effects of 35 colonialism and slavery – manifest in contemporary racial discrimination – cannot be said to fall within the threshold of the intertemporal bar, as their structural consequences continue to persist. Secondly, the intertemporal principle does not disqualify contemporary modes of racial discrimination from remediation, especially in the form of reparations; as such, States that

33 “Articles on the Responsibility of States for Internationally Wrongful Acts ” International Law Documents, Cambridge University Press, pp 64–75, http://dx doi org/10 1017/9781316577226 009

34 Achiume, p 19

35 Ibid.

maintain structures of racial exclusion and discrimination are obligated to remediate their violations, given the legal provisions to which they are bound. Here we see how the intertemporal principle – though flexible in its application – nevertheless operates as a barrier to the realization of reparative projects for colonialism and slavery.

In reading the dominant and complementary norms around reparations in international human rights law, one sees how a reparatory project, like that of CARICOM, is subject to diminishment – not because the project itself is illegitimate or ahistorical, but because its object of remediation structurally disqualifies it. The dominant conception of reparations as a privatized remedy for injury in excess of the law is fundamentally at odds with the aspirations of reparations for colonial harm. These projects for reparatory justice are rooted in a communal entitlement to infrastructural repair for colonial violence committed through – not in excess of –the rule of law In this manner, these reparatory projects call into question the structural and temporal limits of normative reparations claims by framing the constitutive violations as integral to the law’s performance. Moreover, they suppose an alternative temporality that frames the violence of colonization as an ongoing structure, rather than an event sequestered to a specific demarcation within historical time. Implicit in CARICOM’s paradigm for reparatory justice is “a recognition of how histories of colonialism and slavery are windows to the past but also constitutive of the present.” As such, the persistent legacy of colonialism and slavery in the 36 fabric of Caribbean life marks the “political economies that figure European privilege and prosperity, and, concomitantly the vulnerabilities of the Caribbean present, as dimensions of the contemporary lives of colonial and slave histories.” The dialectic of European privilege and 37 Caribbean vulnerability speaks to the centrality of colonial plunder in the development of Western political and economic hegemony As the CARICOM report notes, the organizing political-economic force of the West is undergirded by historical strategies of imperial extraction that continue to plunder, dispossess, and exterminate black life in the Americas and beyond. As such it becomes impossible to extract the governing institutions of the West – including the various domains of international law, like the United Nations – from an indebtedness to black

36 Nesiah, p 157

37 Ibid.

vulnerability This indicts the failure of these institutions to provide reparation for colonial violence as a disavowal of their colonial inheritance. But perhaps more provocatively, it intensifies the stakes for such reparations claims by demonstrating their capacity to undermine the presumptive logics of institutions meant to manage them.

IV. Conclusion: An Appeal for

Another World

Ultimately, as I have tried evince above, claims issued by colonized subjects in order to cultivate formal equality under the law – vis a vis reparation for the enduring effects of slavery and colonialism – fail precisely because the organizing norms, logics, and institutions of the law enable their exclusion. But what if we thought against the grain of this failure to insist that the “impossible demand” rendered by CARICOM is, in fact, a radical undoing of the contemporary human rights regime? The series of demands envisioned by CARICOM – the return of European technology, the cancellation of odious debt, and the repatriation of indigenous lands – bespeak a decolonial future in which Caribbean nations exist beyond the dialectical horizon of European prosperity and Caribbean precarity. By reappropriating the legal apparatus responsible for colonial subjection towards decolonial emancipation, CARICOM takes the form of what Denise Ferreira Da Silva refers to as “radical praxis” – the deployment of the law against itself “to use it as a tool for dismantling the determining gestures in the scenes of economic and ethic value, out of which the form of justice emerges and in which it guides administrative and executive decisions and plans for the realization of justice.” By deploying the excess of the law against

38 itself, radical praxis reveals and exposes the limitations of the law to adequately redress the violence of the law’s excess.

Though CARICOM is a crucial illustration of how demands for reparatory justice forge radical strategies of subversion and critique, there exists an entire horizon of these demands at the seat of the contemporary human rights regime. We find another example of these demands in E. Tendayi Achiume’s Special Report on Ecological crisis, climate justice and racial justice. In the report, Achiume foregrounds the contemporary ecological crisis is concomitant with enduring logics of racial justice and imperial extraction, such that “climate-induced migration

38 Ferreira Da Silva, Denise, “Speculations on a Transformative Theory of Justice ” Contour Biennale 8, 22 Apr 2017, hearings.contour8.be/2017/04/11/speculations-transformative-theory-justice/.

cannot be divorced from the racially unjust hierarchies…that have significantly determined who is forced to move and who has the privilege of keeping their homes and nations.” Underscoring 39 how the historical emissions in the global North “relied upon and enabled racist subordination in the global South, and in the settler colonies of the global North,” Achiume links the contemporary climate crisis to a broader history of colonization, racialized conquest, and plunder

Given the intimate entanglement between ecological disaster and colonization that produces, as such, a racialized asymmetry in the global effects of climate change, Achiume[3] makes a case for the necessity of reparations that “address historic climate injustice,” as well as “eradicate contemporary systemic racism that is a legacy of historic injustice in the context of the global ecological crisis.” Given the barriers produced by international legal principles around both reparations and historical responsibility for climate change, Achiume calls on United Nations Member States to decolonize the legal system in such a manner that “makes it capable of guaranteeing genuine equality and self-determination for all peoples.” Within this mode, reparation is transfigured beyond its normative unfolding – as financial compensation for private injury – towards the cultivation of “equitable international economic, political and legal frameworks” as a necessary “precondition for reorienting the global order away from ecological crisis.” This framework of reparations does not solely seek repair or amelioration for the persistent violence of racialized conquest but insists on undoing – and remaking – the very legal structures and apparatuses responsible for fortifying racialized conquest. Such a mode of conceptualizing reparations turns away from the false promises of the law, however daringly, to challenge its terms of traditional governance and authority.

In the case of CARICOM, as well as in E. Tendayi Achiume’s special report on ecological justice, we see how decolonial demands for reparatory justice are “insurgent legal claims” that “with the hum of social movements and socio-economic transformation as impetus and inspiration,” stitch together “doctrine and precedent, authorized interpretations, and

39 “A/77/549: Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, E Tendayi Achiume - Ecological Crisis, Climate Justice and Racial Justice ” OHCHR, https://www ohchr org/en/documents/thematic-reports/a77549-report-special rapporteur-contemporary-forms-racism-racial.

persuasive re-interpretations” of the law Even when these insurgent legal claims fail to shore 40 up as meaningful contest to the normative order of international human rights law, they nevertheless gesture towards the possibilities of a decolonial future. Their very invocation is, itself, a kind of reparation at reparation’s formal limits – and a recognition of our shared willingness to form a part in the clouds of historical imagination, if only to catch a glimpse of our freedom dreams: sparking and impossible on the horizon.

40 Nesiah, p. 185

Works Cited

“10-Point Reparation Plan.” Caribbean Reparations Commission, 7 May 2016, http://caricomreparations.org/caricom/caricoms-10-point-reparation-plan/.

“A/77/549: Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, E. Tendayi Achiume - Ecological Crisis, Climate Justice and Racial Justice.” OHCHR, https://www.ohchr.org/en/documents/thematic-reports/a77549report-special-rapporteur-contemporary-forms-racism-racial. Accessed 19 Mar. 2023.

Anghie, Antony. “International Human Rights Law and a Developing World Perspective.” Routledge Handbook of International Human Rights Law, Routledge, http://dx.doi.org/10.4324/9780203481417.ch7. Accessed 19 Mar. 2023.

“Articles on the Responsibility of States for Internationally Wrongful Acts.” International Law Documents, Cambridge University Press, pp. 64–75, http://dx.doi.org/10.1017/9781316577226.009. Accessed 19 Mar 2023.

“Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.” OHCHR, https://www.ohchr.org/en/instruments mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and-reparation. Accessed 19 Mar. 2023.

Ferreira Da Silva, Denise. . “The Racial Limits of Social Justice: The Ruse of Equality of Opportunity and the Global Affirmative Action Mandate.” Critical Ethnic Studies, vol. 2, no. 2, 2016, p. 184, doi:10.5749/jcritethnstud.2.2.0184.

Ferreira Da Silva, Denise. “Speculations on a Transformative Theory of Justice.” Contour Biennale 8, 11 Apr 2017, http://hearings.contour8.be/2017/04/11/speculations-transformative-theory justice/.

James, Wilmot Godfrey, and Linda Van de Vijver After the TRC: Reflections on Truth and Reconciliation in South Africa. 2001.

Mbembe, Achille. Critique of Black Reason Wits University Press, 2017.

Mutua, Makau. “What Is TWAIL?” Proceedings of the ASIL Annual Meeting, vol. 94, 2000, pp.

31–38, doi:10.1017/s0272503700054896.

Nesiah, Vasuki. “German Colonialism, Reparations and International Law.” Völkerrechtsblog, Nov. 2019, doi:10.17176/20191121-122114-0.

Nesiah, Vasuki. "A Double Take on Debt: Reparations Claims and Regimes of Visibility in Politics of Refusal." Osgoode Hall LJ 59 (2022): 153.

“Reparation, Racial Justice and Equality: Report.” OHCHR, https://www.ohchr.org/en/special procedures/sr-racism/reparation-racial-justice-and-equality-report. Accessed 19 Mar. 2023. “To Remake the World: Slavery, Racial Capitalism, and Justice.” Boston Review, 20 Feb. 2018, http://bostonreview.net/forum/walter-johnson-to-remake-the-world/.

Walcott, Rinaldo. The Long Emancipation: Moving Toward Black Freedom. 2021.

Asian Americans Decisions, 1889-1925

Jessica Zeng | Northwestern University

Winter 2024

1 Hoang Gia Phan, “‘A race so different’: Chinese exclusion, the slaughterhouse cases, and Plessy v. Ferguson,” Labor History 45, no 2 (2004): 133-163, doi: 10 1080/0023656042000217237

I. Introduction

Asian Americans have a long history of fighting for citizenship-related rights in the American court system. Beginning with Chinese laborers who immigrated during the 19th century, Asian immigrants were resented as a source of cheap labor with which whites could not compete.2 This eventually led to the passage of several statutes designed to limit Asian immigration. The Chinese Exclusion Act banned Chinese laborers from entering the US;3 the Naturalization Act of 1906 stated that only whites or people of African descent could become citizens;4 the Immigration Act of 1924 declared that those ineligible for citizenship were not permitted to enter the US.5 Challenges to these statutes produced a series of cases that reached the Supreme Court during the late 19th and early 20th centuries.6

Asian Americans occupied a unique position in the racial hierarchy of this time period. While race in the US is often thought of in terms of Black-white race relations, Asian Americans also faced institutional oppression in this era. Perhaps one of the most poignant examples of Asian Americans’ relationship with the law is in Justice Harlan’s famous dissent to Plessy v. Ferguson. Despite arguing that the doctrine of “separate but equal” established by the Court’s opinion, which affirmed the legality of de jure segregation, was unconstitutional under the Fourteenth Amendment, he mentions Asian Americans in his opinion as “a race so different from our own that we do not permit those belonging to it to become citizens of the United States.”7 This sociolegal exclusion of Asian Americans produced a unique set of legal challenges compared to other racial groups.

This paper seeks to answer the question: how can differential outcomes and reasonings in late 19th and early 20th century citizenship-related US Supreme Court cases involving Asian Americans be explained? I analyze three pairs of cases: first, Takao Ozawa v. United States (1922) and United States v. Bhagat Singh Thind (1923); second, Chae Chan Ping v. United States

2 “The Rise of Asian Americans,” 2012, https://www.pewresearch.org/social-trends/2012/06/19/the-rise-of-asian-americans/.

3 Polly J Price, “A ‘Chinese Wall’ at the Nation's Borders: Justice Stephen Field and The Chinese Exclusion Case,” Journal of Supreme Court History 43, no 1 (2018): 7-16, doi: 10 1111/jsch 12167

4 Takao Ozawa v United States, 260 U S 178 (1922)

5 Cheung Sum Shee et al v Nagle, Commissioner of Immigration, 268 U S 336, 345 (1925)

6 Suzanne Nuyen, “4 U S Supreme Court Cases Where Asian Americans Fought For Civil Rights,” May 26, 2022, https://www npr org/2021/05/27/999550296/4-u-s-supreme-court-cases-where-asian-americans-fought-for-civil-right s.

7 Gia Phan, 147

or The Chinese Exclusion Case (1889) and United States v. Wong Kim Ark (1898); third, Cheung Sum Shee et al. v. Nagle, Commissioner of Immigration (1925) and Chang Chan, Wong Hung Kay, Yee Sin Jung et al. v. Nagle, Commissioner of Immigration (1925). I argue that seemingly contradictory arguments found in the majority opinions of these cases serve a single purpose of perpetuating white supremacy by creating conflict within the Asian American community, granting limited rights, and reinforcing social perceptions of Asian Americans that justify their legal exclusion. While existing literature discusses the contradictory elements of these cases, it fails to examine them with a critical perspective that adequately addresses what I argue to be Asian Americans’ unique sociolegal status as “a race so different.” To address this gap in the literature, this paper ’s analysis uses Asian American Legal Scholarship as a theoretical framework, providing a model for future sociolegal analyses of Asian Americans and their relationship with the legal system.

II. Literature Review

To understand the judicial reasoning in the cases, a review of the relevant literature is necessary This literature review first discusses the theoretical framework of Asian American Legal Scholarship that is used to analyze the cases. This is followed by a review of several themes relevant to the cases and their sociolegal contexts from the literature. These themes are race; assimilation and concepts of social worth; labor and economics; and gender, marriage, and family. I conclude this section with an explanation of the gap in the existing literature that this paper ’s analysis seeks to fill.

A. Asian American Legal Scholarship

I based my analysis on Robert Chang’s theoretical framework from his piece “Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space.” In this article, Chang argues that existing frameworks for analyzing Asian Americans and their relationship with the law fail to address the unique Asian American experience and do not enable analysis of differences between racial groups in legal scholarship. Consequently, he advocates for an Asian American Legal Scholarship that acknowledges differences between Asian Americans and other racial minorities’ oppression by placing Asian Americans in the US racial hierarchy instead of adhering to a “black-white racial paradigm.”8 Using Asian American

8 Robert S. Chang, “Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space,” California Law Review 81, no 5 (1993): 1267, doi: 10 15779/Z385M8W

Legal Scholarship as a theoretical framework, I found several themes in the literature on the cases examined in this paper. The rest of this review examines these themes.

B. Race

Perhaps the most obvious theme in these cases is race. Specifically, these cases demonstrate an inherent connection between whiteness and Americanness through the legal exclusion of Asian Americans from citizenship on the basis of race.9 Two of the Court’s main arguments in these cases are scientific racism and the “common knowledge” argument. Scientific racism was a popular justification for the exclusion of East Asians who were classified as “Mongolians”.10 However, in cases where West and South Asians were excluded from citizenship, the Court argued that the “common knowledge” of “a hypothetical average American” dictated that Asians were not white.11 Underlying both arguments are social perceptions of Asians as inherently un-American that led to their legal exclusion from society

C. Assimilation and Concepts of Social Worth

Consequently, one of the most important social implications of the racial arguments in these cases is the concept of social worth. Scholarship on this topic reveals that decisions excluding Asian Americans were often made with the goal of “prevent[ing] ‘undesirable’ elements from weakening the stock of the nation by excluding those who did not, or could not, fit into the immediate definition of what constituted ‘being an American’.”12 The Court transformed these concepts of social worth into concerns over national security, bringing them into their jurisdiction and the broader legal and political domains.13 One reason for this transformation is the connection between Asian immigration and labor as discussed below

D. Labor and Economics

Economic interests in the late 19th and early 20th centuries, primarily those associated with the free labor movement, contributed heavily to decisions regarding the citizenship of Asian Americans. Chinese laborers were especially despised by white laborers, who could not compete with the cheap labor that they provided.14 Similarly, the Japanese were resented for outcompeting

9 Victor Jew, “George Sutherland and American Ethnicity: A Pre History to Thind and Ozawa,” The Centennial Review 41, no 3 (1997): 553-564

10 Izumi Hirobe, “Naturalization Cases of Asian Immigrants from In re Ah Yup to United States v Ozawa and United States v Thind,” アメリカ太平洋研究= Pacific and American studies (2006): 119

11 Hirobe, 119-20

12 Robert C Yamashita and Peter Park, “The Politics of Race: The Open Door, Ozawa and the Case of the Japanese in America,” Review of Radical Political Economics 17, no 3 (1985): 142, doi: 10 1177/048661348501700308

13 Gia Phan.

14 Price

white farmers in Western states. Japanese immigrants also discovered a loophole in statutes like the Alien Land Act, which prevented non-Americans from owning land, which enabled them to own land as trustees through their American-born children, leading to further anti-Japanese sentiment.15 Due to competing economic interests, racial violence against Asian Americans emerged.16 Consequently, Gia Phan argues that the Chinese Exclusion Act was designed to preserve the “public good” of “free labor” for white workers by preventing competition from Chinese laborers.17 Specifically, this would prevent further social unrest and violence, making the law a measure of national security.

E. Gender, Marriage, and Family

The final theme from the literature is the importance of Asian American families, particularly wives and children. This theme is most apparent in the Nagle cases involving the immigration rights of Chinese wives. The central piece of legislation in the Nagle cases was the Immigration Act of 1924, which was passed to prevent male laborers who had emigrated from being joined by their Chinese wives and having children who would be born American citizens. Chang argues that this policy was designed to exterminate the Chinese community in America because they were viewed as socially unfit, again demonstrating the importance of concepts of social worth in the legislation and court decisions of this period.18

F. Examining Asian Americans as “A Race So Different”

Despite the extensive literature, the aspects of these themes that are unique to Asian Americans in these cases have not been thoroughly examined. Existing analyses make general arguments about how legal institutions like the Court oppressed Asian Americans in alignment with social, political, and economic forces of the time; however, these assessments fail to examine how the unique position of Asian Americans as “a race so different” influenced the Court’s decisions in three ways. First, the literature does not examine whether these decisions differentially affected Asian American subgroups. Second, there is a lack of critical analysis on cases where the Court granted limited rights to certain groups in the Asian American community. Third, existing scholarship does not draw broader connections between the interaction of the social and legal domains nor examine how they work in tandem to reinforce white supremacy

15 Yamashita and Park

16 Price

17 Gia Phan, 153.

18 Chang

To address this gap in the literature, Chang’s Asian American Legal Scholarship is used as a theoretical framework. This critical perspective enables my analysis to focus on how legal decisions and social contexts worked together to exclude Asian Americans during this period. I use the framework of Asian American Legal Scholarship to demonstrate that all four of the themes discussed in the literature have unique sociolegal implications for the status of Asian Americans within the American racial hierarchy

III. Data and Methods

To analyze the contradictory arguments and differential outcomes in cases involving Asian Americans and citizenship from the specified time period, I conducted a qualitative content analysis centered on Ozawa and Thind that included supplemental analysis of The Chinese Exclusion Case and Wong as well as the Nagle cases. To find relevant cases, I searched the NexisUni database for Supreme Court cases decided between the years 1870 and 1930 that mentioned “citizenship” and one of the following terms: “Asian,” “Chinese,” or “Japanese.” These terms were selected to capture a wider range of cases, since the language used to describe members of the Asian racial category in these decisions was highly variable. From the search results, the aforementioned cases were selected in pairs because they related to the same statute but contained contradictory rulings and reasoning.

I used Asian American Legal Scholarship as a framework to determine whether there was an overarching explanation for these contradictory cases. This enabled me to draw connections between the arguments in the majority opinions and the cases’ immediate historical contexts. Information about these contexts was drawn from the literature on the cases. I also drew on the literature as a source for theoretical concepts that I applied to my analysis of these specific cases. Many of these came from Chang and his arguments about the unique position of Asian Americans in the racial hierarchy of American society

I collected my data by reading each case’s majority opinion and coding passages according to whether they mentioned four themes commonly found in the literature on the cases: race; assimilation and concepts of social worth; labor and economics; and gender, marriage, and family. After this initial process, I re-examined the coded passages using the Asian American Legal Scholarship framework to analyze the legal arguments that they contained. During this in-depth analysis, I drew connections between the different pairs of cases to determine how their variable reasonings and rulings contributed to larger social perceptions of different Asian

American groups, which in turn contributed to subsequent legal decisions regarding the eligibility of these various groups for citizenship.

IV. Analysis

By situating these cases in their larger sociolegal contexts using the Asian American Legal Scholarship framework, I found that they each contributed to the reinforcement of white supremacy as individual legal decisions and as part of a larger network including not only the legal system but also social perceptions of Asian Americans. This section begins with my primary analysis of Ozawa and Thind I then offer supplementary analyses of The Chinese Exclusion Case and Wong as well as the Nagle cases to provide additional evidence for my argument about the reinforcement of white supremacy in these court cases.

A. Ozawa and Thind

Ozawa and Thind have long been studied as a pair of cases for multiple reasons. Both involve citizenship rights: the former involved Takao Ozawa, a Japanese immigrant applying for citizenship; the latter involved Bhagat Singh Thind, an Indian immigrant applying for citizenship. Both cases involved questions surrounding the Naturalization Act of 1906. The cases also had the same outcome: both were denied citizenship. In fact, the majority opinions of both unanimous decisions made only a year apart from each other were written by the same justice: George Sutherland. Most importantly, Sutherland’s arguments in the two opinions contradicted each other.19

The theme of race featured heavily in the literature on these cases. In my content analysis, I coded several passages that related directly to race. These included the use of scientific racism in Ozawa to justify excluding Japanese Americans from citizenship because they were not of the “Caucasian” race and thus ineligible under the Naturalization Act of 1906,20 as well as Sutherland’s contradictory argument in Thind that despite being of “Aryan” descent, Asian Indians were still ineligible under the same statute because “common knowledge” dictated that they were also not white.21 However, my analysis also coded passages related to the theme of assimilation and concepts of social worth that were overlooked by the literature. Using the Asian American Legal Scholarship framework, my analysis focused on this theme in two parts: the role

19 Ozawa; United States v Bhagat Singh Thind, 261 U S 204 (1923)

20 Ozawa, 198.

21 Thind, 212; 214-5

of assimilation in reinforcing white supremacy in Ozawa and the unbreakable cycle of white supremacy produced by both seemingly contradictory decisions in combination with concepts of social worth.

1. Ozawa and Intra-Asian American Conflict

I conducted an in-depth analysis of the coded passages in Ozawa that discussed assimilation and concepts of social worth by situating Sutherland’s comments in the larger sociolegal context of the early 20th century. At the beginning of his opinion, Sutherland states that Ozawa had lived in the US for 20 years, graduated high school and attended college in California, enrolled his children in American schools, attended American churches, and spoke English in his household. Consequently, he admits “That he was well qualified by character and education for citizenship.”22 Sutherland lays out clear standards for the “character and education” necessary for an Asian immigrant to be considered appropriate for citizenship. These standards are not necessarily codified into law, but rather reflect the larger social view of the Japanese as being assimilated into American society 23 This is in stark contrast to views of other Asian Americans in earlier decisions such as The Chinese Exclusion Case, where Justice Field argued that the Chinese were unassimilable and used this to justify their exclusion from American society.

Using the Asian American Legal Scholarship framework, I found that Sutherland’s perception of Ozawa and other Japanese Americans, in contrast with the Court’s view of Chinese Americans, reveals one way that the Court reinforced white supremacy During this time period, the Japanese government actively encouraged its citizens in the US to assimilate. Hirobe states that community leaders “had signboards at Japanese shops originally written in Japanese rewritten in English” and “advocated taking a day off on Sundays on the grounds that working on Sundays looked very un-American.”24 Most importantly, the Japanese American community ran anti-gambling campaigns that were explicitly anti-Chinese, as gambling dens were associated with the Chinese.25 Hirobe argues that “Japanese immigrant leaders identified the creation of distance from the Chinese with getting closer to American-ness”, dividing the Asian American community along ethnic lines.26

22 Ozawa, 198

23 Hirobe

24 Hirobe, 124

25 Hirobe.

26 Hirobe, 124-5

Given this sociolegal context, the Court reinforced white supremacy in two ways with the Ozawa decision. First, they encouraged conflict between the Japanese and Chinese communities, thereby reducing the likelihood of pan-Asian American solidarity that may have produced a stronger legal effort for citizenship.27 Second, the Court ultimately still denied citizenship to the Japanese. In this way, the Court doubly reinforced white supremacy by weakening ties between Asian American groups and excluding all of them from citizenship.

2. Ozawa and Thind: An Unbreakable Cycle of White Supremacy

In my analysis of the two cases together, I found that Sutherland’s opinions reinforced white supremacy through cyclical reasoning that combined social perceptions of Asian Americans and the force of the law. My content analysis coded one passage towards the end of his opinion in Thind that fit into the theme of assimilation and concepts of social worth. In this passage, Sutherland writes, “What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.”28 Sutherland recognizes that this “racial difference” is not necessarily biological; instead, it is a social construct rooted in the belief that Asians are unassimilable. Jew states that “Sutherland’s semantic gymnastics showed how the category of white had become unstable; his tortured reasoning also showed how much was at stake for George Sutherland in defending a secure sense of white identification and identity,” but he does not fully explore the sociolegal reasons for Sutherland’s contradictory arguments.29

The passage from Thind raises the question as to why Asians were viewed as inherently different from whites. Chang argues that “the dominant group often condemns the existence of ethnic enclaves such as Chinatowns and decries the unassimilability of Asian Americans. In doing so, the dominant group forgets that their laws and their history helped to create these ghettos.”30 In this way, the law and social concepts of race reinforce each other in an unbreakable cycle of white supremacy. Many Asian American communities were historically excluded by law from integrating into American society, whether through school segregation or laws preventing property ownership. Consequently, they formed their own ethnic neighborhoods, but Americans

27 These divisions within the Asian American classification, which at the time was more so a collection of several ethnic communities, are extremely understudied Asian American Legal Scholarship enabled my analysis on this conflict by emphasizing the unique features of the Asian American experience, including intra-group differences

28 Thind, 215

29 Jew, 561.

30 Chang, 1287

viewed these as a sign of their inability to assimilate.31 This, in turn, inspired further legal decisions that used this argument as a justification for the exclusion of Asian Americans from citizenship. Sutherland states that white Americans “instinctively” find Asian Americans to be “a race so different” from them that they cannot become citizens, but this is not an “instinct”; rather, it is a social perception shaped by the law, which is in turn shaped by social perception. In this way, the legal and social exclusion of Asian Americans compound one other to reinforce white supremacy.

B. The Chinese Exclusion Case and Wong

The first supplemental pair of cases that I examined were The Chinese Exclusion Case and Wong. These two cases are not as directly related as Ozawa and Thind since the The Chinese Exclusion Case upheld the Chinese Exclusion Act, which banned Chinese laborers from immigrating to the US, and Wong granted the right of birthright citizenship under the Fourteenth Amendment to Wong Kim Ark, an American-born Chinese man. At the same time, this pair of cases contradict each other in the sense that one explicitly excluded the Chinese from American society, while the other included a subgroup of them.32 Despite their seemingly opposing outcomes, my analysis found that these two cases demonstrate a two-step process designed to limit the rights of Chinese Americans as much as possible without limiting the rights of white immigrants’ American-born children. I also found that these cases reveal a distinction between Asian and white migrant labor that connects the theme of labor and economics with the theme of race as well as with the theme of assimilation and concepts of social worth.

1. The Chinese Exclusion Case and the Conflict Between Race and Economic Interests

In my content analysis, I coded several passages in The Chinese Exclusion Case that related to the theme of labor and economics. One of the most revealing passages was Justice Field’s history of Chinese labor in the US:

For some years little opposition was made to them except when they sought to work in the mines, but, as their numbers increased, they began to engage in various mechanical pursuits and trades, and thus came in competition with our artisans and mechanics, as well as our laborers in the field.33

31 Chang

32 The Chinese Exclusion Case, 130 U.S. 581 (1889); United States v Wong Kim Ark, 169 U.S. 649 (1898).

33 The Chinese Exclusion Case, 594

This theme of labor and economics clearly demonstrates the shift in social views of the Chinese which led to their perception as unassimilable. At first, Chinese laborers benefited economic elites given their cost effectiveness; however, once immigration reached a level where white laborers were consistently outcompeted, Chinese laborers began to be viewed as a social problem.

At the same time, it is important to note that race in and of itself still plays a fundamental role in the oppression of Asian Americans beyond just economic interests. Again, I coded the themes of race as well as assimilation and concepts of social worth in the same passage of Field’s opinion. After explaining the conflict between white and Chinese laborers, he states that “The differences of race added greatly to the difficulties of the situation.”34 He elaborates: “It seemed impossible for [the Chinese] to assimilate with our people or to make any change in their habits or modes of living.”35 Using an Asian American Legal Scholarship framework, this revealed the key distinction between Chinese and white migrant laborers. Earlier in the 19th century, similar nativist sentiment emerged in reaction to waves of migrant labor from Europe.36 However, the key difference is that white immigrants were still considered to be of the same race as American whites. In contrast, Asian Americans were viewed as fundamentally different from whites. Jew argues that “For Justice Sutherland in the 1920s, the Punjabi inscribed in her/his body, the marks of permanent strangeness,” resulting in their exclusion from citizenship in Thind. 37 Similarly, the two themes in this passage reveal a key distinction between whites and Asian Americans. On the one hand, white immigrants eventually integrated into American society On the other hand, Asian Americans were continuously excluded despite providing cheap labor because white supremacy was prioritized over the interests of economic elites. The Asian American Legal Scholarship framework reveals that race and associated concepts of social worth clearly played a role in this distinction which cannot be explained by economic interests alone.

2. Wong and Limited Rights for Chinese Americans

While hailed as a landmark case for birthright citizenship, Wong only granted extremely limited rights to Chinese Americans in an effort to ensure the continuation of white supremacy Justice Gray begins the majority opinion by acknowledging that:

34 The Chinese Exclusion Case, 595

35 The Chinese Exclusion Case, 594

36 “Under Attack,” https://www.loc.gov/classroom-materials/immigration/italian/under-attack/.

37 Jew, 560

if [Wong] is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.38

This indicates the primary importance of labor interests in the issue of whether to grant birthright citizenship to Chinese Americans. It has been noted extensively in the literature that the Wong decision was made not in the interest of Chinese American citizenship but to avoid withdrawing the citizenship of white children born in the US to immigrant parents. Gray writes:

To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.39

Again, this demonstrates a key distinction between the perceptions of white migrant laborers and Asian migrant laborers in terms of their social worth.

However, the literature fails to acknowledge that not only did the Court only grant the right of birthright citizenship to Wong in the interest of white Americans whose parents were immigrants, but it also did so with full knowledge that this right could be subsequently limited in a way that would still ensure white supremacy. One passage that I coded within Gray’s opinion cites dialogue between Congressmen during the debate over the ratification of the Fourteenth Amendment:

I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow-citizens regard them. I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit.40

The Court was aware that the legislative branch could subsequently restrict the citizenship rights of Asian Americans even if they decided to grant birthright citizenship to all American-born Asians. The government would allow Chinese people to become citizens insofar as “they are

38 Wong, 653

39 Wong, 694.

40 Wong, 698

useful” while keeping open the ability for the states to “manage them as they may see fit”. Again, this relates to the theme of assimilation and concepts of social worth because the “usefulness” of Asian Americans depends on these ideas about their social worth, specifically the perceived worth of different subgroups within the Asian American population.

C. The Nagle Cases

The final pair of cases that I examined in my content analysis were Cheung Sum Shee v Nagle and Chang Chan v. Nagle, both decided in 1925. These two cases related to the same statute, the Immigration Act of 1924. They also had contradictory outcomes: in the former, the wives of non-citizen Chinese merchants were allowed entry into the US; in the latter, the wives of Chinese laborers who were American citizens were not allowed entry.41 These seemingly counterintuitive decisions have been examined in the literature in relation to the earlier decision in Wong, given their relationship to the right of birthright citizenship. Unsurprisingly, my content analysis of these cases primarily coded for the theme of gender, marriage, and family, but I also drew connections between this theme and the themes of labor and economics as well as assimilation and concepts of social worth.

Most significantly, I found that these cases provided evidence for my argument about the intentionality of the Court’s decision in Wong as a reinforcement of white supremacy. In Chang, Justice McReynolds states unequivocally that “The applicants should be refused admission if found to be Chinese wives of American citizens.”42 By explicitly excluding the wives of American citizens, the Court hoped to prevent future generations of Chinese Americans from being born in the US and thus becoming citizens. This substantiates my earlier argument about Wong as intentionally decided to ensure that white children of immigrants would still be citizens while leaving open future legal pathways to block Chinese Americans from claiming their right to birthright citizenship. With this decision, the Court effectively restricted the growth of the Chinese American community of laborers, which relates to the discussion of the labor and economics theme found in The Chinese Exclusion Case and Wong. Laborers’ wives were excluded because of their perceived lower social worth compared to merchants.43 This

41 Cheung Sum Shee; Chang Chan, Wong Hung Kay, Yee Sin Jung et al v Nagle, Commissioner Of Immigration, 268 U S 346 (1925)

42 Chang, 353

43 Shira Morag Levine, “A ‘Vital Question of Self-Preservation’: Chinese Wives, Merchants, and American Citizens Caught in the 1924 Immigration Act,” Stanford Journal of Civil Rights and Civil Liberties 9, no 1 (2013): 121-152

demonstrates that the Court acted upon its own intention in Wong to restrict Asian American rights based on their perceived “usefulness” to the economy and society at large.

V. Conclusion

My analysis of the six cases, specifically their differential rulings and the contradictory arguments contained within them, reveals that the American legal system worked in tandem with political and social forces during the late 19th and early 20th centuries to reinforce white supremacy through Asian American exclusion. Using the Asian American Legal Scholarship framework, I found that these cases, regardless of their various arguments and outcomes of granting or denying rights to Asian Americans, captured the unique position of Asian Americans as “a race so different.” Rather than facing oppression as second-class citizens like many other nonwhite racial groups, Asian Americans were not allowed to become citizens at all. In this way, Asian Americans remained invisible in the racial hierarchy of American society, a unique status intentionally created by the Supreme Court to bolster white supremacy.

The content analysis revealed that the themes of race, labor and economics, and gender, marriage, and family played into the primary theme of assimilation and concepts of social worth. In Ozawa and Thind, contradictory arguments about racial differences were explicitly used to exclude Japanese and Asian Indian Americans from citizenship, respectively. However, examining the sociolegal context surrounding these cases revealed that these arguments intentionally perpetuated ideas about the assimilability and social worth of Asian Americans in a cycle of white supremacy. The supplementary analysis of The Chinese Exclusion Case and Wong similarly found that the theme of labor and economics was of immediate importance because the Chinese Exclusion Act explicitly excluded Chinese laborers. At the same time, the intention of this statute and these cases, despite Wong’s granting of limited rights, was to exclude the group of Asian Americans who were viewed as the most “unassimilable.” Likewise, the Nagle cases primarily dealt with the theme of gender, marriage, and family because the cases were about the entry of Chinese wives into the US, but my analysis demonstrated that the differential outcomes in these two cases resulted from different social perceptions of laborers and merchants.

It is important to note that some key limitations of this research include the narrow scope of cases examined and its focus on Chinese and Japanese Americans, with only limited analysis of Asian Indian Americans in Thind. Future research should aim to examine cases on a variety of Asian American groups, especially those from South and Southeast Asia. In general, more cases

from the late 19th and early 20th centuries should be analyzed to provide more substantial evidence for arguments about how court cases involving Asian Americans reinforced white supremacy during this period.

My use of the Asian American Legal Scholarship framework can be applied to future research on Supreme Court cases involving Asian Americans in the time period that I studied and beyond. This framework enabled my analysis to examine the sociolegal implications of these decisions, specifically regarding the unique role of Asian Americans in American legal history and their legal exclusion well into the 20th century. The Asian American Legal Scholarship perspective revealed that a failure to study Asian American legal history is in some ways an extension of the Court’s exclusion of Asian Americans from their country. Despite Asian Americans’ significant contributions to American development and progress in a myriad of fields, their limited presence in sociolegal analysis perpetuates their “otherness” and their classification as “a race so different.” More research is necessary not only to understand the history of how the legal system’s treatment of Asian Americans reinforced white supremacy, but also to provide justice for Asian Americans today.

Works Cited

Chang Chan, Wong Hung Kay, Yee Sin Jung et al. v. Nagle, Commissioner Of Immigration, 268 U.S. 346 (1925).

Chang, Robert S. 1993. “Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space.” California Law Review 81 (5): 1241-1324. doi: 10.15779/Z385M8W.

Cheung Sum Shee et al. v Nagle, Commissioner of Immigration, 268 U.S. 336, 345 (1925).

Gia Phan, Hoang. 2004. “‘A race so different’: Chinese exclusion, the slaughterhouse cases, and Plessy v Ferguson.” Labor History 45 (2): 133-163. doi: 10.1080/0023656042000217237.

Hirobe, Izumi. 2006. “Naturalization Cases of Asian Immigrants from In re Ah Yup to United States v Ozawa and United States v Thind.” アメリカ太平洋研究= Pacific and American studies (6): 119-130.

Jew, Victor 1997. “George Sutherland and American Ethnicity: A Pre History to Thind and Ozawa.” The Centennial Review 41 (3): 553-564.

Levine, Shira Morag. 2013. “A ‘Vital Question of Self-Preservation’: Chinese Wives, Merchants, and American Citizens Caught in the 1924 Immigration Act.” Stanford Journal of Civil Rights and Civil Liberties 9 (1): 121-152.

Nuyen, Suzanne. 2021. “4 U.S. Supreme Court Cases Where Asian Americans Fought For Civil Rights.” Retrieved May 26, 2022, from https://www.npr.org/2021/05/27/999550296/4-u-s-supreme-court-cases-where-asian-amer icans-fought-for-civil-rights.

Price, Polly J. 2018. “A ‘Chinese Wall’ at the Nation's Borders: Justice Stephen Field and The Chinese Exclusion Case.” Journal of Supreme Court History 43 (1): 7-16. doi: 10.1111/jsch.12167.

Takao Ozawa v. United States, 260 U.S. 178 (1922).

The Chinese Exclusion Case, 130 U.S. 581 (1889).

“The Rise of Asian Americans.” 2012. Retrieved May 26, 2022, from

https://www.pewresearch.org/social-trends/2012/06/19/the-rise-of-asian-americans/.

“Under Attack.” Retrieved May 26, 2022, from https://www.loc.gov/classroom-materials/immigration/italian/under-attack/.

United States v. Bhagat Singh Thind, 261 U.S. 204 (1923).

United States v. Wong Kim Ark, 169 U.S. 649 (1898).

Yamashita, Robert C., and Peter Park. 1985. “The Politics of Race: The Open Door, Ozawa and the Case of the Japanese in America.” Review of Radical Political Economics 17 (3): 135-156. doi: 10.1177/048661348501700308.

Stanford University Undergraduate Law Review | Volume 2, Issue 1 | Winter 2024

OUR MISSION

Table of Contents

ARTICLES

MASTHEAD

Editors-In-Cheif

Publishing Staff Outreach Staff

I. Introduction and Historical Context

II. Redlining in the Mission Road Neighborhood, 1930s-1940s

A City With A Mission

III. Development, Disparity, and Immigration, 1950s-1980s

IV. Asian-American Immigration, White Flight, and Gentrification, 1980s-Present

A City With A Mission

V. Conclusion

I. Introduction

II. Background

A. Hair

B. Attitude

C. Language

III. The Courtroom

devaluation of their testimony

IV. Solution

V. Conclusion

Challenges to Felony Disenfranchisement in Mississippi

I. Introduction

II. History of Voting Rights in Mississippi: 1865-1985

C. Congressional Expansion of Voting Rights

III.

IV. Fourteenth Amendment Challenge to § 241

A. Application of Precedent Established in Hunter v. Underwood (1985)

V. Plaintiffs’ Challenge to § 241 in Hopkins v. Hosemann (2023)

VI. Conclusion

Demands:

I. Introduction: Reparations Contra International Law

II. Scene Of Predation: Human Rights, Hegemony, & Nobodies

III. Rethinking Remedy: Reparations in International Human Rights Law

Another World

Works Cited

I. Introduction

II. Literature Review

A. Asian American Legal Scholarship

B. Race

C. Assimilation and Concepts of Social Worth

D. Labor and Economics

E. Gender, Marriage, and Family

F. Examining Asian Americans as “A Race So Different”

III. Data and Methods

IV. Analysis

A. Ozawa and Thind

1. Ozawa and Intra-Asian American Conflict

2. Ozawa and Thind: An Unbreakable Cycle of White Supremacy

B. The Chinese Exclusion Case and Wong

2. Wong and Limited Rights for Chinese Americans

C. The Nagle Cases

V. Conclusion

Works Cited