Race and Law, and constructing whiteness

Although nearly a decade old, "Litigating Whiteness," (available in JSTOR) by Ariela Gross offers up some intriguing observations about the all-important question of race before the southern courts during the antebellum era. How was race constructed? Gross argues that antebellum southerners, with no scientific means of figuring out what constituted "black" or "white," relied on evidence of the "performance" of whiteness to distill biological essentialism.

Judicial Power

This post is in response to the class discussion on the Judicial Branch of the government and its powers and authorities. I will argue that the power of the Judiciary rests in the Executive Branch.
The Judiciary has the power to review the constitutionality of laws made by the Congress, but this power was not explicitly given to the Judiciary by the Constitution. This concept and power evolved over time, and the consent of the governed actually gave the decisions authority. If another branch of government such as the Executive chooses to go against the decision by the courts, it can do so. This happened during the tenure of Andrew Jackson, and he simply ignored the courts order. Who enforces the courts order? The Executive Branch. If the Executive actually has the power to enforce or not enforce the laws, then the power of the law actually lies in the Executive. All laws are no more powerful than the actual enforcement of said laws. A law in the form the Judicial sees is abstract and powerless until the power and authority is vested in it by enforcement. What would a speed limit be without a patrolling police force? Without the threat and knowledge of active enforcement, no law has power at all.
The moral standpoint is different in that one should obey laws because they are laws, but this rarely works when applied to the mass populace. The Judiciary has a large amount of de jure power and authority, but the de facto authority lies in the Executive power. A law is no more than ink on paper without the muscle required to enforce said law.

Dworkin on the Roberts Court

In an essay penned for the New York Review of Books, Ronald Dworkin lays out a persuasive argument in layman's terms about the disposition of the current Supreme Court. Dworkin points out that a series of 5-4 decisions, anchored by the right-wing bloc of Scalia-Thomas-Alito-Roberts and joined by Kennedy (pictured to the left), have undermined almost all the constitutional principles at work in women's rights, racial justice, and freedom of speech issues. While minutely examining the doctrinal defenses of these decisions (and finding them wanting), Dworkin points to a disturbing sub-rosa rationale. He writes:

In their Senate confirmation hearings Roberts and Alito both declared their reverence for precedent; they might be reluctant openly to admit that they deceived the Senate and the people. It is therefore not absurd to suppose that this series of odd decisions covertly overruling important precedents is part of a strategy to create the right conditions for overruling them explicitly later.

Dworkin's argument, as well as his explication of the different opinions in the school assignment decisions that so recently undercut Brown v. Board of Education, is enormously important for anyone interested in race and law, as well as how Supreme Court justices make their decisions. Dworkin ably covers not just school assignment, but also freedom of speech issues (Bong Hits 4 Jesus Case), reproductive rights, and the McCain-Feingold campaign finance reform bill. The article is here. (Note to my students at Georgia State: I will give extra credit to anyone commenting on this post with a critical reading of Dworkin's article.)

Slavery, Antislavery, and the Coming of the Civil War

In this intriguing essay, Ariela Gross previews her new book on the role of proslavery and antislavery contests over law and constitution in the antebellum era. She makes the case that the law operated on two levels: the everyday level, where disputes were mediated and slavery was protected; and the national level, where disputes about the constitutional status of slaves in the territories, fugitive slaves, and other heady issues led to considerable conflict between proslavery and antislavery forces. The essay is here.

Did slavery violate the 5th Amendment?

Among the questions we can reasonably ask about slavery in the United States is whether the institution violated basic constitutional freedoms embodied in either the document's spirit and design, or in specific provisions of the bill of rights. In this article, Kaimipono Wenger makes the theoretical argument that slavery was an intrinsic violation of the takings clause of the 5th Amendment. The article does not proceed from historical premises (the argument relies more upon legal reasoning and logic than historical inquiry) but it broaches an important issue about slavery and the construction of the constitution.

Test Blog

Proving that we can actually blog. Those invited, please step forward.

Slavery and the Constitution

For all those in my slavery and the constitution class who wish to begin blogging, now is the time to do so. E-mail me your name and e-mail address, and I will add you to the list of authors so you may begin posting.

In the mean time, I am going to be posting new and exciting links that will help you with your research.