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< | Are You White? The Law and Lessons On Social Control |
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> | How I Learned to Stop Worry and Accept that Law is a Weak Form of Social Control |
| | -- By TomaLivshiz - 16 Feb 2012 |
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< | “Are you white?” He asked. Kacey sat in a reticent stupor. “Seriously, are you really white? Don’t lie,” the police officer repeated as he drove her to the jail. |
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> | “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation…If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same place.” Justice Brown’s ignominious opinion in Plessy v. Ferguson — from which our society has thankfully retreated—does yield an important question. Do courts make change or do they reflect it? They probably do both--how do we, as future lawyers, use that? |
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< | Seven friends and I had decided to drive down to Florida from Michigan in two cars; Kacey drove one, and I the other. Lights flashed behind our envoy,
which had been driving ten miles over the speed limit. When the officer pulled over Kacey's car—and noticed that the driver was too tan for this particular part of South Carolina—he told her she would be coming with him. To jail. Until further notice. Kacey (who happened to be a slightly darker-toned person of Dutch ancestry) endured six hours of racist slurs and interrogations about her ethnicity while we pleaded with the station authorities to let her out on bail. When she was released and we got into our cars, we waited for relief to set in. It didn’t. Perhaps had we embarked on this trip as pessimists, the experience would not have left us with the rancor which it ultimately did. Instead, this detour had led us to what we had been certain was America’s past, only to find that, in some places, it is America’s present.
When Eben first asserted that “the law is a weak form of social control,” I was defensive. Maybe you were too. Maybe you wrote your personal statement promising you would use the law to be an agent of change, as a tool for social justice, or a similarly synonymous phrase. Maybe those promises now seem trite. While I resisted his idea at first, I realized that my experience in South Carolina was an example of the law’s failure as a force of social control. Eight Civil Rights Acts and numerous “landmark” Supreme Court decisions under our historical belts, but Kacey still gets asked if she is white, if she is really white. |
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> | When Eben first asserted that “the law is a weak form of social control,” I was defensive. Maybe you were too. Maybe you wrote your personal statement promising you would use the law to be an agent of change, as a tool for social justice, or a similarly synonymous phrase. Maybe those promises now seem trite. While I resisted his idea at first, I realized that whether true or not, the statement can help us to strategize about how we will achieve our goals after law school, rather than undermine them altogether. This paper will examine how the iconic case Brown v. Board of Education, demonstrates how law might be a weak form of social control but might still be useful in achieving social change. |
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Judicial Decisions as a Lagging Indicator of Social Change |
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< | “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation…If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same place.” Justice Brown’s ignominious opinion in Plessy v. Ferguson — from which our society has thankfully retreated—does yield an important question. Do courts make change or do they reflect it?
How about both? As with every other social institution. |
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> | Coming to law school, I saw the Brown decision as something of a superheroic event. But scholars of the era describe a more complex context. “It was inevitable that the Negro’s new nationalized political power, his enhanced economic position, and the vast improvement of the ideological climate in the country would presently spill over into the courts,” claims historian Alfred Kelly. |
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< | Legal zealots
may point to the iconic case Brown v. Board of Education as the paragon of law as a force of social change. But scholars of the era describe a more complex context. “It was inevitable that the Negro’s new nationalized political power, his enhanced economic position, and the vast improvement of the ideological climate in the country would presently spill over into the courts,” claims historian Alfred Kelly. Why this use of syntax pioneered by rich Chinese-born newsmagazine publisher Henry Luce? |
| | In his view, Brown was the result of social change rather than its catalyst. Kelly provides an etiology of the decision: Roosevelt’s attempts to integrate the armed forces in World War II, “no discrimination” clauses written into war contacts, and the desegregation campaign organized by the NAACP. Meaning, it is not clear that the social change trailing Brown saw its genesis in the decision. |
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< | Does classifying social
phenomena as either causes or effects have a utility that escapes me?
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| | The Meaning of Legal Landmarks |
| | Perhaps the decision’s attenuated effects are best explained by an examination of the types of forces it unleashed. Though lacking the capacity of social control in and of itself, Brown was unquestionably a force of physical control—a force which has been historically validated as powerful. |
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< | Well, no, actually. No
judicial opinion is a physical force.
Unquestionably. |
| | By merging previously separated physical realms, Roosevelt’s executive orders had allowed more effectual social forces – war, friendship, fear, necessity – to remodel race relations throughout various segments of the military apparatus. |
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< | It was Harry Truman, not
FDR, who desegregated the US Armed Forces. |
| | Likewise, Brown, by marshaling students into one physical space, allowed schools to become incubators for other forces, ones with stronger social control. |
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< | I don't understand this
sentence. Now the judicial opinion is performing actual physical
labor again. |
| | Alternatively, some historians take a more cynical view of the forces cascading from the decision. Michael Klarman claims that the decision, by fuelling violent resistance to integration in the South (which was subsequently transmitted by television nationwide), “aroused [Northern Whites] from their apathy, leading to demands for national civil rights legislations which the Kennedy and Johnson administrations no longer deemed politically expedient to resist.” In Klarman’s proposed narrative, activist contagion—on both sides of the issue—was a leading force of social control in that it exacerbated racism in the South, amplified liberal outrage in the North and generated new sources of political capital everywhere. |
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< | I've never understood
what Mike Klarman meant. I'm not sure it matters, because his
interpretations don't seem to depend on any particular facts, so they
are either robust or absurd without regard to anything that can be
shown by recourse to sources. |
| | What Does This Mean For Us? |
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< | That the proximate effects of law or legal decisions can sometimes be anticlimactic, should not discourage us. The statement “law is a weak force of social control” presents a hurdle and not a barrier. Taking heed of Cohen’s prescription for Judges in Transcendental Nonsense, lawyers can use this statement as an operating constraint when considering their inputs and designing their desired outputs. Like activists before us, we can look to legal landmarks for direction, but we should consider how to utilize all forms of social control in our pursuit of social change. The law does not operate in a vacuum, nor should we. |
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> | That the proximate effects of law or legal decisions can sometimes be anticlimactic, should not discourage us. The statement “law is a weak force of social control” presents a hurdle and not a barrier. Taking heed of Cohen’s prescription for Judges in Transcendental Nonsense, lawyers can use this statement as an operating constraint when considering their inputs and designing their desired outputs. Like activists before us, we can look to legal landmarks for direction, but we should consider how to utilize all forms of social control in our pursuit of social change. |
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< | This last paragraph
puzzles me because I don't know what the central theme of the draft
is, and the final sentence, with its quality of tautology, leaves me
wondering whether there was any. The simplest route to improvement
seems to me to be to put the central idea up front, ahead of the
story, maybe instead of it, so we can see clearly what we're supposed
to be thinking about. The point about Brown seems to be that the
South wasn't revolutionized by a single judicial opinion,
which—given that it hadn't been revolutionized by eleven years
of military occupation after the Civil War, doesn't surprise me too
much, and doesn't seem probative on the relative strength of law as a
means of social control. The next draft should explain more clearly
what this point is supposed to teach us. |
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