Saturday, July 21, 2018


excerpted from: A. Leon Higginbotham, Jr., Chief Justice Roger Taney's Defense and Justice Thurgood Marshall's Condemnation of the Precept of Black Inferiority, 17 Cardozo Law Review 1695 (May, 1996) (49 Footnotes) (Full Document).


AleonhigginbothamjrB. The First Precept; Inferiority: Presume, Preserve, Protect, and Defend the Ideal of the Superiority of Whites and the Inferiority of Blacks

For centuries, the first precept--the perceived inferiority of blacks and the superiority of whites--provided the justification for European and American enslavement of Africans.

One rationale for the presumed inferiority of the African slave was that the African was not presumed human at all. By considering the black as a subspecies of man or, most often, a heathen from a less advanced, oppressed civilization, many whites could justify his enslavement. The whites' “logic” went as follows: the African is different in appearance and manner from us; he must not be human or at least not equally as human as we are; therefore, he is inferior to us and can be enslaved by us, his superiors.

With the background of these precepts, and particularly precept one, it must be asked: “How have these precepts been displayed, defended, or critiqued by the courts, and more specifically, by earlier justices of the United States Supreme Court?” The contrasting approaches of two justices who consciously dealt with the precept of black inferiority provide much insight into how the precepts have been and are relevant even today to legal decision making.

III. Chief Justice Taney's Defense of Racial Inferiority

Chief Justice Taney began his opinion in Dred Scott v. Sandford by defining the question presented to the Supreme Court as follows:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?

Taney answered that during the founding of this nation, blacks were never meant to be “constituent members” of society, but that:
[o]n the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

Thus, in Taney's and a majority of the Court's view, blacks were “a subordinate and inferior class” which, whether slave or free, remained “subject to [the] authority” of the “dominant” and superior white race. Taney then proceeded to review the inferior status of blacks throughout American history. First, he stated that blacks:
had for more than a century before [ the Declaration of Independence] been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully may be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

Taney reasoned that with respect to the statement in the Declaration of Independence that “We hold these truths to be self-evident: that all men are born and created equal,” it was “too clear for dispute, that the enslaved African race were not intended to be included.” Turning to the Constitution, Taney concluded that blacks were not regarded as “a portion of the people or citizens of the Government then formed.” Indeed, as Taney reasoned, during the constitutional convention, the slaveholding states would not have accepted the Constitution if blacks, particularly free blacks, had been recognized as citizens:
For if they were . . . entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race . . . the right to enter every other State whenever they pleased, . . . to go where they pleased at every hour of the day or night without molestation, . . . and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

Throughout the opinion Taney made twenty-one references to blacks as inferior and to whites as dominant or superior. According to Taney, blacks were an “inferior class of beings,” “an unfortunate race,” a “degraded” and “unhappy” race, “unfit to associate with the white race,” “excluded from civilized Governments and the family of nations,” “far below [whites] in the scale of created beings,” “held in subjection and slavery, and governed [by the dominant race] at their own pleasure,” “separated from [whites] by indelible marks,” “impressed [with] deep and enduring marks of inferiority and degradation,” and “separated and rejected.”

In the context of the precept of inferiority, the most significant aspect of Taney's opinion was its insistence that “no distinction in this respect was made between the free negro or mulatto and the slave, but [the] stigma, of the deepest degradation, was fixed upon the whole race.” This meant that the stigma of degradation and mark of inferiority were impressed on blacks not because they were, or had been, slaves, but because they were black. Thus, slavery did not render blacks inferior. Rather, blacks, by their very nature, were inferior. Slavery was merely the natural place for such an “unnatural” race.

If the opinion of the Supreme Court in Dred Scott v. Sandford was intended to create a national consensus once and for all as to whether slavery was justifiable, it produced the exact opposite effect. Southerners interpreted the opinion as a vindication of their beliefs, while some Northern newspaper editors, such as those of The New York Times, suggested that “the circumstances attending the present decision have done much to divest it of moral influence and to impair the confidence of the country. . . . Among jurists, it is not considered to settle anything more than the denial of jurisdiction.” The Constitutionalist, a Georgia newspaper, editorialized: “Southern opinion upon the subject of southern slavery . . . is now the supreme law of the land . . . and opposition to southern opinion upon this subject is now opposition to the Constitution, and morally treason against the Government.” Another commentator hailed Chief Justice Taney as “the very incarnation of judicial purity, integrity, science, and wisdom.” Taney, himself, in defense of the Dred Scott opinion, would later describe blacks as a “weak and credulous race,” who enjoyed a “usually cheerful and contented” life in slavery. To Taney, “sudden emancipation of [African-American slaves] would mean ‘absolute ruin.”’

When speaking of the majority's opinion in Dred Scott, Abraham Lincoln suggested that he supported the dissenting opinions of Justices McLean and Curtis, and summarized the brewing political controversy over the propriety of slavery and colonization of blacks:

How differently the respective courses of the Democratic and Republican parties incidentally bear on the question of forming a will--a public sentiment--for colonization, is easy to see. The Republicans inculcate, with whatever of ability they can, that the negro is a man, that his bondage is cruelly wrong, and that the field of his oppression ought not to be enlarged. The Democrats deny his manhood; deny, or dwarf to insignificance, the wrong of his bondage; so far as possible, crush all sympathy for him, and cultivate and excite hatred and disgust against him; compliment themselves as Union-savers for doing so; and call the indefinite outspreading of his bondage “a sacred right of self government.” Even having asserted the humanity of blacks, Lincoln nevertheless stressed the potential need for separation of the races, perhaps by colonization of blacks. He declared that there was a “natural disgust in the minds of nearly all white people at the idea of an indiscriminate amalgamation of the white and black races,” and that “[a] separation of the races is the only perfect preventive of amalgamation; but as an immediate separation is impossible, the next best thing is to keep them apart where they are not already together.” Lincoln's position suggested that, in 1857, most whites were unwilling to live alongside blacks as equal citizens. In effect, the Supreme Court's opinion in Dred Scott codified into law, at the highest level of the American legal process, the precept of black inferiority. This understanding of black inferiority was also shared by the vast majority of whites.

For his era, Chief Justice Roger Taney's opinion in Dred Scott therefore did not express some unique perception about blacks. In 1857, it probably represented the views of the vast majority of whites in American society. Even in 1996, it might be argued that the belief that blacks are of an “inferior order” is an idea that some find difficult to abandon.

Since Taney's era, there have been many rejections of the precept of black inferiority. The most complete denunciation in a legal setting of the concept of white superiority and black inferiority was provided by Thurgood Marshall, later Justice Marshall, the quintessential advocate for equal justice for all persons.

IV. Thurgood Marshall's Condemnation of Perceptions of Inferiority

During oral arguments before the Supreme Court in the 1953 case of Brown v. Board of Education challenged as unconstitutional the intentional segregation of black children in public schools--Thurgood Marshall posed the following challenge to the assembled Justices:
[T]he only way that this Court can decide this case in opposition to our position . . . is to find that for some reason Negroes are inferior to all other human beings.

. . . [W]hy of all the multitudinous groups of people in this country [do] you have to single out Negroes and give them this separate treatment.

In response to Thurgood Marshall's challenge, the Court ruled that the intentional segregation of black children in public schools was a violation of the Equal Protection Clause of the United States Constitution. In the Justices' words, “[t]o separate them [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Thurgood Marshall, by posing the challenge as he did, and the Justices, by responding as they did, appears to have taken for granted that no one in their right mind could ever imagine, and no court under the rule of law could possibly determine, that blacks were inferior to other human beings. Yet, Thurgood Marshall and the Justices knew perfectly well that such a brilliant mind as Thomas Jefferson and such a “respected” Supreme Court jurist as Roger Taney had argued that blacks were indeed inferior to whites. Thurgood Marshall, for reasons of legal strategy, and the Justices, for reasons known only to them, apparently sealed between them this unspoken pact of convenient myth. However, the truth was that our nation was founded explicitly, prospered implicitly, and still often lives uneasily on the precept of black inferiority and white superiority. Indeed, that precept helped to legitimize slavery in America and served to justify the segregation of blacks in this nation long after slavery had been abolished. Mesmerized as we still are by race and color, the premise of black inferiority and white superiority remains an essential element of the “American Identity.”

V. The Continued Relevance of the Precept of Inferiority

Of the first three precepts--inferiority, property, and powerlessness--the precept of inferiority may have the most enduring consequences. The dominance of this precept lies in its continued presence and in the fact that notions of blacks' “inferiority” are fundamentally different from all other precepts. Most of the other precepts, in one way or another, defined or enforced certain tangible rights of the slave master or obligations of the slaves. For example, the precept of property described a right of the master. According to that precept, the master owned the slave much in the same way as he owned his horse. Once the law abolished slavery, the original precept of property, as then formulated, ceased to exist. This is because the precept on property owed its existence to the legal process. The law created it and, with the help of the Civil War and the Thirteenth Amendment, the law eliminated it.

By contrast, the precept of inferiority did not define any specific right or obligation. Instead, “inferiority” spoke to the state of the mind and the logic of the heart. It posed as an article of faith that blacks were not quite altogether human. What's more, “inferiority” did not owe its existence to the legal process. Admittedly the law came to enforce the precept, but it certainly did not create it. From the time the Africans first disembarked here in America, the colonists were prepared to regard them as inferior. When the Thirteenth Amendment abolished slavery and, presumably, all its attendant conditions, it did not necessarily eliminate the precept of inferiority. Even when much later the law abolished state enforced racial segregation, it still did not eliminate the precept.

Even in 1994, some “scholars” were still trying to prove a relationship between intelligence and race. The Bell Curve, written by Richard J. Herrnstein and Charles Murray, has received an extraordinary amount of attention as well as criticism. While one may reasonably question the motives of these scholars for engaging in this study, this attention should perhaps be taken as evidence that many Americans still seek to justify a belief in black inferiority.

Given the degree to which the precept of black inferiority has permeated American history, such developments should not be surprising. This viewpoint, rather than surfacing as an idea from fringe thinkers and society's outcasts, has dominated even the thinking of some Supreme Court Justices. We must remember the lesson of history that those who most effectively perpetuated the myth of black inferiority were educated and powerful members of society, such as Chief Justice Roger Taney.

Even though many persons of good will in America believe that a “precept” of racial ordering is a remnant of a bygone era, the dramatic changes in the nation's public policies since 1787 have not been a complete deterrence to those who refuse to measure worthiness other than by skin color. The Ten Precepts of American Slavery Jurisprudence thus may serve as a lens through which we may view not only the history of slavery in this country, but also modern developments.

I am often asked by law students and lawyers: “What is the relevance of knowledge of race and the early American legal process to my ultimate goals in the practice of law?” I suggest that the importance may be understood by reflecting on George Santayana's comment that he who does not know the lessons of history will be doomed to repeat its worst mistakes. There exists an interrelationship between some of the current issues in American jurisprudence and antebellum slavery law and we will have better insights on today's problems if we understand our past. As Professor Toni Morrison has suggested, when speaking of the 1990s:
Race has become metaphorical--a way of referring to and disguising forces, events, classes, and expressions of social decay and economic division far more threatening to the body politic than biological “race” ever was. Expensively kept, economically unsound, a spurious and useless political asset in election campaigns, racism is as healthy today as it was during the Enlightenment. It seems that it has a utility far beyond economy, beyond the sequestering of classes from one another, and has assumed a metaphorical life so completely embedded in daily discourse that it is perhaps more necessary and more on display than ever before. As we continue to dissect the historical forces and events that have led us to where we are today, we must be cognizant of the fact that the Ten Precepts of American Slavery Jurisprudence, and particularly the precept of inferiority, may have more relevance on the present aspects of race and American society than many would wish to concede. On July 4, 1992, in one of Justice Marshall's last speeches, he said:

I wish I could say that racism and prejudice were only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity.

But as I look around, I see not a nation of unity but of division--Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. Even many educated whites and successful Negroes have given up on integration and lost hope in equality. They see nothing in common--except the need to flee as fast as they can from our inner cities.

But there is a price to be paid for division and isolation, as recent events in California indicate. Look around. Can't you see the tension in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?

We cannot play ostrich. Democracy cannot flourish amid fear. Liberty cannot bloom amid hate. Justice cannot take root amid rage. . . . We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust. We must dissent from a government that has left its young without jobs, education, or hope. We must dissent from the poverty of vision and the absence of moral leadership. We must dissent because America can do better, because America has no choice but to do better.

. . . Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side. Justice Marshall's prophetic comment that we should “[k]nock down the fences that divide,” was a recognition that Justice Taney's understanding and acceptance of the precept of inferiority has not been totally abolished. Therefore, some aspects of the Ten Precepts of American Slavery Jurisprudence have not been completely excised from the American consciousness.


A. Leon Higginbotham, Jr. Chief Judge Emeritus (Retired), United States Court of Appeals; Public Service Professor of Jurisprudence, John F. Kennedy School of Government, Harvard University; Of Counsel, Paul, Weiss, Rifkind, Wharton & Garrison.

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