Judicial aspects of race in the United States

Race legislation in the United States has known several historical phases. Its roots are to be found in the European colonization of the Americas, the Indian Wars, and the triangular slave trade. However, the 1776 Declaration of Independence included the statement according to which "all men are created equal," which contradicted racial discrimination and was one of the inspiring principles of the 13th, 14th, and 15th Amendments.

The first period goes until the Civil War and the Reconstruction, the second spans the nadir of American race relations period, approximately until World War II, while the last period begins with the civil rights movement leading to the repeal of racial segregation laws. Apart of purely domestic issues, race legislation is also intertwined with immigration laws, which sometimes included specific xenophobic provisions (i.e. Chinese Exclusion Act or 1923 United States v. Bhagat Singh Thind case).

Legislation until the American Civil War and Reconstruction

Until the Civil War, slavery was legal, and the Naturalization Act of 1790 limited naturalization to aliens who were "free white persons" and thus left out indentured servants, slaves, free African-Americans, and later Asian-Americans. In addition, many states enforced anti-miscegenation laws (e.g. Indiana in 1845), which prohibited marriage between whites and non-whites, that is, blacks, mulattoes, and in some states also Native Americans. After an influx of Chinese immigrants, marriage between whites and Asians was in some states also banned.

Fugitive slave laws were enacted by Congress in 1793 and 1850 to provide for the return of slaves who had escaped from a slave state to a free state or territory. Black Codes were adopted by several states. In some states the Black Codes were incorporated into, or required by, the state constitution, many of which were rewritten in the 1840s. Article 13 of Indiana's 1851 constitution stated "No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution." The 1848 constitution of Illinois led to one of the harshest Black Code systems in the nation before the Civil War. The Illinois Black Code of 1853 extended a complete prohibition against black immigration into the state.

The Indian Removal Act of 1830 legalized deportation of Native Americans to the West, a policy known as "Indian removal," while the Indian Intercourse Act of 1837 created the Indian Territory. Blood quantum laws determined membership in Native American groups, also deprived of citizenship. Reservations were created with the Indian Appropriations Acts in the 1850s. The Dawes Act of 1887 registered members of the so-called "Five Civilized Tribes" and included privatization of common holdings of American Indians. Some of its measures were repealed with the 1934 Indian Reorganization Act, allowing a return to local self-government. Citizenship was not granted to Native Americans until the Indian Citizenship Act of 1924.

The victory of the North during the Civil War led to the abolition of slavery with the Thirteenth Amendment and an expansion of the civil rights of African-Americans with the adoption of the Fourteenth Amendment. The Fourteenth Amendment also overturned the "Dred Scott" case of 1857, in which the Supreme Court ruled that people of African descent, whether they were enslaved or free, could not be citizens of the United States. The Fifteenth Amendment prohibited disenfranchisement on the basis of race. The Naturalization Act of 1870 concerned itself with naturalization of people of African descent.

Legislation during the nadir of American race relations

However, the end of the Reconstruction period saw the nadir of American race relations, with increasing racial violence, in particular (but not only) in the South (with the activities of the Ku Klux Klan), while Southern states turned around the federal Constitution by implementing Black codes, Jim Crow laws and other forms of legislation aiming at prohibiting African Americans from exercising their voting rights. In 1896, the Supreme Court basically overturned the Fourteenth and Fifteenth Amendment in the Plessy v. Ferguson case, which established the "separate but equal" interpretation of the Constitution, thus legalizing racial segregation for the next decades. In 1899, the Cumming v. Richmond County Board of Education case ended in the legalization of segregation in schools.

Anti-miscegenation laws were state laws that prohibited marriages of whites with blacks, and in some states also with Native Americans and Asians. Such laws were first passed during the Colonial era in several of the Thirteen Colonies, starting with Virginia in 1691. After the American War of Independence, several of the newly independent states repealed such laws. However, all the slave states and many free states enforced such laws in the Antebellum era. During Reconstruction, several Southern states repealed their anti-miscegenation laws. But in all these Southern states, such laws were once more established between 1870 and 1884 [http://www.jimcrowhistory.org/history/creating2.htm The History of Jim Crow] ] After the Civil War, anti-miscegenation laws laws continued to be enacted in the new western states, where not only blacks and Native Americans but also Asians were targetted. As one of many examples of such state laws, Utah's marriage law had an anti-miscegenation component that was passed in 1899 and repealed in 1963. It prohibited marriage between a white and anyone considered a Negro (Black American), mulatto (half black), quadroon (one-quarter black), octoroon (one-eighth black), "Mongolian" (East Asian), or member of the "Malay race" (a racial classification put into place to target Filipinos). No restrictions were placed on marriages between people that were not "white persons." [ Utah Code, 40-1-2, C. L. 17, §2967 as amended by L. 39, C. 50; L. 41, Ch. 35. ] .

Sundown towns appeared at the end of the 19th century, and their existence sometimes became officialized by law. In some cases, signs were placed at the town's borders with statements similar to the one posted in Hawthorne, California which read "Nigger, Don't Let The Sun Set On YOU In Hawthorne" in the 1930s Laura Wexler, [http://www.washingtonpost.com/wp-dyn/content/article/2005/10/20/AR2005102001715.html Darkness on the Edge of Town] , "The Washington Post", October 23, 2005, p. BW03. A review of Loewen's book. Accessed online 9 July 2006.] . In some cases, the exclusion was official town policy or enacted through restrictive covenants agreed to by the real estate agents of the community. In others, the racist policy was enforced through intimidation. This intimidation could occur in a number of ways, including harassment by law enforcement officers.

In addition to the expulsion of African Americans from such "sundown towns", Chinese Americans were also driven out of some of the towns where they lived. For example, in 1870, Chinese made up one-third of the population of Idaho. Following a wave of violence and an 1886 anti-Chinese convention in Boise, almost none remained by 1910. Loewen 2005, "Sundown Towns: A Hidden Dimension of American Racism". New Press. ISBN 1-56584-887-X (page 51).] The town of Gardnerville, Nevada blew a whistle at 6 p.m. daily alerting Native Americans to leave by sundown.Loewen 2005, page 23] In addition, Jews were excluded from living in some sundown towns.Loewen 2005, page 257.]

[
redlining of minority neighborhoods. People who lived in the red zones could not get mortgages to buy or improve their homes.]
Redlining was officialized with the National Housing Act of 1934 which established the Federal Housing Administration (FHA). In 1935, the Federal Home Loan Bank Board (FHLBB) asked Home Owners' Loan Corporation (HOLC) to look at 239 cities and create "residential security maps" to indicate the level of security for real estate investments in each surveyed city. In these maps many minority neighborhoods in cities were not eligible to receive loans at all. This meant that ethnic minorities could secure mortgage loans only in certain areas, and it resulted in a large increase in the residential racial segregation and urban decay in the United States. Urban Planning historians theorize that the maps were used for years afterwards to deny loans to people in black communities by private and public entities.

Furthermore, numerus clausus in universities specially affected Jews, victims of anti-Semitism.

On the other hand, mass immigration lead to restrictive laws, influenced by the nativist movement. They were mostly enacted according to national origins, but also involved racial typologies developed by scientific racism theorists. For example, although Indian Americans were not classified as members of any races until the end of the 19th century, the Supreme Court created in 1923, during the United States v. Bhagat Singh Thind case, the official stance to classify Indians as non-white, which at the time retroactively stripped Indians of citizenship and land rights. While the decision was placating racist Asiatic Exclusion League (AEL) demands, spurned by growing outrage at the Turban Tide / Hindoo Invasion sic alongside the pre-existing outrage at the "Yellow Peril", and while more recent legislation influenced by the civil-rights movement has removed much of the statutory discrimination against Asians, no case has overturned this 1923 classification. Hence, this classification remains, and is still relevant today because many laws and quotas are race-based.

This period, however, also saw the Yick Wo v. Hopkins case in 1886, which was the first case where the United States Supreme Court ruled that a law that was race-neutral on its face that was administered in a prejudicial manner was an infringement of the Equal Protection Clause.

The 'Yellow Peril' and the National Origins Formula

Xenophobic fears against the alleged "Yellow Peril" lead to the implementation of the Page Act of 1875, the 1882 Chinese Exclusion Act, expanded ten years later by the Geary Act. The Chinese Exclusion Act replaced the Burlingame Treaty ratified in 1868, which encouraged Chinese immigration, provided that "citizens of the United States in China of every religious persuasion and Chinese subjects in the United States shall enjoy entire liberty of conscience and shall be exempt from all disability or persecution on account of their religious faith or worship in either country" and granted certain privileges to citizens of either country residing in the other, withholding, however, the right of naturalization. The Immigration Act of 1917 then created an "Asian Barred Zone" under nativist influence. The Cable Act of 1922 guaranteed independent female citizenship only to women who were married to "alien [s] eligible to naturalization". [http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-1.html] At the time of the law's passage, Asian aliens were not considered to be racially eligible for U.S. citizenship. [http://www.apa.si.edu/Curriculum%20Guide-Final/teacherhistory.htm] [http://www.digitalhistory.uh.edu/asian_voices/asian_timeline.cfm] As such, the Cable Act only partially reversed previous policies, granting independent female citizenship only to women who married non-Asians. The Cable Act effectively revoked the U.S. citizenship of any woman who married an Asian alien. The National Origins Quota of 1924 also included a reference aimed against Japanese citizens, who were ineligible for naturalization and could not either be accepted on US territory. In 1922, a Japanese citizen attempted to demonstrate that the Japanese were members of the "white race," and, as such, eligible for naturalization. This was denied by the Supreme Court in Takao Ozawa v. United States, who judged that Japanese were not members of the "Caucasian race."

The 1921 Emergency Quota Act, and then the Immigration Act of 1924, restricted immigration according to national origins. While the Emergency Quota Act used the census of 1910, xenophobic fears in the WASP community lead to the adoption of the 1890 census, more favorable to White Anglo-Saxon Protestant (WASP) population, for the uses of the Immigration Act of 1924, which responded to rising immigration from Southern and Eastern Europe, as well as Asia.

One of the goal of this National Origins Formula, established in 1929, was explicitly to keep the status quo distribution of ethnicity, by allocating quotas in proportion to the actual population. The idea was that immigration would not be allowed to change the "national character". Total annual immigration was capped at 150,000. Asians were excluded but residents of nations in the Americas were not restricted, thus officializing racial discrimination in immigration laws. This system was repealed with the Immigration and Nationality Act of 1965.

During World War II

President Roosevelt enacted discriminatory practices with Executive Order 9066 of February 1942, which paved the way for Japanese American internment during which approximatively 120,000 people of Japanese descent (American citizens as well as Japanese nationals) were interned during the war. Americans of Italian and German descent, along with Italian and German nationals, were also interned, but on a much smaller scale (see Italian American internment and German American internment). In "Korematsu v. United States" (1944), the Supreme Court upheld the Executive Order. It was the first instance of the Supreme Court applying the strict scrutiny standard to racial discrimination by the government and for being one of only a handful of cases in which the Court held that the government met that standard.

Others cases pertaining to Japanese American internment included "Yasui v. United States" (1943), "Hirabayashi v. United States" (1943), "Ex parte Endo" (1944), as well as "Korematsu". In "Yasui" and "Hirabayashi", the court upheld the constitutionality of curfews based on Japanese ancestry. In "Endo", the court accepted a petition for a writ of habeas corpus and ruled that the War Relocation Authority (WRA, created by Executive Order 9102) had no authority to subject a citizen whose loyalty was acknowledged to its procedures.

Despite these renewed xenophobic fears concerning the "Yellow Peril", 1943 Magnuson Act repealed the Chinese Exclusion Act and allowed naturalization of Asians.

In 1983, the Commission on Wartime Relocation and Internment of Civilians (CWRIC) concluded that the incarceration of Japanese Americans had not been justified by military necessity. Rather, the report determined that the decision to detain Japanese Americans had been based on "race prejudice, war hysteria, and a failure of political leadership."

Aftermaths of World War II

The United Nations Participation Act of 1945, passed after the victory of the Allies, included provisions concerning immigration issues in regards to immigration policy be conducted in a fair manner and non-discriminatory fashion.

Executive Order 9981, signed in 1946 by President Truman, ended racial segregation in the Armed Forces. The Luce-Celler Act of 1946 effectively ended statutory discrimination against Filipino Americans and Indian Americans erstwhile deemed 'unassimilable' along with most other Asian Americans.

The 1947 Mendez v. Westminster case challenged racial segregation in California schools. It its ruling, the Ninth Circuit Court of Appeal, in an en banc decision, held that the segregation of Mexican and Mexican American students into separate "Mexican schools" was unconstitutional. The 1954 Hernandez v. Texas case decided that Mexican Americans and all other "racial groups" in the US had equal protection under the 14th Amendment.

The McCarran-Walter Act of 1952 (or Immigration and Naturalization Act) “extended the privilege of naturalization to Japanese, Koreans, and other Asians.” [“Commentary on Excerpt of the McCarran-Walter Act, 1952,” "American Journal Online: The Immigrant Experience", Primary Source Microfilm, (1999), Reproduced in History Resource Center, Farmington Hills, MI: Gale Group, [9 February 2007] .] “The McCarran-Walter Act revised all previous laws and regulations regarding immigration, naturalization, and nationality, and brought them together into one comprehensive statute.” ["McCarran-Walter Act," "Dictionary of American History", 7 vols, Charles Scribner's Sons, (1976), Reproduced in History Resource Center, Farmington Hills, MI: Gale Group, [9 February 2007] .]

The civil rights movement and its aftermaths

Legislation enacting racial segregation was overturned in the 1950s-60s under pression from the civil rights movement, starting with the 1954 Brown v. Board of Education case. Over the next twenty years, a succession of further court decisions and federal laws, including the 1963 Directive 5120.36 ending racial discrimination in the military, the Civil Rights Act of 1964, the Voting Rights Act of 1965, the 1972 Gates v. Collier case which ended racial segregation in prisons, Home Mortgage Disclosure Act and measure to end mortgage discrimination in 1975, would completely invalidate de jure racial segregation and discrimination in the U.S., although de facto segregation and discrimination have proven more resilient.

Some State Constitutions (for example, that of California) had clauses giving local jurisdictions the right to regulate where members of certain "races" could live. White landowners often included restrictive covenants in deeds through which they prevented blacks or Asians from ever purchasing their property from any subsequent owner. In the 1948 case of "Shelley v. Kraemer", the Supreme Court finally ruled that such covenants were unenforceable in a court of law. However, residential segregation patterns had already become established in most American cities, and have often persisted up to the present (see white flight).

The American Indian Religious Freedom Act (AIRFA) of 1978 pledged to protect and preserve the traditional religious rights of American Indians, Eskimos, Aleuts, and Native Hawaiians. [cite web | author=Cornell.edu| title=AIRFA act 1978.| work= | url=http://www4.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001996----000-.html| accessdate= July 29| accessyear= 2006 ] Before the AIRFA was passed, certain U.S. federal laws interfered with the traditional religious practices of many American Indians.

The Immigration Act of 1965 discontinued quotas based on national origin, while preference given to those who have U.S. relatives. For the first time Mexican immigration was restricted.

An executive order of 1961, by President Kennedy, set the basis for affirmative action against racial discrimination, by creating the Equal Employment Opportunity Commission. Executive Order 11246 of 1965, signed by President Johnson, enforced this policy. In the 1970s and 1980s, this new policy included court-supervised desegregation busing plans.

In the 1999 Hunt v. Cromartie case, the Supreme Court ruled that the 12th electoral district of North Carolina as drawn was unconstitutional because it was created for the purpose of placing African-Americans in one district thereby constituting illegal racial gerrymandering. The Court then ordered the state of North Carolina to redraw the boundaries of the district.

References

See also

*Brown v. Board of Education
*Heart of Atlanta Motel v. United States
*Hernandez v. Texas
*Immigration to the United States
*Jim Crow Laws
*List of United States immigration legislation
*Mass racial violence in the United States
*NAACP v. Alabama
*National Origins Formula
*Plessy v. Ferguson
*Racial classification of Indian Americans
*Racial segregation in the United States
*Racism in the United States
*Slavery in the United States
*Smith v. Allwright
*Yick Wo v. Hopkins