The courts have legitimated the common perception of blacks as criminals. Police may use race as a factor when developing probable cause. Additionally, police and immigration officials often target individuals of a specific race with policies such as street sweeps, gang profiles and border stops. Such practices “erase the identities of . . . people as individual human beings and instead defines them, on the basis of their race, as potential criminals.”21 Such policies are at their core essentialist because they are impossible to implement without relying on prevalent stereotypes. See The Constructed Identities of Asian and African Americans: A Story of Two Races and the Criminal Justice System Sheila A. Bedi∗
Over the last 100 years, litigated cases have overwhelmingly revealed an implicit view of blacks as inferior, reaffirmed by the limitations imposed, or the tokenism used, to influence the jury selection process involving black jurors. Over the last 135 years the U.S. Supreme Court has used its elevated place to legally define the black race as the explicit “other.” “Negroes” were seen by the Court as “property” (Scott v. Sanford, 1857) or as an “emancipated” race (Strauder v. West Virginia 1880). They have been called the “inferior race,” as opposed to a “superior race” (Strauder V. West Virginia, 1880). Their “black color” has been seen as their distinctive mark of humanity (Ex parte Virginia, 1880; Carter v. Texas, 1900.) They have been named “a citizen of African race” (Neal v. Delaware, 1881; Bush v. Kentucky, 1883) and of African “descent” (Woody v. Brush, 1891). They have been looked on as people apart, truly another race. Equally, the U.S. Supreme Court has defined Mexican-American as “strangers”- “a separate class, distinct from whites” as a group, “those persons of Mexican descent,” and “a person with a Mexican or Latin American name” (Hernandez v. Texas, 1954; Casteneda v. Partida, 1977). The legal edicts offered by the Court have contended that race is the basis of property (owners v. slaves), of power (inferiority v. superiority), and of ethno-social attributes, as when the place of origin of ones forbears or their surnames designate another “race.” Race thereby becomes a way of casting black and Hispanics as outsiders-outside the bounds of rights to the nation’s bounty (Barrera, 1969; Bonacich, 1972, 1973, 1980; Feagin, 1984). – The U.S. Supreme Court, the Constitutional Background of Jury Selection, and Racial Representation
With the outbreak of war, thousands of blacks made their way to freedom during the Revolution. Enslaved persons during these years found their freedom through military service, petitions for freedom and by those revolutionist who fully embodied the ideal that “every man is created equal” and manumitted their slaves. At the end of the war over 5,000 enslaved Africans had fought with the Continental Army and joined the new America as free men, vastly increasing the number of free black people in the newly formed states. Heather Andrea Williams, American Slavery: A Very Short Introduction, Oxford University Press, 2014 The presence of free blacks altered the prevailing racial categories. Previously the color of one’s skin was associated with slavery, black indicating enslaved and white indicating free. After the Revolution when tens of thousands of African Americans gained their freedom, either by volunteering or manumission, racial enslavement appeared inconsistent. Free blacks appeared to subvert the logic of racially based enslavement Gillmer, Jason, Suing for Freedom: Interracial Sex, Slave Law, and Racial Identity in the Post-Revolutionary and Antebellum South (January 1, 2004). North Carolina Law Review, Vol. 82, No. 2, January 2004. Available at SSRN: http://ssrn.com/abstract=1799647
Similarly, in State v. Soto, a superior court judge in Gloucester County, New Jersey, granted the defendant’s motion to suppress evidence seized after being stopped on the New Jersey Turnpike. The court held that the seventeen minority defendants who were African-Americans, the majority of whom were males, established a case of selective enforcement based on race. In Soto, the defense conducted a study to determine if law enforcement officers were engaged in racial profiling. The study revealed that an adult black male was present in 88% of the cases where the gender of all occupants could be determined and that where gender and age could be determined, a black male 30 or younger was present in 63 of the cases. Other examples of racial profiling include an incident involving the Maryland State Police, which settled a lawsuit following the discovery of an internal memo that encouraged state troopers to target African-American males driving east on I-68. The profile of the Maryland State Police suggested that being black plus male and driving on I-68 equaled criminal activity. See Racial Profiling of African-American Males: Stopped, Searched, andStripped of Constitutional Protection
In the 1660s the price of tobacco declined and the farmers got problems. Only those who had capital enough to engage in large-scale production could continue to make a profit. Rumors of poor working conditions reached England, and contributed to keep free, white workers back in their homeland. In order to provide enough manpower, the colonial legislature passed a law allowing slavery. King Charles II granted a royal charter in order to establish a company that was to transport African slaves to North America. See Slavery in the British colonies in North America
In any case, another association gradually arose in North America and that was between ‘negro’ and ‘slave’. Early legislation commonly referred to ‘negro and other slaves’ or to ‘negro, mulatto, and Indian slaves’. Over the years ‘negro’ and ‘black’ both became synonymous with enslavement. In 1702 an observer wrote that the wealth of Virginia consisted in ‘slaves or Negroes’. But 1806 Virginia judges ruled that a person who was of a white appearance was to be presumed free but ‘in the case of a person visibly appearing to be of the slave race, it is incumbent upon him to make out his freedom.’ In 1819 South Carolina judges stated flatly: ‘The word “Negroes” has a fixed meaning (slaves). See Africans and Native Americans: The Language of Race and the Evolution of Red … By Jack D. Forbes
Britain relied on slavery and slave-produced products for whatever wealth it got from British America and was heavily involved in slavery as the leading trafficker of slaves across the Atlantic from the mid-17th century until the abolition of the slave trade in 1807. British ships carried millions of slaves to the Americas, where they changed the demographic makeup of European-controlled settlements markedly. Slavery was also a highly significant social institution. It led to the growth of a planter class––the most important and long-lasting elite in British American and American history. It also was important in developing pernicious ideas of race that were used by planters to justify their dominion over enslaved people. And, most importantly, it brought Africans to America. They brought with them their African culture, which was transformed by exposure to other cultural practices and became a distinctive part of the British American experience. Finally, slavery was an institution that relied at bottom on coercion and violence. The application of such coercion met with considerable resistance from those to whom violence was done. Slavery in British America Trevor Burnard LAST MODIFIED: 29 MAY 2015
Slavery explicitly was a racial institution. In every state but Delaware, blacks were presumed at law to be slaves; proving one was legally white constituted a defense to slavery. The badges and incidents of slavery the Thirteenth Amendment opposes will overwhelming manifest in racial forms. The amendment does not prohibit, and even invites, analyses of racial harm. The Case for United States Reparations to African Americans by Adrienne D. Davis
In Gibbons, the Chief Justice of New Jersey charged the jury, that the colour of this man was sufficient evidence that he was a slave.” In upholding the jury’s verdict, the New Jersey Court of Errors and Appeals also affirmed that the law presumes every man that is black to be a slave.” The head-notes to the official report of the case confirmed that “In New Jersey, all blacks were presumed to be slaves until they could prove otherwise. According to the Henry Holt Encyclopedia of Word and Phrase Origins the word “blacklist” originated with a list England’s King Charles II made of fifty-eight judges and court officers who sentenced his father, Charles I, to death in 1649. When Charles II was restored to the throne in 1660, thirteen of these regicides were put to death and twenty-five sentenced to life imprisonment, while others escaped. A blacklist (or black list) is a list or register of entities or people who, for one reason or another, are being denied a particular privilege, service, mobility, access or recognition. As a verb, to blacklist can mean to deny someone work in a particular field, or to ostracize a person from a certain social circle.
This figurative sense derived from the literal meaning of A badge as a sign deliberately worn to indicate position or status. From certain external features, an individuals social position could be inferred. Thus, in an argument before the Supreme Court in 1843, a lawyer for a slave seeking freedom through a conditional manumission offered the following observation about American slavery: Colour in a slave holding state is a badge of slavery. It is not so where slavery does not exist. Williams v. Ash, 42 U.S. 1, 8 (1843) 2 Being black was evidence of being a slave. According to one nineteenth century history of English law, the phrase refers to those badges of slavery which are imposed upon a conquered people. Owen Flint off, The Rise and Progress of the Laws of England and Wales 139 (1840).
Another instance of something becoming retrospectively black begins in antiquity with the Greek workd nekromanteia which means divination by the dead. However, by the thirteenth century it was corrupted to nigromantia, black divination’ (James 1981:23). I would suggest that it is the historical fact of the crusades that encourages this slippage to take place. This gave rise to the contemporary phrases ‘black art’ and ‘black magic’. Another instance occurs with the son of Edward III, who lived in the fourteenth century. He was not called the Black Prince until the sixteenth century by Grafton in 1569 (OED: 251) as a way of signifying his malignancy. And by the seventeenth century the phrase Black Prince had become even more evil by becoming another name for the Devil. In tracing the pictorial representation of the devil in west European art, James found that the devil was not regularly coloured black until the Fourteenth century. By the 1880s it had gained a more sinister meaning,that of ‘a captive negro or Polynesian on board a slave or pirate ship….hence Blackbirder, man or vessel engaged in slave traffic. ‘Blackamoor was initially used without ‘depreciatory force (OED), it meant literally black Moor. But by 1663 it had become a synonym for devil. The citation in the OED is ‘He’ is dead long since and gone to the blackmores below’. In the seventeenth century it comes to mean ‘vagabond, loafing, or criminal class of a community, and by the eighteenth century it has increased its forcefulness to mean ‘One of the idle criminal class, a rough; hence, a low worthless character addicted to or ready for crime, an poen scoundrel ( A term of utmost opprobrium)…..pertaining to the dregs of the community; of low, worthless character; brutally vicours or scurrilous’ (OED). See Race, Colour and the Processes of Racialization: New Perspectives from Group … By Farhad Dalal
The Negro in the New World By Sir Harry Hamilton Johnston states: “When the Portuguese discovers, urged on by Prince Henry of Portugal, had rounded Cape Bojador, and after reaching Rio d’Ouro in 1435……” In this Footnotes it says “This is the reason why blackamoor in English, Morioan in Dutch, Morian in Germa, Moro in Spanish, Portuguese, and Italian and Moriaud in French were early names for Negroes. “Negro”, a Spanish word, did not come into common use in England till the nineteenth century. Abraham Lincoln Represented a Moorish plaintiff from Portugal in William Dungey v. Joseph Spencer
Lincoln Successfully argued:
“My client is not a Negro, though it is a crime to be a Negro–no crime to be born with a black skin. But my client is not a Negro. His skin may not be as white as ours, but I say he is not a Negro, though he may be a Moore.” “Mr. Lincoln,” interrupted Judge Davis, scarcely able to restrain a smile, “you mean a Moor, not Moore.” “Well, your Honor, Moor, not C.H. Moore,” replied Mr. Lincoln, with a sweep of his long arm toward the table where Moore and I sat. “I say my client may be a Moor, but he is not a Negro.”
In its most general sense, the term “badge of slavery” therefore refers to indicators, physical or otherwise, of African Americans’ slave or subordinate status. As Professor George Rutherglen has pointed out, the phrase “badge of slavery” was used metaphorically as far back as the Roman Empire to refer to “evidence of political subjugation. See George Rutherglen, The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment, in The Promises Of Liberty: The History And Contemporary Relevance Of The Thirteenth Amendment 163, 166 & n.23 (Alexander Tsesis ed., 2010) (citing P. Cornelius Tacitus, The Annals And The Histories bk. XV, at 31 (1952)) (recounting incident where a victorious general was asked to treat a conquered king so that he “might not have to endure any badge of slavery”); see also id. at n.19 (citing use of phrase during English Civil War).
This is not the first time that Moors rejected the Negro/Black Badge, much earlier in 1790. On January 20, 1790, a petition was presented to the South Carolina House of Representatives from a group of four individuals who were subjects of the Moroccan emperor and residents of the state. They desired that if they happened to commit any fault amenable to be brought to justice, that as subjects to a prince allied with the United States through the Moroccan–American Treaty of Friendship, they would be tried as citizens instead of under the Negro Act of 1740. The Free Moors, Francis, Daniel, Hammond and Samuel petitioned on behalf of themselves and their wives Fatima, Flora, Sarah and Clarinda. They explained how some years ago while fighting in defense of their country, they and their wives were captured and made prisoners of war by an African king. After this a certain Captain Clark had them delivered to him, promising they would be redeemed by the Moroccan ambassador residing in England, and returned to their country. Instead, he transported them to South Carolina, and sold them for slaves. Since then, “by the greatest industry,” they purchased freedom from their respective masters. They requested that as free born subjects of a Prince in alliance with the U.S., that they should not be considered subject to a state law (then in force) known as the negro law. If they be found guilty of any crime or misdemeanor, they would receive a fair trial by lawful jury. The matter was referred to a committee consisting of Justice John Faucheraud Grimké, General Charles Cotesworth Pinckney and Edward Rutledge. Edward Rutledge reported from the committee on the petition on the same day and the House agreed to the report, which read as follows Vizt: “They have Considered the same and are of opinion that no Law of this State can in its Construction or Operation apply to them, and that persons who were Subjects of the Emperor of Morocco being Free in this State are not triable by the Law for the better Ordering and Governing of Negroes and other Slaves.” Because the report was not forwarded to the state Senate for concurrence, it did not have the force of law but served as an advisory opinion offering the sense of the House. The report was later published in the Charleston City Gazette and the Charleston State Gazette of South Carolina. Click Here to read the Sundry Free Moors Act o 1790.
Dr. Arica Coleman, an assistant professor at the University of Delaware who is of Rappahannock and African American descent, discussed how the term negro might actually be referring to an American Indian. According to her latest book, That the Blood Stay Pure, the term’s origins can be traced to medieval Italy where it was a classification of a skin color, not race. Additionally, Europeans often referred to indigenous populations of their communities as negroes. In the Portuguese colony of Brazil, Indians were called negros da terra meaning negroes of the land. Coleman pointed out during the conference that the early Virginia legislature identified Moors and negroes separately. See 6 Shocking Facts About Slavery, Natives and African Americans
In New Jersey, we have learned from hard experience that although skin color is “public” in a sense, the state must nevertheless assert a compelling governmental interest before using preconceived notions about the implications of skin color to justify police conduct. The New Jersey State Constitution: A Reference GuideBy Robert F. Williams. “The public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties.” Jones v. Caruso, 569 F.3d 258, 278 (6th Cir. 2009).
The phrase badge of slavery: acquired a more specific range of meanings in American discourse referred to the skin color of African Americans. In some states and some courts, dark skin was presumptively a “mark or sign” of slave status. See MORRIS, supra note 49, at 21. State v. Whitaker, 3 Del. 549, 550 (1840); see also State v. Rash, 6 Del. 271, 274 (Del. Ct. Gen. Sess. 1867) (“As slavery was exclusively confined to the black or colored race, color became the badge or sign of servitude . . . .”).
As a consequence, some legal restrictions that applied to slaves, like the bar on testimony in any case involving a white person, also applied to free blacks because they also wore the badge of slavery. Gerrit Smith, Editorial, THE LIBERATOR, March 7, 1835, at 39.
There should be little question that the historical assumption that “black means criminal” continues to hold sway today. See, e.g. ARMOUR, supra note 65, at 2.
Additionally, race based criminal suspicion, legally enforced through the Slave Codes, and was used to keep blacks in fear and in their “place” during slavery. HIGGINBOTHAM, IN THE MATTER OF, supra note 35, at 8.
Criminality of the Negro was a central concept in numerous public-discourses. “Americans as a mass,” a 1915 editorial in The Crisis astutely observed,“regard . . . Negroes as criminals. National Association for the Advancement of Colored People, “Editorial: Mohr,” The Crisis: A Record of the Darker Races 11 (1916): 244.
White news papers tended to portray black Americans as especially lawless and the almost ubiquitous mention of (black) race in crime stories“tend[ed] to stamp the entire Negro group as criminals Chicago Commission on Race Relations. The Negro in Chicago: A Study of Race Relations and a Race Riot (Chicago, IL: University of Chicago Press, 1922), 525
Even efforts to legislatively combat lynch violence were accompanied by rhetorical constructions of black criminality. As the 1921, 1922 debate in the House of Representatives over a federal anti-lynching bill demonstrates, attempts to outlaw lynching were met with decrees from elected officials that such legislation would “encourage rape. Barbara Holden-Smith, “Lynching, Federalism, and the Intersection of Race andGender in the Progressive Era,” Yale Journal of Law and Feminism 8 (1996): 56.
For a discussion of this dynamic modern society, see Patricia J. Williams Meditations on Masculinity, in Constructing Masculinity 238, 242 (Maurice Berger et al. eds `1995) (describing the function of the connection between race and crime and stating that this connection results in [a]ny black criminal becom[ing] all black men, and the fear of all black men becom[ing] the rallying point for controlling all black people”).
One in four black men born since the late 1970s has spent time in prison. Ex-offenders are excluded from a wide variety of jobs, running the gamut from septic-tank cleaner to barber to real-estate agent, depending on the state. And in the limited job pool that ex-offenders can swim in, blacks and whites are not equal. For her research, Pager pulled together four testers to pose as men looking for low-wage work. One white man and one black man would pose as job seekers without a criminal record, and another black man and white man would pose as job seekers with a criminal record. The negative credential of prison impaired the employment efforts of both the black man and the white man, but it impaired those of the black man more. Startlingly, the effect was not limited to the black man with a criminal record. The black man without a criminal record fared worse than the white man with one. “High levels of incarceration cast a shadow of criminality over all black men, implicating even those (in the majority) who have remained crime free,” Pager writes. Effectively, the job market in America regards black men who have never been criminals as though they were. See The Black Family in the Age of Mass Incarceration
“the crime-stained blackness of the negro” It is impossible to conceive of the Gray Wastes without first conceiving of a large swath of its inhabitants as both more than criminal and less than human. These inhabitants, black people, are the preeminent outlaws of the American imagination. Black criminality is literally written into the American Constitution—the Fugitive Slave Clause, in Article IV of that document, declared that any “Person held to Service or Labour” who escaped from one state to another could be “delivered up on Claim of the Party to whom such Service or Labour may be due.” From America’s very founding, the pursuit of the right to labor, and the right to live free of whipping and of the sale of one’s children, were verboten for blacks. See The Black Family in the Age of Mass Incarceration
The crime of absconding was thought to be linked to other criminal inclinations among blacks. Pro-slavery intellectuals sought to defend the system as “commanded by God” and “approved by Christ.” In 1860, The New York Herald offered up a dispatch on the doings of runaway slaves residing in Canada. “The criminal calendars would be bare of a prosecution but for the negro prisoners,” the report claimed. Deprived of slavery’s blessings, blacks quickly devolved into criminal deviants who plied their trade with “a savage ferocity peculiar to the vicious negro.” Blacks, the report stated, were preternaturally inclined to rape: “When the lust comes over them they are worse than the wild beast of the forest.” Nearly a century and a half before the infamy of Willie Horton, a portrait emerged of blacks as highly prone to criminality, and generally beyond the scope of rehabilitation. In this fashion, black villainy justified white oppression—which was seen not as oppression but as “the corner-stone of our republican edifice.” See The Black Family in the Age of Mass Incarceration
To fortify the “republican edifice,” acts considered legal when committed by whites were judged criminal when committed by blacks. In 1850, a Missouri man named Robert Newsom purchased a girl named Celia, who was about 14 years old. For the next five years, he repeatedly raped her. Celia birthed at least one child by Newsom. When she became pregnant again, she begged Newsom to “quit forcing her while she was sick.” He refused, and one day in June of 1855 informed Celia that he “was coming to her cabin that night.” When Newsom arrived and attempted to rape Celia again, she grabbed a stick “about as large as the upper part of a Windsor chair” and beat Newsom to death. See The Black Family in the Age of Mass Incarceration
A judge rejected Celia’s self-defense claim, and she was found guilty of murder and sentenced to death. While she was in jail, she gave birth to the child, who arrived stillborn. Not long after, Celia was hanged. Celia’s status—black, enslaved, female—transformed an act of self-defense into an act of villainy. Randall Kennedy, a law professor at Harvard, writes that “many jurisdictions made slaves into ‘criminals’ by prohibiting them from pursuing a wide range of activities that whites were typically free to pursue.” Among these activities were: learning to read, leaving their masters’ property without a proper pass, engaging in “unbecoming” conduct in the presence of a white female, assembling to worship outside the supervisory presence of a white person, neglecting to step out of the way when a white person approached on a walkway, smoking in public, walking with a cane, making loud noises, or defending themselves from assaults. Antebellum Virginia had 73 crimes that could garner the death penalty for slaves—and only one for whites. See The Black Family in the Age of Mass Incarceration
The end of enslavement posed an existential crisis for white supremacy, because an open labor market meant blacks competing with whites for jobs and resources, and—most frightening—black men competing for the attention of white women. Postbellum Alabama solved this problem by manufacturing criminals. Blacks who could not find work were labeled vagrants and sent to jail, where they were leased as labor to the very people who had once enslaved them. Vagrancy laws were nominally color-blind but, Kennedy writes, “applied principally, if not exclusively, against Negroes.” Some vagrancy laws were repealed during Reconstruction, but as late as the Great Depression, cash-strapped authorities in Miami were found rounding up black “vagrants” and impressing them into sanitation work. See The Black Family in the Age of Mass Incarceration
“From the 1890s through the first four decades of the twentieth century,” writes Khalil Gibran Muhammad, the director of the Schomburg Center for Research in Black Culture at the New York Public Library, “black criminality would become one of the most commonly cited and longest-lasting justifications for black inequality and mortality in the modern urban world.” Blacks were criminal brutes by nature, and something more than the law of civilized men was needed to protect the white public. Society must defend itself from contamination by “the crime-stained blackness of the negro,” asserted Hinton Rowan Helper, a Southern white-supremacist writer, in 1868. Blacks were “naturally intemperate,” one physician claimed in The New York Medical Journal in 1886, prone to indulging “every appetite too freely, whether for food, drink, tobacco, or sensual pleasures, and sometimes to such an extent as to appear more of a brute than human.” See The Black Family in the Age of Mass Incarceration
Rape, according to the mythology of the day, remained the crime of choice for blacks. “There is something strangely alluring and seductive to [black men] in the appearance of a white woman,” asserted Philip Alexander Bruce, a 19th-century secretary of the Virginia Historical Society. “It moves them to gratify their lust at any cost and in spite of every obstacle.” These outrages were marked “by a diabolical persistence” that compelled black men to assault white women with a “malignant atrocity of detail that [has] no reflection in the whole extent of the natural history of the most bestial and ferocious animals.” See The Black Family in the Age of Mass Incarceration
Before Emancipation, enslaved blacks were rarely lynched, because whites were loathe to destroy their own property. But after the Civil War, the number of lynchings rose, peaked at the turn of the century, then persisted at a high level until just before the Second World War, not petering out entirely until the height of the civil-rights movement, in the 1960s. The lethal wave was justified by a familiar archetype—“the shadow of the Negro criminal,” which, according to John Rankin, a congressman from Mississippi speaking in 1922, hung “like the sword of Damocles over the head of every white woman.” See The Black Family in the Age of Mass Incarceration
Lynching, though extralegal, found support in the local, state, and national governments of America. “I led the mob which lynched Nelse Patton, and I’m proud of it,” declared William Van Amberg Sullivan, a former United States senator from Mississippi, on September 9, 1908, the day after Patton’s lynching. “I directed every movement of the mob, and I did everything I could to see that he was lynched.” Standing before the Senate on March 23, 1900, “Pitchfork Ben” Tillman, of South Carolina, declared to his colleagues that terrorized blacks were the victims not of lynching, but of “their own hot-headedness.” Lynching was a prudent act of self-defense. “We will not submit to [the black man’s] gratifying his lust on our wives and daughters without lynching him,” Tillman said. In 1904, defending southern states’ lack of interest in education funding for blacks, James K. Vardaman, the governor of Mississippi, offered a simple rationale, as one report noted: “The strength of [crime] statistics.” See The Black Family in the Age of Mass Incarceration
Even as African American leaders petitioned the government to stop the lynching, they conceded that the Vardamans of the world had a point. In an 1897 lecture, W. E. B. Du Bois declared, “The first and greatest step toward the settlement of the present friction between the races—commonly called the Negro problem—lies in the correction of the immorality, crime, and laziness among the Negroes themselves, which still remains as a heritage from slavery.” Du Bois’ language anticipated the respectability politics of our own era. “There still remain enough well authenticated cases of brutal assault on women by black men in America to make every Negro bow his head in shame,” Du Bois claimed in 1904. “This crime must at all hazards stop. Lynching is awful, and injustice and caste are hard to bear; but if they are to be successfully attacked they must cease to have even this terrible justification.” Kelly Miller, who was then a leading black intellectual and a professor at Howard University, presaged the call for blacks to be “twice as good,” asserting in 1899 that it was not enough for “ninety-five out of every hundred Negroes” to be lawful. “The ninety-five must band themselves together to restrain or suppress the vicious five.” See The Black Family in the Age of Mass Incarceration
In this climate of white repression and paralyzed black leadership, the federal government launched, in 1914, its first war on drugs, passing the Harrison Narcotics Tax Act, which restricted the sale of opiates and cocaine. The reasoning was unoriginal. “The use of cocaine by unfortunate women generally and by negroes in certain parts of the country is simply appalling,” the American Pharmaceutical Association’s Committee on the Acquirement of the Drug Habit had concluded in 1902. The New York Times published an article by a physician saying that the South was threatened by “cocaine-crazed negroes,” to whom the drug had awarded expert marksmanship and an immunity to bullets “large enough to ‘kill any game in America.’ ” Another physician, Hamilton Wright, the “father of American narcotic law,” reported to Congress that cocaine lent “encouragement” to “the humbler ranks of the negro population in the South.” Should anyone doubt the implication of encouragement, Wright spelled it out: “It has been authoritatively stated that cocaine is often the direct incentive to the crime of rape by the negroes of the South and other sections of the country.” See The Black Family in the Age of Mass Incarceration
The persistent and systematic notion that blacks were especially prone to crime extended even to the state’s view of black leadership. J. Edgar Hoover, the head of the FBI for nearly half a century, harassed three generations of leaders. In 1919, he attacked the black nationalist Marcus Garvey as “the foremost radical among his race,” then ruthlessly pursued Garvey into jail and deportation. In 1964, he attacked Martin Luther King Jr. as “the most notorious liar in the country,” and hounded him, bugging his hotel rooms, his office, and his home, until his death. Hoover declared the Black Panther Party to be “the greatest threat to the internal security of the country” and authorized a repressive, lethal campaign against its leaders that culminated in the assassination of Fred Hampton in December of 1969. See The Black Family in the Age of Mass Incarceration
Today Hoover is viewed unsympathetically as having stood outside mainstream ideas of law and order. But Hoover’s pursuit of King was known to both President Kennedy and President Johnson, King’s ostensible allies. Moreover, Hoover was operating within an American tradition of criminalizing black leadership. In its time, the Underground Railroad was regarded by supporters of slavery as an interstate criminal enterprise devoted to the theft of property. Harriet Tubman, purloiner of many thousands of dollars in human bodies, was considered a bandit of the highest order. “I appear before you this evening as a thief and a robber,” Frederick Douglass told his audiences. “I stole this head, these limbs, this body from my master, and ran off with them.” In Douglass’s time, to stand up for black rights was to condone black criminality. The same was true in King’s time. The same is true today. Appearing on Meet the Press to discuss the death of Michael Brown in Ferguson, Missouri, the former New York City mayor Rudy Giuliani—in the fashion of many others—responded to black critics of law enforcement exactly as his forebears would have: “How about you reduce crime? … The white police officers wouldn’t be there if you weren’t killing each other 70 to 75 percent of the time.” See The Black Family in the Age of Mass Incarceration
But even in Giuliani’s hometown, the relationship between crime and policing is not as clear as the mayor would present it. After Giuliani became mayor, in 1994, his police commissioner William Bratton prioritized a strategy of “order maintenance” in city policing. As executed by Bratton, this strategy relied on a policy of stop-and-frisk, whereby police officers could stop pedestrians on vague premises such as “furtive movements” and then question them and search them for guns and drugs. Jeffrey Fagan, a Columbia University law professor, found that blacks and Hispanics were stopped significantly more often than whites even “after adjusting stop rates for the precinct crime rates” and “other social and economic factors predictive of police activity.” Despite Giuliani’s claim that aggressive policing is justified because blacks are “killing each other,” Fagan found that between 2004 and 2009, officers recovered weapons in less than 1 percent of all stops—and recovered them more frequently from whites than from blacks. Yet blacks were 14 percent more likely to be subjected to force. See The Black Family in the Age of Mass Incarceration
In 2013 the policy, as carried out under Giuliani’s successor, Michael Bloomberg, was ruled unconstitutional. If policing in New York under Giuliani and Bloomberg was crime prevention tainted by racist presumptions, in other areas of the country ostensible crime prevention has mutated into little more than open pillage. When the Justice Department investigated the Ferguson police department in the wake of Michael Brown’s death, it found a police force that disproportionately ticketed and arrested blacks and viewed them “less as constituents to be protected than as potential offenders and sources of revenue.” This was not because the police department was uniquely evil—it was because Ferguson was looking to make money. “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs,” the report concluded. These findings had been augured by the reporting of The Washington Post , which had found a few months earlier that some small, cash-strapped municipalities in the St. Louis suburbs were deriving 40 percent or more of their annual revenue from various fines for traffic violations, loud music, uncut grass, and wearing “saggy pants,” among other infractions. This was not public safety driving policy—it was law enforcement tasked with the job of municipal plunder. See The Black Family in the Age of Mass Incarceration
It is patently true that black communities, home to a class of people regularly discriminated against and impoverished, have long suffered higher crime rates. The historian David M. Oshinsky notes in his book “Worse Than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice that from 1900 to 1930, African Americans in Mississippi “comprised about 67 percent of the killers in Mississippi and 80 percent of the victims.” As much as African Americans complained of violence perpetrated by white terrorists, the lack of legal protection from everyday neighbor-on-neighbor violence was never then, and has never been, far from their minds. “Law-abiding Negroes point out that there are criminal and treacherous Negroes who secure immunity from punishment because they are fawning and submissive toward whites,” observed the Nobel Prize–winning economist Gunnar Myrdal in his famous 1944 book about race in America, An American Dilemma: The Negro Problem and Modern Democracy. “Such persons are a danger to the Negro community. Leniency toward Negro defendants in cases involving crimes against other Negroes is thus actually a form of discrimination.” Crime within the black community was primarily seen as a black problem, and became a societal problem mainly when it seemed to threaten the white population. See The Black Family in the Age of Mass Incarceration
Take the case of New Orleans between the world wars, when, as Jeffrey S. Adler, a historian and criminologist at the University of Florida, has observed, an increase in the proportion of crimes committed by blacks “on the streets and in local shops and bars,” as opposed to in black homes and neighborhoods, produced an enduring mix of fear and fury among whites. In response, Louisiana district attorneys promised that “Negro slayers of Negroes will be thoroughly prosecuted.” A common tool in homicide cases was to threaten black suspects with capital punishment to extract a guilty plea, which mandated a life sentence. So even as violent crime declined between 1925 and 1940, Louisiana’s incarceration rate increased by more than 50 percent. “Twice as many inmates entered state correctional facilities in low-crime 1940 as in high-crime 1925,” Adler writes. See The Black Family in the Age of Mass Incarceration
At Angola State Penal Farm, the “white population rose by 39 percent while the African American inmate population increased by 143 percent.” The principal source of the intensifying war on crime was white anxiety about social control. In 1927, the Supreme Court had ruled that a racial-zoning scheme in the city was unconstitutional. The black population of New Orleans was growing. And there was increasing pressure from some government officials to spread New Deal programs to black people. “At no time in the history of our State,” the city’s district attorney claimed in 1935 , “has White Supremacy been in greater danger.” The staggering rise in incarceration rates in interwar Louisiana coincided with a sense among whites that the old order was under siege. In the coming decades, this phenomenon would be replicated on a massive, national scale. See The Black Family in the Age of Mass Incarceration
The traffic Europeans in negro Slaves was fully established before the colonization of the United States, and had existed half a century before the discovery of America. As early as 1441, Portuguese ships sailed as far south as Cape Blanco in Africa, and returned with Moors… and these Moors were treated as strangers of distinction from who important information could be obtained. And in 1443, Antony Gonzales, who had brought them to Portugal, was commanded to restore them to their native homes; he did so, and the Moors gave him not only gold, but “black Moors” with curled hair for their ransom. It was thus that negro slaves were introduced in Europe; and Negroes immediately became a lucrative traffic from this beginning, and “abounded in the city of Seville” before the enterprise of Columbus was conceived. The English traffic in negro slaves began in 1562. Joh Hawkins, in the prosecution of a commercial enterprise, visited Sierra Leone to trade with the natives; while there, b seductive descriptions of the genial climate and productiveness of the New World, he persuaded some of them to go there with him. The night previous to sailing, a hostile tribe made an attack upon them, and he, with his crew, repulsed the assailants, captured may and took them along as prisoners. He said to Hispaniola, (Hayti) ad their finding a profitable market, he sold into servitude, not only the prisoners he had taken, but also those natives he had seduced by liberal offers ad attractive representations to accompany him from Sierea Leone. Hawkins returned to England, and a complaint was preferred against him for this barbarous act; but he successfully excused himself, ad even escaped censure by pleading that he had taken those natives from heathenish barbarism and placed them under the blessed influences of Christianity. The returns of this first English negro-trafficking voyage were so rich i sugar, ginger and pearls, that the second voyage of Hawkins, in 1567, was under the protection of Queen Elizabeth, she sharing in the profits thereof. The Negroes were forcibly seized, their towns burned, and the most fiend like atrocities committed, and in the hazards, profits and crimes thereof the sovereign of England participated. It is noteworthy fact that, at one time or another, every Christian potentate and Government has sanctioned the slave trade between Africa and America, save only the Pope of Rome. Leo X., whose pontificate was a continuous carnival, declaraed that not the Christian religion only, buy nature herself cries out against the state of Slavery. Friends’ Intelligencer, Volume 11
Fact is sometimes stranger than fiction. One very unusual and little-known event took place at the dawn of American colonial history in 1586. That year, Sir Francis Drake (1540-1596), the famous English seaman, discoverer, and privateer,1 brought at least two hundred Muslims (identified as Turks and Moors,2 which likely included Moriscos 3 ) to the newly established English colony of Roanoke on the coast of present-day North Carolina. The Roanoke settlement was England’s first American colony and constitutes the first chapter of English colonial history in the New World and what ultimately became the history of the United States. Only a short time before reaching Roanoke, Drake’s fleet of some thirty ships had liberated these Muslims from Spanish colonial forces in the Caribbean. They had been condemned to hard labor as galley slaves. See Turks, Moors, & Moriscos in Early America By Umar Faruq Abd-Allah, PH. D.
In the Colonial America of 1619, John Rolfe used negars in describing the African slaves shipped to the Virginia colony. Privateers (Pirates/Highjackers) had seized them from a slave ship bound for Mexico and traded them in Virginia. Approximately 20 men and women arrived at Jamestown, Virginia, in 1619. They were captives, likely from the kingdom of Ndongo in present-day Angola. The Africans worked the tobacco fields in Jamestown alongside white indentured servants, but it is not clear if they were considered slaves. By 1700 there were 27,817 enslaved Africans in British North America. In 1740, there were 150,024. By 1770, the number of slaves had grown to 462,000, about one-fifth of the total colonial population.
Later American English spellings, neger and neggar, prevailed in a northern colony, New York under the Dutch, and in metropolitan Philadelphia’s Moravian and Pennsylvania Dutch communities; the African Burial Ground in New York City originally was known by the Dutch name “Begraafplaats van de Neger” (Cemetery of the Negro); an early US occurrence of neger in Rhode Island, dates from 1625.
An alternative word for African Americans was the English word, “Black”, used by Thomas Jefferson in his Notes on the State of Virginia. By the late 1960s, the social change achieved by groups in the United States such as the Civil Rights Movement (1955–68), had legitimized the racial identity word black as mainstream American English usage to denote black-skinned Americans of African ancestry.
In the 1990s, “Black” was displaced in favor of the compound blanket term African American. Moreover, as a compound word, African American resembles the vogue word Afro-American, an early-1970s popular usage. Bouvier Law Dictionary defines “badge of slavery” as follows: A persistent condition that evokes the past burden of slavery. A badge of slavery is any burden or disability, whether it originates in law or social custom that was associated or persists to limit the freedom of a person whose ancestors were in slavery.
Although the Thirteenth Amendment of the U.S. Constitution fails to mention “badge of slavery”, it is mentioned but not properly and exhaustively defined in Black’s Law Dictionary: 1. Strictly, a legal disability suffered by a slave, such as the inability to vote or to own property. 2. Broadly, any act of racial discrimination –public or private– that Congress can prohibit under the 13th Amendment.
This view was summed up neatly in 1806 by Spencer Roane of the Virginia Court of Appeals: In the case of a person visibly appearing to be a Negro [Black] the presumption is, in this country, that he is a slave, and it is incumbent on him to make out his right to freedom, but in the case of a person visibly appearing to be a white man, or an Indian, the presumption is that he is free, and it is necessary of this adversary to show that he is a slave……. the rights of slave owners were further secured when the colonial assemblies adopted the principle of the Roman law that a child derives its status from its mother. Since miscegenation usually involved White males and Black female slaves, the Roman law principle insured that offspring of such alliances were automatically slaves. When the reverse was the case, when a white female and a black male were involved, a special status sometimes was created for the child. Free Men All: The Personal Liberty Laws of the North, 1780-1861By Thomas D. Morris.
1662 — Virginia law establishes that children of black mothers are slaves if their mothers are slaves, free if their mothers are free. Slaves and the Courts, 1740-1860
Citing 1662 Virginia statute providing that “[c]hildren got by an Englishman upon a Negro woman shall be bond or free according to the condition of the mother”. Throughout the late 17th and early 18 century, several colonial legislatures adopted similiar rules which revesed the usual common law presumptions that the status of the child was determined bythe father. (See id. at 128 (citing 1706 New Yor Statute); id. at 252 (citing a 1755 Georgia Law)). These laws facilitated the breeding o slaves through Black women’s bodies and allowed for slaveholders to reproduce their own labor force. (See Paulal Giddings, When and Where I enter: The Impact of Black Women on Race and Sex in America (1984) (noting that “a master could save the cost of buying new slaves by impregnating his own slave, or forthat matter having anyone impregnate her”). For a discussion of Race and Gender see Cheryl I. Harris Myths of Race and Gender in the Trials of O.J. Simpson and Susan Smith–Spectacles of Our Times)
The Transatlantic slave trade (1501-1867), known by some in Texas as the Atlantic triangular trade, sold at least 12.5 million black Africans as slaves to work for white landowners on the other side of the ocean. Of these 1.8 million died at sea. Most of the rest were worked to death within seven years in the sugar cane fields of Brazil and the Caribbean. The slave trade reached its height in the 1780s. A third of those sold were women. Towards the end a fourth were children! Because the big money was in sugar only 4% came to the cotton and tobacco fields of North America. Three-fourths of those came from West Africa, the rest from what is now Congo, Angola and Mozambique.
Woodrow Wilson, in his election campaign for President, made a very fundamental point: “A nation which does not remember what it was yesterday, does not know what it is today, nor what it is trying to do. We are trying to do a futile thing if we do not know where we came from or what we have been about…
Black codes defined what it meant to be a “person of color” (i.e., black), which also varied from state to state. In some cases you were considered a Negro if you had one-fourth Negro blood in your veins (Virginia), or one-eighth (Georgia) or any amount (Tenessee). See Out from the Shadow: The Story of Charles L. Gittens Who Broke the Color … By Maurice A. Butler
Muslim Africans were captured and transported to the Americas, primarily in the 1700s. See The Making of African American Identity: Vol. I, 1500-1865
Beyond these early explorers and the occasional free Muslim mentioned in early histories, recent historians of Muslim America suggest that the most significant influx of Muslims before the late nineteenth and early twentieth centuries was slaves. Muhammad, supra note 7, at 9; Freeland, supra note 1, at 450. Muhammad notes that “Moors” from the Barbary Coast—captured by the Portuguese and enslaved—successfully. Although authors of American history commonly acknowledge that Muslims were among the slaves imported into the United States, recent scholarship suggests that they were more numerous than previously thought, and that many practiced their faith or a syncretic version of Islam and Christianity well into the nineteenth century. See Curtis, supra note 7, at 20–21 (describing syncretic Islamic and hoodoo practices of slaves); GhaneaBassiri, supra note 7, at 63–64, 80–96 (describing Islamic-faith among slaves); Freeland, supra note 1, at 450–51. Freeland notes that not all Muslim slaves were black Africans; Malaysians and Turks were also enslaved because Christians could own “infidels” whereas “infidels” could not own Christian slaves. Freeland, supra note 1, at 450– 51. He traces how slavery became racialized as slaves became Christians. See id. at 451; see also Capet, supra note 8, at 551 (2010) (citing Allan Austin’s estimation that there may have been at least eighteen thousand Muslim slaves imported from 1771 to 1775). See Islam in the Mind of American Courts: 1800 to 1960 By Marie A. Failinger
Noble Drew Ali the Chief Executive Officer of the Moorish Science Temple of America provided in the Temple’s Koran at Ch. 47 vv. 16-17 : Through sin and disobedience every nation has suffered slavery, due to the fact that they honored not the creed and principles of their forefathers. That is why the nationality of the Moors was taken away from them in 1774 and the word negro, black and colored, was given to the Asiatics of America who were of Moorish descent, because they honored not the principles of their mother and father, and strayed after the gods of Europe of whom they knew nothing.”
The majority of African slaves were brought to British North America between 1720 and 1780. The Angolan region of west-central Africa made up slightly more than half of all Africans sent to the Americas and a quarter of imports to British North America. See Facts about the Slave Trade and Slavery by Steven Mintz
According to Chouki El Hamel, on the surface, following Ali Mazuri’s perspective, one does not find much in the way of a discourse valorizing racial purity in Moroccan society. To illustrate Mazuri’s argument I cite a typical example of Moroccan rulers. Sultan Mawalay Isma’il (1646-1727), whose mother was a black slave (umm-al-walad) but who nonetheless perceived himself a descendant of Muhammad and therefore not black. Given that Morocco is a patrilineal and patriarchal society, the father gives to his son his nasab (ethnic kinship) and his religion regardless of the mother’s status, whether non Muslim, Berber, Black, or slave. The Moroccan definition of race accepts the other or blacks in the Arab family as long as they possess a drop of Arab blood, seemingly ignoring their other ethnic or racial affiliations. Black Morocco: A History of Slavery, Race, and Islam (African Studies) by Chouki El Hamel.
Moor is defined by the U.S. Commission on Immigration Dictionary of Races and Peoples as follows:
A historical term rather than an ethnographical term applied to very different peoples of the northwestern Africa. In Roman history it is applied to inhabitants of Mauretania (Morocco and Algeria), who were in part Phoenician colonist. In Spanish history the Moors and Moriscos were mainly Berbers rather than, as commonly supposed, Arabs. Today  the word is wrongly applied to the Riffs of Morocco and to the town dwellers of Algeria and Tunis. The latter call themselves generally Arabs, although often in part of Berber blood. The Moors, in a stricter ethnological sense are the mixed Traza and other tribes on the western coats, from Morocco to Senegal, mainly of nomadic habits. They are of mixed Berber, Arab and often Negro blood. Many speak Arabic (See Semetic-Hamitic).
The U.S. Commission on Immigration Dictionary of Races and Peoples states in the Definition for Negro , Negroid, African, Black, Ethiopian, or Austafrican. The Definition must exclude, however, the dark, almost black, Veddahs and Dravidian tribes of India, and especially the dark Hamites and Semites of norther and northeastern Africa. The two latter groups belong to the Caucasian stock of Southwestern Asia, linguistically, as wll as , to a certain extent, in temperament, civilization, and regularity of features. They inhabit nearly one third of Africa, including Abyssinia. The so called “Ethiopic” language and old form of Christianity are found in the latter country, and not in the mis-named Ethiopian race.
WHEREAS, In 2003, during a trip to Goree Island, Senegal, a former slave port, President George W. Bush stated, “At this place, liberty and life were stolen and sold. Human Beings were delivered and sorted, and weighed, and branded with the marks of commercial enterprises, and loaded as cargo on a voyage without return. One of the largest migrations of history was also one of the greatest crimes ACR PAYNE, STANLEY of history…. For 250 years the captives endured an assault on their culture and their dignity…. Small men took on the powers and airs of tyrants and masters. Years of unpunished brutality and bullying and rape produced a dullness and hardness of conscience. Christian men and women became blind to the clearest commands of their faith and added hypocrisy to injustice…. We can finally judge the past by the standards of President John Adams, who called slavery ‘an evil of colossal magnitude’…. My nation’s journey toward 9 justice has not been easy, and it is not over. The racial bigotry fed 10 by slavery did not end with slavery or with segregation … and many of the issues that still trouble America have roots in the bitter 12 experience of other times …See ASSEMBLY CONCURRENT RESOLUTION No. 270 STATE OF NEW JERSEY 212th LEGISLATURE INTRODUCED NOVEMBER 8, 2007
Whereas Africans forced into slavery were brutalized, humiliated, dehumanized, and subjected to the indignity of being stripped of their names and heritage; See H. RES. 194 In the House of Representatives, U. S., July 29, 2008 RESOLUTION The Supreme Court has said that Congress has the power to define the badges and incidents of slavery, subject only to rational basis review. The U.S. Supreme Court invalidated the Civil Rights Act of 1875 in the Civil Rights Cases (1883) even though it mentioned that Congress could not only invalidate slavery but also all “badges of slavery”. Hypocritically, the “High Court” chose to narrow the construction of the Thirteenth Amendment. This construction limited its enforcement. This was a signal to “civil rights” lawyers that they should only rely on the Fourteenth Amendment and the Fifteenth Amendment to end Jim Crow. Civil rights lawyers have been engaged in judicial “ping pong” since 1883. See Jones, 392 U.S. at 440 (“Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”).
Chapter 8 : The Resurrection and the life: Case Studies by States
“Now, again, just who were the Moors? The answer is very easy. The original Moors, like the original Egyptians, were Black Africans. As amalgamation became more and more widespread, only Berbers, Arabs and Coloureds in the Moroccan territories were called Moors while the darkest and black-skinned Africans were called “Black-a-Moors.” Eventually, “black” was dropped from “Blackamoor.” In North Africa, and Morocco in particular, all Muslim Arabs, Mixed breeds and Berbers are readily regarded as Moors. The African Blacks, having had even this name taken from them, MUST CONTEND FOR RECOGNITION AS MOORS” (Pg.207) Same Chapter: “In Considering the flowering of learning in West Africa and its brutal interruption by the Moors, certain important facts should stand out because they run through the Entire field of black history. The first, and perhaps the most important fact is that the general enslavment of Africans (proclaimed to the world as savages) began during the very period and in the veryWest Africa, the center of which held one of the great universities of the world and other colleges. Destruction of Black Civilization : Great Issues of a Race from 4500 B.C to 2000 A.D.
In David Thompson v. Wynnewood of Lower Merion Township, et. al., the U.S. District Court of Penn found that:
“Moreover, Plaintiff alleges that despite his brown skin color, he is not African-American like the suspected perpetrators. Reading the allegations in the Amended Complaint in the light most favorable to Plaintiff, he has pled enough facts to show the absence of probable cause to arrest him. Accordingly, Plaintiff may proceed with his federal false arrest claim against Defendant Police Officers in their individual capacity. As previously mentioned, Plaintiff asserts that he was stopped by the police because of his dark skin color and physical proximity to the alleged crime. Viewing the allegations in the Amended Complaint in the light most favorable to Plaintiff, he has pled enough facts to prove the absence of probable cause to arrest him. See David Thompson v. Wynnewood of Lower Merion Township, et al., Defendants United States District Court for the Eastern District Of Pennsylvania Civil Action NO. 12-2308”
 Suspicion is not enough, and the burden is on the Commonwealth to show with reasonable specificity facts sufficient to establish that probable cause existed. Id. Under Pennsylvania law, mere presence at, or near, the scene of a crime does not constitute probable cause for arrest. Commonwealth v. Anderson, 302 A.2d 504, 506 (Pa. Super. 1973); see also Commonwealth v. Reece, 263 A.2d 463, 466 (Pa. 1970). Moreover, the Pennsylvania Superior Court has failed to find probable cause to arrest when based on the same skin color as the perpetrator, but with notable discrepancies in facial hair, age, and observable behaviors. Youngblood, 359 A.2d at 459 (noting that “a twenty-five-year-old bearded [black] male calmly ‘eyeballing’ a store [in the vicinity of a crime] does not sufficiently resemble a fourteen-year-old [black] youth running from the scene of a robbery to establish probable cause for an arrest”); see also Commonwealth v. Sams, 350 A.2d 788, 789 (1976) (holding that an officer lacked probable cause to arrest, despite the fact that the officer was in the immediate vicinity of a crime alleged to have been committed by African-American males, because the sole basis for the arrest was the skin color of the African-American male he stopped)
In Obergefell Et Al. v. Hodges the majority opened its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explained that “the right to personal choice…….is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person. Lochner, 198 U. S., at 58 (emphasis added). “It would disparage their choices and diminish their personhood to deny them this right.” The Supreme Court ruled that the fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486.
In New Jersey, we have learned from hard experience that although skin color is “public” in a sense, the state must nevertheless assert a compelling governmental interest before using preconceived notions about the implications of skin color to justify police conduct.The New Jersey State Constitution: A Reference Guide By Robert F. Williams.
The Fourteenth Amendment guarantees to all persons the “equal protection of the laws.” U.S. Const. Amend. XIV, § 1. State laws employing racial classifications are judged for equal protection purposes by the application of strict scrutiny. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986) (plurality opinion) (” ‘Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.'” (quoting University of Cal. Regents v. Bakke, 438 U.S. 265, 291 (1978) (Powell, J.))). In Shaw v. Reno, 113 S. Ct. 2816 (1993),
The Supreme Court held that such race classifications are so constitutionally suspect as to “require careful scrutiny under the Equal Protection Clause regardless of the motivations underlying their adoption.”, Id. at 2826. Ronald Thompson, president of the group, the Garden State Bar Association, said the reams of documents released on Nov. 27 confirmed that profiling had been an ”ingrained, established practice” of the state….for decades and showed that high-ranking officials knew about it. http://www.nytimes.com/2000/12/07/nyregion/defendants-may-appeal-convictions-based-on-new-profiling-data.html A person’s racial identity is largely a social phenomenon, rather than a biological one.” Id at 666-67.