Race Law Cases in the American Story

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It is difficult to think of "Civil rights in the American story" and not have African Americans in mind. Indeed, it is fair to say that African Americans have long functioned as the quintessential subjects around whom to frame civil rights interventions. This helps to explain the prevalence of analogies to race ( or, more accurately, analogies to the African-American experience) in a range of civil rights debates, including gay marriage discourses that circulated the phrase, "Gay is the New Black." These comparisons seek to trade on (and sometimes displace) the extent to which the African­American experience anchors our understanding of civil rights in the American story.

We think it makes sense that African-American encounters with Amer­ican democracy have profoundly shaped our conceptions of civil rights. At the same time, our understanding of civil rights in the American story is decidedly incomplete to the extent that it is framed exclusively with reference to African Americans. This narrow focus forecloses the articula­tion of other civil rights narratives that have helped to form the American story. This chapter brings these narratives into sharp relief. We do so not by marginalizing the African-American experience, but by situating that experience in the context of a broader story about race, law, and American national identity. In this respect, the civil rights in the American story we will tell is one in which both race and law play crucial roles. In fact, race and law have interacted to produce some of the most dramatic stories about civil rights violations, civil rights reform, and civil rights retrenchment.

In pursuing this project, we mean not only to explore the leading cases, but also to investigate their relationship to other decisions that came before and after. By looking beyond the most salient decisions, the chapter will demonstrate how dominant accounts of civil right in the American story elide the significance of some racial and ethnic groups, reify race, and obscure ongoing questions about the meaning and relevance of race vis-a­vis American identity. By moving beyond the accepted racial canon of civil rights cases, we hope to achieve considerable diversity in coverage. Our engagement will cover blacks, Latinos, Asian Americans, Native Ameri­cans, and whites. Moreover, we will take up decisions not just from the United States Supreme Court, but also from state courts and lower fed­eral courts. This will enable us to identify some "hidden gems"; decisions that arguably deserve greater attention than they have so far received in scholarly treatments of race, civil rights, and the American story.

The disputes underlying the cases we will analyze cover a range of con­texts, including education, employment, housing, criminal law, marriage, and family law. Our aim is to show how some of the simplest aspects of everyday life became bound up in and manifestations of what Gunnar Myrdal famously called the "American dilemma." Consistent with the storytelling theme of this book, we will describe the cases that constitute our archive not simply as legal events, but as narratives - narratives about hope and pessimism, power and marginalization, resistance and acquies­cence, slavery and freedom, defeat and triumph, and life and death - in short, narratives about civil rights in the American story.

We have organized this chapter into four parts: "Birth of a Nation: Formal Citizenship and Sovereignty," "Separate and Unequal: Classifica­tion and Caste," "Our Constitution is Color-Blind: The Doctrine of Race Neutrality," and "With All Deliberate Speed: Race-Conscious Remedies." Notwithstanding that our treatment of the cases we explicate is decid­edly summary, our hope is that our analysis will demonstrate the ways in which the narrative of civil rights in the American story has always been a multiracial phenomenon - from the very birth of our nation.

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Cambridge University Press


Austin Sarat

Book Title

Civil Rights in American Law, History, and Politics