[SOUND] Of all the types of discrimination over the course of American History, none has ever been more important than race discrimination. Long ago, early in the 19th Century Alexis de Tocqueville wrote that race is the tragic flaw upon which American government is formed. Certainly, the issues of race, not new in American history. They trace back to the days before the Constitution and they plagued the Constitutional Convention. Southerners were very clear that they would not approve a Constitution unless it allowed them to continue to be slave-owning states. On the other hand, there were Northerners deeply opposed to slavery, believing it to be repugnant and reprehensible. The Constitution, as I've already talked about, compromised on the institution of slavery. It said that Congress could not ban the importation of slavery for at least 20 years and included provisions like the fugitive slave clause, that a slave escaped from a slave state to a free state, the slave had to be returned. In the first part of American history, from 1787 when the Constitution was written until 1865 when the 13th amendment was adopted, the Supreme Court aggressively protected the institution of slavery. Some hoped, undoubtedly, that the Supreme Court would chip away at the institutional slavery,but that's not at all what the court did. So for example, in a case called Prigg versus Pennsylvania, the Supreme Court considered a Pennsylvania law that prohibited the use of force or violence to remove an escaped slave. Now there's no doubt that Pennsylvania could not keep an escaped slave from being returned. But that's not what the Pennsylvania Law did. The Pennsylvania Law prohibited force or violence from being used to remove an escaped slave. The Supreme Court declared the Pennsylvania Law unconstitutional. Justice Joseph Story, one of the most celebrated of all Supreme Court justices, wrote the opinion. He said there's no doubt the Constitution would never have been ratified, but for the fugitive slave clause, and the Pennsylvania law was unconstitutional. Worst of all, in 1857, in the infamous case of Dred Scott versus Sandford, the Supreme Court struck down the Missouri compromise and helped pave the way for the Civil War. Dred Scott was a slave who went to a free state, Illinois. He filed a lawsuit for his freedom. He filed in federal court claiming it was diversity of citizenship ever since the Constitution was written under its terms and its statutes. Citizens of one state can sue citizens of another state in federal court. That's what Dred Scott used to sue. The Supreme Court ruled that Scott was not a citizen. He was a piece of property. And the Supreme Court went further and said that the Missouri Compromise that prohibited slavery in states above a specified latitude was itself unconstitutional as an impermissible taking of property, slaves from slave owners. This was the first time the Supreme Court declared a law unconstitutional since Marbury versus Madison in 1803. Many believed that it helped pave the way for the United States to have a civil war. And so, we look at the history of race from 1787 to 1865, a period of 78 years. The Supreme Court very much used its power to enforce the institution of slavery. After the Civil War reconstruction occurred, the north divided the south into five regions, a military governor was put in charge of each of the five regions and it was literally military rule. There was also the first progress towards some form of civil rights for blacks. African-Americans were elected to some public offices in the South. African Americans began to vote, even in the south, but in 1876 there was a contested election between the Democrat Samuel Tilden and Republican Rutherford B Hayes. Tilden won the popular vote, but didn't have enough votes to conclusively get a majority in the electoral college, so a compromise was made. The Democrats agreed that they would support the Republican Hayes for president in exchange for an end of Reconstruction. That's exactly what happened, Rutherford Hayes became president, Reconstruction then ended. The result of the end of Reconstruction was the immediate deprivation of rights of former slaves and blacks throughout the South. Immediately southern states began to adapt laws that segregated every aspect of southern life. These came to be known as Jim Crow laws. Though no one's ever been sure where the phrase Jim Crow comes from. C Van Woodward and his wonderful book, The Strange Career Of Jim Crow, talks about the beginning, how the phrase Jim Crow Law was widely used, but clear acceptance of the origin of the phrase. And of course, the laws segregating the races remained into affect well into the middle of the 20th century. Well I want to discuss three major questions with regard to race and the Constitution. First, what level of scrutiny is used for racial classifications? It's now clearly established that strict scrutiny is used when the government draws a distinction among people based on race. That is, the government, if it's going to use race has to show that its actions necessary to achieve a compelling government purpose. Why strict scrutiny for race? When the words of the quote, why is race "a suspect classification"? Well the Supreme Court says, some of it is, that race is immutable. We're born with our race, we can't change our race. So it's not fair to discriminate against people on account of something they didn't choose and they can't change. Also the Court said, there's a tremendous history of race discrimination in this country. And that means when the government now adopts a law based on race, there's every reason to be suspicious of it. Strict scrutiny is appropriate. Also the Court has said in all likelihood, racial classifications reflect stereotypes and prejudices, not real differences among people that the law needs to take into account. The Supreme Court has said that racial minorities are generally politically powerless. I mentioned earlier in this lecture, the Carolene Products case of 1938. The very famous footnote for the court said there were, quote, discrete and insular minorities that require more judicial protection. For all of these reasons, the Court has said, racial classifications are strongly disfavored, the government is to meet strict scrutiny. But it's worth noting that the Constitution does not prohibit all racial classifications. The Constitution doesn't require that the government be colorblind. It just says that racial classification be necessary to achieve a compelling purpose. Sometimes people, even Supreme Court Justices talk of the need for a color blind Constitution, but that's not what the Constitution says. It says, the stage of the 90 person equal protection laws. Also it's absurd to think that the government always has to be color blind. Imagine a gang in a city, where membership is defined based on race, many gangs are that way. Surely if the police want to have an undercover agent infiltrate, they can look to race in deciding which undercover agent to use. You wouldn't send a white officer to infiltrate an all black gang. But it's clearly established racial classifications are strongly disfavored. They'll be allowed only if they meet strict scrutiny. Well this leads to the second question I want to talk about with regard to race. How is the existence of a racial classification proven? Just said, if there's a racial classification it's strict scrutiny. But how do you know if there is a racial classification? There are two alternative ways to prove the existence of a racial classification. One is if the racial classification is on the face of the law. What I mean by that, if the law in its very terms speaks of race and draws a distinction among people based on race, the government is going to have to meet a strict scrutiny. For the sake of clarity, I can identify three types of racial classifications that exist on the face of the law. One is racial classifications that impose a burden just on racial minorities. The law singles out racial minorities for a disadvantage that no one else has to suffer. An example of this is a case in the 19th century, Strauder versus West Virginia. West Virginia had a law that said that only white men could serve on juries. Well the racial classification, for that matter the sex classifications were right on the face of the law and the Supreme Court declared the law unconstitutional. The most famous instance, or again perhaps I should say the most infamous instance in which the Supreme Court upheld the racial classification disadvantagement orders was a case in 1944, Korematsu versus the United States. In the early days after the bombing of Pearl Harbour on December 7, 1941, the United States military launched an effort to evacuate Japanese-Americans from their homes in the West Coast. The Japanese-Americans were then interned, what President Franklin Roosevelt referred to as concentration camps. 110,000 Japanese-Americans, aliens and citizens, and 70,000 were United States citizens, were uprooted from their lifelong homes. Race alone determined who was going to be free and who was going to be incarcerated behind barbed wire. This should have been an easy case for the Supreme Court. Dangerousness never can be measured by race alone. Who's free and who's incarcerated, of course, should never be determined by race alone. But the Supreme Court in Korematsu versus United States 1944 ruled to uphold the evacuation of Japanese-Americans. It was a 6-3 decision, Justice Hugo Black wrote the opinion for the court. This was the first time, ironically, the court ever said that race is "suspect classification." Nonetheless the court ruled in favor of the government. Just as Black said, war is about hardship and this is just a hardship that Japanese Americans will have to bear. There were eloquent dissents especially from Justices Robert Jackson, a former Attorney General in the Roosevelt administration and Justice Frank Murphy, they said that there's no need to use race to determine dangerousness. In England, which had every reason to fear a German invasion, they did an individualized review of whether a person was a threat to safety and relatively few needed to be detained, much different than the United States, where there was no individual review. Justice Murphy said, this is race discrimination and it's unacceptable to the Constitution. Justice Jackson said, this case will now sit here as a loaded gun to be used by future generations. I worry with this terrorist activity in the future, the Korematsu might be used as a basis of detaining those on specific races or ethnicity. In fact, not long ago, a candidate for a presidential campaign invoked Korematsu as a basis for waiting to treat Muslims in the United States differently. Korematsu is a case though, that's been repudiated by what the Supreme Court as referred to as a court of history. Korematsu versus United States is a case that is widely criticized as one of the worst moments of Supreme Court history. [BLANK AUDIO]
