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GASPER II Solicitations & Submissions Editor KURT L. SCHMOKE Dean ANDREW I. GAVIL Faculty Advisor JACQUELINE C. YOUNG, Manager M.S. VOLUME 48 • ISSUE 1 • FALL 2004 MEMBERS 2004-2005 AKINBOWALE O. ADEKEYE * TAMER BAHGAT ADRIAN L. BELL RACQUEL C. CALLENDER*†KARINA CAMACHO* GINA CHIRICHIGNO TRAVIS S. COOK CHERYCE M. CRYER S. SHANNON DAVIS JERITA L. DEBRAUX KERI D. FOSTER MONIQUE GONZALEZ* CHARLOTTE GRISSOM ALEXIS HALL* NATASHA HARRIS* KITANYA HARRISON GABRIELA HERBSTEIN* NIGEL H. HOLDER LANASHA HOUZE BRANDI JOHNSON MICHELLE JONES RAINA JONES DEBBIE KIM AMAN M. MCHUGH AUTUMN MONTAGUE D’ASIA M. MORRIS* KENNETH J. NICHOLS*†OLUFISAYO OKETUNJI KRISTEN PHINNESSEE RHINA M. ROBERTS*†PERNELL TELEFORT HENRY A. THOMPSON ALEXEI TSYBINE* BROOKE TUCKER REYNA S. WALTERS TALIK N. WATSON DEVON WILLIAMS* KHALIAH M. WRENN* Member, National Conference of Law Reviews * Senior Members †Associate Editors ADMINISTRATIVE OFFICERS 2004-2005 Kurt L. Schmoke, Dean, J.D., Harvard University Warner Lawson, Jr., Associate Dean for Academic Affairs, J.D., Howard University Denise W. Spriggs, Associate Dean for Student Affairs and Records, J.D., Syracuse University Reginald McGahee, Assistant Dean of Admissions, J.D., Howard University FULL-TIME FACULTY Marjorie Alexander, Legal Writing Instructor, J.D., Howard University Rhea Ballard-Thrower, Associate Professor of Law, J.D., University of Kentucky Peter Blum, Legal Writing Instructor, J.D., Brooklyn Law School Spencer H. Boyer, Professor of Law, LL.B., George Washington University, LL.M., Harvard University Patricia Broussard, Legal Writing Instructor, J.D., Howard University Alice Gresham Bullock, Professor of Law, J.D., Howard University Lisa A. Crooms, Professor of Law and Director of Graduate Studies, J.D., University of Michigan e. christi cunningham, Professor of Law, J.D., Yale Law School Okianer Christian Dark, Professor of Law, J.D., Rutgers University Kirsten Dauphinais, Legal Writing Instructor, J.D., Columbia University Marsha A. Echols, Professor of Law, J.D., Georgetown University, LL.M., Free University of Brussels, S.J.D., Columbia University Andrew I. Gavil, Professor of Law, J.D., Northwestern University Aminata Ipyana, Associate Professor of Law, J.D., Washington University Steven D. Jamar, Professor of Law, J.D., Hamline University, LL.M., Georgetown University Henry H. Jones, Professor of Law, LL.B., Howard University Adam H. Kurland, Professor of Law, J.D., University of California, Los Angeles Homer C. LaRue, Professor of Law, J.D., Cornell University Isiah Leggett, Professor of Law, J.D., Howard University, LL.M., George Washington University Cynthia R. Mabry, Professor of Law, J.D., Howard University, LL.M., New York University Harold A. McDougall, Professor of Law, J.D., Yale Law School Tamar M. Meekins, Associate Professor of Law and Director of Clinical Law Center, J.D., University of Virginia Ziyad Motala, Professor of Law, LL.B., University of Natal, LL.M., S.J.D., Northwestern University Lateef Mtima, Associate Professor of Law, J.D., Harvard University Michael deHaven Newsom, Professor of Law, LL.B., Harvard University Cheryl C. Nichols, Assistant Professor, J.D., Georgia State University Laurence C. Nolan, Professor of Law, J.D., University of Michigan Reginald L. Robinson, Professor of Law, J.D., University of Pennsylvania W. Sherman Rogers, Associate Professor of Law, J.D., Howard University, LL.M., George Washington University Nareissa L. Smith, Legal Writing Instructor, J.D., Howard University Andrew E. Taslitz, Professor of Law, J.D., University of Pennsylvania Richard P. Thornell, Professor of Law, J.D., Yale Law School Patricia M. Worthy, Professor of Law, J.D., Howard University EMERITI FACULTY A. Luini del Russo, Professor of Law, LL.M., George Washington University, S.J.D., Royal University Newton Pacht, Professor of Law, LL.B., New York University, LL.M., Harvard University Jeanus B. Parks, Jr., Professor of Law, LL.B., Howard University, LL.M., Columbia University ADJUNCT FACULTY Noah Bookbinder, J.D., Stanford University* Hon. Arthur L. Burnett, Sr., J.D., New York University* Frederick D. Cooke, Jr., J.D., Howard University Hon. John F. Dean, LL.M., Georgetown University Marisa J. Demeo, J.D., New York University June White Dillard, J.D., Howard University Julian R. Dugas, LL.B., Howard University* Joanne Doddy Fort, J.D., University of Pennsylvania Michael E. Geltner, LL.B., Columbia University* Diane L. Griffin, J.D., Georgetown University Thomas Irving, J.D., Duke University* Orlan Johnson, J.D., Howard University Lesliediana Jones, J.D., Wayne State University Christine Lehman, J.D., New York University* James McCollum, J.D., Howard University* Thomas Peterson, J.D., Cleveland-Marshall College of Law Monique Daniel Pressley, J.D., Howard University Quentin Pair, J.D., Boston University* Parisa Salehi, J.D., Howard University Colline Silvera, J.D., Howard University H. Clay Smith, J.D., Howard University Matthew Solomon, J.D., Georgetown University* Deborah K. St. Lawrence, J.D., University of Maryland Nkechi Taifa, J.D., George Washington University Nicholas Targ, J.D., Boston College* Inga A. Watkins, J.D., George Washington University Wendell Webster, J.D., Howard University, LL.M., Harvard University Hon. Alexander Williams, Jr., J.D., Howard University* Robert Willis, J.D., Howard University Benjamin Wilson, J.D., Harvard University* Judy Woodall, J.D., Howard University* Raymond Wyrsch, J.D., University of Houston; LL.M., George Washington *Team teachers VOLUME 48 • ISSUE 1 • FALL 2004 TABLE OF CONTENTS ARTICLES THE BLACK QUEST FOR ECONOMIC LIBERTY: LEGAL, HISTORICAL, AND RELATED CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . W. Sherman Rogers 1 FLAGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Bennett Capers 121 PROSPECTS FOR IGBO HUMAN RIGHTS IN NIGERIA IN THE NEW CENTURY . . . . . . . . . . . . . . . . . . . . . . . Philip C. Aka 165 IS UNITED STATES V. MORRISON ANTIDEMOCRATIC?: POLITICAL SAFEGUARDS, DEFERENCE, AND THE COUNTERMAJORITARIAN DIFFICULTY . . . . . . . . . . . Michael Keenan 267 TRAGICOMEDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yxta Maya Murray 309 FREEDOM NOW!—RACE CONSCIOUSNESS WORK OF DE-COLONIZATION TODAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . John Hayakawa Tor ¨ ok ¨ 351 AND THE FOCUS ON BIODIVERSITY FOR FOOD SECURITY LETTER FROM THE DIRECTOR GENERAL OF THE FOOD AND AGRICULTURAL ORGANIZATION OF THE UNITED NATIONS . . . . . . . . . . . . . . . . . . . . . . . . . Dr. Jacques Diouf 395 AGRICULTURAL BIOLOGICAL DIVERSITY FOR FOOD SECURITY: SHAPING INTERNATIONAL INITIATIVES TO HELP AGRICULTURE AND THE ENVIRONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Clive Stannard, 397 Niek van der Graaff, Alan Randell, Peter Lallas & Peter Kenmore EXPRESSING THE VALUE OF AGRODIVERSITY AND ITS KNOW-HOW IN INTERNATIONAL SALES . . . Marsha A. Echols 431 BOOK REVIEW JUDGING JUDGES JUDGING . . . . . . . . . . . . . . . . . . Stephen J. Fortunato, Jr. 459 NOTES & COMMENTS THE UNITED STATES-PUERTO RICO RELATIONSHIP: INCOMPLETE DECOLONIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Karina Camacho 491 COMPELLING JEKYLL TO DITCH HYDE: HOW THE LAW OUGHT TO ADDRESS BATTERER DUPLICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Erin Street Mateer 525 The Black Quest for Economic Liberty: Legal, Historical, and Related Considerations W. SHERMAN ROGERS* TABLE OF CONTENTS Introduction and Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The Black Economic Journey From the 1600s to the Civil War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Role of Legal Principles in the Economic Journey of African Americans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. First Black Entrepreneur and Other Pre-Civil War Entrepreneurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Conservative Estimate of the Wealth of the 500,000 Free Blacks Prior to 1860 Approximately $50 Million but $75 Million is a More Realistic Figure . . D. Sources of Black Wealth Prior to the Civil War . . . . 1. Primarily Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Other Sources: Stocks, Bonds, and Annuities . . . E. Business Pursuits of Free Blacks and Slaves Prior to the Civil War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 20 20 21 29 29 29 29 30 * W. Sherman Rogers is a member of the full-time tenured faculty of the Howard University School of Law. The author has written this Article for a wide audience including scholars, the general public and all persons seeking the American dream of economic independence and security within the structure of capitalism. The purpose of the Article is to explore the legal, historical, sociological and political factors which help to explain the economic condition of black people in America from the date of their arrival in America to the present time. The goal of the Article is to fill an apparent informational gap regarding the role of law and politics in charting the economic circumstances of black people at all historical stages in their journey from slavery to freedom. The author would like to dedicate this Article to Professor Emeritus J. Clay Smith Jr., of the Howard University School of Law, who provided the inspiration for the author to write an article addressing the issue of the unfulfilled quest of black Americans for economic liberty. The author would also like to thank Professor Julian R. Dugas of the Howard University School of Law who constantly encouraged the author to continue working on the Article until it was completed. The author also would like to thank his research assistants, Malibea Burguillo, Natalie Ward, and Tiakyta Wilie, for their assistance. 2004 Vol. 48 No. 1 1 Howard Law Journal F. Why Black Entrepreneurial Activities Prior to the Civil War Are Utterly Amazing . . . . . . . . . . . . . . . . . . . . 1. The South’s Preoccupation in Maintaining Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Many Whites Did Not Consider Blacks to Be Fully Human During This Era . . . . . . . . . . . . . . . . . . II. The Reconstruction Era (1867-1877) . . . . . . . . . . . . . . . . . . . . A. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. President Lincoln and President Johnson’s Leniency With the Conquered South Caused Congress to Pass the Military Reconstruction Legislation . . . . . . . . . . . . . C. Although the Reorganized Southern States Ratified the Thirteenth Amendment, Their Enactment of Black Codes Showed That They Did Not Intend to Give Equal Rights to Blacks . . . . . . . . . . . . . . . . . . . . . . . . D. The Reconstruction Act of 1867, Like Other Legislation of This Era, Passed over the Veto of President Johnson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. The Four Supports upon Which the Economic Rights of Blacks Depended After the Civil War . . . . 1. South was Divided into Five Military Districts; Voters were to Elect State Convention to Frame a State Constitution; States Had to Ratify the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . 2. The Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . 3. Because of the Recently Enacted Fifteenth Amendment, Blacks Had the Right to Vote on All Issues Involving the Reorganization of the Southern States During the Period of Military Reconstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Civil Rights Act of 1875 . . . . . . . . . . . . . . . . . . . F. Benefits of Reconstruction . . . . . . . . . . . . . . . . . . . . . . . . . . 1. South Elected 22 Blacks to Congress; Mississippi Elected 2 Blacks to the U.S. Senate; Louisiana Elected 2 Black Senators but the Senate Refused to Seat Them; 794 Blacks Elected to State Legislatures, and Other Surprising Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Blacks and Whites Were Interacting with Each Other Socially and in Other Ways . . . . . . . . . . . . . . 2 31 31 36 37 37 38 39 40 42 42 42 43 44 44 44 45 [VOL. 48:1 Black Quest for Economic Liberty 3. Some Blacks Were Able to Make Substantial Economic Progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Major Black Colleges Established by Black Organizations and Others Immediately After the Civil War and During Reconstruction . . . . . . 5. Beneficial Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. End of Reconstruction Period . . . . . . . . . . . . . . . . . . a. In Compromise of 1877, Republicans Agreed to Pull the Military out of the South to Capture the Contested Presidential Race for Rutherford B. Hayes . . . . . . . . . . . . . . . . . . . . b. Reasons for the North’s Loss of Interest in Equal Justice for Blacks . . . . . . . . . . . . . . . . . . . . III. Government-Imposed Segregation of the Black Race: Jim Crow and the Theory of Economic Detour . . . . . . . . . A. Between the End of the Civil War and the Turn of the Twentieth Century, the U.S. Supreme Court Judicially Silenced Virtually Every Major Effort by Congress to Achieve True Equality of Opportunity for Blacks and All Americans . . . . . . . . . . . . . . . . . . . . . . 1. The Slaughter House Cases . . . . . . . . . . . . . . . . . . . . . 2. United States v. Cruikshank . . . . . . . . . . . . . . . . . . . . . 3. United States v. Reese . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Civil Rights Cases . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Hall v. de Cuir . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Plessy v. Ferguson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Blacks Were the Only Minority Group Excluded From the General Marketplace During Government-Enforced Segregation . . . . . . . . . . . . . . . . . 1. The Sociology of Entrepreneurship, Solving the Riddle of Why the Black Economic Journey Has Been Different Than Minority Groups Immigrating to the United States . . . . . . . . . . . . . . . a. The General Concept . . . . . . . . . . . . . . . . . . . . . . . b. Theory Underlying Sociology of Entrepreneurship Presupposes That Ethnic Minorities Adjusting to a New Country Have Access to the General Market of Consumers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2004] 45 46 46 47 47 47 49 49 49 50 52 54 54 55 57 57 57 58 3 Howard Law Journal c. Free Blacks in the 1700s and 1800s Were Operating with Access to the General Market of Consumers, and Set the Foundation of the Black Business Tradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Theory of Economic Detour Shows That the Government Forced Blacks, Unlike Any Other Ethnic Group in This Country, to Operate in a Segregated Market During the Era When Blacks Were Socially and Economically Segregated from the General Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Retail Trade and Restaurants . . . . . . . . . . . . . . . b. Undertakers, Barbers, and Beauticians . . . . . c. Building Trades and Manufacturing . . . . . . . . . d. Banking and Finance . . . . . . . . . . . . . . . . . . . . . . . e. Life Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f. Teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g. Clergy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . h. Medical Profession. . . . . . . . . . . . . . . . . . . . . . . . . . i. Legal Profession . . . . . . . . . . . . . . . . . . . . . . . . . . . . j. Officials and White Collar Workers in Government Employment . . . . . . . . . . . . . . . . . . k. Performing Arts . . . . . . . . . . . . . . . . . . . . . . . . . . . . l. The Black Underworld . . . . . . . . . . . . . . . . . . . . . m. Myrdal’s Findings Compared with Post-Civil Rights Era Developments . . . . . . . . . . . . . . . . . . C. Notable Events and Statistics During the Era of State-Imposed Discrimination . . . . . . . . . . . . . . . . . . . . . . . 1. Lynchings and Disenfranchisement . . . . . . . . . . . . . 2. Development of Rigid Segregation Produced the Most Significant Ideological Split Among Black Scholars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Booker T. Washington . . . . . . . . . . . . . . . . . . . . . . i. Speeches of 1884 and 1895 . . . . . . . . . . . . . ii. Positive Aspects of Booker T. Washington’s Approach . . . . . . . . . . . . . . . . iii. System of Rigid Segregation— Applicable Exclusively to American Blacks—Doomed Booker T. Washington’s Vision of Economic 4 58 59 62 63 63 64 67 67 68 68 70 70 71 72 73 74 74 75 75 75 76 [VOL. 48:1 Black Quest for Economic Liberty Prosperity for Southern Blacks Through Entrepreneurship . . . . . . . . . . . . . . . . . . . . . . . iv. Unfortunate Aspects of Booker T. Washington’s Approach . . . . . . . . . . . . . . . . b. W.E.B. Du Bois . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Civil Rights Era of the 1950s-1970s to the Present . . . . . . A. The End of Legally Imposed Apartheid in the United States in 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Civil Rights Groups with an Economic Agenda During the Modern Civil Rights Era . . . . . . . . . . . . . . . C. Programs Designed to Deal with the Social, Political, and Economic Problems of Blacks . . . . . . . . 1. Lyndon B. Johnson and Executive Order 11,246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . . 3. 1965 Voting Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Civil Rights Act of 1968 . . . . . . . . . . . . . . . . . . . 5. Government Efforts to Assist Black Businesses in View of the Former Economic Caste System Legitimized by Plessy . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Government Contracting and Set-Aside Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. The Supreme Court’s Decisions in Fullilove v. Klutznick, City of Richmond v. J. A. Croson, and Metro Broadcasting v. FCC . . . . c. The Supreme Court’s Decision in Adarand Constructors, Inc. v. Pena . . . . . . . . . . . . . . . . . . . d. Current Statistics on the 8(a) Program and the Future of Set-Asides for Minority Business Enterprises . . . . . . . . . . . . . . . . . . . . . . . . D. Uneven Distribution of Economic Benefits to the Entire Black Community in the Civil Rights Era . . . E. Statistics on Black Businesses and the Black Consumer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Collective Black Earning Power Approximately $601 Billion Annually . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Black Business Statistics . . . . . . . . . . . . . . . . . . . . . . . . a. Historical Notes and Background . . . . . . . . . . . b. Approximately 95% Sole Proprietorships . . . c. Approximately 3% Partnerships . . . . . . . . . . . . 2004] 77 78 78 79 79 81 81 81 82 82 84 84 84 86 90 92 93 95 95 95 95 96 96 5 Howard Law Journal d. 3% Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Approximately 83% of Black Firms Have No Paid Employees . . . . . . . . . . . . . . . . . . . . . . . . . f. Black Rate of Entrepreneurship is Lower Than All Other Ethnic Groups (3% of Entrepreneurs but 12% of the Population) . g. Gross Revenues of Black Businesses . . . . . . . h. The Combined Gross Revenues of the 100 Largest Black Industrial and the 100 Largest Auto Dealers in 2003 Was $21.9 Billion . . . . i. One-Half of Black Men and Two-Thirds of Black Women are Civil Servants . . . . . . . . . . . . j. Obtaining Capital More Difficult for Blacks Than for Other Ethnic and Minority Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Things the Black Entrepreneur Should Consider in Starting, Managing, and Expanding the Business Enterprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Choosing the Appropriate Vehicle for Doing Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Organizational Features Usually Desired by the Owners of Small Start-Up Businesses Almost Exclusively Involve Legal Characteristics Provided for by General Partnership Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Pros and Cons of the Seven Most Common Forms of Business Organizations . . . . . . . . . . . . . . . a. The Sole Proprietorship . . . . . . . . . . . . . . . . . . . . b. The General Partnership. . . . . . . . . . . . . . . . . . . . c. The Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. The Limited Liability Partnership . . . . . . . . . . e. The Limited Partnership . . . . . . . . . . . . . . . . . . . . f. The Limited Liability Limited Partnership . . g. The Limited Liability Company . . . . . . . . . . . . B. Raising Capital for the Business: Special Problems Usually Encountered by Black Entrepreneurs and Things Every Potential Black Entrepreneur Should Know About Obtaining Funding for the Enterprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 97 97 97 98 98 99 99 100 100 100 101 101 103 104 108 109 109 110 110 [VOL. 48:1 Black Quest for Economic Liberty 1. The Cash Crunch Which Many Black Entrepreneurs Face . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Sources of Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Early Stage Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Growth Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Alternatives to Traditional Financing . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 112 115 116 117 118 INTRODUCTION AND OVERVIEW A stunning array of statistical, legal, historical, and sociological data chronicle the African American1 quest for economic liberty. The role that law has played in the economic progress of African Americans, however, lies near the core of any meaningful discussion. It was law that enslaved, freed, segregated, and ultimately provided a window of hope for the economic aspirations of black people in the United States.2 However, greed and fear, the twin engines of capitalism,3 are the primal forces which underlie every manifestation of significant and persistent economic disparity between groups.4 This 1. The author uses the term “black” without a capital “b” to refer to “African Americans” in many, if not most, instances throughout this article. The dominant culture did not consider black people of African descent to be legally capable of being “American” during a substantial portion of this nation’s history. See Dred Scott v. Sandford, 60 U.S. 393 (1856). Accordingly, the author considers it awkward to refer to black people as “African Americans” in some parts of this Article. Additionally, not all black persons permanently residing in the United States are “Americans.” The term “black” is, therefore, a much more inclusive description of persons of African descent. 2. See Thurgood Marshall, The Constitution: A Living Document, 30 HOW. L.J. 623 (1987). 3. See Albert B. Crenshaw, Fear, Greed the Players in Pension Debate: Middle Ground Could Prove Elusive as Congress Considers Reforms After Enron, WASH. POST, Feb. 8, 2002, at E1. 4. See generally Paul Farhi, Feeding the Beast: The Greed That Lives (and Seems to be Thriving) in Us All, WASH. POST, Mar. 3, 2002, at F1. Adam Smith, capitalism’s founding philosopher, acknowledged in his landmark book, the “Wealth of Nations,” that a self-interested desire for gain drives capitalism and that this self-interest could be beneficial to everyone. Id. The great British economist, John Maynard Keynes, also noted, somewhat sarcastically, that “Capitalism is the extraordinary belief that the nastiest of men, for the nastiest of reasons, will somehow work for the benefit of us all.” Id. The United States has the largest economic disparity between rich and poor than any other industrial nation in the world. See ROBERT HEILBRONER & LESTER THUROW, ECONOMICS EXPLAINED 193 (1998). In Finland, the most egalitarian nation, the income of the top ten percent was 2.7 times greater than the total income of the bottom ten percent. In Norway it was 2.8 to 1; in the Netherlands, it was 2.9 to 1. Id. In Canada, it was 3.8 to 1; In the United States, it was 5.7 to 1. Id. The ever-present hope of Americans of achieving wealth and riches, however, largely explains why Americans—both black and white—are willing to tolerate the huge gap in economic equality between rich and poor. See John Derbyshire, Attack of the Wealth Eaters, NAT’L REV., Sept. 25, 2000, at 39, available at 2000 WL 11593985. Accordingly, most Americans tolerate a government that provides a less generous system of social services in exchange for lower 2004] 7 Howard Law Journal Article attempts to explain the lower economic status of black Americans in comparison to the white population in light of legal, historical, sociological, political, and economic considerations related to America’s legacy of slavery, segregation, and rampant discrimination against blacks. A snapshot of black America today reveals the following groups: a burgeoning population of college-educated, middle-class, and uppermiddle-class blacks who live in fear that those who control the levers of power may roll back programs that assisted them to achieve their current status;5 an insecure group of lower-middle-class blacks who lack college educations who work as cooks, truck drivers, secretaries, janitors, mail delivery personnel, factory workers, and similar positions;6 and a shrinking, but persistent, impoverished black underclass that comprises approximately twenty-eight to thirty-three percent of all black Americans.7 Recent studies indicate that the black lower middle-class and the so-called black underclass were unprepared for the shift in the American economy from an industrial labor economy to a knowledge- and technology-driven system spurred by competitive capitalism, globalism, and the off-shoring of jobs.8 The new economy, unlike the industrial labor economy, is one that values brains and education over brawn. taxes and reduced regulation. This, in turn, allows for a greater investment in capital to produce wealth, which will supposedly benefit all. Id. Fear, however, has often caused greedy, self-interested persons who benefit most from the American capitalistic system, to consider the negative consequences that can occur when great economic disparities exist between persons in society. Fear of societal upheaval has, undoubtedly, been an unspoken factor in the passage of legislation that benefits the poor and minorities. Professor Marcellus Andrews, Associate Professor of Economics at Wellesley College, argues that black people were completely unprepared for, and unable to take advantage of, the shift in structure of the American economy toward a knowledge and technology driven system, which offers huge rewards for brains over brawn. See MARCELLUS ANDREWS, THE POLITICAL ECONOMY OF HOPE AND FEAR: CAPITALISM AND THE BLACK CONDITION IN AMERICA 3 (1999). This, he maintains, is because black people largely remain an industrial labor force in a postindustrial country. Id. Professor Andrews also asserts that, in the post-industrial society of competitive capitalism and globalism, the preference of the wealthy in controlling the unwanted classes and the coming black rebellion is for incarceration and prison growth rather than the old policies of income redistribution and race-based redress. Id. at 126-28,142, 160, 175-84. Professor Andrews maintains that the old policies—income redistribution and race-based redress—are no longer tenable in an age of competitive capitalism, globalism, budget deficits, and capital mobility. Id. at 13839, 152-57. 5. Id. at 29-31. 6. Id. at 28-29. 7. Id. at 17-26. 8. See generally id.; infra note 4 and accompanying text; see also discussion infra note 762 with regard to the phenomenon of offshoring jobs. 8 [VOL. 48:1 Black Quest for Economic Liberty Suggested solutions for narrowing the economic gap between black and white Americans include programs to increase black entrepreneurship, community-based empowerment programs, vigorous enforcement of the anti-discrimination laws, better schools, and a concerted effort to encourage and fund blacks in obtaining college and specialized degrees. However, education is the key to the economic advancement of black Americans. A recent study indicates that the ever-widening gap between the richest and poorest households in America is largely based on the level of one’s educational attainment.9 Since 1973, the real wages of the least educated American workers have declined between twenty and thirty percent.10 Historical data reveals African American entrepreneurial activity at the incipient stages of the nation’s development in the 1600s.11 One historian determined that a conservative estimate of the collective wealth of the nearly 500,000 free African Americans on the eve of the Civil War was approximately $50 million.12 Studies indicate that in 2001, African Americans earned a whopping $601 billion.13 This figure exceeds the gross domestic product of all but fifteen nations of the 192 independent countries in the world.14 9. See D’Vera Cohn, D.C. Gap in Wealth Growing: Uneducated Suffer Most Study Shows, WASH. POST, July 22, 2004, at A1 (discussing a study by the D.C. Fiscal Policy Institute citing poor schooling and lack of a college or specialized education as fueling the widening gap between the richest and poorest households in Washington, District of Columbia and all major cities). See generally discussion infra text accompanying note 75. The study also noted a disturbing trend in the economy “in which people without college educations will be stuck at the bottom.” Id. 10. ANDREWS, supra note 4, at 176; see also discussion infra note 75. 11. LERONE BENNETT, JR., BEFORE THE MAYFLOWER 37-38 (Penguin Books 6th ed. 1993); ABRAM L. HARRIS, THE NEGRO AS CAPITALIST 5 (Urban Research Press, Inc. 1992) (1936); THE AFRICAN AMERICAN ALMANAC 4 (L. Mpho Mabunda ed., Gale 7th ed. 1997). These sources set forth the first documented entrepreneurial activity by a black person in America. The individual in question, a man by the name of Anthony Johnson, originally came to this country in 1620 or 1621 as an indentured servant from England. 12. HARRIS, supra note 11, at 10-11. 13. Lee Ann Jackson, Not Just For a Rainy Day, Getting African Americans to Start Saving One Dollar at a Time, BLACK ENTERPRISE, Jan. 2003, at 87; Krissah Williams, Radio One Branches out So Blacks Will Tune in, WASH. POST, Feb. 5, 2003, at E1 (citing statistics reported by Target Market News, an organization which studies the black consumer market). 14. There were 192 independent countries in the world as of 2002. See THE WORLD ALMANAC AND BOOK OF FACTS 857 (2003) [hereinafter WORLD ALMANAC 2003]. Of these 192 nations, only 15 had gross domestic products that exceeded the collective income of black Americans. In 2001, for example, only the United States ($10 trillion, 82 billion), China ($5 trillion, 560 billion), Japan ($3 trillion, 450 billion), India ($2 trillion, 500 billion), Germany ($2 trillion, 174 billion), France ($1 trillion, 510 billion), United Kingdom ($1 trillion, 470 billion), Italy ($1 trillion, 402 billion), Brazil ($1 trillion, 340 billion), Russia ($1 trillion, 200 billion), Mexico ($920 billion), Canada ($875 billion), South Korea ($865 billion), Spain ($757 billion), and Indonesia ($687 billion) had gross domestic products which exceeded the gross income of African Americans. Id. at 108. 2004] 9 Howard Law Journal African Americans have achieved these economic gains under difficult circumstances. American law freely allowed for others to enslave black people; segregate black people from the general economic marketplace; segregate black people from attending any establishment owned by whites; prohibit black individuals from having any social relationships with white persons; and discriminate against black persons in employment, ownership of property, and all other benefits, privileges, terms, and conditions afforded to persons of the dominant culture.15 While in Senegal, Africa in July 2003, President George W. Bush acknowledged the effect of these practices on black Americans today. He boldly and clearly stated that “[R]acial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times.”16 The American legal system’s long tolerance of such practices, both legislative and judicial, and the subtle continuation of these practices partially explains why African Americans remain mired at the bottom of the economic ladder today. Black individuals, when compared to their white counterparts, experience twice the rate of unemployment,17 have substantially lower personal and family income,18 are three times more likely to live in poverty,19 and possess only one-fifth of the net worth of whites.20 Additionally, 75% of black children are born to unwed mothers;21 33.33% of black men are under judicial supervision;22 black men constitute a majority of incarcerated persons although African Americans constitute only 12% of the population;23 and only 12% of black persons in high school are proficient in reading and math.24 “ConvenThe $601 billion total income of black Americans, however, is only 5.96% of the U.S. gross domestic product. This figure is well under the percentage of black Americans in the population, which is approximately 12%. Id. at 400 (indicating that black persons constitute approximately 12.3% of the population). 15. See generally BENNETT, JR., supra note 11, at 86-111, 255-96. 16. Colbert I. King, Happy Talk on Holiday, WASH. POST, July 12, 2003, at A17 (quoting President George W. Bush). 17. See ROBERT L. WALLACE, BLACK WEALTH, YOUR ROAD TO SMALL BUSINESS SUCCESS 5 (2002) [hereinafter WALLACE, BLACK WEALTH]. 18. Id. at 6-8. 19. Id. at 9-10. 20. Id. at 5-6. 21. Clint Bolick, Rule of Law: So Far, Clinton Can’t Kick His Quota Addiction, WALL ST. J., June 12, 1996, at A17. 22. Id. 23. N. Taifa, Criminal Sentencing, 12 UWLA L. REV. 158, 160 (1996). 24. Bolick, supra note 21. 10 [VOL. 48:1 Black Quest for Economic Liberty tional economists . . . forget that human beings will do almost anything to avoid viewing themselves as failures, even at the risk of destroying themselves and their communities.”25 Moreover, a cost/benefit analysis partially explains why some members of the black underclass who have experienced multiple generations of damage to their self-esteem turn to crime to win acceptance, achieve wealth, and gain prestige.26 However, statistics indicate that the median income of black families comprised of married couples is significantly closer to that of similarly situated whites than any other comparison. This strongly supports the conclusion that the traditional family unit composed of two parents “remains the cornerstone of societal structure”27 and demonstrates that “[i]t is statistically verifiable that marriage has a powerful wealth[-building] effect.”28 Children of single parent families are “five times more likely to be poor, four more times more likely to engage in criminal behavior, and three times more likely to become welfare recipients when they reach adulthood.”29 However, the two-parent black family has declined from 67% in 1960 to 33% in 1995. The white marriage rate has declined from 91% to 76% during the same time frame.30 Black persons have the lowest marriage rate of any group in America.31 Interestingly, the family instability that plagues today’s black family was essentially unknown among black migrant communities in the twentieth century. “In 1925 Harlem, 85[%] of black families were intact and single teenaged mothers were a rarity.”32 While it would be “absurd” to suggest that the failure to marry will result in poverty,33 the research clearly shows that “[g]etting married and maintaining a 25. ANDREWS, supra note 4, at 82. 26. Id. at 176. In economics, marginal analysis is used to determine how people should allocate their scarce resources (such as ability to work, see infra note 43) to get the most value. The formula for marginal analysis is “net benefits = total benefits – total costs.” See WALTER J. WESSELS, ECONOMICS 9 (1987). 27. WALLACE, BLACK WEALTH, supra note 17, at 8. The gap between black family income as a percentage of white family income increases from 64.3% to 87% when one compares black families without two parents and black families with two parents. Id. 28. See Michelle Singletary, Many Marriages Would Benefit From Sound Family Financial Plans, WASH. POST, Apr. 25, 2002, at E3 (referring to statement made by Matt Daniels, Executive Director for the Alliance for Marriage). 29. Id. (citing statistics compiled by the Alliance for Marriage). 30. See STEPHEN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE, ONE NATION INDIVISIBLE 237-38 (1997). 31. See id. 32. See Glenn C. Loury, Making It All Happen, in ON THE ROAD TO ECONOMIC FREEDOM, AN AGENDA FOR BLACK PROGRESS, 118 (Robert L. Woodson, ed., 1987). 33. See Singletary, supra note 28 (citing Matt Daniels, Executive Director of the Alliance for Marriage). 2004] 11 Howard Law Journal healthy union in which both partners communicate well about money can be financially beneficial.”34 The wide economic and related disparities which exist between blacks and whites today may have been substantially narrowed if, in the years following the Civil War, the U.S. Supreme Court had demonstrated that it valued true racial equality above maintenance of the status quo, and if Congress had continued its efforts to bring blacks into the mainstream notwithstanding the Court’s decisions. During this period, the Reconstruction Era, “emancipated slaves giddy with optimism opened businesses, banks, funeral homes, insurance companies, schools and newspapers.”35 However, in several instances, the U.S. Supreme Court undermined congressional efforts to achieve equality between black and white Americans by either invalidating federal laws or restrictively interpreting federal and state laws aimed at seeking the equality of black people.36 The Court ultimately crushed the economic aspirations of black people near the end of the nineteenth century by allowing states to exclude blacks from any interaction with the white population, a phenomenon directed exclusively to African Americans.37 Moreover, Congress did nothing to legislatively “fix” the statutes or to protect blacks from rampant discrimination by private businesses and individuals in view of the changed political climate.38 Consequently, private companies were free to blatantly discriminate against blacks in every conceivable way. The United States has excluded blacks from participation in the American economic system of capitalism for most of its history. To 34. Id. 35. See Teresa Wiltz, BET a Case of Selling Out or Selling Up? But Has the Network Sold a Bit of its Soul? WASH. POST, Nov. 4, 2000, at C1. 36. In The Civil Rights Cases, 109 U.S. 3 (1883), and United States v. Reese, 92 U.S. 214 (1876), the U.S. Supreme Court invalidated important civil rights statutes. Moreover, Congress did nothing to amend these statutes to make them pass constitutional muster. See discussion infra text accompanying notes 362-75. In The Slaughterhouse Cases, 83 U.S. 36 (1873), and in United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court weakened federal laws to the extent that they had little or no value in protecting the federal rights of U.S. citizens, and especially the recently freed slaves whom these laws were primarily intended to protect. Additionally, the Supreme Court, during this time period, overturned a state anti-discrimination law enacted to prevent the segregation of blacks. See Hall v. De Cuir, 95 U.S. 485 (1878). See discussion infra text accompanying notes 376-79. 37. See Plessy v. Ferguson, 163 U.S. 537 (1896). 38. See LAURENCE H. TRIBE, CONSTITUTIONAL LAW TREATISE 922 (3d ed. 2000). In 1894, for example, Congress repealed the most important Reconstruction civil rights legislation which the Supreme Court had not previously invalidated. This legislation included the suffrage protections of the Enforcement Act and the Force Act. Id. at note 12 (citing 1 B. SCHWARTZ, STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 830-34 (1970)). 12 [VOL. 48:1 Black Quest for Economic Liberty include a group in a capitalistic system, the following elements must exist:39 (1) the government must legally accord the right of ownership of private property to all persons;40 (2) prospective employees must have the legal right to work or not to work as they choose;41 (3) there must be a market system in which economic activities are left to men and women freely responding to the opportunities and discouragements of the marketplace, not to the established routines of tradition or the dictates of someone’s command;42 and (4) the market must allow for a regular flow of wealth into production through a flow of savings and investment organized through banks and other financial companies to which borrowers pay interest as the reward for using the lenders wealth.43 Accordingly, the hallmarks of capitalism consist of government protection of the freedom of economic contract, government protection of all persons’ rights to own private property, and government protection of an individual’s freedom to choose whether to make business decisions free of the dictates of others or the routines of tradi39. See HEILBRONER & THUROW, supra note 4, at 11-17. 40. Id. at 12. 41. Id. at 12-13. 42. Id. at 14. 43. Id. Economics is the study of the allocation of the scarce means of production toward the satisfaction of human wants. See STEVE SLAVIN, ECONOMICS: A SELF TEACHING GUIDE 35 (2d ed. 1999). The scarce means of production are land, labor, capital, and entrepreneurial ability. Id. at 34. Land is valuable primarily because of its location and its scarcity. There is a finite amount of land and the most desirable land is relatively scarce. “Land can also be expensive because oil or gold or another precious commodity is buried under it.” Id. “Economists consider virtually all paid work �labor’.” Id. Labor is scarce �[b]ecause only a certain number of people are physically, mentally, and emotionally capable of doing the work that needs to be done”. Some types of labor, like a doctor’s or a plumber’s, are so scarce that they are very expensive. Id. In an interesting article, one professor argues that the notion of “racial scarcity” in the labor context “creates a market bias for white labor in certain occupations that precedes individual preferences.” The Professor then states that this “market bias provides context for individual discriminatory acts and means that white workers enjoy a hiring advantage in certain sectors and that white work, even if it is underpaid, is overpriced relative to non-white work.” See, e.g., christi cunningham, Identity Markets, 45 HOW. L.J. 491, 494-95 (2002). The term capital, in economics, refers to “all the plant and equipment used to turn out the goods and services that we produce. Capital, then, includes factories, machinery, farm equipment, shopping malls, office buildings, computer systems, and all of the tools of production and distribution.” Capital, like land and labor is limited in quantity. Id. Entrepreneurial ability is a scarce means of production because an entrepreneur “recognizes an opportunity to make a profit, raises the money to open a business, and eventually hires managers to run that business. The entrepreneur is able to combine land, labor, and capital in a way that will make money.” Id. at 35. Entrepreneurial ability is a resource because “three out of every five new businesses in the United States fail within their first two years of operation.” Id. 2004] 13 Howard Law Journal tion.44 Government-sanctioned slavery of blacks, government approval of the segregation of black persons from the rest of society, private and governmental discrimination against blacks in employment, housing, contracting, borrowing, and other aspects of life make clear that America excluded black Americans from fully participating in the benefits of the economic system of capitalism. The U.S. Supreme Court continues to have a significant role in either assisting or frustrating the long-delayed inclusion of black Americans into all aspects of the American economic system. For example, in Grutter v. Bollinger,45 the Court recently decided that an educational institution’s use of racial diversity as a factor in the admissions’ process is constitutional in light of the reality that blacks are still recovering from the racial caste system the Court endorsed in 1896 and only overturned in 1954.46 The Court also based its decision on the observation that admission to selective, elite institutions of higher education “is a prelude to power, and that a racially and ethnically mixed leadership . . . . is essential to the public’s support of American institutions.”47 44. See HEILBRONER & THUROW, supra note 4, at 16-17. 45. 539 U.S. 306 (2003). 46. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court ended the system of government-authorized racial separation which it had earlier permitted in its decision in Plessy v. Ferguson, 163 U.S. 537 (1896). The Court’s 2003 decision in Grutter noted that racial equality is still a distant dream. 539 U.S. at 343. 47. Grutter, 539 U.S. at 332; see also Charles Lane, In Court’s Ruling, a Nod to Notion of a Broader Elite, WASH. POST, June 25, 2003, at A1. The Supreme Court, in Grutter, ruled 5-4 that that the University of Michigan Law School’s approach to enrolling a “critical mass” of blacks, Latinos, and Native Americans, under which the school considered each applicant individually and did not set explicit quotas was constitutional. Grutter, 539 U.S. at 328-30; see also Charles Lane, Affirmative Action for Diversity Is Upheld, in 5 to 4 Vote, Justices Approve U-Mich. Law School Plan, WASH. POST, June 24, 2003, at A1 [hereinafter Lane, Affirmative Action for Diversity]. The Supreme Court reviews all governmentally imposed racial classifications under the Equal Protection Clause under a strict scrutiny standard. To withstand strict scrutiny analysis, the use of race by a state or federal governmental entity in its university admission’s or other programs must employ “narrowly tailored measures that further compelling governmental interests.” See Grutter, 539 U.S. at 326; see also Charles Lane, Highlights of the Decisions in Grutter v. Bollinger and Gratz v. Bollinger, WASH. POST, June 24, 2003, at A8 [hereinafter Lane, Highlights] (setting forth highlights from the majority and dissenting opinions). Justice O’Connor, in Grutter, cited former Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U.S. 265, 316-19 (1978) for the holding that diversity can be a “compelling interest” capable of overriding the Constitution’s usual ban on governmental racial classifications. Grutter, 539 U.S. at 328-29. Justice O’Connor went on to hold that the law school’s methods of reviewing individual applicants—which she described as “highly individualized” and “holistic”—were “narrowly tailored” to meet that interest. Id. at 337; see also Lane, Affirmative Action for Diversity, supra; Lane, Highlights, supra. However, in Gratz v. Bollinger, 539 U.S. at 244, 270, the Court rejected the undergraduate affirmative action program which gave every single member of an “underrepresented minority” 14 [VOL. 48:1 Black Quest for Economic Liberty The majority in Grutter recognized that racial discrimination has not ceased and that the playing field is not level. This recognition was manifested by Justice O’Connor’s hope that affirmative action would not be necessary twenty-five years from the date of the decision.48 Justice Ginsburg elaborated on this point in a separate concurring opinion in Grutter and stated “one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.”49 Additionally, the extent to which private and public entities may use affirmative action in the employment process50 and the award of government contracts51 remain hot-button issues. The desire for economic prosperity and security underlie both issues. group an automatic 20-point bonus on the 150-point scale used to rank applicants. The Court viewed the selection process in that case as too mechanistic and not “narrowly tailored” enough to further the compelling governmental interest in achieving diversity on campus. Id. at 270-75; see also Lane, Affirmative Action for Diversity supra. 48. Justice O’Connor, in her majority opinion in Grutter, stated that “We expect that [twenty-five] years from now, the use of racial preferences will no longer be necessary . . . .” Grutter, 539 U.S. at 343; see also Charles Lane, Affirmative Action for Diversity is Upheld: Court Backs Affirmative Action but Envisions Its End, WASH. POST, June 24, 2003, at A9. 49. See Grutter, 539 U.S. at 346 (Ginsburg, J., concurring); see also Lane, supra note 48. Justice Ginsburg, speaking more pointedly in her dissent in the companion case of Gratz v. Bollinger, noted that blacks “historically have been relegated to inferior status by law and social practice” and that the affirmative action measure in the Gratz case was designed to “hasten the day when entrenched discrimination and its aftereffects have been extirpated.” Gratz, 539 U.S. at 301-03; see also Lane, supra note 48. 50. Regarding public entities, in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), the Supreme Court ruled 5-4 that a public school board’s desire to maintain a sufficient number of minority teachers as role models did not justify a policy of laying off white teachers with more seniority than minority teachers who kept their jobs. Regarding private entities, in United Steel Workers v. Webber, 443 U.S. 193 (1979), the Supreme Court upheld a collective bargaining agreement that set a quota on promotions for black aluminum plant workers. The Court held that the Civil Rights Act of 1964 did not prohibit voluntary private agreements to help blacks when the agreements were temporary, not designed to maintain racial balance, and necessary to eliminate a manifest racial imbalance in traditionally segregated job categories. 51. In City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the U.S. Supreme Court struck down a Richmond, Virginia affirmative action plan that set aside thirty percent of city contracts for minority firms. The Court held that state and local race-conscious programs to benefit minorities must face the same “strict scrutiny” under the Constitution as discrimination against minorities. In Metro Broadcasting v. FCC, 497 U.S. 547 (1990), the Supreme Court held that the federal government may take race into account when distributing broadcast licenses to ensure diversity on the air waves. However, the Court held that only an intermediate scrutiny should apply to affirmative action plans authorized by Congress in the exercise of its powers to remedy discrimination under Section 5 of the Fourteenth Amendment. In Adarand Constructors, Inc. v. Pena, ˜ 515 U.S. 200 (1995), the Supreme Court, with Justice Clarence Thomas having replaced Justice Thurgood Marshall on the Supreme Court, overruled Metro Broadcasting 5-4, holding that “strict scrutiny” applies to federal affirmative action programs. 2004] 15 Howard Law Journal During the 1800s and well into the twentieth century, economists, using Western European and American whites as the standard, assumed that genetic inferiority was the reason for the low economic status of African Americans, Eastern Europeans, and other minorities.52 Institutional economists such as Gunnar Myrdal dismantled these commonly held assumptions during the twentieth century by showing that a culture of poverty, discrimination, and oppression were the primary cause of the lower economic status of African Americans.53 Nevertheless, there are some economists today who believe that laws prohibiting race discrimination are unnecessary and inefficient in a free market system.54 A chorus of critics, both black and white, has increasingly come to view African Americans and black culture as the primary cause of the ongoing economic disparity between blacks, whites, and others.55 52. Robert Cherry, The Culture of Poverty Thesis and African Americans: The Work of Gunnar Myrdal and Other Institutionalists, 29 J. ECON. ISSUES 1119 (1995). 53. Id. However, the genetic inferiority argument persists. See ANDREWS, supra note 4, at 32-38 (discussing RICHARD HORNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994)). 54. See Micheal J. Zimmer et al., Are Antidiscrimination Laws Necessary?, in CASES AND EMPLOYMENT DISCRIMINATION 35, 35-55 (5th ed. 2000) (reproducing RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAW 20-58 (1992)). In the excerpts from this portion of Epstein’s book, Epstein, an economist, argues, like Milton Friedmen, that absent government compulsion as in the pre-1964 South, market forces alone are all that is necessary to generate economic progress for blacks. ZIMMER, supra, at 36, 45. Epstein’s position is based on John Locke’s theory of property—that each person is the exclusive owner of his labor. Id. at 37. The self-ownership of individual labor forms the cornerstone for freedom of contract in labor markets, with immediate political relevance to the antidiscrimination laws. All individuals own their own labor and hence can act as both producers and consumers in a relatively competitive labor market. Id. at 37-38. Epstein argues that in a world of free access to open markets, systematic discrimination even by a large majority offers little peril to the isolated minority. Unconstrained by external force, members of minority groups are free to search for jobs in those firms that do want to hire them. Id. at 40. Epstein, citing GARY BECKER, THE ECONOMICS OF DISCRIMINATION ch. 3 (2d ed. 1971), notes that an employer’s taste for discrimination, even if not rational, may place those who hold it at a substantial cost disadvantage relative to their competitors. See ZIMMER, supra, at 41. In Epstein’s opinion, the pre-1964 South cannot be fairly characterized as a market system but a totalitarian system in which discriminatory attitudes were strongly reinforced by a pervasive system of both governmental and extralegal sanctions imposed upon anyone who opposed the racist consensus. Id. (citing Professor Gregory S. Crespi, Market Magic: Can the Invisible Hand Strangle Bigotry? 72 B.U. L. REV. 991, 1002 (1992) (summarizing Epstein’s views)). Epstein, however, acknowledges Title VII’s initial gains, unlike the Chicago School orthodoxy. Id. (citing John J. Donahue III, Advocacy Versus Analysis in Assessing Employment Discrimination Law, 44 STAN. L. REV. 1583, 1593 (1992)). However, Epstein takes the position that Title VII is no longer necessary as long as state and local governments do not return to the days of de jure segregation and toleration of private violence. Zimmer, supra, at 49. 55. See, e.g., JOHN H. MCWHORTER, LOSING THE RACE: SELF-SABOTAGE IN BLACK AMERICA, (2000); see also ANDREWS, supra note 4, at 38-45 (discussing with disapproval DINESH D’SOUZA THE END OF RACISM: PRINCIPLES FOR A MULTIRACIAL SOCIETY (1995) (taking the position that blacks are the victims of their own bad culture)). 16 [VOL. 48:1 Black Quest for Economic Liberty Some even argue that an inferior black culture is the reason for all the social problems facing many poor African Americans and that segregation was a well-intentioned system created to “protect” blacks from the real racists.56 Additionally, middle- and upper-income blacks, who compromise approximately two-thirds of all blacks, have increasingly become more vocal in their criticisms of the behavior and attitudes of blacks of lower socio-economic status.57 However, many middle- and upper-income blacks do not believe this criticism is justified.58 Some commentators believe that the most effective way for African Americans to achieve true economic liberty is by assimilating more completely into the dominant culture.59 For example, Gunnar Myrdal, who wrote in the late 1930s and early 40s concerning the plight of blacks during the tough days of segregation, noted the importance of improving the educational level of blacks. To Myrdal, however, “Education mean[t] an assimilation of white American culture. It decrease[d] the dissimilarity of the Negroes from other Americans.”60 Myrdal noted “there is no magic either in mixed schools or segregated schools” and emphasized that blacks needed good schools regardless of their race.61 Today, statistics indicate that black students 56. See Koteles Alexander, Adarand: Brute Political Force Concealed as a Constitutional Colorblind Principle, 39 HOW. L.J. 367, 380 (1995) (taking issue with the views of D’SOUZA, supra note 55). Alexander also states that the political majority’s use of the sciences to morally justify the exclusion of racial minorities from economic benefits and opportunities were “never scientifically successful, although mythologically successful.” Id. at 379-80. 57. See Jonetta Rose Barras, United We Stood, but Divisions Now Show; Cosby Ignited a Debate About Class. We Need to Keep Talking, WASH. POST, June 27, 2004, at BO3; Hamil R. Harris, Some Blacks Find Nuggets of Truth in Cosby’s Speech, Others Say D.C. Remarks About Poor Black Went Too Far, WASH. POST, May 26, 2004, at B5. 58. See ANDREWS, supra note 4. at 1-6, 26-29, 48, 53, 138-39, 152-57 (competitive capitalism, globalism and racism have combined to limit the access of poor blacks to education, good jobs, health care and good lives); see also Barras, supra note 57; Harris, supra note 57. 59. See E. FRANKLIN FRAZIER, BLACK BOURGEOISE 153 (1997); 1 GUNNER MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 304 (1998) [hereinafter MYRDAL 1]. Chapter eight of Frazier’s book is entitled Negro Business: A Social Myth. Id. ch. 8. Also, see the views of W.E.B. Du Bois in Lateef Mtima, African American Economic Empowerment Strategies for the New Millennium—Revisiting the Washington-Du Bois Dialectic, 42 HOW. L.J. 391, 400 (1999) (citing to W.E.B. Dubois, The Talented Tenth, in THE NEGRO PROBLEM: A SERIES OF ARTICLES BY REPRESENTATIVE NEGROES TODAY (1903), reprinted in LESLIE H. FISHEL & BENJAMIN QUARLES, THE NEGRO AMERICAN 367-68 (1967)). 60. 2 GUNNER MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 879 (1998). 61. Id. at 902; see Walter R. Allen & Joseph O. Jewell, The Miseducation of Black America: Black Education Since an American Dilemma, in AN AMERICAN DILEMMA REVISITED, RACE RELATIONS IN A CHANGING WORLD 181 (Obie Clayton ed., 1996) (noting that Myrdal “Like most of the social scientists of his era, believed in assimilation as the “final solution” to the race problem). Allen and Jewell state that “Myrdal did not anticipate the black political cultural 2004] 17 Howard Law Journal who attend black colleges are more likely to graduate than those who attend white institutions.62 Others believe the ultimate solution for black economic equality is through entrepreneurship.63 The proponents of this approach believe that entrepreneurship will bring financial independence, transmission of black wealth to successive generations of black persons, and is more likely to create a class of professionally educated offspring.64 A third position suggests that a blending of the assimilation and entrepreneurial theories is the better approach.65 Perhaps, this position is the most realistic alternative. Although black people attempt to engage in entrepreneurial activities at a greater rate than their white counterparts,66 the reality is that “three out of every five new businesses in the United States will fail within the first two years of operation.”67 Nevertheless, black entrepreneurship remains underdeveloped in America when compared to the majority population.68 Therefore, existing efforts to increase the number of thriving blackowned business should remain a priority.69 This Article canvasses the legal, historical, and other considerations that help to explain the current economic condition of African Americans in this country. The legal issues, however, are at the bottom of any analysis of this topic whether it be issues of sociology, economics, history, political science, or other disciplines. This Article maintains that any decision by the U.S. Supreme Court or any other movement of the 1960’s and 1970’s, which not only advocated community control of educational institutions but also questioned the validity of the broader American culture and its relevance for black students.” Id. at 182. They also note that Myrdal’s study relative to education “failed to anticipate the intractability of American racial prejudice and discrimination.” Id. at 185. 62. See THERNSTROM & THERNSTOM, supra note 30, at 194. Accordingly, black colleges remain a significant avenue of social and economic mobility for black Americans. Id. 63. JOHN SIBLEY BUTLER, ENTREPRENEURSHIP AND SELF-HELP AMONG BLACK AMERICANS: A RECONSIDERATION OF RACE AND ECONOMICS (1991) [hereinafter BUTLER, ENTREPRENEURSHIP]; WALLACE, BLACK WEALTH, supra note 17; John Sibley Butler, Myrdal Revisited: The Negro in Business, the Professions, Public Service, and Other White Collar Occupations, in AN AMERICAN DILEMMA REVISITED, RACE RELATIONS IN A CHANGING WORLD, supra note 61, at 142-45, 164-65 [hereinafter Butler, Myrdal Revisited]. 64. Butler, Myrdal Revisited, supra note 63, at 142-45 and 164-65; see discussion infra notes 574-77 and accompanying text. 65. Mtima, supra note 59, at 393. 66. See discussion infra text accompanying notes 786-89. 67. See STEVE SLAVIN, ECONOMICS: A SELF TEACHING GUIDE 35 (John Wiley & Sons, Inc. 2d ed. 1999). 68. See discussion infra text accompanying notes 786-89. 69. See discussion infra text accompanying notes 682-90, 740-55, 949-51 with respect to programs designed to help blacks and other minorities succeed in establishing, maintaining, and growing their business enterprises. 18 [VOL. 48:1 Black Quest for Economic Liberty entity with decision-making power which suggests the history of pervasive racial discrimination in the United States has ended will only prolong the day of economic liberty for many African Americans. Until African Americans and other disadvantaged groups become more connected to the American economic system, increases in the crime rate, continued social imbalance, and racial distrust should be expected. This Article strongly suggests that African Americans must attempt to become economically independent, preferably as entrepreneurs, to the greatest extent possible regardless of the likelihood of business failure. The statistics suggest that the families of entrepreneurial African Americans fare better than those who assimilate into the job structure of the dominant culture. Accordingly, taking a chance in starting a business is probably better than never testing the waters.70 The benefits flowing from the civil rights movement have not been distributed evenly among the entire black community.71 However, innovative federal initiatives such as the Empowerment Zone and Enterprise Community Program72 have helped inner cities and their residents outpace the nation between the 1990 and 2000 census in population growth, household income, housing unit growth, high school graduates, college graduates, home ownership, and poverty reduction.73 Nevertheless, competitive capitalism, globalism, and racism have combined to limit the access of poor blacks to education, health care, and good jobs.74 Accordingly, this Article contends that the American brand of capitalism must be modified to lessen the gap between rich and poor. This goal can be accomplished through innovative efforts to improve and provide access to the education system and the continuation of programs to assist blacks in employment, business de70. See discussion infra notes 572-73, and accompanying text. 71. See discussion infra text accompanying notes 756-62. 72. See AFRICAN AMERICAN DESK REFERENCE 245 (Philip Koslow ed., 1999). 73. See Aaron Bernstein et al., An Inner City Renaissance, BUS. WK., Oct. 27, 2003, at 64. The authors also note that gentrification explains only a small part of this development. Id. at 68. They also note that, “While the inner city poverty rate of [thirty-one percent] is nearly three times the national average, the 6.5 million poor people who live there represent less than a fifth of the country’s 34.6 million poor.” Id. Approximately 21 million people live in the 100 largest inner cities. Id. at 66. Also noteworthy are the efforts of black churches through a variety of church-sponsored community empowerment programs. See Bill Alexander, The Black Church and Community Empowerment, in ON THE ROAD TO ECONOMIC FREEDOM, AN AGENDA FOR BLACK PROGRESS, supra note 32, at 45-69. 74. See ANDREWS, supra note 4, at 1-6, 24-26, 48, 53, 138-39, 152-57. 2004] 19 Howard Law Journal velopment, and community-based empowerment programs. Research demonstrates a clear relationship between investments in education and economic well-being. Thus, education is ultimately the key.75 I. THE BLACK ECONOMIC JOURNEY FROM THE 1600S TO THE CIVIL WAR A. Role of Legal Principles In The Economic Journey Of African Americans The late Justice Thurgood Marshall, in a major speech in 1987, observed the striking role legal principles have played in determining the economic, political, social, and legal condition of black people in the United States.76 Justice Marshall observed that it was law that enslaved, emancipated, disenfranchised, and segregated blacks.77 It took a bloody Civil War, constitutional amendments, and the lapse of approximately one-hundred years subsequent to the Civil War before the United States took steps to provide blacks with such basic rights as the right to equality in education, housing, employment, voting, and public accommodations.78 Justice Marshall noted that, contrary to popular opinion, the founding fathers, in drafting the Constitution, created a flawed document.79 In Justice Marshall’s view, the founding fathers’ foresight and sense of justice was troubling and not particularly profound.80 He noted that economic interests of the Northern and Southern states led the Constitution’s framers to a compromise that allowed the Southern states to continue importing slaves to the United States until 1808.81 The first three words of the Constitution’s preamble, “We the Peo75. Education remains the key to economic equality. See THERNSTROM & THERNSTROM, supra note 30, at 191. There is a clear economic relationship between investments in education and economic well-being. See ANDREWS supra note 4, at 72-75 (citing GARY BECKER, HUMAN CAPITAL: A THEORETICAL AND EMPIRICAL ANALYSIS, WITH SPECIAL REFERENCE TO EDUCATION (1975)). Moreover, studies indicate that the inflation-adjusted wages of young high school graduates declined by eighteen percent between 1963 and 1992. In contrast, the inflation adjusted wages of college graduates rose eight percent during this general period while the wages of male high school graduates of all ages fell by forty percent. See ANDREWS, supra note 4, at 147; see also Cohn, supra note 9. “For better or worse, university education is a gateway to authority in a complex, hierarchical, technology-driven society that distributes power and prestige on the basis of achievement.” ANDREWS, supra note 4, at 170. 76. See Marshall, supra note 2. 77. Id. at 627. 78. Id. at 626-27. 79. Id. at 624. 80. Id. 81. Id. at 624-25. 20 [VOL. 48:1 Black Quest for Economic Liberty ple,” did not include black people although they were counted for representational purposes as three-fifths of a white man. Moreover, nearly seven decades after the Constitutional Convention, the Supreme Court made clear that the founding fathers never intended persons of African descent to be citizens of the United States. Justice Marshall, citing the Supreme Court’s decision in Dred Scott v. Sandford,82 noted that the framers of the Constitution considered blacks to be no more than “an article of property” and had “no rights which the white man was bound to respect.”83 The true miracle of America, Justice Marshall stated, was not the birth of the Constitution. The true miracle, which resulted in the America we know today, was the evolution of the Constitution as a living document and the laws passed pursuant to it after much suffering, struggle, bloodshed, and sacrifice.84 This Article chronicles that evolution and the current economic impact of those policies on African Americans today. B. First Black Entrepreneur and Other Pre-Civil War Entrepreneurs Non-black scholars have failed to discuss, cite, or otherwise mention the historical roots of black entrepreneurship and business enterprise in America when writing about how distinct ethnic groups have adjusted to American capitalism through entrepreneurial endeavors.85 Yet, an understanding of the early history of black business enterprise and the considerable obstacles that black business persons had to overcome provides valuable information and perspective to the population of black Americans who seek to adjust to the American capitalistic economy through entrepreneurship. Additionally, exposure to this information removes a cloud of ignorance and misunderstanding with respect to the white population as to why black people remain in a catch-up stage in establishing business enterprises in the twenty-first century. The first group of black indentured servants arrived in colonial America in 1619.86 These black indentured servants had approximately identical economic opportunities as their white counterparts 82. 83. 84. 85. 86. 2004] 60 U.S. (19 How.) 393 (1856). Marshall, supra note 2, at 626. Id. at 627. See infra text accompanying notes 402-15. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 3. 21 Howard Law Journal after fulfilling the terms of their indentures. Colonial documents indicate that they engaged in entrepreneurial activities, voted, and participated in public life.87 The first black entrepreneur was probably Anthony Johnson. Mr. Johnson arrived in Jamestown, Virginia in approximately 1620 or 1621 as an indentured servant from England. Mr. Johnson worked out the term of his indenture, accumulated property, had black and white servants, and established one of America’s first black communities.88 Official records of the 1650s document this entrepreneurial activity.89 Virginia did not deny the right to vote to blacks until 1670.90 Both free blacks and slaves engaged in business enterprise prior to the civil war.91 John Baptiste Du Sable, Paul Cuffe, Emmanuel, Thomas Downing, and Robert Bogle are notable examples of black persons who engaged in entrepreneurial activities in America during the 1700s and early 1800s. John Baptiste Du Sable was a black pioneer, entrepreneur, and capitalist.92 Du Sable was a leader in the Westward movement and the founder of Chicago93 in the 1770s.94 He built the first home and opened the first business there.95 Some commentators have suggested there are “indications” that white settlers, in keeping with the prevalent racial attitudes prevalent of that time, isolated Du Sable.96 Paul Cuffe, born near Dartmouth, Massachusetts in 1759,97 engaged in entrepreneurial activities from the 1770s to approximately 1817 as a ship builder, ship captain, builder, and African colonizer.98 “Mr. Cuffe, in 1797, built a wharf and warehouse on the Westport River in Massachusetts.99 By 1806, he owned one ship, two brigs, and several smaller vessels.”100 Mr. Cuffe commanded black crews that made voyages to Europe, Russia, Africa, and the West Indies. 87. Id. 88. Id. at 4. 89. Id.; see also BENNETT, JR., supra note 11, at 37; BUTLER, ENTREPRENEURSHIP, supra note 63, at 35-36. 90. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 4. According to BENNETT, JR., supra note 11, at 37-38, Virginia did not deny the right to vote to blacks until 1723. 91. BUTLER, ENTREPRENEURSHIP, supra note 63, at 36. 92. BENNETT, JR., supra note 11, at 84; Butler, Entrepreneurship, supra note 63, at 36. 93. BENNETT, JR., supra note 11, at 79. 94. Id. at 84. 95. Id. (noting that there is abundant evidence supporting this claim). 96. Id. at 84-85. 97. Id. at 446. 98. See generally BENNETT, Jr., supra note 11, at 79; HARRIS, supra note 11, at 23-25. 99. BENNETT, JR., supra note 11, at 78. 100. Id. 22 [VOL. 48:1 Black Quest for Economic Liberty In 1811, Mr. Cuffe traveled to Sierra Leone “attending to missionary duties . . . and exploring the country to determine what opportunities it offered the free Negroes for trade and colonization. He hoped to encourage trade relations between Sierra Leone and America and England.”101 Mr. Cuffe, aware of the sentiment held by some blacks that white America would never change, carried thirtyeight blacks to Sierra Leone in his own ship in 1815.102 Interestingly, it was anti-black and pro-slavery whites, not blacks, who were behind the movement to re-settle free blacks to Liberia in the wake of the Gabriel Prosser slave uprising in Virginia.103 Apparently, most free blacks believed that a mass exodus of blacks would strengthen slavery in America and deprive slaves of support and sustenance from free blacks.104 Cuffe never migrated to Africa and died in Massachusetts in 1817.105 He was the forerunner of a large number of black Americans who attempted to mix their entrepreneurial efforts with racial progress.106 Free blacks engaged primarily in small service businesses.107 In the North, free blacks ran popular eating and drinking establishments that, in the 1700s and early 1800s, catered to a white clientele.108 For example, in the middle 1700s, an emancipated slave named Emmanuel established the first oyster and ale house in Providence, Rhode Island. Emmanuel was the forerunner of a large number of black saloon keepers, restaurant owners, and caterers who followed in the next century.109 Emmanuel, at his death in 1769, left an estate of valued at 539 pounds and 10 shillings.110 In 1800, Thomas Downing, in the footsteps of Emmanuel, established and operated a restaurant near Wall Street in New York. Downing’s restaurant served New York’s professional and commercial 101. HARRIS, supra note 11, at 24. 102. BENNETT, Jr., supra note 11, at 145-46; Harris, supra note 11, at 24-25. 103. BENNETT, JR., supra note 11, at 144-45. For example, the Maryland legislature fearing the increase in the population of free slaves because of free blacks purchasing the freedom of their relatives, passed a statute providing that all slaves freed thereafter should be exiled to Liberia. HARRIS, supra note 11, at 5. In 1800, Gabriel Prosser, a slave insurrectionist, planned to lead thousands of slaves in an attack on Richmond, Virginia. The plan failed and authorities arrested, tried, and hung Prosser and fifteen of his followers. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 11. 104. BENNETT, JR., supra note 11, at 146. 105. Id. at 145-46. 106. HARRIS, supra note 11, at 25. 107. Id. at 1-12. 108. Id. at 14. 109. Id. 110. Id. 2004] 23 Howard Law Journal classes at this location for over thirty years.111 George Bell, George Alexander, and Austin Steward operated similar businesses in nearby neighborhoods.112 Similarly, in the early 1800s, caterers Prosser and Minton served the leading citizens of Philadelphia.113 The restaurant business was a significant source of business for black people throughout the North during this period.114 Free blacks in the South had practically no competition in operating personal service enterprises “where their social position had long habituated them to the obsequiousness and humility necessary for conducting this type of business.”115 Black enterprises operating barbershops, livery stables, and tailoring shops provided a source of considerable income for free blacks in the South prior to the Civil War.116 Moreover, knowledge and performance of skilled trades in the South—for example, carpentry, the blacksmith trade, shoemaking— were concentrated almost exclusively among blacks.117 White masters forced their servants to become proficient carpenters, blacksmiths, shoemakers, and tailors to avoid the expense of obtaining white labor to perform these skilled services. In the North, free blacks did not engage in the skilled trades to the same extent as in the South.118 However, in 1840, free blacks in New York City “were publishing a Newspaper, The Colored American . . . operating two first class restaurants in the downtown financial district, six boarding houses, a hairdressing establishment, two dry good stores, two coal yards, four pleasure gardens, a confectionery and a fruit store.”119 Free blacks, however, entered into businesses that represented virtually every sector of the business community. For example, Henry M. Collins of Pittsburgh, Pennsylvania, was engaged in real estate brokerage and development.120 Samuel T. Wilcox, a merchant in Cincinnati, Ohio built a wholesale grocery store in 1850 and soon became 111. 112. 113. 114. 115. 116. 117. 118. 119. Id. Id. Id. BUTLER, ENTREPRENEURSHIP, supra note 63, at 42. HARRIS, supra note 11, at 12. Id. at 12-13. BUTLER, ENTREPRENEURSHIP, supra note 63, at 44. HARRIS, supra note 11, at 11. BUTLER ENTREPRENEURSHIP, supra note 63, at 11 (citing GEORGE E. HAYNES, THE NEGRO AT WORK IN NEW YORK CITY 96). 120. HARRIS, supra note 11, at 17 (citing MARTIN ROBISON DELANEY, CONDITION, ELEVATION, EMIGRATION AND DESTINY OF THE COLORED PEOPLE OF THE UNITED STATES 104 (1852)). 24 [VOL. 48:1 Black Quest for Economic Liberty the largest dealer in provisions in the city; he invested heavily and profitably in real estate and had a fairly sizeable net worth upon his death.121 In the 1840s, Stephen Smith of Columbia, Pennsylvania, was one of the wealthiest black men in the country before the Civil War. He and William Whipper engaged in the coal and lumber business. Smith individually owned approximately fifty houses in the city of Philadelphia, and several more in Lancaster and Columbia, Pennsylvania.122 By 1864, statisticians placed Smith’s net worth at $500,000.00.123 Henry Boyd, who was in the manufacturing business, was born a slave in Kentucky on May 14, 1802, and learned cabinetmaking from one of his masters. In 1826, at the height of his trade, he settled in Cincinnati, formed a partnership with a white man, manufactured all types of furniture, and hired twenty to fifty black and white workmen. Boyd also invented a machine for turning the rails of a bed but failed to obtain a patent. His factory was equipped with improved machinery, and the Boyd Bedstead had a national market.124 “His success aroused the antagonism of his fellow townsmen [who] burned him out four times. Three times he rebuilt, but the fourth blaze compelled him to yield since insurance companies failed to insure the risk.”125 James Forten of Philadelphia, who lived between 1766 and 1841, operated a major manufacturing firm that made sails; by 1829, his manufacturing operations employed approximately forty black and white employees. Forten was reputed to be worth $100,000.00 in 1832.126 A few enterprising slaves were allowed to engage in business ventures through the paternalism of liberal masters.127 Due to their status, these slaves could not become true entrepreneurs. They did, however, use what earnings they generated to purchase freedom for 121. Id. at 19, 28. 122. BUTLER, ENTREPRENEURSHIP, supra note 63, at 39; HARRIS, supra note 11, at 21, 27. 123. BUTLER, ENTREPRENEURSHIP, supra note 63, at 39; HARRIS, supra note 10, at 27. 124. HARRIS, supra note 11, at 22. 125. Id. at 22. BUTLER, ENTREPRENEURSHIP, supra, note 63, at 43 (commenting on this event, observed that: “[T]he experiences of Henry Boyd are more than interesting. They alert us to a very important aspect of competition within the American business world—namely, the tendency of Euro-Americans to view significant profits in an enterprise to be reserved for themselves. Their reaction to Boyd’s success repeats itself systematically in the literature on race and business experience.”). 126. HARRIS, supra note 11, at 7. Forten’s enterprise, however, faced great odds in adjusting to steam transportation, which was already proving itself to be adaptable to river and ocean commerce. Id. at 21; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 39. 127. BUTLER, ENTREPRENEURSHIP, supra note 63, at 36. 2004] 25 Howard Law Journal their families and themselves.128 Lunsford Lane,129 Robert Gordon,130 Robert Clark,131 and Free Frank132 are examples of slaves who used tips from providing services to whites to purchase their freedom and start business enterprises. The story of Lunsford Lane, as recounted by Abram Harris in his book, The Negro as Capitalist,133 is a particularly illuminating example of the ingenuity and resourcefulness of slaves who used their tips to purchase their freedom and pursue entrepreneurial endeavors. Lane’s experiences also portray the difficulties these men faced134 in achieving a degree of economic security during the era of slavery before the Civil War. Abram Harris describes135 the journey of Lunsford Lane as follows: Lunsford Lane was the house servant of Sherwood Haywood, a prominent citizen of Raleigh, North Carolina. Lane purchased practically all of the food that the household required. Often he secured bargains on his own account when goods were exceptionally cheap and these he resold later at a profit to himself. His ability as a waiter became known throughout the city and he was frequently called upon to attend evening parties. He was paid well for these services. Another source of income was the tips given him by his master’s guests. During his free hours he ran errands for the merchants of the city and did general cleaning around the stores. When the legislature was in session he earned small sums by performing menial services for the delegates. His first business venture was that of furnishing the members of the legislature with smoking tobacco. His father had taught him a process of preparing tobacco in a way that made it unusually pleasant and he sold large quantities of the product at fifteen cents a quarter of a pound. Later he made pipes which he sold for ten cents. In order to have more time for these operations Lane hired his time from his master at a rental of from $100 to $120 a year. Within eight years he was selling tobacco throughout the state and had accumulated a surplus of $1,000 over the rental which he paid his master. With this money he purchased 128. Id. at 36; HARRIS, supra note 11, at 4-5. 129. HARRIS, supra note 11, at 11, 17-19. 130. Id. at 20. 131. Id. at 13. 132. BUTLER, ENTREPRENEURSHIP, supra note 63, at 46 (citing Juliet E.K. Walker, Racism, Slavery, and Free Enterprise 364 BUS. HIST. REV., Autumn 1986, at 60). 133. HARRIS, supra note 11, at 11, 17-19. 134. Id. at 17-19. 135. HARRIS, supra note 11, at 17, cites to W.G. HAWKINS, LUNSFORD LANE (1863) in describing the story of Lunsford Lane. 26 [VOL. 48:1 Black Quest for Economic Liberty his freedom. But the papers could not be recorded in Raleigh since it was against the state law for a slave to gain freedom by any other means than meritorious service. He therefore made a trip to New York in company with his master’s agent and negotiated the transaction there. Upon returning to Raleigh, Lane converted his business into a general merchandise store and also opened a wood yard. His patrons included the leading citizens. In 1839 he bought a house and lot for $500 and agreed to pay $2500 for the freedom of his wife and six children. During this time Lane was exceptional in his public conduct trying at all times to retain the friendship of the slave owners. His steady progress, however, did not go unnoticed. Sentiment began to grow against him. Finally a group composed of �poor whites’ and the younger sons of slave owners rose up demanding his expulsion from the state. In consequence, Lane, who had been legally freed in New York was expelled from the state on the basis of a statute that forbade free blacks from other states to take up residence in North Carolina. Lane then went to Philadelphia and finally to New York where he was engaged to lecture on southern slavery. In 1842 he requested the written permission of the Governor of North Carolina to allow him to return to that state for the final settlement of his accounts. The Governor was powerless to grant this request but advised Lane to come on anyway on the chance that he would not be molested. Shortly after arriving, Lane was arrested on the charge of making abolitionist speeches in Massachusetts. The case was dismissed by the Mayor. In spite of the precautions of the police he was seized by a mob at night fall, tarred and feathered, and driven from the state. Upon returning North he attempted to recoup his business losses by placing upon the market a proprietary herb medicine which he called Dr. Lane’s Vegetable pills. But this as well as his real estate investments turned out poorly.136 As seen in the story of Lunsford Lane, the situation for free blacks was not much better than the circumstances of slaves. Prior to America’s independence from Britain, the colonies enacted laws to limit the rights of free blacks. Some of the colonies denied free blacks the right to vote, carry weapons,137 or serve as witnesses in court cases against white persons.138 In the 1800s, some of the states in the newly independent United States of America enacted laws that restricted the 136. Id. at 17-19. 137. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 6. 138. Id. (referring to a Virginia law enacted in 1705 which forbade any black person from serving as a witness in court cases). In 1744, Virginia amended the law to allow free blacks to testify in legal proceedings involving other black people. Id. 2004] 27 Howard Law Journal rights and movements of free blacks,139 established higher property and residency requirements for blacks as a precondition for them to vote,140 denied free blacks the right to vote,141 prohibited free blacks from meeting in groups of more than five persons,142 required the deportation of free blacks,143 attempted to expel free blacks because of complaints from white businessmen that free black laborers and entrepreneurs monopolized some of the service industries,144 and prohibited whites from teaching the free black children to read.145 Prior to the Civil War, free blacks in the 1700s and the 1800s laid the foundation for the black business tradition.146 White hostility and intense racism forced blacks into entrepreneurial undertakings as a means of economic survival.147 Historically, black business development, has been greatest when racism, discrimination, and poverty have been at their highest levels.148 Black entrepreneurs prior to the Civil War were self-starters with no form of government assistance.149 They developed restaurants, catering, and tavern businesses that served a white clientele outside of the black community. In these personal service enterprises, the free blacks had practically no competition because whites tended to avoid such businesses because of their servile status.150 These businesses flourished until the large influx of Europeans immigrated151 to the 139. Id. at 11 (giving an example of state legislation enacted in 1804 which restricted the movement of free blacks). 140. Id. at 12. In 1821, for example, the New York legislature enacted a law which established higher property and residence requirements for free black persons. Id. 141. Id. at 12. In 1822, for example, the Rhode Island Legislature enacted a law which denied free blacks the right to vote. Id. 142. Id. In 1823, for example, the Mississippi Legislature enacted a law which prohibited free blacks from meeting in groups of more than five persons. Id. 143. Id. at 13. In 1830, many states, in an attempt to counter the abolitionist movement passed laws requiring, among other things, the deportation of free blacks. In 1851, Virginia passed new laws requiring freed slaves to leave Virginia within a year or be enslaved again. Id. at 15. 144. Id. at 17. In 1859, for example, the State of Maryland unsuccessfully attempted to pass a resolution to expel free blacks from the State of Maryland because of complaints that free blacks monopolized certain service industries. Id. 145. Id. at 14. In 1834, South Carolina enacted a law prohibiting the teaching of black children whether free or slave. Id. 146. BUTLER, ENTREPRENUERSHIP, supra note 63, at 42-43, 77, 292. 147. Id. at 292. 148. Id. 149. Id. at 294. 150. Id. at 40. 151. Id. at 62 (noting the effect of the great European migration beginning in the 1840s on black businesses which previously had no competition). 28 [VOL. 48:1 Black Quest for Economic Liberty United States.152 These immigrants effectively ended black entrepreneurs’ unimpeded access to this white clientele. C. Conservative Estimate of the Wealth of the 500,000 Free Blacks Prior to 1860: Approximately $50 Million; but $75 Million is a More Realistic Figure Many persons reading this Article may be surprised to learn about the economic achievements of free blacks as well as slaves prior to the Civil War. There is much that today’s generation of blacks and whites can learn from this bit of American history in terms of the benefits of entrepreneurship and ownership in a capitalistic economy. In The Negro as Capitalist, the black scholar Abram Harris stated that a conservative estimate of the wealth of free blacks prior to the Civil War was approximately $50 million.153 D. Sources of Black Wealth Prior to the Civil War 1. Primarily Real Estate Free blacks did not own much real estate during the colonial years of U.S. history.154 Their holdings increased, however, between the Revolutionary War and the Civil War.155 This is illustrated by the growth in real estate holdings by free blacks in Pennsylvania, New York, and Ohio.156 Free blacks in slave states also acquired real estate. Approximately 3,777 blacks also owned slaves as personal property by 1830.157 Benevolent motives seemed to be an important factor in such purchases.158 However, some black slave owners seemed motivated by economic gain in purchasing other blacks as slaves.159 2. Other Sources: Stocks, Bonds, and Annuities Free blacks’ ownership of stocks, bonds, and annuities was negligible due to restrictions prohibiting blacks from becoming stockholders and depositors.160 However, they were able to own securities and 152. 153. 154. 155. 156. 157. 158. 159. 160. 2004] Id. at 72-73. HARRIS, supra note 11, at 10-11. Id. at 6. Id. Id. at 6-9. Id. at 4. Id. at 4-6. Id. at 5-6. Id. at 10. 29 Howard Law Journal other investments in some jurisdictions where these prohibitions were not rigorously enforced.161 E. Business Pursuits of Free Blacks and Slaves Prior to the Civil War The business enterprises owned by blacks prior to the Civil War included barber shops,162 livery stables,163 tailoring, and clothing businesses,164 cooking, catering, restaurant and drinking establishments,165 farming enterprises,166 real estate brokerage and development companies,167 merchandising, retailing and commercial undertakings,168 manufacturing and building,169 water transport, and trade businesses.170 Additionally, free blacks began their first activities in banking and money lending businesses prior to the Civil War.171 These free black entrepreneurs faced numerous obstacles in growing their businesses.172 Some of these obstacles included difficulty in obtaining credit,173 mob violence by whites who resented successful black business persons,174 prohibitions against black ownership of certain types of property, and denial of the right to sue.175 In response to these obstacles, free black persons formed mutual assistance organizations176 and began their first attempts to engage in banking 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. Id. Id. at 12. HARRIS, supra note 11, at 12-13. Id. at 13. Id. at 14-15. Id. at 15-16. Id. at 17. Id. at 17-21. Id. at 21-23. Id. at 23-25. Id. at 26-27. Id. at 29-30. As early as 1789, records show that blacks found it difficult to borrow money. BUTLER, ENTREPRENEURSHIP, supra note 63, at 40. They managed, however, through hard work to overcome these obstacles. Id. at 40. Blacks organized mutual assistance societies to generate capital. Id. This, in turn, led to the development of private lending businesses which were the precursors to efforts to organize black banks. Id. at 41. It was difficult, however, as a general matter for blacks to obtain sources of credit to finance their ventures. There are, however, many explicit references in the historical records which indicate that some enterprising blacks were able to obtain loans. See HARRIS, supra note 11, at 28. Harris noted that the enterprising blacks of Charleston, South Carolina, Solomon Humphries of Macon, Georgia, Stephen Smith and William Whipple of Pennsylvania, and Samuel Wilcox of Ohio were able to borrow from white institutions to finance their business enterprises. Id. (citing C.W. Birnie, The Education of the Negro in Charleston, South Carolina, Prior to the Civil War, 12 J. NEGRO HIS. 13 (1927)). 174. HARRIS, supra note 11, at 29-30. 175. Id. at 29-30. 176. Id. at 25-30. 30 [VOL. 48:1 Black Quest for Economic Liberty and money lending businesses. In the decade prior to the Civil War, free blacks in New York and Philadelphia held meetings to discuss the establishment of a bank.177 However, “[n]othing came of these proposals.”178 The wealth of free black persons prior to the Civil War is impressive when viewed in light of the obstacles confronting them. However, because of the hostility and numerous obstacles they faced, “[o]nly a pitifully small number of free [blacks] [could] be considered wealthy even when judged by the business standards of that day.”179 It was these obstacles that prevented free blacks from developing large business enterprises and a wealthy class of black businessmen prior to the Civil War.180 F. Why Black Entrepreneurial Activities Prior to the Civil War are Utterly Amazing 1. The South’s Preoccupation in Maintaining Slavery The political climate was particularly hostile to black people prior to the Civil War. The Southern states were politically committed to the indefinite enslavement of black people as part of the operation of the Southern economy. Therefore, the economic accomplishments of black persons during this period are somewhat astonishing. However, the Northern states had effectively recognized the immorality of slavery prior to the Civil War. All of the states north of the Mason-Dixon Line181 had enacted laws prohibiting slavery by 1804.182 The Southern states, however, were preoccupied with legal maneuvering in Congress to maintain slavery at all costs during the time that free blacks were attempting to achieve a measure of economic security in the United States. Slavery and the role of black people in this country 177. Id. at 29-30. 178. Id. at 29. 179. Id. 180. Id. 181. The Mason–Dixon Line is the boundary line between Pennsylvania on the north and Maryland on the south. The Mason-Dixon Line is the line celebrated as the line of demarcation between the slave and free states. Charles Mason and Jeremiah Dixon, commissioners in a dispute between the Penn Proprietors and Lord Baltimore, ran the line. The line extended 244 miles to the Delaware River where Indians stopped it. See BLACK’S LAW DICTIONARY 503 (Abridged 5th ed. 1983). 182. Massachusetts became the first state to legalize slavery in 1641. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 4. The Massachusetts Supreme Court, however, abolished slavery in 1783 and granted blacks, in taxable categories, the right to vote. Id. at 9. New York abolished slavery on July 4, 1827. Id. at 13. The number of slaves in the English colonies in 1700 was approximately 28,000. Approximately 23,000 of these slaves, however, resided in the South. Id. at 5. Upon New Jersey’s passage of an emancipation law in 1804, all states north of the Mason-Dixon Line had enacted laws forbidding slavery. Id. at 11. 2004] 31 Howard Law Journal were at the root of every significant piece of legislation that led to the Civil War. The economic importance of maintaining slavery in the South was clear. Excluding World War II, the number of Americans who died in the Civil War exceeds the deaths of Americans in all other wars combined.183 The continued legal recognition of slavery and the status of black persons as property clearly delayed the economic emancipation of black persons in the United States. Nevertheless, in some instances free blacks were achieving fairly remarkable economic progress and gaining financial solidarity in the late 1700s. The Southern states’ preoccupation with ensuring the continuance of slavery, however, was playing itself out in Congress to the detriment of both free and enslaved blacks. For example, the Northwest Ordinance of 1787, which Thomas Jefferson drafted,184 barred slavery from the territory that became the states of Ohio,185 Indiana,186 Illinois,187 Michigan,188 and Wisconsin,189 to insure that the number of free and slave states would be equal as the United States spread westward. Similarly, the admission of Kentucky,190 Tennessee,191 Alabama,192 Mississippi,193 and Louisiana194 to statehood was done in a manner to ensure that the number of free and slave states remained equal. Other significant legislation that followed witnessed a nation focused on matters other than economic and social liberation of enslaved and free black people in America. The Missouri Compromise, enacted in 1820, provided that Missouri195 would enter the Union as a slave state while Maine196 would enter as a free state.197 This scheme 183. See Laura Stanton & Seth Hamblin, Remembering the Fallen, WASH. POST, May 26, 2003, at A7. 184. See JONATHAN EARLE, THE ROUTLEDGE ATLAS OF AFRICAN AMERICAN HISTORY 35 (Mark C. Carnes ed., Routledge 2000). 185. The United States admitted Ohio as a state on March 1, 1803. See WORLD ALMANAC 2003, supra note 14, at 382. 186. The United States admitted Indiana as a state on December 11, 1816. Id. at 371. 187. The United States admitted Illinois as a state on December 3, 1818. Id. at 370. 188. The United States admitted Michigan as a state on January 26, 1837. Id. at 374. 189. The United States admitted Wisconsin as a state on May 29, 1848. Id. at 389. 190. The United States admitted Kentucky as a state on June 1, 1792. See id. at 372. 191. The United States admitted Tennessee as a state on June 1, 1796. Id. at 385. 192. The United States admitted Alabama as state on December 14, 1819. Id. at 364. 193. The United States admitted Mississippi as a state on December 10, 1817. Id. at 376; see also THE AFRICAN AMERICAN ALMANAC, supra note 11, at 12. 194. The United States admitted Louisiana as a state on April 30, 1812. See WORLD ALMANAC 2003, supra note 14, at 372. 195. The United States admitted Missouri as a state on August 10, 1821. WORLD ALMANAC 2003, supra note 14, at 376. 196. The United States admitted Maine as a state on March 15, 1820. Id. at 373. 32 [VOL. 48:1 Black Quest for Economic Liberty allayed fears that the South would gain more influence in the U.S. Senate.198 The South agreed to outlaw slavery north of “36° 30'” latitude, a line extending west from Missouri’s southern border.199 The compromise made the new territory of Arkansas, present day Oklahoma200 and Arkansas,201 open to slavery, but barred slavery from the remainder of the Louisiana Purchase. Accordingly, under the Missouri Compromise, the United States barred slavery in the areas consisting of present day Kansas,202 Nebraska,203 Colorado,204 Minnesota,205 Iowa,206 Montana,207 Wyoming,208 North Dakota,209 and South Dakota.210 The Compromise of 1850 attempted to address the issue of slavery’s expansion as a result of the U.S. victory in the Mexican American war.211 The territory covered land that would become the states of California,212 Nevada,213 Utah,214 New Mexico,215 and Arizona.216 The Compromise of 1850 provided that the United States would fulfill the following requests: admit California as a free state; organize the rest of the territories without restrictions on slavery; outlaw the slave trade in the Capitol Washington, D.C. (but not slavery itself); and enact a tougher Fugitive Slave Act.217 Congress enacted the Kansas-Nebraska Act in 1854 because Southern senators foresaw that, under the Missouri Compromise, 197. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 12. 198. See EARLE, supra note 184, at 54. 199. Id. 200. The United States admitted Oklahoma as a state on November 16, 1907. WORLD ALMANAC 2003, supra note 14, at 382. This took place well after the political balancing act to maintain an even split between free and slave states became unnecessary with the advent of the Civil War in 1861. 201. The United States admitted Arkansas on June 15, 1836. Id. at 365. 202. The United States admitted Kansas as a state on January 29, 1861. Id. at 372. 203. The United States admitted Nebraska as a state on March 1, 1867. Id. at 377. 204. The United States admitted Colorado as a state on August 1, 1876. Id. at 366. 205. The United States admitted Minnesota as a state on May 11, 1858. Id. at 375. 206. The United States admitted Iowa as a state on December 28, 1846. Id. at 371. 207. The United States admitted Montana as a state on November 8, 1889. Id. at 377. 208. The United States admitted Wyoming as a state on July 10, 1890. Id. at 389. 209. The United States admitted North Dakota as a state on November 2, 1889. Id. at 381. 210. The United States admitted South Dakota as a state on November 2, 1889. WORLD ALMANAC 2003, supra note 14, at 385. 211. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 15. 212. The United States admitted California as a state on September 9, 1859. See WORLD ALMANAC 2003, supra note 14, at 366. 213. The United States admitted Nevada as a state on October 31, 1864. Id. at 378. 214. The United States admitted Utah as a state on January 4, 1896. Id. at 386. 215. The United States admitted New Mexico as a state on January 6, 1912. Id. at 379. 216. The United States admitted Arizona as a state on February 14, 1912. Id. at 365. 217. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 15. 2004] 33 Howard Law Journal slavery would be prohibited in each state carved out of Nebraska Territory and some parts of Kansas territory. The Act repealed that part of the Missouri Compromise that prohibited slavery in the territory above “36° 30' latitude” in favor of allowing “popular sovereignty” to determine the issue.218 Battles between pro-slavery and anti-slavery forces attempting to settle Kansas became known as “Bleeding Kansas.”219 In 1857, the U.S. Supreme Court, in Dred Scott v. Sandford,220 attempted to resolve the question of slavery in the territories in one comprehensive decision. The Supreme Court’s consideration of the case was set against the backdrop of mounting tensions surrounding “Bleeding Kansas,” which threatened to draw the nation into open warfare. The case involved a slave, Dred Scott, who argued that his stay in territory above the “36° 30'” latitude made him a free man after his owner died. The Supreme Court held that the Missouri Compromise was unconstitutional,221 and noted, among other things, that the Constitution’s reference to “citizens” and the Preamble’s reference to “We the People” did not include blacks of African descent;222 that Congress had no power under the Constitution to keep slavery out of any territory;223 and that the case should not have been heard in the first place since slaves of African descent were not citizens of the United States.224 The case was certainly a surprise to many free blacks who were legal citizens in several Northern states.225 The Dred Scott case was clearly one of the driving forces leading to the Civil War.226 By 1859, there were fifteen free states and an equal number of slave states.227 On December 20, 1860, South Carolina voted to repeal 218. Id. at 16. 219. See EARLE, supra note 184, at 58. 220. 60 U.S. (19 How.) 393 (1856). 221. Id. at 452. See generally id. at 449-52. 222. Id. at 404-07, 410-11. 223. Id. at 449-52. 224. Id. at 410-11, 454. 225. See EARLE, supra note 184, at 59. 226. See BENNETT, JR., supra note 11, at 178. 227. The slave states were Delaware, Georgia, Maryland, South Carolina, Virginia, North Carolina, Kentucky, Tennessee, Louisiana, Mississippi, Alabama, Missouri, Arkansas, Florida, and Texas. The free states were Pennsylvania, New Jersey, Connecticut, Massachusetts, New Hampshire, New York, Rhode Island, Vermont, Ohio, Indiana, Illinois, Maine, Michigan, Iowa, Wisconsin, and California. See generally EARLE, supra note 184, at 35; WORLD ALMANAC 2003, supra note 14, at 364-90 (data on states and other areas of the United States). The United States admitted Minnesota to statehood on May 5, 1858, and left it to the people of that state to decide the issue of slavery. The United States admitted Oregon as a state on February 14, 1859 and left 34 [VOL. 48:1 Black Quest for Economic Liberty its 1788 ratification of the U.S. Constitution. Ten other states voted, in convention, to secede from the United States of America in 1861: Mississippi (January 9), Florida (January 10), Alabama (January 11), Georgia (January 19), Louisiana (January 26), Texas (February 1), Virginia (April 17), Arkansas (May 6), Tennessee (May 7), and North Carolina (May 21).228 On February 8, 1861, seven southern states voted to form the Confederate States of America and named Jefferson Davis of Mississippi as provisional President.229 These states adopted a provisional Constitution for the Confederate States of America. On March 11, 1861, the Confederate states adopted a permanent Constitution that abolished the African slave trade, but did not bar interstate commerce in slaves.230 On July 20, 1861, the Confederate Congress moved to Richmond, Virginia. In October 1861, the Confederate Congress elected Jefferson Davis as the permanent President and inaugurated him on February 22, 1862. The Civil War began on April 12, 1861, when the Confederates fired upon Fort Sumter in Charleston, South Carolina and captured it on April 14, 1861.231 The Civil War ended on April 9, 1865, when General Robert E. Lee surrendered 27,800 Confederate troops to General Ulysses S. Grant at Appomattox Court House in Virginia.232 The Civil War resulted in more American deaths than any war other than World War II. No other war in which Americans have fought, except World War II, even comes close to the number of people, 214,938, killed during the Civil War. The combined deaths of all other wars, excluding World War II, do not exceed this number.233 Matters of race have always been near the center of American life. it to the people of that state to decide the issue of slavery. The United States admitted Kansas as a state on January 29, 1861, on the eve of the Civil War. See THE WORLD ALMANAC 2003, supra note 14, at 364-90. 228. See WORLD ALMANAC 2003, supra note 14, at 551; see also EARLE, supra note 184, at 64. 229. WORLD ALMANAC 2003, supra note 14, at 530. 230. Id. at 552. 231. Id. at 530. 232. Id. 233. See Stanton & Hamblin, supra note 183 (detailing American deaths for every American war through charts with pictures and statistics). The combined American deaths in all wars, excluding World War II, totaled 158,519 compared to the 214,938 deaths during the Civil War. The breakdown, excluding World War II and the current war in Iraq, is as follows: American Revolution (4,435); War of 1812 (2260); Indian Wars (1000); Mexican War (1,773); Spanish American War (385); World War I (53,198); Korean War (36,516); Vietnam War (58,198); Persian Gulf War (382); Afghanistan War (69). Id. In World War II, 291,557 Americans died. Id. In the most recent war and subsequent occupation in Iraq, 1,078 Americans have died, as of 2004] 35 Howard Law Journal 2. Many Whites Did Not Consider Blacks to Be Fully Human During This Era The Declaration of Independence’s statement in 1776 of universal equality did not apply to blacks.234 Under the U.S. Constitution ratified in 1787, blacks counted as “three-fifths of all other persons for political representation purposes.”235 The Constitution also prevented Congress from prohibiting the slave trade until 1808236 and sought to ensure that “escaping” slaves would be returned to their owners.237 In Prigg v. Pennsylvania,238 the Supreme Court made it clear that any state effort to prevent individuals from capturing and returning slaves to their owners was preempted by the Fugitive Slave Act of 1793.239 In Dred Scott v. Sandford,240 the Court gave the clearest exposition on the attitude of white Americans toward blacks. The Court stated that white people regarded blacks of African origin as no more than an article of property;241 that the white race considered blacks to be of an inferior order and altogether unfit to associate with the white race;242 that blacks had no rights which the white man was bound to respect; and that whites could lawfully reduce blacks to slavery for the benefit of blacks since whites deemed blacks too stupid to make wise decisions.243 These statements and legal enactments emanating from the majority race indicate that the economic achievements of black persons who lived during this era were truly remarkable. October 12, 2004. War in Iraq, Forces: U.S. Coalition and Casualties, at http://www.cnn.com/ casualties/SPECIALS/2003/Iraq/forces/casualties (last visited Oct. 12, 2004). 234. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 411. 235. Id. at 412. 236. U.S. CONST. art. I, § 9, cl. 1; see THE AFRICAN AMERICAN ALMANAC, supra note 11, at 412. 237. U.S. CONST. art. IV, § 2. 238. 41 U.S. 539 (1842). In Prigg v. Pennsylvania, the U.S. Supreme Court held that a Pennsylvania anti-kidnapping law was unconstitutional since the authority to regulate the recapture of slaves was an exclusive power of the Congress. The case arose when Pennsylvania courts convicted Edward Prigg of kidnapping when he recaptured an escaped slave. See generally THE AFRICAN AMERICAN ALMANAC, supra note 11, at 15. 239. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 412. 240. 60 U.S. (19 How.) 393 (1856). 241. Id. at 407-08. 242. Id. at 407. 243. Id. 36 [VOL. 48:1 Black Quest for Economic Liberty II. THE RECONSTRUCTION ERA (1867-1877) A. Overview The United States probably would not need affirmative action today244 if Congress had continued its progressive legislative course during the Reconstruction era following the Civil War.245 Reconstruction Era politics represented “the expression of a profound economic change” in the United States and Western Europe—“the triumph of capitalistic finance and industry over agrarianism and the plantation economy”246 The ascendance of capitalism was accompanied by “new political ideals” stressing “legal equality and universal suffrage for men.”247 The goal of equal citizenship was a middle-class conception that carried with it the right to vote, hold office, acquire property, and achieve economic independence.248 In this context, Congressman Thaddeus Stevens and the radical republicans viewed equal citizenship for the recently freed slaves and all blacks as the best means of assimilating black people into the American mainstream.249 Both conservative and radical republicans believed that opportunities for blacks to obtain education, wealth, and political equality were necessary attributes of full citizenship.250 In the first decade after the Civil War, Congress proposed and obtained passage of constitutional amendments and statutes providing civil liberty and equality for blacks. During this period, the federal government and states were instrumental in establishing universities for blacks.251 On March 3, 1865, Congress chartered the Freedman’s Bank.252 Conservative republicans supported the radicals, in part, to get the support of the black vote to further their economic interests. After achieving their economic goals, the conservative republicans tacitly accepted the disenfranchisement and segregation of blacks in the new South.253 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 2004] See discussion supra text accompanying notes 36-38, 45-48. See discussion supra text accompanying note 38. HARRIS, supra note 11, at 31. Id. at 31. Id. Id. Id. at 32. Id. Id. at 34-56. Id. at 31. 37 Howard Law Journal The eventual rift in attitudes between the radical and conservative republicans led to “two separate and antagonistic approaches” for blacks to achieve equality and economic liberty.254 Abram Harris, a black scholar writing in the 1930s, referred to the first approach as the “militant civil libertarian” program of W.E.B. Du Bois and the second approach as Booker T. Washington’s “program of conciliation, thrift and industry.”255 The Du Bois approach led to the dismantling of governmentally enforced segregation of blacks and the enactment of congressional legislation seeking to affirmatively assist black businesses which had been long excluded from the ability to compete in the general American economy under the separate but equal doctrine of Plessy v. Ferguson.256 The Du Bois approach also led to congressional legislation prohibiting racial discrimination by private and governmental entities in employment, housing, and public accommodations.257 Washington’s approach, that blacks could achieve wealth through business ownership and thrift notwithstanding the vicious system of enforced racial segregation, is often dismissed because of Washington’s passive acceptance of the system of legal segregation as just a sad fact of life. However, Washington’s approach arguably leads to greater wealth and self determination for blacks assuming an equal playing field in the economic market.258 B. President Lincoln and President Johnson’s Leniency with the Conquered South Caused Congress to Pass the Military Reconstruction Legislation The Civil War established the supremacy of the federal government over the states and ended the doctrines of nullification and secession.259 The Civil War also destroyed the influence of southern planters in national government and gave dominance to northern industrialists. Consequently, businessmen carried the nation into a new period of industrialization and Western expansion.260 President Lincoln’s plan for bringing the defeated states of the Confederacy back into membership in the United States imposed very 254. 255. 256. 257. 258. 259. 260. 38 Id. at 32. Id. 163 U.S. 537 (1896). See discussion infra notes 663-65, 679-81 and accompanying text. See discussion infra notes 575-77 and accompanying text. Reconstruction, in 2 THE VOLUME LIBRARY 1728 (1995) [hereinafter Reconstruction]. Id. [VOL. 48:1 Black Quest for Economic Liberty few restrictions. Lincoln’s plan provided that each of the formerly rebellious states could establish its own government if ten percent of their respective citizens who voted in 1860 swore to faithfully defend the Constitution of the United States and voted to abolished slavery.261 In response, the radical republicans passed the Wade-Davis Bill, a much harsher plan which required that a majority of white males in the former Confederate states swear to have never supported the Confederacy, abolish slavery, and repudiate debts and acts of secession.262 President Johnson asserted that the reconciliation policy was an executive branch decision. President Johnson demanded that the reorganized states repudiate Confederate debts and acts of secession, and legally end slavery by ratifying the Thirteenth Amendment. President Johnson stated that he would grant a full pardon to anyone, including former Confederate officials, who swore allegiance to the U.S. Constitution. All the former Confederate states, except Texas, met President Johnson’s demands by December 1865.263 C. Although the Reorganized Southern States Ratified the Thirteenth Amendment, Their Enactment of Black Codes Showed That They Did Not Intend to Give Equal Rights to Blacks The reorganized states ratified the Thirteenth Amendment, but did not intend to give equal rights to the newly freed blacks, whom people referred to as freedmen. As the reorganized states drew up their new state laws, they incorporated a number of pieces of legislation called Black Codes.264 The Black Codes relegated freedman to social, economic, and political inferiority. They forbade blacks from carrying arms, governed their employment, and imposed curfews upon the freedmen.265 Additionally, legislators gave “masters” the right to whip “servants” under the age of eighteen. Whites could punish blacks for “insulting gestures,” “seditious speeches,” and the “crime” of walking off the job.266 These legislative acts further post261. 262. 263. 264. 265. 266. 2004] Id. Id. Id. Id.; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 63. Reconstruction, supra note 259, at 1728. BENNETT, JR., supra note 11, at 224-25. 39 Howard Law Journal poned the inclusion of African Americans into the economic fabric of America. D. The Reconstruction Act of 1867, Like Other Legislation of This Era, Passed Over the Veto of President Johnson Congress passed legislation creating the Freedmen’s Bureau on March 3, 1865.267 The Freedmen’s Bureau was the first federal welfare agency.268 The Bureau gave direct aid, established hospitals, day schools, night schools, industrial schools, institutes, and colleges.269 Congress renewed the Freedmen’s Bureau and extended its powers to protect blacks in February 1866. President Johnson vetoed this legislation. Congress, however, passed a new version in July and overrode Johnson’s veto.270 Similarly, in April 1866, Congress passed the Civil Rights Act declaring Freedmen citizens entitled “to full and equal benefits of the laws.”271 President Johnson, on the grounds of states’ rights, vetoed this legislation. Congress promptly overrode President Johnson’s veto.272 Congress, fearing that the Supreme Court might agree with President Johnson, proposed the Fourteenth Amendment to the Constitution. President Johnson objected to the Fourteenth Amendment as an invasion of states’ rights and advised the southern states not to ratify it.273 However, without the Fourteenth Amendment the pronouncement in Dred Scott v. Sanford that persons of African descent were not citizens of the United States would, arguably, remain the law of the land.274 Republicans who opposed President Johnson in the congressional elections of 1866 won overwhelmingly. Congress quickly passed the Reconstruction Act of 1867 over Johnson’s veto.275 Moreover, Congress made clear that the former Confederate states would not be readmitted to the Union unless they ratified the Fourteenth Amendment.276 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 40 Id. at 218. Id. Id. Reconstruction, supra note 259, at 1728. Id. Id. Id. BENNETT, JR., supra note 11, at 224-25. Id. See Reconstruction, supra note 259, at 1728. [VOL. 48:1 Black Quest for Economic Liberty Neither President Lincoln nor his successor, President Johnson, came to grips with the plight of blacks. As discussed earlier, they both wanted to readmit southern states upon ten percent of the pre-war electorate taking an oath of allegiance.277 Moreover, President Johnson appointed conservative provisional governors with pro-slavery biases.278 It was these governments which enacted the infamous Black Codes, which restricted the rights of freedmen under vagrancy and apprenticeship laws; gave “masters” the right to whip “servants” under eighteen; and allowed freedmen to be punished for “insulting gestures,” “seditious speeches,” and the “crime” of walking off the job.279 The attitudes expressed in such legislation clearly indicated that the executive branch of the federal government had no thought of proposing any programs that would provide for the economic equality of black Americans. On the other hand, the executive branch was content on leaving the plight of black Americans to their recently conquered slave masters under the rationale of states rights, the same basis set forth by the Southern states for the Civil War. Congress instituted military reconstruction for several reasons: the Black Codes, which placed blacks virtually in a position of servitude; the officially sponsored killings and rapes of black persons; the burnings of black churches; and the failure of the President Johnson to do anything to prevent these atrocities from happening.280 A joint congressional committee of fifteen reported on proposed legislation which put the South under military control and authorized new elections in which all males, irrespective of race, could participate.281 The tally of qualified voters indicated that black voters outnumbered whites in five states: Mississippi, South Carolina, Louisiana, Alabama, and Florida. The statistics further indicated that blacks outnumbered whites by majorities of seven, eight, and nine to one in some counties.282 Senator Charles Sumner283 and Representative Thaddeus Ste284 vens were the driving forces behind this Reconstruction legisla277. 278. 279. 280. 281. 282. 283. 284. 2004] BENNETT, JR., supra note 11, at 224. Id. at 224. Id. at 225. Id. Id. at 226. Id. at 226, 233-34 (charts). Id. at 230. Id. at 223. 41 Howard Law Journal tion.285 Sumner and Stevens were also responsible for pushing the Fourteenth and Fifteenth Amendments through Congress and the enabling legislation which sent military troops to the South to protect the rights of blacks.286 E. The Four Supports upon Which the Economic Rights of Blacks Depended After the Civil War The economic rights of blacks depended on four major pieces of legislation subsequent to the Civil War: the continued military presence of the federal government in the South pursuant to the Reconstruction Act; the Fourteenth Amendment to the U.S. Constitution; the Fifteenth Amendment to the U.S. Constitution; and the Civil Rights Act of 1875.287 1. The South Was Divided into Five Military Districts; Voters Were to Elect a State Convention to Frame a State Constitution; States Had to Ratify the Fourteenth Amendment The Reconstruction Act divided the South into five military districts each under the control of a military commander. “The [military] commander was to register the voters, exclude prominent Confederate leaders, and include all other male citizens �of whatever race, color, or previous condition of servitude.’”288 Voters were to elect a state convention to frame a state constitution. Pursuant to the Reconstruction Act, Congress would readmit the states to the union if Congress was satisfied with the terms of these newly drafted state constitutions and if the state legislatures ratified the Fourteenth Amendment.289 By 1871, all former confederate states had reorganized and had been readmitted to the Union.290 2. The Fourteenth Amendment The Fourteenth Amendment to the Constitution, ratified by the states in 1868, makes all persons born or naturalized in the United States, citizens of the United States and of the state where they reside. 285. 286. 287. 288. 289. 290. 42 Id. at 226. Id. BENNETT, JR., supra note 11, at 260-61. Reconstruction, supra note 259, at 1728. Id. Id. at 1729. [VOL. 48:1 Black Quest for Economic Liberty The Fourteenth Amendment also prohibits the states from enforcing any law that abridges the privileges or immunities of citizens of the United States; from depriving any person of life, liberty, or property without due process of law; and from denying any person within the jurisdiction of a state the equal protection of the laws.291 3. Because of the Recently Enacted Fifteenth Amendment, Blacks Had the Right to Vote on All Issues Involving the Reorganization of the Southern States During the Period of Military Reconstruction The Fifteenth Amendment to the Constitution provides that the rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.292 The relationship between politics and the economic advancement of African Americans in this country is fairly obvious. The entire post-Civil War legislative agenda, which consisted of the passage of civil rights statutes and proposed constitutional amendments, was the result of a massive change in the political landscape accompanying the victory by the North over the South. Similarly, the Civil Rights legislation of the 1960s and the 1970s could not have occurred in the absence of a changed political climate.293 Congress’ introduction and passage of the Fifteenth Amendment meant that blacks now had the right to vote. The new black vote was directly responsible for the election of a notable number of black politicians to state and federal offices.294 White northerners who had moved to the South following the war (called carpetbaggers) and southerners who had remained loyal to the Union during the Civil War and supported Reconstruction (called Scalawags) were exerting power in state governments.295 A group of disgruntled whites formed the Ku Klux Klan to end black participation in political elections through force, intimidation, and murder.296 Congress enacted the 291. U.S. CONST. amend. XIV, § 2; see also BENNETT, JR., supra note 11, at 260; THE AFRIAMERICAN ALMANAC, supra note 11, at 134. 292. BENNETT, JR., supra note 11, at 260; see also THE AFRICAN AMERICAN ALMANAC, supra note 11, at 135. 293. See discussion infra notes 672-74 and accompanying text. See U.S. CONST. amend. XV. 294. Reconstruction, supra note 259, at 1729; see also BENNETT, JR., supra note 11, at 233-34. 295. Reconstruction, supra note 259, at 1729; see also BENNETT, JR., supra note 11, at 232-33 (noting that in all Southern states, black leaders shared power with carpetbaggers and scalawags). 296. Reconstruction, supra note 259, at 1729; see also BENNETT, Jr., supra note 11, at 231. CAN 2004] 43 Howard Law Journal Force Act of 1870 and the Ku Klux Klan Act in 1871 to outlaw the activities of the Ku Klux Klan.297 4. The Civil Rights Act of 1875 The Civil Rights Act of 1875 provided that all persons within the jurisdiction of the United States were entitled to the full and equal enjoyment of “�the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement, subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.’”298 Success in starting and operating a business requires access to the general population and the ability to commingle freely with the entire population. The hallmarks of capitalism consist of government protection of the freedom of economic contract, government protection of all persons’ rights to own private property, and government protection of an individual’s freedom to choose whether to make business decisions free from the dictates of others or the routines of tradition.299 The Civil Rights Act of 1875 along with earlier legislation guaranteeing blacks equal rights in contracting and in property transactions sought to bring blacks into the economic mainstream.300 F. Benefits of Reconstruction 1. South Elected 22 Blacks to Congress; Mississippi Elected 2 Blacks to the U.S. Senate; Louisiana Elected 2 Black Senators but the Senate Refused to Seat Them; 794 Blacks Elected to State Legislatures and Other Surprising Positions Freedmen voted for the first time in the elections held in 1867 to 1868.301 “[T]wenty-two blacks [from Southern states] served in the U.S. Congress” and “794 blacks served in Southern legislatures”302 297. Reconstruction, supra note 259, at 1729. 298. BENNETT, JR., supra note 11, at 260; see also THE AFRICAN AMERICAN ALMANAC, supra note 11, at 137. 299. See discussion supra notes 39-44 and accompanying text. 300. See Civil Rights Acts of 1866, ch. 31, 14 Stat. 27, 27 (1866) (codified as amended at 42 U.S.C. §§ 1981, 1982 (2000)) (guaranteeing blacks the same rights as white persons in contracts and property transactions). 301. BENNETT, JR., supra note 11, at 233. 302. Id. at 233 n.*. 44 [VOL. 48:1 Black Quest for Economic Liberty during the Reconstruction Era.303 Most of the black politicians in Congress had more formal education than Abraham Lincoln, and some have been described as brilliant.304 Mississippi and Louisiana each elected two U.S. Senators during reconstruction, but the Senate refused to seat them.305 One black served as a state governor;306 blacks in three states served as lieutenant governor.307 Blacks also served as state supreme court judges,308 education superintendents, state treasurers, judges, and major military generals.309 These developments were also economically beneficial to African Americans. 2. Blacks and Whites Were Interacting With Each Other Socially and in Other Ways Blacks and whites were attending school together, riding on public transportation together, and engaging in other interpersonal relationships protected by the by Civil Rights Act of 1875.310 The South Carolina House of Representatives was majority black. Additionally, blacks and whites were cohabiting together in and out of wedlock.311 There were black postmasters, black lawyers, black jurors, and black judges. All of these improbable events took place during the Reconstruction Era.312 If these developments had continued, African Americans could have, perhaps, achieved economic equality before the twenty-first century. Thus, if America had stayed the course, the United States might well have become the colorblind society it is still seeking to become today. 3. Some Blacks Were Able to Make Substantial Economic Progress A small number of blacks were able to economically benefit from the unprecedented change in political and social circumstances during the first ten years following the Civil War.313 Some laborers were able to ascend to the artisan class. Some black farmers acquired relatively 303. 304. 305. 306. 307. 308. 309. 310. 311. 312. 313. 2004] Id. at 233-34. Id. at 236. Id. at 233 (Mississippi), 234 (Louisiana). Id. at 234 (Pinchback of Louisiana). Id. at 233 (South Carolina), 234 (Louisiana), 234 (Florida). Id. (South Carolina). Id. at 214-15. Id. at 215. BENNETT, JR., supra note 11, at 215. Id. at 216. Id. at 252. 45 Howard Law Journal large plots of land. Additionally, a few black politicians made small fortunes as cotton farmers. They also served as directors of railroads, steamship companies, oil corporations, and banks.314 As is true today, many of the benefits of political and legislative change did not reach a large segment of the black population.315 4. Major Black Colleges Established by Black Organizations and Others Immediately After the Civil War and During Reconstruction Black organizations and other entities established several black institutions of higher education during the period generally referred to as the Reconstruction Era. These colleges and universities include: Atlanta University and Virginia Union in 1865; Fisk and Lincoln (Missouri) in 1866; Talladega, Howard, Morgan and Morehouse in 1867; Hampton in 1868; Clark, Dillard, Tougaloo and Claflin in 1869; Allen, Benedict and Le Moyne in 1870; Alcorn in 1872; Bennett in 1873; Knoxville in 1875; and Meharry in 1876.316 Education has undoubtedly been the key to economic advancement for African Americans.317 5. Beneficial Legislation Congress passed the Fourteenth and Fifteenth Amendments to the U.S. Constitution and enacted the Civil Rights Acts of 1866, 1871, and 1875 during the Reconstruction Era. The state legislatures, with a majority of black legislators in some instances, established a public school system in a region hostile to public education that benefited all citizens318 and public works programs of an unprecedented nature.319 314. 315. 316. 317. 318. 319. 46 Id. at 253-54. See discussion infra notes 756-62 and accompanying text. BENNETT, JR., supra note 11, at 218. See THERNSTROM & THERNSTROM, supra note 30, at 189-94. BENNETT, JR., supra note 11, at 253-54. Id. [VOL. 48:1 Black Quest for Economic Liberty 6. End of Reconstruction Period a. In the Compromise of 1877, Republicans Agreed to Pull the Military Out of the South to Capture the Contested Presidential Race for Rutherford B. Hayes The North began losing interest in the rights of black Americans as other events began to transpire.320 One momentous event was the death of Pennsylvania congressional representative Thaddeus Stevens of Pennsylvania in 1868. Government corruption under President Grant’s administration became the new hot button issue.321 Virtually all of the black population still resided in the South during this time. The black population’s hopes for economic, social, and political justice were grounded, in large measure, on the military presence of the North in the South.322 Military presence was explicitly based on the perception of the South as a conquered people and provided protection and assurance to the recently liberated black population.323 In the Compromise of 1877, the Republicans agreed to end the military presence in the South, in order to secure the presidency of Rutherford B. Hayes in an election virtually too close to call.324 Only four states were still controlled by Republicans by 1874.325 The South almost immediately began a vicious process of suppressing the social and civil rights of the black population with much assistance from the United States Supreme Court.326 b. Reasons for The North’s Loss of Interest in Equal Justice for Blacks The North’s new focus on political corruption in President Grant’s administration was only one of several reasons contributing to the North’s loss of interest in pursuing the goal of equal justice for black persons in America. Other reasons include the North’s interest in the conquest and dispossession of Native Americans from their ancestral homelands during the westward expansion; the North’s drive to become an imperialist power in the Philippines, the Caribbean and other areas inhabited by people of color; and Europe’s diminished 320. 321. 322. 323. 324. 325. 326. 2004] Reconstruction, supra note 259, at 1729. Id. at 1729. BUTLER, ENTREPRENEURSHIP, supra note 63, at 64. Id. Id.; see also BENNETT, JR., supra note 11, at 250-51. BENNETT, JR., supra note 11, at 246. Id. at 250-52. 47 Howard Law Journal persuasiveness on the issue of equality for blacks in America due to Europe’s preoccupation with imperialism in Africa, India, South America, and other parts of the globe.327 Additionally, in the fifty years following the Civil War, industrial expansion completely changed the United States from a rural and agricultural nation to a nation that was urban and industrial.328 From 1870 to 1920, approximately 25 million immigrants came to the United States and the native born population grew from 38 million to 106 million.329 The United States became an imperialist nation, acquiring control of foreign countries inhabited by non-whites.330 It was an age of innovative and resourceful industrial leaders and ingenious investment bankers who found creative ways to raise capital.331 Underlying these events was the unprecedented rise in productivity due to technological advances. Scientific theories established during the period between Reconstruction and 1927 laid the foundation for much of the technology utilized during the United States’ industrial growth during this period, all of the twentieth century and continuing into the twenty-first century.332 To some extent, many of these scientific theories changed the world’s concept of reality and encouraged sinister ideas by leaders in certain countries of world domination through the misuse of these theories. Greed and fear, the two elemental forces of American capitalism, led those in control of legislative policy to rationalize the segregation of blacks from the core of American society and its economy. The U.S. Supreme Court’s rationalization for permitting state governments to allow the segregation of all American black people from 327. Id. at 261-62. 328. Coming of Age, in 2 THE VOLUME LIBRARY, supra note 259, at 1730. 329. Id. 330. Id. at 1733-34 (citing, as examples, U.S. activity in the Philippines, the Caribbean, Hawaii (which the United States annexed in 1898), Alaska (which the United States purchased in 1867), and the Spanish-American War of 1898). 331. Id. at 1730. 332. See J.P. MCEVOY & OSCAR ZARATE, INTRODUCING QUANTUM THEORY 10-26, 120-65 (1999). For example, Albert Einstein’s 1905 research papers proved the existence of atoms, Id. at 47, set forth the theory underlying development of the atomic bomb (e = mc2), see P. ERIC GUNDERSON, THE HANDY PHYSICS ANSWER BOOK 373 (1999), and provided the basis for quantum theory, see MCEVOY & ZARATE, supra, at 47-56, which is the basis for technology such as the laser, light detectors, and television cameras. See Frederick Golden, Albert Einstein, Person of the Century, TIME, Dec. 31 1999, at 62, 80-81. Quantum theory is the most successful set of ideas ever devised by human beings. It explains the periodic chart of the elements and why chemical reactions take place. It gives accurate predictions about the operation of lasers and microchips, the stability of DNA and how alpha particles funnel out of the nucleus. See MCEVOY & ZARATE, supra, at 3. 48 [VOL. 48:1 Black Quest for Economic Liberty American society and the general American economy continues to have lasting repercussions to this day.333 III. GOVERNMENTALLY IMPOSED SEGREGATION OF THE BLACK RACE: JIM CROW AND THE THEORY OF ECONOMIC DETOUR A. Between the End of the Civil War and the Turn of the Twentieth Century, the U.S. Supreme Court Judicially Silenced Virtually Every Major Effort by Congress to Achieve True Equality of Opportunity for Blacks and All Americans The U.S. Supreme Court arguably did more to crush the economic aspirations and self-esteem of black people than any other institution during the post-Reconstruction era. The damage done to black people by the Court, especially its infamous decision in Plessy v. Ferguson, has had lasting effects which have not been totally eradicated. This section of the Article illustrates the role the Court played in creating legal barriers which undermined the efforts of African Americans to participate equally in the American economic system of capitalism. 1. The Slaughterhouse Cases334 In The Slaughterhouse Cases, the Supreme Court held that the Fourteenth Amendment’s prohibition against state enforcement of any law abridging the privileges and immunities of citizens of the United States did not protect a U.S. citizen’s right to be free from fundamental civil rights violations not protected by state law.335 The Court then held that the only rights protected under the Privileges and Immunities Clause of the Fourteenth Amendment were a group of vaguely defined rights of national citizenship.336 Those rights of national citizenship included free access to seaports, federal protection when on the high seas or within the jurisdiction of a foreign government, and a few other limited rights.337 333. 334. 335. 336. 337. 2004] See generally discussion supra notes 45-49 and accompanying text. 83 U.S. (16 Wall.) 36 (1873). Id. See generally STEPHEN E. EMMANUEL, CONSTITUTIONAL LAW 403 (1997). Id. 49 Howard Law Journal The Court’s decision made the Fourteenth Amendment’s Privileges and Immunities Clause irrelevant in protecting United States citizens from state infringement of their fundamental rights secured by the Constitution’s Bill of Rights and other laws as the Supreme Court’s four-justice minority argued.338 This limited view of the Amendment has prevailed to this day. The Supreme Court’s post Slaughterhouse listing of rights of national citizenship include the right to travel from state to state, to petition Congress for redress of grievance, to vote in national elections, to enter federally-owned lands, to be protected while in the custody of a U.S. Marshall, and to inform U.S. authorities of violations of federal law.339 The Amendment remains limited to a few rights of national citizenship. The Supreme Court’s decision in the The Slaughterhouse Cases, which relied on the states to protect its citizens from civil rights violations, certainly did not advance the prospect of African Americans becoming equal participants in the American capitalistic economic system.340 Indeed, it was the Southern states, where 9 out of 10 African Americans resided,341 that were most determined to exile blacks to their own communities and to exclude blacks from associating with the rest of American society. However, The Slaughterhouse Cases were only an omen of what was to come. 2. United States v. Cruikshank342 The Supreme Court’s decision in United States v. Cruikshank paralyzed the federal government’s attempt to protect black citizens by punishing violators of their civil rights. The decision, “in effect, shaped the Constitution to the advantage of the Ku Klux Klan.”343 The government’s failure to protect the civil rights of a distinct group of individuals effectively excludes them from the economic system of capitalism.344 338. At least one early decision of a lower federal court read the language of the Fourteenth Amendment’s Privileges and Immunities Clause to protect individuals from state violations of fundamental rights contained in the Bill of Rights. See TRIBE, supra note 38, at 1303 (citing United States v. Hall, 26 F. Cas. 79, 82 (C.C.S.D. Ala. 1871)). 339. EMMANUEL, supra note 336, at 404. 340. See discussion supra notes 39-44 and accompanying text. 341. See discussion infra note 582 and accompanying text. 342. 92 U.S. 542 (1876). 343. See Leonard W. Levy, Cults (Religions) and the Constitution, in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 527 (Leonard W. Levy ed., 1986) (discussing Cruikshank). 344. See discussion supra notes 39-44 and accompanying text. 50 [VOL. 48:1 Black Quest for Economic Liberty The case arose out of a federal prosecution of nightriders responsible for the Colfax massacre of 1873 in Grant Parish, Louisiana. Several hundred armed whites besieged a courthouse where hundreds of blacks were holding a public assembly.345 The attackers burned down the building and murdered about 100 people. The United States tried Cruikshank and others involved in the massacre and convicted three for violating § 6 of the Force Act of 1870.346 That statute, which survives as § 241 of Title 18 of the United States Code,347 is a general conspiracy statute making it a federal crime for two or more persons to conspire to injure or intimidate any citizen with the intent of hindering his free exercise of any right or privilege guaranteed him by the Constitution or laws of the United States.348 The indictment claimed Cruikshank violated the federal rights of the victims to peaceably assemble, the right to bear arms, the right to be secure in one’s person, life and liberty, and the right to vote.349 The Court, in a unanimous opinion by Chief Justice Morrison R. Waite, ignored the statute and focused on the indictment to ascertain whether the rights of the black victims which Cruikshank and others interfered with were granted or secured by the United States.350 The Court, reasserting the theory of dual citizenship advanced in the Slaughterhouse Cases concluded that that the United States could not grant or secure rights not under its jurisdiction.351 The Court, examining each right that the indictment claimed to have been violated under the statute, found that each right was solely within the jurisdiction of the states to provide protection.352 According to the Court, none of the asserted rights were a federal right of national citizenship. The Court held that the right to peaceably assemble predated the Constitution and remained subject to state juris345. Id. 346. Id. 347. Title 18 is the U.S. Criminal Code. 348. 18 U.S.C. § 241 (2000). This statute is the modern successor to the criminal provision on which §1985(c) is based. Derived from the Civil Rights Act of 1870, § 241 punishes two or more persons who “conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoymeny of any right or privilege secured to him by the Constitution or laws of the United States” or who “go in disguise upon the highway” with intent to hinder enjoyment of such a right. See PETER W. LOW & JOHN C. JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERAL STATE RELATIONS 923 (4th ed. 1998). 349. United States v. Cruikshank, 92 U.S. 542, 544-45 (1876). 350. Id. at 551. 351. Id. at 549, 551-59 . 352. Id. at 551-59 2004] 51 Howard Law Journal diction.353 The Court stated Congress could not infringe it nor protect it since the right to peaceably assemble was not an attribute of U.S. citizenship.354 The Court’s rationale was the same with respect to the right to bear arms and the right to be secure in one’s person, life, and liberty.355 Accordingly, the Court held that Congress could not punish violence perpetrated by private persons such as Cruikshank. As for the right to vote under the Fifteenth Amendment, the Court held that the Fifteenth Amendment merely protected against discrimination based on race.356 The Constitution did not confer the right to vote on anyone. Thus, the Court held that the right to vote was not an attribute of national citizenship.357 The Court, by such reasoning, held that that the indictment did not show that the conspirators had hindered or prevented the enjoyment of any right granted or secured by the Constitution.358 Therefore, no conviction based on the indictment could be sustained. Consequently, the Court ordered the defendants discharged. The conspiracy statute remained impotent until revived during the Civil Rights Era of the 1960s. It was not until 1966 that the U.S. Supreme Court in United States v. Guest359 and United States v. Price360 upheld the first convictions under the Force Act and diminished the sweep of Cruikshank. 3. United States v. Reese361 The Supreme Court’s decision in Reese was the first voting rights case under the Fifteenth Amendment. The Reese decision crippled the federal government’s legislative efforts to protect the rights of blacks to vote by making it constitutionally possible for states to circumvent the Amendment through facially nonracial voting qualifica353. Id. at 551-52. 354. Id. 355. Id. at 553-54. 356. Id. at 555. 357. Id. 358. Id. at 549-51, 557-59. 359. 383 U.S. 745 (1966). In Guest, the Supreme Court upheld a conviction against private persons under 18 U.S.C. § 241. The Supreme Court held that Congress could proscribe racially motivated conduct committed with the intent to deprive the victim of rights guaranteed by the federal Constitution. In Guest, that right was the federally guaranteed right of interstate travel. 360. 383 U.S. 787 (1966). In Price, the Court held that private individuals who had acted together with local law enforcement officials in the notorious 1964 murder of three civil rights workers near Philadelphia, Mississippi acted under color of law and could be charged under 18 U.S.C. § 242 even though they themselves were not law enforcement officers. 361. 92 U.S. 214 (1876). 52 [VOL. 48:1 Black Quest for Economic Liberty tions intended to prevent otherwise qualified blacks from voting. The Court’s decision in Reese, along with its decisions Dred Scott v. Sandford, United States v. Cruikshank, and Plessy v. Ferguson, ranks as one of the Court’s worst decisions ever.362 Reese involved a federal prosecution of two state election officials who refused to allow a black citizen to pay his poll tax and vote in a municipal election.363 The United States prosecuted the election official under a congressional statute that prohibited election officials from refusing to qualify eligible voters or not allowing them to vote.364 Part of the statute specified denial on account of race and another part did not. For example, one section provided for the punishment of any person who prevented any citizen from voting or qualifying to vote.365 The Court, in an eight-one decision written by Chief Justice Waite, held the congressional statute unconstitutional because it swept too broadly as two sections did not “confine their operation to unlawful discriminations on account of race, etc.”366 The Court noted that the Fifteenth Amendment provided that the right to vote should not be denied because of race. Congress, however, had overreached its powers by seeking to punish the denial on any ground.367 The Court voided the whole statute because it said that the statute’s sections were inseparable.368 However, the Court inexplicably refused to broadly construe the stated sections in terms of those sections that explicitly prohibited election officials from denying persons the right to vote because of their race.369 The Court, by its narrow interpretation of the Fifteenth Amendment, made it constitutionally possible for states to deny the right to vote on any ground except race. As a result, the states created a number of facially neutral devises to ensure that whites would be able to 362. Baltimore Sun Columnist Gregory Kane, shortly after the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000), responded to “critics of the Supreme Court, who asserted that the Court “gave the 2000 election to George W. Bush.” Mr. Kane stated that the Court’s decision in Bush v. Gore was “not even in the top five” of the Court’s most horrible decisions. Mr. Kane ranked the Court’s decisions in Plessy, Dred Scott, and Cruikshank as second, third, and fourth worst decisions ever made by the Court. See Gregory Kane, High Court’s Gore Ruling Far From Its Worst, BALT. SUN, Dec. 24, 2000, at 1B. 363. Reese, 92 U.S. at 215. 364. Id. at 215-18. 365. Id. 366. Id. at 220. 367. Id. 368. Id. at 221. 369. Id. 2004] 53 Howard Law Journal vote but not blacks. Some of the devices used by states to achieve the disenfranchisement of blacks while ensuring that white voters would not be excluded included poll taxes, literacy tests, good character tests, understanding clauses, and grandfather clauses.370 The Reese decision had a negative impact on the efforts to fully include African Americans in the political and economic fabric of the United States. The relationship between politics and the economic advancement of African Americans has been amply demonstrated in American history.371 4. The Civil Rights Cases372 In The Civil Rights Cases, the U.S. Supreme Court invalidated the Civil Rights Act of 1875, which prohibited private persons from denying, on the basis of race, any individual’s equal access to any place of public accommodations (for example, hotels, public transportation, theatres).373 The Supreme Court held that the Fourteenth Amendment only prohibited state action. The Court also ruled that the Thirteenth Amendment was inapplicable because private individuals refusing entry to blacks did not constitute a badge of slavery.374 5. Hall v. de Cuir375 In Hall, the U.S. Supreme Court ruled that the Commerce Clause prevented a state from prohibiting segregation on a common carrier.376 The Court implicitly held, by negative implication, that states legally could require segregation of the races without violating the 370. See generally discussion infra note 581 and accompanying text. 371. See discussion supra notes 632-754 and accompanying text. 372. 109 U.S. 3 (1883). 373. Id. at 10. 374. In The Civil Rights Cases, the Court conceded that Congress could reach purely private conduct under the Thirteenth Amendment since it prevents individuals from holding others in slavery. 109 U.S. at 10. The Court’s narrow view of what constitutes a “badge of slavery” has been clearly overruled, at least with respect to Congress’ power to enact legislation to enforce the Thirteenth Amendment. In Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court dramatically broadened the power of Congress to enact legislation pursuant to its power, under Section 2 of the Thirteenth Amendment to “enforce” the amendment by “appropriate legislation.” The Court held that Congress had the power under the Thirteenth Amendment “rationally to determine what are the badges and incidents of slavery.” See id. at 440. Additionally, the Court held that Congress’ definition of those badges and incidents could rationally be a very broad one. The Court held that the Civil Rights Act of 1866, 42 U.S.C. § 1982, which prohibits race discrimination in real estate transactions and which was enacted solely in reliance on the Thirteenth Amendment, could not be impaired by private discrimination. Id. at 413. 375. 95 U.S. 485 (1878). 376. The Court held that a Louisiana law prohibiting racial segregation could not be applied to steamboat operations on the Mississippi River because of the burden it would impose on 54 [VOL. 48:1 Black Quest for Economic Liberty federal policy underlying the Fourteenth Amendment. Otherwise, the Court would have been compelled to hold, as it did eighty-five years later, that a state cannot interfere with interstate commerce by banning segregation since the Constitution prohibits both state and federal governments from requiring racial discrimination.377 The decision in Hall paved the way for the Supreme Court’s decision in Plessy v. Ferguson in which the Court permitted state governments to legally separate black people from the rest of the population.378 6. Plessy v. Ferguson379 In Plessy, the Supreme Court legalized state-enforced segregation of the races so long as states provided separate but equal accommodations for blacks. The Court held that the Fourteenth Amendment could not have been intended to abolish distinctions based on color, or to enforce social equality or a commingling of the two races upon terms unsatisfactory to either.380 The Supreme Court’s decision in Plessy sanctioned the racial caste system endorsed by the Southern states that allowed the states to separate African Americans from the general population. The Plessy decision effectively doomed the aspirations of African Americans to participate equally in the American capitalistic economic system. The laws passed during the era of legalized racial segregation are often referred to as “Jim Crow laws.”381 Greed and fear were the underlying motives behind these laws.382 More specifically, these motives included: the elimination of competition,383 economic exploitation of blacks,384 and prevention of the twin taboos of interracial marriage and dining.385 The states also intended for these laws to serve as a means for isolating, subordinating, disciplining, controlling, punishing, and humiliating blacks.386 Moreover, private companies steamboat operators if other states along the river enacted laws requiring segregation. See id. at 488-91. 377. See Colo. Anti-Discrimination Comm’n v. Cont’l Airlines, Inc., 372 U.S. 714 (1963). 378. 163 U.S. 537 (1896). 379. Id. 380. Id. at 544. 381. BENNETT, JR., supra note 11, at 255-56. 382. Id. at 258. 383. Id. at 257. 384. Id. at 257-58. 385. Id. at 256. 386. Id. at 257. 2004] 55 Howard Law Journal and individuals were free to explicitly discriminate against blacks in employment and virtually any other aspect of life.387 During this era, there were white jobs and black jobs. Furthermore, employers created rules that put strict limits on the relations between black and white factory workers.388 States passed laws which prohibited black and whites from eating together; forbade white nurses from treating black males; prohibited white teachers from teaching black students; made it a crime for black and white cotton mill workers to look out the same window; required separate textbooks for white and black students; mandated separate telephone booths for whites and blacks;389 required separate public drinking fountains and restrooms;390 and required that black and white witnesses swear upon separate bibles in court.391 One commentator has noted that, despite the indignities and horrors heaped upon black people during this era, there was “another side” to the “segregation drama.” The writer, in discussing this other side of the segregation drama, states that: Much is made of the horrors of the pre-civil rights South, the rigidity of Jim Crow regulations, the lynchings, the indignities of living life etched sharply in black and white. Those horrors were real . . . [a]nd yet . . . there was another side, a far more complicated side to the segregation drama, a side where black folks of means re-created the world in their own colored image. A colored world, that was, by necessity, populated with �Negro’ educators, teachers hell-bent at uplifting the race at �Negro’ universities, �Negro’ lawyers, �Negro’ newspapers, �Negro’ hospitals.392 Today, however, traditionally black-owned businesses formed during the days of segregation are increasingly being sold to corporate conglomerates.393 387. See, e.g., The Civil Rights Cases, 109 U.S. 3 (1883). 388. BENNETT, JR., supra note 11, at 258. 389. Id. at 256-57. 390. Id. at 289. 391. Id. at 256. 392. See Wiltz, supra note 35. 393. Id. For example, Bob Johnson sold BET to Viacom for $3 billion. Id. Similarly, “traditionally black-owned companies like Johnson Products, Soft Sheen, and Pro-Line, companies that were started in family basements, with everyone chipping in to make a go of it, have been sold to conglomerates.” Id. Moreover, Motown and many other black-owned companies sold out long ago. As a result, “there is among some African Americans a sense of loss” when blackowned companies become owned by non-blacks. Id. 56 [VOL. 48:1 Black Quest for Economic Liberty B. Blacks Were the Only Minority Group Excluded From the General Marketplace During Government-Enforced Segregation The institution of segregation laws involved the interference of government into the normal operation of the marketplace.394 The idea of economic detour395 is that black people, following reconstruction, were restricted from operating their businesses in the open market.396 This was not true for any other race or minority group.397 The U.S. Commerce Department acknowledged that there was a separate African American economic market apart from the general open market. In doing so, the Commerce Department conceded that the general open market place was closed only to blacks and no other minorities.398 The Chinese in Mississippi and the Japanese in California were able to enter the open market and compete although they often encountered hostility.399 When the Japanese had to rely solely on a Japanese market, their businesses were not successful.400 Similarly, blacks were more likely to be successful when they were able to develop a business clientele outside of the black community.401 1. The Sociology of Entrepreneurship, Solving the Riddle of Why the Black Economic Journey Has Been Different than Minority Groups Immigrating to the United States a. The General Concept The sociology of entrepreneurship examines the tendency of ethnic minorities to engage in business enterprise because of their exclusion from positions of political influence and subordination to a group of rulers.402 It is the sociology of self-help through entrepreneurial activities. Max Weber laid the foundation for studies examining the sociology of entrepreneurship.403 Weber observed that national or religious minorities who are in a position of subordination to the ruling 394. 395. 396. 397. 398. 399. 400. 401. 402. 403. 2004] BUTLER, ENTREPRENEURSHIP, supra note 63, at 72. Id. at 71-72. Id. Id. Id. at 72-73. Id. at 71. Id. at 72. Id. Id. at 2. Id. 57 Howard Law Journal class are likely to be driven into economic activity because of their exclusion from positions of political influence.404 b. Theory Underlying Sociology of Entrepreneurship Presupposes that Ethnic Minorities Adjusting to a New Country Have Access to the General Market of Consumers Edna Bonacich explored the relationship between ethnic minorities and entrepreneurship in America in her article entitled “A Theory of Middleman Minorities.”405 Bonacich’s research attempted to answer the question of how ethnic immigrants from other countries406 succeed in America in the face of systematic discrimination, prejudice, and political powerlessness.407 These immigrant groups typically leave their countries of origin in search of a “better way of life” in which they can find economic security.408 Her research established that disfavored ethnic groups achieved economic security by playing the middleman position within the structure of capitalism.409 Middlemen occupations include positions such as labor contractors, rent collectors, money lenders, and brokers. As middlemen, they negotiate property transactions between producers and consumers, owners and renters, the elite and the masses, and employers and employees.410 Hostility to these ethnic minorities forces them to operate on the fringes of the economic system.411 c. Free Blacks in the 1700s and 1800s Were Operating with Access to the General Market of Consumers, and Set the Foundation of the Black Business Tradition Contemporary scholars treating the sociology of entrepreneurship and race relations, such as Max Weber and Edna Bonacich, fail to acknowledge the works of black authors whose ideas and findings predate their own similar ideas.412 Yet these black scholars as early as 1898413 had demonstrated how free blacks during the 1700s had engaged in business enterprises even though they possessed half free sta404. 405. 406. 407. 408. 409. 410. 411. 412. 413. 58 BUTLER, ENTREPRENEURSHIP, supra note 63, at 2. Id. at 4. Id. at 7. Id. Id. at 8. Id. at 5. Id. Id. Id. at 35. Id. [VOL. 48:1 Black Quest for Economic Liberty tus.414 They make no mention of the entrepreneurial activities of persons such as Anthony Johnson in the 1600s, Jean Baptist Du Sable in the 1700s, the black-owned businesses during the 1700s, the variety of enterprises established by blacks prior to the Civil War, and the many black inventors415 during and after slavery was abolished. Some of the items which blacks invented include the potato chip, ice cream, the mop holder, the player piano, the rotary engine, the car coupler, the locomotive smoke stack, the ironing board, street-sweepers, the horseshoe, the lawn mower, the lawn sprinkler,416 the cooking range, riding saddles, the golf tee, the bicycle frame, the pencil sharpener, the elevator, the scaffold, the folding chair, the fountain pen, the clothes drier, and the refrigerator.417 2. Theory of Economic Detour Shows That the Government Forced Blacks, Unlike Any Other Ethnic Group in This Country, to Operate in a Segregated Market During the Era When Blacks Were Socially and Economically Segregated from the General Population The majority culture totally excluded blacks from professional opportunities in non-minority businesses during the years prior to the passage of Title VII of the 1964 Civil Rights Act.418 Private companies providing public accommodations such as hotels, restaurants, and other services were free to openly treat blacks with contempt, disdain, and hostility since they were not required by law to provide services to blacks on the same terms as to whites and other groups.419 Black professionals, including business people, medical doctors, dentists, and lawyers, had virtually no opportunity to use their professional expertise in the larger society. Similarly, the dominant culture largely excluded black wage earners from many skilled trades.420 Black workers, however, were always struggling to enter these skilled professions. Thus, white society relegated black workers to the status of laborers.421 414. 415. 416. 417. 418. 419. panying 420. 421. BUTLER, ENTREPRENEURSHIP, supra note 63, at 38. Id. at 48-63. Id. at 52, 60. Id. Butler, Myrdal Revisited, supra note 63, at 139. See generally The Civil Rights Cases, 109 U.S. 3 (1883); supra notes 372-74 and accomtext. Butler, Myrdal Revisted, supra note 63, at 139. Id. 2004] 59 Howard Law Journal Gunnar Myrdal, a Swedish institutional economist, provided a detailed account of the status of black business persons, professionals, and other workers in chapter fourteen of his groundbreaking book An American Dilemma: The Negro Problem and Modern Democracy.422 Myrdal gave the book its name in view of the “moral contradiction of a nation torn between allegiance to its highest ideals and awareness of the base realities of racial discrimination.”423 Chapter fourteen entitled The Negro in Business, the Professions, Public Service and Other White Collar Occupations, provided an in-depth study, replete with statistical analysis, highlighting the majority culture’s exclusion of blacks from the larger white economy during the years 1910-1940.424 Myrdal’s considerable research indicated that black business people and other black professionals were outside the overall American economy. Myrdal observed, while the Negro community gives places for a fair number of Negro preachers, teachers, and neighborhood storekeepers, it does not offer much chance for civil engineers and architects . . . [t]he latter have to work in the white economy, which does not want Negroes in such positions . . . [t]he Negroes’ representation among managers of industry, if anything, is still smaller.425 As former Republican congressman Jack Kemp stated in response to the Supreme Court’s decision in Grutter v. Bollinger,426 “Blacks were removed from the mainstream economy, denied access to education, job opportunities and access to capital and ownership.”427 The overwhelming majority of all black workers served the general white-dominated economy in low-paying subservient positions. Nevertheless, most black businessmen, professionals, and white-collar workers were either dependent on the segregated black community 422. See, MYRDAL 1, supra note 59, at 304. Gunnar Myrdal served as Swedish Minister of Trade and Commerce. Myrdal came to the United States as a Rockefeller Fellow and wrote An American Dilemma at the invitation of the Carnegie Corporation. See the back cover of Volume I of the 1998 reprinted edition. 423. Id. at back cover of Volume I of the 1998 reprinted edition. 424. See id. at 304-32. 425. Id. at 304. 426. 539 U.S. 306 (2003) (upholding the University of Michigan Law School’s use of racial diversity as a factor in its admissions process). 427. See Michael A. Fletcher & Lee Hockstader, U-Mich. Rulings Spur Strategic Scramble: Affirmative Action’s Backers and Foes Ponder Response to High Court’s Decision, WASH. POST, June 25, 2003, at A9. Mr. Kemp went on to state that “African Americans have long been denied their full measure of justice under law, and while great progress has been made, we have a long way to go.” Id. He also noted that: “While I agree that ultimately a colorblind society should be our goal, we certainly are not there yet.” Id. 60 [VOL. 48:1 Black Quest for Economic Liberty for their market or they served in public institutions like schools and hospitals set up exclusively for the use of blacks. Some civil service employees were the only significant exception.428 This exclusion from the larger white-collar economy meant that very little opportunity existed for inclusion of blacks in the American ideal of attaining middleclass status. This restriction of economic choice resulted in an almost non-existent black middle and upper class, and skewed the occupational distribution in those classes.429 The distribution of blacks resulted in a fair number of black preachers, teachers, and neighborhood storekeepers, while offering little chance for successful black engineers, architects, and other advanced professions.430 Industries catering to black customers, however, presented a virtual monopoly for blacks.431 Nonetheless, the monopoly of the black market presented a host of societal and ideological issues. Commenting on this point, Gunnar Myrdal noted that “[o]n one hand, [blacks] find that the caste wall blocks their economic and social opportunities [while] . . . [o]n the other hand, they . . . have a vested interest in racial segregation since it gives them what opportunity they have.”432 Myrdal’s study reviewed, among others, the employment of blacks in the following twelve businesses and occupations between 1910 and 1940: retailers and restaurants owners;433 undertakers, barbers, and beauticians;434 builders and manufacturers;435 bankers and financiers;436 life insurancers;437 teachers;438 clergy;439 medical professionals;440 legal professionals;441 government employees;442 performing artists;443 and the black underworld.444 428. 429. 430. 431. 432. 433. 434. 435. 436. 437. 438. 439. 440. 441. 442. 443. 444. 2004] MYRDAL 1, supra note 59, at 304. Id. Id. Id. at 305. Id. Id. at 307-08, 310. Id. at 309-10, 311. Id. at 312-13. Id. at 314-16. Id. at 317-18. MYRDAL 1, supra note 59, at 319-20. Id. at 321. Id. at 322-25. Id. at 326. Id. at 327-29. Id. at 329-30. Id. at 330-32. 61 Howard Law Journal a. Retail Trade and Restaurants Black persons in the retail trade businesses had difficulty competing with white businesses445 because of the small size and high cost of operating such establishments,446 the greater difficulty blacks experienced in securing credit for their businesses,447 and social and economic factors barring black persons from establishing retail businesses in the “main shopping districts.”448 Accordingly, the black retailer’s prices tended to be higher than the white retailer’s or, if the black businessman kept his prices down, his profit margins would be smaller than those of his white counterpart. Consequently, black owners of these businesses often failed to have a large enough variety of goods in stock to supply their customers’ needs.449 The relatively low level of black purchasing power,450 the higher prices charged by the black entrepreneur for his goods, the lack of product variety, the inability to generate any business from the white community, and minimal success in attracting black customers combined to create a vicious cycle which kept black entrepreneurs in the retail and restaurant businesses from achieving financial success.451 The “don’t buy where you can’t work” campaign in the North was an effort to get white-owned businesses in black neighborhoods to hire blacks in their establishments.452 This movement mostly found more of a home in the more politically open North than in the South. Nevertheless, in spite of the political oppor445. Blacks had only five or ten percent of the total trade to black consumers in the retail trade and restaurant businesses. Id. at 307. 446. Id. at 307-08. 447. Id. at 308. 448. MYRDAL 1, supra note 59, at 308. 449. Id. at 307-08. 450. Id. at 307. Myrdal noted that the black share of the national income was between 3-4 % of the total between 1910 and 1940. Id. Blacks constituted approximately 11.6% of the total U.S. population in 1900. Between 1920 and 1940, the black population averaged approximately 10% of the population. See WORLD ALMANAC AND BOOK OF FACTS 1998 397 (1998) (citing to Commerce Department figures by sex, race, residence and median income from 1790-1997). In 2001, the black national income of $601 billion constituted 5.96% of the total gross domestic product of the United States, which was $10 trillion, 82 billion. See discussion supra at notes 1314 and accompanying text. Accordingly, the percentage of black income has risen, at best, by three percent since 1930. This tends to indicate how little has changed, in some respects, since Myrdal did his research. Nevertheless, because of the size of the U.S. economy, the income of black Americans is greater than most nations on Earth. See discussion supra note 14; see also ANDREWS, supra note 4, at 15 (“On average, all Americans, no matter their color, are rich compared to most other people in the world.”). 451. See MYRDAL 1, supra note 59, at 307. 452. Id. at 313. 62 [VOL. 48:1 Black Quest for Economic Liberty tunity for dissent in the North, the black community witnessed little impact from this freedom movement.453 b. Undertakers, Barbers, and Beauticians The “real business group” according to Myrdal was the pool of about 3,000 black undertakers, making up nearly ten percent of all undertakers.454 Myrdal notes that black undertakers had a monopoly in this line of business because white undertakers did not want to touch the bodies of deceased blacks.455 This was especially true in the South.456 Black undertakers were successful, even though they never handled white funerals, because black people tended to spend lavishly on funerals irrespective of their economic plight.457 Black barbers, beauticians, and hairdressers tended to be successful for the same reasons;458 in 1930, there were 34,000 black entrepreneurs and employees in this line of work, constituting about ten percent of all such workers in the country. Myrdal noted that the undertaking and hair-care businesses were the only businesses in which the blacks were protected from white competition.459 He noted that blacks were able to retain only a small portion of the black market in other business endeavors of any consequence and seldom succeeded in keeping a substantial white market.460 c. Building Trades and Manufacturing In the South, there were more skilled black workers than skilled white workers in the building trades prior to the Civil War.461 Black contractors soon lost their footing in the industrialized South after the Civil War because of the need for capital and white society’s refusal to extend credit to blacks in this field. Whites, who imposed great restrictions on black efforts to obtain employment as wage earners, were even more unwilling to risk their money on black entrepreneurial ef453. 454. 455. 456. 457. 458. 459. 460. 461. 2004] Id. Id. at 309. Id. Id. Id. at 309-10. Id. at 310. Id. Id. MYRDAL 1, supra note 59, at 311-12. 63 Howard Law Journal forts in the building and manufacturing areas.462 Compounding these factors was the poor self-image held by post-emancipation blacks; feelings of inferiority and lack of adequate training were enhanced by the black would-be-entrepreneur’s slavery background.463 d. Banking and Finance The Freedmen’s Savings Bank and Trust Company, established on May 16, 1865,464 was the first notable attempt to assist blacks in establishing a bank that would cater to the needs of the black community.465 President Lincoln signed an Act of Congress incorporating the Freedmen’s Bank and Trust Company on March 3, 1865, the same day on which he signed the Act creating the Freedmen’s Bureau.466 Congress did not incorporate the bank as a government institution. Congress, however, viewed the bank as a philanthropic venture that would safeguard the savings of the freedmen and encourage them in habits of thrift.467 Between 1866 and 1871, the bank established a total of thirty-four branches, thirty-two of which were in the South.468 The bank ultimately had branches in thirty-six cities469 and, by 1874, total deposits of $57 million.470 The Freedmen’s Bank and Trust Company aimed to train black businessmen and to encourage blacks in the acquisition of property.471 The bank employed few blacks when it was first established.472 Nonetheless, an increasing number of blacks obtained positions after 1870.473 Abram Harris notes in his book, The Negro as Capitalist, that “[i]n Richmond and Norfolk, Virginia, as well as in Washington [District of Columbia], Negro business men and property holders were members of the advisory councils and the board of trustees. Many were also employed as clerks, tellers and bookkeepers at the central office and at numerous branches.”474 462. Id. 463. Id. 464. HARRIS, supra note 11, at 34. 465. MYRDAL 1, supra note 59, at 314. 466. HARRIS, supra note 11, at 34. 467. Id. at 37. 468. Id. at 35. 469. MYRDAL 1, supra note 59, at 314. 470. Id. at 314; see also HARRIS, supra note 11, at 36 tbl.II (showing the total business of the Freedmen’s Bank). 471. HARRIS, supra note 11, at 56. 472. Id. 473. Id. 474. Id. 64 [VOL. 48:1 Black Quest for Economic Liberty Unfortunately, the bank, though covered by U.S. securities, made unwise use of reserve deposits and failed during the Depression of 1874.475 Harris notes, however, that the bank’s speculative and dishonest management group caused the bank’s failure by “its investments in overcapitalized and speculative ventures . . . its high operating costs and heavy investments in fixed assets.”476 The Freedmen’s Bank, although mismanaged, accomplished its purpose of “implant[ing] certain social and economic ideals in Negro life” including “respectability.”477 Nevertheless, the Freedmen’s Bank failure, with a loss of $4 million that was not replaced, caused much distrust among blacks inclined to save.478 In the 1880’s, black leaders began to call for the development of black businesses in increasing numbers.479 They also called upon the black population to form banks to assist black businesses in acquiring credit and capital.480 In 1888, fifteen years after the failure of the Freedmen’s Bank, blacks established the first banks that were actually organized and administered by blacks.481 The growth of black banks thereafter was remarkable.482 Blacks organized no fewer than twentyeight banks between 1899 and 1905.483 These banks followed in the wake of the expansion of fraternal insurance and burial societies that took place in the first twenty years after the Civil War.484 The black church and ministry were largely responsible for the establishment of the fraternal insurance and burial societies.485 These fraternal insurance and burial societies were necessary since it was clear that the dominant society did not accept former slaves as the social equals of whites and did not welcome them to assimilate into the social life of the general community.486 As the fraternal organizations and societies increased in number, there was a corresponding increase in the capital, investments, and subsidiary businesses developed by these organizations.487 The increasing asset 475. 476. 477. 478. 479. 480. 481. 482. 483. 484. 485. 486. 487. 2004] MYRDAL 1, supra note 59, at 314. HARRIS, supra note 11, at 50. Id. at 55. MYRDAL 1, supra note 59, at 314-15. HARRIS, supra note 11, at 61-66. Id. at 66-67. Id. at 57. Id. Id. Id. Id. at 58. Id. at 57. Id. at 58. 65 Howard Law Journal basis of these organizations led to the formation of the first banks organized and administered by blacks.488 Blacks organized at least 134 banks between 1888 and 1934.489 The greatest number of black bank failures occurred between 1928 and 1931 during the Great Depression.490 The total number of black banks during this period decreased by 50%.491 There were 30 black banks in 1927, 28 in 1928, and 21 in 1929.492 In 1934, there were 12 black banks in existence.493 The most significant failures of black banks494 took place in Virginia,495 the District of Columbia, Maryland,496 Pennsylvania,497 and Illinois.498 During the era of segregation, most black banks were small, a characteristic that increased operating costs.499 Because of their small size, these banks tended to invest in more secure, low-yield government securities.500 Bank investments in black-owned property produced dismal results since segregation produced a restricted market for black-owned property.501 A large percentage of black borrowers, compared to white borrowers, used loans for consumption rather than investment and production purposes.502 Additionally, very few black families had any money for savings or checking accounts.503 Blacks began to establish building and loan associations because they were unable to obtain loans from white institutions to build their own homes. Blacks formed the first black-owned building and loan association in Virginia in 1883.504 By 1930, blacks established approximately 70 savings and loan associations with assets totaling $6.6 million. This was less than 1% of the total assets of all American building and loan associations.505 Some of the more successful savings and 488. 489. 490. 491. 492. 493. 494. 495. 496. 497. 498. 499. 500. 501. 502. 503. 504. 505. 66 Id. HARRIS, supra note 11, at 75. Id. at 76. Id. Id. Id. Id. at 76. Id. at 77-124. Id. at 125-50. Id. at 151-72. Id. at 173-96. HARRIS, supra note 11, at 173-96. Id. Id. Id. Id. Id. MYRDAL 1, supra note 59, at 315. [VOL. 48:1 Black Quest for Economic Liberty loan associations had a partly white clientele providing larger business and greater diversification of risks.506 Most black savings and loans, compared to their white counterparts, were small, had higher costs, and charged somewhat higher rates of interest.507 e. Life Insurance Black entrepreneurs had greater business success in the life insurance industry.508 The reasons included the differential treatment afforded black customers by white insurance companies in the form of higher premiums and the fact that even the poorest black families had some form of insurance.509 The life insurance business provided little real protection to anyone other than black undertakers, however.510 In 1939, there were sixty-seven black insurance companies with 1,677,000 policies, a total income of $13 million and about 8,000 workers.511 The black insurance business, like other black financial institutions, grew out of the black church, lodges, and benevolent associations.512 Nevertheless, the black-managed insurance company, like the black banks of this era, could not escape the fact that they thrived on a poor, segregated community that could not offer these businesses any range of investment opportunities to minimize their risks.513 f. Teachers Teaching was the principal black profession during the era of segregation when Myrdal did his research.514 A black person’s chance of getting a job was much higher in the segregated South than in the North.515 Black teachers were able to monopolize the teaching field in the South. The open field of segregated classrooms in the South did not mean, however, that black teachers were paid on the same scale as 506. Id. at 316. 507. Id. 508. Id. 509. Id. 510. Id. at 317. 511. Id. 512. Id. 513. Id. at 318. 514. Id.; see also id. at 319 tbl.3 (charting census figures for black professional workers in 1910 and 1930). 515. MYRDAL 1, supra note 59, at 318. 2004] 67 Howard Law Journal their white counterparts.516 Blacks constituted 4.9% and 5.2% of all teachers in the United States in 1910 and 1930, respectively.517 g. Clergy The black clergy constituted the second largest group among black professionals.518 They “enjoy[ed] a complete monopoly behind the caste wall of segregation.”519 This did not mean, however, that the profession provided sufficient income for that population to survive. Many ministers had very small, very poor congregations and were forced to have second jobs to survive.520 The ministry was the only profession in which blacks had greater representation than their percentage of the general population.521 Black clergymen constituted 14.8% and 16.8% of all such professionals in the United States in 1910 and 1930, respectively.522 Myrdal stated that probable reasons for the high percentage of black ministers in the profession were that opportunities were restricted for blacks in other fields, more blacks attended church than whites, and the religious interests of blacks were more divided than whites.523 h. Medical Profession During the segregation era, most whites would not go to a black doctor due, at least in part, to racial prejudice.524 There were some questionable exceptions to this general practice. White patients who wanted to conceal venereal diseases and pregnancy from their white friends, and some low-income whites who had problems getting treatment from white doctors would visit black doctors.525 The black doctor, in spite of his secret white clientele, still had difficulty succeeding. The black doctor had to rely heavily on his black patients, who had little income to expend on health care, and white patients who were equally poor. Additionally, black doctors had to convince their white patients to trust them.526 516. 517. 518. 519. 520. 521. 522. 523. 524. 525. 526. 68 Id. at 319. Id. tbl.3. Id. at 321. Id. Id. Id. Id. at 319 tbl.3. Id. at 321. Id. at 322. MYRDAL 1, supra note 59, at 322. Id. at 323. [VOL. 48:1 Black Quest for Economic Liberty The hospital setting provided an even greater challenge for black doctors.527 Harlem Hospital in New York City was one of the few hospitals in the country where white and black doctors practiced together under a system of equality.528 Moreover, the growth of public health facilities limited the employment opportunities for black physicians who were faced with the prospect of losing all their patients unless he was given a place in the new public health system.529 Loss of patients and minimal opportunities for training and specialization at hospitals fueled the perception that black physicians and surgeons were not as qualified as their white counterparts.530 Howard University in Washington, District of Columbia and Meharry University in Nashville, Tennessee, trained about four-fifths of all black doctors during this time period.531 The students at these schools passed the state medical boards in approximately the same percentages as graduates of white schools.532 Black medical doctors constituted 2% and 2.4% of all members of that profession in 1910 and 1930, respectively.533 The medical profession treated black nurses similarly to black doctors. The nursing profession was even harsher, resulting in an even smaller number of blacks in this profession.534 Nurses had to depend on the public health system for employment because they could not count on income from private practice.535 Black nurses occupied a peculiar place in the health system since white nurses treated black patients directly but had black nurses do all the “dirty work.”536 Black nurses constituted 3% and 1.9% of all nurses in the United States in 1910 and 1930, respectively.537 Black dentists fared only a little better than doctors and nurses. There were very few black dentists in rural areas, forcing those blacks to frequent white dentists whether they wanted to or not.538 The black dentist, like the black doctor had to resort to other outside jobs 527. 528. 529. 530. 531. 532. 533. 534. 535. 536. 537. 538. 2004] Id. Id. Id. at 324. Id. Id. Id. Id. at 319 tbl.3. Id. at 325. MYRDAL 1, supra note 59, at 325. Id. Id. at 319 tbl.3. Id. at 325. 69 Howard Law Journal to survive.539 Black dentists constituted 1.2% and 2.5% of all dentists in the United States in 1910 and 1930, respectively.540 i. Legal Profession Blacks constituted less than 1% of all attorneys licensed to practice law in the United States in 1910 and 1930.541 Almost two-thirds of black lawyers lived outside the South and were the product of white law schools in the North.542 The majority of black lawyers in the South had some other occupation to support themselves.543 Black attorneys during this era rarely appeared in court to represent blacks in actions against whites. Instead, they focused on work dealing with black churches, fraternal organizations, domestic relations, and criminal matters.544 j. Officials and White Collar Workers in Government Employment All, or at least some, of the black workers previously discussed, teachers, physicians, surgeons, nurses, social workers, extension service workers, and so on, worked in public service for some government agency.545 Despite adversities, blacks had more opportunity for employment in the government than in any other profession. When government employment of blacks in the military is factored in, it becomes clear that government work has been an important factor in black economic stability.546 The largest remaining occupation of blacks in government service in 1930 was the 18,000 blacks working in the postal service. Of this number, 7,000 were clerks, 6,000 were mail carriers, and the remaining group occupied various minor categories.547 This was approximately triple the number in 1910.548 In other public service work, there were approximately 6,000 black officials and white collar workers in 1930. Of these, less than 2000 were policemen, sheriffs, and detectives; more than 3000 were clerks and kindred workers. Government employed the remaining 539. Id. 540. Id. at 319, tbl.3 541. Id. at 326. 542. Id. 543. Id. 544. Id. 545. MYRDAL 1, supra note 59, at 327. 546. Myrdal addressed employment by blacks in the military in chapter 19, section 4 of his book; see also discussion infra notes 571-72 and accompanying text. 547. MYRDAL 1, supra note 59, at 327. 548. Id. 70 [VOL. 48:1 Black Quest for Economic Liberty blacks in a variety of categories.549 This group made up approximately 1% of the total. Whites drove out most blacks from positions in state and local government after Reconstruction.550 The process of driving blacks from positions in the federal government, however, was slower. During the Wilson administration, the number of black postmasters declined from 153 in 1910, to 78 in 1930, and the government removed several other black officials.551 Moreover, the federal government utilized new methods to screen out potential black job applicants. One screening device simply required that each applicant supply a photograph. However, the expansion of the federal government during World War I, the rapid increase in the number of black voters in the North, and the friendlier attitude toward the employment of blacks under the New Deal era of President Roosevelt counteracted, somewhat the effects of these discriminatory policies.552 k. Performing Arts Historically, whites have given blacks a somewhat backhanded praise for artistic ability.553 Blacks created the jazz, blues, rock and roll, and hip-hop art forms and tend to excel in sports.554 The assumption during the era of segregation was that the arts were the only field in which blacks could have achievements and that the arts required less academic prowess.555 Prior to 1915, blacks made up very little of the audience attending shows, and whites played most black characters.556 Blacks served as assistants in these shows and the later migration of blacks to the North greatly increased the number of blacks in show business.557 New York was the center for black employment in the entertainment industry during the earlier period of the twentieth-century. New York was home to the Apollo Theater and provided more opportunities for blacks to find work in the white-owned downtown theatres.558 Hollywood employed a few hundred blacks, but they mostly played 549. 550. 551. 552. 553. 554. 555. 556. 557. 558. 2004] Id. Id. Id. Id. at 327-28. Id. at 329. See AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 368-71, 510-44. MYRDAL 1, supra note 59, at 327. Id. at 329. Id. at 329-30. Id. 71 Howard Law Journal minor parts and acted as extras. Accordingly, economic opportunities for black screen actors were very limited during the first forty years of the twentieth century.559 l. The Black Underworld The great restrictions of economic and social opportunities for blacks in ordinary lines of work, the encroachments on their rights and personal integrity, and their general experience of exclusion and isolation contributed to the proliferation of the black underworld of crime.560 Other factors that contribute to this underground economy are crowded ghettos that are often in proximity to “red light districts” and the lack of wholesome recreation for blacks in urban areas.561 Accordingly, in most large cities, there was a black underworld economy of petty thieves, gambling, racketeers, prostitutes and pimps, bootleggers, dope addicts, and those organizing and controlling these various crimes and vices.562 The pervasiveness of institutional racism, based on the premise that blacks were inferior and whites were superior, which dictated that they should not mix socially, politically, or economically, is the real reason why blacks have found such little success in business. The persistent segregation and exclusion of African Americans from the dominant culture served to insulate the dominant criteria of economic achievement from the influence of black American culture. The policies of segregation and exclusion also perpetuated the existence of a black American culture that is different from, and subordinate to, the dominant perspective.563 Black Americans in business in the early 1900s were still living under the shadow of Dred Scott v. Sandford,564 which declared that they had no rights that the white man was bound to respect.565 559. Id. at 330. 560. Id. at 332. 561. Id. 562. Id. at 330. 563. See generally Robert L. Hayman & Nancy Levit, The Constitutional Ghetto, 1993:3 WIS. L. REV. 627 (1993). 564. 60 U.S. (19 How.) 393 (1857). 565. Id. 72 [VOL. 48:1 Black Quest for Economic Liberty m. Myrdal’s Findings Compared with Post-Civil Rights Era Developments John Sibley Butler, in his work entitled Myrdal Revisited: The Negro In Business, the Professions, Public Service and Other White Collar Occupations,566 noted that Myrdal’s work stands as the standard for analysis in race relations despite the massive changes which have taken place since the time Myrdal wrote An American Dilemma.567 Those changes include the end of segregation and a massive civil rights movement which resulted in legislation designed to provide equality for blacks in employment, public accommodations, housing, education, government contracting, and other areas.568 Myrdal’s discussion of blacks in business and the professions took place when segregation was in full force. Today, blacks are still underrepresented in the professions, although there have been some nominal improvements in certain categories such as nursing. The percentage of black physicians, as a percentage of the black population, demonstrated essentially no growth as of the 1980 census, and black lawyers remain underrepresented.569 The participation of blacks in the military, however, arguably represents the greatest change since Myrdal’s work.570 The military has provided an opportunity structure and economic security for blacks that have probably exceeded developments in the civilian sector.571 With regard to black businesses, perhaps the greatest change since Myrdal’s research is that black businesses now serve the entire business community and not just the black community.572 Additionally, black businesses are engaged in manufacturing, technology, and other sectors not readily available to black entrepreneurs prior to the modern civil rights movement.573 John Sibley Butler’s analysis indicates that, regardless of the historical period, blacks who have adjusted to the harsh realities of racism through entrepreneurship rather than assimilation have demonstrated a stronger emphasis on self-help and the value of edu566. 567. 568. text. 569. 570. 571. 572. 573. Butler, Myrdal Revisited, supra note 63, at 138. Id. Id. at 138, 154; see also discussion infra at notes 633-755, and 949-51 and accompanying 2004] 73 Id. at 160-61. Id. at 160. Id. Id. at 157. Id.; see also discussion infra at notes 795-96, and 798-803 and accompanying text. Howard Law Journal cation.574 Black entrepreneurs produce, through their children, the greatest number of black college graduates, professionals, and businessmen. Research also indicates that these values are seen in members of the military and their progeny.575 Butler suggests that future research should examine the black professional and business class in the tradition of middleman minorities576 to better understand data patterns from a historical view.577 C. Notable Events and Statistics During the Era of State-Imposed Discrimination 1. Lynching and Disenfranchisement Between 1878 and 1898, whites lynched approximately 10,000 persons, most of whom were black.578 Between 1890 and 1900, whites lynched approximately 1,217 persons, most of whom were black.579 Additionally, during this era, states systematically disenfranchised blacks through violence, massacres,580 and a variety of legal devices such as literacy tests, property tests, poll taxes, understanding clauses, and grandfather clauses.581 At the turn of the century, nine out of every ten blacks lived in the rural South582 and four million freedmen had grown to eight million.583 In 1901, George H. White, 574. See id. at 146-60, 164-65. 575. Id. at 163, 165. 576. The “theory of middleman minorities,” see supra notes 402-11 and accompanying text, “holds that a segment of an oppressed community turns to entrepreneurship and institutional building because of discrimination.” Butler, Mydral Revisited, supra note 63, at 164. It is these middleman minorities, research indicates, that produce the college-educated population and a professional class. Id. 577. Id. at 165. 578. Id. at 258. 579. Id. at 271. 580. Id. at 265-77. 581. Id. at 275-76. Lerone Bennett states the initial problem facing the former Confederate states in their desire to prevent blacks from voting was the following dilemma: “How it was possible to disenfranchise poor blacks without at the same time legally disenfranchising poor whites.” Id. at 275. Bennett then states: The answer the South came up with was a wall with holes in it. The wall was made of literacy and property tests and poll taxes. The holes, designed especially for illiterate and property-less poor whites, were �understanding clauses’ and �grandfather clauses’. If a man’s ancestors voted on or before a selected date in, say 1866—a date on which unfortunately there were no black voters—then he could escape the other provisions. Or he could escape through the holes of �good’ character or the �under-standing’ clause. If he couldn’t read or write and if he was white, surely he could understand and explain an article of the constitution. But if he was black, the �read and write’ and �understanding’ clauses were unbridgeable walls that no amount of literacy could bridge. Id. 582. Id. at 295. 583. Id. at 296. 74 [VOL. 48:1 Black Quest for Economic Liberty the last black congressman elected in the 1800s from the South, ended his last term in congress.584 2. Development of Rigid Segregation Produced the Most Significant Ideological Split Among Black Scholars Beginning in the 1880s, black leaders began urging the black population “to place increasing faith in business and property as a means of escaping poverty and achieving economic independence.”585 Black leaders urged this route as a means of black self-help through racial cooperation with the ultimate goal of economic emancipation.586 Black leaders of this era looked to business enterprise as the basis of black economic advancement.587 They exhorted the black masses to escape the wage earning class and to become entrepreneurs in charge of their own fate.588 From 1898 to 1930, black enterprises grew in number from approximately 1,900 to 70,000.589 The driving force in this movement became the Negro Business League, formed in 1900.590 Booker T. Washington was the organization’s first president.591 a. Booker T. Washington i. Speeches of 1884 and 1895 Booker T. Washington was a nine-year-old slave in Virginia when General Robert E. Lee surrendered to General Ulysses S. Grant at Appomattox in 1865.592 Washington enrolled at Hampton Institute in 1872 at the age of sixteen.593 He founded Tuskegee Institute, “which he built from the ground up”594 in 1881, at the age of twenty-five.595 In 1884, Booker T. Washington, the twenty-eight year old president of Tuskegee gave a speech to the National Education Association in Madison, Wisconsin.596 The U.S. Supreme Court, a year earlier in 1883, had struck down the Civil Rights Act of 1875 which prohibited 584. 585. 586. 587. 588. 589. 590. 591. 592. 593. 594. 595. 596. 2004] Id. at 295-96. HARRIS, supra note 11, at 61. Id. Id. at 61. Id. at 62. Id. at 66. Id. Id. BENNETT, JR., supra note 11, at 262. Id. at 263. BENNETT, JR., supra note 11, at 263. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 88. BENNETT, JR., supra note 11, at 263. 75 Howard Law Journal private individuals from discriminating against black persons in providing public accommodations such as theatres, hotels, places of public amusement, and other facilities. Washington told the audience at the National Education Association that it was unnecessary to press for a new civil rights bill to guarantee blacks civil rights and such efforts should not be undertaken.597 Instead, Washington said that “[b]rains, property, and character for the Negro will settle the question of civil rights.”598 His solution was that “[g]ood school teachers and plenty of money to pay them will be more potent in settling the race question than many civil rights bills and investigating committees.”599 Booker T. Washington’s speech, eleven years later, at the opening of the Cotton States and International Exposition on September 18, 1895, is his most influential speech.600 The speech brought Washington national prominence for his position that blacks accept segregation for guarantees of economic progress.601 Washington’s dazzling speech, a parable with extensive use of metaphors,602 is best summarized by the following quotes. Washington stated that “[i]n all things purely social [blacks and whites] can be as separate as the fingers . . . yet one as the hand in all things essential to mutual progress.”603 He then stated that “the agitation of questions of social equality is . . . folly” and that the economic and social equality of blacks “must be the result of severe and constant struggle rather than of artificial forcing.”604 Washington became the official spokesman for the black community for the next twelve years, dining with President Theodore Roosevelt and wielding considerable influence.605 ii. Positive Aspects of Booker T. Washington’s Approach Washington’s approach assumed that whites would have little hostility to black business endeavors since black people would not be protesting for civil rights.606 Consequently, Washington believed that white people would be willing to contract with black businesses for 597. 598. 599. 600. 601. 602. 603. 604. 605. 606. 76 Id. Id. Id. Id. at 263-67. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 88. BENNETT, JR., supra note 11, at 263-64. Id. at 265. Id. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 88. BUTLER, ENTREPRENEURSHIP, supra note 63, at 66. [VOL. 48:1 Black Quest for Economic Liberty certain services in which whites were not active.607 Washington envisioned a captured black market for black entrepreneurs in those types of occupations.608 He recognized that segregation made it difficult for blacks to venture out of their community with respect to a wide array of endeavors.609 Yet, Washington saw the possibility of black economic stability through business enterprise which would be able to cater to the needs of black Americans and, hopefully, to the needs of whites.610 Washington’s ideas laid the foundation for economic nationalism, which predated the ethnic enclave theories of Max Weber, Edna Bonacich, and others. None of these individuals have recognized Washington’s contribution, however. Washington’s motto, that one need not hunt for a job if one could perform some useful service, stressed the need for blacks to own their own businesses and to become economically self-sufficient.611 Therefore, Washington emphasized the need for blacks to obtain an industrial education to learn a variety of trades that could form the basis of a profitable business.612 Washington’s entire approach, however, was predicated on black entrepreneurs serving an integrated clientele.613 iii. System of Rigid Segregation—Applicable Exclusively to American Blacks—Doomed Washington’s Vision of Economic Prosperity for Southern Blacks Through Entrepreneurship The system of complete governmental segregation demolished Washington’s goals for black economic stability in the South. The rigid system of segregation established in the South applied exclusively to African Americans; it was not applicable to Mexican Americans, Chinese Americans, Jewish Americans, Native Americans, or anyone else.614 Government-imposed segregation and the customs of white private businesses took away the opportunity for blacks to compete in a truly open market.615 The fundamental difference between black businesses and other ethnic businesses is that the government 607. 608. 609. 610. 611. 612. 613. 614. 615. 2004] Id. Id. Id. Id. Id. Id. Id. Id. Id. at 66-67. at 64. at at at at at 68. 295. 68. 67. 68. 77 Howard Law Journal forced blacks to find clients within their own communities. The U.S. Department of Commerce acknowledged that the black business market was separate from the general economic market that included all other groups.616 iv. Unfortunate Aspects of Booker T. Washington’s Approach Washington acquiesced on issues of social equality; he did not believe blacks should focus on protesting for civil rights possessed by other Americans.617 Critics of Washington suggest that his philosophy paved the way for the Supreme Court’s decision in Plessy v. Ferguson; critics also suggest that Washington’s passive philosophy may have been responsible for the increased violence against blacks in the 1890’s.618 b. W.E.B. Du Bois William Edward Burghardt Du Bois was born in 1868 and died in 1963.619 Du Bois was a sociologist by training who was drawn into the political arena for two major reasons. The first was his antipathy toward racism.620 The second was his opposition to Booker T. Washington’s approach, which encouraged blacks not to protest for social equality and civil rights621 in the hope that white people would be more inclined to utilize black businesses.622 Du Bois urged blacks to protest for civil rights without regard to race.623 He also encouraged the most intellectually talented blacks to seek a broad liberal arts education624 that would prepare them to obtain positions of leadership within the American economy.625 Thus, Du Bois encouraged gifted black students to look beyond Washington’s focus on industrial education and labor-intensive industrial occupations. Du Bois was one of the founders of the Niagara Movement 616. BUTLER, ENTREPRENEURSHIP, supra note 63, at 72-73. 617. BENNETT, JR., supra note 11, at 265. 618. Id. at 265, 267. “Down went the buckets and they came up filled with brine. Economic discrimination continued. Caste lines hardened. Separate became more separate and less equal, and lynchings reached new and staggering heights. Washington was not responsible for these developments. But his “submissive philosophy,” C. Vann Woodward said, “must have appeared to some whites as an invitation to further aggression.” Id. at 267. 619. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 81. 620. Id. 621. Id. 622. BUTLER, ENTREPRENEURSHIP supra note 63, at 66-67. 623. Id. at 64. 624. Id. 625. Id. at 61. 78 [VOL. 48:1 Black Quest for Economic Liberty and the subsequent NAACP in 1909.626 He would edit the NAACP’s journal, The Crisis, for the next twenty-five years.627 Du Bois’ research628 indicated that northern black businesses in the services industry, established as early as the 1700s in places like Philadelphia, were being replaced by businesses run by immigrants arriving during the great wave of European immigration.629 Du Bois noted that the arrival of immigrant groups invaded the black stronghold in these businesses. These black businesses in the North became as vulnerable as those in the South because of the shrinkage of the market to the black community.630 The development of legal segregation in the South and new racial patterns in the North set the pattern of racial interaction for the next one hundred years.631 IV. CIVIL RIGHTS ERA OF THE 1950s-1970s TO THE PRESENT A. The End of Legally Imposed Apartheid in the United States in 1954 The modern civil rights movement began after World War II.632 Blacks were no longer willing to tolerate discrimination in a country they had fought and died to defend.633 The movement began its major phase after the Supreme Court’s decision in Brown v. Board of Education,634 which ended the legal apartheid permitted by Plessy v. Ferguson.635 Some of the major events of this era include the Montgomery Bus Boycott (1955-1956),636 formation of the Southern Christian Leadership Conference (1957),637 the Student Nonviolent 626. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 81. 627. Id. 628. See BUTLER, ENTREPRENEURSHIP, supra note 63, at 69; see also, BENNETT, JR., supra note 11, at 678. 629. BUTLER ENTREPRENEURSHIP, supra note 63, at 69. 630. Id. at 69-70. 631. Id. 632. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 60. 633. Id. 634. 347 U.S. 483 (1954) (Brown I). 635. 163 U.S. 537 (1896); see also AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 60. 636. Id. at 16, 60, 68, 84. 637. Id. 2004] 79 Howard Law Journal Coordinating Committee (1960),638 the Freedom Rides (1961),639 the March on Washington (1963),640 and Freedom Summer (1964).641 The Brown decision ended the era of legal, state sanctioned apartheid permitted by the Court’s decision in Plessy. The Brown decision, however, did not affect the right of private businesses and individuals to discriminate on the basis of race in employment, the provision of public accommodations, and other aspects of life. These private firms and individuals were able to continue their discriminatory practices without restriction until the effective date of the Civil Rights Act of 1964.642 During the 1960s, the Supreme Court also gave surprisingly expansive rulings in interpreting several civil rights statutes enacted immediately after the Civil War and during the subsequent Reconstruction era. Prior to these decisions, the legal community assumed that these statutes, the Civil Rights Acts of 1866, and the Civil Rights Act of 1871 required “state action” in order to be violated.643 The Supreme Court held that private entities and individuals who were not employed by state or local governments could violate these civil rights statutes.644 Additionally, the Supreme Court gave new life to another Reconstruction Era statute, § 1983 of the Civil Rights Act of 1871,645 by overturning a long-standing assumption, based on the Civil Rights Cases,646 that the statute only prohibited misconduct resulting from “state action” either officially authorized or so widely tolerated as to amount to a custom or usage under state law.647 In Monroe v. Pape,648 the Supreme Court held that § 1983 could be violated even by the unauthorized conduct of state officials.649 638. Id. at 16, 18, 60, 67, 68, 165. 639. Id. at 16, 17, 60, 65, 68. 640. Id. at 17, 21, 60, 68. 641. Id. at 17-18, 60, 65, 85. 642. The Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000h (2002), became effective on July 2, 1965. See Griggs v. Duke Power Co., 401 U.S. 424 (1971). 643. See, e.g., supra note 374. 644. See, e.g., Runyon v. McCrary, 427 U.S. 160 (1976) (giving a similarly broad reading to 42 U.S.C. 1981, which prohibits race discrimination in contractual dealings); Griffin v. Breckenridge, 403 U.S. 88 (1971) (holding that 42 U.S.C. § 1985(3) prohibits private conspiracies to deny equal rights); and Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (giving new life to 42 U.S.C. § 1982, which prohibits race discrimination in property transactions, by holding that the statute could be violated by private entities and individuals). 645. 42 U.S.C. § 1983 (2000). 646. 109 U.S. 3 (1883). 647. See Monroe v. Pape, 365 U.S. 167, 171-72 (1961). 648. Id. at 167. 649. Id. at 172. 80 [VOL. 48:1 Black Quest for Economic Liberty B. Civil Rights Groups with an Economic Agenda During the Modern Civil Rights Era The major black civil rights organizations,650 which pushed an economic agenda during the modern civil rights era, include the National Association for the Advancement of Colored People (NAACP),651 the National Urban League,652 the Southern Christian Leadership Conference,653 the Congress of Racial Equality (CORE),654 the Nation of Islam,655 and the Black Panther Party.656 These organizations recognized that the social and political gains of the 1960s would be incomplete without the efforts to achieve economic liberty and equality for all black Americans. C. Programs Designed to Deal with the Social, Political, and Economic Problems of Blacks 1. Lyndon B. Johnson and Executive Order 11,246 President Lyndon Johnson issued Executive Order Number 11,246 in 1965.657 The Executive Order mandated that every nonexempt federal government contract contain provisions that impose dual obligations on contractors and subcontractors not to discriminate against employees or applicants because of race, color, religion, sex, or national origin; and to take affirmative action to insure that applicants and employees are employed without regard to such factors.658 The heart of the Order is the requirement that an employer take affirmative action to recruit, hire, and promote women and minorities whenever those groups are “underutilized” in the employer’s work force, regardless of whether the employer has discriminated against those individuals in the past. President Johnson delegated responsibility for administration of the Order to the Secretary of Labor.659 The Secretary of Labor, in turn, established the Office of Federal Contract 650. 651. 652. 653. 654. 655. 656. See AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 64-72. Id. at 65. Id. at 65-66. Id. at 68; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 282. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 65. Id. at 64; see also BUTLER, ENTREPRENEURSHIP, supra note 60, at 282. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 64; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 283. 657. Exec. Order No. 11,246, 3 C.F.R. § 339 (1965), reprinted as amended in 42 U.S.C. § 2000e (2000). 658. Id. § 202(1). 659. Id. § 201. 2004] 81 Howard Law Journal Compliance Programs (OFCCP) within the Department of Labor to enforce and administer the Order.660 The standard contract clause requires that the contractor agree to comply with the provisions of the Order and all OFCCP rules, regulations, and orders.661 The OFCCP may bring administrative enforcement proceedings to impose sanctions, including an order by the Secretary debarring a contractor from future government contracts.662 2. The Civil Rights Act of 1964 Title VII663 of the 1964 Civil Rights Act, as amended, prohibits employment discrimination on the basis of race, color religion, sex, national origin, and pregnancy. It is a part of the comprehensive Civil Rights Act of 1964, which also prohibits, among other things, race discrimination by private persons and entities in the provision of public accommodations,664 and discrimination on the basis of race, national origin, and religion in federally assisted programs.665 3. 1965 Voting Rights Act Congress’ efforts to eradicate racial discrimination in the South during the Reconstruction era did not meet with much success.666 Congress repealed most of these statutory provisions in 1894 instead of re-enacting them in modified form to satisfy court objections.667 By then, the former Confederate states had already begun the process of disenfranchising black Americans.668 660. Prior to 1978, eleven different agencies had contract compliance sections which had responsibility for administering and enforcing the Executive Order. The Secretary assigned each contractor, by Standard Industrial Classification Code (SIC code), to one of these agencies. The OFFCP generally supervised and coordinated their activities. In 1978, Executive Order 12,086 consolidated within the OFCCP the enforcement and implementation functions previously performed by the contracting agencies. Exec. Order No. 12,086, 3 C.F.R. § 230 (1978), reprinted in 42 U.S.C. § 2000e (1994). 661. Id. § 202 (4). The OFCCP published its regulations at 41 C.F.R. § 60 (1980). 662. See 41 C.F.R. § 60-1.26 (1980). 663. Title VII appears in the United States Code. 42 U.S.C. § 2000e (2000). 664. See Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (2000). 665. See Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000). 666. See, e.g., United States v. Reese, 92 U.S. 214 (1876); see also discussion supra notes 36171 and accompanying text. 667. See 1 B. SCHWARTZ, supra note 38, at 803-34. 668. The disenfranchisement movement began in the Southern states between 1888 and 1893. See Derrick Bell, Disenfranchisement: Post-Reconstruction Style, in DERRICK BELL, RACE, RACISM AND AMERICAN LAW 580 (Aspen Law and Business 4th ed. 2000) (1973). 82 [VOL. 48:1 Black Quest for Economic Liberty The Southern states relied on violence, fraud, or hastily enacted voting restrictions to exclude blacks from the vote.669 These states also enacted residency requirements, poll taxes, literacy tests, property tests, understanding and character clauses, and grandfather clauses as disenfranchisement tools to prevent black Americans from voting.670 For example, all of the former Confederate states enacted a poll tax by 1904.671 Litigation under the Fifteenth Amendment was time-consuming and difficult. Moreover, even when courts ordered states or counties to eliminate a practice found discriminatory, they were able to devise some new scheme to perpetuate racial discrimination in voting. Congressionally enacted civil rights voting legislation passed in 1957, 1960, and 1964 proved ineffective.672 In January 1965, for example, Selma, Alabama had allowed only two percent of voting age blacks to register when Dr. Martin Luther King, Jr., initiated demonstrations in Selma in support of a voter registration drive.673 The city’s vicious response, in which local whites killed two white civil rights activists from Massachusetts and Michigan, was well covered by the media and resulted in national and international shock and denunciation.674 President Johnson urged new voting legislation in an emotional speech to the nation on March 15, 1965. Five months later, in August 1965, President Johnson signed the Voting Rights Act of 1965 into law.675 Congress’ intent in enacting the 1965 Civil Rights Act was to eradicate racial discrimination in voting by suspending the practices utilized by Southern states to disenfranchise blacks for a period of five years. This approach made it unnecessary for litigants to challenge such practices on a case-by-case basis.676 The Supreme Court upheld Congress’ power to enact the statute in South Carolina v. Katzenbach.677 The Court relied on Congress’ broad remedial powers to combat documented past and prospective violations of the Fifteenth 669. Id. at 580-81. 670. Id. at 581-85; see also discussion supra notes 581 and accompanying text. 671. Bell, supra note 668, at 582-83. 672. See id. at 594-96. 673. Id. at 594. 674. Id. 675. Id.; see Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-4 (2002). 676. Bell, supra note 668, at 597-98. 677. 383 U.S. 301 (1966). 2004] 83 Howard Law Journal Amendment pursuant to its power to enforce the Amendment through appropriate legislation.678 4. Civil Rights Act of 1968 Title VIII of the Civil Rights Act of 1968679 generally bans discrimination on the basis of race, color, religion, national origin, sex, handicap, or familial status in the sale or rental of housing.680 The Act prohibits owners and realtors from engaging in discriminatory preferences among prospective customers, prohibits discrimination in the financing of housing, prohibits discrimination in the provision of services and facilities, and prohibits discrimination in advertising concerning housing.681 5. Government Efforts to Assist Black Businesses in View of the Former Economic Caste System Legitimized by Plessy a. Government Contracting and Set-Aside Programs Federal minority contracting programs provide a major point of entry for socially and economically disadvantaged businesses to enter the American mainstream.682 Both federal and state governments created minority business set-asides to encourage minority business ownership with the principal purpose of overcoming the continuing effects of past discrimination.683 In 1968, Congress enacted the Small Business Act, commonly known as the 8(a) program,684 which requires any prime contractor 678. See id. at 325-27. 679. 42 U.S.C. §§ 3601-3619 (1994). 680. Bell, supra note 668, at 398-399. Congress added sex discrimination in 1974 and handicap and familial status in 1988. See JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 464 (5th ed. 2002). 681. See DUKEMIER & KRIER, supra note 680, at 463-64, 474-77. 682. See Mitchell F. Rice & Maurice Mongkuo, Did Adarand Kill Minority Set-Asides?, PUB. ADMIN. REV. Jan/Feb., 1998, at 82. 683. There are two basic types of set-asides: pure set-asides which provide that a certain percentage of the total number of government contracts be allotted to minority businesses and subcontractor goal set-asides which require that a certain portion of a prime contractor’s fee be spent with minority-owned businesses. See M. Wilson, Set-Asides of Local Government Contracts for Minority-Owned Businesses: Constitutional and State Law Issues, 17 N.M. L. REV. 337359 (1987). 684. The Small Business Act, Pub. L. No. 85-536, 72 Stat. 384 (codified as amended at 15 U.S.C. §§ 631-37). The Section 8(a) program is at Section 637. The “inception of the 8(a) program” was in 1968. See U.S. SBA OFFICE OF BUSINESS DEVELOPMENT REPORT TO CONGRESS ON MINORITY SMALL BUSINESS AND CAPITAL OWNERSHIP DEVELOPMENT FOR FISCAL YEAR 2001, at 13; see also Fullilove v. Klutznick, 448 U.S. 448, 460, 463-64 (1980) (The 8(a) program which Congress established in 1968 served as an administrative model for the MBE provision of the Public Works Act of 1977.). 84 [VOL. 48:1 Black Quest for Economic Liberty with a federal construction contract that exceeds $1 million to establish percentage goals for the utilization of both small businesses owned and controlled by socially and economically disadvantaged individuals.685 The Act defined “socially disadvantaged individuals” as “those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.”686 The Small Business Act set a goal of awarding to such disadvantaged businesses “not less than [five percent] of the total value of all prime contract and subcontract awards for each fiscal year.”687 The Small Business Act requires federal contracts to state that “[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, other minorities, or any other individual found to be disadvantaged” by the Small Business Administration.688 The statute’s presumption of minority disadvantage is only a rebuttable presumption, however; persons not listed in the enumerated groups have the opportunity to prove that they are entitled to certification as disadvantaged689 and disappointed bidders can present evidence to rebut the presumption of disadvantage for particular individuals.690 Government set-aside programs have now been in existence for over three decades. President Nixon issued Executive Order Number 11,458 in 1969, to establish the Minority Business Development Agency (MBDA) in the U.S. Department of Commerce to preserve and strengthen minority businesses.691 President Nixon issued a second Executive Order Number 11,625, to strengthen the MBDA.692 685. See generally Rice & Mongkuo, supra note 682, at 82. 686. Adarand Constructors. v. Pena, 515 U.S. 200, 206 (quoting 15 U.S.C. § 637(a)(5)). 687. Id. at 206 (quoting 15 U.S.C. § 644(g)(1)). The statute states that the five percent minimum applicable to all affected federal programs is a goal rather than a minimum. See id. at 206. 688. Id. at 205 (quoting 15 U.S.C. § 637(d)(2)(C)(ii)). The Small Business Administration has adopted additional, similar regulations which contain similar presumptions to those of the Small Business Act. See id. at 205 (citing 15 U.S.C. §§ 687(d)(2)(3)). 689. Such groups as disabled Vietnam veterans, Appalachian white males, and Hasidic Jews may be eligible if they demonstrate they are socially and economically disadvantaged. See Rice & Mongkuo, supra note 682, at 84. 690. Adarand, 515 U.S. at 208 (citing 13 C.F.R. 124.111 (c)–(d), which states that the presumption of disadvantage is rebuttable). 691. BUTLER, ENTREPRENEURSHIP, supra note 63, at 296. 692. See Mitchell F. Rice, Government Set-Asides, Minority Business Enterprises, and the Supreme Court, PUB. ADMIN. REV., Mar./Apr. 1991, at 114 [hereinafter Rice, Government SetAsides] 2004] 85 Howard Law Journal The MBDA is the only federal agency formed specifically to promote the creation and expansion of minority businesses.693 In 1977, Congress enacted the Public Works Employment Act (PWEA), the first federal statutory attempt to utilize expressed racial quotas in the administration of public works contracts.694 That Act provided that, absent an administrative waiver, at least ten percent of the federal funds granted for local public works projects must be used by state or local grantees to procure services or supplies from “minority business enterprises.”695 In Fullilove v. Klutznick696 the U.S. Supreme Court upheld the use of federal set-asides for minorities contained in the Public Works Employment Act of 1977. Thereafter, set-aside programs proliferated nationwide to include some 36 states and 190 localities by the late 1980s.697 Set-asides have had a major impact on the status of minorityowned businesses. For example, in 1986, the federal government reported $4.4 billion in contracts to minority and disadvantaged businesses under the 8(a) program.698 b. The Supreme Court’s Decisions Fullilove v. Klutznick, City of Richmond v. J. A. Croson, and Metro Broadcasting v. FCC The U.S. Supreme Court’s decision in City of Richmond v. J. A. Croson699 represented a dramatic turn of events. In Croson, the Supreme Court struck down the City of Richmond, Virginia’s Minority Business Utilization Plan under the Equal Protection Clause of the Fourteenth Amendment. The City’s plan required prime contractors of city-funded construction contracts to subcontract at least thirty percent of the contract’s dollar amount to minority business enter693. Id. 694. Id. 695. See 42 U.S.C. § 6705(f)(2) (1977). The section defines a minority business enterprise (MBE) as a business of which (1) at least 50% is owned by minority group members, or (2) in the case of publicly owned corporations, at least 51% of the stock is owned by minority group members. The statute defines minority group members as United States citizens “who are Negroes, Spanish speaking, Orientals, Indians, Eskimos, and Aleuts.” 696. 448 U.S. 448 (1980). 697. J.H. Benjamin, The Supreme Court Decision and the Future of Race-Conscious Remedies, GOV’T FIN. REV., Apr. 1989, at 21. 698. See Rice, Government Set-Asides, supra note 692; discussion infra notes 742-57 and accompanying text for the latest statistics and information on the 8(a) program. 699. 488 U.S. 469 (1989). 86 [VOL. 48:1 Black Quest for Economic Liberty prises.700 The Richmond city council had no evidence that the city itself had ever discriminated in the award of construction contracts.701 The city council did have evidence, however, that although Richmond was 50% black, the city had only awarded .67% of the city’s prime contracts to minority business enterprises in the prior five years; and that most of the area’s contractors’ associations had no minority businesses within their membership.702 The council also had before it congressional reports containing strong evidence that there had been extensive, nationwide discrimination against African American construction enterprises.703 Prior to Croson, the Supreme Court had upheld a federal setaside program in Fullilove v. Klutznick704 against a challenge by white contractors who argued that the statute constituted a violation of the Constitution’s ban on governmentally sponsored race discrimination. The Fullilove Court, in upholding the federal set-aside under the Public Works Act of 1977, noted the broad congressional authority under the Commerce Clause to address discrimination against minorities in the federal procurement process705 and Congress’ special powers under Section V of the Fourteenth Amendment to remedy racial discrimination in its relation to state and local governments in such instances.706 Moreover, a majority of the Justices in Fullilove appeared to expand the circumstances when governmental bodies could permissibly use programs requiring racial preferences by seemingly adopting an intermediate level of judicial review in upholding the Public Works Act of 1977.707 700. Croson, 488 U.S. at 477. A business had to be at least fifty-one percent owned by a minority group to be classified as a Minority Business Enterprise. Id. at 478. The city plan’s definition of “minority group members” included African Americans, Hispanics, Asians, Indians, Eskimos, and Aleuts. Id. 701. Id. at 480. 702. Id. at 479-80. 703. Id. at 480, 484. 704. 448 U.S. 448 (1980). 705. Id. at 475-76. 706. Id. at 483. 707. In Fullilove, Chief Justice Burger, also writing for Justice White on the particular issue, seemed to suggest that a congressional enactment establishing racial preferences will be upheld if it: is designed to remedy identified discrimination, is properly tailored to cure the effects of discrimination with minimal adverse effect on whites, and is limited in time and flexible. Id. at 473, 477-82, 484-86, 490, 513. Three other Justices, Justices Marshall, Brennan, and Blackmun, would uphold racial preferences which serve “an important and articulated purpose” if the means chosen to implement the preference are “substantially related to achievement” of that purpose. Id. at 519. Only Justice Powell, in a concurring opinion, contended that the set-aside provision had to be judged by “the most stringent level of review,” strict scrutiny, because the program utilized a racial classification. Id. at 496. One dissenting Justice, Justice Stevens, did 2004] 87 Howard Law Journal In the wake of Fullilove, numerous state and lower federal courts interpreted the language of Fullilove as authorizing the creation of non-federal minority set-asides. Consequently, state and local governments patterned set-aside programs after the Public Works Employment Act in an effort to benefit minority enterprises.708 Until the Fullilove decision, the Supreme Court repeatedly stated that government classifications based on a “suspect” classification, such as race,709 or which impinge on some “fundamental right”710 must pass the strictest judicial scrutiny to survive analysis under either the Equal Protection Clause of the Fourteenth Amendment,711 or the Equal Protection component of the Due Process Clause of the Fifth Amendment712 In such cases, the Supreme Court held that states must show a compelling governmental interest which cannot be achieved through less restrictive means. The Supreme Court used an intermediate level of scrutiny, however, for certain other classifications that required that a state merely establish that a challenged statute was “substantially related” to important governmental objectives.713 In most instances, however, the Court recognized that states could justify their unequal treatment of persons by simply establishing a rational relationship between the discriminatory state requirement and a legitimate state objective.714 In Croson, the Supreme Court majority held that ostensibly benign or remedial race-based affirmative action plans developed by state and local governments should be subjected to the same strict scrutiny as are governmental actions that intentionally discriminate against minorities.715 The Court, in striking down the city’s affirmative action plan, noted that the city had not identified itself as engaged in discriminatory behavior nor had the city shown with specificity that anyone in the Richmond construction industry had discriminated not find that the Equal Protection Clause contains an absolute prohibition against any statutory classification based on race but demands that Congress identifies the characteristic that justifies a racial preference. Id. at 537, 545, 541. Two dissenting Justices, Justices Stewart and Rehnquist, concluded that racial preferences violated the Equal Protection Clause. Id. at 523 n.1. 708. See Drew S. Days, III, Fullilove, 96 YALE L.J. 453, 454-55 (1987). 709. See, e.g., Loving v. Virginia, 388 U.S. 1, 9 (1967) (race). 710. See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (fundamental right of interstate travel). 711. See, e.g., Loving, 388 U.S. at 9. 712. Bolling v. Sharpe, 347 U.S. 497 (1954). 713. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976) (gender-based classifications). 714. See, e.g., Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 487-88 (1955). 715. See City of Richmond v. J.A. Croson, 488 U.S. at 493-94, 498-506. 88 [VOL. 48:1 Black Quest for Economic Liberty against minority firms.716 Accordingly, the Court found that the city failed to establish that it had a compelling need to redress past discrimination in its government contract operations and had failed to demonstrate that its plan was narrowly tailored to address its remedial objectives.717 The Court did not believe, however, that all race-conscious remedial plans would necessarily fail this strict scrutiny test. For example, the Court noted that an inference of discrimination might arise, even in the absence of direct proof718 where there is a “significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality’s prime contractors.”719 The Court distinguished Fullilove on the grounds that Congress possessed special powers to remedy racial discrimination under Section V of the Fourteenth Amendment that state and local legislatures did not possess.720 After Croson, many jurisdictions utilized disparity studies as the route to justify the continued existence of set-aside plans.721 These efforts on the part of governmental jurisdictions partially explain why Croson did not significantly influence the level of municipal contracting with minority-owned and operated businesses.722 In 1994, for example, the MBDA reported that minority businesses received $14.6 billion or 8.3% of the total value of government contracts through prime and subcontracting procurement.723 In Metro Broadcasting, Inc. v. FCC,724 the Supreme Court upheld, by a five-to-four vote, two federal policies of the Federal Communications Commission (FCC) which favored minority applicants for 716. Id. at 500. 717. See id. at 509. For example, the city did not show that it had considered race-neutral means (for example, city financing for small firms without regard to the race of their owners) or that it would not increase minority participation adequately. Id. Similarly, the city did not establish that the thirty percent goal was narrowly tailored to any goal since there was no showing that qualified black firms could get thirty percent of the work in the absence of discrimination. Accordingly, the city’s thirty percent quota was not a narrowly tailored way of redressing past discrimination even if the city had adequately proven that discrimination. Id. at 507-08. 718. The Court noted that governmental bodies may create narrowly tailored race-conscious affirmative action plans where there is clear evidence of discrimination by a governmental body or, perhaps private parties. Id. at 509-10. 719. Id. at 509. 720. Id. at 486. 721. James D. Ward, Response to Croson, PUB. ADMIN. REV, Sept./Oct. 1994, at 483. 722. Id. 723. See Rice & Mongkuo, supra note 682, at 82. 724. 497 U.S. 547 (1990). 2004] 89 Howard Law Journal broadcast licenses.725 The more important policy provided that the FCC would consider minority ownership as one positive factor among several in the application process.726 The FCC’s goal was to enhance broadcast diversity by reducing the industry’s ninety-eight percent white ownership.727 The Metro Broadcasting majority applied an intermediate level review in judging whether race-conscious, but benign, action by Congress violated the Equal Protection rights of non-minorities.728 The Supreme Court, utilizing this standard, upheld the FCC policies as valid even though they were not designed to remedy past governmental discrimination.729 c. The Supreme Court’s Decision in Adarand Constructors, Inc. v. Pena730 In Adarand,731 the Supreme Court overruled Fullilove and Metro Broadcasting to the extent that the Adarand Court held that congressionally authorized race conscious affirmative action plans must be subject to strict scrutiny review.732 Adarand federalized Croson since the federal government must now satisfy the same strict scrutiny standard for race-based affirmative action as state and local governments. Accordingly, the federal government may only use race in a way that is narrowly tailored to achieve some compelling governmental objective.733 Moreover, the Court’s decision was not limited to federal setasides and contracting. Plaintiff Adarand Constructors was a white-owned construction firm that had placed the lowest bid on a subcontract to supply guardrails to a federal highway project in Colorado.734 The general contrac725. See Metro Broad., 497 U.S. at 566, 600-01. One plan gave a preference to minorityowned broadcasters in the award of FCC licenses, and the other plan provided certain tax advantages to marginal licensees who sold their stations to minority-owned broadcasters. See id. at 555-58. 726. 497 U.S. at 556-58. 727. Id. at 553. 728. Id. at 564-65, 579. Accordingly, the FCC (and also Congress, which told the FCC what to do in general terms) only needed to establish that its chosen means were “substantially related” to the achievement of “important” governmental objectives. Id. 729. Id. at 564-65. 730. 515 U.S. 200 (1995). 731. Id. 732. Id. at 227. 733. Id. 734. In 1989, the Central Federal Lands Highway Division, which is a part of the Department of Transportation, awarded a $1 million-plus prime contract for a 4.7 mile highway construction project to Mountain Gravel and Construction Company. Mountain Gravel then solicited bids 90 [VOL. 48:1 Black Quest for Economic Liberty tor, however, took a bid from a minority-owned firm that qualified under federal regulations as a disadvantaged business.735 The Small Business Act requires that federal prime contracts state that “[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanics Americans, Native Americans, Asian Pacific Americans, and other minorities or any other individual found to be disadvantaged” by the Small Business Administration.736 The general contractor’s contract did not require that it award the subcontract to a minority disadvantaged business enterprise. However, the contract provided that the general contractor would receive a financial bonus, the lesser of 10% of the amount of the subcontract or 1.5% of the general contract, if the general contractor chose the minority disadvantaged business enterprise, which it did.737 The Supreme Court found that the rebuttable presumption in the federal legislation, that racial minorities, but not whites, are presumed to be socially and economically disadvantaged, constituted a suspect racial classification under the Equal Protection component of the Fifth Amendment.738 The Court, however, did not decide whether the particular set-aside regulations could survive strict scrutiny. Instead, the court remanded the case to the lower courts.739 Nevertheless, the continuing statistical disparities between whites and blacks in every area from subcontractors for the guardrail portion of the contract. See Adarand, 515 U.S. at 205, 20810. 735. 515 U.S. at 209-10. 736. Id. at 205 (quoting 15 U.S.C. § 637(d)(2)(C)(ii)). Small white-owned firms could also be disadvantaged enterprises under the statute, but a firm owned by an African American, Hispanic or certain other minority groups (as well as a firm owned by a woman), were automatically, though rebuttably, presumed to be disadvantaged. A firm owned by a white male, by contrast, had to prove disadvantage by “clear and convincing evidence.” See id at 205-08. The Surface Transportation and Relocation Act, the statute under which the federal government awarded the contract, adopted the Small Business Act’s presumption of social and economic disadvantage contained in the Small Business Act. Id. at 208 (quoting 23 U.S.C. § 101(c)(2)(B)). 737. The Department of Transportation, in its prime contract with the general contractor, Mountain Gravel and Construction Co., included this bonus provision pursuant to federal statutes and agency regulations that required most federal contracts to include such clauses as a means of assisting disadvantaged small businesses. Adarand, 515 U.S. at 208-10 (recognizing general federal contracting requirement). In addition, the Surface Transportation and Uniform Relocation Assistance Act of 1987, the statute which was the basis for the federal government’s award of the prime contract to the general contractor, required that at least ten percent of the federal highway funds appropriated by that Act go to enterprises owned and controlled by socially and economically disadvantaged individuals. See 23 U.S.C. § 101-160 (1994). The ten percent provision is codified at 23 U.S.C. § 101(1) (1994). 738. 515 U.S. at 213, 227, 235-36 (focusing on the presumption). 739. Id. at 238-39. 2004] 91 Howard Law Journal of social and economic life reveal the limitations inherent in the Court’s decision. d. Current Statistics on the 8(a) Program and the Future of SetAsides for Minority Business Enterprises The U.S. Small Business Administration, in its Report to Congress on Minority Small Business and Capital Ownership Development for fiscal year 2001, indicated that the 8(a) Business Development Program made significant contributions to the federal, state, and local tax base and created an estimated 181,080 jobs in the nation’s economy.740 The Report noted that, during fiscal year 2001, the 8(a) program assisted small businesses owned and controlled by socially and economically disadvantaged individuals in receiving $6.3 billion in new contract awards to active 8(a) program participants and 8(a) program graduates.741 Accordingly, the program’s benefit to the economy from the $6.3 billion in new contracts awarded to small, disadvantaged businesses and the creation of 181,080 new jobs dwarf the government’s $24.5 million in total expenditures in operating the 8(a) Program.742 The U.S. government contracted with 8(a) firms for goods and services in 440 different areas of work.743 The government awarded the largest dollar amounts in contracts to businesses owned and controlled by socially and economically disadvantaged individuals in the following industries: (1) Commercial and Institutional Building Construction;744 (2) Facilities Support Services;745 (3) Engineering Services;746 (4) Computer System Design Services;747 (5) Other 740. See U.S. SBA OFFICE OF BUSINESS DEVELOPMENT REPORT TO CONGRESS ON MINORSMALL BUSINESS AND CAPITAL OWNERSHIP DEVELOPMENT FOR FISCAL YEAR 2001 at 5, 13. 741. Id. at 5, 25. Participants can remain in the 8(a) Program for a maximum of nine years. After that time, they “graduate” from the program. Id. at 7. 742. For the 2001 fiscal year, the Program’s administrative costs were $21,229,247.00 and the costs for management and technical assistance was $3,242,000.00 (a total of $24,470,247.00). Accordingly, the total cost to the U.S. government in operating the program was approximately $24.5 million. Id. at 15. 743. Id. at 25. The government relies on the five digit North American Industry Classification System (NAICS) Codes to identify the 440 different areas of work. Id. 744. The government awarded contracts worth $732,803,000.00 in this industry classification. Id. 745. The government awarded contracts worth $464, 965,000.00 in this industry classification. Id. 746. The government awarded contracts worth $417,175,000.00 in this industry classification. Id. 747. The government awarded contracts worth $346,819,000.00 in this industry. Id. ITY 92 [VOL. 48:1 Black Quest for Economic Liberty Computer Related Services;748 (6) Data Processing services;749 (7) Research and Development in the Physical, Engineering, and Life Sciences;750 (8) All Other Heavy Construction;751 (9) Custom ComputerProgramming Service;752 and (10) Security Guards and Patrol Services.753 There were 6,942 firms participating in the 8(a) program during fiscal year 2001.754 The ethnic heritage of the owners of these firms during fiscal year 2001 were as follows: “Black American—2,766 (39.8[%]); Hispanic American—1,709 (24.6[%]); Asian Pacific American—868 (12.5[%]); Subcontinent Asian American—690 (9.9[%]); Native American—589 (8.5[%]); Native Hawaiian American—45 (0.07[%]); Caucasian American—185 (2.7[%]); and Other American—90 (1.3[%]). Men own 74.5[%] of the firms and women own 25.5[%] of the firms.”755 D. Uneven Distribution of Economic Benefits to the Entire Black Community in the Civil Rights Era The benefits flowing from the civil rights movement have not been evenly distributed in the black community.756 Blacks with money were able to take advantage of the changes that accompanied the passage of civil rights laws.757 Stokely Carmichael and Charles V. Hamilton addressed these concerns in their book, Black Power: the Politics of Liberation.758 Integration, according to Carmichael and Hamilton, was based on the notion that to have a decent house or education, black people must move into white neighborhoods and send their children to white schools. The result, they argued, was that a handful of black children got in white schools while ninety-four percent were left in unimproved all-black schools.759 Carmichael and 748. The government awarded contracts worth $343,735,000.00 in this industry. Id. 749. The government awarded contracts worth $281,084,000.00 in this industry. Id. 750. The government awarded contracts worth $253,731,000.00 in this industry. Id. 751. The government awarded contracts worth $208,796,000.00 in this industry. Id. 752. The government awarded contracts worth $160,844,000.00 in this industry. Id. 753. The government awarded contracts worth $126,711,000.00 in this industry. Id. 754. Id. at 19. 755. Id. 756. BUTLER, ENTREPRENUERSHIP, supra note 63, at 285. 757. Id. 758. Id. at 285 (citing STOKELY CARMICHEAL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION (1985)). 759. BUTLER, ENTREPRENEURSHIP supra note 63, at 285 (citing CARMICHEAL & HAMILTON, supra note, 758, at 54). 2004] 93 Howard Law Journal Hamilton also discussed the class split in the black community that resulted from integration. They stated that, in their judgment: The goals of integrationists are middle-class goals, articulated primarily by a small group of Negroes with middle-class aspirations or status. This kind of integration has meant that a few blacks �make it’, leaving the black community, sapping it of leadership potential and know-how . . . those token Negroes—absorbed into a white mass—are of no value to the remaining black masses. They become meaningless showpieces for a conscience-soothed white society.760 In the newly integrated America, blacks with credentials were able to take advantage of the newly created opportunities afforded by the Civil Rights Movement.761 Accordingly, the issue of class has become an undoubtedly important factor in determining life-chances of black Americans in the global economy of the post-industrial servicesoriented age.762 The Empowerment Zone and the Enterprise Community Program [EZ/EC], however, is showing signs of revitalizing the inner cities and creating jobs for those in the black community who have not benefited significantly from the gains of the civil rights movement.763 The 1993 legislation creating the EZ/EC Program was designed to promote economic development in less affluent communities. The Department of Housing and Urban Development administers the EZ/ EC Program by providing [T]echnical assistance, loans, grants and tax credits to qualified business organizations. As of 1997, EZ/EC programs were operating in 43 states. In New York City, the upper Manhattan Empowerment Zone, with a total budget of $300 million in loans and grants and $250 million in tax credits, had approved $15.2 million for 12 projects-ranging from a retail and entertainment complex to a geriatric center that were expected to create 1300 jobs.764 760. BUTLER, ENTREPRENEURSHIP supra note 63, at 285-86 (citing CARMICHEAL & HAMILsupra note, 758, at 53). 761. Id. at 286. 762. Id. (citing RICHARD B. FREEMAN, BLACK ELITE: THE NEW MARKET FOR HIGHLY EDUCATED BLACK AMERICANS (1976)); NATHAN GLAZER, AFFIRMATIVE DISCRIMINATION: ETHNIC EQUALITY AND PUBLIC POLICY (1975); and WILLIAM JULIUS WILSON, THE DECLINING SIGNIFICANCE OF RACE (1978)). The modern global services-oriented economy has had a negative impact on black workers who largely remain an undereducated industrial labor force. See ANDREWS, supra note 4. This development has been exacerbated by the practice of U.S. Corporations “offshoring” their manufacturing needs to reduce their labor costs. See generally The Jobless Recovery, WASH. POST. Jan. 27, 2004, at A16. 763. See generally Bernstein et al., supra note 73. 764. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 245. TON, 94 [VOL. 48:1 Black Quest for Economic Liberty E. Statistics on Black Businesses and the Black Consumer 1. Collective Black Earning Power Approximately $601 Billion Annually The $601 billion earned by blacks in 2001 exceeded the gross domestic product of all but 15 nations of the 192 independent nations of the world.765 2. Black Business Statistics a. Historical Notes and Background Black businesses, excluding insurance companies and banks, fell into four main categories by 1930: (1) amusement and recreational enterprises; (2) real estate businesses; (3) retail trade enterprises; and (4) businesses providing personal services.766 The largest number of successful black enterprises were those providing personal services, “restaurants, beauty parlors, barber shops and funeral parlors.”767 These types of personal service businesses were characterized as “defensive enterprises”768 because they were the result of racial segregation.769 Consequently, between 1900 and 1930, the largest numbers of successful black businesses were in the field of personal service ventures.770 Blacks, during this time period, owned no significant commercial or industrial enterprises in “[b]asic industry, natural resources, transportation, and communication. These types of businesses “continued to be owned and controlled by white capitalists.”771 The size and types of black businesses between the great depression and the decades of the 1950s and 1960s were much like those of the late 1800s to 1930, small service-oriented businesses primarily serving a black clientele.772 State enforced segregation was the primary reason black businesses failed to expand into many industries serving the general community.773 This trend continued through the 765. See discussion supra notes 13-14 and accompanying text. 766. HARRIS, supra note 11, at 68. 767. Id. at 66. 768. Id. 769. Id. 770. Id. 771. Id. 772. BUTLER, ENTREPRENEURSHIP, supra note 63, at 296-97. 773. Id. at 297; see also Butler, Myrdal Revisited, supra note 63, at 138-43, 151-65; discussion supra notes 566-73 and accompanying text. See generally MYRDAL 1, supra note 59, at 304-32; discussion supra notes 428-577. 2004] 95 Howard Law Journal late 1980s.774 By 1987, service industries accounted for 49% of all black-owned firms and 31% of gross revenues. Retail trade comprised the next greatest concentration, comprising 15.6% of black firms and 29.8% of gross revenues.775 Automobile dealers and service stations had the highest gross revenues in 1987, totaling nearly $2.2 billion.776 From 1898 to 1930, black businesses grew from 1,900 to 70,000.777 From 1920 to 1930, blacks in white collar positions experienced a parallel growth.778 Black-owned businesses, during this time period, employed a large number of black white collar workers.779 By 1987, the Bureau of census reported that African Americans owned 424,165 businesses, a 37.6% increase from 308,260 in 1982.780 The number of black-owned firms rose 46% between 1987 and 1992 from 421,165 firms to 620,912.781 b. Approximately 95% Sole Proprietorships An overwhelming number of emerging black businesses which engage in providing some sort of personal service continue to be solely owned by the founder or his successor.782 In 1987, for example, sole proprietors owned 94.4% of all black firms.783 These figures are consistent with 1982 and 1977 statistics, which indicate that 95% and 94.3% of black-owned businesses were sole proprietorships in those years.784 c. Approximately 3% Partnerships In 1987 2.7% partnerships.785 774. 775. 776. 777. 778. 779. 780. 781. 782. 783. 784. 785. 96 or 11,261 black firms did business as THE AFRICAN AMERICAN ALMANAC, supra note 11, at 569. Id. Id. HARRIS, supra note 11, at 66. Id. Id. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568. WALL STREET JOURNAL ALMANAC 1999 (1998). BUTLER, ENTREPRENEURSHIP, supra note 63, at 297. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568. Id. Id.; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 297. [VOL. 48:1 Black Quest for Economic Liberty d. 3% Corporations In 1987, 3% of black firms were small, closely held corporations which had elected to be taxed under Subchapter S of the Internal Revenue Code to achieve flow-through taxation similar to the taxation of a general partnership.786 e. Approximately 83% of Black Firms Have No Paid Employees In 1987, 83.3% of black-owned firms had no employees. However, the 16.7% of black firms that had employees, accounted for 71.5% of the gross receipts. There were 189 firms with 100 or more employees.787 f. Black Rate of Entrepreneurship is Lower Than All Other Ethnic Groups (3% of Entrepreneurs but 12% of the Population) Although blacks attempt to start businesses at three times the rate of white men and two times that of white women,788 blacks only own 3% of all businesses.789 There were 163,000 black-owned businesses in 1969; the number increased to 231,203 by 1977, and by 1982, the number of black-owned businesses had increased to 339,239.790 The number of black-owned businesses increased, however, by 38% between 1982 and 1987. The number of black-owned firms rose 46% between 1987 and 1992 from 424,165 to 620,912.791 Nevertheless, black entrepreneurship remains 786. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568; see also BUTLER, ENTREsupra note 63, at 297. There are three tax schemes for businesses. Subchapter C describes the traditional corporate income tax. Subchapter K describes the taxation applicable to partnerships and associations taxable as partnerships. Subchapter S is an alternative tax election available to closely held corporations that meet its eligibility requirements. See generally ROBERT HAMILTON, THE LAW OF CORPORATIONS IN A NUTSHELL 28-39 (5th ed. 2000). The government subjects the income of “C” Corporations to double taxation. The corporation initially pays income taxes on its net revenues. If the corporation subsequently distributes a portion of the previously taxed income to the shareholders as a dividend, the shareholders must also pay taxes on that income. Id. at 28-29. The government taxes the income of a general partnership only once under Subchapter K. Id. at 30. The government taxes the income of closely held corporations eligible for the Subchapter S taxation in a manner which avoids the double taxation on distributions. Id. at 29-30. 787. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 569; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 297. 788. BUTLER, ENTREPRENEURSHIP, supra note 63, at 311. 789. Jeanne Saddler, Black Entrepreneurship: The Next Generation, Young Risk Takers Push the Business Envelope, WALL ST. J., May 12, 1994, at B1; see also Black Entrepreneurs: Have Capital Will Flourish, ECONOMIST, Feb. 27, 1993, at 33 [hereinafter Have Capital Will Flourish]. 790. BUTLER, ENTREPRENEURSHIP, supra note 63, at 297. 791. WALL STREET JOURNAL ALMANAC 1999, supra note 781, at 179. PRENEURSHIP, 2004] 97 Howard Law Journal underdeveloped. In 1995, just 3.7% of the 22.87% of blacks in the labor force were self-employed as compared with 9.5% of whites.792 g. Gross Revenues of Black Businesses From 1982 to 1987, the collective gross revenues of all black businesses increased by 105% from $9.6 billion to $19.8 billion.793 The collective gross revenues of all black firms rose 63% from $19.8 billion to $32.2 billion between 1987 and 1992.794 Interestingly, only 0.5% of black corporations grossed $1 million or more.795 The corporations grossing over one million dollars constitute 37% of the gross revenues of all black-owned businesses although they are miniscule in number at 0.5% of the total.796 Approximately 35% of the firms, however, had gross receipts of less than $5,000. The average black business, in 1987, had revenue of only $47,000.00, far below the $192,000.00 figure for businesses in general.797 h. The Combined Gross Revenues of the 100 Largest Black Industrial and the 100 Largest Auto Dealers in 2003 was $21.9 Billion The combined revenue of the Black Enterprise Magazine’s 100 largest industrial corporations and the 100 largest auto dealers was $13.19 billion in 1997.798 This was a 6.49% drop from the $14.1 billion figure in 1996 and the first decline since the Black Enterprise Magazine’s list of 100s combined in 1988.799 The reason for the decline was the decision of TLC Beatrice International Holdings, Inc., the perennial list leader with $2.2 billion in revenues, to sell all of its subsidiaries that year.800 By the 1999 listings, TLC Beatrice had decided to liquidate what assets it still retained.801 By 2002, however, the com792. See THERNSTROM & THERNSTROM, supra note 30, at 188-89. 793. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568. 794. WALL STREET JOURNAL ALMANAC 1999, supra note 781, at 179. 795. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568. 796. Id. at 568. 797. Id. 798. Derek T. Dingle, B.E. 100’s 26th Annual Report On Black Business, BLACK ENTERPRISE, June 1998, at 93. 799. Id. 800. Id. 801. B.E. 100’s Overview, BLACK ENTERPRISE, June 2000, at 108. 98 [VOL. 48:1 Black Quest for Economic Liberty bined figure for the two groups was $20.979 billion.802 In 2003, the combined figure was $21.9 billion.803 i. One-Half of Black Men and Two-Thirds of Black Women are Civil Servants It is not surprising that statistics indicate that one-half of black men and two-thirds of black women are civil servants.804 Historically, blacks have had the greatest opportunity for employment in the government than in any other sector. Thus, it is clear that government employment has been an important factor in black economic stability.805 The Office of Personnel Management, in its Fact Book for 2002, stated that government employees were 69% white, 17% black, 7% Hispanic, 5% Asian and 2% American Indian; these statistics are notable for blacks since they constitute 17% of the federal government workforce but only 12% of the population.806 The government, astonishingly, employs half of all black professionals as opposed to only a quarter of white professionals.807 Moreover, when government employment of blacks in the military is factored in, the significance of government work to black economic security becomes readily apparent.808 j. Obtaining Capital More Difficult for Blacks than for Other Ethnic and Minority Groups 75% of black entrepreneurs state that that they have encountered some discrimination in obtaining bank financing.809 In 1982, 69% of black owners started their businesses without borrowing money.810 It is estimated that the gap between the capital available to blacks and that which whites can employ is over $200 million and projected to 802. Derek T. Dingle, B.E. 100’s 31st Annual Report on Black Business, BLACK ENTERPRISE, June 2003, at 96. 803. Derek T. Dingle. B.E. 100’s Overview, Only the Strong Survive, BLACK ENTERPRISE June 2004, at 102. 804. See Have Capital Will Flourish, supra note 789, at 75-76. 805. See generally MYRDAL 1, supra note 59, at 327-28; discussion supra notes 545-52 and accompanying text. 806. See The Typical Federal Worker, WASH. POST, Sept. 1, 2003, at A23. 807. See THERNSTROM & THERNSTROM, supra note 30, at 188-89. 808. MYRDAL 1, supra note 59, at 327-28; see also Butler, Myrdal Revisited, supra note 63, at 160-61. 809. Dorothy J. Gaiter, Black Entrepreneurship: A Special Report, Short-Term Despair, Long-Term Promise: As Traditional Black-Owned Businesses Lose Ground, Hopes Rest on a New Generation of Entrepreneurs, WALL ST. J., Apr. 13, 1992, at R1. 810. BUTLER, ENTREPRENEURSHIP, supra note 63, at 309-11. 2004] 99 Howard Law Journal grow at a rate of $13.8 million a year.811 The historical inability of blacks to obtain capital is well documented.812 V. THINGS THE BLACK ENTREPRENEUR SHOULD CONSIDER IN STARTING, MANAGING, AND EXPANDING THE BUSINESS ENTERPRISE A. Choosing the Appropriate Vehicle for Doing Business 1. The Organizational Features Usually Desired by the Owners of Small Start-Up Businesses Almost Exclusively Involve Legal Characteristics Provided for by General Partnership Law Virtually all black businesses are closely held businesses owned by one or two persons.813 Only a handful of black businesses are publicly held enterprises with stock that is traded over a secondary market.814 Owners of businesses with more than one owner must be concerned with issues of management control, fair treatment of other owners, and a host of other matters. Anecdotal evidence suggests that African Americans, because of their long exclusion from being able to enter fairly the world of business enterprise, need assistance in understanding the pros and cons of doing business in a particular form of business organization. Even in 2004, many African Americans are the first in their families to graduate from college or to start a business enterprise. Accordingly, this section of the article discusses some of the legal considerations which African Americans should consider in selecting the most appropriate business organization. The proposed business structure for enterprises with two or more owners should, ideally, be one which provides its owners with: equal rights to participate in the management of the business,815 limited liability,816 the right to individually take tax deductions for expenses in811. Id. at 309. 812. See, e.g., HARRIS, supra note 11, at 28-30; MYRDAL 1, supra note 59, at 308, 311-12, 314; discussion supra notes 445-51, 461-63, 502-04 and accompanying text. 813. See discussion, supra notes 782-84 and accompanying text. 814. See Jeffrey McKinney, The Perils of Being Public, BLACK ENTERPRISE, April 2001, at 99. The article makes reference to only six African American-owned companies that had shares listed for trading on a secondary market. Moreover, several of those companies appeared to be on the verge of being de-listed. 815. See generally J. DENNIS HYNES, AGENCY, PARTNERSHIP AND THE LLC IN A NUTSHELL 189 (2d ed. 2001); see also MELVIN ARON EISENBERG, CORPORATIONS AND OTHER BUSINESS ORGANIZATIONS: CASES AND MATERIALS 243-44 (8th ed. 2000). 816. Id. 100 [VOL. 48:1 Black Quest for Economic Liberty curred by the business,817 relative ease in withdrawing his or her equity investment in the business upon leaving the business,818 and the ability to prevent new persons from becoming owners in the business without the consent of all existing owners.819 The general partnership, with the exception of the limited liability feature,820 provides owners all of these benefits.821 Traditional corporation law, with the exception of limited liability, provides none of these protections.822 Accordingly, the owners need to have a specific, comprehensive written agreement between them,823 which addresses the expectations of the owners with respect to these matters. African Americans and other historically disadvantaged groups who are considering launching a business enterprise should be particularly careful in addressing these issues. 2. Pros and Cons of the Seven Most Common Forms of Business Organizations a. The Sole Proprietorship The sole proprietorship has only one owner by definition.824 The statistics indicate that approximately ninety-five percent of all black enterprises are sole proprietorships.825 The owner need not file any articles of organization with any governmental agency to exist as a sole proprietorship.826 This form of business fails to protect the owner from personal liability for the debts of the business. Accordingly, the sole proprietor has unlimited personal liability for all the contractual debts of the business if business is unable to pay its debts.827 The sole 817. See generally HAMILTON, supra note 786, at 28-39. 818. See HYNES, supra note 815, at 189; EISENBERG, supra note 815, at 244, pt. 1.e., 322-23, 333-336; HAMILTON, supra note 786, at 346-48, 366-373. 819. EISENBERG, supra note 815, pt. 1.d (Partnership law, requires the consent of all the partners for any person to be admitted into the partnership—in other words, admission through the transfer of ownership units to that person—in the absence of an agreement to the contrary). See UNIF. PARTNERSHIP ACT of 1914, § 18(g), 6 U.L.A. 101 (2001)(Part II); REV. UNIF. PARTNERSHIP ACT of 1997, § 401(i), 6 U.L.A. 133 (2001)(pt. II). 820. General partners under partnership law are unlimitedly personally liable for the debts of the partnership. See UNIF. PARTNERSHIP ACT § 15, 6 U.L.A. 613 (2001)(Part I); REV. UNIF. PARTNERSHIP ACT § 306 (a), 6 U.L.A. 117 (2001)(pt. I). 821. See EISENBERG, supra note 815, at 243-44. 822. Id. at 244-45. 823. HAMILTON, supra note 786, at 348-73. 824. HYNES, supra note 815, at 10, 194-196. 825. See discussion supra notes 782-84 and accompanying text. 826. See ALFRED F. CONARD ET AL., AGENCY-PARTNERSHIPS 4 (4th ed. Foundation Press ed. 1987)[hereinafter AGENCY-PARTNERSHIPS]. 827. Id. 2004] 101 Howard Law Journal proprietor is also liable for torts committed by the proprietor’s agents in performing work on behalf of the owner/proprietor.828 Therefore, the sole proprietor should maintain adequate insurance because the proprietor’s agents829 may render the proprietor liable as a principal830 in contract831 and tort.832 African American entrepreneurs should be aware of these potential dangers in doing business in the sole proprietorship format. However, the sole proprietorship does provide the owner with all of the other features normally desired by one starting a small start-up business since the sole proprietor has the exclusive right to make all the decisions for the business.833 828. HYNES, supra note 815, at 196. 829. The term “agent” refers to anyone who has manifested consent to act in a fiduciary relation on behalf of another and subject to his control. Id. at 3, 6. 830. The term “principal” (or “master” or “employer”) in the law of agency refers to a person who has authorized another to act on his account and subject to his/her control. Id. at 8, 9. In order for an agency relationship to exist, the principal: must consent to the relationship with the agent; must expect to receive some benefit from the services provided by the agent; and must control (or have the right to control) the manner and method in which the agent performs his work on behalf of the principal when assisting the proprietor in operating the business. Id. at 13 (citing RESTATEMENT (THIRD) OF AGENCY § 1); see also AGENCY-PARTNERSHIPS, supra note 826, at 79. 831. Contract liability in agency involves an agent who represents the principal in business dealings with third parties. There must be some act on the part of the principal constituting appointment of a person as an agent, i.e., it is a consensual relationship. See HYNES, supra note 815, at 12-14; see, e.g., White v. Consumers Fin. Serv., Inc., 15 A.2d 142 (Pa. 1940); see also AGENCY-PARTNERSHIPS, supra note 826, at 80-81. While a principal must have contractual capacity (for example, legal age and sound mind), any person may be an agent. The agency relationship may be created by an act of the principle (for example, Estoppel and Statute), under such circumstances when it can be said that the principal has created the illusion of an agency relationship in the eyes of the third party (the plaintiff). HYNES, supra note 815, at 135-37. In practice, estoppel is similar but not identical to the doctrine of apparent authority. Id. If the principal claims that the agent lacked authority to sign the contract, the plaintiff must prove that the principal created (vis-a-vis ` the agent) either one or more of the following types of agency authority: actual express authority, id. at 116-20, actual implied authority, id. at 121, apparent authority, id. at 125-35, inherent authority, id. at 138-40, or ratification (subsequent authority), Id. at 161-173. 832. A principal may be liable to third parties for torts (for example, negligent acts causing physical injury) committed by his agent under the doctrine of “respondeat superior” (sometimes referred to as derivative or vicarious liability). Two basic elements must be established: there must be a (i) a master-servant relationship and (ii) the servant’s wrongful conduct must have been committed within the scope of the employment relationship. See HYNES, supra note 815, at 72-75, 92-102. For a master-servant relationship to exist, the principal must have consented to the relationship; must expect to receive a benefit from the agent’s activities, and have control or the right to control the method and manner in which the agent performs his work. Id. at 13-18. The requirement that the servant’s wrongful conduct be performed within the scope of the employment relationship is closely related to the idea that the agent must have been doing something to benefit his master at the time the tort occurred. Sometimes, whether an agent was within the scope of his employment at the time of the tort is a matter of degree. Id. at 92-96. 833. Id. at 10, 194-96. 102 [VOL. 48:1 Black Quest for Economic Liberty b. The General Partnership A general partnership is an association of two or more persons who combine to carry on as co-owners of a business for profit.834 The owners do not need to file any organizational documents for a general partnership to exist between them. Partnership law states that sharing of profits from the business constitutes prima facie evidence that one is a partner in the business.835 The general partnership, like the sole proprietorship, renders its owners liable for the debts of the partnership if the partnership cannot pay its bills.836 African American entrepreneurs should be aware of the ramifications of joint and several liability in doing business as a general partnership precisely because of the reality that creditors of the business can seize their personal assets if the business fails. Moreover, it makes no difference if a particular partner is innocent of any wrongdoing that may cause the partnership to be liable. If one partner is held liable, all partners are liable under general partnership laws regardless of fault or involvement in the wrongful act.837 The general partnership, however, provides the business owners with all the other features normally desired by one who is starting a business enterprise.838 Accordingly, the general partners, in the absence of an agreement to the contrary, are presumed to have equal rights to participate in the management and control of the partnership,839 have apparent agency authority to bind the partnership to contracts,840 owe a fiduciary duty of care and loyalty to co-partners,841 are able to recoup their investment stake in the net worth of the partnership upon withdrawal from the partnership,842 and have a veto power over anyone becoming a new owner in the business.843 834. UNIF. PARTNERSHIP ACT § 6, 6 U.L.A. 313 (2001)(pt. I); REV. UNIF. PARTNERSHIP ACT § 202(a), 6 U.L.A. 92 (2001). 835. UNIF. PARTNERSHIP ACT § 7(4), 6 U.L.A. 418 (2001)(pt. I); REV. UNIF. PARTNERSHIP ACT § 202(c), 6 U.L.A. 92-93 (2001)(pt. I). Other rules for determining whether a partnership exists between two or more persons can also be found in the partnership statutes. Id. 836. HYNES, supra note 815, at 237-41. 837. Id. 838. See discussion supra notes 815-21 and accompanying text. 839. HYNES, supra note 815, at 227-37. 840. Id. at 232-35. 841. Id. at 244-55. 842. Id. at 266-82. 843. See UNIF. PARTNERSHIP ACT § 18(g), 6 U.L.A. 101 (2001) (Pt. II); REV. UNIF. PARTNERSHIP ACT § 401 (i), 6 U.L.A. 133 (2001)(pt. I). 2004] 103 Howard Law Journal c. The Corporation Under traditional corporation law, the primary benefit that the corporate form of business provides to owners of small start-up businesses is limited liability. The corporation is deficient in every other respect, however.844 Accordingly, African Americans who are considering starting a business enterprise should carefully consider these deficiencies before choosing this business format. Traditional corporate law does not vest management control in the shareholders directly. Instead, these statutes place control of the corporation in a board of directors and designated officers who are accountable to the board.845 Directors, however, need not be owners of the corporation.846 Accordingly, persons with no ownership stake in the business can participate in the control of the corporation. Additionally, tax law does not provide flow-through taxation to the shareholders.847 Consequently, tax law does not permit shareholders to deduct expenses incurred by the corporation unless the corporation is a small closely held business which applies for and meets the requirements for recognition as a Subchapter S corporation.848 Traditional corporation law also makes it potentially difficult for owners to recoup their investment in the business after they withdraw from the business849 and allows for persons to become owners without the consent of the other owners.850 Nevertheless, it is possible for a business organized as a corporation to have all the features normally desired in a start-up business. The owners, however, must (1) incorporate under a close corporation statute851 and (2) have a detailed shareholders’ control agreement,852 which provides a method of assuring that the owners have an equal 844. There have been developments in the law, however, which allow owners to achieve all of the features normally desired in a business structure for a small start-up business. See generally HAMILTON, supra note 786, at 29-30, 348-75 845. Id. at 228-35. 846. See, e.g., Delaware General Corporation Law, 8 DEL. CODE ANN. 141(b). 847. HAMILTON, supra note 786, at 28-29; see discussion supra at note 786. 848. To achieve this objective, the corporation must be eligible for subchapter S tax treatment. Id. at 29-30, 36-39. See discussion supra at note 786. 849. Corporations can only be dissolved under traditional statutes if shareholders approve by a vote sometimes as high as two-thirds. See HAMILTON, supra note 786, at 631-32. See generally EISENBERG, supra note 815, at 158, 244. 850. Traditional corporation statutes assume that each owner can freely transfer his/her stock ownership interest. See EISENBERG, supra note 815, at 67; see also HAMILTON, supra note 786, at 288. 851. See HAMILTON, supra note 786, at 357-60. Compare close corporation statutes, id. at 357-60, with traditional corporation statutes, id. at 228-44, to see the difference in approaches. 852. Id. at 348-53. 104 [VOL. 48:1 Black Quest for Economic Liberty right to manage the corporation, relative ease in obtaining their investment in the net worth of the business upon leaving the business, and a veto power over the admission of new owners in the business. Additionally, the owners should (3) apply to the Internal Revenue Service for recognition as a Subchapter S Corporation in order to achieve flow-through taxation.853 Small, closely held corporations are distinguished from publicly held corporations chiefly by three characteristics: “(1) a small number of stockholders; (2) no ready market for the corporate stock [to be traded]; and (3) substantial majority stockholder participation in the management . . . and operations of the corporation.”854 Interestingly, well over ninety-eight percent of all corporations are closely held.855 The expectations of shareholders in closely held corporations, which are basically incorporated partnerships in which the shareholders are running a business to make a living, are vastly different than the interests of shareholders in publicly held corporations who view their ownership as a pure investment in a company run by others. Accordingly, state legislatures have attempted to relax traditional corporate statutory norms856 to give closely held corporations the flexibility and simplicity of partnerships. 853. Id. at 29-30. See discussion supra note 786 at 29-30. 854. See Donahue v. Rodd Electrotype, 328 N.E.2d 505, 511(Mass. 1975). 855. Approximately 94% of all corporations have only between 1 and 10 shareholders. Approximately 98% of all corporations have less than 100 shareholders. The large and famous corporations which many are familiar with only comprise a meager three-tenths of one percent (.03%) of the total number of corporations in existence. The breakdown in terms of number of shareholders in all corporations breaks down as follows: 1-10 shareholders—93.94% of all corporations; 11-99 shareholders—4.03% of all corporations; 100-499 shareholders—1.53% of all corporations; 500-1499 shareholders—.29% of all corporations; 1500—1499 shareholders .10% i.e., one-tenth of 1% of all corporations; 3000—10,000 Shareholders = .07% of all corporations; over 10,000 shareholders—.03% of all corporations. See WILLIAM LUCIUS CARY & MELVIN ARON EISENBERG, CASES AND MATERIALS ON CORPORATIONS 168 (1995) (citing to 1970s data as probably representative of today’s percentages). Thus, the bulk of corporations are essentially incorporated sole proprietorships and partnerships in which the owners work in order to make a living. Usually, the owners need a “business prenuptial” agreement (called a shareholder’s control agreement) to govern such matters as: (i) management rights of the owners (ii) ensuring that a shareholder will be able to recoup his investment upon his voluntary or involuntary withdrawal from the business; (iii) the mechanics of determining whom will be allowed to become a new shareholder, and a myriad of other matters. See generally HAMILTON, supra note 786, at 348-73. 856. Under traditional corporate norms, shareholders do not have power to manage the corporation, do not have agency authority to bind the corporation, do not owe other shareholders a fiduciary duty of care and loyalty, have the power to freely transfer their ownership interests to strangers, have relative difficulty in obtaining their portion of the net worth of the business upon withdrawal from the business in the absence of owning a majority or, sometimes as high as twothirds of the outstanding shares of the business. See EISENBERG, supra note 815, at 243-45. 2004] 105 Howard Law Journal Thus, legislative and, in some instances, judicial attempts have been made: (i) to make it easier for shareholders in closely held corporations to obtain their stake in the net worth of the business when they voluntarily or involuntarily withdraw from the business;857 (ii) to give shareholders the right to veto the admission of new owners in the business;858 (iii) to pass close corporation statutes giving such businesses the flexibility of general partnerships;859 and (iv) to impose partnership-like fiduciary standards on shareholders.860 Courts, however, have held that controlling shareholders861 of publicly held corporations also have a fiduciary duty of loyalty to the corporation and its shareholders.862 Both shareholders in closely held corporations and the owners of partnerships and other small businesses should always enter into agreements which protect their rights to participate in the management of the business and outline a process whereby they can obtain their portion of the net worth of the business upon withdrawal from the business. Aspiring African American entrepreneurs should enter into these agreements as a matter of course. 857. See, e.g., McCallum v. Rosen’s Diversified, Inc., 153 F.3d 701 (8th Cir. 1998) (applying Minnesota’s mandatory buy-out provision for shareholders treated unfairly). See generally HAMILTON, supra note 786, at 371-73. 858. See generally EISENBERG, supra note 815, at 312-13. The basic restrictions on shareholders ability to transfer their shares are first refusal restrictions, first option restrictions, and consent restrictions. Id. See generally HAMILTON, supra note 786, at 288-303. First refusal restrictions prohibit a sale of stock to third parties unless the shares have been first offered to the corporation, the other shareholders, or both. Id. at 312; see, e.g., Ringling Bros.–Barnum & Bailey Combined Shows v. Ringling, 53 A.2d 441(Del. Sup. Ct. 1947). First option restrictions are similar to first refusal restrictions except that the shareholders must first offer the shares to the corporation or other shareholders at a price (or pricing formula) fixed in the option restriction agreement. EISENBERG, supra note 815, at 312-13. See, e.g., Allen v. Biltmore Tissue Corp., 141 N.E.2d 812 (N.Y. 1957). A consent restriction prohibits a sale of stock without the permission of the corporation’s board of directors or shareholders. EISENBERG, supra note 815, at 313; see, e.g., Colbert v. Hennessey, 217 N.E. 2d 914 (Mass. 1966). 859. See EISENBERG, supra note 815, at 253-54. See generally HAMILTON, supra note 786, at 357-60. 860. See, e.g., Donahue v. Rodd Electrotype Co., 328 N.E. 2d 505 (Mass. 1975). In Donahue, the Massachusetts Supreme Court held that controlling shareholder (eighty percent owner) of a closely held corporation owed the non-controlling group substantially the same fiduciary duty in the operation of the business as a partner would owe to a co-partner. Id. at 515. The court, in a later case, held that a controlling shareholder cannot use his/her control of the board of directors to provide opportunities/benefits which only favor the controlling shareholder and exclude the non-controlling shareholder unless there is a legitimate business purpose for the majority’s action. Wilkes v. Springside Nursing Home, 353 N.E.2d 657, 663-64 (Mass. 1976). 861. A controlling shareholder is one who owns a majority of the outstanding shares of the corporation or who owns a sufficient number of shares to elect a majority of the corporation’s board of directors. See Kahn v. Lynch Comm. Sys., Inc., 638 A.2d 1110, 1113-14 (Del. Sup. Ct. 1994). 862. Id. 106 [VOL. 48:1 Black Quest for Economic Liberty The objectives of protecting one’s management rights in the business and obtaining one’s investment in the business upon withdrawing from the business can be achieved, in appropriate cases, through pooling agreements;863 voting trusts;864 cumulative voting;865 classified stock and weighted voting;866 control agreements, which stipulate the persons who shall serve on the board of directors;867 control agreements which stipulate that the shareholders who are parties to the agreement will vote for each other to be directors and that, in their capacity as directors, they will vote for each other to be executive officers of the corporation;868 supermajority voting provisions;869 provisions making dissolution easy—in the sense of ease of recouping one’s investment upon voluntary or involuntary withdrawal from the business;870 restrictions on an owner’s ability to sell his equity interest to a 863. Pooling agreements with respect to shareholder voting are when shareholders agree to agree as to how they will vote their shares. See HAMILTON, supra note 786, at 278-81, 660; see, e.g., Ringling Bros., 53 A.2d 441. 864. Voting trusts are somewhat like a pooling agreement except that the shareholders transfer the legal title to their shares to the trustee who then votes the beneficial owners’ shares as per the trust agreement. See HAMILTON, supra note 786, at 281-86, 672. 865. The number of votes that shareholders have to vote for directors at an annual meeting is determined by multiplying the number of shares owned by the shareholder by the total number of directors to be elected the meeting. The shareholder, in normal, straight voting, can only give the number of shares he/she owns to each director to be elected. Thus, if the shareholder owns 10 shares and there are 9 directors to be elected, the shareholder has a total of 90 votes to expend. The shareholder, however, can only give no more and no less than 10 votes to each of the 9 directors to be elected in straight voting. Under cumulative voting, however, the director can bunch his total votes and give all 90 votes to one nominated director, 30 to 3 nominees, 45 to 2 nominees and any other formula for bunching his 90 votes. Id. at 263-70; see e.g., Ringling Bros., 53 A.2d at 444 n.1. 866. Classified stock and weighted voting can be used to regulate voting control in a closely held corporation. For example, the shareholders may agree that the owners of Class A Stock can have the power to elect 3 directors while the owners of class B Stock are allowed to elect 2 directors. Another example would be a shareholder arrangement whereby class A voting stock is issued to the owners in equal amounts while class B stock is issued to the owners according to how much capital they have contributed to the business. Accordingly, the owners will have equal voting rights but share profits based on the percentage of money invested in the business. See HAMILTON, supra note 786, at 189-90, 286-87, 353-56; see also EISENBERG, supra note 815, at 266267. 867. See, e.g., Galler v. Galler, 203 N.E.2d 577 (Ill. 1964). 868. McQuade v. Stoneham, 189 N.E. 234 (N.Y. 1934) (upholding the first portion of such an agreement as a pooling agreement but striking down the second portion of the agreement which dictated the way directors must vote for election of officers as against public policy). The New York legislature, in response to McQuade, enacted section 620(b) of the New York Corporations Statute, which explicitly allowed shareholders in closely held corporations to enter into agreements encroaching on directors independence if such a restriction is included in the articles of incorporation of the corporation. 869. See e.g., Sutton v. Sutton, 637 N.E.2d 260 (N.Y. 1994). 870. See HAMILTON, supra note 786, at 295-303 (discussing option or buy/sell agreements). A mandatory buy-sell arrangement is often recommended as the best solution in possible deadlock situations, where (usually) two equal shareholders operate the business but fear that there may be disagreements in the future . . . . In the event of signifi- 2004] 107 Howard Law Journal person not currently an owner in the business or other persons;871 and preemptive rights in the owners to purchase his current percentage of ownership in any new corporate offering of stock for cash to prevent dilution of the shareholder’s percentage of ownership.872 d. The Limited Liability Partnership The limited liability partnership (LLP) may be an excellent choice of business format for African Americans starting a small business enterprise depending on the protections provided by the particular state statute. The LLP is a general partnership in which there is no joint and several liability for partners who did not participate in the matter that gave rise to tort liability. The limited liability partner, under the first LLP statute enacted in Texas, remained liable for the contractual obligations of the firm.873 Statutes creating limited liability partnerships basically do away with joint and several liability of general partners for wrongdoing in which they had no involvement.874 Nevertheless, a partner is not shielded from the consequences of his own wrongdoing or from negligent supervision of others.875 Other states have passed so-called full shield statutes that extend liability protection to all types of claims.876 In 1997, Texas broadened its statute to cover contract as well as tort claims.877 A full broad shield LLP provides limited liability for partners similar to the limited liability available to shareholders in a corporation or to limited partners in a partnership that do not participate in the management of the business.878 cant . . . disagreement, it seems much neater and cleaner that one shareholder should buy out the other. Id. Such arrangements also allow a deceased owner’s interest to be purchased with life insurance proceeds and, thereby, prevent disruption or possible liquidation of the corporation. Id. at 301. 871. Id. at 288-95. See discussion supra note 858 and accompanying text (discussing share transfer restrictions). 872. Id. at 196-201, 660. 873. Id. at 22. The first LLP statute was enacted by the Texas legislature in response to claims brought against innocent partners in litigation resulting from the collapse of real estate and energy prices in the late 1980s. More than one-third of all the bank failures occurred in Texas. Id. at 20. 874. Id. at 22; see also EISENBERG, supra note 815, at 372. 875. See HAMILTON, supra note 786, at 21-22; see also EISENBERG, supra note 815, at 372. 876. HAMILTON, supra note 786, at 22-23. 877. Id. at 22. 878. Id. at 23. 108 [VOL. 48:1 Black Quest for Economic Liberty e. The Limited Partnership The limited partnership fails to provide management control for all of the owners because the limited partners cannot take part in control of business without sacrificing limited liability.879 Legislative changes in the statutes, however, have made it possible for limited partners to engage in some management-related activities without losing limited liability protection.880 The limited partnership is also deficient since the general partner remains unlimitedly liable. There are ways, however, for even a general partner to escape liability. The general partner in a limited partnership may accomplish this by incorporating the general partners or forming a limited liability limited partnership.881 Additionally, it is relatively difficult for a limited partner to withdraw his or her equity interest in the typical limited partnership since limitations on limited partner withdrawal of their equity interests are allowed under the limited partnership statutes and are common in limited partnership agreements.882 For this reason, African Americans should not choose this business format for doing business unless engaged in real estate syndications for construction and management of commercial shopping centers, office projects, and similar real estate ventures.883 f. The Limited Liability Limited Partnership Some jurisdictions have adopted limited liability limited partnership (LLLP) statutes which extend to general partners the liability protection afforded by the LLLP election. Nevertheless, these organizations still have the other deficiencies listed in the section discussing the limited partnership and the limited liability partnership.884 The LLLP statute is not in wide use today. The more common practice in limited partnerships is to have only a single corporate general partner that is usually minimally capitalized and has nominal equity interest in the limited partnership.885 For these reasons, African Americans 879. HYNES, supra note 815, at 312-14; see, e.g., Gateway Potato Sales v. G.B. Inv. Co., 822 P.2d 490 (Ariz. 1991). 880. Id. at 313-14. 881. See HAMILTON, supra note 786, at 23. 882. HYNES, supra note 815, at 316. 883. See HAMILTON, supra note 786, at 17-18. 884. Id. at 23. 885. Id. 2004] 109 Howard Law Journal should not generally choose this form of business to engage in their entrepreneurial endeavors. g. The Limited Liability Company The limited liability company (LLC) is an excellent organizational format for African Americans operating closely held businesses. The LLC is a hybrid between a general partnership and a corporation. The LLC, when properly structured, provides owners with management control, limited liability, flow through taxation, ease in recouping the owner’s stake in the net worth of the business, and the ability to veto the admission of new owners to the business. Accordingly, the LLC affords its owners all of the features normally desired by persons starting a small closely held business.886 For these reasons, the LLC is probably the best business organization format for most African Americans taking the entrepreneurial plunge. B. Raising Capital for the Business: Special Problems Usually Encountered by Black Entrepreneurs and Things Every Potential Black Entrepreneur Should Know About Obtaining Funding for the Enterprise 1. The Cash Crunch Which Many Black Entrepreneurs Face African Americans have always found it more difficult to obtain capital to start, maintain, and grow their business enterprises largely due to discrimination and social realities.887 This history of discrimination has forced African American entrepreneurs to rely on bootstrapping, the art of learning to do more with less, as a routine matter.888 Bootstrapping techniques were the foundation for the beginning of Apple Computer,889 Black & Decker Corp.,890 Clorox 886. HYNES, 887. 888. See EISENBERG, supra note 815, at 354-59; HAMILTON, supra note 786, at 23-26, 40-45; supra note 815, at 320-37. See discussion supra notes 809-12 and accompanying text. A very good discussion on the “art and science of bootstrapping” can be found in ANDREW J. SHERMAN, RAISING CAPITAL 81 (2000) (discussing the art and science of bootstrapping). 889. Id. at 84 (“Steve Jobs and partner Steve Wozniak sold a Volkswagen van and a HewlettPackard programmable calculator to raise $1,350[.00] in seed capital—they built the first Apple 1 [Personal Computer] in Atari employee Job’s garage in 1976.”). 890. Id. (“Started for $1,200[.00] in 1910, the $5 billion tool manufacturer ensured its success in 1916, when its founding partners realized that there was greater demand for electric drills than for their original products, which included a milk-bottle–cap machine.”). 110 [VOL. 48:1 Black Quest for Economic Liberty Co.,891 Coca Cola Co.,892 Dell Computer Corp.,893 Dominos Pizza, Inc.,894 Eastman Kodak Co.,895 E&J Gallo Winery,896 Gateway 2000, Inc.,897 Hewlett-Packard Co.,898 Lands End, Inc.,899 Lillian Vernon Corp.,900 The Limited, Inc.,901 Marriott Int’l, Inc.,902 Microsoft Corp.,903 Nike, Inc.,904 Rodeway Express, Inc.,905 United Parcel Services, Inc.,906 and Wm. Wrigley, Jr. Co.907 Accordingly, bootstrapping techniques should be studied and utilized by African American entrepreneurs and other disadvantaged groups who may be starting their business enterprises with minimal resources. 891. Id. 892. Id. (“A [fifty-three]-year-old Atlanta pharmacist, John S. Pemberton, invented a soft drink in his backyard in May 1886. In 1891, Asa Chandler, a fellow druggist, brought the company for $2,300. In 1999, the company’s market capitalization was $200 billion.”). 893. Id. (“Putting little money down, Michael Dell started selling computer components from his dorm room in 1983. When his sales grew as high as $80,000[.00] a month, he dropped out and put all his energy into the business. In 1999, Dell’s sales were more than $10 billion.”). 894. Id. (“Tom Monaghan didn’t finish college, but he stayed long enough to learn that undergrads eat a lot. He brought a small pizzeria with his brother for $900.00 in 1960 and expanded according to a simple strategy; locate stores near campuses or army bases, and deliver within half an hour.”). 895. Id. at 84-85 (“George Eastman’s first private investor, Henry Alvah Stong, owned a profitable buggy-whip factory. In 1880 he put up $5,000[.00] to capitalize Eastman, who still held a job as a bank clerk. Eastman’s first Kodak $25[.00] camera debuted in 1888.”). 896. Id. at 85 (“The famous fraternal winemakers (who invested $923[.00] in savings and borrowed $5,000[.00] to launch their business) had no business or wine-making experience when they rented their first warehouse, in Modesto, California, in 1933. They learned winemaking by studying pamphlets at the local library.”). 897. Id. 898. SHERMAN, supra note 888, at 85 (“The first big client of HP (started with $538.00 in 1938) was fellow bootstrapper Walt Disney, who needed sound equipment for the production of Fantasia in 1940.”). 899. Id. 900. Id. at 85-86. 901. Id. at 86. 902. Id. (“J. Willard �Bill’ Marriott, his fiance, ´ and a partner started a nine-seat A&W soda fountain with $3,000[.00] on May 20, 1927. They demonstrated a knack for hospitality and clever marketing from the beginning, attracting a day-one crowd by playing a radio that continuously updated patrons on the progress of Lindbergh’s first trans-Atlantic flight.”). 903. Id. at 86-87 (“Harvard dropout Bill Gates and his high school side-kick Paul Allen moved into an Albuquerque hotel room in 1975. There, they started Microsoft, writing the programming language for the first commercially available microcomputer.”). 904. Id. at 87 (“In the early 1960’s, Philip Knight and his college track coach, William Bowerman, sold imported Japanese sneakers form the trunk of a station wagon. Start-up costs totaled $1,000[.00]. In fiscal 1999, the swoosh’s sales exceeded $8 billion worldwide.”). 905. Id. 906. Id. (“In 1907, two Seattle teenagers pooled their cash, came up with $100[.00], and began a message-and parcel-delivery service for local merchants. In 1999, the company completed one of the largest IPO’s in history.”). 907. Id. 2004] 111 Howard Law Journal 2. Sources of Capital The author, based on nearly thirty years of interaction as a lawyer involved in the black community, has concluded that a substantial lack of knowledge exists, even among educated blacks, about techniques for raising capital for new businesses. This should not be a surprise, however, given the primary role of African Americans as laborers or employees working for others, whether employed by the government or private industry. Accordingly, the author has included this portion of the Article as both a public service and a convenient information source concerning basic aspects of corporate law and finance. The sources of capital fall into two main categories—debt financing (borrowed funds obtained from third parties which must be repaid)908 and equity financing (internally generated funds obtained from investors in the business which do not have to be repaid by the company).909 Sources of debt financing include commercial banks,910 commercial finance companies,911 state and local government lending programs,912 trade credit and consortiums,913 and company issued debt instruments.914 Some commercial banks are more willing to provide start-up capital to small businesses if the loans they provide are guaranteed by the Small Business Administration.915 Accordingly, African Americans considering starting a business enterprise should become familiar with this process.916 Additionally, leasing companies offer an alternative to traditional debt financing with respect to obtaining the necessary equipment to operate the business.917 Sources of equity capital include private investors,918 institutional venture-capital firms,919 mergers and acquisitions with companies rich in cash,920 strategic investors and corporate venture capitalists,921 and 908. 909. 910. 911. 912. 913. 914. 915. 916. 917. 918. 919. 920. 921. 112 SHERMAN, supra note 888, at 9. Id. Id. at 10. Id. Id. at 11. Id. Id. at 16. Id. at 144, 147-54. See discussion infra notes 949-51 and accompanying text. SHERMAN, supra note 888, at 11. Id. at 11, 57-81. Id. at 12. Id. Id. at 13. [VOL. 48:1 Black Quest for Economic Liberty overseas investors.922 The ultimate form of equity-financing to promote the growth of a business is the initial public offering.923 When successful closely held businesses go public, the corporation directly sells, usually through an investment banker, a certain amount of its authorized but not yet issued shares to investors in the primary market924 who have expressed a willingness to purchase shares directly from the corporation. The Securities Act of 1933 regulates the process of going public.925 Entrepreneurs must file a registration with the Securities Exchange Commission in the absence of an exemption.926 The process of going public can be very expensive.927 Accordingly, many organizations seeking to raise funds through an initial public offering attempt to qualify for an exemption from the registration requirements. The most common exemptions include the private offering exemption,928 the Regulation D exemptions under 922. Id. at 14. 923. Id. at 185-215. 924. In a primary market transaction, the corporation (or other business) sells its securities to raise money for the corporation directly to the subscribing purchaser. See EISENBERG, supra note 815, at 203-04. 925. The 1933 Securities Act applies whenever entrepreneurs wish to raise money for their business by selling investments in the business to anyone who will listen to the organization’s sales pitch. The Act is applicable whenever the value of the investment depends on the performance of the business and the entrepreneur causes the investor to expect profits solely from the efforts of the entrepreneur or a third party. In such instances, the investment meets the definition for a “security” under the Act. See generally Reves v. Ernst & Young, 294 U.S. 56 (1990); SEC v. W.J. Howey Co., 328 U.S. 293 (1966). 926. Part I of the Registration Statement is the Prospectus—the legal offering or “selling” document which must be furnished to all purchasers of the securities. Part II of the Registration Statement contains additional information available at the SEC for inspection by the public. See EISENBERG, supra note 815, at 904-05. During the pre-filing period, the business cannot make any offer to sell or consummate any transaction prior to filing the registration statement with the SEC. Id. at 948. During the waiting period—the period after the business has filed the registration statement but before to the SEC has approved the registration statement—the business may make offers to sell the securities via a statutory red herring prospectus but may not consummate any transactions. Id. at 948-49. During the post-effective period—the period after the SEC has approved the prospectus—the business may accept offers and consummate the sales transaction via the final statutory prospectus. Id. at 949. 927. SHERMAN, supra note 888, at 190-95. 928. Id. at 95-111. To qualify under the private offering exemption, it is necessary that the business sell its securities only to: (1) persons who have sufficient knowledge and experience in financial matters that they are capable of of evaluating the risks and merits of the investment; (2) persons who have access to the type of information normally provided in a 1933 Act prospectus, and (3) persons who agree not to resell or distribute the securities. Additionally, the business may not sell the securities through any form of public solicitation or general advertising. See EISENBERG, supra note 815, at 924 (citing to SEC, Q & A: Small Business and the SEC Concerning the Private Offering Exemption 14-15 (1993)). 2004] 113 Howard Law Journal SEC Rules 504,929 505930 and 506,931 so called SCOR offerings,932 the Regulation A exemption,933 and the intrastate offering exemption.934 The market value of the original owners’ stock is sometimes billions of dollars after the corporation completes the initial public offering and the stock acquires a market value in subsequent secondary trading of the stock.935 The original owners or entrepreneurs cause 929. See SHERMAN, supra note 888, at 96-97. The Rule 504 exemption allows a business to offer and sale not more than $1 million of its securities during any 12-month period. The issuer can be held liable under the general anti-fraud provisions for making any misleading statements in connection with the offering. It is advisable to prepare a disclosure document (prospectus) to avoid lawsuits for securities fraud in connection with the offering. Id. 930. Id. at 97-98. Rule 505 permits a business to sell up to $ 5million of its securities within a twelve month period to an unlimited number of accredited investors (i.e., well capitalized and sophisticated investors as defined by the 1933 Act Rules issued by the SE) “and up to [thirtyfive] non-accredited investors regardless of their net worth, income or sophistication.” Id. at 97. The business may not offer its securities through advertising and general solicitation. The business must also provide non accredited investors with certain specified information. See EISENBERG, supra note 815, at 926-28. 931. See SHERMAN, supra note 888, at 98-100. Rule 506 is similar to Rule 505 but has no dollar limit. Id.; see generally EISENBERG, supra note 815, at 927-28. 932. SHERMAN, supra note 888, at 101, 210-11. This offering allows a small company to raise up to $1 million over a 12-month period. SCOR is an acronym for Small Corporate Offering Registration (some states refer to this program as ULOR, or Uniform Limited Offering Registration). The minimum stock price is $5.00 per share. A company can either issue a SCOR offering directly to the public or use a traditional IPO model, in which the underwriter sells the stock to the public. Id. at 210-11. Among other things: [T]he SCOR offering does not require the issuer to file an offering circular with the SEC. A SCOR is meant to to be simpler and less expensive. This is accomplished by using Form U-7. This form is in question-and-answer format and is about 30 pages long. Under [Rule] 504 of the 1933 Securities Act, a company engaged in an offering that is up to $1million may market the offering using television, radio and print ads. Id. 933. Id. at 210. Regulation A allows a company to raise as much as $5 million over a 12-month period. For a company to file a Regulation A offering, the company must not already be a public company, nor an investment, oil or gas company. There are no restrictions on the types of investors who can participate in a Regulation A offering (that is, they need not be accredited investors). Id. However, a business is “essentially required to make the same disclosures as if [the business] filed a registration statement. Regulation A offerings requires that [the business] file an offering circular with the SEC. An offering circular is basically a prospectus, but the financial statements in an offering need not be audited.” Id. 934. See EISENBERG, supra note 815, at 932-33. To qualify for the intrastate exemption, the business must (1) be incorporated in the state where it is making the offering; (2) carry out a significant amount of its business in that state; and (3) make offers and sales only to residents of that state. The exemption is intended to facilitate the local financing of local business operations. Id. (citing SEC, Q &A: Small Business and the SEC, the Intrastate Offering Exemption). 935. See, e.g., Steven Pearlstein, Pixar Stock Offering a Hit for Steve Jobs, WASH. POST, Nov. 30, 1995, at B11. The article noted that after the first day of secondary trading in Pixar stock, subsequent to the company’s initial public offering, the stock of the “tiny company from Richmond, California [ ] with 150 employees and sales of less than $5 million [had] a market value of about $1.5 billion. And with [eighty percent] of the company stock still in his portfolio, the [forty-]year-old Jobs entered the select fraternity of billionaires.” Id. 114 [VOL. 48:1 Black Quest for Economic Liberty the corporation to issue millions of shares to themselves for a pittance when the corporation is still closely held. When the corporation goes public, these shares now have a market value that creates instant billionaires in some instances.936 Of course, when corporations go public, they usually become subject to intense regulation under the 1934 Securities and Exchange Act if they fall in either class of publicly held corporations as set forth under the Act’s statutory provisions and rules.937 3. Early Stage Financing938 Early stage financing can come from the entrepreneurs’ own resources,939 angel investors,940 university and private business incubators,941 economic development agencies and community development corporations,942 customer financing,943 and vendor financing.944 Other sources of early stage financing include private placements of a company’s equity securities,945 commercial lenders,946 leasing,947 factors,948 and commercial lenders participating in the Small Business 936. Id. 937. Corporations whose shares are sold on any national exchange and corporations whose shares trade in the over-the-counter-market and have at least 500 shareholders and assets in excess of $10 million are subject to rather intensive regulation under the Securities and Exchange Act of 1934, 48 Stat. 891 (codified as amended at 15 U.S.C. § 782 (2000)). See §§ 12(a), (b), and (g) and Rule 12g-1. These publicly held corporations must: register their equity securities with the SEC, id.; file quarterly, annual, and other reports with the SEC, see § 13(a); submit proxy statements with the SEC and mail the proxy statements to each shareholder of record prior to every annual meeting of the shareholders and other meetings in which a shareholder’s vote must be taken, see §§ 14(a), (c) and Schedule 14(a), and comply with the Williams Act amendments to the 1934 Act with regard to the tender offer, § 14(d); toehold acquisition, see § 13(d), issuer repurchases, see § 13(e), and the anti-fraud provisions, see § 14(e), of the Williams Act. Additionally, the officers, directors, and more than ten percent owners of these publicly held corporations must file reports with the SEC whenever they buy or sell stock in these corporations. See § 16(a). Moreover, the corporation may sue these persons if they purchase and sell or sell and purchase the corporation’s stock within a six-month time frame and the corporation can match a lower purchase price with a higher sales price during that period. See § 16(b). This is referred to as a short swing profit, which the statute allows the corporation to recover. 938. See SHERMAN, supra note 888, at 57. 939. Id. at 73-75. 940. Id. at 62-72. 941. Id. at 73-74. 942. Id. at 75-77. 943. Id. at 76-78. 944. Id. at 78-79. 945. Id. at 95-111. 946. Id. at 113-30. 947. Id. at 131-39. 948. SHERMAN, supra note 888, at 139-44. 2004] 115 Howard Law Journal Administration’s (SBA) section 7(a) Loan Guaranty Program,949 Microloan Program,950 and the Certified Development Company (504 Loan) Program.951 4. Growth Financing Growth financing normally comes from venture capitalists.952 African Americans who own businesses that need additional capital to realize their growth potential should be aware of the role of venture capitalists in this process. There are more than 800 venture capital firms providing risk capital to small, growing companies.953 The four primary types of venture capitalists are public and private international venture capitalist firms,954 small business investment companies (SBICs),955 minority enterprise small business investment companies (MESBICs),956 and corporate venture capital divisions.957 The start-up company, as consideration for the venture capitalist’s investment, will normally issue to the venture capital firm either preferred stock,958 convertible debentures,959 or debt securities with warrants.960 Venture capitalists rarely choose to purchase common stock from a business in its formative stages since it fails to afford 949. Id. at 144-45, 146-54. The SBA’s 7(a) loan guaranty program “provides loans to small businesses unable to secure financing on reasonable terms through normal lending channels.” Id. at 144. Under the program, private sector lenders provide loans which are guaranteed by the SBA. The SBA does not provide funds for direct lending or grants under the program. Specialized 7(a) programs include (1)the Low Doc program (designed to increase the availability of funds under $100,000 through an expedited loan-review process); (2) the Fastrak program (a pilot program designed to increase capital available to businesses up to $100,000); (3) the CAPLines program (designed to help businesses meet their short term and cyclical working –capital needs); (4) the International Trade program (designed for businesses preparing to or already engaged in international trade or adversely affected by competition from imports); (5) The Export Working Capital Program (a combined effort of the Export-Import bank and the SBA designed to provide short-term working capital to exporters); and (6) the Minority and Women’s Prequalification programs (designed to assist prospective minority and women borrowers in “developing viable loan-application packages and securing loans through help provided by intermediaries”). Id. at 144-45, 146-54. 950. Id. at 145, 155. The SBA’s Micro Loan Program “works through intermediaries to provide small loans from as little as $100.00 up to $25,000” Id. 951. Id. at 145, 155-56. The SBA’s Certified Development Company (504 Loan) Program “makes long-term loans available for purchasing land, buildings, machinery and equipment, and for building, modernizing or renovating existing facilities and sites.” Id. 952. Id. at 159, 160-62. 953. Id. at 159. 954. Id. at 160-61. 955. Id. at 161. 956. Id. 957. Id. at 161-62. 958. SHERMAN, supra note 888, at 176. 959. Id. 960. Id. 116 [VOL. 48:1 Black Quest for Economic Liberty them any special rights, preferences, or fixed return on their investment.961 The venture capitalist’s focus will be on how the entrepreneur intends to return the venture capitalist’s original investment and return on capital within a four-to-six-year period.962 Accordingly, the venture capitalist is keenly interested in the exit strategy in which it recoups its investment and achieves a healthy return on its investment.963 The exit strategies normally utilized by venture capitalists to recoup their investment and obtain a respectable return on their investment include an initial public offering of the growing company’s stock,964 sale of the company to an interested bidder,965 and the company’s redemption of the venture capitalist’s stock at a price reflecting the enhanced value of the company.966 Other exit strategies include restructuring the company,967 licensing the company’s intellectual property,968 finding a replacement investor,969 or liquidating the company.970 5. Alternatives to Traditional Financing Entrepreneurs may also seek, as alternatives to traditional financing, to develop their businesses through franchising,971 joint ventures,972 co-branding,973 licensing,974 and acquisition of other companies through mergers,975 and other types of acquisitions.976 The African American entrepreneur should, at a minimum, be aware of how these alternatives can potentially increase the earnings of their business enterprises. 961. 962. 963. 964. 965. 966. 967. 968. 969. 970. 971. 972. 973. 974. 975. 976. 2004] Id. at 177-78. Id. at 169-70. Id. Id. at 169-70, 185-242. Id. at 169-70. Id. Id. See SHERMAN, supra note 888, at 170, 185-242. Id. Id. Id. at 246-56. Id. 256-61. Id. at 261-67. Id. at 267-76. Id. at 277-95. Id. 117 Howard Law Journal CONCLUSION The story of the black quest for economic liberty has been largely lost. The historical zest for free enterprise, self-assertion, and open debate within its ranks is a peculiarly American story of trial, tribulation, and triumph. In the past, the black community has had to rely on its own resources to survive. Black communities, however, because of Jim Crow laws and practices, evolved into viable societies with their own hospitals, banks, restaurants, insurance companies, gas stations, moving companies, and other essential enterprises necessary to maintain a community’s viability. Black newspapers reported on the community’s life, black doctors tended the community’s sick, and black undertakers buried the community’s dead. Prior to the American Revolution, blacks, determined to succeed in this country, entrenched themselves as workers and entrepreneurs. The total personal wealth of free blacks on the eve of the Civil War has been conservatively estimated at fifty million dollars. Black progress continued throughout the early years of the twentieth century. The more restrictive the political, social, and economic barriers, the more determined black America became in its resolve to overcome them. Despite the terrible economic and social oppression to which this country subjected slaves, modern research has shown that they created a vibrant family and religious and cultural tradition that continues to this day. The kind of social dislocation and family instability that plagues today’s black ghettos was virtually unknown among the black migrant communities in the North in the early years of the twentieth century. In 1925 Harlem, eighty-five-percent of black families were intact while single teenaged mothers were a rarity.977 Black Americans now confront a great challenge and an enormous opportunity. The black struggle for equality in American society was born in the dark days of slavery and nurtured with the courage and sacrifice of generations who would not silently accept second-class citizenship. The great challenge facing black America today is the task of taking control of its own future by exerting the necessary leadership and building the necessary institutions to make black social and economic development a reality. Meeting this self-help challenge ultimately depends on black action. It is unwise to suppose that any state or federal government would remain indefinitely committed to the 977. See supra note 32 and accompanying text. 118 [VOL. 48:1 Black Quest for Economic Liberty current programs of black revitalization. Nevertheless, such programs are still necessary. Justice O’Connor, in Grutter v. Bollinger,978 expressed hope that black Americans would achieve parity with whites within twenty-five years of that decision, which would be June 2028. The American style of capitalism, however, in contrast to European capitalism, deplores government intervention and regulation and has a high tolerance for inequality.979 American capitalism, as set forth by conservative economists, views government regulation, no matter how “noble” or “morally perfect,” as interfering with the “rights of property owners to pursue their own interests.”980 Not surprisingly, the United States has a higher economic disparity between rich and poor than any other industrialized nation in the world.981 This does not bother most Americans because of the belief that the American system will inevitably lead to personal wealth. Indeed, “[s]ome [fifty-five percent] of Americans under [thirty] think they will become rich, and by [six-to-one] believe that poverty is due to personal flaws.”982 Europeans, on the other hand, have sharp differences with the American view. The fifteen countries that comprise the European Union, in contrast to the American view, believe that civil and social groups should have equal say with commercial interests; favor cultural and linguistic diversity over assimilation; and guarantee all their citizens, as a matter of legal right, access to health care, paid vacations, housing assistance, and continuing education.983 A European-type approach, though not flawless, seems the more realistic route for America to take if black economic and social parity is to be gained within the next twenty-five years. The economic, social, educational, and political problems of the black poor are enormous. Black America cannot lift itself up by its own bootstraps into great wealth overnight. There is, however, great, untapped potential for change at the individual and community level. Blacks are at a turning point in history. The era of the great civil 978. 539 U.S. 306 (2003). 979. ANDREWS, supra note 4, at 151-55. 980. Id. at 151. 981. HEILBRONER & THUROW, supra note 4. 982. Peter Engardio, Nice Dream If You Can Live It, BUS. WK., Sept. 13, 2004, at 22 (reviewing JEREMY RIFKIN, THE EUROPEAN DREAM: HOW EUROPE’S VISION OF THE FUTURE IS QUIETLY ECLIPSING THE AMERICAN DREAM (2004)). 983. Id. 2004] 119 Howard Law Journal rights marches is over. Although passage of the civil rights legislation of the 1960s aroused hopes that all blacks could finally enter the mainstream of society, this has proven to be more illusion than reality. New policies should be geared toward maximizing independence and economic opportunity. Accordingly, black America must recognize the value of, and expand on, indigenous, self-help neighborhood efforts. These efforts should, among other tasks, seek to encourage marriage in the black community. Nevertheless, innovative governmental efforts to improve the education system, to provide greater opportunities for blacks to acquire college and specialized degrees and to assist blacks in employment, business development, and community-based empowerment programs must be maintained and strengthened for the foreseeable future if black economic, educational, and social parity is to be achieved in the next twenty-five years. 120 [VOL. 48:1 Flags I. BENNETT CAPERS* INTRODUCTION During my fifth year as an Assistant U.S. Attorney in the Southern District of New York, I transferred from the Violent Gangs Unit to the Securities and Commodities Fraud Unit. Even within the U.S. Attorney’s Office, which already had the rarefied air of an exclusive country club,1 the Securities and Commodities Fraud Unit had a reputation for being an even more exclusive “boy’s club.” I mention this to provide some context, but also to explain—or is it to excuse—my inaction. Acquiescence. Silence. The other part of the context is this: Nearly a third of my of my unit, including the chief of the unit at the time, were attending a threeday Securities Fraud course at the National Advocacy Center (NAC)—the training center for federal prosecutors2—in South Caro* Copyright I. Bennett Capers, 2003. Assistant U.S. Attorney, Southern District of New York 1995-2004, and Adjunct Professor of Law, Brooklyn Law School. J.D. Columbia Law School, 1991. I am indebted to many people for their suggestions and encouragement, including Darren Lenard Hutchinson, Peggy C. Davis, Seth Michael Forman, Astrid Gloade, Michael Dorf, The Honorable Deborah A. Batts, Jasper Johns, Randolph Ross, and Vanessa Merton. Finally, I must extend a special thanks to Derrick Bell and Patricia Williams, whose pioneering work served as an inspiration throughout this project. 1. As I write this, the U.S. Attorney’s Office for the Southern District of New York is comprised of approximately 241 attorneys, of which only 4 are African American. This is a drop from the usual number of African American prosecutors, which is 7. Indeed, known by African American prosecutors and defense lawyers around the country for never having more than 7 African American prosecutors at a time, the U.S. Attorney’s Office for the Southern District of New York has much in common with the fictitious law school in DERRICK BELL, Chronicle of the DeVine Gift, in AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 140-61 (1987). This homogeneity is by no means limited to the Southern District of New York, but rather extends throughout the Department of Justice, as evidenced by a recent, but unsuccessful, diversity initiative. See Tom Brune, Justice Diversity Drive Opens Door to White Men, NEWSDAY, Oct. 17, 2003, at A20. The findings of an internal report of diversity within the Department of Justice were so dismal that the Department declined to post the full report on its website, and instead posted a version with half of its 186 pages, including the summary, blacked out. David Johnston & Eric Lichtblau, A Critical Study, Minus Criticism, N.Y. TIMES, Oct. 31, 2003, at A19. 2. NAC is operated by the Department of Justice, and provides training programs for federal government personnel through the Office of Legal Education of the Executive Office for 2004 Vol. 48 No. 1 121 Howard Law Journal lina, which just so happens to be my home state. This was in 2000, the year that the NAACP and other organizations were calling for a boycott of South Carolina because of its prominent display of the Confederate flag atop of its capitol building.3 That the Justice Department continued to send its attorneys to South Carolina was, to my mind, an issue in itself. Although there had been a few isolated and whispered grumblings among minority employees about the Justice Department’s practice, lacking a critical mass, our grumblings remained whispers, or were met with the response that the South Carolina Legislature had already offered a compromise by lowering the flag from its position on top of the capitol building.4 Indeed, I employ the term “critical mass” in the hope of contextualizing its meaning, which apparently still remains a subject of debate. During oral argument in the affirmative action case Grutter v. Bollinger,5 for example, Justice Antonin Scalia demanded a numerical definition. Justice Scalia: Is [two] percent a critical mass, Ms. Mahoney? Ms. Mahoney (University of Michigan): I don’t think so, Your Honor. Justice Scalia: OK. Four percent? Ms. Mahoney: No, Your Honor. What you . . . Justice Scalia: You have to pick some number, don’t you? Ms. Mahoney: Well, actually what the . . . Justice Scalia: Like [eight]? Is [eight] percent? Ms. Mahoney: Your Honor, the . . .6 In fact, critical mass is not solely numerical. Rather, a critical mass implies a climate where one is neither conspicuous nor on display, where one does not feel the opprobrium of being a token, nor the burden of being the designated representative for an entire group. U.S. Attorneys. For an example of training for state and local prosecutors that the NAC provides, see http://www.usadoj.gov/usao/eousa/ole (describing the NAC). 3. See, e.g., Rick Freeman, South Carolina’s Allegiance to the Flag; State Is a Sports Outcast Because of Confederate Link, WASH. POST, May 20, 2000, at D1; NAACP Votes to Boycott South Carolina over Flag, WALL ST. J., Oct. 18, 1999, at A43; Sue Anne Pressley, Boycott Aims to Bring Flag Down; NAACP Targets South Carolina Tourism to Rid Capitol of �Symbol of Slavery,’ WASH. POST, Aug. 2, 1999, at A3. 4. See S.C. CODE ANN. § 1-10-10 (2000) (authorizing removal of Confederate flag from atop the dome of the State House, and the installation of a Confederate flag on the grounds of the Capitol Complex, effective July 1, 2000). 5. 539 U.S. 306 (2003). 6. Morning Edition: Profile: Supreme Court Hears Affirmative Action Cases (NPR radio broadcast, Apr. 2, 2003), available at 2003 WL 4857011. 122 [VOL. 48:121 Flags It also implies a climate where one can speak freely, where one not only has a voice, but a voice that will be heard. In the Justice Department, a critical mass was what we lacked. Our concerns remained whispers; trivialized; disregarded. It seemed of no import that, having removed the Confederate flag from atop of the capitol, the legislature immediately reinstalled it in front of the capitol where, if anything, the flag was even more visible.7 No import at all. In fact, during my time at the NAC, where I and a few other African Americans were like flies in buttermilk really, there was no mention of the flag, at least not in my presence, and had things proceeded in this uneventful manner, I probably would not be writing this Article. On either our second or last night in Columbia, however, it occurred to those of us from my office that we had not tried any of the barbeque that seemed the local staple, and we asked one of the administrators at the NAC if she would recommend a good barbeque joint. I remember that the administrator reminded me of the actress Betty White in the television show Golden Girls,8 or better yet her role in the movie Bringing Down the House.9 I also remember that as she looked at the group of us, she seemed hesitant. “Well,” she began, “the absolute best barbeque place is Maurice’s BBQ.” “That’s where we want to go,” the chief of my unit said. “The thing is”—was it here that I sensed she was avoiding eye contact with me?—“the owner has a lot of Confederate flags up. Some of you might be put off by that. There are other places though.” The chief looked at me and at another member of our group, an Asian American. I have no doubt he was sincere in not wanting the two of us to feel uncomfortable. “It’s really up to you,” he said. The others in our group waited patiently, though a few looked away. “Do you want us to go someplace else?” the chief asked. I have no doubt that he thought he was being solicitous. “If it bothers the two of you, it’s no problem.” 7. Pamela Hamilton, Confederate Flag Remains Hot Issue, Despite Relocation; NAACP, Not Happy with Compromise, Is Still Pushing for Boycott, CHARLOTTE OBSERVER, July 20, 2003, at 10Y. 8. Golden Girls (NBC television broadcast 1985-1992); see also Ultimate Golden Girls Cite, at http://www.geocities.com/SouthBeach/Strand/5836/goldengirls.htm (last visited Sept. 19, 2004). 9. BRINGING DOWN THE HOUSE (Touchstone Pictures 1993); see also Earth’s Biggest Movie Database, Bringing Down the House, at http://www.imdb.com/title/tt0305669/ (last visited Sept. 29, 2004). 2004] 123 Howard Law Journal Of course I would rather have gone someplace else, but again, lacking a critical mass, I felt powerless even to voice an objection. To borrow from W.E.B. DuBois, in the intersection of large ideas and every day experience, I, as an African American, was a “problem.”10 So we went. I convinced myself that, if nothing more, it would at least be an adventure. Something I could later joke about with my better half back in New York. Inside the restaurant, the Confederate flag was everywhere. The owner had even set up a gift shop of sorts, where one could purchase replicas of the Confederate flag, battle flag socks, Tenth Amendment Heritage Protector t-shirts, Confederate flag beach towels, and, most American of all, Confederate flag baseball caps. For a donation—to what, I did not want to know—customers could also receive pamphlets reminiscent of W.D. Griffith’s “true” story of the South in Birth of a Nation,11 pamphlets such as Honest Abe Wasn’t Honest, and The Truth About the Confederate Flag.12 Until that point, I had followed the news articles about the public controversy surrounding state displays of the Confederate flag with some remove. While I was personally offended by the choice, in the scheme of things, or so I thought, there were far more pressing issues to address.13 It was just a flag, after all, a rectangle of cloth on a pole, a minor matter. Sitting in this restaurant, however, I began to realize that this wasn’t just about a flag. Rather, the flag was, in a way, inextricably tied to numerous other issues involving race and privilege. This was about South Carolina’s state-supported military college the Citadel, founded to quell a slave uprising,14 which ten years ago 10. W.E.B. DU BOIS, THE SOULS OF BLACK FOLK 1-2 (First Vintage Books 1990) (1986). 11. BIRTH OF A NATION (Epoch Pictures 1915). W.D. Griffith’s film purports to portray the deleterious effects of emancipation on a South Carolina family of slave owners. The film opens with images of field slaves contentedly picking cotton, and house slaves blithely waiting on their beneficent masters. 12. Additional curios and books, such as MYTHS & REALITIES OF AMERICAN SLAVERY, THE CONFEDERATE COOKBOOK, and ARGUING THE CASE FOR SOUTHERN SECESSION, can be purchased online through Maurice Bessinger’s “Truth Store;” see http://www.mauricesbbq.com for more details. 13. State Representative Joe Neal, former chairman of the Legislative Black Caucus in South Carolina, recently echoed this sentiment. See Hamilton, supra note 7 (quoting Representative Neal as stating, “[w]e don’t have the luxury of just dealing with the flag. There are so many other issues that have been pressing”). 14. In June 1822, 2,500 armed Whites patrolled the streets of Charleston in response to information that enslaved Blacks were planning a revolt to obtain their freedom. Ultimately, over 131 [B]lacks were arrested, and 35, including the leader of the revolt Denmark Vesey, were sentenced to death. The city freed the slave who revealed the planned uprising to his master, and transferred the discipline of other “problem” slaves to the public sphere: At the workhouse, a treadmill was installed. Now plantation owners—for a fee—could bring recalcitrant slaves to be lashed to an overhead pole and forced to run along a 124 [VOL. 48:121 Flags fought the admission of women,15 and where until recently Dixie was turning wheel while “drivers” whipped and pushed them on. So long as a man or woman kept the pace, the pain was not so bad. But once a person’s legs gave out, those wooden steps slapped hard into bare flesh while strips of cowhide tore and snapped. CATHERINE S. MANEGOLD, IN GLORY’S SHADOW: SHANNON FAULKNER, THE CITADEL, AND A CHANGING AMERICA 35 (1999). Finally, to protect Whites from any future uprising, the city created a corp of cadets, reinvented as a school in 1842. In return for keeping free [B]lacks and slaves “completely subordinate,” as local ordinances required, cadets, initially comprised of impoverished Whites, received a free education. Id. at 37-38. 15. Throughout most of its 160-year history, the Citadel, which until recently boasted a Confederate flag on the water tower high over its campus, was exclusively White, and exclusively male. Even after the first Black male student was admitted, the sole Black cadet in the class of 1970, the school continued to maintain a policy excluding women from its Corps of Cadets, and racism persisted. See generally Ellan Yan, Battles Won Before Shannon, NEWSDAY, Sept. 2, 1996, at A19; Profile: Black Female Cadets Graduating From the Citadel (NPR radio broadcast, May 10, 2002), available at 2002 WL 3188070. For example, a 1977 college yearbook shows cadets outfitted in white robes and hoods pointing a gun at a Black cadet with a noose around his neck. See MANEGOLD, supra note 14, at 136. Nearly a decade later, on October 23, 1986, several White cadets, again dressed in the garb of the Ku Klux Klan, burst into a Black freshman’s room brandishing a burnt cross and shouting obscenities. The Black cadet quit the Citadel shortly after the incident, and brought a lawsuit. The White cadets—Steven Webb, Jeffery Plumley, Paul Koss, Jimmy Biggerstaff and Maurice Bostic, Jr.—eventually settled out of court for approximately $880,000, but not before graduating from the Citadel. See Paul Leavitt, Nationline, USA TODAY, Jan. 24, 1989, at A3. The Justice Department declined to seek criminal charges against the perpetrators. Bruce Smith, Official Says No Federal Criminal Prosecution in Citadel Hazing, ASSOCIATED PRESS, Oct. 13, 1987, available at 1987 WL 3183141. In 1993, a female high school student, Shannon Faulkner, launched an attack on the Citadel’s male-only policy by gaining admission for matriculation, and only then declaring her gender. Upon learning Faulkner was female, the Citadel promptly revoked her admission, and Faulkner promptly brought a § 1983 action alleging an Equal Protection violation. Faulkner v. Jones, 858 F. Supp. 552 (D.S.C. 1994). Although the district court found, after a two-week bench trial, that the Citadel’s male-only admissions policy violated the Equal Protection Clause and ordered the Citadel to admit Faulkner to the Corps of Cadets beginning in the fall of 1994, the 4th Circuit modified the remedial order. Following its holding in United States v. Virginia, (VMI I) 976 F.2d 890 (4th Cir. 1992), cert. denied, 508 U.S. 946 (1993), in which it held that Virginia’s violation of the Equal Protection Clause through its maintenance of a male-only admissions policy at Virginia Military Institute could be remedied if Virginia established a parallel institution for women, the Fourth Circuit in Faulkner ordered that the Citadel should first be permitted a reasonable time to do the same. Faulkner v. Jones, 51 F.3d 440 (4th Cir. 1995), cert. denied, 516 U.S. 938 (1995). In response to this decision, the Citadel filed a proposed plan to create a parallel program at a pre-existing women’s college. In the midst of challenges to the adequacy of this plan, the Supreme Court granted a writ of certiorari in VMI I, and in June 1996 issued a decision that parallel programs are not an adequate to remedy equal protection violations. United States v. Virginia, 518 U.S. 515 (1996). Two days after the Supreme Court announced its decision, the Citadel’s Board of Visitors voted to end the male-only admissions policy and to admit women to the Citadel’s Corps of Cadet. Throughout the legal and social battle, Faulkner was vilified, and targeted for harassment and ridicule. Playing on the Citadel mascot, the bulldog, alumni sold tshirts proclaiming “1952 Bulldogs and One Bitch”; graffiti in Citadel bathrooms included the sentiment, “Let her in – then fuck her to death”; and in fact, she received death threats. SUSAN FALUDI, STIFFED: THE BETRAYAL OF THE AMERICAN MAN 119 (1999); Rupert Cornwell, Knives Sharpen for Haircut of the Century, INDEPENDENT (London), Aug. 12, 1994, at 9. Four women entered the Corps of Cadets in August 1996. In May 2002, the Citadel graduated its first Black female cadets. Citadel Graduates First Black Female Cadets, ASSOCIATED PRESS, May 9, 2002. 2004] 125 Howard Law Journal sung at football games.16 It was about Susan Smith, who claimed that she had been carjacked by a Black man who had driven off with her two children, and was believed, when in fact she herself had drowned them in a lake.17 It was about Denny’s Restaurant, headquartered in 16. The Citadel finally discontinued its practice of singing Dixie at football games in 1992, around the same time that Sports Illustrated devoted an article to the racism and hazing suffered by [B]lacks at the Citadel. Geraldine Baum, Storming the Citadel for 151 Years, the State College Has Been All Male. That Tradition May Fall if Shannon Faulkner Gets Her Way. Among Her Big-Name Foes: South Carolina, L.A. TIMES, Feb. 13, 1994, at 1. The song, credited to Daniel Decatur Emmett, a member of a group of minstrels who sang in blackface, was adopted by Confederates and depicts Blacks as longing for a return to plantation life. Although contemporary versions of the song omit the dialect, Emmett penned the song in “[B]lack dialect.” Here is an excerpt: I wish I was in land ob cotton, Old times dar am not forgotten, Look away! Look away! Look away! Dixie Land. In Dixie Land whar’ I was born in, Early on one frosty mornin’, Look away! Look away! Look away! Dixie Land. CHORUS: Den I wish I was in Dixie, Hoo-ray! Hoo-ray! In Dixie land, I’ll take my stand to lib and die in Dixie; Away, away, away down south in Dixie, Away, away, away down south in Dixie. C.A. BROWNE, THE STORY OF OUR NATIONAL BALLADS 120-21 (1960). Although the Citadel acknowledged the offensiveness of Dixie and discontinued singing the song at its football games in 1992, Chief Justice William H. Rehnquist apparently did not receive the memo. In 1999, Chief Justice Rehnquist led a sing-along of Dixie at the fourth Circuit Judicial Conference, a gathering of hundreds of federal judges from Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Craig Timberg, Rehnquist’s Inclusion of �Dixie’ Strikes a Sour Note, WASH. POST, July 22, 1999, at B1. 17. On October 25, 1994, police nationwide were asked to look for a car with South Carolina tag GBK 167, after Susan Smith tearfully claimed that a [B]lack man in his 20s to early 30s jumped into the front passenger seat of her car, brandished the barrel of a gun, and said, “Shut up and drive or I’ll kill you.” The carjacker later forced her out, and drove off with her two toddlers, Michael Daniel Smith and Alexander Tyler Smith, while Smith stood in the middle of the road and screamed, “I love you all.” Robert Davis, Prayers Lifted up for Abducted Boys, Tots Whisked off in S.C. Carjacking, USA TODAY, Oct. 27, 1994, at 10A. While Smith spent hours helping a police artist compose a sketch of the [B]lack man, and helicopters and planes searched the back roads and woods of South Carolina, the boys’ maternal grandfather urged people to “lift up the names [of the boys] to the Lord.” Id. An FBI Supervisor described the kidnapping as “the nation’s nightmare,” and vowed that the FBI was “amassing all the resources we have nationwide.” Robert Davis, Little to Go on but Hope in S.C.’s Tots’ Kidnapping, USA TODAY, Oct. 28, 1994, at 3A. Black residents in Union, South Carolina were questioned as the police went door to door looking for information, and several [B]lacks were detained. Gary Lee, Black Residents Angered by Reaction to False Story: �No One Has Rushed Forward to Apologize,’ WASH. POST, Nov. 7, 1994, at A10. Once found, the carjacker potentially faced the death penalty. In the end, the nation learned that Smith’s carjacking claim was nothing more than a fabrication. On November 3, 1994, Smith confessed to sending her toddlers, alive and strapped in their car seats, into the waters of a lake to drown. As Professor Charles P. Ewing later noted, Smith was able to fool the nation precisely because her story played to the “fears of the public and the racism that fuels fear of crime in this country.” Elizabeth Kastor, The Worst Fears, the Worse Reality; for Parents, Murder Case Strikes at Heart of Darkness, WASH. POST, Nov. 5, 1994, at A1; see also Eric Harrison, S. Carolina Case of Deceptions Also a Case of Perceptions Crime: A Mother’s Tale of a Carjacker Is Now Seen as Another Example of Vilifying Black Men. But in 126 [VOL. 48:121 Flags Spartanburg, South Carolina, which, after settling a Justice Department lawsuit18 and then two 1994 class action suits19 alleging race discrimination,20 now makes amends by contributing “[twenty] cents from the sale of every All-American Slam (at participating restaurants) to the King Center,”21 the National Civil Rights Museum in Memphis, Tennessee. It was about the prohibition against interracial dating at Bob Jones University in Greenville, South Carolina, where President George W. Bush kicked off his 2000 presidential campaign.22 It was about the grade schools in South Carolina, not to menthe Tight-Knit Town, Cries of Racism are Tempered, L.A. TIMES, Nov. 8, 1994, at A27. At trial, the jurors spared Smith the death penalty that her “fictitious” carjacker could have received. Tamara Jones, Susan Smith Gets Life in Jail for Killing Sons, Death Penalty Wouldn’t Serve Justice: Juror, CHI. SUN-TIMES, July 29, 1995, at 1. 18. Benjamin A. Holden, Parent of Denny’s Restaurants Signs Bias-Case Decree, WALL ST. J., Mar. 26, 1993, at A5; Amy Stevens, Denny’s Agrees to Alter Practices in Bias Settlement, WALL ST. J., Mar. 29, 1993, at A9 (“According to the Government, Denny’s employees required [B]lack patrons to show identification before being allowed to enter the restaurants; employees removed some [B]lack patrons from restaurants without good cause . . . [and] [B]lacks—but not [W]hites—were required to prepay for meals and to pay cover charges.”). Just hours before a federal court signed over the consent decree, patrons at a Denny’s restaurant in Annapolis faced discrimination. The patrons, six Black Secret Service agents preparing for a U.S. Naval Academy visit from President Clinton, ordered breakfast but were not served for more than an hour, while a group of [W]hite Secret Service agents sitting at another table were served without delay. The Black Secret Service agents left after an unsuccessful attempt to get an explanation from management. Denny’s employees then attempted to hide the fact that the six Secret Service agents had complained. Peter Hermann, U.S. Agents Accuse Annapolis Restaurant of Racism – Six Plan to File Suit Against Denny’s, BALT. SUN, May 23, 1993, at 1A. 19. See Dyson v. Flagstar Corp., C.A. No. 93 1503 (D. Md. 1994); Ridgeway v. Flagstar Corp., Civ. No. 93-20202, 1994 WL 525553 (N.D. Cal. 1994); see also All Things Considered: Denny’s Tries to Clean up Image After Racial Bias Suits (NPR radio broadcast, Sept. 22, 1994), available at 1994 WL 8680234. 20. See McCoo v. Denny’s, Inc., No. COV.A.98-2458RDR, 2000 WL 156824, at *1 (D. Kan. 2000); Savage v. Denny’s Inc., No. Civ. A. 97-882, 1997 WL 169377, at *2 (E.D. Pa. 1997); Ron Ruggless, 2000 Year in Review, 34 NATION’S RESTAURANT NEWS 51 (2000); Chris Winston, Advantica President Steps Down, SPARTANBURG HERALD (South Carolina), Jan. 5, 2001, at A1 (“[T]he 1,756 unit Denny’s chain, a division of Advantica Restaurant Group, agreed to retrain managers at company locations after facing U.S. Justice Department charges of discriminatory hiring practices”). Denny’s history of discrimination is so well known that it was recently commented upon by the Sixth Circuit in reversing and remanding a district court’s grant of summary judgment in favor of Denny’s. See Logan v. Denny’s, Inc., 259 F.3d 558, 577 (6th Cir. 2001) (“Denny’s past history of discriminatory conduct, both to its minority patrons and employees alike, is well known in the jurisprudence and public forums.”). 21. For more detail, see http://www.dennys.com/en/Page.asp?PID=5&ID=33#B1. 22. Following public criticism over President Bush’s visit, Bob Jones University modified its blanket ban on interracial dating, and agreed to permit interracial dating so long as the student first obtain written approval from his or her parents. Bob Jones U. Hasn’t Changed, HARTFORD COURANT, Mar. 16, 2000, at A18. Bob Jones University honorary degree recipients include Attorney General John Ashcroft; upon accepting the degree in May 1999, Ashcroft reminded graduating students that, “We have no king but Jesus,” and “thank[ed] God” for the institution. Libby Quaid, Liberals Examine Ashcroft Speech, CHI. SUN-TIMES, Jan. 13, 2001, at 14. Bob Jones University also has an interesting history with respect to the American flag and Dr. King: 2004] 127 Howard Law Journal tion the churches and the cemeteries, still being segregated by race.23 It was about South Carolina refusing, until the flag controversy erupted, to honor Dr. Martin Luther King, Jr.’s contribution to civil rights with an official holiday.24 It was about the shame White South Carolinians felt upon learning that Senator Strom Thurmond, who had once declared that “all the bayonets of the Army cannot force the Negro into our homes,” had fathered a Black daughter.25 It was about housing subdivisions being named, to this day, wistfully, after plantations.26 Thinking along these lines, and the unsuccessful grassroots and legislative efforts of the NAACP to remove the flag, I began to wonder about legal challenges to State displays of the flag,27 both through the Equal Protection Clause of the Fourteenth Amendment, and In April of 1968 we had had a Bible conference that included Ian Paisley, the militant northern Irishman, and at the end of a Saturday night, Bob Jones, Jr., got to the podium and said “Martin Luther King, Jr. has just been shot in Memphis, Tennessee. The President has asked us to fly the flag at half-mast. We will not fly the flag at half-mast for an apostate,” at which time the audience clapped and cheered. I had never witnessed such a racist act. CAROLYN MARVIN & DAVID W. INGLE, BLOOD SACRIFICE AND THE NATION: TOTEM RITUALS AND THE AMERICAN FLAG 56-62 (1999) (quoting interview of Denis MacDonald, in The Glory and the Power: Fundamentalism Observed (WHYY television broadcast, June 1962)). 23. See, e.g., Cal Harrison, Herald Chronicles Century Of Racial Tension, HERALD (Rock Hill, SC), Apr. 17, 1997, at 52D; Jennifer Talhelm, Race Line May Blur If Fort Mill Adds Cemetery, CHARLOTTE OBSERVER, Nov. 18, 2001, at 12B. 24. B. Drummond Jr. Ayres, Campaign Briefing, N.Y. TIMES, May 2, 2000, at 24; S.C. to Mark King Holiday, NEWSDAY, May 2, 2000, at A19. The bill recognizing Dr. King with a holiday also honored Confederate soldiers who fought to retain slavery by creating Confederate Memorial Day. 25. The late Senator’s niece, Mary T. Thompkins Freeman, has described the public announcement that Strom Thurmond fathered a child with a Black maid as “a blight on the family.” Ms. Freeman added, “I went to a church meeting the other day and all these people came up to me and you could tell they didn’t know what to say. For the first time in my life, I felt shame.” Ms. Freeman noted that had Thurmond secretly fathered a [W]hite child, “it would be a whole other situation.” Other family members questioned the daughter’s motives for coming forward, especially publicly, and feared that the existence of a Black relative would affect not only Thurmond’s legacy, but the political prospects of his descendants. Jeffrey Gettleman, Thurmond Family Struggles with Difficult Truth, N.Y. TIMES, Dec. 19, 2003, at A1. 26. Derrick Bell, through his alter ego Geneva Crenshaw, notes that “minor matters” should not be disregarded precisely because they convey unintended signals to [B]lacks and [W]hites about how the Court weighs the relative interests of the two races. The Court’s inclination to avoid upsetting [W]hites any more than is necessary, combined with its use of a standard of review that encourages government officials to create “neutral” rules that everyone knows will disadvantage [B]lacks, in effect creates a property right in [W]hiteness and the consequent loss of some cases that we should by all rights win. BELL, supra note 1, at 172. 27. My interest is limited to state displays of the Confederate flag. While I may personally be offended by private persons who display the flag, I recognize, and respect, their right to do so. Indeed, such private displays actually benefit me, in that they signify to me whom I should avoid and not extend certain courtesies to, and permits me to redirect my business, and dollars and cents—indeed, make that sense—elsewhere. 128 [VOL. 48:121 Flags through the Thirteen Amendment.28 My interest was limited to State displays of the Confederate flag. While I may be personally offended by private persons who display the flag, I recognize and respect their right to do so. Indeed, such private displays actually benefit me, in that they signify to me whom I should avoid and not extend certain courtesies to, and permits me to redirect my business, and dollars and cents—indeed, make that sense—elsewhere. I quickly learned that there had been challenges elsewhere—in Alabama in NAACP v. Hunt,29 and in Georgia in Coleman v. Miller,30 as well as numerous challenges to the removal of Confederate symbols in public schools,31 universities,32 and cemeteries33—and that these challenges had failed. The more I examined these cases and the scholarly responses to them,34 however, the more I became convinced 28. There have also been challenges to state displays of the Confederate flag on First Amendment grounds, most recently in Briggs v. Mississippi, 331 F.3d 499 (5th Cir. 2003). There, the court held that such displays neither violate the Establishment Clause under Lemon v. Kurtzman, 403 U.S. 602 (1971), nor contravene the First Amendment’s right to free speech. See, e.g., Briggs, 331 F.3d at 505-08. 29. 891 F.2d 1555 (11th Cir. 1990). 30. 912 F. Supp. 522 (N.D. Ga. 1996), aff’d, 117 F.3d 527 (11th Cir. 1997) (Coleman I). 31. In general, where there has been a showing of past disruption resulting from the display of Confederate flags, courts have found school bans constitutional under Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969). See, e.g., Scott v. Sch. Bd., 324 F.3d 1246, 124849 (11th Cir. 2003); West v. Derby Unified Sch. Dist. 260, 206 F.3d 1358, 1365-1367 (10th Cir. 2000); Melton v. Young, 465 F.2d 1332, 1335 (6th Cir. 1972); Phillips v. Anderson County Sch. Dist. 5, 987 F. Supp. 488, 492 (D.S.C. 1997). In the absence of evidence of past disruption, courts have generally concluded that school authorities have failed to establish a sufficient likelihood of disruption to support banning the flag. See, e.g., Castorina v. Madison County Sch. Bd., 246 F.3d 536, 542-43 (6th Cir. 2001) (reversing summary judgment for school officials where there was no showing of disruption); Denno v. Sch. Bd. of Volusia County, 182 F.3d 780, 785 (11th Cir. 1999), vacated, and decided on separate grounds, 218 F.3d 1267 (11th Cir. 2000) (“noting the absence of any facts . . . that would suggest a reasonable fear of disruption”). 32. The University of Mississippi, for example, has been a locus of controversy. The school’s mascot, Colonel Rebel, is a personification of an Old South plantation owner; Dixie, until recently, was sung at football games; the University’s nickname, Ole Miss, is the slave term for the [W]hite female head of a plantation. Until 1983, the University distributed Confederate flags to fans at football games, and cheerleaders carried Confederate flags down the field. See Ronald J. Rychlak, Civil Rights, Confederate Flags, and Political Corrections: Free Speech and Race Relations on Campus, 66 TUL. L. REV. 1411, 1413-16 (1992). 33. See, e.g., Griffin v. Dep’t of Veterans Affairs, 274 F.3d 818, 824 (4th Cir. 2001) (declaring Department of Veteran’s Affairs’s decision to limit the display of the Confederate flag at National Cemetery reasonable and viewpoint neutral under the First Amendment). 34. See, e.g., Robert J. Bein, Stained Flags: Public Symbols and Equal Protection, 28 SETON HALL L. REV. 897 (1998) (applying reception theory to argue that State displays of Confederate flag have a discriminatory effect); James Forman, Jr., Note, Driving Dixie Down: Removing the Confederate Flag from Southern State Capitols, 101 YALE L.J. 505 (1991) (arguing that state displays violate First and Fourteenth Amendments); Alexander Tsesis, The Problem of Confederate Symbols: A Thirteenth Amendment Approach, 75 TEMP. L. REV. 539 (2002) (arguing that the Thirteenth Amendment empowers the federal government to prohibit the states from flying Confederate flags). 2004] 129 Howard Law Journal that something was missing from the analysis. Although the cases cursorily addressed the historiography surrounding the display of the flag, the decisions were silent when it came to any analysis of the power associated with this display. Replicating my own heuristic approach to this issue, in Part I, I review the Equal Protection challenges to state displays of the Confederate flag that have been mounted to date, paying particular attention to the cursory manner in which federal courts have addressed the plurality of meanings behind the flag itself. In Part II, I offer a rereading of the cases by, among other means, examining them in light of current juridical approaches to analyzing Equal Protection claims, and I argue that the cases, by effect if not design, perpetuate social inequality. Returning to the plurality of meanings35 in the Confederate flag, in Part III, I attempt to “thicken” the analysis by mapping out not only what the Confederate flag denotes, but also what the Confederate flag connotes. Though perhaps unconventional, I consider the Confederate flag against the backdrop of flags in general. In doing so, I consider the Confederate flag as an iconic metaphor, as conveying messages implicating protection, allegiance, and stasis. I attempt to concretize my analysis by imagining other flags that could be displayed by States and how challenges to those flags would likely fare. In Part IV, I offer a retelling of Derrick Bell’s Chronicle of the Space Traders, and explore how the Confederate flag functions as an assurance of how any proposal that pits the interests of the minority against interests of the majority will be resolved. Finally, in Part V, I explore how the view of the Confederate flag as a signifier of protection, allegiance, and stasis could strengthen future challenges to the government-sponsored display of the Confederate flag.36 35. I am not suggesting here that there is any meaning immanent in the Confederate flag, or in any other flag for that matter. In semiotic terms, flags, like words, are simply signifiers, and the various meanings associated with them are signifieds that otherwise bear no relation to what they signify. See generally FERDINAND DE SAUSSURE, COURSE IN GENERAL LINGUISTICS (Charles Bally et al. eds., Open Court Publ’g Co. 1986) (1916). Nor am I suggesting that the signifieds or meanings, associated with any particular flag are fixed. As the literary theorist Mikhail Bakhtin has emphasized, signs are inherently “dialogic,” modified and transformed in meaning by differing social tones, valuations, and connotations assigned to them by a heterogeneous society composed of conflicting interests and views. M. M. BAKHTIN & P.N. MEDVEDEV, THE FORMAL METHOD IN LITERARY SCHOLARSHIP: A CRITICAL INTRODUCTION TO SOCIOLOGICAL POETICS (Albert J. Wehrle trans., 1928). What I am suggesting is that flags, because they are so imbricated with history, social convention, and mythology, are particularly polysemic. 36. This is not to suggest that the removal of the Confederate flag would have an immediate transformative effect on states such as South Carolina. History suggests that judicial decisions 130 [VOL. 48:121 Flags I. FLAGS: THE EQUAL PROTECTION CASES To date, two federal appellate courts have considered Equal Protection challenges to State displays of the Confederate flag. A. NAACP v. Hunt In 1988, the NAACP and several of its Alabama members filed suit in the Middle District of Alabama against Governor Guy Hunt and other state officials (the “State”), seeking declaratory judgment that the flying of the Confederate flag atop the Alabama capitol dome violated the Equal Protection Clause of the Fourteenth Amendment, as well as the First and Thirteenth Amendments. The District Court dismissed the case on procedural grounds,37 and on appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed. The Eleventh Circuit, however, elected not to rest its dismissal solely on procedural grounds, noting instead that because of the “controversial concerns,” it was “important that all issues be laid to rest on the merits.”38 Turning to the merits, the Eleventh Circuit concluded that while the NAACP had satisfied the first prong for stating a cause of action under 42 U.S.C. § 1983 by establishing that the Confederate flag was flown by individuals acting under the cloak of State authority,39 the NAACP could not satisfy the second prong, which required a deprivation of some right, privilege, or immunity secured by the Constitution or by law.40 Relying on Hunter v. Underwood,41 in which the Supreme Court held that facially neutral state action will violate the Equal Prorarely result in social change. See DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY 5662 (1977); R. SHEP MELNICK, REGULATION AND THE COURT: THE CASE OF THE CLEAN AIR ACT 110-12 (1983). As Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 765 (1991) has pointed out, Brown v. Board of Education may be the “most conspicuous confirmation of the point.” Despite the Supreme Court’s mandate that states desegregate public schools “with all deliberate speed,” ten years after the decision, only about two percent of Black children in the South attended desegregated schools. Id.; see also G. STONE ET AL., CONSTITUTIONAL LAW 474 (1986). That being said, I am suggesting that removal of the flag can catalyze change. 37. Specifically, the district court dismissed the NAACP’s claims as precluded by res judicata. NAACP v. Hunt, 891 F.2d 1555, at 1561 (11th Cir. 1990). The dismissal was based on the fact that several years earlier, in 1975, one of the Hunt plaintiffs, Alabama State Legislator Alvin Holmes, had filed a nearly identical action in Holmes v. Wallace, 407 F. Supp. 493 (M.D. Ala. 1976), aff’d without published opinion, 540 F.2d 1083 (5th Cir. 1976). There, the district court had dismissed Holmes’s claims based on the Thirteenth and Fourteenth Amendments, finding that while a “[s]tate sponsored display of the Confederate flag may offend sensitive descendants of former slaves,” Holmes’s “embarrassment and humiliation in the absence of some recognized right to liberty or property” was insufficient to allow recovery. Holmes, 407 F. Supp. at 497-98 (emphasis added). 38. Hunt, 891 F.2d at 1561-62. 39. Id. at 1562 (citing Monroe v. Pape, 365 U.S. 167, 184-87 (1961)). 40. Id. at 1562-63 (citing 42 U.S.C. § 1983). 2004] 131 Howard Law Journal tection Clause only if: (1) the state action was motivated, at least in part, by racial animus; and (2) the state action produced a disproportionate effect along racial lines, the Eleventh Circuit concluded that the plaintiff had failed to demonstrate racial animus. Noting that the record revealed “two accounts of why Alabama flies the flag,” only one of which suggested animus,42 the Eleventh Circuit declined to find that the flag was hoisted for racially discriminatory reasons. The Eleventh Circuit then summarily dismissed the NAACP’s claim that “the flag was �tantamount to holding public property for racially discriminatory purposes’ and that it denied its members their rights to equal education, equal economic opportunity, and equal protection.”43 Instead, the Eleventh Circuit concluded “there is no unequal application of the state policy; all citizens are exposed to the flag. Citizens of all races are offended by its position.”44 Finally, in what can be described as an ad hominem attack, the Eleventh Circuit noted that the NAACP had been advancing discrimination suits in federal and state courts “over the [twenty-five] years since the flag was raised,” and had never before requested that it be brought down.45 41. 471 U.S. 222 (1985). Underwood involved a challenge to an Alabama law disenfranchising persons convicted of “any crime . . . involving moral turpitude.” Id. at 223 (quoting ALA. CONST. art. VIII, § 182). Historical evidence indicated that the law was enacted to disenfranchise Blacks, and in fact accomplished its goal. As such, the Court concluded that it deprived Blacks of equal protection. Id. at 225. 42. Hunt, 891 F.2d at 1562. Here, the Eleventh Circuit was clearly attempting to transform what it had earlier identified as the “two occasions” that Alabama had raised the flag into “two accounts” for raising the flag. Id. at 1558. The two occasions were as follows: Alabama raised the flag in 1961 ostensibly for the purpose of commemorating the one-hundreth anniversary of the Civil War. Id. The second time Alabama raised the flag was in 1963 in response to efforts to desegregate the University of Alabama. Governor George Wallace had threatened to physically block the admission of newly matriculated Black students to the University. On the morning of April 25, 1963, the day that U.S. Attorney General Robert F. Kennedy traveled to Alabama to confront Wallace, Alabama hoisted the flag in a show of defiance. Id. 43. Id. at 1562. 44. Id. 45. The Eleventh Circuit also rejected the NAACP’s remaining claims. The Eleventh Circuit noted that while the Thirteenth Amendment grants Congress the authority to enact legislation to eradicate badges and incidents of slavery, Congress had not used this authority to pass legislation forbidding the flying of the Confederate flag, precluding the NAACP’s Thirteenth Amendment claim. Id. at 1564. The Eleventh Circuit also rejected as meritless the NAACP’s contention that, given the Ku Klux Klan’s use of the flag “as part of their religious rituals,” Alabama’s flying of the Confederate flag amounted to excessive entanglement with religion. Applying the three-prong test established in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), which held that a state practice is valid under the Establishment Clause if (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster excessive government entanglement with religion, the Eleventh Circuit concluded: 132 [VOL. 48:121 Flags Having elected to lay “to rest on the merits” the claims raised by the NAACP, the Eleventh Circuit concluded by electing to insulate itself from accountability by passing the buck: It is unfortunate that the State of Alabama chooses to utilize its property in a manner that offends a large proportion of its population, but that is a political matter which is not within our province to decide. The remedy for such a grievance lies within the democratic processes of the State of Alabama and the voting rights of all its citizens, “the restraints on which the people must often rely solely, in all representative governments.”46 B. Coleman v. Miller Seven years after the Eleventh Circuit claimed to lay to rest the “controversial concerns”47 raised in the NAACP’s challenge to Alabama’s display of the Confederate flag, it was presented with another challenge, this time to the constitutionality of the state flag of Georgia.48 At the time, Georgia’s state flag consisted of the Georgia state seal, which covered approximately a third of the flag, and the Confederate battle flag emblem, which covered the remaining two-thirds.49 In a civil rights action filed in the Northern District of Georgia under 42 U.S.C. § 1983, James Coleman, an African American resident of Georgia, had challenged the legislation establishing the flag and the flag’s design on several grounds, including the ground that it violated his constitutional rights to equal protection under the Fourteenth Amendment.50 It is clear that whether the flag was hoisted to decry integration or to recognize history, the purpose in its hoisting was secular. It is also clear that the primary effect of the flag is not to promote religion; rather, it is to remind citizens, albeit offensively to some, of a controversial era in American history . . . . Finally, the NAACP has produced no evidence that the flag constitutes excessive entanglement with religion . . . . Without meaningful evidence of purpose, effect, and entanglement, the Establishment Clause claim must fail. Hunt, 891 F.2d at 1564-65. Finally, the Eleventh Circuit rejected the NAACP’s claim that Alabama’s display of the Confederate flag either interfered with the NAACP’s free speech, or amounted to improper “government speech” or “ �monopolization of the marketplace of ideas.’ ” Id. at 1565-66. 46. Hunt, 891 F.2d at 1566 (quoting Gibbons v. Ogden, 22 U.S. 1 (1824)). 47. Id. at 1561. 48. Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997) (Coleman II). Coleman, an African American resident of Georgia, brought his civil right action challenging the flag, and seeking an injunction ordering the immediate removal of the Georgia flag from all state office buildings in Georgia, in 1994. Id. at 524-25. 49. Id. at 528. 50. Id. Coleman also claimed that Georgia’s incorporation of the Confederate battle flag compelled him “to be the courier of an ideological message to which he objects,” in violation of his rights to freedom of expression and association under the First Amendment; deprived “him 2004] 133 Howard Law Journal At an evidentiary hearing before the District Court, Coleman presented evidence detailing the “historical incidents leading to the . . . flag’s enactment,”51 which included the following: In [May] 1954, the [U.S.] Supreme Court decided Brown v. Board of Education, holding that racial segregation in public schools violated the Equal Protection Clause. Later that year, Georgia voters [reacting to Brown I] ratified a constitutional amendment allowing parents to withdraw their children from public schools and [permitting the state legislature to] divert[ ] public money to nonsectarian, segregated schools. .... In April 1955, John Sammons Bell, counsel to the County Commissioners Association of Georgia and Chairman of the State Democratic Party, [proposed modifying Georgia’s state flag]. . . . to incorporate the Confederate battle flag . . . . In May 1955, the Supreme Court decided [Brown II, requiring] states to desegregate public schools “with all deliberate speed.” [Brown II ] fomented great controversy and deep emotion in Georgia. Politicians, including Governor Marvin Griffin, advanced a policy of massive resistance to desegregation in response. [In August 1955, in a further response to Brown I and Brown II,] the Georgia School Board ordered all teachers belonging to the [NAACP] to resign from the organization or have their teaching licenses revoked. [In August 1955 Georgia’s] State Attorney General . . . advocat[ed] the doctrine of interposition, . . . maintain[ing] that states may interpose themselves to block the enforcement of unconstitutional mandates such as Brown. . . . .... In December 1955, . . . . Georgia[’s] . . . Board of Regents . . . passed a resolution . . . [prohibiting Georgia Tech’s football team from] play[ing] . . . intrastate games against teams with [B]lack players. [In January 1956,] . . . . [i]n his . . . state of the State address, Governor Griffin . . . [promised, among other things, the following:] of his fundamental privacy interest in intimate associations with Caucasians free from Government intrusion,” in violation of his Due Process rights under the Fourteenth Amendment, and intimidated him and other African Americans “into refraining from exercising their right to vote” in violation of the Voting Rights Act of 1965, 42 U.S.C. § 1971. Coleman v. Miller, 912 F. Supp. 522, 530-32 (N.D. Ga. 1996), aff’d, 117 F.3d 527 (11th Cir. 1997) (Coleman I). The District Court rejected each of these claims as meritless, and only the Equal Protection and Freedom of Expression claims were addressed on appeal. See id. 51. Coleman I, 912 F. Supp. at 525. 134 [VOL. 48:121 Flags “[T]here will be no mixing of the races in public schools, in college classrooms in Georgia as long as I am the governor. I campaigned with segregation as the number one plank in my platform. We must not desert future generations of Georgians. We must never surrender. All attempts to mix the races, whether they be in the classrooms, on the playgrounds, in public conveyances, or in any other close personal contact on terms of equality harrow the mores of the South.” In . . . February 1956, [State] Senator Willis Harden sponsored a bill to adopt . . . [a] new design for the state flag. . . . The bill passed 107 to 32, to 61 abstentions.52 Having accepted this factual history, the district court nonetheless bypassed the racial animus prong of Hunter53 and granted Georgia’s motion for summary judgment on the second prong of Hunter, namely, that Coleman had failed to show that Georgia’s display of the flag had resulted in a “concrete, present-day discriminatory impact on African[ ]Americans.”54 Although Coleman argued that he suffered certain intangible harms,55 and that under Brown disparate harm need “not be specifically identifiable but may amount to feelings of inferiority such that they cause harm to the African[ ]American community,”56 the district court rejected this claim and distinguished Brown on the ground that the statute at issue there was not facially neutral, but explicitly classified children on the basis of race.57 52. Coleman I, 912 F. Supp. at 526-28. The district court noted that nothing in the legislative record of the bill, which is codified at O.C.G.A. § 50-3-1, revealed any discussion of segregation or White supremacy. Id. at 528. A likely explanation for this omission, however, is that segregation and White supremacy were taken as a given. The district court did acknowledge that segregation was a focus of the remainder of the 1956 session of the General Assembly. The District Court noted: Of the 150 acts passed in the session, ten bills and two resolutions dealt with massive resistance to desegregation. One such law passed after the flag bill, the Interposition Resolution, declared the Brown cases and all similar decisions to be null and void. Finding that the Supreme Court had usurped powers reserved to the states in Brown, it repudiated the Court’s right to declare state laws unconstitutional. It also asserted that Georgia had the right to decide for itself how to educate its children in keeping with the State’s segregated social structure. The resolution passed with twenty-five abstentions and only one dissent. Id. 53. Coleman I, 912 F. Supp. at 530. 54. Id. at 529. 55. In an attempt to satisfy the disparate impact prong of Hunter, Coleman claimed that the flag’s existence called upon Georgia citizens to adopt the “symbolic state policy of discrimination” and resulted in his devaluing himself as a person. Coleman I, 912 F. Supp. at 529-30. The district court found neither of these contentions persuasive. Id. 56. Id. at 530 n.8 (quoting Coleman’s brief in opposition to the summary judgment motion). 57. Id. 2004] 135 Howard Law Journal On appeal, the Eleventh Circuit affirmed the district court’s grant of summary judgment to the State of Georgia, concluding that Coleman had failed to satisfy Hunter by presenting “specific factual evidence to demonstrate that the Georgia flag presently imposes on African[ ]Americans, as a group, a measurable burden or denies them an identifiable benefit.”58 Appellant relies on his own testimony to demonstrate a disproportionate racial effect. He testified that the Confederate symbol in the Georgia flag places him in imminent fear of lawlessness and violence and that an African[ ]American friend of his, upon seeing the Georgia flag in a courtroom, decided to plead guilty rather than litigate a traffic ticket. This anecdotal evidence of intangible harm to two individuals, without any evidence regarding the impact upon other African[ ]American citizens or the comparative effect of the flag on [W]hite citizens, is insufficient to establish “disproportionate effects along racial lines.”59 The Eleventh Circuit concluded that Coleman faced the same, presumably insurmountable, hurdle as the plaintiff had in NAACP v. Hunt: “�[T]here is no unequal application of state policy; all citizens are exposed to the flag. Citizens of all races are offended by its position.’”60 Finally, as it had done before in Hunt, the Eleventh Circuit attempted to insulate itself from criticism by expressing its disagreement with Georgia’s decision to fly the flag, while simultaneously disclaiming any authority to order the removal of the flag: We recognize that the Georgia flag conveys mixed meanings; to some it honors those who fought in the Civil War and to others it flies as a symbol of oppression. But because the Confederate battle 58. Coleman II, 117 F.3d at 530. 59. Id. (quoting Hunter, 471 U.S. at 227). Coleman’s fear of “lawlessness and violence” is not entirely farfetched. The Confederate flag has been embraced not only by members of the Ku Klux Klan and neo-Nazis, but by other supremacists groups as well. See Forman, Jr., supra note 34, at 526 n.57 (citing examples of various supremacists invoking the Confederate flag); L. Darnell Weeden, How to Establish Flying the Confederate Flag with the State as Sponsor Violates the Equal Protection Clause, 34 AKRON L. REV. 521, 553 n.64 (2001). More recently, federal agents who searched serial bombing suspect Eric Robert Rudolph’s storage unit in 1998 found “guns, ammunition . . . and Confederate flags.” Rudolph was subsequently arrested on May 31, 2003, after a much publicized, five-year manhunt, and is awaiting capital trial in federal court in Alabama in connection with the 1998 bombing of an abortion clinic there. Rudolf also faces charges in Georgia, in connection with three bombings there, including one at the 1996 Olympics. Don Plummer, Rudolph Caches Revealed Items Seized Expand Portrait of Bomb Suspect, ATLANTA J. CONST., July 1, 2003, at A5. 60. Coleman II, 117 F.3d at 530 (quoting NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990)). 136 [VOL. 48:121 Flags flag emblem offends many Georgians, it has, in our view, no place in the official state flag. We regret that the Georgia legislature has chosen, and continues to display, as an official state symbol a battle flag emblem that divides rather than unifies the citizens of Georgia. As judges, however, we are entrusted only to examine the controversies and facts put before us.61 II. FLAGS: THE JURIDICAL PERPETUATION OF SOCIAL INEQUALITY That the Eleventh Circuit decisions in Hunt and Coleman are assailable on a number of grounds perhaps goes without saying. That some greater showing of harm—a “concrete, present-day discriminatory impact on African[ ]Americans”62—must be proved where a statute is facially neutral, as opposed to discriminatory on its face, is far from apodictic. One need only look at the district court’s “facially neutral” recitation of the “facts” adduced at the evidentiary hearings to see how easily race can be alluded to without being stated. Throughout the district court’s recitation, racial identification is ubiquitous, a given, and yet at the same time absent. Thus, the district court was able to note the “public outcry to desegregation,” 63 “voters ratif[ying] a constitutional amendment allowing parents to withdraw their children from public schools,”64 and “[p]oliticians advanc[ing] a policy of massive resistance to desegregation,”65 without once needing to identify the race of the actors.66 Indeed, during the Civil Rights Era, states routinely responded to judicial invalidations of racially explicit legislation by purposefully enacting facially neutral, yet discrimi61. Id. at 530. One effect of this assertion of the court’s “view” is that it provides support for the court’s earlier claim, not based on any evidence in the record, that “all races are offended by” Georgia’s display of the flag. The judges on the three-member panels that decided NAACP v. Hunt and Coleman v. Miller were all White men. Notwithstanding the fact that African Americans comprise approximately twenty percent of the Eleventh Circuit, there has never been more than one African American judge at a time on the Eleventh Circuit. See generally Report on Presidential Appointments of African American Article III Judges, available at www.jtbf.org (last visited Oct. 4, 2004). 62. Coleman I, 912 F. Supp. at 529. 63. Id. at 526. 64. Id. 65. Id. at 527. 66. Id. Race is similarly a given in Governor Griffin’s 1956 state of the State Address, as the following rewrite demonstrates: “I campaigned with segregation as the number one plank in my platform. We [Whites] must not desert future generations of [White] Georgians. We [Whites] must never surrender.” Id. 2004] 137 Howard Law Journal natory, laws.67 Given the fact that it is relatively easy to cloak racially motivated legislation in facially neutral language,68 there seems little basis for imposing a more stringent standard in challenges to facially neutral statutes.69 Indeed, as Darren Lenard Hutchinson has convincingly argued, requiring proof of racial animus departs from the spirit of the Equal Protection Clause, as explicated by law’s most famous footnote,70 and contributes to what Hutchinson identifies as the “inversion of privilege and subordination in Equal Protection jurisprudence.”71 Put differently, under Hutchinson’s theory, Hunt and Coleman can be read as belonging to a growing body of cases in which courts, having extended solicitude to the discrimination claims brought by members of privileged classes in “reverse discrimination” cases, find claims of discrimination deficient when brought by mem- 67. See, e.g., Bd. of Educ. v. Swann, 402 U.S. 43 (1971) (prohibiting busing enacted to thwart integration); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (excluding all but four Black voters from the city); see also Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) (zoning decision); Kimberle’ Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1337-38 (1988) (discussing the de jure manifestation of subordination that existed prior to the Civil Rights movement). 68. As the Supreme Court has noted: It is difficult or impossible for any court to determine the “sole” or “dominant” motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons. Palmer v. Thompson, 403 U.S. 217, 225 (1971). 69. See, e.g., Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95 (1971); John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205 (1970); Seth F. Kreimer, Reading the Mind of the School Board: Segregative Intent and the De Facto/De Jure Distinction, 86 YALE L.J. 317 (1976); Eric Schnapper, Perpetuation of Past Discrimination, 96 HARV. L. REV. 828 (1983); David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 948 (1989) (arguing that “[i]f explicit racial classifications are unlawful, it makes little sense to allow a government that is subtle enough to use an ostensibly neutral surrogate for race to get away with maintaining the Jim Crow regime”). 70. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). The footnote reads, in relevant part: Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, . . . or national . . . or racial minorities . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Id. 71. Darren Lenard Hutchinson, “Unexplainable on Grounds Other Than Race”: The Inversion of Privilege and Subordination in Equal Protection Jurisprudence, 2003 U. ILL. L. REV. 615 (2003). 138 [VOL. 48:121 Flags bers of historically vulnerable classes—the very persons that the Equal Protection Clause was drafted to protect.72 Similarly, one could quarrel with the Eleventh Circuit’s adoption of an Equal Protection test based on anti-differentiation, rather than anti-subordination or equal citizenship.73 Under the anti-differentiation standard, exemplified by Washington v. Davis,74 courts invalidate only those government actions that make explicit and purposeful distinctions between similarly situated groups.75 By contrast, under an anti-subordination approach, exemplified in Brown I,76 the constitutionality of a law is not determined by simply examining whether it differentiates among similarly situated classes; rather, a law unlawfully discriminates if it reinforces the marginalized social, economic, or political status of historically disadvantaged classes.77 In the alternative, the Eleventh Circuit could have adopted the equal citizenship approach advocated by scholars such as Kenneth Karst,78 and exempli72. Id. at 671. 73. For a general discussion of the various meanings of equality that scholars and jurists have advanced in the context of equal protection analysis, see id. at 619-27. 74. 426 U.S. 229 (1976). In Washington v. Davis, plaintiffs challenged on equal protection grounds the requirement of an aptitude test to gain employment with the Washington, District of Columbia police department. Finding that the test was applied equally to all applicants, and rejecting statistical evidence of disproportionate pass/failure rates, the Court found the test constitutional. 75. See generally Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1005 (1986) (describing the anti-differentiation approach as precluding only different treatment on the basis of a particular normative view about race or sex); see also Cedric Merlin Powell, Blinded by Color: The New Equal Protection, the Second Deconstruction, and Affirmative Inaction, 51 U. MIAMI L. REV. 191, 228 (1997). 76. 347 U.S. at 483 (“To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”); see also Michael C. Dorf, Foreword: The Limits of Socratic Deliberation, 112 HARV. L. REV. 4, 76 (1998) (noting that Brown “has been most persuasively defended as the Court’s recognition that, as actually practiced, American segregation was a crucial piece of a system of racial subordination”). 77. See Colker, supra note 76; Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2411 (1994); Robin L. West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 FLA. L. REV. 45, 71 (1990) (advocating an “anti-subordination model, which targets legislation that substantially contributes to the subordination of one group by another”). 78. See, e.g., Kenneth L. Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 5-6 (1977) [hereinafter Karst, Equal Citizenship]. The principle of equal citizenship presumptively insists that the organized society treat each individual as a person, one who is worthy off respect, one who “belongs.” Stated negatively, the principle presumptively forbids the organized society to treat an individual either as a member of an inferior or dependent caste or as a nonparticipant. Accordingly, the principle guards against degradation or the imposition of stigma. Id. at 6. See generally KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989); KENNETH L. KARST, LAW’S PROMISE, LAW’S EXPRESSION: VISIONS OF POWER IN THE POLITICS OF RACE, GENDER, AND RELIGION (1993). 2004] 139 Howard Law Journal fied by Lawrence v. Texas79 and even more recently in the Massachusetts Supreme Court’s decision Goodridge v. Dept. of Public Health.80 Under Karst’s theory, the Equal Protection Clause authorizes courts to invalidate laws that reduce groups to “second-class citizenship.” Karst argues: The essence of equal citizenship is the dignity of full membership in the society. Thus, the principle not only demands a measure of equality of legal status, but also promotes a greater equality of that other kind of status which is a social fact — namely, one’s rank on a scale defined by degrees of deference or regard. The principle embodies “an ethic of mutual respect and self-esteem;” it often bears its fruit in those regions where symbol becomes substance.81 Thus, by applying a test based on anti-differentiation, rather than anti-subordination or equal citizenship, the Eleventh Circuit was able to ensure a result that was all but predetermined to sustain social and racial hierarchy. One could also take issue with the Eleventh Circuit’s application of the discriminatory impact prong of Hunter, and its statement, first made in Hunt and reiterated in Coleman, that citizens of all races are offended by the Confederate flag, and the implicit suggestion that such citizens are offended equally. The Eleventh Circuit offered no empirical support for this supposition; and indeed, their conclusion runs contrary to polls reflecting the public’s responses to the flag.82 Moreover, as demonstrated by Justice Clarence Thomas’s statements during oral argument in Virginia v. Black,83 which involved a First Amendment challenge to a Virginia statute criminalizing cross burning, the targets of symbols of supremacy justifiably feel offended to a greater degree than even their most liberal sympathizers.84 For exam79. 539 U.S. 558 (2003) (invalidating Texas’s anti-sodomy law as infringing on the right to liberty under the Due Process Clause). 80. 798 N.E.2d 941, 948 (Mass. 2003) (reading the Massachusetts Constitution’s guarantees of equality before the law as “forbid[ding] the creation of second-class citizens,” and thus precluding the denial of the civil marriage benefits to same-sex couples); see also In re Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004). 81. Karst, Equal Citizenship, supra note 78, at 5-6. 82. Cf. infra note 88. 83. 538 U.S. 343 (2003). 84. As one commentator described it: [N]early midway through the hour-long hearing, Justice Clarence Thomas transformed the debate with his booming and rarely heard voice, cautioning government lawyers against “understating the effects of burning crosses.” Cross burning was part and parcel of “100 years of lynching in the South,” Thomas said, adding that “this was a reign of terror.” Burning a cross, he said, is “intended to have a virulent effect. It is unlike any other symbol.” Tony Mauro, Remarks by Thomas Alter Argument, LEGAL TIMES, Dec. 16, 2002, at 7. 140 [VOL. 48:121 Flags ple, it would be irrational for a non-minority to fear physical assault from an approaching group waving Confederate flags. By contrast, given the history of violence associated with the Confederate flag,85 it would be entirely rational for a member of a historically oppressed class, in the face of the same approaching group, to fear for his safety. This is not to suggest that the plaintiffs in Hunt and Coleman mounted the strongest cases imaginable. Ultimately, the Eleventh Circuit was able to point to the plaintiffs’ failure to present “specific factual evidence” to refute the court’s assessment that the Confederate flag imposes no disproportionate effect along racial lines. Rather than relying on empirical data or expert testimony and reports from sociologists, as the NAACP had done to great effect in Brown,86 the plaintiffs in Hunt and Coleman instead relied on personal, anecdotal evidence. One could argue that the failure on the part of the plaintiffs to present data supporting their claim of disparate impact was fatal, though whether the Eleventh Circuit would have been receptive to, or persuaded by, such data is questionable.87 One could also argue that by deferring to the state legislature, which by definition is majoritarian, the Eleventh Circuit abdicated its function of protecting “discrete and insular minorities.”88 Stated dif85. Several violent White supremacist groups have adopted the Confederate battle flag as their symbol. See, e.g., Ashley Dunn & Jeffrey Miller, �I Had to Stop it,’ Says Guard Who Held off Alleged “Skinheads,” L.A. TIMES, June 1, 1989, at B1 (A group of Los Angeles skinheads wearing Confederate battle flag tattoos attacked a Middle Eastern couple and baby in a supermarket parking lot.); John M. Glionna, Unfavorite Son, L.A. TIMES, Oct. 30, 1990, at E1 (Tom Metzger, former Grand Dragon of the KKK and leader of the White Aryan Resistance, who was ordered to pay $12.5 million in damages for his role in the killing of a Black man in Oregon, flew the Confederate battle flag above his home.); Peggy O’Hare, Task Force Reveals Arrests of Four After Infiltration of Bandidos Gang, HOUSTON CHRON., Oct. 11, 2000, at 21A (gang displayed swastikas and Confederate flag); Paul W. Valentine, Police Boost Security at NAACP; White Supremacists Picket Headquarters, WASH. POST, Jan. 5, 1990, at C1 (KKK and neo-Nazi protestors demonstrating outside the national headquarters of the NAACP carried a Confederate battle flag along with signs saying “Nuke the NAACP.”). 86. See generally MARK TUSHNET, BROWN V. BOARD OF EDUCATION: THE BATTLE FOR INTEGRATION (1995); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY (1975). 87. For example, the Supreme Court found unpersuasive statistical data evidencing a racial pattern in the imposition of the death penalty in Georgia. McCleskey v. Kemp, 481 U.S. 279 (1987). For a general discussion of the Supreme Court’s rejection of discriminatory impact statistics in Equal Protection actions, see Sheila Foster, Intent and Incoherence, 72 TUL. L. REV. 1065, 1144-61 (1998). 88. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) (invoking footnote four of United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938), to explicate a process-based theory of judicial review to protect disadvantaged minorities, who by definition are subject to the will of the majority in a majoritarian legislative process); see also Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 716 n. 5 (1985); Lewis F. Powell, Jr., Carolene Products Revisited, 82 COLUM. L. REV. 1087 (1982). 2004] 141 Howard Law Journal ferently, Hunt and Coleman can be read as a failure of countermajoritism. Instead of protecting the interests of “insular minorities” from the majoritarianism of representative government, as envisioned under the late John Hart Ely’s model of judicial review, the Eleventh Circuit instead protected the preferences of the majority. Indeed, scholars such as Charles Lawrence and Girardeau A. Spann would argue that the failure of counter-majoritarianism is all but inevitable in such cases, given that judges, through the nomination and confirmation process, usually arrive at the bench already “inculcated with majoritarian values.”89 Specifically, Spann persuasively argues that Supreme Court Justices are, by necessity, majoritarian, in the sense that they have been socialized by the dominant culture. His argument has equal force when applied to other federal judges: [Judges] have internalized the basic values and assumptions of [the] culture, including the beliefs and predispositions that can cause the majority to discount minority interests. Indeed, a justice’s sympathy toward majoritarian values is thoroughly tested by the appointment and confirmation process, which is specifically designed to eliminate any candidate whose political inclinations are not sufficiently centrist for the majoritarian branches to feel comfortable with that candidate’s likely judicial performance. As a statistical matter, therefore, a [federal judge] is more likely to share the majority’s views about proper resolution of a given social issue than to possess any other view on that issue. Moreover, to the extent that the justice has been socialized to share majoritarian prejudices, he . . . may not even be consciously aware of the nature of those prejudices, or the degree to which they influence the exercise of the [judge’s] discretion. Whatever factors cause majority undervaluation of minority interests, [judges] socialized by the dominant culture will have been influenced by them too. Accordingly, justices will come to the task of protecting minority interests possessed by the very same dispositions that they are asked to guard against.90 Finally, one could argue that the Eleventh Circuit was either naı¨ve or disingenuous in urging the plaintiffs to seek recourse in the legislative arena. The simple fact is that efforts by minorities to obtain relief in the legislatures have proved unavailing, and will in all likeli89. Girardeau A. Spann, Pure Politics, 88 MICH. L. REV. 1971, 1982 (1990) [hereinafter Spann, Pure Politics]; see also GIRARDEAU A. SPANN, RACE AGAINST THE COURT (1983); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987). 90. Spann, Pure Politics, supra note 89, at 1982-83. 142 [VOL. 48:121 Flags hood continue to prove unavailing.91 As Reinhold Niebuhr noted, insular minorities cannot expect “complete emancipation from the menial social and economic position into which the [W]hite man has forced him, merely by trusting in the moral sense of the [W]hite race.”92 On another level, however, Hunt and Coleman suffer from a failure of context. After all, how can one decide whether the state display of the Confederate flag violates the Equal Protection Clause, without first considering what it means for the State to display a flag? III. FLAGS: THE POLEMICAL FLAG “You might ask mockingly: �A flag? What’s that? A stick with a rag on it?’ No sir, a flag is much more. With a flag you lead men, for a flag, men live and die. In fact, it is the only thing for which they are ready to die in masses, if you train them for it. Believe me, the politics of an entire people . . . can be manipulated only through the imponderables that float in thin air.”93 Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind.94 I am what you make me; nothing more. I swing before your eyes as a bright gleam of color, a symbol of yourself.95 In the collection of the Staten Island Historical Society, there is a thirty-four-star American flag that has an interesting, if apocryphal, history. According to legend, during the period of the Civil War, a Confederate sympathizer made the mistake of hanging a Confederate flag from the window of the Staten Island boarding house where he was staying. An angry mob quickly gathered, forcibly removed the Confederate flag, and threatened to burn the house to embers unless 91. For example, in 2001, a referendum was put to the voters in Mississippi on removing the Confederate emblem from the state flag. The removal was easily defeated, with only thirty-five percent of voters supporting the removal. At the time, Mississippi was thirty-six percent Black. Nicholas Dawidoff, Mr. Washington Goes to Mississippi, N.Y. TIMES, Oct. 19, 2003, at 48. 92. REINHOLD NIEBURH, MORAL MAN AND IMMORAL SOCIETY, A STUDY IN ETHICS AND POLITICS 252 (1932). 93. Theodore Herzl, regarded as the founder of modern Zionism, wrote these words to a German friend who had questioned the significance of flags. ROBERT JUSTIN GOLDSTEIN, SAVING “OLD GLORY”: THE HISTORY OF THE AMERICAN FLAG DESECRATION CONTROVERSY ix (1995) (omission in original) [hereinafter GOLDSTEIN, FLAG DESECRATION]. 94. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943) (Justice Jackson holding unconstitutional compulsory flag salutes in public schools). 95. Richard Lowe, Are We Flagging? BRISTOL EVENING POST, Apr. 19, 2003, at 3 (quoting Franklin L. Kane, Secretary of the Interior, on Flag Day, 1914). 2004] 143 Howard Law Journal its occupants raised a Union flag in its place before nightfall. Having no Union flag on hand to raise, the landlord and tenants hurriedly began to sew one, using whatever cloth they could find. Their efforts paid off. Just as night was falling, they draped a Union flag from the window. The mob, satisfied, moved on, and the boarding house was spared.96 What was striking about this story was its similarity to the Biblical story of Passover. The Union flag, in the story, becomes the functional equivalent of lamb’s blood smeared on a door, a sign of allegiance, something that permits safe passage, and at the same time signifies to whatever pestilence, plague, or mob that happens to be about to move on, to pass over.97 Examples of the American flag having this almost talismanic effect are legion. Not surprisingly, however, these examples begin with the Civil War. Although not commonly known, the public’s adoption of the flag as iconic did not begin on June 14, 1777, when the Continental Congress approved the stars-and-stripes design for the American flag,98 but eighty-five years later, when the Civil War began.99 96. History Detectives (PBS television broadcast, Aug. 2003); see also Historic Flag, STATEN ISLAND REG., Aug. 26 - Sept. 1, 2003, available at http://www.siregister.com/news_story.php?nid= 221&edition=55 (last visited Sept. 13, 2004). 97. See generally Exodus 12:1-51 (describing how the Israelites smeared lamb’s blood on their doors as a sign to the Lord to pass over their houses when He smote the first born of the Egyptians). 98. The resolution passed by Congress read simply: “RESOLVED: That the Flag of the United States be thirteen stripes, alternate red and white: that the Union be thirteen stars, white in a blue field, representing a new constellation” J. CONT. CONG. VIII, 464; ROBERT PHILLIPS, THE AMERICAN FLAG: ITS USES AND ABUSES 35 (1930) [hereinafter PHILLIPS, USES AND ABUSES]. From the legislative record, it does not appear that Congress made any provision for the making of new flags for its militia, or notified the militia of its action. FREDERICK C. HICKS, THE FLAG OF THE UNITED STATES 100-03 (2d. ed. 1926). [hereinafter HICKS, FLAG OF THE U.S.]; see generally PHILLIPS, USES AND ABUSES, supra, at 40-42. The year prior to its adoption of the “Stars and Stripes” design, Congress passed a resolution adopting as the official flag what is commonly known as the Grand Union flag. Although the Grand Union flag also bore thirteen stripes, the canton displayed the Union Jack—from the flag of England—rather than a constellation of stars. Indeed, that meaning is not immanent in a flag is evidenced by the reaction of British and Loyalist soldiers upon first seeing the Grand Union flag in Charlestowne, Massachusetts in 1776. Seeing that the flag incorporated the Union Jack, the British and Loyalist soldiers interpreted the flag as a sign of surrender. WILLIS FLETCHER JOHNSON, THE NATIONAL FLAG: A HISTORY 19-27 (1930) [hereinafter JOHNSON, THE NATIONAL FLAG]. As George Washington wrote to his friend Colonel Joseph Reed: “[F]arcical enough, we gave great Joy to them (the Red Coats I mean) without knowing or intending it, for on that day . . . we had hoisted the Union flag in compliment to the United Colonies, but behold! It was received in Boston as a token of the deep Impression [the King’s warning] had made upon us, and as a signal of Submission—so we learn by a person out of Boston last night—by this time I presume they begin to think it strange that we have not made a formal surrender of our Lines.” ALFRED MORTON CUTLER, THE CONTINENTAL “GREAT UNION” FLAG 9 (1929) (quoting Washington’s letters). 144 [VOL. 48:121 Flags Indeed, between 1777 and the outbreak of the Civil War, the flag was displayed almost exclusively on federal government buildings, naval ships, and forts, and as flag historian Robert Philipps has noted, regarded as “peculiarly governmental property.”100 The flag was neither unfurled over schools, nor displayed outside homes. As one of the directors of the Betsy Ross house in Philadelphia stated, “it would have been unthinkable to fly an American flag at a private home. It simply was not done.”101 Similarly, cultural historian Wilbur Zelinsky has noted: “During its early career, the national flag was remarkably unimportant to the citizenry at large.”102 The change in attitude about the American flag, rather, and its metamorphosis into a totemic symbol, was the result of the outbreak of the Civil War; specifically, by Confederate troops firing on the American flag-bedecked Fort Sumter, in South Carolina.103 As Robert Justin Goldstein noted, “�all at once the people of the Northern States and the Union discovered that there was an American Flag and towns and villages, cities and county hamlets blossomed full-bloom with a most gorgeous display of the Red, White and Blue.’”104 As another flag historian noted: 99. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 3-4. This is not to suggest that the American flag did not enjoy brief periods of popularity prior to the Civil War. For example, following England’s unsuccessful attack on Baltimore, Maryland on September 13, 1814, Francis Scott Key wrote the Star-Spangled Banner, which in turn sparked public interest and pride in the flag. After the close of the war, however, the song lost its popularity, as did the flag. Both the song and the flag regained their popularity following the outbreak of the Civil War. JOHNSON, THE NATIONAL FLAG, supra note 98, at 75-77. 100. PHILLIPS, USES AND ABUSES, supra note 98, at 58. 101. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 4. Just as America’s idolatry of the flag can be traced to the Civil War, so can the story of the flag’s creation by Betsy Ross. The idea of Ross as “the mother of our country” began with her grandson William J. Canby who, in an address before the Pennsylvania Historical Society in 1870, claimed that that when he was a child, his grandmother informed him that she had created the first flag after being visited by George Washington. Scholars have since questioned this claim, given the absence of any mention of her in connection with the flag in Congressional records, Washington’s diary, or any other Revolutionary documents. For a discussion generally of this creation myth, see HICKS, FLAG OF THE U.S., supra note 98, at 16-17; JOHNSON, THE NATIONAL FLAG, supra note 98, at 38-42. 102. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 4. Along these lines, it is interesting to contrast the painter Gilbert Stuart’s pre-Civil War portraits George Washington (1795-96), John Adams (1800-15), James Madison (1805), James Monroe (1818), Thomas Jefferson (180507), Paul Revere (1813) and Chief Justice John Jay (1794), in which flags are absent, with Emanuel Leutze’s famous painting Washington Crossing the Delaware (1851) depicting Washington leading the attack on Hessians at Trenton on December 25, 1776. In Leutze’s painting, an anachronistic American flag figures prominently. 103. LLOYD BALDERSTON, THE EVOLUTION OF THE AMERICAN FLAG, FROM MATERIALS COLLECTED BY THE LATE GEORGE CANBY 93-95 (1909). 104. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 5 (quoting an 1896 Connecticut Sons of the American Revolution report). 2004] 145 Howard Law Journal The fall of Sumter created great enthusiasm throughout the loyal states, for the flag had come to have a new and strange significance . . . One cry was raised, drowning all other voices—“War! war to restore the Union! war to avenge the flag! . . .” When the stars and stripes went down at Sumter, they went up in every town and county in the loyal states. Every city, town and village suddenly blossomed with banners. On forts and ships, from church-spires and flag-staffs, from colleges, hotels, store-fronts, and private balconies, from public edifices, everywhere the old flag was flung out . . . . The demand for flags was so great that the manufacturers could not furnish them fast enough. Bunting was exhausted and recourse was had to all sorts of substitutes. In New York, the demand for flags raised the price of bunting from [$4.75] a piece to [$28.00].105 The flag, following the outbreak of war, thus became a symbol around which loyalists rallied. At a flag raising ceremony that attracted 100,000 people at Union Square in New York City on April 20, 1861, the tattered remnants of the Fort Sumter flag were placed in the hands of a statute of George Washington; throughout the war, this relic was used as a fund-raising device, and upon the recapture of Sumter in 1865, the flag was retuned and rededicated in an elaborate ceremony.106 It was during this period that the removal of one flag, namely the Confederate flag, and the raising of another flag, the Union flag, resulted in the boarding house on Staten Island being spared.107 The protection that could be secured by displaying the American flag continued through World Wars I and II. For example, in 1918, a New 105. 2 GEORGE HENRY PREBLE, ORIGIN AND HISTORY OF THE AMERICAN FLAG 453 (1917). 106. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 6. 107. Far from being an isolated incident, vigilantes in Philadelphia, Pennsylvania, Trenton, New Jersey and other cities also demanded, under threat of violence, that various businesses and newspapers display the Union flag. Id. at 7. Of course, there are other nineteenth-century examples of flags providing protection. During the height of a contested presidential election in Mexico, for example, a mob converged on the U.S. embassy in search of Spaniards seeking sanctuary there, and shots were fired. The U.S. Minister to Mexico, Joel R. Poinsett, then ordered that an American flag be unfurled from the balcony. According to legend, as Poinsett stood below the flag and proclaimed its protection for all in his household, the shouting ceased, guns were lowered, and the mob retreated. 1 GEORGE HENRY PREBLE, HISTORY OF THE FLAG OF THE UNITED STATES 351-52 (1880). There is also a children’s story from the nineteenth century in which: [T]he flag mysteriously saves a boy named Joe trapped in a burning house on the Fourth of July—the flagpole bends over to him when he finds himself cut off on the second story; he takes hold of the banner, pulls himself out of the blazes, and shimmies down to safety. SCOT M. GUENTER, THE AMERICAN FLAG 1777-1924 111 (1990); see also J. William Fosdick, The Studlefunk’s Bonfire, in ST. NICHOLAS 23 (1986). 146 [VOL. 48:121 Flags York woman was arrested for removing an American flag that a neighbor had placed in her window and replacing it with a German flag while declaring, “To hell with the American flag. I want my own flag.”108 Similarly, in 1930, a mob of 700 local residents and Ku Klux Klan (“KKK”) members confronted two women who ran a Communist children’s camp in Van Etten, New York, and demanded that they hoist an American flag. When the women refused, the mob seized them and brought them before a judge, and flag desecration charges were filed. Following trial, the judge sentenced the two women to ninety days in prison each, declaring that their sentences were intended “as a warning to Communists all over the United States that they could not trifle with the American flag or teach un-Christian doctrines.”109 That having the correct flag was essential to protection is perhaps best demonstrated when one considers the trade unions and striking workers that sought recourse in the American flag during the early part of the twentieth century. Strikers during this period routinely carried or marched behind American flags to show their bona fides as patriotic Americans and to ward off physical attacks by those who perceived striking as un-American.110 During this same period, being without a flag often led to ostracism and violence. Hundreds of Jehovah’s Witnesses were expelled from school for refusing to salute the flag because their refusal, on religious grounds, was viewed as evidence of insufficient patriotism,111 expulsions which the Supreme Court initially deemed constitutional, on “national security” grounds, 108. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 81. 109. Id. at 90. 110. Although strikers during this period routinely carried or marched behind flags to show their bona fides as patriotic Americans and ward off physical attacks by those who perceived them as un-American, the flag did not insulate them completely in this regard. [D]uring a bitterly fought coal strike in Colorado in 1914, strikers carried a flag when they greeted the well-known labor agitator “Mother” Jones at a railroad station in January. After she was arbitrarily jailed strikers marched behind a flag to demand her freedom, only to be attacked by mounted troops with guns and sabers drawn, an event that led to headlines in the labor press such as, “Woman carrying American flag knocked down with butt of gun and flag torn from her hands by militiamen.” During a textile strike in Passaic, New Jersey, which erupted amidst the Red Scare of 1919, strikers held a mammoth parade on March 17, led by army veterans holding American flags. And according to a standard history of the labor movement in Colorado, striking miners who were shot at by state police in 1927, with the result that five men were killed and another critically wounded, had marched “with the front rank carrying American flags, as was customary.” GOLDSTEIN, FLAG DESECRATION, supra note 93, at 88. 111. Id. at 93-94; see also DAVID R. MANWARING, RENDER UNTO CAESAR: THE FLAG SALUTE CONTROVERSY (1962) 56, 70-78; LEONARD A. STEVENS, SALUTE! THE CASE OF THE BIBLE VS. THE FLAG 9-10 (1973). 2004] 147 Howard Law Journal in Minersville School District v. Gobitis.112 It is far from an exaggeration to note that the Supreme Court’s decision sanctioned the continued expulsion of students, and implicitly fostered the harassment and mob attacks of Jehovah’s Witnesses,113 which continued unabated until 1943, when the Supreme Court reversed itself and struck down compulsory flag salute laws in West Virginia Board of Education v. Barnette.114 That the flag signified protection is also evident in popular culture during this period. In December 1940, Marvel Comics created Captain America.115 A year later, a month before the bombing of Pearl Harbor, DC Comics created Wonder Woman.116 Both superheroes, it can be argued, are anthropomorphisms of the American flag.117 Their costumes are reconstructed flags. Their charge: To protect America from its enemies. The flag as a protector continued during the Vietnam era, when citizens used flags to align themselves with the Government and police, and separate themselves from anti-war activists.118 During this 112. 310 U.S. 586, 595-96 (1940). 113. For example, in 1940, police officials in Richwood, West Virginia “forced a group of [Jehovah’s] Witnesses to swallow large doses of castor oil [and] paraded them roped together before a large crowd . . . [which] attempted unsuccessfully to force them to plead allegiance to the flag.” GOLDSTEIN, FLAG DESECRATION, supra note 93, at 94. 114. 319 U.S. 624, 641-42 (1943). 115. Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2d Cir. 2002). 116. Hank Stuever, Keeping Wonder Woman in Shape, L.A. TIMES, May 23, 2001, at E4. 117. By contrast, the artist Rene Cox, in her Raje series (1998), photographs herself as a Black superhero battling urban blight and villains. Cox also costumes herself in the colors of a flag, but chooses the red, yellow and green colors of the Black solidarity flag. In a similar vein, a South Carolina rap group has incorporated into its act what it calls the “New South” flag—the Confederate flag redone in Black solidarity colors. See Mike Smith, Banner Combines Confederate Flag, Colors of Black Liberation, ATLANTA J. CONST., Apr. 22, 1994, at A4. 118. By contrast, many in the Civil Rights movement read the flag as reinforcing the racial hegemony I argue the Confederate flag now communicates. The American flag, during this period, symbolized to many African Americans a lapse in protection. Thus, during a civil rights demonstration in Cordele, Georgia, in March 1966, protesters ripped down an American flag from the Cordele courthouse, prompting Governor Carl Sanders to order state police to protect the flag and prompting the KKK to hold a counter demonstration during which the Grand Dragon admonished White Georgians, “If you can’t protect this flag we will bring enough Klansmen to do it for you.” GOLDSTEIN, FLAG DESECRATION, supra note 93, at 157. The following year Sidney Street, a forty-seven-year-old African American bus driver who had been awarded a Bronze Star for his heroism during World War II, committed an equally political act. While listening to the radio in his Brooklyn apartment, Street heard a report that James Meredith, a civil rights leader, had been shot by a sniper in Mississippi. Saying to himself, “They didn’t protect him,” Street “took from his drawer a neatly folded, [forty-eight]-star American flag which he formerly had displayed on national holidays,” took it to a street corner, and publicly burned it, exclaiming that if “they let that happen to Meredith, we don’t need an American flag.” Street v. New York, 394 U.S. 576, 578 (1969). The Supreme Court overturned his conviction for violating New York’s flag desecration law (which also outlawed contemptuous remarks about the flag) upon the ground that the trial record did not preclude the possibility that his conviction was based solely on his remarks, rather than the flag burning. Id. at 594. 148 [VOL. 48:121 Flags period, hundreds of thousands of Americans pasted flag decals on their windows, and flag stickers on their car bumpers; for example, in 1969 and 1970, over 70 million flag decals were distributed, including as part of commercial promotions through magazines, gas stations, banks, and civil organizations.119 The necessity of displaying the flag was even noted by a cartoon in the October 24, 1970 issue of the New Yorker. The cartoon depicted an executive telling an employee, “�Naturally, X, the company doesn’t care whether its employees have little flags on their desks or not. It’s purely a voluntary thing. We just wondered why you happened to be the only person who hasn’t got one.’”120 The idea of the flag as protector has only continued since then. We have seen it most obviously, since September 11, 2001 in Arab-Americans literally cloaking themselves in the American flag121 to ward against everything from job discrimination,122 to racial profiling,123 to harassment,124 to violence.125 119. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 157. 120. Id. (quoting a cartoon from NEW YORKER, Oct. 24, 1970, at 56). 121. See, e.g., Francis X. Donnelly, Metro Arabs, Muslims Suffer Harassment, Hatred, DETROIT NEWS, Nov. 4, 2003, at 1 (Arabs and Muslims have “wrap[ped] themselves in the American flag, hoping that its presence in their homes and workplaces send the message that they are not terrorists”); Beth J. Harpaz, Times Are Tense for Arab Americans Even in New York a City of Immigrants, Sees Incidents of Backlash, CHARLOTTE OBSERVER, Sept. 23, 2001, at 3A (profiling a Muslim woman who “wears an American flag pin—partly to show solidarity, but partly as a defensive measure”); David A. Markiewicz, The Year That Changed America: Dearborn, Michigan, Arab Enclave Wrestles with Identity, ATLANTA J., Dec. 30, 2001, at A18 (in “Arab-American neighborhoods, American flags and patriotic messages adorn shop windows, front lawns and automobiles” in a public assurance of patriotism); Thane Peterson, The Gift of Diversity, the Need for Tolerance, BUSINESSWEEK ONLINE, Sept. 18, 2001 (“Arab-American store owners are threatened with vandalism if they don’t display American flags”), at http://www.businessweek. com; Emily Sweeney, Backlash Felt Far from Ground Zero, Anti-Muslim Bias Focus of Discussion, BOSTON GLOBE, June 16, 2002, at 4 (Muslim responded to harassment by taping “American flags up in the windows of his store.”). 122. See generally AM.-ARAB ANTI-DISCRIMINATION COMM., REPORT ON HATE CRIMES AND DISCRIMINATION AGAINST ARAB AMERICANS: THE POST-SEPTEMBER 11 BACKLASH 7 (reporting over 800 cases of employment discrimination against Arab-Americans following September 11, 2001, a four-fold increase over previous annual rates), available at www.adc.org (last visited Oct. 6, 2004). 123. Id. (reporting over eighty cases of discriminatory removal of Arab-American and Muslim passengers from aircrafts after boarding, but before takeoff, following September 11, 2001); see also Donnelly, supra note 121 (“Arab-Americans have a name for the offense they seem to be punished for: Flying While Brown.”). 124. Foreward to FED. BUREAU OF INVESTIGATION, HATE CRIME STATISTICS 2001, available at http://www.fbi.gov/ucr/01hate.pdf, reports 481 Islamic bias incidents in 2001, an increase of more than 1600% over the previous year, during which 28 such incidents occurred, FED. BUREAU OF INVESTIGATION & U.S. DEP’T OF JUSTICE, CRIME IN THE UNITED STATES 2000, HATE CRIME 60 (2000), available at http://www.fbi.gov/ucr/cius_00/contents.pdf (last visited Sept. 26, 2004); see also Donnelly, supra note 121 (Complaints received by Council on American-Islamic Relations tripled after September 11, 2001, and survey of 945 Muslims found that 48% believed the quality of their lives had declined since September 11, 2001.). 2004] 149 Howard Law Journal In addition to signifying protection, the flag also marks territory, asserts power and control, extends and delineates borders. Think of Robert Peary planting the American flag at the North Pole,126 or Neil Armstrong planting a waving flag127 on the moon. Think of the Joe Rosenthahl photograph of soldiers raising the flag on Mt. Suribachi during the battle for Iwo Jima in February 1945, marking the first Japanese soil captured by the Americans, which photograph was recently replicated after the fall of the World Trade Center towers, quite literally to reclaim control and power over the site. For a more recent example, think of the debacle that resulted in April 2003, when American soldiers in Baghdad, before toppling a statue of Saddam Hussein, first draped his head in the American flag. The American flag was quickly removed, and replaced with an Iraqi flag, but sparked worldwide controversy and condemnation nonetheless, and prompted the Army to subsequently issue a statement barring any display of the American flag on vehicles, buildings, statues, or command posts.128 The controversy was the result of the flag being such a universal symbol of occupation, imperialism, 129 colonization,130 and control.131 125. Executive Summary to AM-ARAB ANTI-DISCRIMINATION COMM, supra note 122, available at http://server.traffic.northwestern.edu/events/rps/shora.pdf (last visited Oct. 5, 2004) (section entitled Physical and Psychological Attacks) (reporting over 700 violent incidents targeting Arab Americans, or those perceived to be Arab Americans, Arabs and Muslims in the first nine weeks following the attacks, and approximately 165 violent incidents from January 1, 2002 to October 11, 2002). 126. Although Peary is generally credited with being the first explorer to reach the North Pole, recent scholarship suggests that in fact his companion, Matthew Henson, an African American, reached the North Pole forty-five minutes ahead of Peary. When Peary finally caught up with Henson, Henson greeted him by saying, “I think I’m the first man to sit on top of the world.” Henson recalled that this angered Peary, who responded by “fasten[ing] a flag to a staff and plant[ing] it firmly on top of his igloo. Anna Brendle, Profile: African-American North Pole Explorer Matthew Henson, NAT’L GEOGRAPHIC NEWS, Jan. 15, 2003, available at http://news. nationalgeographic.com/news/2003/01/0110_030113_henson.html (last visited Oct. 5, 2004). 127. In fact, the planting of a “waving” flag on the moon was a constructed illusion. Because the atmosphere on the moon is airless, a specially designed brace was created to give the impression that the flag was blowing in the wind. HARRY HURT III, FOR ALL MANKIND 180-81 (1988). 128. Bernard Weinraub, After Euphoria, U.S. Flag Goes into Hiding in Iraq, INT’L HERALD TRIB., Apr. 11, 2003, at 5. 129. The language flag historian Willis Johnson uses in describing the flag at new frontiers is telling. For example, Johnson describes Commodore Matthew Calbraith Perry’s carrying the flag into the harbor of Yeddo, Japan as symbolically opening “that hermit empire to rational intercourse with the civilized world.” JOHNSON, THE NATIONAL FLAG, supra note 98, at 88. Johnson also becomes effusive in describing Henry Morton Stanley’s carrying of the flag into the “torrid jungles of Equatorial Africa . . . the heart of the dark continent” to “rescue” the explorer David Livingston: There have been few more interesting scenes than that of the meeting of two [W]hite men, amid a multitude of Black natives in the African wilderness, when Stanley, carrying the Stars and Stripes in one hand and raising his hat with the other inquired: “Doctor Livingston, I presume?” Three years later, Stanley went to Africa again, and made his way from the East Coast to the Great Lakes, thence to the upper reaches of the 150 [VOL. 48:121 Flags Perhaps, the only flag that suggests the absence of control is the white flag of surrender, the flag wiped clean, its colors erased. The flag can also be read as signifying a utopian idea of the status quo. As the art history scholar John Yau notes in an essay on Jasper Johns’ seminal Flag painting: [A] flag is a symbol that helps citizens believe they stand outside time and change. It sums up a moment of resolution in a collective history, as if that moment is neither mythically narrative nor subject to disruption or revision. Like most flags the American flag represents both a belief in unity of purpose and the existence of a common social reality. It is a palpable symbol which proposes that the world will go on being the same, and that its existence within the world as a meaningful object is guaranteed.132 In this sense, the American flag can be read as an assurance of stability, as a promise to ensure an “American way of life.” Stated differently, in protecting, the flag also preserves—although what it preserves may be an idealized version of what exists. Instead of cinema verite, the American flag promises Leave It To Beaver133 and Congo, and so down that mighty river to its mouth. Thus, the Stars and Stripes was the first flag ever to be borne down from the Indian Ocean to the Atlantic; the first to follow the thitherto unknown course of the Congo, and the pioneer in opening the way for the Congo Free State. Id. at 89. 130. That America was colonized with a flag, at least in our collective mythology, perhaps goes without saying. As described by Christopher Columbus’s son: Columbus dressed in scarlet first stepped on shore from the little boat which bore him from his vessels, bearing the royal standard of Spain emblazoned with the arms of Castile and Leon in his own hand, followed by the Pinzons in their own boats each bearing a banner of the expedition, viz: a white flag with a green cross, having on each side the letters F and Y surmounted by golden crowns. GEORGE HENRY PREBLE, OUR FLAG. ORIGINS AND PROGRESS OF THE FLAG OF THE UNITED STATES 110-11 (1872) 131. One could argue that it was the fear of control, or at least symbolic control, that prompted laws forbidding the display of red flags during the Red Scare of the early twentieth century. See generally Elmer M. Million, Red Flags and the Flag, ROCKY MOUNTAIN L. REV. 1940-1941, at 13, 47-60. The Supreme Court was called upon to address the constitutionality of these laws in Stromberg v. California, 283 U.S. 359 (1931), which involved the conviction of nineteen-year old summer camp counselor who, in addition to teaching the children history and economics, taught “class consciousness” and “the solidarity of the workers,” and routinely led the students in a pledge of allegiance �to the worker’s red flag, and to the cause for which it stands; one aim throughout our lives, freedom for the working class.” Id. at 362. Concluding that the law was unconstitutional under the First Amendment, the Court reversed Stromberg’s conviction. Id. at 369-70. 132. JOHN YAU, THE UNITED STATES OF JASPER JOHNS 8 (1996). 133. Leave It To Beaver (CBS television broadcast 1957-1959, NBC television broadcast 1959-1963); see also Peter Orlick, Leave it to Beaver, at http://www.museum.tv/archives/etv/L/ htmlL/leaveittob/leaveittob.htm (last visited Sept. 26, 2004). 2004] 151 Howard Law Journal Happy Days.134 Instead of Edward Hopper, the flag promises Norman Rockwell.135 It is this idea of the flag exemplifying protection, and power, and stasis that perhaps explains the visceral reaction many Americans have not just to the burning or mutilation of the flag, but to the disregard of the flag. Examples include the rash of flag burnings during the Vietnam era, including a highly public and publicized flag burning in Central Park in April 1967, which prompted Congress to pass the first federal flag desecration law in 1968; the outrage that erupted following an art exhibit by “Dred” Scott Tyler, which included a flag on the floor and an invitation to patrons to step on it;136 and Republican Presidential candidate George H.W. Bush’s use of the flag during the 1988 campaign to portray himself as patriotic, and to impugn the patriotism of his democratic rival Michael Dukakis. During his campaign, Bush led his audiences in recitals of the pledge, surrounded his campaign stops with flags, and conducted campaign stops in Flag City, U.S.A. and at a flag factory.137 At the same time, citing Dukakis’s veto as Governor of Massachusetts against a law requiring daily recitation of the Pledge of Allegiance to the flag, and ignoring the Supreme Court’s decision in Barnette, Bush portrayed Dukakis as unpatriotic.138 Bush invoked the flag so often that Time magazine noted: Five weeks after the Republican convention, the public can be certain of [only] two things about George Bush: he loves the flag, and he believes in pledging allegiance to it every morning. But some voters may wonder what he would do with the rest of his day if he became president.139 A firestorm of protest also erupted after the Supreme Court reversed the conviction of Gregory Lee Johnson in Texas v. Johnson.140 Johnson was convicted for violating Texas’s flag desecration law by burning a flag outside the 1984 Republican National Convention as 134. Happy Days (ABC television Broadcast 1974-1984); see also Happy Days, at http:// www.geocities.com/~maxraby/tv/happy/ (last visited Sept. 27, 2004). 135. Indeed, it is this sanitized version of America that another artist, Faith Ringgold, critiques in her quilted version of the American flag, Flag for the Moon: Die Nigger 1967-69, in which the word “DIE” can be seen dimly against the stars, and the silver stripes spell out the word “nigger.” 136. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 201-02. 137. Whitney Smith, The American Flag in the 1988 Presidential Campaign, FLAG BULL. 128 (1988). 138. Id. 139. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 201. 140. 491 U.S. 397 (1989). 152 [VOL. 48:121 Flags part of a larger protest by hundreds of demonstrators. On appeal, the Supreme Court overturned his conviction, finding Texas’s flag desecration law, and by implication flag desecration laws in general, unconstitutional under the First Amendment. The protest that followed the Supreme Court’s decision was immediate. Within a week of the decision, President Bush proposed a constitutional amendment to overturn the decision, and thirty-nine separate resolutions were sponsored in the House and Senate calling for such an amendment.141 Polls showed that seventy-one percent of Americans favored a constitutional amendment, and within months of the decision, 1.5 million Americans had signed a petition in support of an amendment.142 In the end, Congress responded by passing the Flag Protection Act of 1989 (FPA),143 rather than seeking a constitutional amendment.144 Instead of putting an end to the flag debate, however, the FPA spurred the largest wave of flag burning incidents in American history, and a flurry of arrests.145 On March 13, 1990, U.S. Solicitor General Kenneth Starr invoked the mandatory and expedited review provision of the FPA to seek Supreme Court review, which the Supreme Court accepted in cases consolidated and known as United States v. Eichman.146 Notwithstanding the FPA’s allegedly neutral content, the Su141. The response to the Supreme Court’s decision in Texas v. Johnson was, for the most part, not only emotional, but highly vitriolic, as Goldstein has noted. Representative Ron Marlenee of Montana termed the decision “treasonous” and, referring to the six marines depicted in the Iwo Jima Memorial, declared, “These six brave soldiers were symbolically shot in the back by five men in [B]lack robes.” The Chairman of the South Carolina Joint Veterans Council called on Americans to write to their elected officials to demand that “this crap” be stopped, while conservative columnist Patrick Buchanan termed the decision an “atrocity” and the Court a “renegade tribunal” to which the American people should respond by putting “a fist in their face.” The New York Daily News termed the Johnson decision “dumb” and declared it put the Court in “naked contempt” of the American people and displayed “pompous insensitivity to the most beloved symbol of the most benevolent form of government ever to appear on this Earth”; it also published a cartoon showing a figure resembling President Bush pouring gas on a pile of law books forming a pyre below five bound judges who were bearing copies of the “flag case,” with the caption, “Anybody got a match.” GOLDSTEIN, FLAG DESECRATION, supra note 93, at 206. Determined not to be outflagged, Democrats joined in the “fusillade of pro-flag rhetoric,” matching the Republicans “word for word.” Robin Toner, Democrats, in a Flurry of Bills, Seek to Recapture the Flag Issue from the Foe, N.Y. TIMES, June 26, 1989, at B6; see also GOLDSTEIN, FLAG DESECRATION, supra note 93, at 208. 142. Legislators Support Flag Move, N.Y. TIMES, July 4, 1989, at 6. 143. The Flag Protection Act was viewed as neutral since it provided penalties of up to one year for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States,” without regard to the actor’s intent. Pub. L. No. 101-131, 103 Stat. 777 (amending 18 U.S.C. § 700). 144. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 208. 145. Id. at 208. 146. 496 U.S. 310 (1990). 2004] 153 Howard Law Journal preme Court struck down the FPA as a clear violation of the First Amendment.147 That flags signify protection, power, and stasis is at the heart of other recent controversies over displays of the flag. The controversy surrounding the display of the rainbow flag of lesbian and gay pride is one example. In Columbus, Ohio, a battle between long-term residents, mostly Black and working class, and newer residents, mostly White and gay and attempting to gentrify the neighborhood, was exemplified by flag wars. Young gay men and women, after moving to the neighborhood, began to hang rainbow flags. Many Black residents, in response, began to hang Black solidarity flags. This battle for control and power was thus replicated in a battle of flags, a battle documented in the film “Flag Wars,” recently shown on the PBS Network.148 More recently, when Orlando, Florida hung rainbow flags, just temporarily, to celebrate Gay Pride Month, Pat Robinson claimed that Orlando was bringing about “the destruction of your nation. It’ll bring about terrorist bombs; it’ll bring earthquakes, tornadoes and possibly a meteor.”149 In response to the controversy, Orlando officials banned the future display of any flags.150 More recently, the KKK elected to stage a rally at the City Hall in Cleveland, Ohio because the city had flown a rainbow flag there, again temporarily, for the Gay Pride Month in June. Apparently hoping to kill two birds with the same stone, the KKK also elected to stage the rally on a Saturday, to protest Rosh Hashana. Prior to the rally, the KKK publicly announced that it planned to burn both the rainbow flag and an Israeli flag.151 As another example, think back to the protests that erupted a few years ago when, on the penultimate episode of Seinfeld, Kramer accidentally set a Puerto Rican flag on fire, and then attempted to put out 147. Id at 319. Championing flag desecration laws remains a way to appeal to segments of the population. General Wesley K. Clark, in campaigning for the Democratic nomination for president this past year, told a crowd on Veteran’s Day that he supported a constitutional amendment that would make it illegal to desecrate the American flag, drawing applause from the crowd. Edward Wyatt, Clark Tells Veterans He Backs Amendment on Flag Desecration, N.Y. TIMES, Nov. 12, 2003, at A18. 148. POV: Flag Wars (PBS television broadcast, June 17, 2003). 149. Thomas B. Edsall, Forecasting Havoc for Orlando; on TV, Robertson Says Display of Gays’ Flags Invites Disaster, WASH. POST, June 10, 1998, at A11. 150. Sherri M. Owens, New Flag Question Is About Flying Old Glory, ORLANDO SENTINEL, June 24, 1998, at D1. 151. Mathew Marx, Police Prepare for KKK Rally, Counter Rally on Busy Sunday, COLUMBUS DISPATCH, Sept. 10, 1999, at 3B. 154 [VOL. 48:121 Flags the fire by stomping on the flag.152 Even more recently, a school district’s flying of the purple-and-white flag of the Iroquois Confederacy, in recognition of the members of the five tribes who comprised twenty-three percent of the student body, was met with protests and petitions from other students and parents, who viewed the flying of the Iroquois flag as a ceding of control.153 Of course there is the controversy surrounding state displays of the Confederate flag.154 The typical debate about state displays of the Confederate flag turns on two readings of the flag. On the one side, there are those who see the flag as an emblem of Southern pride, as recognition of the many young men who fought and died as Confederates during the Civil War, as a recognition of tradition.155 On the other side, there are those who see the flag as a reminder of slavery, or as a wistful reminder of the good old days when cotton was king.156 Framed in this manner, one is either a “survivor” or a “victimizer.”157 152. The episode sparked a fury of protests, including condemnation from Governor Pedro Rossello of Puerto Rico, and resulted in NBC issuing a formal apology and withdrawing the episode from future syndication. Herb Boyd, �Seinfeld’ Inflames Group of Puerto Rican Protesters, N.Y. AMSTERDAM NEWS, May 27, 1998, at 10; Lloyd Grove & Blaine Harden, �Seinfeld’ Parade Steps on Some Toes, WASH. POST, May 9, 1998, at D1. Miguel Perez, Seinfeld’s Ethnic Insult, RECORD (Northern, N.J.), May 13, 1998, at A3; Puerto Rico Blasts Seinfeld, TORONTO STAR, May 12, 1998, at E6. 153. Michelle York, School’s New Iroquois Flag Stirs Protests, N.Y. TIMES, Nov. 17, 2003, at B10. 154. For example, former Vermont Governor Howard Dean, in campaigning for the Democratic nomination of president, was recently excoriated by rivals for suggesting that the Democrats regain disaffected Southern voters by speaking to “guys with Confederate flags in their pickup trucks.” See, e.g., Jodi Wilgoren, In a �Jam,’ Dean Apologizes for Remarks on Rebel Flag, N.Y. Times, Nov. 6, 2003, at A26. As Dean later conceded, his statement set off a “huge contretemps,” notwithstanding the context. Ultimately, Dean was forced to issue an apology. Richard L. Berke, What You Say Can’t Hurt You Until It Can, N.Y. TIMES, Nov. 9, 2003, at Wk.3. 155. A former, Mississippi-born editor of Harpers magazine put it this way: In modern-day America, there is too much fashionable tampering with authentic tradition. At the peril which such contentions evoke, I argue that this juggling with expressions of the past is reminiscent of the way the communists are eternally rewriting history, obliterating symbols with each new guard. Finally, one could make a strong case that Dixie and the flag and the names “Ole Miss” and “Rebels,” deriving from old suffering and apartness and the urge to remember, are expressions of a mutual communal heritage, [W]hite and [B]lack, springing from the very land itself and its awesome strengths and shortcomings. As a historian friend of mine once remarked, “There’s nothing wrong with the Confederate flag. The Civil War was fought over more than slavery.” WILLIE MORRIS, TERRAINS OF THE HEART AND OTHER ESSAYS ON HOME 258 (1981) (emphasis in original). 156. See, e.g., Forman, Jr., supra note 34, at 513 (arguing that the Confederate flag “glorifies and memorializes [the] brutal regime [of chattel slavery]”). 157. See J.M. Balkin, Transcendental Deconstruction, Transcendental Justice, 92 MICH. L. REV. 1131 (1994). 2004] 155 Howard Law Journal A more contextualized approach, however, reveals the State display of the flag as a sign of protection, of control, of allegiance, of stasis.158 Put differently, the Confederate flag, when displayed by the Government, declares the state as belonging, primarily, to a particular group,159 and declares recognition of a duty to protect that group.160 Its message need never be articulated, but its meaning is evident. Indeed, if one has any doubt of the message the state display of the Confederate flag sends, one need only imagine the message that would be communicated by a state or local authority displaying, in addition to the American flag, a flag depicting a Swastika.161 Although a swastika is an extreme example, the display of less incendiary flags also makes the point. Were Staten Island, New York to raise, in addition to the American flag, an Italian flag, for example, it would send not only a message of Italian pride, but also the message that Staten Island is Italian, belongs to the Italians, and is for Italians. It would thus suggest a hierarchical positioning of Italians at the top of its various constituents. Similarly, were the Bronx to raise, say, a 158. For example, in his book on southern tradition, the historian Eugene D. Genovese laments the “ �modernization’ that is transforming the South” and has resulted in what he perceives to be the “neglect of, or contempt for, the history of southern [W]hites, without which some of the more distinct and noble features of American national life must remain incomprehensible.” EUGENE D. GENOVESE, THE SOUTHERN TRADITION: THE ACHIEVEMENT AND LIMITATIONS OF AN AMERICAN CONSERVATISM x-xi (1994). The Confederate flag functions as a rearguard against such modernization. See also Forman, supra note 34, at 506 (noting that the Confederate flag “also stands for a history of resistance to change in the twentieth century”). 159. Akhil Reed Amar, Civil Religion and its Discontents, 67 TEXAS L. REV. 1153, 1166 n.76 (1989) (reviewing SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988)) has noted, Confederate flags “all too easily exclude large numbers of citizens, most notably [B]lacks.” 160. Indeed, one can read the state display of the Confederate flag as a silent ratification of the principles articulated in the Confederate Constitution. For a discussion of the Confederate Constitution and its explicit guarantee to maintain the underclass status of Blacks, see MARSHALL L. DEROSA, THE CONFEDERATE CONSTITUTION OF 1861: AN INQUIRY INTO AMERICAN CONSTITUTIONALISM 1-5 (1991) (summarizing creation and extirpation of Confederate Constitution); WILLIAM L. MILLER, ARGUING ABOUT SLAVERY: THE GREAT BATTLE IN THE UNITED STATES CONGRESS 21 (1996); Martin D. Carcieri, The South Carolina Secession Statement of 1860 and the One Florida Initiative: The Limits of a Historical Analogy and the Possibility of Racial Reconciliation, 13 ST. THOMAS L. REV. 577, 584 (2001); Ralph Michael Stein, The South Won’t Rise Again but It’s Time to Study the Defunct Confederacy’s Constitution, 21 PACE L. REV. 395 (2001); Tsesis, supra note 34, at 596-98. The Confederate Constitution, which was adopted in 1861, is reprinted in EMORY M. THOMAS, THE CONFEDERATE NATION 1861-1865 307-22 (1979). 161. Indeed, the swastika is considered such an incendiary symbol that its display, and the display of other Third Reich symbols, are banned under Germany’s Constitution, with exceptions for artistic purposes. See GRUDGESETZ [GG] [Constitution] art. 5(2) (F.R.G.), translated in CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 106 (1994); see also Jonathan Kaufman, As Neo-Nazis Riot, Germany Still Outlaws the Swastika, BOSTON GLOBE, Feb. 4, 1993, at 1; David E. Weiss, Note, Striking a Difficult Balance: Combating the Threat of Neo-Nazism in Germany While Preserving Individual Liberties, 27 VAND. J. TRANSNAT’L L. 899, 928 (1994). 156 [VOL. 48:121 Flags Black Power flag, it would communicate both Black pride and Black precedence. It is perhaps by imagining other flags being displayed by the Government that one begins to appreciate how a State’s display of the Confederate flag reifies an antiquated racial order, renders Blacks, and Jews, and gays, and other minorities second-class citizens. This analysis, I hope, makes transparent the violence162 inherent in the Eleventh Circuit’s decisions in Hunt and Coleman. Peggy Davis uses the term “microagression “to refer to the �subtle, stunning, automatic, and non-verbal exchanges which are �put downs’ of Blacks by offenders.’”163 She, in turn, borrows the term from psychiatry, which defines “microagressions” this way: “Microagressions simultaneously sustain defensive deferential thinking and erode[ ] self confidence in Blacks . . . . [B]y monopolizing . . . perception and action through regularly irregular disruption, they contribute[ ] to relative paralysis of action, planning, and self-esteem. They seem to be principle foundation for the verification of Black inferiority for both [W]hites and Blacks.”164 Here, the Eleventh Circuit decisions, and the state display of the Confederate flag, are more than microaggressions. Given its messages, the state display of the Confederate flag is more like “spiritmurder,” the term coined by Patricia Williams to refer simultaneously to acts of racism, and the rupture of self and invisible lacerations suffered by victims of racism. As Patricia Williams has noted: Society is only beginning to recognize that racism is as devastating, as costly, and as psychically obliterating as robbery or assault; indeed they are often the same. Racism resembles other offenses against humanity whose structures are so deeply embedded in culture as to prove extremely resistant to being recognized as forms of oppression. It can be as difficult to prove as child abuse or rape, where the victim is forced to convince others that he or she was not at fault, or that the perpetrator was not just “playing around.” As in rape cases, victims of racism must prove that they did not distort the circumstances, misunderstand the intent, or even enjoy it.165 162. See Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1609 (1986). 163. Peggy C. Davis, Law as Microagression, 98 YALE L.J. 1559, 1565 (1989) (quoting Pierce, Psychiatric Problems of the Black Minority, in AMERICA HANDBOOK OF PSYCHIATRY 512, 515 (1974)). 164. Id. at 1566-67 (quoting C. PIERCE, UNITY IN DIVERSITY: 33 YEARS OF STRESS 17) (unpublished manuscript 1986) (omissions and alterations in original). 165. Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism, 42 U. MIAMI L. REV. 127, 129-30 (1987). 2004] 157 Howard Law Journal This is what the state display of the Confederate flag is. Nothing less. IV. FLAGS: A FABLE In The Chronicle of the Space Traders,166 Derrick Bell weaves a metaphorical tale to explore the limits of the Equal Protection Clause when the inequality of a few is pitted against what I refer to as the superequality167 of the majority. The story he tells is at once familiar and disturbing: The arrival of 1,000 space ships on the first day of a new year; the welcoming delegation of government officials and members of the media; the alien crew, cloaked in invisibility, sounding “like the former President Ronald Reagan whose recorded voice, in fact, they had dubbed into their computerized language translation system;” and the visitors’ proffer of various bounty: “gold to bail out the almost bankrupt federal, state, and local governments; special chemicals that would sanitize the almost uninhabitable environment; and a totally safe nuclear engine with fuel to relieve the nation’s swiftly diminishing fuel resources.”168 The rub is in what the space travelers seek in return, and in the country’s response: The visitors wanted to take back to their home star all African Americans [defined as all citizens whose birth certificates listed them as [B]lack]. The proposition instantly reduced the welcoming delegation to a bumbling disarray. The visitors seemed to expect this reaction. After emphasizing that acceptance of their offer was entirely voluntary and would not be coerced, they withdrew to their ships. The Traders promised to give the nation a period of sixteen days to respond. The decision would be due on January 17, the national holiday commemorating Dr. Martin Luther King, Jr.’s birthday.169 The proposed trade, in Bell’s narrative, proves to be a temptation not easily resisted. Congress is called into special session; state legislatures are convened; negotiations are begun: 166. Derrick Bell, After We’re Gone: Prudent Speculations on America in a Post-Racial Epoch, in CRITICAL RACE THEORY: THE CUTTING EDGE 3 (Richard Delgado ed., 1995). I first heard this tale when Derrick Bell spoke at Columbia Law School while I was a student there. That I remembered it almost word-for-word in subsequent years is a testament to its polemical resonance. 167. By superequality, I am referring to the type of equality advanced by Orwell’s Napoleon: “All animals are equal, but some animals are more equal than others.” GEORGE ORWELL, ANIMAL FARM 112 (1946). 168. Bell, supra note 166, at 3. 169. Id. at 3-4. 158 [VOL. 48:121 Flags [U.S.] officials tried in secret negotiations to get the Space Traders to exchange only those [B]lacks locked in the inner-cities, but the visitors made it clear that this was an all or nothing offer. During these talks, the Space Traders warned that they would withdraw their proposition unless the United States halted the flight of the growing numbers of [B]lacks who—fearing the worst—were fleeing the country. In response, executive orders were issued and implemented, barring [B]lacks from leaving the country until the Space Traders’ proposition was fully debated and resolved. “It is your patriotic duty,” [B]lacks were told, “to allow this great issue to be resolved through the democratic process and in accordance with the rule of law.”170 Legal challenges to the process itself are dismissed as “political questions,” and those in favor of acceptance the Space Traders’ offer dispel claims that acceptance would violate the Constitution’s most basic protections by drafting legislation to induct all [B]lacks into special service of transportation under the terms of the Space Traders’ offer, and convening a constitutional convention to draft a constitutional amendment to validate the legislation. The proposed amendment declares: “Every Citizen is subject at the call of Congress to selection for special service for periods necessary to protect domestic interests and international needs.”171 Although many Americans work hard to defeat the amendment, “given the usual fate of minority rights when subjected to referenda or initiatives,” the outcome is all but predetermined. By a vote of seventy percent in favor—thirty percent opposed— Americans accepted the Space Traders’ proposition. Expecting this result, the government agencies had secretly made preparations to facilitate the transfer. Some [B]lacks escaped, and many thousands lost their lives in futile efforts to resist the joint federal and state police teams responsible for the roundup, cataloguing, and transportation of [B]lacks to the coast. The dawn of the last Martin Luther King holiday that the nation would ever observe illuminated an extraordinary sight. The Space Traders had drawn their strange ships right up to the beaches, discharged their cargoes of gold, minerals, and machinery, and began loading long lines of silent [B]lack people. At the Traders’ direction, the inductees were stripped of all but a single 170. Id. at 4. 171. Id. at 5. 2004] 159 Howard Law Journal undergarment. Heads bowed, arms linked by chains, [B]lack people left the new world as their forebears had arrived.172 I repeat Professor Bell’s Space Traders narrative here for two reasons: First, it illustrates, in a manner that only narrative can, the limits of Equal Protection when the interests of the majority are at stake. Second, it dovetails with my argument about the messages communicated by the Confederate flag. With the Confederate flag flying in front of the South Carolina Capitol building, and incorporated in the Georgia flag, those states make clear where they would stand should the Space Traders in fact land. In truth though, there is no need to imagine such a fantastic scenario. Each day, Southern states make good on the promises inherent in their display of the Confederate flag by according certain benefits to its majority citizens, and imposing certain burdens on its minority citizens.173 It is evident in how public services are distributed and school budgets are apportioned.174 It is evident in how justice is administered.175 It is even evident in where dumps are placed.176 172. Id. 173. The subordination message carried in the Confederate flag was recently replayed in the gubernatorial race in Mississippi. In campaigning, the Republican candidate, former head of the Republican National Committee Haley Barbour, wore a lapel pin bearing the United States and Mississippi flags, the latter of which features the Confederate battle emblem, to “encourage a strong [W]hite turnout.” David E. Rosenbaum, Mississippi Incumbent Surprises His G.O.P. Opponent, N.Y. TIMES, Oct. 17, 2003, at A16. The candidate’s display of the flag, it can be argued, functioned as a promise to put the concerns of White Mississippians first. See also Dawidoff, supra note 91 (noting Barbour’s appeal to Whites, and his appearance at a function organized by the White segregationist organization Council of Conservative Citizens to raise funds for private academy school buses). 174. Cases challenging school financing disparity based on district wealth, which in general correlates to racial composition, have not fared well for the most part. See, e.g., McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981) (dismissing school finance lawsuit in deference to Georgia legislature); Richland County v. Campbell, 364 S.E.2d 470 (S.C. 1988) (rejecting claim that system for financing public schools based on district wealth violates state constitutional requirements for free public schools or for equal protection). On school financing inequality in general and the racial implications, see Kenneth Fox, The Suspectness of Wealth: Another Look at State Constitutional Adjudication of School Finance Inequalities, 26 CONN. L. REV. 1139 (1994); Denise C. Morgan, The New School Finance Litigation: Acknowledging That Race Discrimination in Public Education Is More Than Just a Tort, 96 NW. U. L. REV. 99 (2001). 175. See generally Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1411-13 (1988) (noting the continuing pervasiveness of racism in the administration of criminal justice in the South). 176. U.S. GEN. ACCOUNTING OFFICE, SITINGS OF HAZARDOUS WASTE LANDFILLS AND THEIR CORRELATION WITH THE RACIAL AND SOCIAL-ECONOMIC STATUS OF SURROUNDING COMMUNITIES (GAO/RCED-83-168, June 1983) (examining four communities near hazardous waste landfills in the Southeast and finding that Blacks were the majority population in three of the four communities); see also Edward Patrick Boyle, Note, It’s Not Easy Being Green, The Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis, 46 VAND. L. REV. 937 (1993); Paul Mohai & Bunyan Bryant, Environmental 160 [VOL. 48:121 Flags V. FLAGS: FROM THEORY TO PRAXIS On March 4, 1861, the same day that Abraham Lincoln became President, the Convention of the Confederate States of America, meeting in Montgomery, Alabama, adopted a Confederate flag as a demonstration of their intent to preserve the sovereignty of the South.177 This first Confederate flag, which retained the colors of the Stars and Stripes, but displayed only seven stars, was roundly criticized for sharing too great a resemblance to the Stars and Stripes. Indeed, the resemblance was so great that following the outbreak of the Civil War, one flag was often mistaken for the other in battle.178 To reduce confusion, Confederate soldiers began to carry an alternative flag designed by William Porcher Miles in its stead. This alternative flag, first used by General Pierre G.T. Beauregard, consisted of a red field spanned by a blue Saint Andrew’s cross edged with white and bearing along its arms thirteen white stars, and became known as “Beauregard’s Battle Flag,” the “Battle Flag of the Confederacy,” and the “Southern Cross.”179 It was this unofficial flag that enjoyed currency among [W]hite secessionists. On May 1, 1863, to address the concerns about the official Confederate flag, the Confederate Congress at Richmond adopted a second flag, which consisted of a canton of the Southern Cross set against a plain white field. Advocates of this flag, commenting on its white field, or perhaps articulating meaning, and its exclusion, christened this flag the “White Man’s Flag.”180 Although this “White Man’s Flag” also had its flaws – its dimensions proved cumbersome, and the white field suggested truce – it remained the official flag of the Confederacy until February 4, 1865, when the Confederate Congress adopted its third official flag. This third flag altered the dimensions of the second flag and added a red bar to the white field. Before this third flag could enter circulation, however, General Lee surrendered at Appomattox, Virginia, effectively bringing the war to an end. Interestingly, it was not under any of the official Confederate flags that Lee surrendered, but rather Injustice: Weighing Race and Class as Factors in the Distribution of Environmental Hazards, 63 U. COLO. L. REV. 921 (1992). 177. JOHNSON, THE NATIONAL FLAG, supra note 98, at 91. 178. Id. at 92; see also MILO M. QUAIFE ET AL., THE HISTORY OF THE UNITED STATES FLAG 143-45 (1961). 179. JOHNSON, THE NATIONAL FLAG, supra note 98, at 91-92. 180. Id. 2004] 161 Howard Law Journal under the unofficial flag General Beauregard championed, the “Battle Flag of the Confederacy,” or as others called it, the “Southern Cross.”181 Similarly, it was this unofficial flag, rather than any of the official flags, that came to stand for the ensign of the Confederacy. Later, a group of former Confederate soldiers and their followers would adopt this unofficial flag as their own.182 Donning white robes and hoods to conjure the ghosts of the Confederate dead,183 they would transform the southern cross of the flag into hundreds of wooden crosses, easy to bear, easy to plant, easy to burn. They would carry out a reign of terror so debilitating, so demoralizing, so dehumanizing, that even a stoic like Justice Thomas would get it. Almost 100 years later, in 1956, the same year that Georgia, in response to Brown I and Brown II, adopted a new design for its state flag to incorporate this unofficial, but now iconic, Confederate battle flag, South Carolina Senator John D. Long successfully introduced a resolution urging the Senate, at the time all White, to hang a Confederate battle flag in its chambers.184 Although the South Carolina Senate and House journals are silent as to any debate when the Confederate flag was raised over the state capitol, historical context, as well as Senator Long’s sentiments with regard to the KKK, render the intent transparent. For example, in a speech on the floor of the South Carolina Senate, Senator Long praised the KKK, saying, “We honor them and we are proud of them. We will defend them from defamation to the death.” During the same speech, Senator Long urged his fellow senators to “dismiss from your consideration any little-sister sob stories about the South’s brutality to the slave and its inhuman treatment of captive and fugitive slaves.”185 These were the sentiments Senator Long expressed. Later, a lake in South Carolina 181. Id. 182. WYN WADE, THE FIREY CROSS: THE KU KLUX KLAN IN AMERICA 33-35 (1998). As one Klansman put it in a letter to the editor of a southern newspaper: The soldiers of the South who fought for that flag, their officers and civilian leaders believed in the establishment of a separate [s]outhern republic; so does this Klan. They believed in [W]hite supremacy; so does this Klan. So, we maintain that the Confederate battle flag was bequeathed to us, the Ku Klux Klan, by our Confederate ancestors. We honor it by standing for the same things now as they did then. Our use of the flag is legitimate and honorable. Southern apologists, knee-jerk liberal New South politicians, pansy pants preachers, pinko professors and whoever else will not stand with us in what our flag stands for can wrap themselves in the Yankee flag and leave ours alone. Marcus Blanton, Confederate Battle Flag Was Bequeathed to Klan, CLARION-LEDGER (Jackson, Miss.), June 6, 1991, at 18A (letter to the editor). 183. WADE, supra note 182, at 33-35. 184. Tim Smith, Banner Traced to One Man, AUGUSTA CHRON., Jan. 30, 2000, at B2. 185. Id. 162 [VOL. 48:121 Flags would be named after him, John D. Long Lake, and a woman named Susan Smith, in an act of infanticide—make that two acts of infanticide—would quietly strap her two toddlers, Michael Daniel Smith and Alexander Tyler Smith, into their car seats, and then just as quietly push her car into the lake. Invoking the collective prejudices of a country, and the implied promises of her state, she would nearly get away with murder. CONCLUSION Clearly, any future Equal Protection challenge to South Carolina’s display of the Confederate flag in front of its capitol building should lay bare this historiography to satisfy the intent prong of Hunter. Similarly, any future challenge should also present evidence to refute the suggestion that all races are equally offended by the Confederate flag. Specifically, empirical data and expert testimony should be introduced to demonstrate that minorities read and experience the Confederate flag differently, that minority groups are disparately impacted, thus satisfying the second prong of Hunter. Just as the NAACP submitted Kenneth and Mamie Clark’s “doll” study in Brown to support their challenge to de jure school desegregation,186 statistical evidence could be gathered to demonstrate that members of minority groups, in contrast to members of the majority, view the flag not only as a badge of inferiority, but as communicating messages of exclusion, of powerlessness, of lacking protection by the state, of being second-class citizens. Such analysis could demonstrate that these feelings are more than visceral; indeed, they are amply supported by evidence of discriminatory treatment and services. This analysis could also demonstrate the impact state displays of the flag have on the dayto-day lives of various citizens: That for Whites, they buttress feelings of superiority, privilege, and entitlement, and conversely for minority 186. In their 1940 study, the Clarks found that children presented with identical Black and White dolls thought of the White doll as “nice” and the Black doll as the one “that looks bad.” Kenneth B. Clark & Mamie Clark, Racial Identification and Preference in Negro Children, in READINGS IN SOCIAL PSYCHOLOGY 169-78 (Theodore M. Newcomb et al. eds., 1947). The Brown Court relied in part on this study to conclude that segregation of African American children “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” See Brown v. Bd. of Educ., 347 U.S. 483, 494-95 & n.11 (1954). For more on the NAACP’s decision to use social science data in Brown, see JUAN WILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY 197-205 (1998). 2004] 163 Howard Law Journal citizens, convey feelings of inferiority which circumscribe, shape, and inform their daily lives.187 In addition to presenting evidence of intent and harm, however, any future challenge could only be strengthened by including an analysis of the symbolic power of flags. Such a contextual approach will not only impress upon the court messages communicated by the state display of the Confederate flag, but may also motivate a court to consider the Equal Protection challenge through the more inclusive lens of anti-subordination or equal citizenship, rather than anti-differentiation. I hope such an approach proves fruitful. I began this discussion by talking about my interest in exploring whether the state display of the Confederate flag violates the Equal Protection Clause of the Fourteenth Amendment. I can only conclude by positing that the state display of the flag violates the Equal Protection Clause, and more. In the end, the state display of the Confederate flag itself functions as a pledge, a pledge of allegiance, to protect one class of citizens over another, to mark an entire state and its resources as belonging, in the first instance, to one class of citizens over another, and to preserve a hegemony that accords one class of citizens a higher status than another. 187. Since Brown, the Supreme Court has relied on social science data in a number of cases, including cases involving obscenity, segregation by gender, jury size, and capital punishment, although in McCleskey v. Kemp, the Court seemed to retreat from its willingness to find social science persuasive. See supra note 87. On the use of social science in Equal Protection jurisprudence generally, see David L. Faigman, To Have and Have Not: Assessing the Value of Social Science to Law as Science and Policy, 38 EMORY L.J. 1005 (1989); Henry F. Fradella, A Content Analysis of Federal Judicial Views of the Social Science “Researcher’s Black Arts,” 35 RUTGERS L. J. 103 (2003). 164 [VOL. 48:121 Prospects for Igbo Human Rights in Nigeria in the New Century PHILIP C. AKA* TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. HUMAN RIGHTS AND HISTORY REGARDING THE GUARANTEE OF HUMAN RIGHTS IN NIGERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Defining Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Guarantee of Human Rights in Nigeria . . . . . . . . . . . . . II. IGBOS IN INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . A. The Igbo People and Nation . . . . . . . . . . . . . . . . . . . . . . . . B. Igbos as a Subject of International Law and a Legitimate Object of Analysis . . . . . . . . . . . . . . . . . . . . . . III. DOCUMENTING ABUSES OF IGBO HUMAN RIGHTS IN NIGERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Before Independence: Atrocities Arising from the Slave Trade and Colonial Rule . . . . . . . . . . . . . . . . . . . . . 1. The Slave Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. British Colonial Rule in Nigeria . . . . . . . . . . . . . . . . B. From Independence to 1970: Atrocities Arising from Massacres and a Civil War Conducted in Willful Breach of the Geneva Convention . . . . . . . . . . . . . . . . . . 167 169 169 175 177 177 184 187 187 187 190 192 * Associate Professor of Political Science, Chicago State University; Vice Chair, American Bar Association Committee on International Human Rights; Member, Illinois Bar; Winner, Lawrence Dunbar Reddick Memorial Scholarship Award for the Best Article on Africa Published in the Journal of Third World Studies in 2001. J.D., Temple University School of Law; Ph.D., Howard University; M.A., University of North Texas; B.A., Edinboro University of Pennsylvania. This Article originated as a paper presented at the International Conference on Igbo Studies held at the Africana Studies and Research Center of Cornell University on April 4-5, 2003. The conference honored Professor Simon Ottenberg of the University of Washington, Seattle, for his enduring contributions to Igbo studies. The author is indebted to Ken Nichols, Erin Street, and their colleagues on the Howard Law Journal for their superb editorial work on this Article. 2004 Vol. 48 No. 1 165 Howard Law Journal IV. V. VI. VII. 166 1. The Massacres of 1966 . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Conduct of the Biafran War . . . . . . . . . . . . . . . . . . . . a. Partition of the Nigerian Government and Surveying the Scale of Igbo Destructiveness in the Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Assessing Allegations of Genocide Regarding the Conduct of the War . . . . . . . . . c. The Role of Major Powers in the Defeat of Biafra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Key Lessons the War Held for Nigeria . . . . . C. The Post-Civil War Period to the Present: Negation of the Post-War Reconstruction Program and Violations Through Marginalization. . . . . . . . . . . . . . . . . 1. Negation of the Post-War Reconstruction Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Nature and Indicators of Igbo Marginalization . 3. Evaluating the Argument of Igbo SelfMarginalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ASSESSING GENERAL OBASANJO’S CONTRIBUTION TO VIOLATIONS OF IGBO HUMAN RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . REBUTTING THE CLAIM THAT IGBOS ARE NO MORE VICTIMS OF HUMAN RIGHTS ATROCITIES THAN OTHER NIGERIANS . . . . . . . . . . CORRECTING VIOLATIONS OF IGBO HUMAN RIGHTS IN NIGERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Reparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Political Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Democracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CASE FOR SEPARATE STATEHOOD AS AN APPROPRIATE STRUCTURE FOR EFFECTIVE SAFEGUARDING OF IGBO HUMAN RIGHTS IN THE NEW CENTURY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Changing Notion of Self-Determination and the Igbo Situation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Statement of the Traditional Doctrine . . . . . . . . . . 2. Mounting Dissatisfaction with the Traditional Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 196 196 200 203 205 209 209 213 217 219 221 224 224 228 228 232 238 238 238 239 [VOL. 48:165 Prospects for Igbo Human Rights 3. The Changing Doctrine as Governmental Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Beyond the Traditional Doctrine: Survey of Professor An-Na’im’s Proposal for Mediating the Tension Between Sovereignty and SelfDetermination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. International Legal Right to Secession . . . . . b. Importance of International Action in the Protection of Human Rights . . . . . . . . . . . . . . . . 5. The Changing Doctrine and Igbos . . . . . . . . . . . . . . B. Lack of Any Articulable Objections to Igbo Separate Statehood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Argument that the Igbo Nation as It Exists Today is a Creature of British Colonialism (the “No Britain, no Igbo” Argument) . . . . . . . . . . . . . . 2. The Balkanization Argument . . . . . . . . . . . . . . . . . . . 3. The Concern That Separation Will Be Violent . . 4. Concern That an Igbo State Will Not Be Protective of Human Rights . . . . . . . . . . . . . . . . . . . . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 248 249 251 252 256 256 257 258 262 266 INTRODUCTION Igbo human rights in Nigeria became an issue of international interest and concern following the horrific massacres of 19661 and the civil war from 1967 to 1970.2 These successive tragedies led to the deaths of millions of Igbos, incalculable psychological trauma for survivors of these human holocausts and their kindred, as well as largescale loss or destruction of Igbo property in northern Nigeria and other parts of the country.3 Igbos4 are an ethnic group,5 or nation,6 in 1. See discussion infra Part III(B)(1). 2. See discussion infra Part III(B)(2). 3. See discussion infra Parts III(B)(1)-(2). 4. For more on the Igbos, see discussion infra Part II. Igbo is spelled variantly as “Ibo,” “Ebo,” and “Heebo,” but among Igbos, the preferred usage is Igbo, see ELIZABETH ISICHEI, A HISTORY OF THE IGBO PEOPLE xv (1976) [hereinafter ISICHEI, HISTORY OF THE IGBO PEOPLE], the particular usage this Article also adopts. 5. An ethnic group is “a distinct group in society self-consciously united around shared histories, traditions, beliefs, cultures, and values, which mobilizes its membership for common political, economic, and social purposes.” NAOMI CHAZAN ET AL., POLITICS AND SOCIETY IN CONTEMPORARY AFRICA 108 (3d ed. 1999). The term is sometimes interchanged with the word “tribe,” a word, however, that, because of its pejorative connotation, I refrain from using, unless quoting the work and language of others. 2004] 167 Howard Law Journal present-day Nigeria7 reputed for their egalitarianism,8 enthusiasm for education,9 technical ingenuity,10 and commercial entrepreneurship,11 among other attributes. They were a major group in the defunct Republic of Biafra.12 Although no violation of Igbo human rights of similar proportions and gruesomeness has taken place since 1970, atrocities against Igbos in the country remain rife and persistent.13 Nigeria violates the human rights of all its inhabitants, but much more so the human rights of Igbos.14 This Article documents violations of Igbo human rights in Nigeria,15 critically assesses the capacity of the Nigerian political system as a structure for the effectual promotion of Igbo individual and collective human rights,16 and points to independent Igbo statehood as the only tool for the effective safeguarding of Igbo human rights in the new century.17 This Article consists of seven parts. Part I presents a definition of human rights and history as to the evolution of these rights in Nigeria. Part II introduces the reader to the Igbo people and nation and addresses the question of whether Igbos, as a non-state entity, can be the subject of international law and, as in this Article, a legitimate object of analysis. Part III documents, chronologically, violations of Igbo human rights. Although the analysis goes back in time, the main focus is on atrocities isolable to the Nigerian state, particularly abuses that occurred since the country’s independence in 1960. Part IV assesses the contributions of General Obasanjo, as a major player in Nigerian politics, to violations of Igbo human rights. Part V responds to the allegation that Igbos are no more victims of human rights violations than other Nigerians. Part VI is an assessment of the capacity of the Nigerian system as an appropriate structure, focusing on the three im6. A nation is a group of people, with or without territorial control, who share common customs, origins, history, or language. See DANIEL S. PAPP, CONTEMPORARY INTERNATIONAL RELATIONS: FRAMEWORKS FOR UNDERSTANDING 38 (6th ed. 2002). 7. See discussion infra note 86 and accompanying text. 8. See discussion infra notes 82-84 and accompanying text; see also infra note 71. 9. See discussion infra note 80 and accompanying text; see also infra notes 283-84 and corresponding texts. 10. See discussion infra Part VII(B)(4), esp. infra note 561 and accompanying text. 11. See discussion infra note 81 and accompanying text. 12. See discussion infra notes 90-92 and accompanying texts; on the birth and demise of Biafra, see discussion infra Part III(B)(2)(a). 13. See discussion infra Part III(C); see also discussion infra Part IV. 14. See discussion infra Part V. 15. See discussion infra Part III. 16. See discussion infra Parts VI(A)-(B). 17. See discussion infra Part VII. 168 [VOL. 48:165 Prospects for Igbo Human Rights portant elements of reparations, federalism, and democracy, for the correction of Igbo human rights violations. Part VII lays out the case for separate statehood as the only effective tool for safeguard of Igbo human rights. The latter section, along with Part III, comprises the centerpiece of the Article. Tailoring the purposes of the study, these seven main parts between and among them embed several critical and interconnected arguments: Due to the rife and relentless violations of Igbo human rights in Nigeria, and due to the lack of an adequate Nigerian structure for safeguarding these rights, Igbos need a separate state to secure these inalienable liberties; no valid objection against the creation of such a state exists. I. HUMAN RIGHTS AND HISTORY REGARDING THE GUARANTEE OF HUMAN RIGHTS IN NIGERIA A. Defining Human Rights Human rights are freedoms such as life, liberty, security, subsistence, and other guarantees to which people as humans have rights.18 They are generally understood as entitlements or claims against the society held equally by all persons simply because they are human beings.19 Although human rights are usually taken to have a special reference to the way governments treat their own citizens,20 life, lib18. See JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS 1 (2d ed. 1998); see also SAEDWARD CORWIN & JACK W. PELTASON, CORWIN & PELTASON’S UNDERSTANDING THE CONSTITUTION 4 (7th ed. 1976) (describing human rights as “the rights that distinguish men and women from the other creatures who inhabit the earth, the rights that make for the �humanness’ of human beings”). 19. See OBASI OKAFOR-OBASI, THE ENFORCEMENT OF STATE OBLIGATIONS TO RESPECT AND ENSURE HUMAN RIGHTS IN INTERNATIONAL LAW 17 (2003). 20. DONNELLY, supra note 18, at 1; see MARK R. AMSTUTZ, INTERNATIONAL ETHICS: CONCEPTS, THEORIES, AND CASES IN GLOBAL POLITICS 71 (1999); see also OKAFOR-OBASI, supra note 19, at 17 (depicting international law as “some additional instruments” that individuals and other beneficiaries of human rights could use “to gain access to the enjoyment of these rights from the state”); Jack Donnelly, Unfinished Business, 30 PS: POL. SCI. & POL. 530 (1998) (“Human rights . . . typically target the state of which one is a national.”); Louis Henkin, The Universal Declaration and the U.S. Constitution, 30 PS: POL. SCI. & POL. 513 (1998) (underscoring the national character of international human rights, that the Universal Declaration of Human Rights “calls on states to recognize the rights of their inhabitants under their national laws, and to take measures to realize human rights through national institutions within their own societies.”). Conceptually speaking, human rights is simply the “form in which the international community, under Western influence, has chosen to express human dignity . . . .” Virginia A. Leary, The Effect of Western Perspectives on International Human Rights, in HUMAN RIGHTS IN AFRICA: CROSS-CULTURAL PERSPECTIVES 15, 29-30 (Abdullahi A. An-Na’im & Francis M. Deng eds., 1990). Although a concept with a Western origin, human rights is also so evolutionary and dynamic that today it is recognized and accepted throughout the world as a universal term. Id. Human rights, as understood and practiced today under the United Nations system, is distinguished from the idea of human rights (or freedom), which is something common to every MUEL 2004] 169 Howard Law Journal erty, security, property and other humans rights “may be denied by an extensive array of individuals or organizations.”21 Protecting human rights today is a necessary and important part of what governments do;22 human rights serve as a yardstick for measuring the true standard of a society and its level of development.23 Both safeguarding minority rights and affording all citizens the opportunity “to participate in the national life in a climate of justice and peace” have become, in our time, the mark of “a morally adult society.”24 Although scholars such as Professor Henkin of Columbia University stress the national character of human rights,25 the international community led by the United Nations—as well as international action—plays a critical role in the safeguarding of human rights. Protecting human rights is “a matter of joint, global responsibility” that cannot be left exclusively to national governments.26 Not only are “governments . . . answerable internationally within their borders for their citizens’ enjoyment of internationally defined human rights regimes,” but today, “major states and international organizations” are bracing themselves to become “active partners of governments in making basic civilization. See Philip C. Aka, The Military, Globalization, and Human Rights in Africa, 18 N.Y.L. SCH. J. HUM. RTS. 361, 375-76 (2002) [hereinafter Aka, Military, Globalization, and Human Rights]. 21. DONNELLY, supra note 18, at 1; see also ANDREW CLAPHAM, HUMAN RIGHTS IN THE PRIVATE SPHERE (1993); Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443 (2001); Paul Redmond, Transnational Enterprise and Human Rights: Options for Standard Setting and Compliance, 37 INT’L L. 69 (2003); Mary Robinson, The Business Case for Human Rights, http//:www.unhchr.ch/ (last visited Sept. 1, 2004). 22. See LARRY DIAMOND, DEVELOPING DEMOCRACY: TOWARD CONSOLIDATION 4 (1999) (citing the Declaration and Program of Action adopted by participants at the conclusion of the Second World Conference of Human Rights held in Vienna in 1993, which states that governments have a “first responsibility” for promoting and protecting human rights); Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, G.A. Res. 53/144, U.N. GAOR 53d Sess., U.N. Doc. A/RES/53/144 (1999) (assigning governments responsibility for creating all necessary conditions for the effective enjoyment of every human right guaranteed for their citizenry). 23. 2 U. OJI UMOZURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 5, 7 (1997); see also id. at 23 (indicating that no genuine development takes place “at the expense of human rights”). 24. Emilio J. Cardenas ´ & Mar´ıa Fernanda Can˜ as, ´ The Limits of Self-Determination, in THE SELF-DETERMINATION OF PEOPLES: COMMUNITY, NATION, AND STATE IN AN INTERDEPENDENT WORLD 101, 101 (Wolfgang Danspeckgruber ed., 2002) (quoting Pope John Paul II) [hereinafter SELF-DETERMINATION OF PEOPLES]. 25. See Henkin, supra note 20, at 513. 26. Paul Redmond, supra note 21, at 70; see also OKAFOR-OBASI, supra note 19, at 70-129, who proposes several techniques the international community could use to facilitate enforcement of state obligations to safeguard human rights. 170 [VOL. 48:165 Prospects for Igbo Human Rights human rights part of the working foundations of contemporary states.”27 Three isolable categories of human rights are (1) political-civil rights; (2) social, economic, and cultural (or socioeconomic) rights, and; (3) solidarity (or group), rights. Political-civil rights are rights with which governments must not interfere.28 These rights include the right to life, dignity, personal liberty, due process, private and family life, freedom from discrimination; also important are the rights to freedom of thought, conscience and religion, freedom of expression and the press, peaceful assembly and association, and freedom of movement.29 Socioeconomic rights are rights that require the government to do something, such as provide resources, without which the enjoyment or realization of these rights is made difficult or impossible.30 These rights include the right to education, right to work and to social security, right to form and join trade unions, and right to health, among others.31 Solidarity or group rights are rights that the individual may enjoy as a member of a collective entity.32 These rights include the equality of peoples, the right to self-determination, the right to free disposal of natural wealth and resources, the right to development, the right to international peace and security, and the right to a clean environment.33 A global human rights instrument that codifies political-civil 27. John W. Harbeson & Donald Rothchild, The African State and State System in Flux, in AFRICA IN WORLD POLITICS: THE AFRICAN STATE SYSTEM IN FLUX 11 (John W. Harbeson & Donald Rothchild eds., 3d ed. 2000) [hereinafter AFRICA IN WORLD POLITICS]. For more on the necessity for international action—and the role of the international community—in safeguarding human rights, see discussion infra Part VII(A)(4)(ii). 28. UMOZURIKE, supra note 23, at 29. 29. See, e.g., NIG. CONST. ch. IV, § 33-41. 30. UMOZURIKE, supra note 23, at 46. 31. See id. at 45-49. 32. See CHRIS MAINA PETER, HUMAN RIGHTS IN AFRICA: A COMPARATIVE STUDY OF THE AFRICAN HUMAN AND PEOPLE’S RIGHTS CHARTER AND THE NEW TANZANIAN BILL OF RIGHTS 53, 58 (1990). 33. Id. at 59-69. The right to self-determination plays a central role among collective rights and is so closely interconnected with some of these rights, such as the right to development, that sometimes it is hard to say where one ends and the other begins. The right to self-determination has “two mostly separate lives in international” law, involving two set of claims. The first is uncontested as a human right, while the second, still contested, “derives from collective processes demanding secession, autonomy, self-rule, self-administration, and the like.” See Richard Falk, Self-Determination Under International Law: The Coherence of Doctrine Versus the Incoherence of Experience, in SELF-DETERMINATION OF PEOPLES, supra note 24, at 31, 66. The concept is used here in the first sense, in the second sense in Part VII, and in a mixed sense in some sections of the Article, such as Part II(B). 2004] 171 Howard Law Journal rights is the International Covenant on Civil and Political Rights (ICCPR),34 while the one that codifies socioeconomic rights is the International Covenant on Economic, Social, and Cultural Rights (ICESCR).35 An international human rights instrument noted for its emphasis on solidarity rights while also guaranteeing the other two categories of rights is the African Charter on Human and Peoples’ Rights (ACHPR).36 The three categories of rights are denominated, respectively, first-generation, second-generation, and third-generation rights. Each of the generations complements and completes the others. Ranking them by generation does not imply that any category of rights is superior to or takes precedence over the others.37 The United Nations (UN) has stated that “all human rights and fundamental freedoms are indivisible and interdependent and that equal attention and urgent consideration should be given to the implementation, promotion, and protection of” every category of human rights.38 As already implied in the foregoing three-category discussion, human rights may also be classified based on whether they are held by individuals or by groups. Political-civil and socioeconomic rights are individual rights that may also be enjoyed by groups, while collective rights such as the rights to peace, development, a clean environment, and the right to self-determination, are collective rights that individuals may also enjoy. The UN recognizes the equality of opportunity for development as a right that belongs to both individuals and nations.39 34. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316 (1966), available at http://www1.umn.edu/humanrts/ instree/b3ccpr.htm (last visited Sept. 16, 2004). 35. International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49-52, U.N. Doc. A16316. 993 U.N.T.S. 3, 6 I.L.M. 360 (1966), available at http://www.unhchr.ch/html/menu3/b/a_cescr.htm (last visited Sept. 16, 2004). The ICCPR and ICESCR had been envisioned in 1948 as a single treaty, denoted as the International Human Rights Covenants, but was broken into two because of the Cold War. DONNELLY, supra note 18, at 8; RHODA E. HOWARD, HUMAN RIGHTS IN COMMONWEALTH AFRICA 2 (1986); Leary, supra note 20, at 25-26. These two documents, together with the Universal Declaration of Human Rights, see discussion infra note 49 and corresponding text, are known collectively as the “International Bill of Rights.” 36. African Charter on Human and Peoples Rights, June 27, 1981, 21 I.L.M. 58 (entered into force Oct. 21, 1986), available at http://www1.umn.edu/humanrts/instree/z1afchar.htm (last visited Sept. 16, 2004). For an analysis of this instrument, see, for example, A.H. ROBERTSON & J.G. MERRILLS, HUMAN RIGHTS IN THE WORLD: AN INTRODUCTION TO THE STUDY OF THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS 242-66 (4th ed. 1996). 37. Aka, Military, Globalization, and Human Rights, supra note 20, at 375 (The various generations of human rights “highlight the evolution and mutual interdependence of these rights rather than suggest that any category should have priority over the others.”). 38. UMOZURIKE, supra note 23, at 42 (quoting U.N. Gen. Assembly Res. 32/130). 39. See id. at 60. 172 [VOL. 48:165 Prospects for Igbo Human Rights Also, international human rights instruments, such as the ACHPR, recognize both individual and group rights. Because of ambiguities regarding their scope, some international law scholars and UN governmental delegates do not perceive group or collective rights as real human rights.40 These rights do qualify as such, however.41 Instruments or documents relating to international human rights, such as the ICCPR, ICESCR, ACHPR, the UN Charter, and the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations,42 all recognize the right to self-determination, a solidarity right, as a human right belonging to and held by “peoples.”43 Collective rights have special importance and value for individual rights. Professor Falk calls the right to self-determination “the underpinning for all individual claimants seeking the legal protection of human rights . . . .”44 More generally, collective rights are “an essential framework for realizing most human rights of the individuals; individuals are the direct beneficiaries of collective rights, and further, cannot exercise most of their traditional human rights except as members of a collectivity.”45 As Professor An-Na’im persuasively illustrates with discrimination based on race, religion, or language, (usually ex40. See, e.g., JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 14354 (1989); see also Jack Donnelly, The “Right to Development”: How Not to Link Human Rights and Development, in HUMAN RIGHTS AND DEVELOPMENT IN AFRICA 261-83 (Claude E. Welch, Jr. & Ronald I. Meltzer eds., 1984). Others such as Philip Alston see collective rights as norms capable of becoming human rights provided abuse of such designation can be avoided. See Philip Alston, A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights?, 29 NETH. INT’L L. REV. 307, 307-22 (1982). 41. See, e.g., Yoram Dinstein, Collective Human Rights of Peoples and Minorities, 25 INT’L & COMP. L.Q. 102-20 (1976); see also Theo van Boven, The Relations Between Peoples’ Rights and Human Rights in the African Charter, 7 HUM. RTS. L.J. 183, 183-94, 191-92 (1986), whose contribution this Article discusses below. 42. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028 (1971) [hereinafter Declaration of Principles] 43. See ICCPR, supra note 34, art. 1.1, 1.2; ICESCR, supra note 35, art. 1.1, 1.2; ACHPR, supra note 36, art. 20.1; see also ACHPR, supra note 36, arts. 2.1 and 2.2 (dealing with the right to development); U.N. Charter, arts. 1.2 and 55; Declaration of Principles, princ. (e), para. 7. The reference in the ACHPR, art. 2.2, to the right to development shows how closely related the right to self-determination is to the right to development and reinforces our argument, supra notes 34-5 and corresponding texts, as to the interconnectedness, if not inseparableness, of the various generations of human rights. 44. Falk, supra note 33, at 32. 45. Abdullahi An-Na’im, The National Question, Secession and Constitutionalism: The Mediation of Competing Claims to Self-Determination, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITION IN THE CONTEMPORARY WORLD 111 (Douglas Greenberg et al. eds., 1993). 2004] 173 Howard Law Journal perienced by individual persons) the individual quality of many individual rights derives its significance from its implications to the collectivity.46 These occurrences speak to the interconnectedness of various categories and classes of rights and the undesirability, if not futility, of any rigid distinction among these categories or classes. Again, as the UN counsels, “all human rights and fundamental freedoms are indivisible and interdependent.”47 Two objections raised to the recognition of collective rights as human rights are that: (1) they are not legally enforceable; and (2) there is no certainty as to the entity against which such rights are to be asserted or claimed. But each of these objections is disposable.48 Regarding enforceability, leading human rights instruments, such as the Universal Declaration of Human Rights (UDHR),49 and the ACHPR, are, as Boven reminds us, “more than legal instruments. They are also instruments of liberation. . . . The struggles for human rights and peoples’ rights are not only settled in the courts but also and perhaps more decisively in political fora.”50 This is a view shared by Professor An-Na’im, who maintains, “it is desirable to think of collective rights, such as the right to self-determination as a human right because of the power of the idea of human rights and its utility in political discourse.”51 And, says An-Na’im, collective rights can be formulated and implemented “in a meaningful way,” so long as: “[i]n doing so, valid differences between individual and collective human rights must be recognized; it is particularly important to identify the claimant of the collective right, the entity against whom the right is held and the means of satisfying the right in any given case.”52 He advises that 46. Id. at 117. 47. UMOZURIKE, supra note 23, at 42 (quoting U.N. Gen. Assembly Res. 32/130). 48. The quibble over whether collective rights can be real rights cannot but call to mind the rebuke the African American literary giant, Richard Wright (1908-60), delivered to U.S. conservatives whom Wright said seek “to smother the Negro problem as a whole” when they insist “upon regarding Negroes as individuals and making individuals deals with individual Negroes, ignoring the inevitable race consciousness which three hundred years of Jim Crow living has burned into” the collective heart of American Blacks. Richard Wright, Introduction, in ST. CLAIR DRAKE & HORACE R. CAYTON, BLACK METROPOLIS: A STUDY OF NEGRO LIFE IN A NORTHERN CITY xxix (1993). 49. Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948). 50. van Boven, supra note 41, at 191-92. 51. An-Na’im, supra note 45, at 111. 52. Id.; see also generally OKAFOR-OBASI, supra note 19. This monograph is unique for its attention to the gap in the literature, until now unfilled, of how to ensure enforcement of state obligations in human rights. Dr. Okafor-Obasi articulates and discusses various measures for ensuring that governments live up to their human rights obligations, including coercive and noncoercive techniques as well as international tribunals. Id. at 70-129. 174 [VOL. 48:165 Prospects for Igbo Human Rights “rights” in human rights be read “in a broader sense than mere �legal’ rights enforceable in a court of law.”53 In regards to the second objection, no difficulty exists in ascertaining the entity against which these rights can be asserted, because all rights are activated and asserted against the source of challenge, denial, or threat, be that source the nation-state of the same people, another people within that state, or any other state.54 B. Guarantee of Human Rights in Nigeria The guarantee of human rights in Nigeria “has its genesis in the attempt to allay the fears of minority ethnic groups”55 who expressed concern that majority groups in their regions would dominate them after Nigeria became independent from Britain. As a result, the British government, in 1956, appointed the minorities’ commission otherwise known as the Willink Commission—after Sir Henry Willink, who headed the panel—to look into these fears and recommend means for allaying them.56 The Commission recommended the entrenchment of fundamental rights in the country’s constitution to allay those fears.57 The result was the insertion of fundamental guarantees in the country’s independence and post-independence constitutions. However, Nigeria has no culture of effective implementation of the basic rights it inserts in its Constitutions and no tradition of respect for individual and collective human rights. An important relationship exists between the safeguarding of human rights and constitutionalism; a strong and legitimate constitutional order is necessary not only to articulate but also to ensure the effective implementation of human rights protections.58 Nigeria does not have such a 53. See An-Na’im, supra note 45, at 112-13. 54. See id. at 113. 55. Ekwueme Okoli, Toward a Human Rights Framework in Nigeria, in TOWARD A HUMAN RIGHTS FRAMEWORK 203-04 (Peter Schwab & Adamantia Pollis eds., 1982). 56. REPORT OF THE COMMISSION APPOINTED TO INQUIRE INTO THE FEARS OF THE MINORITIES AND THE MEANS OF ALLAYING THEM (1958). 57. Id. 58. See Philip C. Aka, Nigeria Since May 1999: Understanding the Paradox of Civil Rule and Human Rights Violations Under President Olusegun Obasanjo, 4 SAN DIEGO INT’L L.J. 209, 26569 (2003) [hereinafter Aka, Nigeria Since May 1999]; see also An-Na’im, supra note 45, at 120 (defining a legitimate constitutional order as one that “provides for and effectuates a decentralized system of government that allows the various peoples the maximum degree of autonomy compatible with” territorial integrity; “articulates, verbally and institutionally, collective and individual rights”; and ensures the effective implementation of these rights). Professor An-Na’im identifies legitimate claims to be protected under a country’s legal order to include personal liberty as well as economic, political, and social justice for all segments of the population. Id. at 122. He argues that violation of constitutional guarantees for basic rights can form the basis for 2004] 175 Howard Law Journal legitimate constitutional system. In particular, the country violates the human rights of Igbos the most.59 Nigeria derives most of its infamous reputation as a nation that disrespects human rights from its habit of abuses of Igbo human rights. As this Article will show, both Nigerian governments and ethnic groups alike have violated Igbo human rights with impunity. Two major recent events in the history of human rights in Nigeria are the establishment of the National Human Rights Commission (NHRC) in 1995, and the 1999 inauguration of the Human Right Violations Investigation Commission, otherwise known as the Oputa Panel, after Chukwudifu Oputa, a retired Nigerian Supreme Court Justice, who chaired the seven-person commission.60 The NHRC is empowered to deal with all matters relating to human rights protection under the Nigerian Constitution, the ACHPR, and the UDHR.61 The Oputa Panel was charged with the responsibility of investigating human rights abuses in the country from January 1966 to 1999.62 Specifically, its mandate was to ascertain the nature and causes of these abuses, with particular reference to mysterious deaths and assassinations or attempted assassinations, to identify persons or organizations who perpetrated those abuses, to determine whether the violations were a product of state policy, and to recommend measures designed to redress these past injustices and prevent or forestall future violations.63 Five whole years later, however, the result of this investigaseparate existence by a group denied those rights in order to promote the denied rights. See id. at 106. The An-Na’im piece was itself a contribution to constitutionalism that utilized the principle of self-determination as a theoretical framework. Id. at 121. 59. See discussion infra Part V. 60. See Aka, Nigeria Since May 1999, supra note 58, at 218 n.57 for the identity of the other six members of the Commission. 61. Id. at 217-18. 62. Id. at 218-19. 63. Id. at 218. The enabling law establishing the panel did not give it the power and authority to compel witnesses. As a result, three former military rulers of the country, namely, Generals Muhammadu Buhari (1983-1985), Ibrahim Babangida (1985-1993), and Abdulsalami Abubakar (1998-1999), were subpoenaed to appear before the commission and refused to do so. See Shola Oshunkeye, No Hiding Place for the Generals, TELL (Lagos), Aug. 27, 2001, at 31-35 (including a description of the abuses for which the generals were subpoenaed). The only former military ruler of the country to appear before the commission was General Obasanjo. General Yakubu Gowon, Head of State from 1966 to 1975, was not even invited to appear. There are also problems arising from the duration covered by the panel. Although that duration is broad, the focus on “mysterious deaths and assassinations or attempted assassinations” made the panel’s mandate rather limiting. As this Article shows, human rights violations in Nigeria for the period in question encompass large-scale deprivations of life, liberty, and property. However, the mandate covers only life and leaves out liberty and property. Also, even the spectrum of life covered is narrow, limited as it is to mysterious deaths and assassinations or attempted assassinations. Life here, for example, does not include the massacres of Igbos in 1966, or the millions 176 [VOL. 48:165 Prospects for Igbo Human Rights tion has yet to be released by the government. In short, neither the setting up of the Panel nor the inauguration of the NHRC has had a positively observable effect on Igbo human rights. II. IGBOS IN INTERNATIONAL LAW A. The Igbo People and Nation The term Igbo designates both a language within the “kwa” group of the Niger Congo family of languages, and indigenes in parts of present-day Nigeria who speak the language. Igbos had a history of independent existence that dates back thousands of years64 before British intervention into what later became Nigeria. Pre-colonial Igbo societies were acephalous or kingless communities,65 marked by decentralized political powers.66 Ancient Igbos organized themselves into village democracies, over 2,000 in all,67 where they practiced a direct democracy characterized by a system of checks and balances, the pursuit of consensus through protracted discussion, the use of religious sanctions,68 and political institutions “designed to combine popular participation with weighting for experience,”69 among other features.70 Although elders ran affairs in Igbo societies,71 there was who died during the civil war, many due to the conduct of the war by Nigerian authorities in willful breach of the Geneva Convention, which stipulates provisions for the “humane” conduct of war. 64. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 3 (“[M]en have been living in Igboland for at least [5,000] years. One of the most notable facts of Igbo history is its length and continuity.”). 65. ELIZABETH ISICHEI, THE IBO PEOPLE AND THE EUROPEANS: THE GENESIS OF A RELATIONSHIP – TO 1906, at 47 (1973) [hereinafter ISICHEI, GENESIS OF A RELATIONSHIP]. The terminology used to celebrate this characteristic is Igbo enwe eze, meaning that “Igbos have no King.” See generally RICHARD N. HENDERSON, THE KING IN EVERY MAN: EVOLUTIONARY TRENDS IN ONITSHA IBO SOCIETY AND CULTURE (1972). 66. ROLF H.W. THEEN & FRANK L. WILSON, COMPARATIVE POLITICS: AN INTRODUCTION TO SEVEN COUNTRIES 477 (3d ed. 1995). 67. See ELIZABETH ISICHEI, A HISTORY OF CHRISTIANITY IN AFRICA: FROM ANTIQUITY TO THE PRESENT 155 (1995); see also Simon Ottenberg, Ibo Receptivity to Change, in CONTINUITY AND CHANGE IN AFRICAN CULTURES 130, 130 (William R. Bascom & Melville J. Herskovits eds., 1959). 68. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 142-43. 69. Id. at 21. 70. Id. As Professor Isichei observes, “One of the things that struck the first Western visitors to Igboland, was the extent to which democracy was truly practiced.” Id. Commenting on Igbo democracy, based on her reading of Professor Achebe’s celebrated novel Things Fall Apart, one observer stated: What is remarkable about [the] Igbos is the degree to which they have achieved the foundations of what most people seek today—democratic institutions, tolerance of other cultures, a balance between male and female principles, capacity to change for the better or to meet new circumstances, a means of redistributing wealth, support for industriousness, a viable system of morality, . . . an effective system of justice . . . . 2004] 177 Howard Law Journal also “much scope for individual mobility,”72 and political participation was open to many, including women.73 Current pan-Igbo identity and the use of the Igbo ethnic label are externally imposed, recent phenomena that arose from British colonial rule.74 Before colonial rule and the politicization of ethnic identity that followed foreign rule, Igbos thought of and identified themselves only based on villages they came from: as people from Abakaliki, Asaba, Awka, Enugu, Owerri, Umuahia, and so forth.75 Although the massacres of 1966 and the war for Biafra from 1967 to 1970 thrust Igbos into global consciousness, before 1966 Igbos had already emerged as a major ethnic group in Nigeria and Africa as a whole.76 Igbo adaptability is one important feature that marks the ethnic group apart from their counterparts in Africa.77 Beginning with an economic system built on metallurgy and agriculture during the precolonial period,78 Igbos embraced Western education and commerce following British entry into Nigeria.79 Their commitment in these fields expanded over time such that before the civil war, Eastern Nigeria, the region where Igbos had their home, was investing over forty percent of its budget in education.80 And in commercial entrepreAchebe appears to have tested Igbo culture against the goals of modern liberal democracy and to have set out to show how the Igbo meet those standards. Diana A. Rhoads, Culture in Chinua Achebe’s Things Fall Apart, 36 AFR. STUD. REV. 61 (1993). 71. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 22. Elaborating on the role elders played in Igbo politics, based again on a reading of Achebe’s work, Rhoads stated: For great decisions, the ndichie, or elders, gather together all of Umuofia. . . . The clan rules all, and the collective will of the clan can be established only by the group. Further, as is appropriate for and in a democracy, each man is judged on his own merits, according to his worth, not those of his father, as would be the case in an aristocracy or oligarchy. Rhoads, supra note 70, at 63 (internal quotes omitted). 72. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 71-72. 73. THEEN & WILSON, supra note 66, at 477-78. Dr. Azikiwe, first President of Nigeria, an Igbo, once praised Eastern Nigeria as “the arsenal of republicanism in Nigeria.” See NNAMDI AZIKIWE, ZIK: A SELECTION FROM THE SPEECHES OF NNAMDI AZIKIWE 20 (1961). 74. CHAZAN ET AL., supra note 5, at 109; ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 20; Government of the Republic of Biafra, Introducing the Republic of Biafra, available at http://www.westafricareview.com/war/vol2.2/biafra/republic.htm at 5 (1967) [hereinafter Introducing Biafra];. 75. Introducing Biafra, supra note 74, at 3. 76. For a list of the main ethnic groups in Africa, see, for example, RICHARD A. FREDLAND, UNDERSTANDING AFRICA: A POLITICAL ECONOMY PERSPECTIVE 101-04 (2001). 77. See Ottenberg, supra note 67, at 130-43; see also Stanley Diamond, Who Killed Biafra?, 14 N.Y. REV. BOOKS 4 (Feb. 26, 1970) (quoting Margery Perham & K. Onwuka Dike) (on file with author). 78. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 7-14. 79. See id. at 185-225. 80. See id. at 185; see also Nigeria’s Civil War: Hate, Hunger and the Will to Survive, TIME, Aug. 23, 1968, at 20 [hereinafter Nigeria’s Civil War] “Before their secession from Nigeria, the 178 [VOL. 48:165 Prospects for Igbo Human Rights neurship such was the gain made that, in Professor Isichei’s elegant phraseology, Igbos changed the very name Ohafia (a town in Igboland) in the last century “from oha-ofia, people living in the bush, to oha-afia, people who trade.”81 This adaptability is due to Igbo culture being based on achievement, which assesses the work of individuals, big or small, based on whether they “tried” or did their best, rather than on inheritance.82 Professor Achebe attributes the rise of Igbos in Nigerian affairs to a “self-confidence engendered by their open society and their belief that one man is as good as another, that no condition is permanent.”83 Plus the Igbo has an advantage that his rivals lack. Unlike the Hausa/Fulani he was unhindered by a wary religion and unlike the Yoruba unhampered by traditional hierarchies. This kind of creature, fearing [neither] God nor man, was custom-made to grasp the opportunities, such as they were, of the [W]hite man’s dispensation. And the Igbo did so with both hands. Although the Yoruba had a huge historical and geographical head-start the Igbo wiped out their handicap in one fantastic burst of energy in the twenty years between 1930 and 1950.84 Unfortunately, this kind of success can come with its price, which, for the Igbo, was a “noisy exhibitionism and disregard for humility and quietness.”85 Igbos were consolidated with many other groups by Britain to create Nigeria in 1914.86 They are one of the three largest ethnic Ibos of the Eastern Region were spending [forty percent] of their public funds on education. Villagers often pooled their resources to send the most promising boy of college age off to study in Britain . . . .” Id. at 21. 81. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 212. 82. See Diamond, supra note 77; see also supra notes 71-72 and corresponding text; supra notes 83-84 and corresponding text. 83. CHINUA ACHEBE, THE TROUBLE WITH NIGERIA 47 (1983). 84. Id. at 46. For more on Hausa-Fulanis and Yorubas, see discussion infra note 87. 85. ACHEBE, supra note 83, at 46. 86. The country was named after the River Niger, which cuts through much of the land. The British citizen who coined that name was Lady Lugard, former girlfriend and later wife of the first governor-general of the country, Lord Frederick D. Lugard. Some other accounts credit the invention of the name “Nigeria” to an African correspondent of the Times of London. See THEEN & WILSON, supra note 66, at 490. Professors Theen and Wilson noted, lamenting the irrationality of colonial-era world politics, that the British government “incorporated . . . the impoverished and remote northern region primarily to prevent the French from adding it to their African holdings.” Id. The consolidation of the North and South, until 1914, held by Britain as two separate “protectorates” ran against the advice of a committee the British colonial authorities set up in 1899 which recommended a partition of the two, as well as against Lord Lugard’s own “belief in the oil-and-water incompatibility of the two.” 1 A.H.M. KIRK-GREENE, CRISIS AND CONFLICT IN NIGERIA: A DOCUMENTARY SOURCEBOOK 7 (1971) [hereinafter KIRKGREENE 1]. 2004] 179 Howard Law Journal groups in the country.87 Igbos number at least 30 million people and make up about one-quarter of Nigeria’s population.88 While the Igbo ancestral home, Igboland, is easily identified or demarcated, political organization of that territory has changed over time in Nigeria. From 1954 to 1967, Igbos combined with other ethnic groups to form the Eastern Region or Eastern Nigeria. A smaller but important section of the ethnic group across the Niger River belonged in what was then the Mid-Western Region or Mid-Western Nigeria. From the end of the civil war in 1970 to 1976, Igbos constituted the East Central State, an administrative unit unilaterally created and imposed by the Nigerian government in 196789 that became fully functional only with the end of the war in 1970. As earlier indicated, Igbos were one of the groups that comprised the Republic of Biafra.90 They made up almost 87. The other two groups are Hausa-Fulanis and Yorubas. Hausa-Fulanis are actually two groups which, through religious conquest (by the Fulanis) and intermarriage over a long period of time, have become seemingly one group and are all, but for the hyphenation, viewed and treated as a single group. Yorubas are an ethnic group in the Southwest of Nigeria who, according to legend, trace their common ancestry to a founder known as Oduduwa. Among them these ethnic triumvirate make up approximately two-thirds of Nigeria’s population of over 120 million people. Nigeria is believed to embody over 200 ethnic groups. But many of these groups are extremely small, some of them numbering only in the tens of thousands. Not a few of these groups appear to be simply invisible. Studies on the country are able to identify only a handful of groups. See, e.g., EGHOSA E. OSAGHAE, CRIPPLED GIANT: NIGERIA SINCE INDEPENDENCE xxi (1998), who points to less than sixty locations of “major ethnic groups” in the country. Igbos are mostly Christian, unlike Hausa-Fulanis, who are mostly Muslim, and Yorubas, who are divided, about equally, between the Christian and Muslim faiths. Each of the three main groups has a distinct region of the country that forms its base. For Hausa-Fulanis, that geographical base is the North; for Yorubas, it is the West; while for Igbos, it is the East. The entire country is divided into six so-called geopolitical zones, three in the North and three in the South. Igbos make up two of the country’s six geopolitical zones, namely, the all-Igbo South-East zone, consisting of the majority Igbo states; and the South-South zone, made up of the two Igbo minority states, and other non-Igbo ethnic groups. The four other zones are the South-West made up of Yorubas, the North-East and North-West comprising Hausa-Fulanis, and North-Central made up of various minority ethnic groups in northern Nigeria. Although the six zones have been suggested as possible replacements for the states as federating units in Nigeria’s nominal federal republic, since their creation in the days of General Abacha (1993-98), the zones have not been the locus of any power other than a more manageable device for regrouping the country’s thirtysix states. The reinforcing, as opposed to cross-cutting, nature of social cleavages in Nigeria, coupled with the fact that class-consciousness is still poorly developed in the country, increases the chances for ethnic conflict. To use Igbos as an example, ethnicity (Igboness) is magnified by region (the East), religion (Christianity) and most recently, zone (South-East). Nigeria belongs among countries that Donald Horowitz calls “centralized” ethnic systems. See generally DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT (1985). In these systems, “a few groups are so large that their interactions are a constant theme of politics at the center.” Id. at 39. The country’s ethnic structure impedes rather than encourages inter-ethnic cooperation on the poorly developed nature of social class in the country. See, e.g., THEEN & WILSON, supra note 66, at 491-93. 88. See JOE IGBOKWE, IGBOS 25 YEARS AFTER BIAFRA 1 (1995). 89. See discussion infra notes 193-94 and accompanying text. 90. See supra note 12 and accompanying text. 180 [VOL. 48:165 Prospects for Igbo Human Rights seventy percent of Biafra’s population of 14 million people then,91 making them the majority group in a republic that also included key ethnic groups such as Annangs, Efiks, Ibibios, Ijaws, Ogojas, Ogonis, and Opobos.92 Given this occurrence, portraiture of Igbos as synonymous with Biafra, as some writings do, is inaccurate.93 As a result of subsequent state creation exercises in the country, Igbos now have homes in seven out of Nigeria’s thirty-six states.94 Igbos have been at the forefront in the defense of global human rights and freedom.95 A number of Igbo slaves exported to the New World (or Western Hemisphere) committed suicide rather than submit to slavery in a foreign land.96 Among those who stayed alive, some like Olaudah Equiano came to play a major role in the antislavery movement.97 Inside Nigeria, Igbos held a record for the most 91. See George A. Elbert et al., An Exchange on Biafra, N.Y. REV. BOOKS, Apr. 23, 1970 (Stanley Diamond replying to responses to his book review, Diamond, supra note 77); Introducing Biafra, supra note 74, at 3. 92. See Introducing Biafra, supra note 74, at 3-5 (discussing the various peoples that made up Biafra); KIRK-GREENE 1, supra note 86, at 83 (referring to a political cartoon); see also Elbert et al., supra note 91 (Stanley Diamond replying to responses to his book review, Diamond, supra note 77, and discussing the “fundamentals of the minority situation” in Biafra). 93. An analogy here, for example, would be to equate Great Britain (made up of the English, the Welsh of Wales, the Scots of Scotland, and the Irish of Northern Ireland) with England, even given the overwhelming numerical superiority of the English people who constitute eighty percent of the country. See THEEN & WILSON, supra note 66, at 20-21. 94. These are Abia, Anambra, Ebonyi, Enugu, and Imo, where Igbos form the majority group; and Delta and Rivers, where they comprise the minority population. The five major Igbo states, as previously indicated, form the so-called South-East zone, while the two minority Igbo states, along with other ethnic groups, form the so-called South-South. 95. See generally Chidi G. Osuagwu, World Struggle for a Just World, Part 1, Address Presented at Lecture Marking Ojukwu’s 70th Birthday Anniversary, Owerri (Nov. 1, 2003) [hereinafter Osuagwu, Part 1]; Chidi G. Osuagwu, World Struggle for a Just World, Part 2, Address Presented at Lecture Marking Ojukwu’s 70th Birthday Anniversary, Owerri (Nov. 1, 2003) [hereinafter Osuagwu, Part 2]. 96. See RONALD SEGAL, THE BLACK DIASPORA 30 (1995) (stating that Igbo slaves had “a disquieting tendency to commit suicide in captivity”); see also Shaundra L. Lee, Ceremony Pays Tribute to Ibo Sacrifice, BRUNSWICK NEWS (Ga.), Sept. 2, 2002, at 3A (reporting sanctification of an “Igbo landing” site at St. Simons Island, Georgia in the United States, to honor of thirteen Igbo slaves who, in 1803, drowned themselves at a creek in the Island upon disembarking from their ship). 97. See OLAUDAH EQUIANO, THE INTERESTING NARRATIVE OF THE LIFE OF OLAUDAH EQUIANO: WRITTEN BY HIMSELF (Robert J. Allison ed., 1995). Equiano was born in Igboland, sold to British slavers when he was eleven, and shipped off to the British West Indies. After purchasing his freedom in 1766, he became a major figure in the anti-slavery movement in England. A successful man, Equiano married an English woman and left a huge inheritance for his family when he died in 1797. Id. at 21. Equiano’s book is praised as “one of the first anti-slavery books by a former slave.” Id. at 1. Igbo slaves also took active part in the anti-slavery initiatives within the United States, which role White politicians such as former Alabama Governor and presidential candidate George Wallace lividly recall. See Osuagwu, Part 2, supra note 95 (“The Igbo activities to free the African slaves in the United States made . . . Wallace accuse them in 2004] 181 Howard Law Journal tenacious resistance to British colonial rule.98 Also, the first largescale uprising against colonial rule in Nigeria, symbolized by the Aba women’s revolts of 1929, took place in Igboland.99 Other Igbo contributions to human rights and fundamental freedoms include the instrumental roles prominent Igbos, such as Dr. Nnamdi Azikiwe,100 Dr. Akanu Ibiam, Mbonu Ojike, Dr. Kinsley O. Mbadiwe, Mbazulike Amechi, and Dr. Okechukwu Ikejiani, among others, played in the nationalist struggle that led to Nigerian independence in 1960. Azikiwe himself led the National Council of Nigerian Citizens (NCNC, formerly National Council of Nigeria and the Cameroons), the first truly national political party in the country.101 Given this history, it is not surprising that Eastern Nigeria, Igbo’s home until 1967, was the first region, in 1956, to achieve self-governing status.102 Igbos embraced “with much greater fervor” than any other single Nigerian ethnic group, the concept of Nigeria but questioned that concept following the massacres of 1966.103 They proudly 1968 of causing the American civil war. He, therefore, opposed any relief to embattled Biafra during his 1968 presidential campaign.”). 98. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 119 (“No Nigerian people resisted colonialism more tenaciously than the Igbo. . . . The conquest of Igboland took over twenty years of constant military action.”); see also ISICHEI, GENESIS OF A RELATIONSHIP, supra note 65, at 130 (explaining the “peculiar tactical difficulties” that gave rise to this long resistance). 99. Diamond, supra note 77. For one account of these revolts, celebrated in Igboland as ogu umu nwanyi, meaning “women’s war” in Igbo, see CATHERINE COQUERY-VIDROVITCH, AFRICAN WOMEN: A MODERN HISTORY 163-65 (Beth Gillian Raps trans., 1997). Aba was the city in Eastern Nigeria where most of the revolts took place. 100. OHA-NA-EZE NDI-IGBO, THE VIOLATIONS OF HUMAN AND CIVIL RIGHTS OF NDI IGBO IN THE FEDERATION OF NIGERIA (1966-1999): A CALL FOR REPARATIONS AND APPROPRIATE RESTITUTION 6 (1999), available at http://www.westafricareview.com/war/vol2.2/ohaneze.pdf [hereinafter OHA-NA-EZE, PETITION] (This document is “A Petition to the Human Rights Violations Investigating Committee.”). Oha-na-eze Ndi Igbo is an Igbo association that calls itself “the apex organization of the entire Igbo people.” Id. at 1. Ndi Igbo in the name means “Igbo people” in the Igbo language. 101. PETER J. SCHRAEDER, AFRICAN POLITICS AND SOCIETY 307 (2d ed. 2004). 102. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 231. 103. See infra notes 258-60 and accompanying text; see also Introducing Biafra, supra note 74, at 1 (disclosing that before the war, Igbos were the most important single builder of Nigerian unity “who regarded themselves as citizens of Nigeria to an extent that no other group in the country ever did”). Examples of the deep Igbo commitment to Nigerian unity are numerous. First, the first-elected mayor of the important Igbo city Enugu was a northerner from Sokoto. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 229. enugu became the administrative headquarters of the southern provinces in 1929, the capital of the Eastern region up to 1967 and the capital of Biafra during the war. By 1963, the city grew in population to nearly 150,000 people. Id. at 204-5. Second, Igbo students studying abroad during the 1950s and 1960s routinely proudly identified themselves as Nigerians, rather than as Igbos. Id. at 229. Professor Isichei disclosed that “The typical decor of an Igbo student’s room in London comprised a map of Africa, a map of Nigeria, a Nigerian calendar and a picture of the University of Ibadan.” Id. at 229-30. Last but not least, the NCNC, led by the Igbo Dr. Azikiwe, was the only national 182 [VOL. 48:165 Prospects for Igbo Human Rights called themselves Nigerian nationalists when no Nigerian nation existed and when “no one else thought in such terms,”104 but “expressed their sense of nationality in the creation of the state of Biafra” when they “lost faith in the possibility of a unified Nigeria.”105 Battling against overwhelming odds, for nearly three years, they heroically defended this state in a frantic effort to prevent near-certain extermination, in the process, testing with their blood, the scope of the right of self-determination in Africa and demonstrating for the world the felt need to extend the right “beyond its colonial context.”106 Since 2000, as a new century unfolds, Igbos have worked to “resurrect” the campaign for a separate state that ended with their defeat in 1970.107 This renewed campaign provides some of the backdrop for this Article. Igbos have always been a Diasporan people. Nobody knows at what point in Igbo history this impulse evolved,108 but Igbos left the ancestral homeland during the slave trade. This was not a voluntary migration. During the colonial period, the migration continued, first involuntarily as the result of colonial human rights violation,109 but later voluntarily. By the time political independence came to Nigeria in 1960, Igbo migration into all parts of the country had become so complete that “Nigeria became, in effect, an [Igbo] diaspora.”110 Later, the migration came to encompass not only West Africa,111 but indeed Africa as a whole112 and beyond. Igbo migration inside party, and Dr. Azikiwe worked hard to keep it so. Less than half of the NCNC leadership was Igbo and only three out of the NCNC federal ministers in 1960 were Igbos. Id. at 229. This disposition of the NCNC contrasts with the demeanor of the Hausa-Fulani-dominated Northern People’s Congress (NPC) which refused to even change its name to Nigerian People’s Congress. KIRK-GREENE 1, supra note 86, at 15. Igbo commitment to national unity is a virtue that sometimes is absurdly attributed by non-Igbo scholars to “self-interest” factors, such as population pressure and “land hunger.” But such “explanations” make no sense since they fail to account for why a people like the Igbo supposedly suffering from land hunger would seek to separate from Nigeria. 104. Conor Cruise O’Brien, A Condemned People, N.Y. REV. BOOKS, Dec. 21, 1967, at 20. 105. Diamond, supra note 77. 106. KIRK-GREENE 1, supra note 86, at xii. 107. See discussion infra Part VII(A)(5). 108. For example, archaeological excavations reveal Igbo contacts with Hausa-Fulanis as far back as the ninth century AD. See OHA-NA-EZE, PETITION, supra note 100, at 6. 109. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 209 (providing an account of how “[m]any Igbos left their homes for the first time when conscripted to work on the railways” and how many “followed the railway in its progress” into northern Nigeria). 110. See Chukwuemeka Onwubu, Ethnic Identity, Political Integration, and National Development: The Igbo Diaspora in Nigeria, 13 J. MOD. AFR. STUD. 399, 405 (1975). 111. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 211; Onwubu, supra note 110, at 404. 112. See IGBOKWE, supra note 88, at 2 (“There is hardly any part of the [B]lack continent that you will not find [Igbos] earning a living.”). 2004] 183 Howard Law Journal Nigeria suffered a temporary setback in 1966 following the return to the East of more than 2 million dispossessed Igbos who fled the mass killings in northern Nigeria.113 One of the major developments in Igbo history beginning from the 1970s was the spread of the nation into all corners of the world. Migration ranks as “one of the most striking features” of modern Igbo history.114 Arguably, as a result of this massive migration, the entirety of the world outside Igboland, in our time, has become, in effect, an Igbo Diaspora.115 It is in this context that one understands the mission of Igbo nationalist organizations like Ekwe Nche, which work to unite Igbos from all over the world.116 The organization commits its energies to an “Igbo nation worldwide,” made up of Igbos in Igboland and in the Diaspora. A broader perspective to the definition of the Igbo nation of the kind Ekwe Nche espouses is an idea whose time has come. While the ancestral home is still important, given the spread of Igbos today to all corners of the world, restriction of the definition of the Igbo people to the group found in Igboland has become too constrictive. B. Igbos As a Subject of International Law and a Legitimate Object of Analysis A key question is whether Igbos are subjects of international law and, therefore, a legitimate focus of analysis as here in this Article. Under the traditional rule, the plain answer to that question is no; this is because, under that rule, only states are proper subjects of international law; individuals and groups are not since they come into contact with international law only through the medium of their state.117 The issue for international law, consistent with this rule, “is the international obligation of a state and not the right of its people”; specifically, only “a state or the community of states forming the [UN] can seek performance of a state’s obligation to accord self-determination to its people, not the people of that state.”118 Since Igbos as an ethnic 113. See discussion infra notes 170-71 and accompanying text. 114. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 208. 115. Id. 116. See EKWE NCHE ORG. CONST. § 2.4.1 (adopted Feb. 1999). 117. OKAFOR-OBASI, supra note 19, at 17. 118. An-Na’im, supra note 45, at 109 (quoting S. Prakash Sinha, Self-Determination in International Law and Its Applicability to the Baltic Peoples, in RES BALTICA 256 (A Sprudz & A. Rusis eds., 1968)). 184 [VOL. 48:165 Prospects for Igbo Human Rights group or nation within Nigeria are not a state, under the traditional rule they are not a proper subject of international law. However, many now view this traditional view as antiquated if not downright inaccurate.119 Two alternative interpretations of international law make Igbos subject to international law—and therefore legitimate object of analysis, as here. The first is the “peoples” interpretation, which gives “people” the right of self-determination in international human rights instruments. Self-determination is firmly established today in global human rights instruments as a human right of “peoples,” not states; African and UN human rights documents, all view the right to self-determination as belonging to “peoples.”120 So peoples within a nation-state today are entitled to assert their rights to self-determination against their nation-states.121 In granting “peoples” the right to self-determination, an underlying assumption these international instruments share, is that “peoples” are represented by their states in the international arena. In short, people are the holders of the right to self-determination, but states are the entities, in line with the traditional rule, charged with the obligation to secure the enjoyment of the right domestically and internationally.122 This interpretation, which distinguishes a people from their state, is significant because it gives a group within a country or a people some recourse if the state fails to honor its obligation to safeguard their right to self-determination.123 Professor An-Na’im laments, “It is ironic that the independent nation state, once perceived as the essential prerequisite for the achievement of the peoples’ right to self-determination, is now seen by many people(s) as a major obstacle to the realization of that right.”124 Where this becomes the case, as this Article demonstrates in the case of Igbos, an ethnic group is then charged with the obligation to safeguard its rights and therefore is a proper subject of international law in its own right. In line with this interpretation, the ACHPR has been read as reserving “a certain amount of political and economic space for peoples qua peoples,” or “peoples’ sovereignty,” in situations “where the in119. 120. 121. 122. 123. 124. 2004] See id. along with the authorities Professor An-Na’im cited at 123 n.8. See discussion supra note 43 and accompanying text. An-Na’im, supra note 45, at 109. Id. at 111. Id. Id. at 106. 185 Howard Law Journal terests of the people and those of the state diverge.”125 Professor Umozurike’s position that “breaches of human rights, especially gross breaches, are taken out of domestic jurisdiction,”126 also appears to agree with this outcome. We still need to demonstrate (rather than simply assert) that Igbos qualify as “people” entitled to the right to self-determination under international human rights instruments. UN and African human rights instruments left “people” undefined.127 Definitions of “�people’ emphasize the attributes of commonality of interests, group identity, distinctiveness, and a territorial link.”128 Consistent with these attributes, an ethnic, religious, or linguistic minority is a “people” entitled to the right to self-determination, either internally within an established state or externally through secession under appropriate circumstances.129 Igbos are “people” within the meaning of UN and African human rights instruments entitled to the right to self-determination either internally within a state or externally outside it because they are an ethnic or linguistic minority. A second interpretation that makes Igbos a subject of international law is what may be called the “shifting obligation” interpretation. Under this interpretation developed by the Soviet scholar D.B. Levin: When a nation exercises its right to self-determination, form[s] an independent state, voluntarily remains in a multinational [multicultural] state or joins another multinational [multicultural] state, its right to the free determination of its further internal political, economic, social and cultural status passes to the sphere of state law of the state to which the nation now belongs. But this holds good only 125. See Richard N. Kiwanuka, The Meaning of “People” in the African Charter on Human and Peoples’ Rights, 82 AM. J. INT’L L. 81, 83 (1988). This is also the approach adopted by the Universal Declaration of the Rights of Peoples of July 4, 1976, otherwise known as the Algiers Declaration. The Declaration is a populist document adopted by a group of people in liberation struggles, including lawyers, economists, and politicians. The text of the Algiers Declaration can be found in UN LAW/FUNDAMENTAL RIGHTS: TWO TOPICS IN INTERNATIONAL LAW 219-23 (Antonio Cassese ed., 1979). Much of the confusion surrounding the meaning and implication of the right to self-determination, as Professor An-Na’im says, derives from its conceptualization as vested in one single entity, the nation-state, whereas, in actuality, this right can be satisfied through a variety of entities, including ethnic groups, “exercising different functions of government.” An-Na’im, supra note 45, at 108. 126. UMOZURIKE, supra note 23, at 7-8. 127. “[D]rafters of international instruments sometimes prefer that a central concept or term be defined by subsequent practice and jurisprudence rather than impose their own definition. For example, the International Law Commission declined to define “state” in its draft Declaration of the Rights and Duties of state, preferring rather that the term be interpreted in accordance with international practice.” See An-Na’im, supra note 45, at 112. 128. See id. 129. Id.; see also id. at 117-18; see also Kiwanuka, supra note 125, at 80-101 (identifying several definitions of “people” under the ACHPR). 186 [VOL. 48:165 Prospects for Igbo Human Rights as long as the conditions on which the nation became part of the given state are not violated by this state and as long as the nation’s desire to stay within it remains in force, and it is not compelled to do so by coercive means. As soon as one of these phenomena occur, the question again passes from the sphere of state law into the sphere of international law.130 Under this alternative interpretation, Igbos also qualify as subjects of international law because, violations of the original multi-nationality compact have taken place in Nigeria such as to allow for the passage of the obligation for safeguarding their human rights from Nigerian domestic law to international law. The significance of Levin’s shifting-obligation theory is that a nation’s or ethnic group’s right to self-determination does not become exhausted with their incorporation into a multinational state, even where that initial incorporation is consensual.131 A similarity exists between Kiwanuka’s interest divergence, (or people’s sovereignty) theory discussed above as part of the “peoples” interpretation, and the “shifting obligation” interpretation: both will make ethnic groups like Igbos subject to international law. But the two differ in that the Kiwanuka approach is automatic, (an ethnic group becomes a subject of international law once it is found to be a people) something that the shifting obligation interpretation lacks since it requires that the initial condition for a group’s entry into a multinational “compact” change for a shift to occur from domestic into international law. III. DOCUMENTING ABUSES OF IGBO HUMAN RIGHTS IN NIGERIA A. Before Independence: Atrocities Arising from the Slave Trade and Colonial Rule 1. The Slave Trade The trans-Atlantic slave trade from the fifteenth to the late nineteenth centuries inflicted a heavy toll on Igbo societies. Combined with the Arab slave trade that preceded it,132 this traffic in humans 130. An-Na’im, supra note 45, at 109 (quoting D.B. Levin, The Principle of Self-Determination of Nations in International Law, SOVIET Y.B. INT’L L. 1962 at 46). 131. See An-Na’im, supra note 45, at 110. 132. The Arab slave trade took place beginning from the ninth century and encompassed three slave networks, namely: the trans-Saharan slave trade, which principally sold slaves to the Mediterranean coastal region; the Red Sea slave trade, which sent slaves to the Middle East and 2004] 187 Howard Law Journal lasted for a period of “thirteen centuries and represent[s] thirteen lost centuries in the struggle toward modernity and human rights in Africa.”133 Altogether the European and Arab slave trades were responsible for the forced removal and enslavement of more than 30 million Africans.134 The fate of the slave, from capture to arrival in the New World (North and South America, and the Caribbean), was one laced with human rights horrors.135 About 20 million people were transported from Africa, resulting in depopulation of large areas of the continent.136 Professor Umozurike assesses that “[t]he trade was totally extractive of human resources, negated political, economic, social and cultural development and stultified the growth of civilization” and that it sired tremendous “personal insecurity” as well as a “degradation in the quality of life.”137 No documentation exists as to the exact number of people from Igboland lost to the slave trade, but the figure probably runs into several millions.138 Igboland “was one of the areas of West Africa most seriously affected by the slave trade.”139 For the entire duration of the infamous traffic in humans until it ended in the nineteenth century, Igbo nationals were exported as South Asia; and the Swahili coast slave trade, which focused on the Indian Ocean islands and South and Southeast Asia. This slave trade is sometimes referred to as the Islamic slave trade in recognition of the fact that it was dominated by the Islamic world. SCHRAEDER, supra note 101, at 52. 133. Aka, Military, Globalization, and Human Rights, supra note 20, at 378. 134. SCHRAEDER, supra note 101, at 8. 135. According to this account by Professor Umozurike: The suffering of a slave started from the time he was captured . . . and detailed for the march to the slave market where he was sold to the intermediary slave-trader. The tortuous march then started to the coast or river port; the slaves were tied to each other, with chains around their necks and their hands tied behind their backs. There, the [W]hite slave trader was waiting for his wares. The slave port and island of Goree off Dakar . . . has a typical slave fortress–airy rooms upstairs for the traders, dark and insanitary dungeons downstairs for the slaves awaiting transhipment to the Americas. The slave ship itself was the ultimate in human degradation, for the slaves were packed like sardines and left in chains. Stubborn or sick ones were thrown overboard. . . . It was not unusual to have an [eighty percent] casualty rate in a boat. UMOZURIKE, supra note 23, at 16-17. 136. Id. at 17. The trade was utterly wasteful of African lives: for about “every 300 slaves that survived in the [New World], [about] 700 had died–500 during the raids and the march to the coast, 125 in slave ships, and [75] after landing in the New World.” Id. (citing 1 DOCUMENTS OF WEST INDIAN HISTORY 158-60; P. CURTIN, THE ATLANTIC SLAVE TRADE A CENSUS (1965)). 137. Id. 138. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 46-47; see also ISICHEI, GENESIS OF A RELATIONSHIP, supra note 65, at 43 (providing rough estimates of the number of slaves involved). 139. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 46-47. 188 [VOL. 48:165 Prospects for Igbo Human Rights slaves.140 Igbo slaves constituted a major proportion of the estimated 20 million people transported to the New World.141 European slave traders used techniques that gave little regard to human rights, such as kidnapping and “wars,” to acquire slaves in Igboland,142 and Igbo slaves shared quite a bit of the already recounted disabilities for slaves that characterized the middle passage, including deprivations of life, freedom, and unspeakable indignities. The casualties from the trade also included those Igbo slaves who, upon arriving in the Western Hemisphere, committed suicide, preferring death to captivity in a foreign land.143 In addition to the described general effects on African societies, the trade also had negative ramifications for the texture of Igbo life, effects, as the historian Professor Isichei points out, evident in evils such as human sacrifices, trials by ordeal, and the prevalence of kidnapping.144 Although Igbo elites, like their counterparts in other African societies, took part in the overseas slave trade, the collaboration does not minimize European culpability; the ignominious trade in humans was by and large “a one-sided relationship, founded and maintained on [European] threat of force.”145 As Basil Davidson explains, “Africa and Europe were jointly involved. . . . Europe dominated the connection, shaped and promoted the slave trade, and continually turned it to European advantage and to African loss.”146 Nonetheless, application of the human rights concept to the period poses a problem because human rights practice today, as opposed to freedom or the idea of rights, is a recent development that is traceable only to the formation of the UN system after World War II.147 In any case, violations during this period preceded the formation of presentday Nigeria and would therefore not qualify as abuses “in Nigeria.” 140. Id. at 45. The territory that later became Nigeria was once called the Slave Coast, in testimony to the huge slave activities that went on there for hundreds of years. MICHAEL CROWDER, THE STORY OF NIGERIA 53 (4th ed. 1978). 141. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 47 (articulating features which made Igboland “particularly susceptible” to slave raiding). 142. Id. at 45-47. 143. See discussion supra note 96 and accompanying text. 144. ISICHEI, GENESIS OF A RELATIONSHIP, supra note 65, at 59-60. 145. Elikia M’Bokolo, Who Was Responsible?, in GLOBAL STUDIES: AFRICA 201-02 (F. Jeffress Ramsay ed., 7th ed. 1997). 146. Id. (quoting BASIL DAVIDSON, BLACK MOTHER: THE YEARS OF THE AFRICAN SLAVE TRADE (1961)). 147. Aka, Military, Globalization, and Human Rights, supra note 20, at 375-76. 2004] 189 Howard Law Journal 2. British Colonial Rule in Nigeria In contrast to atrocities during the slavery era, violations that occurred during the colonial period qualify as abuses in Nigeria, given the evolution during this era of a government, albeit non-indigenous, charged with the responsibility of enforcing human rights. British control of Nigeria took place from the late nineteenth century until the country’s independence in 1960. Colonial control is inconsistent with any notion of human rights since it negates the right of people to determine their destiny for themselves rather than have foreigners do so for them.148 European colonial institutions were primarily “structures of exploitation, despotism, and degradation”;149 colonialism, wherever it existed in Africa, was something “imposed by violence, and maintained by its potential capacity for violence.”150 Europe had little in the way of a human rights plan for its colonies in Africa beyond their use as sources for raw materials for European industrialization and as markets for excess outputs.151 In addition to these general features, there were also some important senses in which British colonialism impacted Igbos differently as an ethnic group with negative ramifications for their individual and collective human rights. First, British “indirect rule” in Igboland destroyed the accountability that was an important feature of the traditional Igbo governance system.152 Second, because Igbos resisted colonialism more fiercely than any other Nigerian people, “[t]he conquest of Igboland took over twenty years of constant military action”153 with more room for abuse of Igbo human rights than would probably otherwise have been the case. Instances of violence targeted at the Igbo nation that occurred during the period of British colonial rule in Nigeria include the Aba Women’s War of 1929 (revealingly often referred to as “riots”), in which over fifty women were killed by British forces;154 and the bloodbath in 1948, minimized as the “Enugu 148. Id. at 371-81. 149. Robert Fatton, Jr., Liberal Democracy in Africa, 105 POL. SCI. Q. 455, 457 (1990). 150. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 119. 151. See generally LORD LUGARD, THE DUAL MANDATE IN BRITISH TROPICAL AFRICA (5th ed. 1965). 152. EZENWA-OHAETO, CHINUA ACHEBE: A BIOGRAPHY 220 (1997) (citing the views of Chinua Achebe). The classic work depicting the enormously devastating impact of British colonialism on Igbo traditional society is CHINUA ACHEBE, THINGS FALL APART (1959). 153. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 119 (emphasis added). 154. See COQUERY-VIDROVITCH, supra note 99, at 162-65. 190 [VOL. 48:165 Prospects for Igbo Human Rights Colliery Shooting Incident,” in which twenty-one coal miners were killed, and fifty-one wounded.155 Third, the foundation for the pattern of abuse of Igbo human rights with impunity by other ethnic groups, which came to characterize post-colonial Nigeria, was laid during British rule.156 Two incidents which require mentioning are the cold-blooded killings of hundreds of Igbos and the destruction of Igbo property and wealth, usually characterized as “riots,” that occurred in 1945 and 1953, respectively, in Jos and Kano,157 two metropolitan cities in the North with high populations of Igbos. A constitutional conference in 1954 acknowledged “the deep realities of the [Kano] confrontation.”158 The destruction also convinced British colonial authorities that Nigeria, “if it was to be a nation, must be a federation, with as few subjects reserved for the Central Government as would preserve national unity.”159 But little other corrective action took place; mere acknowledgment of the gravity of the attacks could only be cold comfort for those damaged by the unprovoked atrocities. Finally, for those enamored of the civilizing effect of European colonialism, British rule produced few socioeconomic human rights for Igbos. In 1918, the colonial government devoted only about 1% of its budget in Nigeria on education, an allocation that increased to only between 3% and 4% by the 1930s.160 These allocations stand little comparison, for example, to the Eastern Nigerian government, which, as a self-governing unit in 1958-1959, spent over 40% of its revenue on education.161 Because of the low colonial investment in education, Igbos had no university graduates until the 1930s.162 In short, as Professor Isichei states poignantly in her work on Igbo history, “The im155. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 204. 156. KIRK-GREENE 1, supra note 86, at 10, 12, 15; see also OHA-NA-EZE, PETITION, supra note 100, at 9 (persuasively arguing that the Civil War from 1967 to 1970 was a culmination of “the forces of ethnic particularism, which had been artificially repressed during the colonial regime”). 157. KIRK-GREENE 1 supra note 86, at 10; Aka, Nigeria Since May 1999, supra note 58, at 221 n.66. The problem with appellations like “riots” in describing what happened is that they give little sense of the extent of destructiveness involved nor of the premeditation and deliberateness preceding the particular act of violence. For example, the Kano uprising caused such damage as to “necessitate the deployment of troops on a scale unprecedented in the North since the pacification era of fifty years earlier.” KIRK-GREENE 1, supra note 86, at 10. Such destructiveness must have been anything other than the “spontaneous,” uncoordinated action of a “mob.” 158. KIRK-GREENE 1, supra note 86, at 10. 159. Id. (quoting the Colonial Secretary’s diary). 160. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 185. 161. Id. 162. Id. at 188. 2004] 191 Howard Law Journal portant thing to the historian of Igboland is the sobering reflection that after half a century of colonial rule and mission, over 80% of the population was illiterate.”163 B. From Independence to 1970: Atrocities Arising from Massacres and a Civil War Conducted in Willful Breach of the Geneva Convention Human rights atrocities against Igbos in the years after independence until 1970 arose from two successive, horrific tragedies, namely: (1) the wanton massacres of Igbos living in northern Nigeria by Hausa-Fulanis in 1966; and (2) the Nigerian government’s conduct of the civil war from 1967 to 1970. 1. The Massacres of 1966 The massacres followed a bloody counter-coup in July 1966, supposedly staged by northern soldiers to avenge what they believed to be an Igbo-inspired coup that had taken place six months earlier.164 163. Id. at 199. 164. Despite the ethnic distribution in the casualties of the January 1966 coup in favor of Igbos and against Hausa-Fulanis and Yorubas, uncontradicted findings since 1966 have not validated the allegation that this first military coup was Igbo-inspired. Rather, the coup was a wellmeaning attempted take-over that was poorly executed. The coup failed in the Eastern and MidWestern Regions and Lagos where no important politicians or military officers died compared to the Northern and Western Regions where the failed takeover was executed as planned and therefore resulted in the killings of important politicians and military officers. For one thing, it is inconceivable that Igbos would mastermind a coup to overthrow a government that was headed as President by one of their own, Dr. Nnamdi Azikiwe. Though under Nigeria’s then-prevailing parliamentary government, real power resided in the Prime Minister rather than the President, the President still served as a symbol of the entire country. At least the Nigerian federal government was then partly Igbo-headed and partly northern-(or Hausa-Fulani) led. A second reason why the coup could not have been Igbo-inspired was that the plotters desired to release Chief Obafemi Awolowo, a Yoruba leader, then doing time in prison for the treasonable felony of plotting to overthrow the government, and make him Prime Minister. An Igbo-inspired coup designed to assert Igbo domination of the country would not be making a Yoruba Prime Minister. Third, rather than just Igbos, other ethnic groups, such as the Yorubas, participated in the coup which, as already indicated, would have installed Yoruba’s Chief Awolowo as Prime Minister if it had succeeded. Fourth, Major-General Johnson Aguiyi-Ironsi, an Igbo, who became the Head of State and arguable beneficiary of the coup was not part of the coup plan and was only invited to take office by virtue of his position as the most high-ranking military officer and general commander of the armed forces at the time. Ironsi was, in fact, on the list of military officers the plotters penciled down for elimination. The army leadership under General Ironsi accepted the request of what was left of the badly-shaken political class to restore order on the condition that it hold power temporarily until matters stabilize. See Dr. Azikwe, Statement to the Press in England, Jan. 16, 1966, reprinted in KIRK-GREENE 1, supra note 86, at 127-29. Except for the North where the reaction was more mixed, public opinion across the country welcomed the news of the military takeover with joyous enthusiasm. IGBOKWE, supra note 88, at 12; ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 244. So, as it turned out, none of the grounds Hausa-Fulanis adduced for perpetrating the 1966 massacres have any validity. The plot 192 [VOL. 48:165 Prospects for Igbo Human Rights The counter-coup practically wiped out the officer corps of Igbos in the Nigerian army, including the Head of State, General Aguiyi Ironsi, who was abducted by the mutinous soldiers and murdered.165 The northerners blamed General Ironsi for promulgating a decree that unified the civil services of Nigeria, until then regionalized.166 The accompanying massacres claimed over 100,000 innocent Igbo civilians.167 The violence on Igbos included looting and destruction of valuable Igbo property and investments, such as homes, shops, schools, and businesses.168 These losses do not include permanent psychological and emotional traumas the horrific experience left on individuals lucky enough to survive the killings.169 On top of all of these, about 2 million Igbos living in northern Nigeria fled to the Eastern Region, leaving behind their jobs and whatever personal belongings that had not already been destroyed by their northern tormentors.170 was a purely military affair that had nothing to do with any imaginary Igbo conspiracy to eliminate northern control and dominate the country. OHA-NA-EZE, PETITION, supra note 100, at 10; see also Larry Diamond, Nigeria: Pluralism, Statism, and the Struggle for Democracy, in 2 DEMOCRACY IN DEVELOPING COUNTRIES: AFRICA 33, 43 (Larry Diamond et al. eds., 1988) (debunking the “ethnic motive” adduced for the coup and commenting that “the coupmakers struck primarily �to end a corrupt and discredited despotism that could only be removed by violence’ ”). Something was needed to stop the “endless course of chaos and destruction before January 15, 1966” that seized the country, IGBOKWE, supra note 88, at 11, and this first coup did that. Unlike the second coup, the first coup has sired a number of studies, some of them by the participants themselves. These include ADEWALE ADEMOYEGA, WHY WE STRUCK: THE STORY OF THE FIRST NIGERIAN COUP (1981) (Yoruba participant); BEN GBULIE, NIGERIA’S FIVE MAJORS (1981) (Igbo participant); ROBIN LUCKHAM, THE NIGERIAN MILITARY: A SOCIOLOGICAL ANALYSIS OF AUTHORITY AND REVOLT, 1960-1967 (1971); and OLUSEGUN OBASANJO NZEOGWU: AN INTIMATE PORTRAIT OF MAJOR CHUKWUMA KADUNA NZEOGWU (1987). 165. OHA-NA-EZE, PETITION, supra note 100, at 11 (estimating the number of Igbo military officers killed in the coup, including General Ironsi himself, to be over 300). 166. Like the allegation based on Igbo conspiracy to dominate the country, the ground for the mass massacres, anchored in the Unification Decree No. 34 of 1966, released by the Ironsi government, is also without foundation, given that subsequent military governments, all of them headed by non-Igbos, have used exactly the same command structure of unitary system conceived by General Ironsi. Id. at 10. 167. See OSAGHAE, supra note 87, at 63 (putting the number of casualties at 80,000 to 100,000, not counting the “several thousands more wounded”). 168. OHA-NA-EZE, PETITION, supra note 100, at 15; see also OSAGHAE, supra note 87, at 69. 169. See OHA-NA-EZE, PETITION, supra note 100, at 15. 170. See O’Brien, supra note 104, at 14; Ojukwu Rules Out Surrender, reprinted in 2 A.H.M. KIRK-GREENE, CRISIS AND CONFLICT IN NIGERIA: A DOCUMENTARY SOURCEBOOK 1966-1969, at 174 (1971) [hereinafter KIRK-GREENE 2]. To get a sense of how progressively nightmarish things became over time, by 1969, nearly 6 million refugees existed in the East. Conor Cruise O’Brien, Biafra Revisited, N.Y. REV. BOOKS, May 22, 1969 (quoting the Biafran Rehabilitation Commission, an agency that oversaw the welfare of refugees in Biafra). The massacres and resultant exodus to the East turned Igboland into a region of people “impoverished from top to bottom.” Diamond, supra note 77, at n.10. 2004] 193 Howard Law Journal The result was a mass exodus of dispossessed people, which, had it occurred across international borders, rather than domestically, would have been “classified among the great refugee problems of the twentieth century.”171 Although most of the deaths occurred in the North, killings of Igbos also took place in other non-Igbo parts of the country.172 Also, besides Hausa-Fulanis, other ethnic groups, including Binis, Idomas, Tivs, and Yorubas, also participated in the massacres.173 To allay Hausa-Fulani fear of Igbo domination, General Ironsi appointed a northerner, Yakubu Gowon, as second-in-command, and surrounded himself with northerners.174 These well-meaning gestures appeared to have served little purpose, just as the shift in control back to northerners did not stop the killings of innocent Igbos. Rather than stop the violence, Nigerian soldiers actually incited and participated in the killings175 while the national government now under General Gowon176 looked on. Some of the methods used in the killings were surpassingly brutal and barbaric.177 They included throat slitting, beheading, cutting open pregnant women and killing their unborn children, and burying people alive in deep wells. Consider also the unimaginable torture— plucking victims’ eyes out of their sockets, cutting their tongues, cutting their testicles, abduction of Igbo girls from their homes, rape, forcing Igbo women into sexual intercourse with mad men, and forcing Igbo girls into sex in leper colonies.178 The deliberate nature of 171. O’Brien, supra note 104, at 14. 172. OHA-NA-EZE, PETITION, supra note 100, at 13. 173. Id. Some Tivs turned fatally upon Igbos who passed through Tivland as they headed for Igboland. OHA-NA-EZE, PETITION, supra note 100, at 13. 174. The New York Times, in fact, initially incorrectly speculated General Ironsi’s downfall “as a second southern coup, this time engineered by more young Turks . . . reportedly dismayed by . . . [Ironsi’s selling out] to the Moslem North.” KIRK-GREENE 1, supra note 86, at 53 n.4; see also CHUKWUEMEKA ODUMEGWU OJUKWU, BIAFRA: SELECTED SPEECHES AND RANDOM THOUGHTS OF C. ODUMEGWU OJUKWU 4 (1969) (calling Ironsi’s policy toward the North “appeasement”). 175. See, e.g., ISICHEI, HISTORY OF THE IGBO PEOPLE. supra note 4, at 245 (quoting a book on Nigeria by a foreign scholar); WILLIAM D. GRAF, THE NIGERIAN STATE 45 (1988). 176. See infra note 186. 177. In its petition to the Oputa Panel, Oha-na-eze called the methods of killings “more bestial and gruesome than the worst holocaust in history.” OHA-NA-EZE, PETITION, supra note 100, at 15. One individual who testified at the Oputa Panel appeared to share the same view when he called the methods “the most sadistic and inhuman methods that made Jewish holocaust appear like mercy killings.” Uba Aham, Biafra, THENEWS, May 21, 2001, at 26. 178. OHA-NA-EZE, PETITION, supra note 100, at 14-15; see also NTIEYONG U. AKPAN, THE STRUGGLE FOR SECESSION, 1966-1970 xii-xii (1971); ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 245-46. Akpan, who was Chief Secretary in the Biafran Government during the civil war, described the “obvious horror” which struck some dignitaries from Western Nigeria who visited a public hospital in Enugu, the Eastern Nigerian and later Biafra capital, where the 194 [VOL. 48:165 Prospects for Igbo Human Rights the acts, coupled with the uncontradicted official participation of the Gowon government in the misconduct, or its complicit stance in the face of a legal duty to put a stop to the atrocities, supported the contention by people who viewed the massacres as pogrom, genocide, or ethnic cleansing.179 Each of these assessments finds justifications in the facts.180 As the Igbo cultural organization Oha-na-eze argued in its petition to the Oputa panel, the misconduct by the North and their accomplices against the Igbos was an unwarranted and unjustified “misplaced aggression.”181 Further, as the organization correctly observes, this was the only time in the entire history of a country marred by numerous coups that the ethnic kindred of the perpetrators of a coup were visited with killings.182 A 1968 study by a team of over sixty British subjects, including a former British governor of eastern Nigeria, into the causes and consequences of the Nigerian civil war, found the massacres to be “�an organized affair’” for which “�there can be no conceivable justification.’”183 The study noted that Igbos “were made to feel themselves rejected by the most brutal possible wounded and maimed were receiving treatment. According to him, the visitors “were all so shocked that they could not enjoy the hospitality offered them, and before returning home they surrendered” all money on them “to the Rehabilitation Commission.” AKPAN, supra, at xii. Akpan also wrote that “[t]he same feeling was evident in the team of top civil servants who visited Enugu from Lagos and were taken to the same hospital. But what they saw was only a fraction of the story.” Id. 179. Oha-na-eze uses the three terms, or at least two of them, interchangeably as the following sentence indicates: Both in scale and method of execution, the killings represented “the most heinous crimes in human history,” given their commission “with such absolute impunity that even dangerous vermins that exist outside the law seem to enjoy more rights. The crimes were as wide in scope as the genocide against the Jews but more sadistic and inhuman in implementation than the holocaust.” OHA-NA-EZE, PETITION, supra note 100, at 15 (emphasis added); see also id. at 11, 12, 18 (referencing the killings as “genocide”). Such assessment agrees with the findings of judicial inquiries such as the Onyiuke panel, after Hon. Justice G.C.M. Onyiuke, a Justice of the Court of Appeal, established by the Government of Eastern Nigeria. The commission based its findings on evidence it collected from 235 surviving victims and eyewitnesses. Id. at 11. The Eastern Nigerian government also assessed the mass killings as pogrom, see its 1966 publication under this title quoted in KIRK-GREENE 1, supra note 86, at 12-13, as well as “premeditated murder.” Id. at 449. 180. There was one account provided by the Eastern Nigerian government in a publication appropriately titled “pogrom” where Igbo student survivors of the mass killings from institutions of learning in Northern Nigeria had “all the fingers of their right hands chopped off—that would help in curtailing, they were told, the educational lead of Eastern Nigeria over the North.” KIRK-GREENE 1, supra note 86, at 13 (quoting GOVERNMENT OF EASTERN NIGERIA, POGROM 7 (1966)). 181. OHA-NA-EZE, PETITION, supra note 100, at 10. 182. Id. 183. Elbert et al., supra note 91 n.6 (Stanley Diamond replying to responses to his book review, Diamond, supra note 77). 2004] 195 Howard Law Journal means from the North and from Nigeria as a whole.”184 Revenge killings of northerners said to have taken place in Enugu and other parts of Eastern Nigeria,185 were a spontaneous response to the gruesomeness of the northern attack on victims who survived, and were dwarfed by the surpassing scale of violence and brutality perpetrated by northerners. 2. Conduct of the Biafran War a. Partition of the Nigerian Government and Surveying the Scale of Igbo Destructiveness in the Conflict Two regimes emerged in Nigeria that did not see eye-to-eye in the aftermath of the July 1966 coup and the massacres of Igbos. These were the Nigerian regime in Lagos under General Gowon that replaced the Ironsi government and the Eastern Nigerian government under General Chukwuemeka Odumegwu Ojukwu,186 headquartered in Enugu, which did not recognize the new government in Lagos.187 A hardening of positions took place between the two sides,188 both of which traded unfriendly charges and recriminations between each other.189 Attempts at peace talks within the country failed to break 184. Id. 185. AKPAN, supra note 178, at xii. 186. Both Ojukwu and Gowon were promoted Generals of their respective armies during the war, Gowon following the start of the civil war in July 1967 and Ojukwu in 1969. See OLADIMEJI ABORISADE & ROBERT J. MUNDT, POLITICS IN NIGERIA 18-19 (1998). The Nigerian army recognizes Ojukwu by his rank before the civil war, rather than as General. KIRK-GREENE 1, supra note 86, at 98. The two major figures in the civil war are addressed henceforth in this Article as General both in testimony to the fact of their promotion to this rank and because of the practice of referring to top soldiers, especially those who also held political office, as generals, regardless of their actual rank, in the same way that college instructors, irrespective of their real ranks, are often called “professors” in the United States. 187. Ojukwu’s position, which remained consistent throughout the war, was that Gowon headed “a government of rebels who had kidnapped their Supreme Commander [referring to the murdered General Ironsi]. To accept him would be the acceptance of permanent indiscipline within the Army.” See KIRK-GREENE 1, supra note 86, at 392; see also OJUKWU, supra note 174, at 157. 188. See KIRK-GREENE 1, supra note 86, at xii (stating that the Ojukwu government represented “a tenaciously felt desire for the extension of the right to self-determination beyond its colonial context,” and the Gowon government “a no less fervently held and a legitimately founded belief in the indivisibility and integrity of �one Nigeria’ ”). 189. See id. at 13 (conveying that the Hausa-Fulani-dominated Gowon government accused Igbos of being “militantly chauvinistic,” creating “apprehension in the minds of others,” while the Ojukwu government accused Hausa-Fulanis of nursing the mind frame that “there can be no peace and unity in Nigeria unless the country is ruled and dominated by the North”). See also id. at 389 where during a conference, General Ojukwu charged: “[T]he Northern idea of unity is that of horse and rider, the horse being the rest of the country and the rider being the North . . . . The Ironsi regime was overthrown because it happened to be headed by a person who was not of 196 [VOL. 48:165 Prospects for Igbo Human Rights this polarization.190 A peace conference in Aburi, Ghana, in 1967, held at the instance of the Ghana government at which the parties worked out an agreement for a loose confederal government,191 initially appeared to hold the promise of breaking the deadlock. Alternatively, not only did General Gowon abrogate the agreement,192 but he also subsequently proceeded to unilaterally carve the country into twelve states,193 without consulting the Eastern Nigerian government.194 It was in this setting that the Eastern Nigeria Consultative Assembly, a kind of legislature,195 instructed the Ojukwu govNorthern origin . . . . The pogrom had been directed against Easterners because the North saw in them a source of obstacle to their eternal domination of the country.” 190. See Summary of Proposals, reprinted in KIRK-GREENE 1, supra note 86, at 245-54. 191. See Official Records of the Minutes at the Meeting in Aburi, reprinted in KIRKEGREENE 1, supra note 86, at 315-40. 192. See Statement, Government of Tanzania, Tanzania Recognizes Biafra (Apr. 13, 1968), reprinted in KIRK-GREENE 2, supra note 170, at 209 [hereinafter Tanzania Recognizes Biafra] (“[T]he necessity for an arrangement which would take account of the fears created during 1966 was accepted at Aburi, and renounced thereafter by the Federal Authorities.”); see also General Gowon’s broadcast to Nigerians emphasizing why “the idea of a temporary confederation” agreed to at Aburi would be “unworkable,” reprinted in KIRK-GREENE 1, supra note 86, at 30610. Gowon stated that he was “confident that Nigerians can agree on a constitution which will preserve the integrity of the country and satisfy the aspirations of the vast majority of our people.” He did not accomplish this goal. 193. See Gowon’s Broadcast to the Nation Dividing Nigeria into Twelve States (radio broadcast, May 27, 1967), reprinted in KIRK-GREENE 1, supra note 86, at 444-49. 194. The state creation exercise divided the Northern Region into six and the Eastern Region into three while leaving the Western Region and Mid-Western Region intact. The MidWestern Region was too small to be carved into more than one state. But General Gowon needed to ingratiate the Yorubas whose leaders’ support he would need in the war to come. The exercise put Igbos, bereft of all access to the sea, into one state denoted the East Central State and created two states for eastern minorities with a combined numerical population much less than the Igbos. Before 1967, these minorities advocated for only one state, known as the Calabar-Ogoja-River (or COR) state, but by this exercise General Gowon gave them two, one state more than they requested. The Eastern Nigerian government portrayed the decree implementing the exercise as a “one man coup d’etat,” adding that the Eastern Region viewed itself as “neither a part of [Nigeria] nor a nation in her own right–a state of affairs which the [14] million people of Eastern Nigeria could not continue to suffer.” KIRK-GREENE 1, supra note 86, at 97. The state creation exercise put one part of Igbos into Rivers State, another into the Mid-West, yet others into Cross River State, and left the rest of Igbos isolated and landlocked in what was called East Central State. It was, according to Oha-na-eze, an act “calculated to paralyze” the Igbos “and incite [their] neighbors against” them. OHA-NA-EZE, PETITION, supra note 100, at 16. For similar assessments of this measure, see KIRK-GREENE 1, supra note 86, at 97 (calling the state creation exercise “a ploy to strike at the very concept of a viable, sovereign Biafra and reduce it to nothing more than an impoverished, landlocked, over-populated Ibo province,” but also noting: “Gowon’s shrewd move to block secession turned out to be the final pressure on the trigger releasing the explosion”); Senator Eugene McCarthy, Speech Urging American Intervention, May 16, 1969, reprinted in KIRK-GREENE 2, supra note 170, at 401, 402-03 [hereinafter McCarthy, Speech] (calling the twelve-state structure an action designed to confine Igbos “to a crowded, infertile region smaller than their ancestral homeland, with no access to the sea” to “break their influence”). 195. Professor Kirk-Greene called the Consultative Assembly “the parallel to what the other Regions had called leaders of thought.” KIRK-GREENE 1, supra note 86, at 59. This is an unfair 2004] 197 Howard Law Journal ernment to declare Eastern Nigeria independent as the Republic of Biafra “at the earliest practicable date,”196 a mandate General Ojukwu implemented three days later on May 30, 1967.197 Easterners felt they were leaving a country that no longer wanted them;198 Igbo resolve to leave Nigeria grew in the wake of the pogroms.199 In the language of one Biafran government statement, “Living together with Northerners had been intolerable from the beginning: By the end of 1966 it had become impossible.”200 Following General Gowon’s rejection of confederation as unworkable, university students in Eastern Nigeria demonstrated with placards proclaiming “the push is complete,” a reference to General Ojukwu’s promise that the East would not secede unless it was pushed out.201 Judging by demonstrations all across Eastern Nigeria favoring separate existence, “[i]t was . . . obvious by May 1967 that most Easterners preferred secession to any other form of association with the rest” of Nigeria.202 Easterners based their decision to leave Nigeria on liberal political philosophy (they are holders of “inalienable rights”) and immediate security needs (they “can no longer be proassessment that fails to give credit where it is due to the pronounced democratic quality of the Eastern Nigeria and later Biafran government, in contradistinction to Nigeria where a military junta kept all power and did not bother to engage in any pretense of basing governmental decision on any input from the citizenry. One U.S. senator who lambasted “the bankruptcy of American policy of �one Nigeria–at any cost,’” was convinced that “Biafra . . . has demonstrated that it represents the interest of its people.” McCarthy, Speech, supra note 194, at 405. 196. OJUKWU, supra note 174, at 191-94; �The Republic of Biafra’: Resolution by the Eastern Region Consultative Assembly (adopted May 27, 1967), reprinted in KIRK-GREENE 1, supra note 86, at 449-50. 197. See OJUKWU, supra note 174, at 193-96; Ojukwu Secedes and Declares the �Republic of Biafra’ (May 30, 1967), reprinted in KIRK-GREENE 1, supra note 86, at 451-53. May 30 has symbolic importance for Igbos and other Easterners since, as Professor Kirk-Greene correctly points out, “this was the anniversary of the bloody riots against the Igbo in the North which Biafra now regarded as the first of the intimidating moves to cast her bodily out of” Nigeria. KIRK-GREENE 1, supra note 86, at 97-98. 198. See id. at 8 (recounting the Eastern Nigerian position that “Biafra did not secede: Biafra was pushed out”). 199. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 246 (“Before September [1966], only a small minority had advocated secession. After September, it was probably the wish of the majority.”). 200. Biafran Memorandum Circulated to Heads of State at O.A.U. (Sept. 1967), in KIRKGREENE 2, supra note 170, at 168. 201. KIRK-GREENE 1, supra note 86, at 73. For the source of Ojukwu’s “complete push” statement, see the text of his March 13, 1967 conference, in id. at 393. The Biafran leader said push would become complete if Eastern Nigeria was either attacked militarily or via an economic blockade. Id. 202. IGBOKWE, supra note 88, at 14; see also Diamond, supra note 77 (observing that “[e]very hamlet geared itself to a war economy: even young children declared themselves Biafran and stood guard, shouldering wooden guns, at village cross-roads.”). 198 [VOL. 48:165 Prospects for Igbo Human Rights tected . . . by any government based outside Eastern Nigeria”)203 that, properly considered, tie into a singular hard fact: Igbos and other Easterners have “certain inalienable rights which can best be preserved” only by an Eastern government. The Nigerian government responded to the declaration of independence with a war it started on July 6, 1967.204 General Gowon billed the war as a surgical “police action,” something in the nature of a blitzkrieg that will require “only a few hours.”205 In actuality, however, his government underestimated the depth of Igbo umbrage arising from the mass massacres and the Igbo will to resist, and the war dragged on until January 15, 1970,206 1000 days after it started and 4 years after the first military coup in Nigeria.207 In resorting to force, the Nigerian government acted contrary to the Aburi agreement that forbade the use of force in resolving the dispute.208 It also ignored the advice provided by some important outside entities that the use of force could only result in avoidable “estrangement and bitterness . . .”209 The Biafran War claimed the lives of about three million 203. OJUKWU, supra note 174, at 194. 204. See Ojukwu Exhorts His People (B.B.C. radio broadcast, July 20, 1967), in KIRKGREENE 2, supra note 170, at 148 (“Two weeks ago at five o’clock in the early hours of Thursday July 6, Gowon and his Nigerian junta started the long-promised and awaited invasion of Biafra, thrusting almost simultaneously at four different points . . . .”); see also TOYIN FALOLA ET AL., THE MILITARY FACTOR IN NIGERIA 1966-1985 24 (1994). 205. KIRK-GREENE 1, supra note 86, at 111. 206. See Lt.-Col. Effiong Announces Surrender of Biafra (Biafran Radio Broadcast, Jan 12, 1970), reprinted in KIRK-GREENE 2, supra note 170, at 451-52; General Gowon Welcomes Biafra’s Surrender (Radio Broadcast, Jan. 12, 1970) (Federal Ministry of Information Press Release No. 31/1970), reprinted in KIRK-GREENE 2, supra note 170, at 451-52. 207. KIRK-GREENE 2, supra note 170, at 462. Detailed narrative on the military events connected with the Biafran war is outside the scope of this Article. More-or-less objective accounts of the conflict include: ZDENEK CERVENKA, THE NIGERIAN WAR 1967-1970 (1971); FREDERICK FORSYTH, THE BIAFRA STORY (1969); and JOHN DE ST. JORRE, THE BROTHERS’ WAR: BIAFRA AND NIGERIA (1972). Other accounts, of course, include Professor Kirk-Greene’s two-volume chronicle, KIRK-GREENE 1, supra note 86, and KIRK-GREENE 2, supra note 170, and STREMLAU, THE INTERNATIONAL POLITICS OF THE NIGERIAN CIVIL WAR 1967-1970 (1977), which focuses on the international politics of the war, see infra note 232, all of which are cited in this study. Finally, a portion of ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 241-56, Professor Isichei’s book on Igbo history, appropriately titled “The Uses of [Igbo] Autonomy,” integrates summary commentaries on the actual evolution of the war. 208. Gowon conceded that “[i]t is true that at Aburi we all signed an undertaking not to use force in an attempt to settle our present difficulties in the country,” but that he was “in honor bound to defend the integrity of the country even if we have to use force.” Gowon’s Private Address to Heads of African Diplomatic Missions in Lagos, Mar. 1, 1967, reprinted in KIRKGREENE 1, supra note 86, at 372. 209. Statement on Arms Supplies by the Church of England (Aug. 18, 1967) (issued on behalf of British Missionary Societies, Church Missionary Society, Church of Scotland Foreign Mission Committee, and the Methodist Missionary Society), in KIRK-GREENE 2, supra note 170, at 152. 2004] 199 Howard Law Journal Igbos,210 displaced or turned several millions into refugees,211 and completely ruined a region which, before the war, was adjudged one of the fastest growing economies in the world.212 b. Assessing Allegations of Genocide Regarding the Conduct of the War The conflict in Biafra was a civil war the Nigerian government conducted in willful breach of the UN Geneva Convention on the proper conduct of war. Although it makes little sense, war in and of itself, even when bitterly fought, does not amount to a violation of human rights, if it is conducted according to the international rules for the “humane” conduct of war laid out in the Geneva Convention.213 Some of the diverse, vicious tactics the Nigerian side used to fight the war included burying people alive; incessant, indiscriminate bombing of open markets and other non-military targets; deliberate destruction of houses, farms, livestock and other civilian properties; economic blockades;214 and torture and other mistreatment of war prisoners. International outcry against the excesses of Nigerian troops concerning treatment of Biafran prisoners of war and civilians, including protests by the International Red Cross, compelled the Nigeria government to draw a Code of Conduct for its soldiers.215 General Gowon strove to assure the world that the war was designed only to “quell a rebellion and not to destroy our people”216 whereas his law enforcement personnel operated on the expressed belief that the Igbos “must be reduced considerably in number.”217 An “International Observer Team” unilaterally set up by Nigeria conceded to allegations of “treatment of Biafran prisoners of war in a 210. See Alexander A. Madiebo, Obasanjo, The Civil War, and Resource Control, VAN(Lagos), June 29, 2001. General Madiebo commanded the Biafran army during the war. 211. See OSAGHAE, supra note 87, at 69. 212. See id. at 172 (disclosing that the war left Igboland “in ruins, with infrastructure and utilities destroyed and severe shortages of shelter, food, clothing, and medicine”). 213. The Geneva Conventions consist of international treaties dating back from 1864 and amplified by numerous changes, some as recent as 1978, dealing with a multiplicity of topics, including the treatment of civilians during war, humane treatment of prisoners of war, and treatment rules relating to care of the wounded and sick. See GERHARD VON GLAHN, LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW, chs. 22, 24, 25-26 (7th ed. 1996). 214. An estimated 2 million Igbo children suffered permanent intellectual retardation due to malnourishment arising from the economic blockade against Biafra. OHA-NA-EZE, PETITION, supra note 100, at 24. 215. Id. at 22. 216. General Gowon, Address to 6th Assembly O.A.U. Heads of State (Sept. 6, 1969), in KIRK-GREENE 2, supra note 170, at 429. 217. O’Brien, supra note 104, at 14. GUARD 200 [VOL. 48:165 Prospects for Igbo Human Rights manner inconsistent with the Geneva Convention,” as well as “some evidence of the non-observation of the Convention.”218 These and other atrocities perpetrated by Nigerian troops were outside “the legitimate demands of combat and conquest.”219 These savageries reinforce the perception by some observers that the war was a continuation by other means of the massacres of 1966.220 This was the position of the UN International Committee in the Investigation of Crimes of Genocide, which investigated the complaint of the Biafran government that the conflict was a genocidal war meant to wipe out Igbos. The Committee interviewed 1,082 people representing all of the actors from the two sides to the civil war.221 Its finding, in the words of its principal investigator, Dr. Mensah of Ghana, read: “Finally I am of the opinion that in many of the cases cited to me hatred of the Biafrans (mainly Igbos) and a wish to exterminate them was a foremost motivational factor.”222 Given the sheer scale of the number of Igbos killed, the civil war would still arguably have been a genocidal war, even if the Nigerian side had not adopted the illegal tactics it employed in conducting it. The 3 million Igbos who perished in the war represented a third of the Igbo population at the time.223 The Biafran war is ranked as “the bloodiest civil war of the twentieth century.”224 As one perceptive observer points out, “[n]o Igbo family in the world escaped the immediate or long-term impact and consequences of this holocaust.”225 More people died in Biafra than the United States lost in all the conflicts it has fought in the course of its entire history, including the American civil war (1861-65).226 218. OHA-NA-EZE, PETITION, supra note 100, at 23. 219. Id. at 18. 220. Id. at 18; see also Herbert Ekwe-Ekwe, Obasanjo’s Obsession with Biafra Versus Facts of History, US AFRICA ONLINE, available at http://www.usafricaonline.com/ekweekwe.biafra.html (last visited July 8, 2004) (contending that the Biafra conflict was a war the Nigerian government and its allies waged “to overwhelm and destroy the corporate ability of the Igbo people to resist an aggression triggered” by the horrific massacres). 221. See OHA-NA-EZE, PETITION, supra note 100, at 23 (discussing an investigation of the International Committee in the Investigations of Crimes of Genocide). 222. Id. at 23. 223. Ekwe-Ekwe, supra note 220. 224. See KIRK-GREENE 1, supra note 86, at vii; see also KIRK-GREENE 2, supra note 170, at 462. (calling the war “the biggest, best-weaponed, and bloodiest war in the whole history of Black Africa”). 225. Ekwe-Ekwe, supra note 220. 226. For the statistics of U.S. war casualties, see Patrick T. Reardon, As Bodies Pile Up, Support Can Slip, CHI. TRIB., Mar. 30, 2003, at 8. For a description of the casualities in Biafra, see OHA-NA-EZE, PETITION, supra note 100, at 1-23. 2004] 201 Howard Law Journal One Swedish nobleman, touched by the scale of Igbo suffering, stated, “�it would take the world fifty years, at least, to understand what happened.’”227 The loss easily surpassed the 3 million deaths inflicted on the Congo in the nineteenth century by King Leopold of Belgium whose troops ravaged Central Africa searching for ivory and diamonds.228 Some military commanders who observed the ruthless destruction that Nigerian troops visited on Biafra believe that a foreign occupying force would have shown more sympathy than these troops did.229 References have been made to abuses Biafran forces were alleged to have committed during their brief occupation of the Midwest. Any abuses that might have occurred, however, were reactions in the ordinary course of the resistance of brutal aggression; they could never compare to the genocidal proportions of the Nigerian side and, therefore, could not minimize federal atrocities. Not all Nigerians took part in violating Igbo human rights and some, such as the playwright Wole Soyinka, who called for a cease-fire in the war, actually endured incarceration for their pro-Biafra sentiments.230 However, part of the tragedy of the war over Biafra was the dire paucity of dissenters within Nigerian society to temper the wanton war tactics of the Nigerian federal government and stem the scale of Igbo killings.231 227. EZENWA-OHAETO, supra note 152, at 153 (quoting When von Rosen, a Swedish Count). 228. See generally ADAM HOCHSCHILD, KING LEOPOLD’S GHOST (1999). As tragic as it still is, the Belgium genocide encompassed peoples from a multiplicity of nations that today form the Democratic Republic of the Congo, Republic of Congo, Rwanda, Burundi, the Central African Republic, and Angola, whereas the loss from the Biafran war weighed heavily on one single nation, the Igbos. Ekwe-Ekwe, supra note 220. With about 700 people per square kilometer in some places, Igboland ranks among the most densely populated land areas in the whole of Africa next only to the Nile Valley. OHA-NA-EZE, PETITION, supra note 100, at 5. So the war was waged in its totality in a very confined expanse of territory, where the victims did not have access to a neutral or friendly contiguous state for refuge or succor. IGBOKWE, supra note 88, at 14. Biafra was “an island surrounded by a sea of hostile neighbors,” including the Cameroons, which was strongly pro-Nigeria. Ekwe-Ekwe, supra note 220. 229. See, for example, this account documented by a Scottish newspaper in Dec. 1967 where Nigerian soldiers had two young men in civilian dress the soldiers suspected to be Igbos appear before them. “The young lads looked like secondary school students. With the Northern soldiers was an Efik-speaking soldier. It was his duty to question prisoners [i]n the Efik language. His job was to see if any spoke Efik with an Ibo accent. These two young lads did. The soldiers took aim and they were shot on the spot.” OHA-NA-EZE, PETITION, supra note 100, at 19. 230. See generally WOLE SOYINKA, THE MAN DIED: PRISON NOTES OF WOLE SOYINKA (1972). 231. What Professor Soyinka did was so otherworldly at the time that some foreign analysts mistook him for Igbo. See O’Brien, supra note 104, at 17, n.1 (mistakenly but nonetheless significantly, calling the world-class playwright Igbo, even though Soyinka is Yoruba). 202 [VOL. 48:165 Prospects for Igbo Human Rights c. The Role of Major Powers in the Defeat of Biafra The support that major powers gave to Nigeria was a critical factor in the defeat of Biafra. These powers include Britain and the Soviet Union whose governments supplied arms to the Nigerian regime. Egypt and East Germany, then Soviet allies, served as proxies for the Russians, supplying pilots who helped Nigerian troops bomb civilian targets in Biafra. France had sympathy for Biafra but extended no formal diplomatic recognition. Also, French arms given to the embattled Ojukwu regime, funneled indirectly through French allies in West Africa, never amounted to anything more than a trickle. The U.S. government stayed away from taking any side in the dispute, citing its ongoing entanglement in Vietnam and its deference to Britain as the former colonial overlord of Nigeria.232 Ironically, the major foreign powers that supported Nigeria were moved “by a complex set of economic calculations, and a realistic assessment of who was likely to win,”233 not by any Biafran argument of self-determination. They maintained their support for Nigeria in the face of overwhelming sympathy for Igbos within their very populations.234 For all the efforts of the U.S. government to distance itself from the dispute, Biafra, somewhat like Vietnam, turned out to be an issue that divided American politicians.235 Some of the strongest Western advocates for Biafra during the war were U.S. politicians. These top politicians included Mr. Richard Nixon, who, as a presidential candidate in 1968, lambasted the American government concerning its “wringing of hands about what is going on” in Biafra.236 President Nixon lamented, “[t]he destruction of an entire people is an immoral 232. For extensive analysis of the role of these and other foreign powers in the conflict, see generally STREMLAU, supra note 207. 233. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 247. 234. In both France and the United States, individuals took their own lives in protest of the killings of Igbos and in protest of their governments’ support for Nigeria. See, e.g., OJUKWU, supra note 174, at 387; see also ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 247 (disclosing that the Igbo “case won sympathizers all over the world”). 235. In addition to Richard Nixon, see President Richard M. Nixon, Call for American Action on Biafra (Markpress Release no. Gen. 300), reprinted in KIRK-GREENE 2, supra note 170, at 334-35 [hereinafter Nixon, Call for Action], and Eugene McCarthy, see infra notes 238-48, George Wallace also took a position in the war but in favor of Nigeria and against the Igbos, see supra note 97. Also before his death, the civil rights leader Dr. Martin Luther King Jr., also privately volunteered his services as mediator in the war. KIRK-GREENE 1, supra note 86, at 87. 236. Nixon, Call for Action, supra note 235, at 334-35. 2004] 203 Howard Law Journal objective, even in the most moral of wars. It can never be justified; it can never be condoned.”237 But by far the most outstanding of these American politicians was Senator Eugene McCarthy who in a speech to Congress on May 16, 1969, lambasted “�the bankruptcy’ of American policy of �one Nigeria—at any cost,’”238 that “has resulted in our accepting the deaths of a million people as the price for preserving a nation that never existed.”239 Senator McCarthy believed Biafra “ha[d] demonstrated that it represents the interest of its people.”240 Therefore, Senator McCarthy advised the U.S. government to support the embattled republic’s right to a separate national existence, extend diplomatic recognition, help de-escalate great-power involvement in the conflict, promote negotiations to resolve the conflict, and assist in humanitarian relief for its suffering people.241 He disagreed with the position that American recognition of Biafra would constitute intervention into African affairs, stating that non-recognition is also intervention and that, at any rate, the U.S. government had already, in various ways, repeatedly effectively intervened in Nigerian affairs.242 Some examples included backing the Nigerian government after it abrogated the Aburi agreements and by exerting pressure on a number of African countries not to recognize Biafra. Senator McCarthy believed that sacrifice “of several million people” to defend “the boundaries of Nigeria imposed artificially by a colonial power” was too high a price to pay for national unity.243 The U.S. Senator lamented, “[a] strategy of siege” designed to produce military victory that has instead “produced massive starvation unparalleled in modern warfare.”244 Taking his audience through the entire history of the country and of the Biafran conflict, he noted that the Gowon government unilaterally abrogated the agreement reached at Aburi for a confederated union that could have resolved the conflict.245 He dismissed the twelve-state system General Gowon announced in place of a confederation which he 237. 238. 239. 240. 241. 242. 243. 244. 245. 204 Id. at 335. McCarthy, Speech, supra note 194, at 403. Id. at 401. Id. at 405. Id. at 403. Id. at 405. Id. at 401. Id. at 402. Id. [VOL. 48:165 Prospects for Igbo Human Rights saw as a device put in place to hurt the Igbos deliberately.246 Senator McCarthy foresaw mistreatment of Igbos, building on the state creation exercise that would take place after the war. The “one Nigeria” of the future would have to be postulated upon the inequality of different tribes. The Ibos and other eastern tribes who cooperated in forming Biafra would be stigmatized and penalized in many ways. The Ibos would . . . be confined to a crowded, infertile region smaller than their ancestral homeland, with no access to the sea. They would be deprived of all but token participation in the reconstituted unitary state. At a recent planning conference in Nigeria, it was declared that it would be [twenty-five] years before Ibos can be given positions in Nigeria.247 Senator McCarthy addressed possible objections against an independent Biafra and dismissed them one after the other.248 It was not without good reason that, as Professor Kirk-Greene noted, the U.S. Senator’s presentation “sent a shiver down the [Nigerian] Federal spine.”249 d. Key Lessons the War Held for Nigeria One Nigerian historian opined that the civil war “confirmed the futility and inadequacy of secession as the solution to attendant 246. It was “particularly designed to confine the Ibos to a small area and to break their influence,” id. at 402, and it would confine Ibos “to a crowded, infertile region smaller than their ancestral homeland, with no access to the sea.” Id. at 403. 247. Id. at 405. 248. These include the objections of (1) economic viability, and (2) possible Igbo domination of minorities. With respect to the first, the Senator argued that eliminating the hostility generated by an artificial political union could release energy for economic development. “Certainly the technical ingenuity of the Easterners will be stimulated by the independence of Biafra.” Id. at 404. Also, he said, independence does not preclude economic association, pointing up the willingness of Biafrans “to co-operate with Nigeria on vital problems of transportation and communication, particularly the use of the Niger River.” Id. (referring to a blueprint on future association with the rump of Nigeria the Biafran government released in a Biafran Memorandum on Proposed Future Association (Aug. 29, 1967). The text of the memorandum is contained in KIRK-GREENE 2, supra note 170, at 163-65). But in fact, he said, “[a]lmost any advantage that can accrue from �one Nigeria’ can also be achieved by regional economic arrangements such as a common market and a regional development board for redistributing revenues.” McCarthy, Speech, supra note 194, at 404. But assuming not, “it is clear that Nigeria is viable without the eastern region,” given its “great resources,” and the fact that “it has been able to forego eastern oil revenues for [two] years while fighting a costly war,” among other reasons. Id. Turning to objection number two, he said “the national preference of the minority tribes is a question which can be settled through plebiscites supervised by the United Nations or the Organization of African Unity.” Id. But “[e]ven without some minority tribes, Biafra would be a populous country by African standards, larger than three-fourths of the African countries. Only [ten] of some [forty] African countries would be larger.” Id. 249. KIRK-GREENE 2, supra note 170, at 119. 2004] 205 Howard Law Journal problems of post-colonial federalism in Nigeria”250 without indicating what technique would have been adequate as a solution. Such blaming of “secession” is an unsophisticated understanding that overlooks a multiplicity of factors. For one thing, Nigeria achieved independence as “a federation rather than a nation, with as yet little substance to the . . . label of �Nigerian’ and with future hope rather than present truth” of indissoluble personhood.251 For another, the conflict was a culmination of numerous crises and contradictions, going back into the colonial past, that buffeted the country, including, to illustrate with events in the post-independence period, the persistent troubles and violence in the Western Region, controversies over the accuracy of census figures, a devastating workers’ general strike in June 1964, and a dispute over the rigging and other electoral irregularities that characterized the conduct of the 1964 general elections.252 Third, as one important study on this topic counsels, the Igbo declaration of independence must be judged 250. FALOLA ET AL., supra note 204, at 30. For a contrarian position, see Beko RansomeKuti, who, in a survey of Nigerian history in which he touched on the fate of Igbos in the aftermath of the massacres, stated that “our collective experience since 1960 leaves no one in any doubt that the decision to secede by the Igbo was proper and correct,” adding: You cannot kill tens of thousands of a people, take over the government with arms and expect them to stay around like sitting ducks especially after unilaterally abrogating a negotiated settlement. The principle of self-determination is now so well established in international law that instead of issues degenerating into civil war, this is an option that has to be held in front of us at all times. Beko Ransome-Kuti, Vision for New Nigeria, THENEWS, Dec. 20, 1999, at 48. He inveighed against Nigeria’s 1999 Constitution, which was written for the country by the departing military without citizen input or participation. The pre-amble of the Constitution declared: “ �We the people of the Federal Republic of Nigeria having firmly and solemnly resolved to live in unity and harmony as one indivisible and indissoluble Sovereign Nation . . . do hereby make, enact and give to ourselves the following constitution.’ ” Id. at 49. He calls the preamble a lie designed to foreclose the right to self-determination, adding that: The people of Nigeria never sat or met anywhere, not to talk of solemnly agreeing to anything. As a matter of fact some sections of the country have been through such degrading and painful times in Nigeria that they might well prefer to live alone or join a more viable and conducive enterprise rather than continue with the present arrangement. Id. Part of those “some sections of the country” Ransome-Kuti refers to in his essay are Igbos. 251. KIRK-GREENE 1, supra note 86, at 12; see also McCarthy, Speech, supra note 194, at 401 (calling Nigeria “a nation that never existed”). 252. See KIRK-GREENE 1, supra note 86, at 15-23; Larry Diamond, Nigeria: The Uncivic Society and the Descent into Praetorianism, in POLITICS IN DEVELOPING COUNTRIES: COMPARING EXPERIENCES WITH DEMOCRACY 424-27 (Larry Diamond et al. eds., 1995) [hereinafter POLITICS IN DEVELOPING COUNTRIES]. For an understanding going back into the colonial formation of the country, see LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION 164 (1978) (conveying that “[t]he events constituting the proximate cause of the Ibo separation were very much a product of the ethnic hostilities that had blighted Nigerian political development all along”); OHA-NA-EZE, PETITION, supra note 100, at 9 (portraying the civil war as a culmination of “the forces of ethnic particularism, which had been artificially repressed during the colonial regime”). 206 [VOL. 48:165 Prospects for Igbo Human Rights against the background of a “history of volatile inter-group rivalry and conflict, in which . . . the threat of disassociation was a commonplace instrument of political coercion.”253 Particularly, the common currency of secessionist talk in all of the Nigerian regions right up to the actual separation of the East in 1967 gave the Biafrans a reasonable ground for believing that secession was recognized in Nigeria as a legitimate method of altering one region’s relationship to the others, or at least that it would not be strenuously opposed.254 Igbos were “certainly justified in thinking that some rearrangement of the political structure toward a looser union of the regions was in order when the head of the federal government, General Gowon, publicly expressed his belief that �the basis for unity is not there.”255 Although unsuccessful, the secession was a legitimate act of selfdetermination by the Biafran people.256 There is no stronger evidence to support Igbo “overwhelming desire for independence” than their willingness to endure nearly three years of civil war, disease, and famine to achieve that independence.257 Few perceptive observers can miss the tragic irony of the Biafran war. President Nyerere of Tanzania noted that Nigeria started a war to crush the Biafrans in their own home.258 Another analyst reflected that Igbos proudly called themselves Nigerian nationalists at a time when there was no Nigerian nation and when no other group thought in these terms. “Now that they have in very truth formed a nation on their own soil under the pressures of history they are in the gravest danger of being put to death in the name of the nation which they once invented.”259 Much more basically, as one group of British citizens poignantly pointed out, “�having seen her people driven out by the rest of Nigeria and hunted back to their homeland, [Igbos] found Nigeria at war with 253. BUCHHEIT, supra note 252, at 164. 254. Id. at 174. 255. Id. 256. See id. at 173-76. 257. Id. at 174. 258. See generally Tanzania Recognizes Biafra, supra note 192; President Julius Nyerere, Why We Recognized Biafra (printed in OBSERVER, Apr. 28, 1968, and L.A. TIMES, May 5, 1968), reprinted in KIRK-GREENE 2, supra note 170, at 211-13. Nyerere insisted “every people must have some place in the world where they are not liable to be rejected by their fellow citizens.” Id. at 211. For similar positions, see Statement on British Arms Supplies from Biafran Students in U.K., reprinted in KIRK-GREENE 2, supra note 170, at 150-51, and Biafra Sees Itself as David, reprinted in KIRK-GREENE 2, supra note 170, at 171-72. 259. O’Brien, supra note 104, at 20. 2004] 207 Howard Law Journal her to preserve the integrity of a Federation where her people could no longer live.’”260 Commentators who take the posture that “might is right” fail to realize that it is morally unjustified to use coercion to suppress a campaign for self-determination,261 as the Nigerian government did, especially one like the Biafrans’ that was driven by an “overwhelming desire for independence.”262 Also, as recent events have proven, force only temporarily suppresses the burning desire of an oppressed people to self-determine their political destiny; it does not kill it.263 The secession and attendant civil war underscored the fact that blatant violation of the individual and collective human rights of any group can have far-reaching consequences for the geographical integrity of a country.264 The war taught Nigeria that “they cannot hurt [Igbos] with impunity,”265 and that Igbos, like other injured peoples throughout history, will “resort to arms in their self-defense where peaceful negotiations fail.”266 The civil war was a major developmental setback for Nigeria; some, like Professor Mazrui, rank the catastrophe as a factor preventing the country from living up to its full potential as a leader in Africa.267 But the real setback was the failure of post-war Nigerian leaders to use the opportunity the conflict afforded “to secure the peace” and “lay a solid foundation for a prosperous future” for all its citizens, Igbos as well as non-Igbos.268 260. Elbert et al., supra note 91, at n.6 (Stanley Diamond replying to responses to his book review, Diamond, supra note 77). 261. See generally ALLEN BUCHANAN, SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT SUMTER TO LITHUANIA AND QUEBEC 27-28 (1991) for an elaboration of this argument around which the book itself revolves. 262. BUCHHEIT, supra note 252, at 174. 263. See infra Part VII(A)(5). 264. Ransome-Kuti, supra note 250, at 48 (“You cannot kill tens of thousands of a people, take over the government with arms and expect them to stay around like sitting ducks, especially after unilaterally abrogating a negotiated settlement.”). 265. Ojukwu Exhorts His People, supra note 204, at 149 (the Biafran leader’s broadcast to his new nation before the war). 266. Lt.-Col. Effiong Announces Surrender, supra note 206, at 451 (surrender statement of General Philip Effiong). 267. See Ali A. Mazrui, The Bondage of Boundaries, ECONOMIST, Sept. 11, 1993, at 28. 268. Awolowo, Blueprint for Post-War Reconstruction (1967), reprinted in KIRK-GREENE 2, supra note 170, at 178, 181 [hereinafter Awolowo, Blueprint]; see also John M. Mbaku, Constitutionalism and the Transition to Democratic Governance in Africa, in THE TRANSITION TO DEMOCRATIC GOVERNANCE IN AFRICA: THE CONTINUING STRUGGLE 103, 112 (John Mukum Mbaku & Julius Omozuanvbo Ihonvbere eds., 2003) [hereinafter TRANSITION TO DEMOCRATIC GOVERNANCE IN AFRICA] (indicating that the civil war afforded Nigeria an opportunity it, unfortunately, failed to seize, to reconstruct its system for the benefit of all groups). Scholars like Professor Kirk-Greene advised Nigerian leaders to draw a proper lesson for Africa from “the dark fratricidal days of 1966-70” by remembering the civil war “not as the �Biafran War’ ” but as 208 [VOL. 48:165 Prospects for Igbo Human Rights “[O]ne �of the greatest betrayals of modern times,’” as Professor Achebe lamented, is the missed opportunity “�to turn Nigeria into one of the great nations of Africa, perhaps the leading Black nation.’”269 C. The Post-Civil War Period to the Present: Negation of the PostWar Reconstruction Program and Violations Through Marginalization 1. Negation of the Post-War Reconstruction Program The Nigerian national government unveiled a number of policies after the war designed supposedly to integrate Igbos back into Nigeria as full citizens and to rebuild infrastructure in Igbo territories damaged during the war.270 The government did not pursue any of these policies with any sincerity.271 Worse yet, some of the atrocities that took place in the prior era continued in this new era. These abuses include widespread killings of unarmed Igbo civilians by Nigerian soldiers.272 Unarmed Igbo civilians killed within this period included the distinguished political scientist Dr. Kalu Ezera.273 The government also effectively continued its starvation policy of the war years by blocking assistance to Igbos from foreign countries and humanitarian organizations that it perceived to have sided with Biafra during the war.274 About a quarter of a million Igbo children an inclusive “War [for] National Unity” that does not end with the military conquest of Igbos. KIRK-GREENE 2, supra note 170, at 475. There is small indication that the Nigerian leadership, committed as they have been since the war’s end to containing Igbos, followed the advice. 269. See EZENWA-OHAETO, supra note 152, at 240 (quoting Chinua Achebe). Professor Achebe maintains that Nigeria as a nation has not been founded. Id. at 237. He argues that any individual who will correct some of the many ills recounted in his book on the trouble with Nigeria will be the person whom posterity will come to recognize as the founder of the Nigerian nation. Id. “But it is difficult, he’s going to rise beyond all that we know today, to be possessed by this vision of Nigeria as a modern state in the twenty-first century. He can’t be mucking around with tribalism, with petty religious arguments.” Id. 270. See, e.g., General Gowon’s Victory Message to the Nation, The Dawn of National Reconciliation (Radio Broadcast, Jan. 15, 1970) (Nigerian House Press Release, Jan. 19, 1970), in KIRK-GREENE 2, supra note 170, at 457, 458 (including that “[t]here is no question of second[]class citizenship in Nigeria.”); see also OHA-NA-EZE, PETITION, supra note 100, at 26 (referring to the “reconciliation, rehabilitation, and reconstruction” or triple “R” policy). 271. The reason the national government gave for not carrying out promised reconstruction in Igbo areas was lack of money. But that was a lame excuse, given that this was the very height of the oil boom when the government was spending money lavishly on foreign aid and prestigious projects, like global cultural festivals, with little economic value for the country. OHA-NAEZE, PETITION, supra note 100, at 29. 272. OHA-NA-EZE, PETITION, supra note 100, at 26. 273. Id. 274. See id. By the end of January 1970, only 80 distribution centers remained out of the 3,000 that existed in Biafra before the surrender; this was far short of the 9,000 estimated as 2004] 209 Howard Law Journal died as a result of this post-war starvation policy.275 New tactics in Igbo deprivations were also introduced into the mix. One of these was an attempt to destroy education in Igboland. It was a measure implemented, more or less silently, through a variety of means, including neglect of the University of Nigeria, Nsukka, an important symbol of Igbo higher education and a major factor in the evolution of Biafran resistance during the war; stifling or decimating, rather than nurturing, Igbo war-time technological accomplishments;276 government take-over of missionary and other private schools; as well as a ban on private ownership of schools in Igbo areas. A policy that illustrates these new tactics as well as puts this new era into perspective is the ban on private ownership of schools. East Central State, the lone state to which Igboland was reduced,277 was the only state in the country with this policy. The excuse the government gave for taking over private schools was to “combat sectionalism, religious conflicts, and disloyalty to the cause of a united Nigeria,”278 as well as to promote “the efficacy, order, stability, and good government of the [Igbo] state in its relationship with the other states of the Federation.”279 However, the real excuse for the takeover was, as Professor Diamond stated, “to destroy the Ibo sense of nationality, deprive them of their history, and control both the definition of education and the uses to which it can be put.”280 To ensure that the new policy has teeth, the takeover law adopted a broad-based definition of “school.” It defined a school as a group of ten persons or more “assembled for the purpose of receiving regular instruction in a form of education of whatever kind.”281 The enforcement of the law led to sadly ridiculous occurrences where even typing schools were closed down and their proprietors subjected to legal sanction on the ground that they operated “illegal” institutions. A net effect of the takeover edict was a decline necessary to reach the population adequately at that time. See Elbert et al., supra note 91 (Stanley Diamond replying to responses to his book review, Diamond, supra note 77). 275. OHA-NA-EZE, PETITION, supra note 100, at 32. 276. Id. at 27 (illustrating with ogbunigwe or remote-control bombs Biafrans invented during the war). 277. See discussion supra notes 89, 194 and accompanying text. 278. Stanley Diamond, The Ibo’s Plight, N.Y. REV. BOOKS, Feb. 24, 1972 (citing the thenEast Central State’s Public Education Edict). 279. Id. 280. Id. It should have occurred to the government, Professor Diamond reasoned, that modern schools “were, above all, local institutions, whether established by missions, private persons, or local government councils.” Id. 281. Id. (citing the Public Education Edict). 210 [VOL. 48:165 Prospects for Igbo Human Rights in the number of schools in Igboland from 290 before the war to only 190 in 1972.282 To appreciate the weight of the oppression the government’s “no private school” policy imposed on Igbo education after the war, one needs to understand the critical role education plays in Igbo world view:283 “The school, in the modern era, became the major vehicle for Ibo prestige, individuality, and self-development.”284 The attack on Igbo education was more broad-based than imagined and extended to curtailment of cultural exchanges with foreign countries. For example, the U.S. Embassy was not allowed to reopen its library in Enugu.285 It also included acts like the proscription of the Igbo State Union,286 established in 1948, which for many years played the role of vanguard in the promotion of Igbo education. Finally, it also was not something limited to only the Gowon regime, but rather a policy diligently pursued by subsequent governments. Thus, during his period in office as military head of state from 1976 to 1979, General Obasanjo established six polytechnics (technically-oriented tertiary institutions) in various parts of the country, none of which were sited in Igboland.287 In its petition to the Oputa Panel, the Igbo cultural organization Oha-na-eze requested reparation for the educational institutions and other civilian targets the Nigerian government bombed during the war, as well as money to complete the reconstruction of the University of Nigeria, Nsukka, and its entire library, which was destroyed during the civil war.288 In sum, rather than pursue reconstruction of infrastructure damaged during the war it had promised to undertake, the government strove hard to destroy Igbo education. Other tactics which characterize the period include: • release of a law denying reabsorption into the army, prisons, and police, for thousands of Igbo officers.289 More than 4,000 Igbo 282. Id. 283. OHA-NA-EZE, PETITION, supra note 100, at 27. 284. Diamond, supra note 278; see also discussion supra notes 79-80 and accompanying text. 285. Diamond, supra note 278. 286. IGBOKWE, supra note 88, at 108. 287. OHA-NA-EZE, PETITION, supra note 100, at 27. 288. Id. at 24-25. 289. The law in question was the Public Officers (Special Provisions) Decree No. 46 of 1970. Id. at 27. 2004] 211 Howard Law Journal public servants in the police alone lost their jobs as a result of this law.290 • declaring property and investments Igbos left behind in Port Harcourt and other Nigerian cities during the war “abandoned property.”291 General Gowon’s government did not attempt to address the problem, and subsequent ones that tried did so halfheartedly and unsuccessfully.292 For example, the MuhammedObasanjo government (1975-1976) compulsorily and unconstitutionally acquired some of the property without adequate compensation to their owners.293 • introducing a fraudulent banking policy that paid every Igbo who had a bank account before the war a level £20 regardless of the amount or size of their actual savings. (Given that the Nigerian government, which won the war, viewed the period from May 30, 1967 to January 15, 1970, during which the Republic of Biafra existed, as illegal, an equitable resolution of the situation, which the government could have used but failed to use, would have been to restore all bank accounts to their balances as of May 29, 1967, the date before Biafra came into existence.294) The policy pauperized the few people of the Igbo middle class who survived the war.295 • enacting a business indigenization law precisely at a time when Igbos were still reeling from the effects of the war.296 The timing of the law ensured the effective exclusion of Igbos, who lacked the financial muscle to participate, from ownership in Nigeria’s industrial sector.297 (The indigenization policy effectively “completed the routing of the Igbo from the commanding heights of the Nigerian economy[,]” from where the banking policy stopped.298) It turned Igbos from the economic juggernauts they were before the civil war, to the street traders they have become today, and is responsible for the skepticism Igbos individually and 290. Id. Notice that Decree No. 46 ran directly counter to the blueprint for post-war reconstruction, designed perhaps to persuade Igbos to give up “rebellion,” that the government released during the war. See discussion infra note 303-04 and accompanying text. 291. IGBOKWE, supra note 88, at 28-29. 292. Port Harcourt, a city in Eastern Nigeria came over time to exemplify the “abandoned property” issue. What makes this matter so hurtful for Igbos was that Port Harcourt was a city founded and developed by Igbos. 293. IGBOKWE, supra note 88, at 29. 294. OHA-NA-EZE, PETITION, supra note 100, at 28. 295. See ACHEBE, supra note 83, at 46 . 296. The law in question was the Enterprises Promotion Decree of 1974. 297. OHA-NA-EZE, PETITION, supra note 100, at 28. 298. ACHEBE, supra note 83, at 46. 212 [VOL. 48:165 Prospects for Igbo Human Rights as a group have till this day concerning so-called “privatization” in the country.299 • using so-called “boundary adjustment” exercises, such as the one the Olusegun Obasanjo government conducted in 1976, to excise mineral-rich areas of Igboland and transfer those areas to nonIgbo areas.300 Individually and collectively these tactics took the appearance of a continuation of the supposedly ended war by other means, or stealth war. In its effort and determination to destroy Igbo spirit and elan ´ in the aftermath of the war, no means seemed too small for the Nigerian government. To deny Igbo petty traders struggling to recover from the war a means of livelihood, the national government even imposed a ban on the importation of used clothing and stockfish.301 2. Nature and Indicators of Igbo Marginalization The term that has evolved in the latter post-war period to describe the deliberate exclusion of Igbos from the mainstream of Nigerian life is marginalization. It is a policy by the Nigerian government, deployed to exclude and contain Igbos, using every imaginable means. Marginalization is an illegal practice that violates the Federal Character Doctrine.302 It is also a practice that negates the Nigerian government’s well-publicized blueprint for post-war reconstruction released during the war, which committed the government to several courses of action, among them a promise that “[t]he surviving victims of past disturbances and of the present military operations shall be cared for 299. See Pat Utomi, Minority Question and the Common Good (2), GUARDIAN (Lagos), Nov. 2, 1999. 300. See discussion infra note 336 and accompanying text. 301. OHA-NA-EZE, PETITION, supra note 100, at 29-30. Second-hand clothing is more economically affordable for a people recovering from a devastating war. Dried stockfish, which is rich in protein, is a known Igbo delicacy of choice. 302. One of the important innovations of the country’s Second Republic constitutionalism (1979-83), this doctrine, in pertinent part, provides: The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few States or from a few ethnic or other sectional groups in that Government or in any of its agencies. NIG. CONST. § 14 (3). Put differently, to give every ethnic group within the country a sense of belonging and to promote national loyalty, the doctrine requires that the distribution of appointments, contracts, educational opportunities, or other federal benefits—what Nigerians colloquially dub “federal presence”—reflect the country’s federal character, and not benefit any one group at the expense of others. No Nigerian leader has applied this principle consistently, not even General Obasanjo, under whose first government the doctrine was written into the Constitution. 2004] 213 Howard Law Journal with the utmost compassion” and “[a]ll soldiers, no matter on which side they had fought, shall be rehabilitated and gainfully employed at the end of the military operations.”303 Under this same blueprint for post-war reconstruction, the Nigerian national government promised not only to win these military operations, but also—and this is by far more important—to secure the peace, which will follow, by guaranteeing political equality and social justice to all Nigerian citizens, irrespective of their state of origin, ethnic affiliation, religion, social status, or the side on which they had fought during the rebellion. It is above all resolved to lay a sound foundation for a prosperous future for our country and our people.304 Indicators of Igbo marginalization are legion and include, but are by no means limited to, the following: • Insufficient representation of Igbos in federal governing and policy-making institutions. • Blocking Igbos from aspiring to the Nigerian presidency. • Deliberate exclusion of Igbos as heads of supposedly sensitive governmental departments, such as the Ministry of Defense and Ministry of Internal Affairs, and from appointment to key ambassadorial postings such as the U.S., Britain, Japan, Germany, and France. • The lack of federal investments in roads, industries, power supply, communication technologies, water supply, and other items of “federal presence” in Igbo areas. (For example, Igboland does not have one international airport even though Igbos are the most widely traveled people in Nigeria. In contrast, northern Nigeria has international airports in abundance even when they have no need for them.)305 • Disgracing Igbo army officers before they reached the rank of general or retiring them with ignominy; removing Igbo army officers from pure military locations (signal, armored battalion, mechanized division) once they reach the rank of lieutenant-colonel or colonel; assigning Igbo army officers to branches of the army where they cannot command troops; and having junior army officers from privileged ethnic groups determine where senior Igbo army officers are to be posted or transferred. • Permanent military occupation of Igboland • Discrimination against Igbo states in revenue allocation. • Non-maintenance and neglect of Igbo highways and roads. 303. Awolowo, Blueprint, supra note 268, at 179. 304. Id. at 181. 305. IGBOKWE, supra note 88, at 55. 214 [VOL. 48:165 Prospects for Igbo Human Rights • Failure of Nigerian law enforcement authorities to protect Igbo lives from being made targets of violence by northern Islamic fundamentalists. • Improper application of the federal character doctrine with respect to Igbos, including the use of the quota system to deprive Igbo children of places in federal educational institutions. • Denying Igbos the right to organize or banning Igbo organizations for the flimsiest reasons. • Closing Igbo businesses on the slightest excuse. • Hurting Igbo businesses by banning the importation of certain goods, including used clothing, stockfish, and used cars. • Disfavoring Igbos in the creation of states and local governments. Although comprising about a quarter of the Nigerian population, Igbos have only 5 states compared to 6 for the other zones and seven for the Hausa-Fulani Northwest. It also has 94 local governments, the lowest among the 6 zones in the country. • Organizing police commands in the country such that police posts in the Igbo states are made to report to neighboring police commands outside the Igbo states. • Unprovoked attacks on Igbo property and molestation of Igbo entrepreneurs without compensation for the destroyed business or punishment of offenders who perpetrate these acts. • Differential taxes against Igbo businesses in many northern states in the country. Marginalization calls forth another chapter in the unending ironies that have come to characterize the Nigerian government’s relationship with Igbos: A Nigerian central government that fought hard during the war to make Igbos part of Nigeria has fought equally hard in peace time to both exclude them from “top echelons of governance” in Nigeria and to “systematically disempower[ ]” them “in all spheres” of national life.306 Every post-war Nigerian government, military and civilian alike, has engaged in marginalization of Igbos. Occupation of the vice-presidency, the number two position in the land from 1979 to 1983, by an Igbo, Dr. Alex Ekwueme, temporarily halted Igbo marginalization but did not have any sustained ameliorative effect.307 Some have characterized Dr. Ekwueme’s vice presi306. OHA-NA-EZE, PETITION, supra note 100, at 9; see also IGBOKWE, supra note 88, at 104. 307. Professor’s Achebe’s book on Nigeria whose topics include an analysis of the “Igbo problem,” highlighted details of Igbo discrimination in the siting of federal industries that took place while Dr. Ekwueme was in office. Achebe wrote concerning the Ajaokuta Steel Project the Russians were building for the country: “Many have tried to ask but nobody has quite succeeded in explaining away the siting of five steel mills worth 4.5 billion naira on final completion with estimated employment capacity of 100,000 by 1990, only in the North and West of the 2004] 215 Howard Law Journal dency as “a mere academic exercise for the East,”308 but I disagree with the assessment. The office has important symbolic value, but in a U.S.-type presidential system of government such as the one Nigeria operated then, it lacked real substantive power since the vice president has only the powers that the president allows him. Although all Nigerian governments since the civil war have marginalized Igbos, some have engaged in the act more than others. Such was the degree of exclusion during the Sani Abacha regime (1993-1998), that Gani Fawehinmi, a Yoruba lawyer and progressive social crusader, took the government to court. Fawehinmi’s prayer was for more Igbos to be appointed into the Provisional Ruling Council, the military government’s executive policy-making body.309 Fawehinmi’s efforts did not succeed. Representation improved during the civilian era between 1979 to 1983, even to the point that some hypothesized that democratic governments hold the best chance for Igbo rehabilitation and demarginalization in Nigerian politics.310 Opportunities for civilian government have been limited to begin with in Nigeria, however, and civilian government under General Obasanjo since 1999 has shown that the “democratic” character of a Nigerian government has no ameliorative effect on Igbo marginalization. Part of the “politics of marginalization” in Nigeria today is that non-Igbo ethnic groups, including Hausa-Fulanis who have long dominated national politics, also country.” ACHEBE, supra note 83, at 49-50. The exclusion of the East in the project took place notwithstanding the fact that feasibility studies showed “that Igboland satisfies the raw material, transportation, market, and other requirements for the successful establishment” of this and other industries. OHA-NA-EZE, PETITION, supra note 100, at 44. Specifically, as Dr. Ekwueme himself conveyed, the Russian Technical Partners recommended in a paper he was privileged, as vice president, to see, that for Nigeria’s steel project to be viable, it must be sited in Onitsha. IGBOKWE, supra note 88, at 27. The national government rejected the recommendation, preferring, as Ekwueme says, “to start a new township and provide virtually everything to make the project take off” rather than use Onitsha where all the facilities for takeoff already exist. Id. 308. IGBOKWE, supra note 88, at 64. 309. Id. at 104. 310. See id. at 64 (“Igbos come very near to power during civilian government than in military government.”); see also OHA-NA-EZE, PETITION, supra note 100, at 9 (suggesting that the civilian government in office from 1979 to 1983 “tried to reverse” Igbo exclusion from executive authority “by giving due regard to federal character in the distribution of offices” but was overthrown in time before any change took root). 216 [VOL. 48:165 Prospects for Igbo Human Rights claim to be marginalized.311 As the following passage explains, however, Igbo marginalization is qualitatively different: Igbo marginalization is a cumulative one of a kind no other ethnic group in the country suffers and therefore deserving of urgent alleviation in a regime, especially a democratic one, committed to equity and social justice. The East was the theater of the Biafra war whose scars still remain because . . . the planned reconstruction never happened. Also, some of the ethnic groups in the oil-producing area, such as the Etches and Ikwerre in the Niger Delta are Igbos. In short, Igbos bear a double burden of neglect the result of being an oil-producing area and the location of Igboland as a theater of a brutal war whose effects to date still linger. A factor that reinforces the rankle and sense of injury arising from this marginalization is that the wealth of the nation, since the birth of the country controlled by non-Easterners, comes from the East.312 3. Evaluating the Argument of Igbo Self-Marginalization Some observers such as Igbokwe have canvassed the concept of Igbo self-marginalization.313 However, the concept is one that I find problematic. I am persuaded by, and find instructive, the distinction Oha-na-eze made between marginality and marginalization.314 Marginality is “�[t]he relative or absolute lack of power to influence a defined social entity while being a recipient of the exercise of power by other parts of that entity.’”315 Marginalization, on the other hand, is “the deliberate disempowerment of a group of people in the federation politically, economically, socially and militarily, by another group or groups who during the relevant time frame wield power and control the allocation of materials and financial resources at the Center.”316 Marginality refers simply to the state or condition of being peripheral,317 while marginalization necessarily presupposes the existence of an external agent(s) with the capacity to disempower or 311. See Minabere Ibelema, Nigeria: The Politics of Marginalization, 99 CURRENT HIST. 211 (2000). Professor Ibelema euphemistically branded the Hausa-Fulani claim of marginalization “an anomaly in the country’s politics.” Id. at 213. 312. Aka, Nigeria Since May 1999, supra note 58, at 250. 313. See IGBOKWE, supra note 88, at 37-44 314. OHA-NA-EZE, PETITION, supra note 100, at 7-9 315. Id. at 7 (quoting Adebayo Adedeji, Introduction: Marginalization and Marginality: Context, Issues, and Viewpoints, in AFRICA WITHIN THE WORLD: BEYOND DISPOSSESSION AND DEPENDENCE 1, 5 (Adebayo Adedeji ed., 1993)). 316. OHA-NA-EZE, PETITION, supra note 100, at 7. 317. Id. 2004] 217 Howard Law Journal exclude.318 In Nigeria those external agents are Hausa-Fulanis and Yorubas who benefitted immensely from Igbo departure from the Nigerian system during the civil war from 1967 to 1970.319 During the colonial era, all ethnic groups operated on a level-playing field, and the only marginalizers were the British authorities.320 But by the end of the civil war, these new marginalizers, with their cronies, managed to assume such control of the country’s common political and economic resources at the expense of Igbos—giving them a total capacity to marginalize.321 The self-marginalization writers like Igbokwe perceive is, in actuality, marginality or symptoms of marginalization. Igbo leaders since the war have been individuals imposed upon by Nigerian authorities who work overtime to help the victors destroy Igbo values and institutions rather than seek to promote the Igbo collective interest.322 There are some of these “leaders” who will argue that even a marginalized Igbo is still a Nigerian.323 In that case Malcolm’s memorable diner analogy applies in full force. “I’m not going to sit at our table and watch you eat, with nothing on my plate, and call myself a diner. Sitting at the table doesn’t make you a diner, unless you eat some of what’s on that plate. Being here in America doesn’t make you an American. Being born here in America doesn’t make you an American.”324 Consistent with Malcolm’s unfaltering logic, Igbos condemned to second-class citizenship in Nigeria are not really Nigerians. Much 318. Id. at 8. 319. See id. at 9. 320. Id. 321. Id. 322. Professor Achebe significantly assesses the state of Igbo leadership as “bankrupt” in his important little book diagnosing the ills with Nigeria. ACHEBE, supra note 83, at 48. 323. One Igbo governor, who attributes Igbo neglect to the ethnic group’s participation in the civil war, pled with Nigeria to “forgive” Igbos. See VANGUARD (Lagos), Sept. 8, 2003 (on file with author). Biafran veterans of the war did not find the action amusing. General Effiong who himself performed the Biafran surrender said the governor was not in any position to ask for any forgiveness since he was too young when the war was fought. The apology is at odds with the position of Biafran leader General Ojukwu who continues to maintain that he has no regrets over Biafra. See Auwalu S. Mu’azu, No Regrets Over Biafra–Ojukwu, DAILY TRUST (Abuja), Feb. 18, 2003, available at http://messageboard.biafranigeriaworld.com/ultimatebb.cgi? ubb=get_topic;f=1;t=001083 (last visited Oct. 4, 2004). The governor’s action is ironic, even absurd, given that (1) the country’s war-time leader General Gowon had personally apologized for his role in the 1966 pogroms as well as for killings that occurred from non-observance of the Geneva Convention by Nigerian troops in conducting the war, and (2) the Igbo cultural organization Oha-na-eze, in its petition to the Oputa Panel, had called upon the Nigerian government to follow suit by rendering a public apology to Igbos. See OHA-NA-EZE, PETITION, supra note 100, at 16. 324. MOLEFI KETE ASANTE, ERASING RACISM 158 (2003) (quoting Malcolm X). 218 [VOL. 48:165 Prospects for Igbo Human Rights modern-day Igbo leadership in Nigeria calls to mind the severity of psychological disorders—disorders, Fanon reminds us, that accompany an oppressed people’s acceptance of the logic, mannerisms, ethics, and other worldviews of the oppressor.325 Igbos and other Nigerians who mouth the concept of Igbo self-marginalization forget that Igbo present-day marginalization was a policy designed during the war that actually began with General Gowon’s twelve-state structure in 1967.326 As far back as 1969, Nigerian authorities convened a conference where they made a determination that it will be twentyfive years before Igbos can be given positions in Nigeria.327 What is different is that marginalization has continued beyond the initially projected twenty-five years. It has gone on for thirty-seven long years counting since the institution of Gowon’s twelve-state structure in 1967. IV. ASSESSING GENERAL OBASANJO’S CONTRIBUTION TO VIOLATIONS OF IGBO HUMAN RIGHTS General Obasanjo is one of few Nigerians privileged to have played a central role in the Biafran conflict as well as in the country’s post-civil war politics. He fought in the war and was the military commander who received the Biafran surrender in January 1970.328 In the post-war period, Obasanjo saw service briefly as a federal minister329 before becoming military Head of State in 1976 following the assassination of General Murtala Muhammed. After handing over power to a democratically elected government in 1979, he retired from the army and lived the life of a private citizen from which he reemerged into national service in 1999 as an elected president. He was re-elected for a second term in 2003 following a presidential election marred by electoral irregularities.330 If he completes his present term, Obasanjo will have led Nigeria in both military and civilian capacities for nearly 325. See generally FRANTZ FANON, THE WRETCHED OF THE EARTH (Constance Farrington trans., 1968). The behavior of many modern Igbo leaders also call to mind the words of the American writer, Richard Wright, about the “powerful Negro press” whom Wright said is afraid of stating the problem of the Negro fully because “it is apprehensive lest the concentrated gravity of that problem create such anxiety in [W]hites that they will withdraw what few paltry concessions they are now yielding.” Wright, supra note 48, at xxix. 326. See discussion supra note 246 and accompanying text; see also supra note 201. 327. See discussion supra note 247 and accompanying text. 328. See generally OLUSEGUN OBASANJO, MY COMMAND: AN ACCOUNT OF THE NIGERIAN CIVIL WAR 1967-1970 (1981). 329. See ONUKABA A. OJO, IN THE EYES OF TIME: A BIOGRAPHY OF OLUSEGUN OBASANJO 170, 172 (1997). 330. See discussion infra note 402 and accompanying text. 2004] 219 Howard Law Journal twelve years; this would make him the longest-serving chief executive in the history of the country. To whom much is given, much is expected. In fairness to the General, the foundation for a number of the innovations in the political system, such as the incorporation of the Federal Character Doctrine into the 1979 Constitution took place during his period in office,331 even though, like other Nigerian leaders, the General pays only lip service to the doctrine. Despite the rare opportunity he has had as a central player in Nigerian post-war politics to promote inclusive politics, however, General Obasanjo has made little contribution to Igbo reintegration. To the contrary, he has contributed immensely to Igbo marginalization. A few weeks after the war, as an army commander, General Obasanjo, unmindful of the government’s “no-victor, no-vanquished” policy,332 and of its famed blueprint for post-war reconstruction,333 engaged in a publicized rebuke of Igbo officers seeking reintegration into the army for alleged remorselessness.334 The General also participated in the destruction of the Igbo heritage in education that took place after the civil war.335 During his years in office as military Head of State, General Obasanjo established and sited six polytechnics (technically-oriented tertiary institutions), none of which was located in Igbo areas. His government also implemented a so-called boundary adjustment exercise in 1976 that excised certain oil-producing parts of Igboland that it transferred into Rivers State,336 in the process negatively affecting the share of national revenue allocated to Igbos. Although known by nature to be cantankerous, Obasanjo becomes more so when dealing with Igbos; his tendency to explode when faced with Igbo audiences is legendary.337 331. See discussion supra note 302 and accompanying text. 332. See discussion supra note 270 and accompanying text. 333. See discussion supra notes 303-04. 334. See KIRK-GREENE 2, supra note 170, at 469. 335. See OHA-NA-EZE, PETITION, supra note 100, at 27. 336. Id. at 30. A more extensive discussion of this problem is contained in Okere Steve Nwosu, The National Question: Issues and Lessons of Boundary Adjustment in Nigeria–The Ndoki Case, 15 J. THIRD WORLD STUD. 79 (1998). 337. Professor’s Achebe’s blunt book detailing the troubles with Nigeria includes a portion where General Obasanjo questioned Igbo patriotism. ACHEBE, supra note 83, at 15; see also EZENWA-OHAETO, supra note 152, at 208. Some of the sources used in this Article, particularly the essays written by General Madiebo, see supra note 210, and Professor Ekwe-Ekwe, supra note 220, are responses to one such explosive utterance where General Obasanjo stated, in complete obliviousness of all facts relating to the cause of the war, that Igbos fought the war out of a 220 [VOL. 48:165 Prospects for Igbo Human Rights Igbo marginalization has not let up under the supposedly democratic presidency of General Obasanjo. Rather, in its petition to the Oputa Panel, the Igbo cultural organization Oha-na-eze documents “new heights in [Igbo] marginalization” under General Obasanjo.338 The organization avers that under General Obasanjo, the process of Igbo marginalization has “hit an ugly climax” and run “full circle.”339 Besides being unfair and immoral, these inequities and deliberate “pattern of disempowerment”340 also violate the Federal Character Doctrine, which, as military head of state, General Obasanjo helped write into the 1979 Constitution and has sworn to uphold. In addition to these acts of marginalization, General Obasanjo has also reserved, for Igbo organizations advocating for self-determination, a repression and brutality that he has spared politicians and organizations in twelve northern states of the country. In actuality, it is these states that, by abrogating the country’s secular constitutional legal system and replacing it with Muslim Sharia law, are, unlike the groups General Obasanjo’s government punishes, the ones who have actually engaged in acts of effective secession from the country.341 V. REBUTTING THE CLAIM THAT IGBOS ARE NO MORE VICTIMS OF HUMAN RIGHTS ATROCITIES THAN OTHER NIGERIANS Even non-Igbo Nigerians concede that the Nigerian state violates the collective human rights of Igbos.342 What some of them do not subscribe to is the violation of Igbo civil-political and socioeconomic desire to control the oil resources of minorities in Eastern Nigeria. Why, Professor Ekwe-Ekwe pungently quizzed, did Nigerian military forces not stop the war after the conquer of the nonIgbo speaking portion of Biafra “including the oil fields and installations,” something accomplished after only 11 months by June 1967, but rather kept fighting for 19 long extra months until January 1970. Ekwe-Ekwe, supra note 220. 338. See OHA-NA-EZE, PETITION, supra note 100, at 35-37, 40. In its memorandum, Oha-naeze lambasted General Obasanjo’s political appointments as “most blatantly partial.” Id. at 8. 339. Id. at 8. One non-Igbo top politician, who, in obvious corroboration of this Oha-na-eze assessment, has criticized what he views correctly as the Nigerian national government’s policy of total neglect of Igboland, was Alhaji Ghali Umar Na’Abba, Speaker of the House of Representatives from 1999-2003, who, moved by the sorry state of the roads in Igboland following a visit there, stated: “It is very sad that . . . [Anambra State] still suffers federal neglect after 29 years of civil war . . . Let me use this opportunity to express our heartfelt sympathy with Anambra State and South-East zone for suffering such a very serious federal neglect.” Id. at 40 (citing THISDAY (Lagos) Nov. 22, 1999, at 42). 340. Id. at 33. 341. See Aka, Nigeria Since May 1999, supra note 58, at 249. 342. See, e.g., Ransome-Kuti, supra 250, at 48 (commenting that “[s]ince the civil war[,] one can hardly see an Igbo in any prominent position in government institutions in Nigeria”). 2004] 221 Howard Law Journal (individual) rights.343 Their argument is that Nigeria is a country that disrespects the human rights of all its citizens, Igbos as well as nonIgbos. There is some merit to this reasoning since, generally, Nigerian governments have a poor reputation for the observance of human rights.344 However, in addition to the disrespect of solidarity rights, Nigeria also violates the civil-political and socioeconomic rights of Igbos more than those of other Nigerians. This Article has detailed the human rights atrocities against Igbos that occurred before and during the civil war, as well as violations since then. Igbo individuals who have been marginalized since the war suffered that experience solely because they were Igbos. Similarly, Igbo individuals whose civil-political and socioeconomic rights were violated during the massacres of 1966 and the civil war endured that experience because they were Igbos. Geographic location had little to do with the meting out of atrocities since Igbos were targeted regardless of the portion of the country in which they were found. Non-Igbo Easterners whose human rights were violated in these tragedies were those their northern tormentors could not successfully differentiate from Igbos. They were not victims of atrocities because they were Easterners; they were victims because their violators mistook them for Igbos. This was the case with the massacres but also the case during the war after the return of Igbos in non-Igbo areas to Igboland.345 Here too, we are in the realm where the distinction between individual and collective rights completely breaks down, given that the individuals whose rights are violated suffer that fate because of their membership as Igbos.346 So, because the various categories have tied into one, the argument about atrocities in some categories and no atrocities in others does not really hold. Igbos are undoubtedly exposed to deprivations of life, liberty, security, and subsistence—things to which they as humans have rights— simply because they are Igbos; these deprivations are of a kind that 343. A Yoruba scholar in the audience took this position during the presentation of the initial version of this paper at Cornell University, Ithaca, New York, on April 4, 2003. 344. See generally Aka, Nigeria Since May 1999, supra note 58, at 209-76. 345. Support for this position is found in the fact that Igbos in mid-western Nigeria (known as Ika Igbos) were also victims of atrocities even though they were not Easterners and therefore not part of Biafra. Over 600 people were killed in one spate of attacks on Ika Igbos in 1967. OHA-NA-EZE, PETITION, supra note 100, at 13 (drawing on sources that included the documentation of an eye-witness, Emma Okocha, appropriately titled Blood on the Niger). They would not have been targets of atrocities if the aim of their tormentors had been Easterners (since they were not Easterners), rather than Igbos. 346. See discussion supra notes 45-46 and accompanying text. 222 [VOL. 48:165 Prospects for Igbo Human Rights non-Igbos do not experience. Nigeria has an “Igbo problem.”347 As Professor Achebe points out in his book on the trouble with Nigeria, one singular issue on which non-Igbo groups agree is “their common resentment of the Igbo.”348 The Nigerian government may rebut that it should not be blamed if Igbos became targets of more human rights atrocities than non-Igbo Nigerians so long as it provides the same level of protection for all Nigerians, Igbos and non-Igbos alike, without regard to ethnic origins. But this argument is unavailing because a people, who are resented by their compatriots and thus more vulnerable, like the Igbos, deserve protection that matches the higher level of danger they alone face as they go about their everyday business. However, no such increased protection exists. Rather, as the Igbo cultural organization Oha-naeze points out, simply because of their ethnicity, Igbos “enjoy less protection of the law than any other ethnic group in Nigeria.”349 For example, in 1994, Islamic fundamentalists in Kano350 seized and beheaded an Igbo man, George Akaluka, for allegedly driving over a page of the Moslem bible, the Koran.351 As one representative narrative of the incident goes, the decedent was murdered by Shiite Moslem Fundamentalists at the Bompai prison in Kano. They killed him, cut off his head, hoisted it on a spike, and like an act from the Stone Age, paraded it round the city. There were policemen in Kano. There were prison warders in Kano. They looked the other way.352 None of the individuals who committed this heinous crime, nor the police officers from whose custody the fundamentalists snatched the deceased, were brought to justice.353 It is in this context that one understands the quick rebuttal by one witness at the Oputa Panel to a 347. See ACHEBE, supra note 83, at 45-50. 348. Id. at 45. To rationalize their hatred for Igbos, non-Igbo Nigerians call Igbos aggressive, arrogant, clannish, and the like. Id. But Professor Achebe in his blunt book diagnosing the trouble with Nigeria calls these charges, as well as the one about the perceived solidarity of the Igbos, figments of their authors’ imagination. Igbos “did not concern themselves with pan-Igbo unity nor were they geared to securing an advantage over non-Igbo Nigerians. Beyond town or village the Igbo has no compelling loyalty,” he said. Id. at 47. Rather, without the benefit “of the kind of centralized leadership their competitors presume for them,” Igbos have had to cope without help “with a new Nigeria in which individual progress would no longer depend on the rules set by a fairly impartial colonial umpire.” Id. at 47-48. 349. OHA-NA-EZE, PETITION, supra note 100, at 39. 350. Kano is a metropolitan city in northern Nigeria with an ugly reputation for atrocities against Igbos. See discussions supra notes 157-58 and infra note 369 and accompanying text. 351. Aham, supra note 177, at 35. 352. IGBOKWE, supra note 88, at 32. 353. Id. 2004] 223 Howard Law Journal suggestion that Igbos live a happy existence in Nigeria. “They have been slaughtered at every turn,” he retorted. “Any time there is a riot, they are slaughtered. Can you say that Gideon Akaluka is living peacefully? That is an example.”354 A good part of the Nigerian government’s deficit in its human rights record derives from atrocities targeted at Igbos. VI. CORRECTING VIOLATIONS OF IGBO HUMAN RIGHTS IN NIGERIA Nigeria does not provide an effective structure to properly address Igbo human rights and the correction of past violations. Correction, as defined here, consists of two complementary and mutually reinforcing techniques, namely reparations, and institutions of the political system like federalism and democracy (conveniently denoted here as “political structure”). Reparation is necessary to repair past atrocities, while an appropriate structure is needed to guard against future abuses. I discuss these two techniques or measures in turn. A. Reparations Reparation means to repair a victim or put that victim back, as much as possible, to his pre-damage condition. The term also connotes restitution or the return to a victim of something wrongfully taken from that victim. Although not identical, the two concepts are sometimes used together or interchangeably. Thus, the Igbo cultural organization Oha-na-eze designated its petition to the Oputa Panel as “a call for reparations and appropriate restitution,”355 and one scholar, focusing on the massacres of 1966, advised Igbos to “exercise their right to seek full restitution for” damages arising from those horrendous mass killings.356 Applied to Igbos, reparations will involve the award of monetary payments to those who suffered damages as a result of the massacres357 or from the illegal conduct of the civil war.358 When properly used, reparation brings healing and closure, and promotes reconciliation among former enemies. It may also, where it incorporates abuser accountability for human rights sins, deter 354. Mustapha Ogunsakin, Oputa Panel Ends Sitting, Warns of Imminent Crisis, GUARDIAN (Lagos), Oct. 19, 2001. 355. OHA-NA-EZE, PETITION, supra note 100, at 1. 356. See infra discussion note 372. 357. See supra discussion Part III(B)(1). 358. See supra discussion Part III(B)(2). 224 [VOL. 48:165 Prospects for Igbo Human Rights individuals and groups who might in the future be tempted to violate the human rights of others. Reparation requires individuals and groups who are victims of human rights abuses to bring a lawsuit. The use of lawsuits for correcting human rights atrocities, however, has some inherent weaknesses that must be kept in mind. First, individuals or groups affected must themselves bring these lawsuits rather than rely on the government to do so for them. Second, these actions must be brought before the statute of limitations runs, which is about ten years in jurisdictions such as the United States under the Alien Tort Claims Act of 1789 (ACTA).359 It is probably because of these inherent weaknesses associated with lawsuits that governments choosing to put the sad history of a repressive past behind them prefer to set up truth and reconciliation commissions to investigate past human rights atrocities and recommend measures to repair these errors and move the nation forward.360 This was probably the kind of consideration General Obasanjo had in mind when setting up the Oputa Panel.361 The investigation into human rights abuses unaccompanied by reparations is incomplete and amounts to little more than window dressing that does little to promote reconciliation. In South Africa, the investigation of abuses that took place during the Apartheid Era was followed by an agreement by the government to pay reparations totaling $85 million to more than 19,000 victims who testified about their suffering before the Truth and Reconciliation Commission.362 Under the reparation scheme, the family of each victim of apartheid would receive a one-time payment more than the average annual salary in South Africa.363 359. 28 U.S.C. § 1350 (2000). Courts have interpreted the statute to carry a ten-year statute of limitations. See, e.g., Papa v. United States, 281 F.3d 1004 (9th Cir. 2002) (holding that the ten-year statute of limitations provided by the Torture Victim Protection Act applies to the Alien Tort Claims Act); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal 1987). The Statute confers jurisdiction upon U.S. federal courts to hear civil damages claims by aliens for torts “committed in violation of the law of nations or a treaty of the United States,” regardless of where the torts were committed. Id. 360. Notable scholarship on the work and functions of truth committees set up since the 1970s in various parts of the world include ANDREW RIGBY, JUSTICE AND RECONCILIATION: AFTER THE VIOLENCE (2001); TRANSITIONAL JUSTICE: HOW EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil J. Kritz ed., 1995); Priscilla B. Hayner, Fifteen Truth Commissions: 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597 (1994). 361. See Aka, Nigeria Since May 1999, supra note 58, at 218 n.58. 362. Government to Pay Families of Apartheid Victims, CHI. TRIB. RED EYE ED., Apr. 16, 2003, at 10. 363. Id. 2004] 225 Howard Law Journal Granting reparations would still be the fair and proper thing to do even if, as this Article argues, Igbos are granted separate statehood to safeguard their human rights. Although exhaustion after nearly three years of war was a factor, Igbos repudiated a government in exile364 and eschewed any possibility of a guerrilla struggle365 in the belief that a government which fought so hard for nearly three years to reunify them with the rest of Nigeria will see it fit to rectify the grievances that led to the war. Unfortunately, the Nigerian government failed to reciprocate the good-faith gestures. Despite the various benefits associated with reparation, none of the millions of Igbos damaged as a result of the massacres and the illegal conduct of the civil war received any compensation for their losses from the government. Similarly, none of the individuals and groups who committed (and continue to commit) human rights atrocities against Igbos were punished. Nor, as earlier indicated, did any promised post-war rebuilding take place in Igboland; instead “since the end of the civil war, the absence of federal investments in roads, industries, power supplies, communication technologies, and water supplies has become a fact of life.”366 Payment of compensation for the loss of lives, liberty, and property that Igbos have endured since 1966 would have sent an unmistakable message that there are consequences attached to abuses of Igbo, or any other group’s, human rights. As one analyst observes, referring to the massacres of 1966, “To ensure that this bloodbath never happens again in Nigeria or elsewhere in Africa, state(s), corporate interests, and persons responsible for it must be made to account.”367 Making accountability for human rights atrocities an integral part of any reparation scheme for past violations will compel individuals or groups to think twice before they violate others’ individual and collective human rights. Conversely, the lack of reparation for past human rights abuses in Nigeria is probably among the reasons these abuses recur. None of the individuals involved in the death of Gideon Akaluka, including the putative law enforcement officers in whose very presence the fundamentalists seized him, were ever brought to book.368 364. 365. 366. 367. 368. 226 See Lt.-Col. Effiong Announces Surrender of Biafra, supra note 206, at 451. See STREMLAU, supra note 207, ch. 12. Ebere Onwudiwe, Oil and Nigeria’s Economy, GUARDIAN (Lagos), Sept. 28, 2003. Ekwe-Ekwe, supra note 220. See discussion supra notes 352-54 and accompanying text. [VOL. 48:165 Prospects for Igbo Human Rights The same absence of reparation, rather than a matter of any coincidence, could also have been the reason why atrocities have repeatedly taken place in certain locations, such as Kano, the site of numerous well-orchestrated “riots” and massacres, including the ones of 1953, 1966, 1980, and 1982.369 No less tragic is it that it was also in this very city, in 1994, that the Igbo decedent Akaluka was decapitated allegedly because he drove over a page of the Moslem Koran. Oha-na-eze filed a petition with the Oputa Panel on behalf of Igbos in the sum of 8.6 trillion Naira for atrocities against Igbos from 1966 to 1999. However, five years since setting up the Oputa Panel and four years since the Panel completed its work and submitted its report, the Obasanjo government has not released the result of the Oputa Panel,370 and has therefore not made its position known concerning the payment of any reparations to Igbos.371 One analyst advises that, besides the Oputa Panel, “Igbo people must exercise their right to seek full restitution for [the] dreadful massacres [perpetrated against them] beyond Nigeria’s territorial jurisdiction, if need be.”372 An impediment here, as earlier indicated, could be the statute of limitations—a reason why a fair-minded government should act to rectify these atrocities rather than leave it to individuals and groups to bring lawsuits. However, there are more recent violations not barred by the passage of time for which Igbos have a cause of action. Igbos could also work to protect the human rights of non-Igbo victims of atrocities. Igbo experience in Nigeria as victims of atrocities makes them a “conscience” of the nation for the defense of human and democratic rights.373 Such contribution is already occurring now: for example, the Social and Economic Rights Action 369. OHA-NA-EZE, PETITION, supra note 100, at 39. 370. See Human Rights Watch, Nigeria: President Must End Impunity for Human Rights Abusers, HUM. RTS. WATCH (July 3, 2003), at http://hrw.org/press/2003/07/nigeria070303.htm; Ken Roth, Letter to President Obasanjo Regarding His Second Term, HUM. RTS. WATCH (July 3, 2003), at http://hrw.org/press/2003/07/nigeria070303ltr.htm. 371. Regarding reparation, compensation can never be simply individual or collective monetary payoff. Rather, there are five essential aspects which any meaningful approach to reparations must address: (1) public admission by the Nigerian government of the genocide perpetrated against Igbos, (2) public apology, (3) public recognition, through the media and the school system, aimed at teaching and preserving memory of the horror and meaning of the genocide, (4) compensation, and (5) institution of measures designed to prevent the reoccurrence of such massive destruction of human life, human culture, and human possibility. See MAULANA KARENGA, INTRODUCTION TO BLACK STUDIES 393-99 (3d ed. 2002). 372. Ekwe-Ekwe, supra note 220. 373. See Osuagwu, Part 1, supra note 95 (stating that Igbos “don’t want injustice in a community of which they are part. Any community that plans to have them as members must be pre- 2004] 227 Howard Law Journal Center, a human rights non-governmental organization based in Lagos, Nigeria and directed by an Igbo, Felix Morka, successfully argued a case against the Nigerian government before the African Commission on Human and Peoples’ Rights for violating the socioeconomic rights of the Ogoni people.374 The Igbo nation should also bring claims against ethnic groups involved in the violation of Igbo human rights, like Hausa-Fulanis. Such lawsuits against ethnic groups might afford them much needed opportunity to clear their names. At the hearings of the Oputa Commission, the Arewa Consultative Forum (ACF), which represented the Hausa-Fulani ethnic group, insisted that “We have children and grandchildren and we must put things in their proper perspective for posterity[’s] sake.”375 This was in response to the counsel of Oha-naeze’s contention that the Igbo suit was one directed only against the government. Lawsuits against groups, where they are not timebarred, afford them the opportunity, as the ACF said, to put things in proper perspective for the sake of posterity. B. Political Structure Political structure plays a major role not only in the correction of human rights atrocities but also in the protection of human rights. Lasting protection of any group’s human rights requires an appropriate political structure in addition to any reparation. An effective political structure is necessary given the already specified limitations of reparations. Although reparation is a remedy for past violations and may also deter future violations, it is not geared specifically for the latter purpose. For these future violations, an appropriate political structure is necessary. Despite the utility of an effective political structure in correcting and institutionalizing the protection of human rights, no such structure exists in Nigeria for the safeguard of Igbo human rights. Neither federalism nor democracy, in the manner it has been practiced in Nigeria, supply the appropriate structure. 1. Federalism Nigeria’s dynamic ethnic pluralism rules out a unitary system as a viable option for societal organization and protection of human rights. pared to be just”); see also Osuagwu, Part 2, supra note 95 (citing Dr. Azikiwe’s statement to the effect that “Igbo manifest destiny” is “[t]o free the African from the bondage-of-ages”). 374. Aka, Nigeria Since May 1999, supra note 58, at 214, 215 & n.34, 240. 375. See Ogunsakin, supra note 354. 228 [VOL. 48:165 Prospects for Igbo Human Rights A confederal system is also ruled out, given that the country has no experience with it. A confederal system may, however, hold some value as a negotiating tool and a halfway house en route to full independence for departing ethnic groups.376 The unsuitability or inapplicability of these two systems as political structures for the safeguarding of human rights leaves federalism as the only remaining structural option. But, from the very beginning, federalism in Nigeria was designed as a tool of northern (particularly Hausa-Fulani) domination that was never meant to be human rights-friendly. Following the killings of Igbos and the destruction of Igbo property in Kano in 1953, British colonial authorities came to the realization that “Nigeria . . . if it was to be a nation, must be a federation, with as few subjects reserved for the Central Government as would preserve national unity.”377 But, the federal system they created in 1954 was a lopsided one in which one federating unit, the Northern Region, was bigger than all the other units combined. British authorities rejected all pleas to correct this imbalance through the creation of more regions, on the ground that doing so would delay Nigeria’s independence.378 However, they accepted the recommendation of the Willink Commission for entrenchment of fundamental guarantees in the independence constitution to allay the fears of minorities of majority domination.379 The nationalist leaders who received power after independence made few changes. So, except for the creation of the Mid-Western Region in 1964, the federalist structure handed down by Britain remained unchanged after independence, contributing much to the instability that led to the demise of the First Republic in 1966.380 376. See infra note 410 for a discussion of Professor Nwabueze’s suggestion for a national conference. See also infra note 538 and accompanying text. 377. KIRK-GREENE 1, supra note 86, at 10 (quoting the diary of Colonial Secretary, Lord Chandos). While Lord Chandos’ option is obviously against a unitary system, it is not clear whether what he actually meant was a federal or con-federal system, given the reference to a fewness of subjects lodged in a central government “as would preserve national unity.” Id. The reference calls to mind a confederal as opposed to a federal system. A confederal system is, by definition, “a league of independent states in which a central government or administration handles only those matters of common concern expressly delegated to it by the member states.” STEFFEN W. SCHMIDT ET AL., AMERICAN GOVERNMENT AND POLITICS TODAY, 82 (2003). Except for matters like defense and foreign affairs, constituent sub-national units in a confederal system retain all attributes of independent statehood. Unless the member-units specifically approve, in such a system, the national government has no authority to make laws directly applicable to individuals. 378. See KIRK-GREENE 1, supra note 86, at 11. 379. See supra note 56-57 and accompanying text. 380. Diamond, supra note 252, at 465. 2004] 229 Howard Law Journal General Gowon’s twelve-state structure, unveiled in 1967, came too late to avert a civil war and was actually, as earlier indicated, an immediate factor that precipitated the conflict.381 Also, Gowon’s goal was not to promote any human rights, but rather to recover Hausa-Fulani domination, lost as a result of the first military coup,382 and to reconstitute it in a manner such that no group would ever threaten it again. Due to the fact that Igbos were perceived as the most lethal threat to northern interests, they were “logically” the group Gowon meant to hurt by his state creation exercise.383 From a single, modest national government and four regions in 1966, the country grew into a gigantic bureaucratic machine of one national government and thirty-six state governments plus a federal capital territory.384 Similarly, from the vibrant, albeit unstable, system during the First Republic (1960-1966) in which powerful regions vied to dominate a comparatively weak central government, the character of the country’s federalism metamorphosed into one where a powerful central government dominated dozens of weak sub-national governments. So vitiated has been the power of the sub-national governments in comparison to the all-powerful central government that the six zones into which the states were grouped by the military in 1996385 have been suggested as potential replacements for the numerous states as federating units.386 These occurrences call to mind one French saying about how things remain the same the more they change. The one constant is northern control. To provide Hausa-Fulanis the centralized control they need to perpetuate their domination of the political system, Nigerian leaders since 1967 have operated the country’s federal system in a unitary format. This distortion of the country’s federalism in favor of Hausa-Fulanis assumed such height under military rule that the leader of the Biafran separatist campaign General Ojukwu, in an 381. See KIRK-GREENE 1, supra note 86, at 96-97 (noting how “Gowon’s shrewd move to block secession [by creating new states] turned out to be the final pressure on the trigger releasing the explosion”); see also discussion supra notes 200-01. 382. General Gowon took pains to underscore in his speech after mounting power that “God has put the affairs of this country in the hands of another northerner.” See General Gowon, No Trust or Confidence in a Unitary System of Government (radio broadcast Aug. 1, 1966), reprinted in KIRK-GREENE 1, supra note 86, at 196-97. 383. See discussion supra notes 200-01 and accompanying text. 384. See, e.g., Richard Joseph et al., Nigeria, in INTRODUCTION TO COMPARATIVE POLITICS 546, 575-85 (Mark Kesselman et al. eds., 2d ed. 2000) (listing the organization of the country’s complex political system). 385. See discussion supra note 87. 386. See Aka, Nigeria Since May 1999, supra note 58, at 270-71. 230 [VOL. 48:165 Prospects for Igbo Human Rights important lecture in 1994, analogized the country’s unity to Jonah in the belly of the Whale—the Whale being Hausa-Fulanis and Jonah the rest of the country, especially Igbos. “For a man to whom unity remains that of Jonah in the belly of the Whale, that man must question his situation. He is not comfortable in the Whale’s belly. It is dark. It is soggy. He wants out lest he dies. The man owes himself to get out despite the fact that the Whale has felt no discomfort. To this man in extremis lies the obligation to quit.”387 Spells of democratic rule in the country were expected to change but have not had any ameliorative impact on this centralization. This includes the present supposedly democratic rule under General Obasanjo.388 This “unitary federalism” not only runs against the grain of colonial wisdom which recognized the imperativeness of federalism as the only viable format for organizing the country,389 but it is also hypocritical, given that General Ironsi’s Unification Decree was the excuse Hausa-Fulanis used in 1966 to perpetrate the atrocities of massacres they callously visited on Igbos.390 The centralized control, needless to say, unfortunately fulfils Senator McCarthy’s uncanny prediction made in 1969 that General Gowon would seek only to accomplish a “reconstituted unitary state.”391 Some Nigerians believe that a “return” to a “true” federalism could provide the autonomy necessary to assuage ethnic groups’ demand for self-determination. This appears to be the position Beko Ransome-Kuti canvassed in a 1999 lecture embodying his “vision for a new Nigeria.”392 He praised the country’s pre-1966 experiment in federalism and warned that “[o]ur future is bleak unless we can liberate ourselves from this forced union” supposedly of command unitary federalism “that is squeezing the life out of us.”393 However, it is doubtful that any “true federalism” is an option for safeguarding Igbo human rights in Nigeria. First, the defective federalism the country practiced before 1966 set the stage for the political instability that led to the human rights deprivations of Igbos. Second, the country’s ex387. IGBOKWE, supra note 88, at 98 (quoting General Ojukwu). 388. See Aka, Nigeria Since May 1999, supra note 58, at 269-70. 389. See supra note 377; see also GRAF, supra note 175, at 133 (stating that an important truism of Nigerian politics is that “the country’s continuing existence as a nation-state hinges on its capacity to evolve and maintain an adequate system of federalism”). 390. See discussion supra notes 165-66 and accompanying text. 391. McCarthy, Speech, supra note 194, at 405. 392. See generally Ransome-Kuti, supra note 250, at 46-49. 393. Id. at 49. 2004] 231 Howard Law Journal perience since independence shows how easy it can be for the country’s northern-dominated governments to re-centralize power to suit Hausa-Fulani hegemonic purposes. Finally, federalism does not exist by itself but rather operates in tandem with and is affected by critical variables, such as the quality of a country’s democracy, the topic to which I next turn. Revealingly, Dr. Ransome-Kuti indicated in his lecture that “The principle of self-determination is now so well established in international law that instead of issues degenerating into civil war, this is an option that has to be held in front of us all at all times.”394 He also challenged the assertion contained in the preamble of the country’s 1999 constitution proclaiming that Nigerians have “firmly and solemnly resolved to live in unity and harmony as one” indissoluble country.395 He instead stated that “As a matter of fact some sections of the country have been through such degrading and painful times in Nigeria that they might well prefer to live alone or join a more viable and conducive enterprise rather than continue with the present arrangement.”396 In short, with all due respect to Dr. Ransome-Kuti, “true federalism,” like proposals such as “�state creation,’ �federal character,’ �zoning,’ [and] �rotational presidency,’” ranks among the “pretensions” today that have “failed to settle [the country’s] political contentions.”397 2. Democracy Nigeria is a country where, since independence in 1960, the ship of state has been operated with little regard for democracy. Neither experimentation with the parliamentary model borrowed from Britain nor the presidential system adopted from the United States has produced any democracy for the country to date.398 Factors that have served to truncate or neutralize democracy in the country include, but are by no means limited to, military rule, political and bureaucratic corruption, and electoral corruption. Long military rule in the country, until recently the norm rather than an aberration, left little time and room for any actual experiment with democracy. Also, some of 394. Id. at 48. 395. Id. at 49. 396. Id. 397. Aliyu Tilde, BluntPoint (1): Professor Sagay, Buy the Bride a Single-Bed (June 11, 2003), available at http://www.gamji.com/tilde25.htm. 398. For a good overview of the country’s checkered experience with these various models of democracy, see Diamond, supra note 252, at 417-91. 232 [VOL. 48:165 Prospects for Igbo Human Rights these military regimes, particularly the ones that operated from 1983 to 1998, were exceedingly repressive and marked by human rights abuses.399 Finally, as General Obasanjo’s style of leadership since 1999 bears out, military rule has instilled into the political system residues of military values, including authoritarian rule and the use of military force in the resolution of non-military disputes, both of which are inconsistent with democratic culture.400 With respect to political and bureaucratic corruption, Nigeria has a dubious reputation as one of the most corrupt countries in the world.401 The nature of the government in power, whether military or civilian, has had no impact on the incidence of corruption as each of these forms of government has produced corrupt public officials and been characterized by corrupt practices. Also, the scale of corruption has grown progressively with each successive regime.402 Finally, elec399. See, e.g., Aka, Nigeria Since May 1999, supra note 58, at 222-25; Philip C. Aka, Nigeria: The Need for an Effective Policy of Ethnic Reconciliation in the New Century, 14 TEMPLE INT’L & COMP. L.J. 327, 351-52 (2000). 400. See, e.g., Aka, Nigeria Since May 1999, supra note 58, at 259-61; Philip C. Aka, The “Dividend of Democracy”: Analyzing U.S. Support for Nigerian Democratization, 22 B.C. THIRD WORLD L.J. 225, 234-37 (2002) [hereinafter Aka, Dividend of Democracy]. 401. The country has always ranked high on Transparency International’s (TI) index of most corrupt countries in the world. TI is a watchdog organization committed to exposing and combating corruption in the world. Before 1999, the country ranked number twenty-eight in the world. Inauguration of democratic rule in the country was supposed to change this picture, but, unfortunately, did not. Instead, the incidence of corruption has grown worse. Since Obasanjo took office, the country has ranked as the second-most corrupt country in the world, at one time beating Cameroon to the dubious number-one prize, and beaten last year only by Bangladesh. See Doug Ireland, Will the French Indict Cheney? NATION ONLINE (Dec. 29, 2003), at http:www.thenation.com/doc.mhtml?i=20040112&s=Ireland. Until becoming president in 1999, Obasanjo was himself a member of TI. 402. See id. Since the 1980s, the U.S. State Department has issued numerous travel notices warning American travelers to Nigeria concerning their safety and how to guard against becoming victims of crime, scam, and related fraudulent practices. The institution of democratic rule in 1999 has not brought a stop to these travel warnings. Rather, under General Obasanjo, the State Department has issued several notices, the latest in December 2003, which superseded a previous warning issued six months earlier. The recent notice warned Americans travelers to Nigeria about possible “violent crime committed by ordinary criminals, as well as by persons in police and military uniforms [that] can occur throughout the country,” about kidnapping for ransom of persons associated with the petroleum sector “common in the Niger Delta area,” about religious tension between Muslim and Christian communities resulting “in occasional acts of isolated communal violence that could erupt quickly and without warning,” and about “advance fee fraud and other scams” by Nigerian-based businesses and individuals “that target foreigners worldwide.” U.S. Department of State, Travel Warning: Nigeria, Dec. 29, 2003 (on file with author). Finally, the report included this information about transportation in Nigeria: “Use of public transportation throughout Nigeria can be dangerous and should be avoided. Taxis pose risks because of the possibility of fraudulent or criminal operators, old and unsafe vehicles, and poorly maintained roads. Most Nigerian airlines have aging fleets, and maintenance and operational procedures may be inadequate to ensure passenger safety.” Id. This must be one of the most elaborate reports for any country not on the U.S. terrorist list with which the American government maintains relations. But, even on the terror front, Nigeria has American homeland 2004] 233 Howard Law Journal toral corruption is pervasive in Nigeria. Like with political and bureaucratic corruption, the scale of the phenomenon has grown progressively over time with each successive regime outdoing the other in breadth and absurdity. For example, the general elections of 2003 conducted by the Obasanjo government topped all previous elections in scale of irregularity.403 To date, British authorities have conducted the only well-administered election in Nigeria—that of 1959.404 Democracy is a system of government “in which the coercive powers of the government are effectively constrained by the constitution.”405 It is a process involving widely shared beliefs, “renewed in each generation” through “practice and performance” until it becomes “so habitually practiced and observed that it is very unlikely to break down.”406 The beauty of democracy is the slow but steady accretion in constitutional change the process makes possible. General Obasanjo came into office in 1999 following non-free elections conducted on the basis of a constitution drafted by the departing military without popular input and participation.407 The nation did not want to give the army any reason to prolong its stay in office408 and the security officials worried since enormous support exists in the Muslim North of the country for Osama bin Laden. See Aka, Dividend of Democracy, supra note 400, at 274-75. 403. See, e.g., Wadas Nas, The Rigged Presidency, WKLY. TRUST (Abuja), May 10, 2003; Rory Mungoven, Letter to President Obasanjo on Commonwealth Heads of Government Meeting, HUMAN RTS. NEWS, (Nov. 27, 2003), at http://www.hrw.org/press/2003/11/nigerialtr112703.htm (reminding the president that “[t]he April and May 2003 elections, which returned you to office for a second term and secured an overwhelming victory for the Peoples Democracy Party (PDP), were marred by violence and intimidation, as well as widespread rigging”); Joseph Winter, Analysis: Nigeria’s One-Party Creep, BBC NEWS ONLINE (Apr. 21, 2003), at http:// news.bbc.co.uk/1/hi/world/africa/2964759.stm. Domestic and foreign observers who monitored the elections, including the U.S. National Democratic Institute, U.S. International Republican Institute, and the European Union, found large-scale irregularities that compromised the integrity of any verdict coming from those elections. One non-political group of eminent Nigerians known as the Patriots was so appalled by the results that it called for an Interim Government of National Unity in place of swearing-in General Obasanjo for a second term as president. See Chukwudi Nwabuko et al., The Patriots Supports Call for Interim Government, THISDAY (Lagos), May 23, 2003. The group maintained that to allow the results of the elections “obtained by means of well-attested electoral malpractice” would subvert democracy and constitutionalism and entrench election-rigging as a permanent feature of Nigerian politics. Obasanjo and his political party rejected the suggestion. 404. See KIRK-GREENE 1, supra note 86, at 12 (based on the assessment of K.W. POST, THE NIGERIAN FEDERATION OF 1959 (1963)). 405. John Mukum Mbaku, INSTITUTIONS AND REFORM IN AFRICA 189 (1997). 406. See Introduction to POLITICS IN DEVELOPING COUNTRIES, supra note 252, at 53, 56-57. 407. Ransome-Kuti, supra note 250, at 49; Eghosa E. Osaghae, In Search of Democratization Middle Grounds: Nigeria and South Africa in Perspective, in TRANSITION TO DEMOCRATIC GOVERNANCE IN AFRICA, supra note 268, at 350-51. For a more detailed explanation of the undemocratic nature of the constitution from a top legal draftsman in a position to know, see Chief Rotimi Williams, A Constitution for the People of Nigeria, GUARDIAN (Lagos), Aug. 26, 1999. 408. See Osaghae, supra note 407, at 351. 234 [VOL. 48:165 Prospects for Igbo Human Rights general expectation was that the constitution would be reviewed upon the president taking office to garner increased popular acceptance of the document. Unfortunately, no such revision took place. During his tenure in office, calls have been made for a national conference to deal with emergent, critical national issues and a definition of the terms of the union. Such calls preceded his regime, but assumed new urgency due to new events, such as the controversy and violence surrounding the adoption of a different legal system based on Muslim Sharia law in many northern states.409 Despite the compelling merit of the arguments for a national conference,410 no such conference to date, more than four years since the president took office, has been held; momentous issues going to the country’s very integrity as one nation have continued to fester. From its very beginning, Nigeria has been governed by leaders who do not believe in fundamental restructuring. These include General Obasanjo, who one writer said 409. See Aka, Nigeria Since May 1999, supra note 58, at 240-46. 410. An editorial comment by the Lagos Guardian and a piece by Professor Ben O. Nwabueze, a foremost constitutional lawyer, typify these calls. In its editorial, The Guardian argued that the country faces many national problems, which, if left unresolved, could heat up the system and make governmental business difficult and public peace fragile. National Conference: The Way Forward, GUARDIAN (Lagos), June 21, 2001. A national conference is needed to resolve these pressing problems and “[to] rescu[e] the country from the path of perfidy and hypocrisy into which the military derailed it through their misrule and corruption.” Id. The conference “is also about justice, and equity, and due respect for the people’s aspirations.” Id. The newspaper noted that “[m]any of the problems facing the country . . . arose from a violation of that original consensus, particularly on the sensitive issues of federalism, power sharing, resource allocation, and the constitution.” Id. The conference should not be “cosmetic,” but rather “a thorough re-examination of the Nigerian state to ensure that every group within the union can be proud and confident that it is part of a workable arrangement that is built on a foundation of truth and justice.” Id. It should be both “general and inclusive” in the sense that it examines all possible issues and produces conclusions that should form the basis for the preparation of a true people’s constitution that can guarantee a future of stability and progress for the country. Id. So long as the scope is right, the paper stated, it does not matter whether the conference is “sovereign,” assessed in terms of whether its conclusions binds the government now in office or “non-sovereign,” meaning its conclusions are non-binding. Id. Convening such a conference is good for the peace and stability of the country and something, the editorial said, the government should facilitate “not as an act of magnanimity but in response to the people’s wishes and desires” given that “it is neither the president nor his government that is at stake, but the Nigerian state and its manner of organisation.” Id. In his piece, Professor Nwabueze also underscores the imperativeness of a national conference. Issues to be addressed at such a conference include (1) resource control, (2) the religious neutrality of the state, (3) rotation of the presidency, and (4) restructuring of the country’s federal system. These are, he says, issues so complex and fundamental, that they are an exercise in constitution-making, transcending the power of the government to effect the people without recourse. He argues that the confederation should be tabled at the conference as an option of last resort, if delegates are unable to come to an agreement on these issues. See Ben O. Nwabueze, The Imperative of a National Dialogue, GUARDIAN, June 28, 2001. 2004] 235 Howard Law Journal “retains a nostalgic love for the current concept of Nigeria.”411 The 411. Paul Nwabuikwu, Fighting over Talking, GUARDIAN (Lagos), Dec. 8, 1999. A Nigerian newspaper editorial expressed the opinion, in many respects still unfortunately valid today, that “ �the rulers used power that they held constitutionally to do unconstitutional things. . . . Nigeria had censuses that were not censuses, elections that were not elections, and finally governments that were not governments.’ ” KIRK-GREENE 1, supra note 86, at 28 (quoting an editorial entitled The Last Hurrah from a Nigerian Newspaper from February 1966). Supporters of the present concept of Nigeria overstretch their luck regarding the extent to which they can nurture the status quo ante in opposition to real change. Calls for “true federalism” are growing in the country as is the perception as well as identification of the North, especially Hausa-Fulanis, as the main obstacle to change. One typical presentation recently embodying this dual theme is a lecture by Itse Sagay a university professor and distinguished lawyer. Tilde, supra note 397. Sagay unveiled a “double-decker” approach to true federation by which Nigeria remains as a country but under which “ �every zone and nationality will operate within the type of federation it prefers.’ ” Id. (quoting Itse Sagay. True Federalism in an Emerging Democracy: A Case Study of Nigeria, Address at the at Le Meridien Eko Hotel, Lagos, Nigeria). He stated that the basis for his double-decker theory is “the lack of consensus among the six geopolitical zones on . . . political restructuring.” Id. While, he said, four zones are “�expressly demanding’” fundamental restructuring of the country, all of the North, except for the Middle Belt (or the north central zone), does not favor such restructuring. Id. (quoting Sagay, supra). Faced with these “contrasting wishes,” he called for a: “ �double-decker’ or asymmetric federation, in which the north west and north eastern zones and parts of the north central zone desiring it, can retain the centralized federation which we are operating under the 1999 Constitution, as between those zones and the Federal Government . . . and a loose restructured federation which is currently being demanded by the southern states as a minimum condition for their continued voluntary existence as part of Nigeria for the states demanding it.” Id. (quoting Sagay, supra). Professor Sagay says those in the Middle Belt or north central zone who choose could become part of the loose restructured system southerners favor. Id. Sagay envisages that under this loose federalism, the states involved “will establish their own independent police forces, a peoples’ militia, [conduct] their own population censuses and control their mineral resources independently of the federal police, federal census, and federal resources.” Professor Sagay as precedent for his double-decker federalism, refers to “�the agreement reached in 1953 when the North chose to delay its self-government status until 1959, three years after the South.’” Id. (quoting Sagay, supra). One analyst, Dr. Aliyu Tilde, himself a northerner who reflected on Sagay’s “asymmetric federation” lecture, agreed with the Professor that the north has truly favored the status quo in opposition to any restructuring. “Few northern voices have really championed the cause of restructuring;” instead, “northerners have been equivocal, or rhetorical, or destructively critical of the idea of a restructured federation. Something, somewhere, [maybe] a hangover of the civil war, continue[s] to give the northern establishment the wrong notion that it is the custodian of a unitary �Federal’ Nigeria.” Id. Dr. Tilde, however, indicates that those opposed to reform are the few privileged northern elites who benefit from the current unitary federalism, not ordinary northerners mired in “poverty, illiteracy, injustice, and neglect” and who are therefore dissatisfied with the status quo. Id. Also, he said, many northerners “are tired of being targets of frequent abuse and demonization.” Id. “Whatever is their disagreement, Nigerians must accept that the argument of restructuring is very strong and convincing.” Id. He talks about crises “arising from mutual distrust” that have punctuated the political history of the country. Id. Besides, he says, [T]he periphery has grown too large for the corrupt and inefficient center to keep intact without deterioration setting in. The Yoruba for example are over twenty-five million. That is a big nation. What sense does it make to deny such a people autonomy of their choice? Why should anyone today in Sokoto, Maiduguri or Makurdi raise a finger against a new Biafra? What moral imperative or interest would compel the North to “save” the oil[-]rich Niger delta if its people now strongly feel that they will be better off with an autonomy that gives them exclusive control over their oil resources. 236 [VOL. 48:165 Prospects for Igbo Human Rights unceasingly low quality of Nigerian democracy fuels frustration among groups who see in a democratic system the only avenue for the pursuit of peaceful change.412 Seeking to reform rather than replace socialism, former Soviet President Mikhail S. Gorbachev attempted to persuade the Baltic republics that sought to separate from the Soviet Union that the expansion of economic ties was a better option for them.413 But his logic did not move these republics who maintained that the experience of other countries shows that “modern civilization is moving toward international integration, but not by centralizing and subordinating.”414 The separatists’ logic prevailed and the Soviet Union broke up. Soviet Russia not only supported, but also with its proxies, participated in the Nigerian conflict on the Nigerian side.415 Mikhail Gorbachev, who led the Soviet Union from 1985 to 1991, was better than post-war Nigerian leaders in that he tried but failed to reform the Soviet system; Nigerian leaders don’t try at all. The defects of federalism in the land, coupled with the fact that peaceful change is not possible, leaves independent statehood as the only viable hope for the protection of Igbo individual and collective human rights. Persuading the OAU on why its members should support separate independence for Nigeria in 1967, the Biafran government conId. Tilde called appeals to “national integration” “monotonous and empty . . . dialectic[s]” in which the country can no longer take shelter. Id. Also proposals “like �state creation’, �federal character,’ �zoning,’ �rotational presidency,’ and �power sharing’ ” have become “pretensions” that do not rise to any solutions. Id. Pre-1999, the problem was thought to be with the mediocre leadership the North has been accused of giving the nation. Today, with the woeful failure of Obasanjo in the last four years, it is clear that such mediocrity is not a monopoly of the North anymore. Apparently, something fundamental is wrong with the structure of the polity. Id. He says it is not possible, “given the prevailing liberal world order, for the nation to stop any of its parts from seceding.” Id. “The world today will not sit and watch Nigeria kill a million of its citizens and starve three times that figure. Never. We have seen stronger unions, like Yugoslavia, disintegrating explosively simply because it failed to readjust at the most appropriate time.” Id. Tilde says all that Nigerians need to start a true restructuring journey is dialogue. Id. He concludes that “[w]ith an ever-growing interest in the restructuring agenda nationwide . . . the crisis over its necessity is almost over.” Id. He advises Professor Sagay that his “doubledecker” idea is really unnecessary; so, he argues, the professor should “allow the baby of restructuring [to] wear a symmetrical face.” Id. Growing calls in the country for restructuring and of perceptions about groups standing on the way of change also reflect the growing impatience among Nigerians regarding the status quo. 412. See KIRK-GREENE 1, supra note 86, at 15 (conveying Igbo assessment before the war, a feeling still, unfortunately, valid today, regarding the 1964 elections as “the final test before despairing of constitutional, political, and economic reform,” via democracy). 413. See Jeffrey Herbst, Global Change and the Future of Existing Nation-States, in SELFDETERMINATION OF PEOPLES, supra note 24, at 13, 28. 414. Id. (quoting an Estonian member of the Congress of People’s Deputies). 415. See discussion supra Part III(B)(2)(iii). 2004] 237 Howard Law Journal tended: “No safeguards can work; none ever did.”416 Three and a half decades later, this statement appears to summarize the prospects for protection of Igbo human rights in Nigeria. Just as socialism could not be reformed in the Soviet Union, the Nigerian State stands no chance to be reformed, to become a tool for the safeguarding of Igbo human rights.417 VII. CASE FOR SEPARATE STATEHOOD AS AN APPROPRIATE STRUCTURE FOR EFFECTIVE SAFEGUARDING OF IGBO HUMAN RIGHTS IN THE NEW CENTURY Separate statehood holds the only hope for the maintenance of Igbo human rights in the new century. The case for separate statehood as an appropriate structure made here revolves around two interlocking arguments, namely: (1) the changing notion of selfdetermination; and (2) the lack of any lingering objections to Igbo independent statehood. I discuss these two issues in turn. A. Changing Notion of Self-Determination and the Igbo Situation 1. Statement of the Traditional Doctrine Self-determination is an idea as ancient as organized human society, one that became international law doctrine in the twentieth century. It is the collective manifestation of the universal human need to identify with a group, to exercise control over one’s affairs and fate, and to promote one’s own political, economic, and social well being.418 A statement of the traditional international law doctrine “implies that people who identify themselves as a nation should have the right to form a state and exercise sovereignty over their affairs.”419 As Professor Goldstein elaborates, the doctrine is 416. Biafran Memorandum Circulated to Heads of State at O.A.U., supra note 200, at 171. 417. See Tilde, supra note 397, who points out that before 1999, the developmental problem of the country was blamed on the mediocre leadership northern leaders provided, but that General Obasanjo’s “woeful” performance since 1999 evinces that “mediocrity is not a monopoly of the North anymore. Apparently, something fundamental is wrong with the structure of the polity.” Id. It is true that there is only so much that one mortal leader can do if the structure is not right from distortions arising from decades of incompetent leadership and bad policies. However, General Obasanjo’s main failure arises not from his performance in office, although that also counts, but rather from his sheer inability, or unwillingness, to lay the ground for structural change. 418. An-Na’im, supra note 45, at 107, 109. 419. JOSHUA S. GOLDSTEIN, INTERNATIONAL RELATIONS 32 (3d ed. 1999). 238 [VOL. 48:165 Prospects for Igbo Human Rights a widely praised principle in international affairs [that is, however,] generally secondary to the principles of sovereignty and territory integrity, with which it frequently conflicts. Self-determination does not give groups the right to change international borders, even those imposed arbitrarily by colonialism, in order to unify a group with a common national identity. Generally, though not always, self-determination has been achieved by violence.420 Briefly, OAU and UN Charters and other international human rights instruments provide that all “peoples” have the right to selfdetermination, but at the same time stipulate that sovereignty and territorial integrity of countries are inviolable.421 They endorse a right of self-determination to support dependent peoples’ struggles against colonialism, but restrict that right to only the colonial cases.422 “If in theory the principle of self-determination extended to all people, in practice it could be exercised only by those under colonial rule.”423 This occurrence led many countries in Africa to believe that independence from formal colonial rule satisfies the right of their populations to self-determination, as well as to “individually and collectively resis[t] claims for secession by various [ethnic groups or] peoples as a means to achieving self-determination.”424 Under the traditional doctrine, along with African and UN practices that support it, a tension exists between self-determination and sovereignty that the international community tends to resolve in favor of sovereignty. 2. Mounting Dissatisfaction with the Traditional Doctrine Dissatisfaction built quickly with the traditional international law doctrine of self-determination following its institution in the UN system after World War II. This can only be expected of a doctrine, which, as previously indicated, would even let stand boundaries imposed arbitrarily by colonialism.425 As early as 1973, Rigo Sureda equated the doctrine of self-determination with the notion that “gov420. Id.; see also UMOZURIKE, supra note 23, at 53 (stating that self-determination “is not a juggernaut that overrides all other rights,” but rather “must have regard to other equally fundamental principles, such as sovereignty and territorial integrity”). 421. RAYMOND C. TARAS & RAJAT GANGULY, UNDERSTANDING ETHNIC CONFLICT: THE INTERNATIONAL DIMENSION 51 (2d ed. 2002). 422. BUCHANAN, supra note 261, at 20. 423. Id. 424. An-Na’im supra note 45, at 113. Professor Mazrui appropriately calls the OAU convention against tampering with colonial boundaries “taboo of officially sanctioned secession.” Mazrui, supra note 267, at 28. 425. See discussion supra note 420 and accompanying text. 2004] 239 Howard Law Journal ernment should be based on the will of the people . . . and people not content with the government of the country to which they belong should be able to secede and organize themselves as they wish.”426 Professor Buchanan complained that the traditional doctrine recognizes only fully sovereign states but accords individuals and minority groups only cultural, as opposed to political, status.427 He argues that some of the countries, such as Britain and Belgium, who helped write the traditional doctrine were motivated by self-interest: They feared that recognition of a broad right of self-determination “would be tantamount to endorsement of a general right to secede for every ethnic group”428 and they sought “to avoid fueling numerous separatist movements within” their countries.429 Buchanan calls for experimentation with new forms of “semi-autonomy” or “limited sovereignty.”430 Other observers, statesmen, and scholars alike, who have pointed out the inadequacies of the traditional doctrine include Lee C. Buchheit, Prince Hans Adams II of Liechtenstein, and the late Julius Nyerere of Tanzania. In his pioneering study, Buchheit determined that natural rights do not include the right to secession. He was, however, persuaded that a highly qualified right of secession had emerged under positive international law. Buchheit concluded “the evolution of an international legal recognition of secessionist self-determination, although cautious and uniformly conservative, is nevertheless perceptive.”431 For him, “[T]he only really inescapable requirement for a legitimate claim to self-determination is the existence of a genuine �self’ wanting to control its own political destiny.”432 Although of the view that secession is not “a panacea for all the ills of the social condition,” Buchheit maintains that “[i]t makes no sense to uphold the integrity of a State when it no longer satisfies the fundamental purposes of a political association.”433 Prince Adams laments that “[p]eople everywhere are told that they have the right to self-determination. Nevertheless, if this right is OF 426. A. RIGO SUREDA, THE EVOLUTION OF THE RIGHT OF SELF-DETERMINATION: A STUDY UNITED NATIONS PRACTICE 17 (1973). 427. BUCHANAN, supra note 261, at 20. 428. Id. 429. Id. 430. Id. at 21. 431. BUCHHEIT, supra note 252, at 97. 432. Id. at 223 (discussing the Parochialist’s model of seccession). 433. Id. at 225 (emphasis added). 240 [VOL. 48:165 Prospects for Igbo Human Rights suppressed by a sovereign state, the international community supports territorial integrity until a war of independence is successful. As in the past, the entire problem is settled on the battlefield.”434 One of the most memorable criticisms of the traditional doctrine, like Prince Adams’s, from the world of government and diplomacy, is the Tanzanian government’s statement recognizing Biafra delivered by President Nyerere. Nyerere conveyed that “the purpose of society and of all political organizations, is the service of man”435 and that states are designed to safeguard the life and liberty of their inhabitants.436 According to the respected statesman, the powers and machinery of the state may never be turned against a whole group because of racial and related prejudice; where this becomes the case, “the victims have the right to take back the powers they have surrendered and to defend themselves” by creating another instrument for their protection in the form of another state.437 Nyerere believed that a rejected people “must have the right to live under a different kind of arrangement which . . . secure[s] their existence.”438 He said national unity ceases to exist when a group of people become convinced that they are rejected and that there is no longer any basis for unity between themselves and the rest of the country.439 Yet other criticisms of the traditional doctrine come from Francis Deng and his colleagues, Thomas Frank, Professor Umozurike, Professors Raymond Taras and Rajat Ganguly writing together, and 434. Prince Hans Adams II of Liechtenstein, Foreword to SELF-DETERMINATION OF PEOsupra note 24, at ix, xi. 435. Tanzania Recognizes Biafra, supra note 192, at 211. 436. Id. at 208-10. President Nyerere’s statement recognizing Biafra is deservedly praised as “one of the most striking state documents of our time.” See Diamond, supra note 77, at n.13. 437. Tanzania Recognizes Biafra, supra note 192, at 209; see also id. at 210. Nyerere’s thought here as elsewhere in this statement, tracks the “natural rights” doctrine symbolized in the American revolutionary tradition as “codified” in the American Declaration of Independence. The document is world famous for its proposition that governments exist to preserve the life and liberty of its citizens. As this human and fundamental rights masterpiece proclaims, governments became “instituted among Men” to ensure the “inalienable Rights” of individuals, including “Life, Liberty and the Pursuit of Happiness,” and whenever any form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it and to institute new Governments, laying its foundation on such Principles and organizing its Power in such Form, as to them seem most likely to effect their Safety and Happiness. THE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776). 438. Tanzania Recognizes Biafra, supra note 192, at 209. 439. Id. at 210. Nyerere believes it is absurd to kill “in the name of unity” and that “[t]here is no unity between the dead and those who killed them . . . no unity in slavery or domination.” Id. PLES, 2004] 241 Howard Law Journal Professor An-Na’im. Deng, a scholar and former diplomat, along with his collaborators, argued for the reconstruction of the doctrine of sovereignty in a manner that tempers the doctrine with responsibility in matters of human rights and humanitarian assistance.440 Their point is that sovereignty has evolved in our time “to prescribe democratic representation” and “to justify outside intervention” when a humanitarian crisis arises due to a failure to meet this standard, and that a government should not claim sovereignty if it is not able to “establish legitimacy by meeting minimal standards of good governance and responsibility for the security and general welfare of its citizens.”441 Frank advanced a broad principle of “entitlement to equality.”442 According to him, “self-determination is a right applicable to any distinct region in which the inhabitants do not enjoy rights equal to those accorded all people in other parts of the same state.”443 Professor Umozurike contends that concern for human rights, and intervention meant to protect those rights, do not negate the principle of non-interference in a country’s domestic affairs because “breaches of human rights, especially gross breaches, are taken out of domestic jurisdiction.”444 He also wrote that “self-determination need not irresistibly lead to independence or secession, inasmuch as it can also be satisfied through” relations like federalism “that conform with the wishes of the people,”445 leaving open the implication that sepa440. See generally Francis M. Deng, Reconciling Sovereignty with Responsibility: Basis for International Humanitarian Action, in AFRICA IN WORLD POLITICS, supra note 27, at 353 [hereinafter Deng, Reconciling Sovereignty with Responsibility]; SOVEREIGNTY AS RESPONSIBILITY: CONFLICT MANAGEMENT IN AFRICA (Francis M. Deng et al. eds., 1996) [hereinafter SOVEREIGNTY AS RESPONSIBILITY]. 441. Deng, Reconciling Sovereignty with Responsibility, supra note 440, at 357. Deng and his collaborators elaborate compellingly that: Sovereignty is not merely the right to be undisturbed from without, but the responsibility to perform the tasks expected of an effective government. . . . The obligation of the state to preserve life-sustaining standards for its citizens must be recognized as a necessary condition of sovereignty. . . . The state has the right to conduct its activities undisturbed from the outside when it acts as the original agent to meet the needs of its citizens. . . . If the obligation is not performed, the right to inviolability should be regarded as lost, first voluntarily as the state itself asks for help from its peers, and then involuntarily as it has help imposed on it in response to its own inactivity or incapacity and to the unassuaged need of its own people. SOVEREIGNTY AS RESPONSIBILITY, supra note 440, at xviii. 442. See generally THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 168 (1990). 443. Id. at 168. Without doubt, Franck meant external self-determination through separate statehood rather than internal self-determination short of secession. 444. UMOZURIKE, supra note 23, at 7. 445. Id. at 53. 242 [VOL. 48:165 Prospects for Igbo Human Rights rate independence is possible where those relations are lacking or exist only in name. Professors Taras and Ganguly, in their joint text on ethnic conflict, contend that “[w]here a national government does not operate for genuine mutual advantage and discriminates against or exploits certain groups, then this in effect voids the state’s claim to the territory in which the victims reside.”446 Mere inequalities do not trigger this moral argument in favor of secession. Rather, they explained, the argument applies “when ruling elites skew benefits to favor some and disadvantage others in unjustified ways.”447 Last but not least, Professor An-Na’im notes regrettably that “[a]lthough external self-determination in the sense of liberation from traditional colonialism, is firmly established and largely achieved, internal self-determination within existing nation-states, and against what might be called �local colonialism,’ remains problematic,” especially in Africa.448 He thinks it ironic that the independent nationstate, once perceived as the essential prerequisite for achieving the peoples’ right to self-determination, is now viewed “as a major obstacle to realization of that right,”449 leading him to warn that unless African leaders correct this situation “by responding to legitimate demands for self-determination, they should expect to be treated by their peoples as colonial states to be combated in struggles and wars of liberation.”450 The point of these contentions and elaborations, tied with the changes in governmental practice discussed below in the next section, is that future debate on self-determination will need to “take account of the fact that state-shattering, far from being an unusual event, may become routine in the future.”451 Contrary to every expectation, the forces of globalization have not slowed down campaigns for external self-determination or independent statehood in the world.452 Instead, the evolution of an international legal right to secession already evident in 1978 when Buchheit wrote his study on self-determination453 446. TARAS & GANGULY, supra note 421, at 60 (citations omitted). 447. Id. 448. An-Na’im, supra note 45, at 109. 449. Id. at 106. 450. Id. 451. Herbst, supra note 413, at 30. 452. Wolfgang Danspeckgruber, Introduction to SELF-DETERMINATION note 24, at 6 [hereinafter Danspeckgruber, Introduction]. 453. BUCHHEIT, supra note 252, at 97. 2004] OF PEOPLES, supra 243 Howard Law Journal has become more pronounced today. Not only do powerful forces in the international political economy, as Professor Herbst points out, “fully support the geographer’s view of a world with an increasing number of small nation-states,”454 but the impact of the Diaspora in the struggle for self-determination in their homeland has grown beyond what they used to be.455 With the Cold War over and a new world order unfolding, it is about time the international community changed its attitudes and strategies toward self-determination, developed during the era of the Cold War.456 American revolutionary tradition gives a people the right to alter or abolish a government destructive of their rights and replace it with one built on such principles and organization of power that “as to them . . . seem most likely to effect their Safety and Happiness.”457 Self-determination draws its moral and political force from the idea that, like democracy, “government should be based on the consent of the governed.”458 If it still means anything, the doctrine signifies that “only the nation itself has the right to determine its destiny . . . no one has the right forcibly to interfere . . . to destroy schools and other institutions, to violate its . . . customs, to repress its language, or curtail its rights . . . to arrange its life on the basis of autonomy” and that it has “the right to complete secession,” to name these necessary features.459 3. The Changing Doctrine as Governmental Practice Although the movements toward doctrinal change articulated above in the previous section are impressive, even more heart-warming are the changes emanating from governmental practice. These changes include unprecedented acts of power devolution short of complete independence, instances of external self-determination outside the state, and growing constitutionalization of the right to selfdetermination. 454. Herbst, supra note 413, at 30. 455. Wolfgang Danspeckgruber, A Final Assessment, in SELF-DETERMINATION OF PEOPLES, supra note 24, at 339 (pointing out “[n]ever before in history has” the impact of people in the Diaspora on the struggle for autonomy in their homeland “been as immediate, extensive, and direct as today.”) [hereinafter Danspeckgruber, Final Assessment]. 456. See Danspeckgruber, Introduction, supra note 452, at 6. 457. THE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776). 458. See SUREDA, supra note 426, at 17; An-Na’im, supra note 45, at 108. 459. ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 14 n.7 (1995) (quoting J. Stalin, Marxism and the National Question, in MARXISM AND THE NATIONAL AND COLONIAL QUESTION: A COLLECTION OF ARTICLES AND SPEECHES 18-19 (1941)). 244 [VOL. 48:165 Prospects for Igbo Human Rights One country that is illustrative of the power devolution trend is Britain where local self-rule of major constitutional import had been approved for all of the three component nations, namely Wales, Scotland, and Ireland, which, with England, make up the United Kingdom of Great Britain and Northern Ireland.460 For example, the new assemblies granted to Scotland and Wales, which became effective from the year 2000, have authority in a multiplicity of issue-areas that include education and culture, health, economic development and planning, and police protection or law enforcement.461 Amazingly, in Britain, as in the former Yugoslavia, group-beneficiaries of these new autonomies insist on complete independence but without being branded “secessionists” as would probably have been the case if these campaigns had occurred in non-European regions. In Britain, the Scottish Nationalist party regards the creation of the new assembly as a first step on the road to a fully independent Scotland,462 while in Serbia-Montenegro, Montenegro perceives confederation as a prelude to full independence in 2006.463 These critical measures of self-determination stand in contrast to Nigeria, which, despite its portraiture as a federal government, leaves most governmental powers centralized in the hands of the national government. These experiments in internal self-determination in Britain are both impressive and instructive for two reasons. First, Britain is a unitary system under which most power theoretically resides with the national or central government. In Britain, “the national government has all power and has the discretion to grant or withdraw prerogatives and power to local authorities.”464 Second, besides being creator of the patchwork country Nigeria, Britain played a critical role in the defeat of Biafra.465 Instances of external self-determination through secession in the aftermath of the Cold War include the division of the former Soviet Union into fifteen separate parts; the breakup of the former Federation of Yugoslavia into five independent countries; the division of for460. THEEN & WILSON, supra note 66, at 20. The Union Jack, Britain’s national flag, overlaps the crosses of three peoples who once had separate political units, namely, England and Wales whose patron saint is St. George, Scotland whose patron saint is St. Andrew, and Ireland whose own patron saint is St. Patrick. Id. 461. See id. at 22 tbls.2-4. 462. Id. at 22. 463. See Misha Savic, “New Beginning” as Yugoslavia Ceases to Exist, CHI. TRIB., Feb. 5, 2003, at 4. 464. THEEN & WILSON, supra note 66, at 38-39. 465. See discussion supra Part III(B)(2)(iii). 2004] 245 Howard Law Journal mer Czechoslovakia into two countries; admission of East Timor, previously part of Indonesia, into independent statehood; and the ascension of Eritrea, an erstwhile province of Ethiopia, into independent statehood. Eritrea became independent “with the co-operation of the government in Ethiopia.”466 Africa lags behind the rest of the world in instances of self-determination through separate statehood. This is of little import, however. Eritrea is enormously and critically significant because it strikes the “taboo of officially sanctioned secession,”467 and is a direct slap in the face to the OAU convention regarding the inviolability of colonial boundaries. Slowly but surely African colonial boundaries are, in the post-Cold War era, moving toward being modified.468 If, as Professor Clapham poignantly reminds us, “the mighty Soviet Union breaks up into fifteen different fragments, there is no way in which an artificial African state can hold together unless most of its people want it to.”469 One country in Africa that illustrates the trend of constitutionalization of the right to self-determination is Ethiopia, which, in 1994, adopted a constitution stipulating: “Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession.”470 One commentary on the provision states that the argument for exercise of this right is “based on the understanding that the nation-state exists to serve the people and not vice-versa. If any nation, nationality, or people strongly and consist- 466. Mazrui, supra note 267, at 28. 467. Id. 468. See id. (describing federalism, multi-party systems, and related governmental organizational features, which he says are replacing political conventions that, in the past, helped to preserve inherited borders). 469. Christopher Clapham, Democratisation in Africa: Obstacles and Prospects, 14 THIRD WORLD Q. 423, 437-38 (1993). Clapham argues that “[t]he old African state,” based on the hierarchies of rule inherited from European colonialism, is “on its way out,” and any state structure succeeding this dying formation must today rely more on popular support than in the past. Id. at 437. The choice open for African governments today, he believes, is between acquisition of popular legitimacy (meaning being more democratic) or collapse into anarchy. Id. at 437-38. Political conventions used to maintain non-democratic governments in the past that Clapham said have now eroded to the point of no return, include foreign support and attachment to inherited artificial boundaries. Id. at 437. 470. ETH. CONST. art. 39, para 1; see also FASIL NAHUM, CONSTITUTION FOR A NATION OF NATIONS: THE ETHIOPIAN PROSPECT 53 (1997) (praising the right as “part of the broader right to self-determination,” “the ultimate extension and expression of the right to self-determination,” and a guarantee “for sustainable peace and a solid foundation for unity based on equality and mutual respect”). 246 [VOL. 48:165 Prospects for Igbo Human Rights ently feels its interest[s] are not being properly served by the existing status quo, it should be able to change it.”471 The Ethiopian constitution sets forth elaborate procedures designed to facilitate exercise of this right by qualified nationality groups and to afford groups who remain in the union a voice in the decision relating to any exit. Laying down legal-constitutional measures for the exercise of the right to secession smooths out possible disruption that may emanate when a group leaves an existing union to build its own separate statehood.472 The measures also meet Professor AnNa’im’s requirement of not making secession easy but at the same time not so difficult that it is unachievable.473 Just like for Britain, the constitutional innovations coming from Ethiopia are impressive and enormously instructive. Ethiopia, under Emperor Haile Selassie, advocated respect for the inviolability of inherited colonial borders and had no difficulty in supporting Nigeria in opposition to Biafra.474 To move from this position to not only support independence for Eritrea but also to insert in its own constitution a provision stipulating the right of secession as a collective right is a real turnaround in policy toward self-determination for the formerly feudal society. Ethiopia is only part of a broader wind of constitutional change that has been sweeping through Africa since the 1990s.475 In cooperating to let Eritrea go and then leading the way in the institutionalization of constitutional procedures for self-determination for nationality groups all the way to full independence, Ethiopia also represents an important part of those constitutional changes. The arguments made in support of the right to secession—such as that the state exists to serve people—call to mind the language of the American Declaration of Independence476 and the word of countries like Tanzania several 471. NAHUM, supra note 470, at 53. 472. See BUCHHEIT, supra note 252, at 241 (stating that the effects of a successful secession had to be measured both on the remaining state as well as on the international system in general). 473. See discussion supra notes 493-94 and accompanying text. 474. See KIRK-GREENE 2, supra note 170, at 13-15. Communique´ Issued at End of O.A.U. Consultative Mission Visit, reprinted in KIRK-GREENE 2, supra note 170, at 173-74; O.A.U. Resolution on Nigeria (Sept. 1967), reprinted in KIRK-GREENE 2, supra note 170, at 172-73. 475. See Philip C. Aka, Democracy, Human Rights, and the New Constitutionalism in Africa 4-5 (Oct. 23-25, 2003) (unpublished paper presented at the International Law Weekend 2003, American Branch of the International Law Association, on file with author); see also Julius O. Ihonvbere, Constitutions Without Constitutionalism?: Towards a New Doctrine of Democratization in Africa, in TRANSITION TO DEMOCRATIC GOVERNANCE IN AFRICA, supra note 268, at 137, 137-52 (showing how constitutionalism is taking a center stage in the overall agenda for democratic renewal in Africa). 476. See discussion supra note 437. 2004] 247 Howard Law Journal decades ago in recognizing Biafra as an independent country.477 Although it took Ethiopia decades and a devastating civil war with Eritrea to finally embrace this wisdom, that the change occurred at all is nevertheless significant. Another country, this time European, illustrating the trend of the constitutionalization of the right to self-determination is Liechtenstein, which has proposed a draft amendment providing, in pertinent part: Each community has the right to secede. Secession is to be regulated by law or on a case-by-case basis by contract. Secession must be approved by a majority of Liechtenstein citizens resident in the community in question. In the case a majority approves secession the reigning prince shall have the right to order within thirty days a vote of reconsideration six months later.478 What is so impressive about Liechtenstein, with its advocacy of “self-determination through self-administration,” is that it is a microstate with a population of 300,000 people and an area of 200 kilometers479 for which governmental defense of any campaign by communities for self-determination with the response of non-viability would have been compelling. These changes in governmental practices are among the powerful forces in the global political economy that Professor Herbst says “fully support the geographer’s view of a world with an increasing number of small nation-states.”480 4. Beyond the Traditional Doctrine: Survey of Professor AnNa’im’s Proposal for Mediating the Tension Between Sovereignty and Self-Determination Professor An-Na’im has recently made an impressive contribution to the discussion at hand, and thusly, his writing deserves some thorough analysis.481 The piece is also remarkable for the thought it contributes on how to resolve the tension between sovereignty and self-determination—what An-Na’im portrays as “competing claims to 477. See discussion supra notes 436-39 and corresponding texts. 478. Danspeckgruber, Final Assessment, supra note 455, at 352 (quoting ch. 1, art. 2, of the Liechtenstein Draft Convention on Self-Determination Through Self-Administration). Text of the Draft Convention is contained in SELF-DETERMINATION OF PEOPLES, supra note 24, at 38292. For commentary on the Draft Convention, see id. at 365-81. 479. See BRUCE RUSSETT ET AL., WORLD POLITICS: THE MENU FOR CHOICE 495 app. (6th ed. 2000). 480. Herbst, supra note 412, at 30. Many of the countries that became independent in the post-Cold War period are small. For example, Croatia has a population of 4.7 million, Slovenia 2 million, and Eritrea 3.5 million. Id. at 26. 481. See generally An-Na’im, supra note 45, at 105-25. 248 [VOL. 48:165 Prospects for Igbo Human Rights self-determination.”482 An-Na’im’s proposal revolves around two identifiable points: (1) recognition of the existence of an international legal right to self-determination; and (2) the need and necessity for international action–and the role of the international community–in mediation of conflicting claims to self-determination. a. International Legal Right to Secession An-Na’im believes, through his reading of African and UN human rights documents, that “an international legal right to secession” exists.483 Specifically, he said the right of peoples to self-determination contained in the ACHPR as well as in the UN Charter and human rights documents includes internal self-determination at the domestic level, as well as the right of external self-determination through separate statehood in appropriate cases.484 He disagrees with the idea that the right to self-determination stops with internal selfdetermination. [T]he right to self-determination is exercisable within, as well as through, the nation-state. The �nations’ or peoples constituting the Nation of the nation[-]state need not challenge and overthrow that state to satisfy their right to self-determination. Nevertheless, it must remain conceivable that such challenge with a view to establishing a separate nation[-]state may be justified under certain circumstances.485 “A right to secession should be maintained for use as a last resort when all efforts at establishing the appropriate constitutional order have failed.”486 Put differently, an ethnic group should be entitled to external self-determination through secession if its government fails to protect its right to substantive internal self-determination through appropriate constitutional measures.487 Professor An-Na’im argues “that the underlying logic and moral rationale of traditional decolonization cannot end by the achievement of formal independence.”488 Rather, just 482. 483. 484. 485. 486. 487. 488. 2004] Id. See id. at 121. Id. at 108. Id. Id. at 122. Id. at 121. Id. 249 Howard Law Journal [a]s colonized people(s) are entitled to the self-determination of formal independence from a colonial power, so they should be entitled to self-determination through secession from the new independent state if they are denied internal self-determination. In this way, the international legal right of minorities to secession can arise if they are denied internal self-determination at the domestic constitutional level.489 He points out correctly that although the Declaration of Principles affirms the doctrine of sovereignty and territorial integrity of existing states, the affirmation is not absolute since it makes sovereignty contingent upon states “conducting themselves in compliance with the principles of equal rights and self-determination of peoples.”490 The Declaration is important because it is a most authoritative international document that codifies important principles of international law and deals with the issues those principles tackle in the post-colonial context.491 Although Professor An-Na’im espouses an international legal right to secession, he wants that right maintained for use “as a last resort when all efforts at establishing the appropriate constitutional order have failed.”492 His position is for the combination of an “ultimate threat of secession” and the difficulty of its achievement to provide an incentive to all parties to “a majority/minority conflict to develop and implement the necessary constitutional mechanisms to achieve substantive internal self-determination for all segments of the population.”493 As he sees it, the threat of secession should reinforce the obligation of the leadership of a country to allow its population the maximum degree of internal self-determination, while the difficulty of achieving secession should strengthen the cooperation of all segments of the population in building national unity.494 Put simply, Professor An-Na’im does not want the right to selfdetermination made too difficult that it becomes unachievable or else there will be no incentive for a government to allow its population the maximum degree of internal self-determination; on the other hand, it should not be too easy to achieve so that groups are not tempted to 489. Id. 490. Id. at 114 (interpreting the Declaration of Principles, Princ. (e), para. 7). 491. See generally C. Don Johnson, Note, Toward Self-Determination—A Reappraisal in the Declaration on Friendly Relations, 3 GA. J. INT’L & COMP. L. 145-63 (1973). 492. An-Na’im, supra note 45, at 122. 493. Id. at 121. 494. Id. at 106. 250 [VOL. 48:165 Prospects for Igbo Human Rights use that right illegitimately. Countries need to find some ways to balance the legitimate demand of separate identity against the equally legitimate claim of national integration. Whether through federalism or any other devise of autonomy a country chooses, the basic objective should be to afford groups equal opportunity in political, economic and social matters at the national level and equality in pursuit of cultural identity.495 Where these objectives are achieved, there will be no objective justification for secession since secession is not an end in itself, but rather a means to these objectives.496 There is no one best formula for these things and Professor An-Na’im does not advocate any such universal prescription, but the basic criterion is what he denominated the “�golden rule of reciprocity’: one should place the self in the position of the other person; whatever the self expects or demands must be conceded to the other person.”497 But articulating and implementing an appropriate constitutional measure, he said, will necessarily be predicated upon a fundamental appreciation of the legitimate collective rights of an ethnic or minority group involved.498 b. Importance of International Action in the Protection of Human Rights Professor An-Na’im advocates a more active role for the international community in safeguarding human rights. He said the fundamental choice facing the international community is between ensuring satisfaction of people’s right to internal self-determination and risking the difficult-to-contain-or-confine conflict that might result from demands for secession.499 Conflicts know no national boundaries,500 he said. Not only that, but seemingly local conflicts can also as well endanger “the vital interests of other states.”501 He says the international community can help prevent this through “international political accountability” and “economic pressure” on offending governments,502 specifically by impressing on national governments that they cannot get away with denying their own population’s internal self-determination. What he means, he says, is not direct unilateral 495. 496. 497. 498. 499. 500. 501. 502. 2004] Id. at 118. Id. Id. Id. An-Na’im, supra note 45, at 120. Id. (“No civil war can be relied on to remain within the boundaries of any state.”). Id. Id.; see also OKAFOR-OBASI, supra note 19, at 96-113. 251 Howard Law Journal intervention, but rather “concerted and coordinated efforts at mediation and influence through multilateral action of regional and international organizations, such as the [UN] and the Organization of African Unity, to achieve and maintain internal self-determination for all the peoples of each country.”503 International and regional organizations or other mutually acceptable mediators can provide or devise the forum for negotiations and where needed, the personnel of these organizations or other mutually acceptable third parties can act as mediators or facilitators of dialogue and negotiation.504 Where all efforts to achieve internal selfdetermination fail, however, the international community should not deny an oppressed minority its right to external self-determination through secession,505 and therefore, the opportunity to secure their own individual and collective rights with the help of the international community. 5. The Changing Doctrine and Igbos Recent developments discussed above relating to the changing doctrine, including changes in governmental attitude toward self-determination, both support and strengthen the case for Igbo statehood. Those recent external developments are then in turn significantly reinforced by a Nigerian internal development. That internal development, forming some of the backdrop for the discussion of Igbo human rights in this Article, is the changed context of the Biafran defeat more than three decades ago, symbolized by the rise, under General Obasanjo’s presidency, of a growing movement in the country and in the Diaspora for the “actualization” of Biafra.506 General Obasanjo was the military commander who received the Biafran surrender in 1970. A recent Igbo campaign for separate statehood took off in May 2000 when the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) embarked upon a program aimed at resurrecting the defunct Republic of Biafra, although agitation for Biafra 503. An-Na’im, supra note 45, at 120-21. 504. Id. at 116. 505. Id. at 121. 506. The meaning of actualization includes to realize something in action or portray that something realistically. See THE AMERICAN HERITAGE COLLEGE DICTIONARY 14 (4th ed. 2002). Therefore, organizations seeking to actualize Biafra appear to believe Biafra never actually died. 252 [VOL. 48:165 Prospects for Igbo Human Rights actually preceded that date.507 In a petition it sent to the UN, MASSOB indicated that: The said Biafra is currently struggling to gain independence from Nigeria. We, therefore, under the present circumstance, humbly apply to be admitted, registered or treated, as the case may be, as an unrepresented nation in any of the organs of the United Nations, having renounced our Nigerian nationality.508 The organization stated that its campaign for actualization of Biafra would be non-violent and non-exodus, meaning that Igbos would not have to leave their jobs and investments outside Igboland this time, as they did in 1966-67.509 Elaborating on its actualization strategy, MASSOB pointed out that “Independence is different from overthrowing of government. Independence goes with negotiation. We are negotiating Biafra’s independence.”510 The rise of MASSOB and other Biafran actualization organizations inside and outside Nigeria is “a response to the terror, cruelty, failure and utter lack of humanity” of the Nigerian State.511 General Obasanjo’s response to the peaceful and nonviolent agitation for independence is that “[t]here is no peaceful way of getting out of Nigeria”; he insists Nigerians “can find a peaceful way of living together in harmony.”512 To underscore this inflexible position, his government has 507. For example, the Igbo pan-nationalist organization, Ekwe Nche, based in Chicago, adopted a constitution on February 19, 1999 that has as one of its objectives, “striv[ing] for the peaceful actualization of the Sovereign State of Biafra.” See § 2.5.1 EKWE NCHE ORG. CONST. (on file with author). 508. Obiora Chukwumba, Tension in the Land, TELL (Lagos), Nov. 22, 1999, at 17. 509. Toyi Olori, Igbos Resurrect Biafra Secessionist Bid, INTERPRESS NEWS SERVICE, May 29, 2000 (on file with author). 510. Id. 511. Anonn Is Anall, Biafra: A Tragedy Set to be Repeated? IRISH DEMOCRAT, at http:// www.irishdemocrat.co.uk/columns/anonn-is-anall/biafra/ (last updated July 30, 2002). For a detailed discussion of “the secession conundrum” in the country, see Aka, Nigeria Since May 1999, supra note 58, at 246-52. 512. See Aka, Nigeria Since May 1999, supra note 58, at 248 & n.238 (citing Muyiwa Adeyemi & Isa Abdulsalami, We Can Find Peaceful Living, THISDAY (Lagos), Dec. 7, 2001). General Obasanjo is aware that the peaceful coexistence he counsels has little chance of happening in Nigeria and he overlooks the advice of scholars like Professor An-Na’im that although desirable, national unity and integration are not things pursued at any cost, “certainly not at the cost of achieving personal liberty and economic, political, and social justice for all segments of the population, or at the cost of securing collective and individual rights.” An-Na’im, supra note 45, at 106, 122. Another An-Na’im counsel is instructive here: Unless African governments learn to respond to the legitimate demands for self-determination in their countries, they should expect to be treated by their peoples as colonial states to be combated in struggles and wars of liberation. Id. at 106. At other times, the President has simply maintained, in seeming obliviousness to the relentless centrifugal pulls inside the country, that “[t]oday, no serious-minded Nigerian is talking of breaking Nigeria up. Nigerians today have hope, and when you have hope, you have a lot. Nigerians today feel that they can get justice.” Aka, Nigeria Since May 1999, 2004] 253 Howard Law Journal repressed and brutalized groups inside Nigeria like MASSOB campaigning for the actualization of Biafra,513 while leaving untouched northerner politicians who, by replacing the country’s secular legal system with Muslim Sharia code, have engaged in an act of effective secession from the country.514 supra note 58, at 252 & n.267 (citing Talking Point, Interview by Robin Lustig with Olusegun Obasanjo, President, Nigeria, Abuja, Nigeria (Feb. 16, 2002)). 513. See Aka, Nigeria Since May 1999, supra note 58, at 248. 514. Detailed discussion on this topic can be found in Aka, Nigeria Since May 1999, supra note 58, at 240-46. In a widely publicized lecture delivered in Fall 2002, General Ibrahim Babangida, military ruler from 1987 to 1993, criticized General Obasanjo for showing a “poverty of leadership” in dealing with escalating ethnic nationalism in the country and promoting national integration. See General Ibrahim B. Babangida, Ethnic Nationalities and the Nigerian State: The Dynamics and Challenges of Governors in Plural Nigeria, Address Delivered at National Institute of Policy and Strategic Studies 6 (Nov. 22, 2002) (on file with author). He said that during his period in office he was “conscious of and convinced,” “about the necessity for thoroughgoing and systematic reforms of our economy, society and political process, in order to assist in creating a better space for the multiple nationalities of the country,” arguing that this was the basis for the economic reforms and democratization of the political process he undertook between 1985 and 1993. Id. He blamed the manifestations of ethnic tensions that have arisen under General Obasanjo on “the reactive excesses of the” government and the “selective injustice meted out to certain ethnic nationalities by the government.” Id. Babangida also believes the federal character doctrine is not being properly applied under President Obasanjo. The former dictator stated that the 1999 Constitution is filled with “numerous imperfections” and needs reformation to meet “the processes and expectations of democracy.” Id. He would want “[t]he entire constitutional order” reviewed, if necessary via a well-organized national conference of ethnic nationalities. Id. In fact, he believes the Nigerian State needs a complete reconstitution “so as to endow it with a modicum of neutrality, objectivity and justice in its operation.” Id. The presentation provides some insights on some of the problems highlighted in this Article regarding the ill structure of the Nigerian system and the violations of Igbo human rights that go on within that system. The former dictator sees numerous imperfections with the 1999 constitution that need to be corrected, and he believes that the federal character doctrine is not being properly applied under General Obasanjo. Id. He also thinks the Nigerian state needs complete reconstitution, disclosing that going back to the period of his days in office from 1985, he had become “convinced” about the necessity for a “thoroughgoing and systematic reforms of” the country’s politics, economics, and society. Id. General Babangida also validates violations of Igbo human rights that still go on in Nigeria. Id. In addition to the illegal and unconstitutional application of the federal character doctrine (which militates against safeguard of Igbo rights) that he spoke about, General Babangida also inveighs against the Obasanjo government’s meting out “selective injustice” “to certain ethnic nationalities.” Id. Igbos top the list of those unnamed ethnic nationalities. Although his diagnosis is on point, General Babangida is a huge part of what is wrong with Nigeria and its leadership. He is notorious for the fake transition-todemocracy program, ending in the annulment of comparatively free and fair elections, he unveiled from 1987 until 1993 when he left office involuntarily. See generally TRANSITION WITHOUT END: NIGERIAN POLITICS AND CIVIL SOCIETY UNDER BABANGIDA (Larry Diamond et al. eds., 1997). His attempt at economic reforms, like with his political reforms, was also halfhearted and a failure. See Chukwuma F. Obidegwu, Nigeria: Priorities and Prospects for the 1990s, in PROSPECTS FOR RECOVERY AND SUSTAINABLE DEVELOPMENT IN AFRICA 126, 126-61 (Aguibou Y. Yansane ed., 1996). There are also aspects of the speech that leave the reader unpersuaded regarding General Babingida’s sincerity concerning his latter-day enamor for fundamental restructuring. He regrets that so-called “foundational issues,” matters at the “federalist foundations of the Nigerian State” considered “no go areas” when he was in office, have become “worrisomely re-invented in recent times.” Id. A true reformer convinced of the neces- 254 [VOL. 48:165 Prospects for Igbo Human Rights Although the current Igbo campaign for separate statehood is, like the one of 1967, the result of Nigerian local factors,515 the campaign also reinforces Danspeckgruber’s argument that “the intensification of globalization has not diminished the frequency . . . of struggles for self-determination and secession.”516 The rise of Igbo organizations, in the U.S. and other foreign countries, committed to the actualization of Biafra also validates his point about the growing impact by people in the Diaspora on the struggle for autonomy in their homeland, which Danspeckgruber argues is “as immediate, extensive, and direct” as “[n]ever before in history.”517 The Biafran conflict from 1967 to 1970 divided the United States and the international community.518 A similar conflict today will have broader consequences, given the larger and ever-growing community of Igbo immigrants today in the United States and other countries. This occurrence also reinforces Professor An-Na’im’s argument about the necessity for international action in mediating conflicting claims to self-determination. In a post-Cold War era characterized by “self-determination through self-administration,”519 searches for new legal arrangements,520 and constitutionalization of the right to selfdetermination,521 even stronger unions than Nigeria, like Yugoslavia, sity of restructure for a colonial state like Nigeria would not declare any issue a “no go area.” Also, although as a private citizen he would not mind convocation of a national conference of ethnic nationalities to decide on the future of the country, something for good measure which sets him apart from General Obasanjo, who does not believe in such a conference, the support is tentative and conditional. Id. So, for all his latter-day verbal commitment to restructuring, I would still rank Babangida among those leaders of the country who, like Obasanjo, are allergic to restructuring and are content with mere tinkering of the Nigerian system. Such flinching commitment to structural reform could have been among the reasons why his political and economic reforms failed dismally. Last but not least, Babangida was a major part of the reason why the country’s entire constitutional order, by his word, needs review today. His ascension to office via a military coup, his dictatorial and unaccountable leadership style, and his long unelected stay in office spanning eight whole years, deprived the country of much-needed opportunity for democratic-constitutional growth. 515. See Biafran Memorandum Circulated to Heads of State at O.A.U., supra note 200, at 171 (maintaining that “[e]very Federation that has broken up in history has broken up because of some identifiable local cause and not in consequence of an external factor”). 516. Danspeckgruber, Introduction, supra note 452, at 6. 517. Danspeckgruber, Final Assessment, supra note 455, at 339. 518. See generally STREMLAU, supra note 207. 519. See discussion supra note 477 and accompanying text. 520. Danspeckgruber, Final Assessment, supra note 455, at 352; Wolfgang Danspeckgruber, Self-Determination and Regionalization in Contemporary Europe, in SELF-DETERMINATION OF PEOPLES, supra note 24, at 165, 196; see also discussion supra notes 460-61 and accompanying text (pointing to instances of power devolution short of complete independence). 521. See discussion supra note 470-78 and accompanying text. 2004] 255 Howard Law Journal have disintegrated because they failed to readjust at the most appropriate time.522 B. Lack of Any Articulable Objections to Igbo Separate Statehood The following are four possible objections to Igbo separate statehood, stated in reverse order for their lack of persuasiveness, or ease of refutability: (1) the Igbo nation as it exists today is a creature of British colonialism (the “No Britain, No Igbo” argument), (2) Balkanization, (3) the concern that separation will be violent, and (4) the concern that an Igbo state will not be protective of human-rights. These objections, none of which is tenable, are discussed in turns. 1. Argument That the Igbo Nation as It Exists Today Is a Creature of British Colonialism (the “No Britain, no Igbo” Argument) The first possible objection to Igbo separate statehood is that the Igbo nation as we know it today is a product of British colonial rule in Nigeria; in other words, but for British entry into Nigeria, there would be no Igbo nation today seeking conference of independent statehood for the consummation of human rights. This argument is the least compelling among the possible objections to Igbo statehood, however, and is accordingly the most easily disposable. Britain did not create the Igbo nation. Before British entry into what became Nigeria, Igbos had a history of independent existence that goes back “at least [5,000] years.”523 “One of the most notable facts of Igbo history,” as Professor Isichei recounted in her history of the Igbo people, “is its length and continuity.”524 This objection would still not have been compelling if Britain had created the Igbo nation. What is important is whether a nation exists today that is considered a “people” within the meaning of African and UN human rights instruments, and therefore entitled to the right to self-determination either internally within a nation-state or externally through separate statehood, not who brought it into existence. What critics who make this argument actually meant to convey, as earlier indicated in this Article, is that current pan-Igbo identity 522. See Tilde, supra note 397. 523. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 3. 524. Id. 256 [VOL. 48:165 Prospects for Igbo Human Rights and the use of the Igbo ethnic label are externally imposed phenomena that came with British colonial rule.525 Igbos “beg[a]n to think of themselves as a unified people” following British entry into Nigeria,526 and British intervention “violently extended the categories through which the Igbo perceived their world.”527 This information is immaterial, however, because it has nothing to do with whether an Igbo nation is considered a people within the meaning of the applicable global human rights principles. Although it is difficult to see how a nation can exist and not have some consciousness of its existence, the need for pan-Igbo identity or the use of any ethic label (necessary for groups to differentiate themselves in competition for scarce resources with one another)528 was created by British intervention and would not have been necessary if Britain had not come into Nigeria and lumped together ethnic groups which before then did not live together under one national roof. 2. The Balkanization Argument A more popular and seemingly more compelling objection to separate Igbo existence than the “no Britain, no Igbo” argument is Balkanization. The root of the word comes from the partition of the Balkans in the early twentieth century; the term means the division of a region or territory into small, often hostile, units.529 Organizations (such as the OAU) and countries that sided with Nigeria during the war, in opposition to Biafra, used this argument.530 Balkanization embeds a domino theory: “B” will happen if “A” occurs as “the chain reaction” in Professor Isichei’s statement conveys.531 Although a little better than the “No British, No Igbo” argument, the Balkanization argument is also easily disposable for a number of reasons. First, the increased “evolution of an international legal recognition of secessionist self-determination”532 marked by the recognition 525. See discussion supra notes 74-75 and accompanying text. 526. Phoebe V. Ottenberg, The Changing Economic Position of Women Among the Afikpo Ibo, in CONTINUITY AND CHANGE IN AFRICAN CULTURES, supra note 67, at 205. 527. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 20. 528. See CHAZAN ET AL., supra note 5, at 109. 529. See THE AMERICAN HERITAGE COLLEGE DICTIONARY 104 (3d ed. 1993). 530. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 247 (“Many feared that if secession was successful it would set off a chain reaction of conflicts all over Nigeria, which would dwarf the tragedies of 1966 in their horror.”). 531. See also Government of Tanzania, Memorandum on Biafra’s Case, reprinted in KIRKGREENE 2, supra note 170, at 436-40 for President Nyerere’s elaboration of the theory in relation to Nigeria and Africa. 532. BUCHHEIT, supra note 252, at 97. 2004] 257 Howard Law Journal of separate existence for countries in the world, not a few of them small, reduces the persuasiveness of the argument. Second, as the Biafran government argued in 1969, Balkanization can give “to precedent a force that it does not possess” given that “[e]very Federation that has broken up in history has broken up because of some identifiable local cause and not in consequence of an external factor.”533 Although save perhaps for the four African countries that recognized Biafra,534 the OAU ignored this rebuttal; the point is as valid today as it was in 1969: Internal factors play a major role in many national conflicts, and question the domino theory embedded in Balkanization. Third, many African countries were smaller than Biafra and the OAU appeared to be more concerned about maintaining Africa’s colonially-handed boundaries than about Balkanization per se. Fourth, Balkanization was never a major factor for the Western powers that supported Nigeria in opposition to Biafra. Rather, as Professor Isichei herself indicated, these powers were moved “by a complex set of economic calculations, and a realistic assessment of who was likely to win,” more than by any concern about Balkanization.535 3. The Concern That Separation Will Be Violent Critics for whom the first two objections are not workable may yet see in this third argument a basis upon which to raise an objection against a separate state for protection and consummation of Igbo human rights. A previous attempt to achieve that separation ended violently leading to horrible human rights atrocities against Igbos.536 Also, successful secession is something influenced by “the power relations between the contending parties”537 which as in 1967, may not favor Igbos. Separate statehood does not have to be something pursued by force, however. Within recent times, the separation in the former Yugoslavia was associated with force; so also was Eritrean independence accomplished after decades of war with Ethiopia. But the division of the former Soviet Union into fifteen separate countries was a peaceful event. The same peacefulness characterized the separation of the 533. Biafran Memorandum Circulated to Heads of State at O.A.U., supra note 200, at 171. 534. The countries are Gabon, Ivory Coast (today Cote ˆ d’Ivoire), Tanzania, and Zambia. A non-African country, though Black too, that recognized Biafra was Haiti in the Caribbean. 535. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 247. 536. See discussion infra Part III(B)(2). 537. UMOZURIKE, supra note 23, at 53. 258 [VOL. 48:165 Prospects for Igbo Human Rights Czech and Slovak peoples once housed together under one national roof as Czechoslovakia. In short, as Professor Goldstein said, selfdetermination is “not always” violent, but rather something that sometimes can be achieved peacefully and nonviolently.538 Like these instances of peaceful independence, Igbo separation will be achieved peacefully and non-violently rather than by any force of arm. Igbo secession (and the attendant civil war) did not precipitate the killings and other atrocities against Igbos that took place between 1967 and 1970; rather, the course of events was the other way round in the sense that the massacres of Igbos in 1966 precipitated the secession and civil war. Also, despite the human catastrophe the secession brought upon the Igbo nation, the secession and resultant civil war would still have been necessary if, as some Igbo leaders have argued, they averted an extermination of the Igbo people which would have occurred in their absence. Finally, while it may be true that a successful political divorce539 is influenced by “the power relations between the contending parties,” power does not have to mean force, but rather something that goes to the merit of a particular group’s case for separate existence. Even in 1967, Biafra never used force. The Igbos never chose war to achieve or back their independence but rather had a civil war forced on them.540 There is much less reason today to resort to any force. Instead, independence is something the various parties involved can peacefully negotiate, with the international community as facilitator as was the case in Eritrea and East Timor, where a UN plebiscite or referendum preceded separation. It is instructive that all the organizations today advocating Igbo independence understand that this is an issue that will be resolved through negotiation. Thus, MASSOB indicates that it has no plans to overthrow the Nigerian government: “Independence goes with negotiation. We are negotiating Biafra’s independence.”541 Besides indicating that their campaign will be peaceful and nonviolent, organizations advocating Igbo separate statehood also insist 538. See discussion supra note 420. 539. The expression comes from BUCHANAN, supra note 261 (cover title of book). 540. See discussion supra Part III(B)(2)(d); IGBOKWE, supra note 88, at 10. The Biafran war was for Igbos simply a war of resistance. As Dr. Ransome-Kuti said, referring to the Nigerian government, “You cannot kill tens of thousands of a people, take over the government with arms and expect them to stay around like sitting ducks especially after unilaterally abrogating a negotiated settlement.” Ransome-Kuti, supra note 250, at 48. 541. Olori, supra note 509. 2004] 259 Howard Law Journal that it will be “non-exodus,” quite mindful of the refugee nightmare the mass exodus of 2 million dispossessed Igbos fleeing from northern Nigeria created for Igbos and the world in 1967.542 No violence will attend separation more than the violence that has occurred and is still occurring now, absent separation. Still on the place, or lack of it, of force in campaigns for self-determination, one lesson coming from the latest Igbo campaign for independence, arising after almost thirty long years after the war for Biafra, is that force suppresses but does not kill the legitimate urge of a people to control their political destiny.543 Negotiations preceding separation should address the reasonable fears of parties opposed to separation and the possibility of accommodating those fears through, for example, access to natural resources or access to the sea for landlocked areas without such access. As Buchheit pointed out in his important study, the theoretical objection to including separate existence within the doctrine of self-determination tends to fizzle out “[o]nce the political fears engendered by secession are assuaged.”544 Negotiation may also involve creative techniques designed to ease the pain of separation that could start, for example, with devolution of powers through a political structure resembling a confederal system as Serbia-Montenegro adopted.545 Even with their justified bitterness toward Nigeria, Biafrans after their separation from Nigeria in 1967, released a memorandum on proposed future association with the rest of Nigeria on terms “worked out in such a manner that they do not compromise or detract from the sovereign rights of the states concerned.”546 The memorandum recognized that common experience arising from numerous years of ties between Biafra and prospective states in Nigeria “provides a sound and realistic basis for a fruitful relationship.”547 There is no reason 542. See discussion supra notes 170-71 and accompanying text. 543. The campaign today inside and outside Nigeria for an independent Igbo state calls to mind General Ojukwu’s uncanny word from exile to the effect that “Biafra cannot be destroyed by mere force of arms” given “the crystallization of the cherished hopes of a people who see in the establishment of this territory a last hope for peace and security” that the Biafran phenomenon represented. See Ojukwu’s Call From Exile, reprinted in KIRK-GREENE 2, supra note 170, at 456. 544. BUCHHEIT, supra note 252, at 20. 545. See discussion supra note 463. 546. Biafran Memorandum on Proposed Future Association (Aug. 29, 1967), reprinted in KIRK-GREENE 2, supra note 170, at 163. 547. Id. See also the press release of the Zambian government which, in recognizing Biafra’s independence, importantly stated: We hope that the establishment of this Republic will now allow Nigeria and the people of Biafra to work out a better frame-work for cooperation . . . to ensure a better platform for more realistic unity among themselves . . . to live in peace and to foster Afri- 260 [VOL. 48:165 Prospects for Igbo Human Rights the Igbos could not extend this gesture of future cooperation again, if need be. Another issue that negotiations should address will be the identity of the “self” to be determined. Old Biafra consisted of ethnic groups other than Igbos but excluded Igbos in the former Mid-Western Region across the Niger who remained in Nigeria. The current Igbo campaign for separate self-determination involves Igbos across the two sides of the Niger and does not affect non-Igbos who may prefer to remain in a reshaped Nigeria. In short, the geography of Old Biafra may be adjusted in the course of negotiation to separate any group(s) other than Igbos who choose to remain a part of Nigeria. An-Na’im said Biafra had all the qualifications for independent statehood except external sponsorship by an important power or powers. The current campaign has even stronger qualification. Igbos have grown beyond the mere 8 million they were in 1967. Today their population in Nigeria alone, not including the substantial number of individuals in the Diaspora, stands at over 30 million. Thus viability is even better. Also, the possibility of irredentism which would have occurred if Old Biafra had survived is out of the question today since Igbos from both sides of the Niger are engaged in the campaign, unlike in 1967, when one section of the Igbo nation, Delta Igbos, remained in the Mid-West as part of Nigeria. The argument supporting inclusion of non-Igbos in Old Biafra was a most valid one considering that: (1) with Igbos, these minority non-Igbos comprised Eastern Nigeria, and (2) all Easterners, Igbos and non-Igbos alike, were victims of the massacres of 1966. Because of their cultural affinities or similarities,548 the marauding northerner tormentors had difficulty distinguishing non-Igbo Easterners from Igbos. While the cultural affinities still remain, since the end of the war in 1970, non-Igbo Easterners have lived a different experience can Unity in the spirit of brotherhood and mutual cooperation for the benefit of all the peoples of that region. Zambia Recognizes Biafra, (Statement by Zambian Foreign Minister, May 20, 1968), reprinted in KIRK-GREENE 2, supra note 170, at 220, 221. 548. See Elbert et al., supra note 91 (referring to Eastern Nigeria as peoples for centuries so “intricately interrelated, culturally, socially, and economically” and contiguous they may be defined as an ethnological cultural area); see also O’Brien, supra note 170 (stating that non-Igbos in Eastern Nigeria “share common values with” and “pride[d] themselves on the same qualities” of “egalitarian manners, thirst for education, commercial enterprise, self-reliance, and technical ingenuity” Igbos were known for.) Despite these similarities, Igbos and only Igbos formed the target of the killers’ venomous attacks, except in instances when these human rights violators erroneously missed their targets. 2004] 261 Howard Law Journal from the human rights deprivation Igbos have endured. The limitation of the current campaign to only Igbos also precludes the problem of minority domination, often a rebuttal issue in campaigns for selfdetermination. New Biafra, as designed, would rank about the most homogeneous countries in Africa. The complicated issues that may be involved in negotiation for separate statehood suggest the necessity for some kind of dialogue to deal with those issues549—and an administration, not the current Obasanjo regime, ready and willing to initiate such a dialogue. Criteria have evolved today for testing the validity of a claim for separate existence for human rights purposes that Igbos duly satisfy.550 Opposition to legitimate campaign for independence by entities who choose to remain in what is left of Nigeria will create hard feelings that might in the future impede good neighborliness, and the cultivation of friendly relations among independent countries. 4. Concern That an Igbo State Will Not Be Protective of Human Rights If none of the three factors above provides objection to deny Igbos a separate state for the protection of their human rights, critics may choose to seek that objection in the contention that Igbos would not be able to protect their own human rights. In other words, they would argue that an Igbo state will not be more protective of human rights than the country from which the Igbos exited. After all, they would say, Africa is a continent rife with human rights violations and 549. See Tilde, supra note 397 (stating that all Nigerians need “to start a . . . restructuring journey” is dialogue). 550. These criteria are: (1) the degree of internal cohesion and self-identification of the group, (2) the nature and scope of the claim, (3) the underlying reasons for the claim, and (4) the degree of deprivation of basic human rights. See An-Na’im, supra note 45, at 114. The higher the degree of internal cohesion and self-identification of the people, the greater their historical claim to separate identity; the more they are deprived of their basic human rights under the present nation state, the stronger would be the case for secession. Id. at 114. Where secession appeared justified in a given case, as Professor An-Na’im counsels, the principle of self-determination would require granting it and recognizing the new state; where clearly not justified or of doubtful validity, alternative arrangements for satisfying claims for self-determination ought to be considered. Id. at 113. Secession will be clearly justified in the Igbo case and, as we have argued in this Article, nothing less than complete independence from Nigeria will work to safeguard Igbo human rights. The additional conditions An-Na’im lays out are also met here. Igbos will form a clear majority in a new Igbo state, and there is no case of any minorities being dominated since Igbos alone will form the state. External sponsorship is a matter outside their control that the international community will see to, or something that will not be necessary if Nigerian authorities cooperate, as Ethiopia did in the Eritrea situation, to facilitate the accomplishment of separate statehood. 262 [VOL. 48:165 Prospects for Igbo Human Rights an independent Igbo state would still be part of the African landscape. Pointing to practices like slavery, the slave trade, subjection of individuals to outcast status and other acts of discrimination, and twin-killings, they would argue that traditional Igbo societies knew little respect for human rights or, as one scholar put it, that the human rights concept did not exist in traditional Igbo societies.551 Although this is the most compelling of all the possible objections examined here, this argument is also untenable. A major point in the objection here would be Igbo participation in the slave trade. Although some Igbo elites, like other African elites, undoubtedly participated in the obnoxious trade in humans, the trade “was a very complex process involving a very wide variety of power relationships and participants whose interests and responses . . . changed with the course of time.”552 Specifically, the slave trade was a “one-sided relationship founded and maintained on [European] threat of force”553 which one-sidedness Igbo and African collaboration does not minimize. As Davidson discloses, “�Europe dominated the connection, shaped, and promoted the slave trade, and continually turned it to European advantage and to African loss.’”554 Some of the evils of the pre-colonial period, such as human sacrifices, trial by ordeal, and rampant kidnapping, were also practices that have been associated with the slave trade.555 Also, our understanding of human rights was not as well developed as it has become today under the United Nations system. A number of nebulous issues an analyst must confront in applying human rights to the period would include whether Igbos have a state or government in the regular sense to which a concept of human rights could be properly applied, and whether matters such as the (mis)treatment of slaves in slave vessels during the course of the middle passage were something that could be attributed to African governments. What about the circumstances that made individuals seized as slaves to give their lives rather than be 551. See OSITA C. EZE, HUMAN RIGHTS IN AFRICA, ch. 1 (1984). 552. M’Bokolo, supra note 145, at 201. 553. Id. at 202. 554. Id. (quoting DAVIDSON, supra note 146); see also KARENGA, supra note 371, at 396, who properly views the reference to African collaboration in the slave trade as blaming the victim, noting importantly: “No one morally sensitive claims Jews are responsible for the holocaust based on the historical evidence of Jewish collaborators. How then are Africans indicted for the collaborators among them?” 555. ISICHEI, GENESIS OF A RELATIONSHIP, supra note 65, at 59-60. 2004] 263 Howard Law Journal slaves in a foreign land? Were these not matters outside the control of Igbo and other African governments? In contrast to the pre-colonial period, the nearly three years of civil war from 1967 to 1970, ironically, holds out a better test-case of how an independent Igbo government would have handled human rights. Evidence from this brief period of independent statehood556 suggests that an Igbo government conducted itself well with respect to the observance of human rights. Time magazine, in 1968, called Biafra “a war time democracy” with a “functioning judiciary, a ministerial executive government and a civil service,” where decisions were frequently made based on the advice of a consultative assembly of elders.557 This contrasted with Nigeria where a military regime, whose authority to govern the Biafran government is contested,558 held sway all by itself without the existence of any similar legislative consultative body sharing powers.559 Briefly, Biafra is impressively democratic and efficient for a country at war.560 Biafra uncaged and unleashed the immense creative potentialities of the Igbo. The war years marked the sudden technological transportation of an African people to the world stage as General Ojukwu recounts compellingly in the following excerpt: “The war has come and gone but we remember with pride and hope the three heady years of our freedom. These were the three years when we had the opportunity to demonstrate what Nigeria could have been even before 1970. In three years of war, necessity gave birth to invention. During those three years, . . . in one heroic bound, we leapt across the great chasm that separates knowledge from know-how. We built bombs, we built rockets, we designed and built our own delivery systems. We guided our rockets, we guided them far, we guided them accurately. For three years blockaded without hope of imports, we maintained engines, machines and technical equipment. We maintained all our vehicles. The state extracted and refined petrol, individuals refined petrol at the back of their gardens. We built and maintained our airports, maintained 556. Debate exists regarding whether, under international law, Biafra entered the community of nations, as an independent state, for a period before leaving it again under duress. Compare C. OKEKE, THE EXPANSION OF NEW SUBJECTS OF CONTEMPORARY INTERNATIONAL LAW THROUGH THEIR TREATY MAKING CAPACITY 165 (1973) (saying “yes”), with David A. Ijalaye, Was “Biafra” at Any Time a State in International Law? 65 AM. J. INT’L L. 551, 559 (1971) (arguing contra). 557. Nigeria’s Civil War, supra note 80. 558. See discussion supra note 187 and accompanying text. 559. See discussion supra note 195 and accompanying text. 560. Nigeria’s Civil War, supra note 80. 264 [VOL. 48:165 Prospects for Igbo Human Rights them under heavy bombardment. Despite the heavy bombardment, we recovered so quickly after each raid that we were able to maintain the record for the busiest airport on the continent of Africa. We spoke to the world through a telecommunication systems engineered by local ingenuity, the world heard us and spoke back to us. We built armored cars and tanks. We modified aircraft from trainers to fighters, from passenger aircraft to bombers. In three years of freedom we had broken the technological barrier. In three years we became the most civilized, the most technologically advanced black people on earth. We spun nylon yarn, we developed new seeds for food and medicines . . . .”561 Biafra held a potential for democracy that few African countries at the time possessed. One document that symbolized that promise of governmental performance was the Ahiara Declaration, General Ojukwu’s blueprint for a novel political system that marked Biafra apart from Nigeria.562 Though portrayed as a work of expediency,563 and the future it confidently crafted was criticized as less than real,564 “[n]evertheless, not many states have found time and inclination, amid the desperation of a losing war, to debate the nature of the just society, and ways in which it might be attained.”565 At the least, the declaration embodied the hopes and aspirations of many in Africa who saw Biafra as “a first step to establishing a more just society” on the continent.566 Concern that a group may violate their own human rights if given the opportunity to safeguard those rights themselves would never be a good reason to deny them the separate state necessary for the protection and consummation of those rights. We would never know whether Igbos would be capable of safeguarding their own human rights today unless they had an opportunity to protect those rights. At 561. IGBOKWE, supra note 88, at 17-18 (quoting Emeka O. Ojukwu, Nigeria: The Truths Which are Self-Evident, SUNDAY MAG. (Lagos), Feb. 22, 1994. 562. An abridged text of the address is contained in KIRK-GREENE 2, supra note 170, at 37693. 563. See AKPAN, supra note 178, at 116-32. 564. KIRK-GREEN 2, supra note 170, at 115 (stating that this major policy speech marking Biafra’s third anniversary stood at once for a revised long-term social objectives of the Biafran revolution, a new commitment to a ten-year war, and a philosophical charter for a renascent and finally triumphant Biafra). 565. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 249; see also Diamond, supra note 77, at n.10 (“Although children could no longer attend school, and the universities had been sacked, the people, impoverished from top to bottom, held seminars from one end of the country to the other, inquiring minutely and with pristine, unprejudiced curiosity into the meaning and the outcome of their struggle.”). 566. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 249. 2004] 265 Howard Law Journal any rate, Igbos are entitled to protect their rights in a separate Igbo state if they are “people” within the meaning of African and UN human rights instruments, and if they meet the other requirements for that statehood, including deprivation of basic individual and collective rights, and a genuine “self,” ready and willing to determine its destiny.567 In sum, although compared to all the others, this last objection appears to present the most weighty argument, the evidence in favor of separate statehood here is overwhelming.568 CONCLUSION More than three decades after the civil war, violations of Igbo individual and collective human rights still persist in Nigeria and no adequate institutions of political structure exist in the country for safeguarding these rights. The only hope for effective safeguard of Igbo individual and collective human rights in the new century is separate statehood, achieved non-violently through the cooperation of the Nigerian government and with the help of the international community; only a government of the Igbo people, for the Igbo people, and by the Igbo people can protect Igbo human rights. The international law doctrine of self-determination has changed such that today sovereignty poses no barrier to Igbo separate statehood and no articulable objections against that independence exist. Besides safeguarding Igbo human rights, independent existence apart from Nigeria will bring final resolution to the Igbo legitimate campaign for self-determination, sown in 1967, that has gone on intermittently ever since while contributing in no small way to global peace. 567. See BUCHHEIT, supra note 252, at 223. 568. See AN-NA’IM, supra note 45, at 113. 266 [VOL. 48:165 Is United States v. Morrison Antidemocratic?: Political Safeguards, Deference, and the Countermajoritarian Difficulty MICHAEL KEENAN* INTRODUCTION As speculation begins that the Rehnquist Court is nearing the end of its run, commentators are assessing the legacy and meaning of the jurisprudence of the Court under its twenty-fifth Chief Justice. Eventually, careful researchers will be drawn to a short dissent in the case of Fry v. United States.1 The Fry decision barely made the news when it was handed down on May 27, 1975.2 In a dissent that was * Associate Attorney, Gorsuch Kirgis LLP in Denver, Colorado. J.D., University of Colorado School of Law. M.A., George Washington University. B.A., Mary Washington College. The Author thanks Professor Robert Nagel and the members of his 2003 Constitutional Theory seminar for their insightful comments on earlier drafts of this Article. 1. 421 U.S. 542 (1975). In Fry, the Court reviewed the constitutionality of “The Economic Stabilization Act of 1970.” The law authorized President Nixon to create a pay board that capped salary increases and required large employers to submit proposed raises for approval. Id. at 543-44. The State of Ohio proposed pay raises for its state employees, and the pay board declined to approve the move. Id. at 544. State employees sought a writ of mandamus from an Ohio court compelling the State to pay the increase. Id. When the Ohio Supreme Court granted the writ, the United States sought to enjoin the decision in federal court. Id. at 545. The state employees argued in federal court that the law did not cover state employees and if it did that it violated Ohio’s state sovereignty. Id. at 547. The Court upheld the law as a valid exercise of congressional power. Id. at 548. It reaffirmed that “states are not immune from all federal regulation under the commerce clause merely because of their sovereign status.” Id. 2. The New York Times gave the Fry decision two sentences of coverage on page sixteen on May 28, 1975. See A Summary of Supreme Court Actions, N.Y. TIMES, May 28, 1975, at A16; see also Tony Mauro, Alpha Rehnquist, AM. LAW., Jan 8, 2003, available at http://www.law.com/ jsp/article.jsp?id=1039054519036. Despite the lack of coverage, former acting Solicitor General Walter Dellinger, III called Fry the “Rosetta stone for understanding the Rehnquist Court.” See Mauro, supra. The Rehnquist dissent “projects a vision . . . which is now the dominant law of the land.” Id. 2004 Vol. 48 No. 1 267 Howard Law Journal almost not written,3 then-Associate Justice William H. Rehnquist laid out his vision of Federalism: “[T]he state is not simply asserting an absence of congressional legislative authority, but rather is asserting an affirmative constitutional right, inherent in its capacity as a State, to be free from such congressionally asserted authority.”4 It is this reassertion of structural boundaries between the federal government and states that will be remembered as the hallmark of the Rehnquist Court. Although some commentators praise the revival of Federalism, it has been the subject of much criticism;5 and despite the Chief Justice’s efforts, the lines between state and federal power are far from clearly drawn. Federalism skirmishes are being fought in courts all over the nation over a variety of legislative efforts.6 The debate is often complicated by disingenuous, and even hypocritical, use of Federalism arguments in political debate. Chief Justice Rehnquist’s structural view of the Constitution places state sovereignty on the same level as individual rights. In Fry, he admitted his analysis could not stem solely from the text of the Tenth Amendment, but argued that the Tenth and Eleventh Amendments, when read in context, were 3. See Mauro, supra note 2, for a summary of the discussion between Justices Marshall, Powell, and Rehnquist over whether a dissent to Justice Marshall’s majority opinion would in fact be forthcoming. 4. Fry, 421 U.S. at 553 (Rehnquist, J., dissenting). 5. Professor Cass R. Sunstein called recent Federalism decisions part of a “remarkable period of right-wing judicial activism.” Cass R. Sunstein, Tilting the Scales Rightward, N.Y. TIMES, Apr. 26, 2001, at A23; see also MARTIN GARBUS, COURTING DISASTER: THE SUPREME COURT AND THE UNMAKING OF AMERICAN LAW 121 (2002) (“This Court’s idea of [F]ederalism means seizing rights from the people.”); Larry Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 290 (2000) (calling the Rehnquist Court Federalism “a radical experiment in judicial activism.”); William P. Marshall, Conservatives and the Seven Sins of Judicial Activism, 73 U. COLO. L. REV. 1217, 1244 (2002) (stating that Rehnquist Court Federalism decisions reveal “unbridled hypocrisy”). 6. For a discussion of the Ninth Circuit’s application of Federalism principles to the medical marijuana issue, see Akhil Reed Amar & Vikram David Amar, The Ninth Circuit on Free Speech, Federalism and Medicinal Marijuana, available at http://writ.news.findlaw.com/amar/ 20021113.html. The current debate over whether homosexual couples should be allowed to marry also implicates the Federalism debate. President Bush blames the need for a federal constitutional amendment on “activist judges.” Liberals, in a surprising twist, are advocating for the state’s right to decide the issue for itself. See Mike Allen, President Bush Backs Amendment Banning Gay Marriage, WASH. POST, Feb. 25, 2004, at A1. For articulation of the view that there are no more true Federalists, see Steve Chapman, The Late, Great States: Where Have All the Federalists Gone?, SLATE, (July 22, 2004), available at http://www.slate.com/id/2104207. For a discussion of political use of the term “activist judges,” see Mike Soragahn, “Activist Judges” Difficult to Define, DENVER POST, July 11, 2004, at A1. For a discussion of the Bush administration’s selective application of Federalism principles, see David Plotz, The New, New, New Federalism: Bush Embraces the Most Convenient Principle, SLATE, (June 22, 2001), available at http:// www.slate.com/id/110785. 268 [VOL. 48:267 Is United States v. Morrison Antidemocratic? examples of the understanding of those who drafted and ratified the Constitution that the states were sovereign in many respects, and that although their legislative authority could be superseded by Congress in many areas . . . Congress was nonetheless not free to deal with a state as if it were another individual or business enterprise subject to regulation.7 Just a year later, then-Associate Justice Rehnquist wrote the Court’s opinion in the far more famous case of National League of Cities v. Usery.8 National League of Cities was the prelude to a series of Rehnquist majority opinions reasserting substantive judicial review of the constitutional demarcation between state and federal legislative authority. The shift from an expansive view of federal power to the Rehnquist Court’s restoration of respect for state sovereignty has been a remarkable one. An entire generation of law students learned that Federalism, as a doctrine that provided serious protections for states, was dead; New Deal legislation had erased the line between those powers reserved to the states and those properly attributed to the federal government.9 For more than fifty years, starting in 1937, the Supreme Court gave Congress nearly unchecked discretion to determine the scope of its regulatory power under the Commerce Clause.10 The relatively unknown dissent in Fry signaled a change in course that culminated in United States v. Morrison.11 In Morrison, the Rehnquist Court reduced the deference it will pay to congressional determinations that a regulated activity is sufficiently related to interstate commerce to be within Congress’ power. The Court rejected the “Political Safeguards Theory” of Federalism in favor of judicial enforcement of Federalism protections for states. Morrison is especially controversial because the Rehnquist majority rejected congressional fact-finding evidencing a substantial effect on interstate commerce. The decision created a firestorm of criticism, 7. Fry, 421 at 557 (Rehnquist, J., dissenting). 8. 426 U.S. 833 (1976). In that case, the Court struck down amendments to the Fair Labor Standards Act on the same grounds articulated in Rehnquist’s Fry dissent. Nat’l League was later overturned in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), but ten years later now-Chief Justice Rehnquist would lead a series of five-to-four decisions implementing his position on state sovereignty first articulated in Fry. 9. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888-1986 238 (1990) (“Constitutional federalism died” as a result of the Court’s decision in Jones v. Laughlin, 301 U.S. 1 (1937)). 10. U.S. CONST. art. I, § 8 gives Congress the power to “regulate Commerce . . . among the several States.” 11. 529 U.S. 598 (2000). 2004] 269 Howard Law Journal much of it focused on the appropriateness of an unelected panel of elite lawyers rejecting the considered judgment of a more democratic branch of government. Whether the current Court’s Federalism jurisprudence represents a “revolutionary revival”12 or a historically minor adjustment of federal-state relations,13 the criticisms levied at the Court merit attention. Critics who claim Morrison is antidemocratic do not levy the charge at every exercise of judicial review; rather they argue that Federalism and fact-finding about Federalism deserve different judicial treatment than individual rights cases.14 On the contrary, defenders of Morrison claim that upholding the Founders’ intent with regard to the federalstate balance preserves constitutional democracy by protecting the structure within which majoritarian rule is to govern. On this view, Morrison is not antidemocratic; it simply enforces the Founders’ choices as to which majority should rule in a given political arena; when the federal government encroaches on state sovereignty it destroys the ability of state-level majorities to regulate those areas reserved for their power. The critics respond that the judiciary has no place in enforcement of Federalism. Democracy, say these critics, demands that courts defer to political judgments about what is within their power to regulate. Striking down popular federal legislation, on this view, thwarts the will of the people and tinkers with the founders’ design.15 It is these claims for exclusive political enforcement of Federalism and judicial deference to congressional fact-finding about Federalism that are the focus of this Article. Part I of this Article begins by reviewing the history of the federal-state relationship under the Federalism doctrine. In particular, this section focuses on the return to Dual Federalism under the Rehn12. See Steven Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH. L. REV. 1373, 1375 (1998). 13. See Robert F. Nagel, Real Revolution, 13 GA. ST. U. L. REV. 985, 1003-04 (1997). 14. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 169 (1980). 15. Underlying this theoretical debate, as always, is a strong political undercurrent. To date, many of the laws struck down by the Rehnquist Court have been civil rights or social laws unpopular with conservatives at the state level. Some critics have argued that the “New Federalism” is simply a political tool aimed at invalidating legislation that conservatives do not like. The test is likely to come in the near future. If Republicans continue to control the presidency and both houses of Congress, popular conservative legislation will surely be tested as exceeding the authority of the federal government. For a discussion of how some popular conservative legislative efforts might fare under the “New Federalism,” see Sylvia A. Law, In the Name of Federalism: The Supreme Court’s Assault on Democracy and Civil Rights, 70 U. CIN. L. REV. 367, 408-21 (2002). 270 [VOL. 48:267 Is United States v. Morrison Antidemocratic? quist Court and the particular circumstances of Morrison that have made it so vulnerable to criticism. Part II analyzes criticisms leveled at the Rehnquist Court, in particular the charge that the Court’s use of active judicial review under Federalism doctrine is “antidemocratic” when it strikes down popularly approved legislation. Part III evaluates attempts to justify a lower standard of judicial review for Federalism than for individual rights cases. Specifically, this Part evaluates claims that the political system, not judicial review, is the preferred constitutional forum for regulating federal-state relations. This argument has serious ramifications for those who believe the Rehnquist Federalism decisions are antidemocratic. If judicial review is the preferred forum, then it seems the Court is simply performing its constitutional duties. If, however, the political system is the preferred forum, then judicial activism in this area may in fact be antidemocratic, especially in cases like Morrison, where the Court rejects a seemingly rational congressional determination that the regulated activity is within the scope of Commerce Clause power. The Article finishes with an evaluation of the attempts to distinguish Federalism and concludes that there is no practical reason to apply a lower standard of judicial review to legislative determinations of the boundaries of Federalism. Ultimately, this failure to distinguish Federalism from individual rights cases leads to a rejection of charges that Morrison is an antidemocratic usurpation of legislative authority. Instead, Morrison is a case of the Supreme Court drawing the line between federal and state authority. The grant of such significant authority to unelected courts may trouble pure democratic theorists, but in our constitutional form of democracy, the Court is assigned the duty of determining which majority rules in which situation. The level of judicial review asserted in Morrison is merely the embodiment of the rules and boundaries that the Constitution sets up to govern our democracy. I. THE ROAD TO MORRISON: REHNQUIST COURT FEDERALISM DECISIONS a. Pre-Rehnquist Federalism The relatively simple concept of Federalism16 has proven to be a controversial one when applied to the regulation of commerce, the 16. “[T]he word [F]ederalism does not appear in the Constitution.” LEE EPSTEIN & THOMAS G. WALKER, CONSTITUTIONAL LAW FOR A CHANGING AMERICA: INSTITUTIONAL POW- 2004] 271 Howard Law Journal power to tax and spend, and the concept of sovereign immunity.17 The U.S. Supreme Court has been the major force defining and delineating the boundaries of American Federalism. From the early nineteenth century until the beginning of the twentieth century, our country followed Chief Justice John C. Marshall’s view of strong federal government.18 The famous case of McCulloch v. Maryland19 served as Chief Justice Marshall’s vehicle to advocate his view of national supremacy.20 Chief Justice Marshall relied on three constitutional provisions as the basis for his holding: the Necessary and Proper Clause, the Tenth Amendment, and the Supremacy Clause.21 First, the Necessary and Proper Clause gives Congress the power to pass laws limited only by the text of the clause: “Let the end be legitimate, let it be within the scope of the [C]onstitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the [C]onstitution, are constitutional.”22 Second, Chief Justice Marshall did not see the Tenth Amendment as a barrier to national supremacy because he believed it reserves to the states and the people only those powers not delegated to Congress. Given Chief Justice Marshall’s expansive view of the Necessary and Proper Clause, the Tenth Amendment was only a minor restraint on the federal legislature. The Supremacy Clause, according to Chief Justice Marshall, places the federal government at the top of the governmental hierarchy.23 After Marshall’s death in 1835, President Andrew Jackson appointed Roger Taney to serve as Chief Justice. The Court under Chief CONSTRAINTS 320 (5th ed. 2004). The term refers to a choice by the framers to design a system of government that “divide[d] government powers between a central government and one or more subdivisional governments, giving each substantial functions.” Id. at 319. Arguably, many benefits have accrued to our system over the years because of the framers’ choice. A Federalist system provides citizens with many points of access to participate in government, adds checks on abuse of government power, encourages experimentation, and allows for flexibility. See id. 17. Id. at 320. 18. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824) (holding that under the Commerce Clause, Congress could regulate commercial activity having any interstate impact, even if indirect); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 414-15 (1819) (holding creation of National Bank to be a valid exercise of power and that “necessary and proper” does not mean indispensable). 19. McCulloch, 17 U.S. (4 Wheat.) 316 (1819). 20. Id. at 421. See also EPSTEIN & WALKER, supra note 16, at 330-31. 21. McCulloch, 17 U.S. (4 Wheat.) at 414-15. 22. Id. at 421. 23. EPSTEIN & WALKER, supra note 16, at 330-31. ERS AND 272 [VOL. 48:267 Is United States v. Morrison Antidemocratic? Justice Taney “planted itself firmly in the states’ rights camp”24 with cases like Dred Scott v. Sanford.25 The Dual Federalist approach of the Taney Court receded in the post-Civil War period, but resurfaced in a variety of forms from the 1890s to the 1930s.26 The pendulum began to swing as Congress adopted reform legislation during the Progressive Era to deal with widespread social and economic issues facing the nation. A leading Supreme Court scholar says of the progressive era, “Nothing like this explosion of federal regulatory power had ever happened before.”27 Following World War I, President Warren G. Harding sought a return to “normalcy”28 and appointed William Howard Taft to serve as Chief Justice and lead the charge. The Taft Court restricted the constitutional limits of Congressional power, invalidating “state and federal regulatory laws in greater numbers and more frequently than any previous Court.”29 The Taft Court established the doctrine of “property affected with the public interest” to separate areas of social and economic life which could be regulated from those areas of “ordinary” life, which could not be regulated by the federal legislature.30 Competing views of legislative authority at the federal level came to a head during the Great Depression. Citizens were seeking more help from government than they ever had before, and Congress responded in kind. The Supreme Court initially thwarted these legislative efforts by applying a restrictive view of the Due Process Clause famously articulated in Lochner v. New York.31 This trend continued 24. Id. at 334. 25. Scott v. Sanford, 60 U.S. (19 How.) 393 (1856). 26. See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918). 27. Robert C. Post, Defending the Lifeworld: Substantive Due Process in the Taft Court Era, 78 B.U. L. REV. 1489, 1489 (1998). Post explains that [t]he federal government took control of the operations of the nation’s railroads, its telegraphs and telephones, and its shipping industries. It assumed authority to regulate the production and prices of food and fuel. It actively intervened to shape the priorities of the wartime economy. It instituted sharply progressive income taxes. It established national labor policies and agencies. It imposed national prohibition. Id. 28. Inaugural Address of President Warren G. Harding, 61 CONG. REC. 4, 4-6 (1921). 29. EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH-CENTURY AMERICA 21 (2000). 30. Two contrasting cases illustrate the distinction as drawn by the Taft Court. In Euclid v. Amber Realty Co., 272 U.S. 365 (1926), the Taft Court approved the first comprehensive zoning regulation because the realities of urban life made zoning regulations a matter of public interest. In contrast, Adkins v. Children’s Hospital, 261 U.S. 525 (1923), struck down a minimum wage law for women because freedom to contract and negotiate wages fits within the domain of ordinary life. 31. 198 U.S. 45 (1905). 2004] 273 Howard Law Journal until 1937 when President Franklin D. Roosevelt’s Court-packing plan forced the “switch in time” that “saved nine.”32 Following the “switch in time,” the Court issued three landmark decisions upholding congressional power and sounding the death knell for Federalism as a significant protection of state sovereignty: NLRB v. Jones & Laughlin Steel Corp.,33 United States v. Darby,34 and Wickard v. Filburn.35 In Jones & Laughlin Steel, the Court abandoned its previous position requiring a “direct effect” on interstate commerce in favor of a looser test.36 In upholding Congress’ power to pass the National Labor Relations Act, the Court ruled that “the power to regulate commerce [encompasses] the power to enact �all appropriate legislation’ for �its protection or advancement’; to adopt measures �to promote its growth and insure its safety’; �to foster, protect, control and restrain.’”37 Against state arguments that the Constitution made industrial labor relations a forbidden field, the Court maintained that “activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”38 Four years later, Darby upheld the Fair Labor Standards Act’s ban on shipment of goods not meeting the Act’s wage and hour standards.39 Justice Harlan Stone wrote that while manufacturing was not interstate commerce, the shipment of manufactured goods across state lines is interstate commerce and its regulation therefore appropriate.40 The states argued that the true purpose of the ban was to control wages and hours, which were purely intrastate issues. But the Court responded that it would not inquire into the purpose of the regulation 32. See generally Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994). 33. 301 U.S. 1 (1937). 34. 312 U.S. 100 (1941). 35. 317 U.S. 111 (1942). 36. Jones & Laughlin Steel, 301 U.S. at 36-37. 37. Id. 38. Id. at 37. 39. Darby, 312 U.S. 100. 40. Id. at 113. 274 [VOL. 48:267 Is United States v. Morrison Antidemocratic? so long as the law itself was one that regulated interstate commerce.41 One commentator believes Darby “eliminate[d] the notion of enumerated national powers and reserved state powers.”42 Proponents of the Tenth Amendment were disappointed to learn that “the amendment states but a truism that all is retained which has not been surrendered.”43 Wickard v. Filburn upheld the constitutionality of federal regulation of homegrown wheat.44 The Court ruled that while wheat growing was local and “it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . irrespective of whether such effect is what might in some earlier time have been defined as �direct’ or �indirect.’”45 The Court acknowledged that Filburn’s production of wheat alone might be trivial. In the most remarkable part of the holding, however, the Court allowed for aggregation of the effect of Filburn’s production with others like him.46 Congress could now regulate noncommercial, local activities with trivial effects if they had some effect on interstate commerce in the aggregate. The “aggregation” principle was remarkable because its logic seemed to bring almost all human activities under the scope of congressional Commerce Clause power. “[T]he Court had withdrawn in all but name . . . from the role of protector of state autonomy.”47 The reemergence of Chief Justice Marshall’s expansive view of federal power paved the way for one of the great legislative achievements of the century: Congress passed the Civil Rights Act of 1964, 41. Id. at 117. The argument expressed here explicitly overruled Hammer v. Dagenhart, 247 U.S. 251 (1918), where the Court held that Congress lacked the power to ban interstate shipment of goods produced using child labor. The Court’s rationale mirrored the State’s argument in Darby: that the regulation intended to regulate child labor, not interstate commerce. 42. Lino A. Graglia, United States v. Lopez : Judicial Review Under the Commerce Clause, 74 TEX. L. REV. 719, 740 (1996). 43. Darby, 312 U.S. at 124. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. Id. The amendment does not deprive Congress “of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.” Id. 44. Wickard v. Filburn, 317 U.S. 111 (1942). 45. Id. at 125. 46. Id. at 127-28. The Court continued, “Home-grown wheat in this sense competes with wheat in commerce” because “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market.” Id. at 128. 47. Graglia, supra note 42, at 741. 2004] 275 Howard Law Journal outlawing racial and gender discrimination in public accommodations and employment.48 The Court earlier declared such a ban beyond congressional reach in the Civil Rights Cases.49 But the Court relied on the expansive view of congressional power articulated in Jones & Laughlin Steel, Darby, and Wickard, to uphold the ban on racial discrimination in public accommodations. Heart of Atlanta Motel, Inc. v. United States50 and Katzenbach v. McClung51 concluded that racial discrimination by hotels, restaurants, and other public accommodations substantially affected interstate commerce by deterring interstate travel by Blacks. Katzenbach introduced the “rational basis” test as a means to measure the validity of congressional authority under the Commerce Clause. “[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.”52 The rational basis test was a significant development in the evolution of the Commerce Clause and Federalism because, as a practical matter, it seems near impossible to fail the test. Legislation patterned on the Civil Rights Act of 1964 later banned discrimination in housing, and discrimination on the basis of gender, age, and disability. The Court continued its pattern of minimal review of congressional regulation under the Commerce Clause.53 Two major camps evolved from the debates over where to draw the line between the federal and state governments. Advocates of “Dual Federalism” believe the Constitution represents a grant of 48. Civil Rights Act of 1964, Pub. L. 88-352 (July 2, 1964), 78 Stat. 241 (codified at 42 U.S.C. §§ 2000a to 2000h-6). 49. 109 U.S. 3 (1883). 50. 379 U.S. 241 (1964). The Court attempted to distinguish the Civil Rights Cases in Heart of Atlanta Motel : [T]he fact that certain kinds of businesses may not in 1875 have been sufficiently involved in interstate commerce to warrant bringing them within the ambit of the commerce power is not necessarily dispositive of the same question today. Our populace had not reached its present mobility, nor were facilities, goods and services circulating as readily in interstate commerce as they are today. Although the principles which we apply today are those first formulated by Chief Justice Marshall . . . the conditions of transportation and commerce have changed dramatically, and we must apply those principles to the present state of commerce. The sheer increase in volume of interstate traffic alone would give discriminatory practices which inhibit travel a far larger impact upon the Nation’s commerce than such practices had on the economy of another day. Id. at 251 (citation omitted). 51. 379 U.S. 294 (1964). 52. Id. at 303-04. 53. See, e.g., Hodel v. Va. Surface Mining & Reclamation Ass’n., 452 U.S. 264 (1981); Perez v. United States, 402 U.S. 146 (1971); Maryland v. Wirtz; 392 U.S. 183 (1968). 276 [VOL. 48:267 Is United States v. Morrison Antidemocratic? power from the states to the federal government.54 Dual Federalists used the Tenth Amendment to support their view that states are supreme within their own realm, conceding only those powers explicitly given to the federal government in the Constitution. In contrast, advocates of “Cooperative Federalism” see a Constitution that derives its force directly from the people, not the states.55 On this view, the Necessary and Proper Clause, not the Tenth Amendment, regulates the federal-state balance of power. b. Federalism and the Rehnquist Court The Rehnquist Court Federalism decisions have been termed a Federalism “revival,”56 a “revolution,”57 and a “jurisprudential seachange.”58 Others believe the decisions are “modest and equivocal”59 or explicitly reject the notion that the Rehnquist Court Federalism decisions amount to a revolution.60 At minimum, commentators agree that the current Supreme Court promotes Constitutional Federalism, for better or worse.61 Prior to Chief Justice Rehnquist’s appointment, it appeared that the Supreme Court had poured the last shovel of dirt on the concept of judicially enforceable Federalism. In Garcia v. San Antonio Metropolitan Transit Authority, the Court took the position that the “structure of the [f]ederal [g]overnment itself” was the principal safeguard 54. EPSTEIN & WALKER, supra note 16, at 305. 55. Id. 56. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2213 (1998). 57. Larry D. Kramer, The Supreme Court 2000 Term Foreword: We the Court, 115 HARV. L. REV. 4, 129 (2001). 58. Judith Olans Brown & Peter D. Enrich, Nostalgic Federalism, 28 HASTING CONST. L.Q. 1, 1 (2000). 59. Nagel, supra note 13, at 1003-04. 60. Charles Fried, Foreward: Revolutions?, 109 HARV. L. REV. 13, 34 (1995). At least one scholar has staked a middle ground by differentiating between federalism decisions under the Commerce Clause, sovereign immunity, and the Fourteenth Amendment. Richard H. Fallon, Jr., The “Conservative” Paths of the Rehnquist Court’s Federalism Decisions, 69 U. CHI. L. REV. 429, 494 (2002). 61. See Ann Althouse, The Alden Trilogy: Still Searching for a Way to Enforce Federalism, 31 RUTGERS L.J. 631 (2000). Althouse believes the federalism-enforcing justices have gained “ascendancy.” Id. at 635. Recently there is evidence that there are limits on the Rehnquist Court’s desire to shift power to states. See David G. Savage, Finite Federalism: In Recent Cases, Supreme Court Puts the Brakes on Its Drive for States’ Rights, A.B.A. J. 20 (July 2004). Referring to a pair of Supreme Court decisions upholding Congress’ power to enforce anti-discrimination laws against states, Professor Erwin Chemerinsky said “�[w]hen there is a fundamental right at issue, they are prepared to give Congress more latitude.’” Id. Both the article and Professor Chemerinsky were referring to Tennessee v. Lane, 124 S. Ct. 1978 (2004) and Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003). 2004] 277 Howard Law Journal of state sovereignty.62 The states’ representation in Congress was sufficient protection for state autonomy. “Any substantive restraint . . . must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process rather than to dictate a �sacred province of state autonomy.’”63 Chief Justice Rehnquist’s dissent in Garcia argued that judicially enforceable Federalism was destined to rise again. Echoing his dissent in Fry, Chief Justice Rehnquist showed surprising confidence that Garcia would eventually be overturned. “I am confident, in time again [judicially enforceable Federalism will] command the support of a majority of this Court.”64 Since 1995, the Rehnquist Court has led a revival of judicially enforceable Federalism and dramatically limited the powers of Congress.65 In that year, the Supreme Court found that Congress exceeded its power under the Commerce Clause for the first time in more than fifty years. In United States v. Lopez,66 the Court held the Gun-Free School Zones Act (GFSZA) invalid on grounds that Congress lacked Commerce Clause power to regulate possession of firearms near schools.67 The Rehnquist majority68 pointed to three types of activities Congress can properly regulate under the Commerce Clause: (1) “the use of the channels of interstate commerce;” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;” and (3) 62. 469 U.S. 528, 550 (1985). The issue in Garcia was whether Congress had the Commerce Clause power to extend the minimum wage and overtime provisions of the Fair Labor Standards Act to employees of a city transit authority. Id. at 531-32. Garcia overturned Nat’l League of Cities v. Usery, 426 U.S. 833 (1976). Prior to Garcia, Congress had been barred from using its Commerce Clause power to regulate the “States as States” on matters of state sovereignty in a manner that would “displace [their] freedom to structure integral operations in areas of traditional governmental functions.” Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 287 (1981) (quoting Nat’l League of Cities, 426 U.S. at 852). 63. Garcia, 469 U.S. at 554 (quoting EEOC v. Wyoming, 460 U.S. 226, 236 (1983)). 64. Id. at 580 (Rehnquist, J., dissenting). 65. For a brief history of the ebb and flow of judicial enforcement of federalism boundaries, see Law, supra note 15, at 370-72. 66. 514 U.S. 549 (1995). 67. Possession of a gun in a school zone does not substantially affect interstate commerce, even under the broadest possible conception of the commerce clause. See id. at 561. The Act made it a federal crime “knowingly to possess a firearm . . . at a place that the individual knows, or has reasonable cause to believe, is a school zone.” Id. at 551. 68. The majority consisted of votes from Chief Justice Rehnquist, Justices Scalia, Thomas, Kennedy, and O’Connor; the dissenters were Justices Souter, Stevens, Breyer and Ginsburg. See id. at 550. 278 [VOL. 48:267 Is United States v. Morrison Antidemocratic? “activities having a substantial relation to interstate commerce.”69 The crux of the case was whether possession of a gun in a school zone affects interstate commerce. The majority, led by Chief Justice Rehnquist, held that the law exceeded the authority of Congress. Chief Justice Rehnquist wrote that the law is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms . . . . [Nor is the law] an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the interstate activity were regulated. It cannot, therefore, be regulated under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction . . . .70 Chief Justice Rehnquist admitted that Commerce Clause jurisprudence properly considers congressional fact findings and even congressional committee findings regarding effect on interstate commerce, but concluded that “[n]either the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.”71 By invalidating the Act, the Court rejected the government’s argument linking possession of guns in schools zones to violent crime and its effects on commerce. Chief Justice Rehnquist believed the “substantial effects” posed by the government, the costs of violent crime and reduction of travel within the country, were too remotely related to the Act to qualify. Moving down this slippery slope, argued Chief Justice Rehnquist, would be to “pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”72 Reaction to Lopez was mixed. Some commentators interpreted the opinion narrowly, viewing it as a warning to Congress to adequately demonstrate the relationship between the activities regulated and interstate commerce.73 Other commentators viewed Lopez as 69. Id. at 558-59. 70. Id. at 561. 71. Id. at 562 (alteration in original) (quoting Brief for United States at 5-6). Justice Breyer, however, offered evidence of the ways in which guns in schools impact education and interstate commerce. Id. at 619 (Breyer, J., dissenting). 72. Id. at 567. 73. “Had Congress explicitly demonstrated that it was responding to the negative impact school violence has on commerce, it is likely the court would have found no fault with the law.” EPSTEIN & WALKER, supra note 16, at 431. Chief Justice Rehnquist gave some indication to 2004] 279 Howard Law Journal more of a significant departure from previous Commerce Clause jurisprudence. On this view, the Court was signaling a significant change—they would no longer allow Congress to regulate whatever activities it wished on the ground that all activities could be connected to interstate commerce.74 These critics pieced Lopez together with cases such as New York v. United States75 and Printz v. United States,76 other decisions where the Rehnquist Court ruled against federal action in favor of states’ rights.77 Both camps of commentators were partially correct, for even the Justices seemed conflicted on the scope of the holding. Justice Kennedy called Lopez a “limited holding,”78 but Justice Thomas boldly stated that it was time to “modify our Commerce Clause jurisprudence.”79 c. Morrison and Congressional Fact Finding In 2000, the Supreme Court answered some of the questions about the scope of the Lopez holding. In United States v. Morrison, the Court struck down a federal civil remedy for victims of gendermotivated violence.80 In ratifying the Violence Against Women Act (VAWA), Congress tried to follow Lopez by compiling detailed legislative findings documenting the impact of gender violence on the national economy and the inadequacies of state remedies. The Court refused to defer to Congress’ judgment that the Act was within its Commerce Clause power. The Rehnquist majority feared that “Conbelieve that greater evidentiary support might have saved the Act from its fate: “we of course consider legislative findings, and indeed even congressional committee findings . . . . But to the extent that congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce . . . they are lacking here.” Lopez, 514 U.S. at 562-63. 74. Cf. Wickard v. Filburn, 317 U.S. 111 (1942). 75. 505 U.S. 144 (1992). 76. 521 U.S. 898 (1997). 77. There is ample evidence in the opinion that something more was at work than the lack of congressional findings: Congress lacks the power to regulate gun possession near schools at least in part because it is not an activity that can be characterized as “commercial” or “economic.” See Lopez, 514 U.S. at 567. The Court noted that “[e]ven Wickard . . . involved economic activity in a way that the possession of a gun in a school zone does not.” Id. at 560. Wickard held the Commerce Clause empowered Congress to regulate production of wheat for home consumption. Wickard is excerpted in most constitutional law casebooks as proof that the Commerce Clause power had expanded to cover almost everything. 78. Lopez, 514 U.S. at 568 (Kennedy, J., concurring). 79. Id. at 602 (Thomas, J., concurring). The Rehnquist Court has also renewed vigilance in enforcement of Federalism principles in state sovereign immunity cases and in challenges to federal legislation passed under Section 5 of the Fourteenth Amendment. See Bd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001); Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996). 80. 529 U.S. 598 (2000). 280 [VOL. 48:267 Is United States v. Morrison Antidemocratic? gress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority . . . .”81 The Court also determined that gender-motivated crime was in no way “economic activity” so that even a significant effect on commerce was not sufficient to grant federal Commerce Clause power. “The Constitution requires a distinction between what is truly national and what is truly local.”82 The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States’ police power) to every attenuated effect upon interstate commerce. If accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of the crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.83 Chief Justice Rehnquist also rejected the argument that Congress had authority under Section 5 of the Fourteenth Amendment to ratify the Act. The government asserted that there was a bias in state justice systems against the victims of gender-motivated crime, a claim they believe was supported by the congressional record. Congress compiled an array of evidence showing that many state justice systems embraced stereotypes and assumptions about gender motivated crime. The government argued that these assumptions led to insufficient investigation and prosecution of the crimes covered by VAWA. The bias therefore denied victims equal protection of the laws. VAWA was enacted to remedy the states’ bias and deter discrimination in state justice systems. Chief Justice Rehnquist responded that there were limits to federal power under the Fourteenth Amendment that served to “prevent the Fourteenth Amendment from obliterating the Framers’ carefully crafted balance of power between the States and the National Government.”84 The principle limitation is that the Fourteenth Amendment protects only against state action. In Chief Justice Rehnquist’s 81. 82. 83. 84. 2004] Id. Id. Id. Id. at at at at 615. 617-18. 615. 620. 281 Howard Law Journal view, VAWA remedies were directed at the individuals who committed the crimes, not the state authorities who held the biases that affected the justice system. VAWA remedies extended only to private conduct and therefore were outside the congressional power granted by Section 5 of the Fourteenth Amendment.85 Absent the factual findings made by Congress supporting VAWA, Morrison would have been a predictable descendant of Lopez. What makes Morrison a remarkable case is that the Court showed no deference whatsoever to an explicit congressional finding that violence motivated by the sex of the victim had a substantial effect on interstate commerce. The Lopez majority had given Congress reason to believe that factual support for an assertion of Commerce Clause power would lead to deference from the Court.86 Instead of deference, however, the Rehnquist majority responded by declaring that when the regulated activity is an intrastate non-economic activity it will decide for itself whether the aggregate effects of the regulated activity are sufficiently substantial to support an assertion of Commerce Clause power. The Court’s refusal to defer to congressional fact-finding is the strongest indication yet that the majority supports a complete revival of the “dual sovereignty” approach seen in Hammer v. Dagenhart.87 Congress, said the Court, may not “use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority”88 because “[t]he Constitution requires a distinction between what is truly national and truly local.”89 Morrison suggests that national, aggregated effects of local activity come within commerce power only when the activities are economic in nature. The majority in Morrison laid waste to a popular interpretation of Lopez. Many commentators believed that Lopez indicated that the Court would insist on an articulation of congressional findings of fact that the regulated activities are either in commerce or have a substantial effect on commerce. The Lopez majority suggested that congressional fact-finding supporting its determination that GFSZA had substantial effects on interstate commerce might allow the Court “to evaluate the legislative judgment that the activity in question substan85. 86. 87. 88. 89. 282 Id. at 627. United States v. Lopez, 514 U.S. 549, 562-64 (1995). 247 U.S. 251 (1918), overruled by United States v. Darby, 312 U.S. 100 (1941). Morrison, 529 U.S. at 615. Id. at 617-18. [VOL. 48:267 Is United States v. Morrison Antidemocratic? tially affected interstate commerce, even though no such substantial effect was visible to the naked eye.”90 This interpretation of Lopez views judicial review of Commerce Clause power as the equivalent of a procedural check. The Court insists that Congress present evidence backing up an assertion of Commerce Clause power. As long as the evidence is there and the judgment is rational, the Court will defer. As the Morrison decision shows, however, the Court intends to review Commerce Clause power more aggressively. Congress indeed presented evidence that supported at least a rational judgment that sex-based violence, especially when directed at women because of their gender, had a substantial inhibitory effect on interstate commerce. The amount of data Congress compiled in support of VAWA was “massive.”91 Justice David H. Souter’s dissent provides the best analysis of the breadth of congressional findings that supported passage of VAWA. “One obvious difference from [Lopez] is the mountain of data assembled by Congress . . . showing the effects of violence against women on interstate commerce.”92 Congress found that “crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products . . . .”93 Justice Souter concluded from these congressional findings that “Congress thereby explicitly stated the predicate for the exercise of its 90. Lopez, 514 U.S. at 563. 91. Marianne Moody Jennings & Nim Razook, United States v. Morrison: Where Commerce Clause Meets Civil Rights and Reasonable Minds Part Ways: A Point and Counterpoint from a Constitutional and Social Perspective, 35 NEW ENG. L. REV. 23, 33 (2000). 92. Morrison, 529 U.S. at 628-29 (Souter, J., dissenting). Congress made the following findings regarding violence against women: 3 out of 4 American women will be victims of violent crime; violence is the leading cause of injuries to women between age 15 and 44; as many as 50% of homeless women and children are homeless because they are fleeing domestic violence; and the United States spends between $5 and $10 billion on health care, criminal justice, and other social costs of domestic violence; 41% of judges believe juries give less credibility to sexual assault victims than other crime victims; less than 1% of all rape victims ever collect damages; an individual who commits rape has only about a 4% chance of being convicted of the crime; almost 25% of convicted rapists never go to prison; another 25% receive sentences to local jail where punishment averages 11 months; and almost 50% of rape victims lose their jobs or are forced to quit. See id. at 631-35. 93. Id. at 634 (Souter, J., dissenting) (quoting H.R. CONF. REP. NO. 103-711, p. 385 (1994), reprinted in 1994 U.S.C.C.A.N. 1803, 1835). 2004] 283 Howard Law Journal Commerce Clause power” and asked “[i]s its conclusion irrational in view of the data amassed?”94 These congressional findings on their face, when combined with numerous hearings and bipartisan support in both the Senate and the House, appeared to overcome the constitutional shortcomings of GFSZA in Lopez. The majority held, however, that VAWA’s constitutionality depends on reasoning that essentially implicates all activities as interstate because aggregated impact will always have some effect on interstate commerce.95 Just because Congress has determined that an activity substantially affects interstate commerce does not make it so: “Rather, �whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’”96 While the majority’s refusal to defer to Congress was surprising, it is largely consistent with the Court’s express desire to enforce a substantive, rather than merely procedural, division of the truly national from the truly local. In addition, the Rehnquist majority emphasized that it would enforce substantive lines between what is commercial and what is non-commercial regardless of the amount of evidence Congress generates to show effects on interstate commerce. “While we need not adopt a categorical rule against aggregating the effects of any non-economic activity . . . thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”97 94. Id. 95. Id. at 615-16. 96. Id. at 614 (quoting United States v. Lopez, 514 U.S. 549, 557 n.2 (1995) (quoting in turn Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring))). 97. Id. at 613. Perhaps the most interesting language in Lopez comes from Justice Thomas’s concurrence. If he stands alone on his criticism of the aggregation principle, then his concurrence is mostly fodder for scholars. But if he hints at the possible future of Rehnquist Court decisions, his concurrence will provide the blueprint for the most substantial limit on Commerce Clause power since the 1930s. Justice Thomas questions the validity of the aggregation principle, the idea that the relevant impact on interstate commerce of a regulated activity is the impact on commerce of the regulated activity considered as a whole, not the effect produced by any specific instance of the activity. As Justice Thomas sees it, the principle has no stopping point and allows Congress to regulate virtually any activity. Lopez, 514 U.S. at 600 (Thomas, J., concurring). 284 [VOL. 48:267 Is United States v. Morrison Antidemocratic? II. IS MORRISON ANTIDEMOCRATIC?: CRITICISMS OF THE REHNQUIST COURT a. Critical Response to Morrison The Constitution suggests that there are limits to the exercise of national power. For most of our nation’s history, it has been presumed that exercise of federal power is disfavored under the Constitution. As late as 1954, Herbert Wechsler, no states’ rights advocate, wrote “[n]ational action has . . . always been regarded as exceptional in our polity, an intrusion to be justified by some necessity, the special rather than the ordinary case.”98 So why, then, has the Rehnquist Court’s enforcement of Federalism drawn such fire? If the criticism were mere quarreling over where the line should be drawn between federal and state power, that would be understandable. The criticism goes deeper than that though. The reason is that somewhere along the line it became acceptable to have federal legislative power without limits,99 or perhaps more importantly, no limits that courts can or should enforce.100 From 1937 until Lopez and Morrison, every Supreme Court decision reviewing congressional power under the Commerce Clause supported judicial deference to Congress. Justice Souter’s dissent argues that the “business of the courts is, to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact.”101 “The single most important unifying theme of Commerce Clause jurisprudence during the last sixty years has been the Court’s willingness to defer these decisions to Congress.”102 These claims, in a practical sense, create a Commerce Clause as vast as Congress wants it to be. Such claims rest on the notion that Federalism is subject to a different kind and level of judicial review than are individual rights cases. It is important then, if the criticism is to be sustained, to differentiate Federalism from individual rights on a level that justifies more deference in Federalism cases. The Rehnquist 98. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 544 (1954). 99. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991). 100. See CHOPER, supra note 14, at 380. Choper argues that the Court should conserve its political capital for individual rights cases by treating structural issues of federalism as nonjusticiable. Id. 101. Morrison, 529 U.S. at 628 (Souter, J., dissenting). 102. Jennings & Razook, supra note 91, at 36. 2004] 285 Howard Law Journal majority and its supporters respond that the Constitution does not differentiate between these types of claims and that the distinction made by critics ignores the importance of Federalism to liberty, political accountability, and individual rights. Of particular interest are criticisms of Morrison that argue or hint at the notion that aggressive judicial review is antidemocratic. With some exceptions, these critics do not seem concerned about the use of judicial review as a general matter. Specifically, they approve of the use of judicial review to protect individual rights against what they see as the tyranny of the majority. They distinguish Federalism and argue judicial review in these instances should be deferential to political branches, else the Court will thwart the will of the people.103 The number of federal statutes the Rehnquist Court has disposed of104 has led to critical response from constitutional law scholars and 103. Not all commentators agree with these criticisms. Some minimize the effect of the line of cases. See, e.g., Nagel, supra note 13, at 1003-04. Others praise the return of Federalism as a doctrine with teeth. See, e.g., John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 CAL. L. REV. 485 (2002). McGinnis argues that the Rehnquist Court’s Federalism decisions are part of “a coherent jurisprudence that invigorates decentralization and the private ordering of social norms that Alexis De Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution.” Id. at 487. McGinnis sees a distinct benefit to the Court striking down a popular law like VAWA rather than the more obscure provisions addressed in Lopez. Id. at 515-16. The countermajoritarian effects of the ruling in Morrison had the effect of symbolizing the potency of Federalism. “By invalidating [VAWA], the Justices announced that [C]onstitutional [F]ederalism is back . . . .” Id. at 515-16. For articulation of the opposing view that Morrison is consistent with earlier Federalism jurisprudence, see Jennings & Razook, supra note 91, at 36. 104. The Rehnquist Court strikes down federal statutes at a rate far higher than any previous court. Between 1994 and 2000, the Court invalidated 24 federal statutes, compared with 128 invalidations in the Court’s first 200 years. See Stuart Taylor, Jr., The Tipping Point, NAT’L J., June 10, 2000, at 1810. Since the appointment of Clarence Thomas in 1991, the Court has held at least 10 federal statutes constitutionally invalid on grounds involving Federalism. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 372-74 (2001) (holding the Americans with Disabilities Act invalid insofar as it attempted to abrogate the States’ sovereign immunity from suit); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67 (2000) (holding the Age Discrimination in Employment Act invalid insofar as it purported to abrogate state sovereign immunity); Alden v. Maine, 527 U.S. 706, 712 (1999) (holding the Fair Labor Standards Act (FLSA) unconstitutional insofar as it purported to subject unconsenting states to private suits in state court); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 691 (1999) (holding the Trademark Remedy Clarification Act invalid insofar as it purported to abrogate state sovereign immunity); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630 (1999) (invalidating the Patent and Plant Variety Protection Remedy Clarification Act as applied to the states); Printz v. United States, 521 U.S. 898, 935 (1997) (invalidating provisions of the Brady Act requiring state and local governmental officials to execute a federal regulatory program); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996) (invalidating a provision of the Indian Gaming Regulatory Act abrogating the states’ Eleventh Amendment immunity from suit in federal court); United States v. Lopez, 514 U.S. 549, 551 (1995) (invalidating the Gun Free School Zones Act on the ground that it exceeded congressional power and invaded the states’ regulatory domain); New York v. United States, 505 U.S. 144, 149 (1992) (invalidating “taketitle” provision of Low-Level Radioactive Waste Policy Act on grounds that Congress may not 286 [VOL. 48:267 Is United States v. Morrison Antidemocratic? political scientists. Critics make two principal claims: First, political structure is the sole constitutional mechanism for enforcing Federalism,105 and second, the Court overstepped its bounds, and acted in antidemocratic fashion106 by refusing to defer to congressional findings. Each of these claims invokes the so-called countermajoritarian difficulty by resting on the notion that Congress, the more democratic of the two institutions, is the constitutionally favored institution for drawing Federalism lines and making findings of fact. Professor Larry Kramer writes that the Rehnquist Court has “steadily usurped the power to govern by striking down or weakening federal and state laws.”107 The Rehnquist Court sees no need “to accommodate the political branches at all” and no longer “views itself as first among equals, but has instead staked its claim to being the only institution empowered to speak with authority when it comes to the meaning of the Constitution.”108 “Judicial supremacy is becoming judicial sovereignty.”109 The Rehnquist Court Federalism decisions are a “grab for power.”110 The “New Federalism,” it is claimed, is a “radical attempt to undermine th[e] constitutional commitment to fairness and basic dignity, [and] is disturbing as a matter of principle and doctrine.”111 Professor Sylvia Law is the most straightforward of these critics, explicitly claiming that Rehnquist Court Federalism decisions, and Morrison specifically, are an “assault on democracy.”112 Professor Cass R. Sunstein called the Federalism decisions part of a “remarkable period of rightwing judicial activism.”113 compel the states to assume liability); see also City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (holding the Religious Freedom Restoration Act unconstitutional, largely on separation-of-powers grounds, insofar as it imposed obligations on state and local governments). In the 50 previous years, the Court had found just one federal statute violated Constitutional Federalism. 105. See Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000). 106. See, e.g., H. Geoffrey Moulton, Jr., The Quixotic Search for a Judicially Enforceable Federalism, 83 MINN. L. REV. 849, 900-22 (1999). 107. Larry D. Kramer, The Supreme Court v. Balance of Powers, N.Y. TIMES, Mar. 3, 2001, at A13. 108. Kramer, supra note 57, at 13. 109. Id. 110. Id. at 129. 111. Law, supra note 15, at 396 (2002). Professor Law also writes: “The issues at stake in the federalism debate . . . are vitally important to the future of democracy and individual rights.” Id. at 431. 112. Id. 113. Sunstein, supra note 5. Charges of “activism” always implicate the countermajoritarian difficulty because they assert that the Court has encroached on an area reserved for the political process. Judicial “activism” can be difficult to define, however. See Soragahn, supra note 6. 2004] 287 Howard Law Journal Popular media have joined the party, criticizing the Rehnquist Court Federalism decisions generally and Morrison specifically with even more vigor than their counterparts in the academy.114 “These unelected justices serving life terms have become an imperial judiciary.”115 The Rehnquist Court’s idea of Federalism is “seizing rights from the people . . . . The Rehnquist [C]ourt trusts neither the people nor democracy.”116 “Ideology . . . politics . . . and current events . . . have combined to give this results-oriented Court an immense and frightening antidemocratic power. Today’s Court has assumed the role of both legislature and court.”117 Many of the criticisms state explicitly that Morrison is antidemocratic; others suggest that criticism implicitly. “[T]oday’s majority do[es] not reflect the country’s will.”118 The Court refuses to defer to the legislature and has shown “disdain for the executive branch and precedent.”119 “This Court’s idea of [F]ederalism means seizing rights from the people.”120 These critics suggest that the activist court of the New Deal Era trusted and deferred to the people and the legislature, while the Rehnquist Court distrusts democracy.121 In this way, they try to distinguish the activism of Morrison from the activism of the Warren Court. There are two key differences according to this claim. First, the Founders intended to protect Federalism solely by political structure, not judicial review. Second, if the Court does review Federalism decisions, it should defer to rational congressional judgments that a regulated activity is within its Commerce Clause power because Congress is better suited to collecting evidence and making factual judgments about Federalism. These accusations are incomplete and simplistic. The relationship between constitutionalism and democracy is not as simple as arguing that judicial review is countermajoritarian. In fact, countermajoritarian features of the Constitution were designed in part to preserve Judge Richard Posner has defined judicial activism as a court’s failure to defer to decisions made by the political branches of the federal government or to the decisions of state governments. RICHARD POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 320 (1996). 114. See GARBUS, supra note 5; Taylor, Jr. supra note 104, at 1810. 115. GARBUS, supra note 5, at 4. 116. Id. at 121-22. 117. Id. at 288. 118. Id. at 4. 119. Id. at 4-5; see also LANI GUINIER, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY (1994). 120. GARBUS, supra note 5, at 121. 121. See id. at 121-22. 288 [VOL. 48:267 Is United States v. Morrison Antidemocratic? majoritarian democratic rule. The difficulty in evaluating the Rehnquist Court Federalism decisions (as well as other instances of judicial activism) is in finding the proper balance between countermajoritarian institutions, like the courts, and our desire for democratic rule. In many ways, the issues addressed regarding the Rehnquist Court Federalism decisions reveal the paradox that is constitutional democracy. Judicial review as an institution is firmly established in our system of constitutional democracy, though some might argue it does not belong there. The relevant practical question is not whether judicial review belongs in a constitutional democracy, but rather the extent to which it should be exercised. How often should it be used and in what circumstances? How much deference should courts give to constitutional judgments of other branches of government? b. The Countermajoritarian Difficulty The Morrison decision has raised the infamous countermajoritarian problem both explicitly and implicitly. Critics argue alternatively that the Court has no role in policing Federalism or that the Court should have deferred to the judgment made by Congress that VAWA was within its Commerce Clause power. Both criticisms raise the possibility that the Morrison majority unjustifiably encroached on a political decision that represented the will of the people. Such an aggressive review of the decision of a political branch is antidemocratic, say the critics, because it usurps power given to the people and rejects rational judgments made by the people’s representatives. More than forty years ago, Alexander Bickel wrote famously of judicial review as a deviant institution in democracy.122 Bickel identified inconsistency in the notion that constitutional judicial review requires unelected judges striking down choices made by the people through popularly elected legislatures.123 If majority rule is the primary value in democracy, then judicial review is at odds with democracy and leads to Bickel’s “countermajoritarian difficulty.” In the decades since, constitutional law scholars have obsessed over attempts to reconcile the institution of judicial review with democratic the122. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT BAR OF POLITICS 16 (Vail-Ballou Press 1986) (1962). 123. Id. at 16-20. AT THE 2004] 289 Howard Law Journal ory.124 Originalists, for example, argue adherence to the clear meaning of constitutional text and framers’ intent limits occasions for the Court to thwart the popular will.125 John Hart Ely wrote democracy is by definition majority rule, but can be reconciled with judicial review when courts focus on enhancing democracy through preservation and perfection of democratic process and structure.126 Steven Calabresi points to two additional features of judicial review in modern America that heighten the effect of the countermajoritarian difficulty: First, the Constitution . . . which implicitly authorizes judicial review is over 200 years old and was enacted by a small and wealthy minority of the people then living . . . . Second many of the decisions that modern judges issue in the name of the Constitution and its Amendments seem to be only tangentially connected with the actual constitutional text.127 The effect is that modern judicial review has the effect of “disempower[ing] current majorities from ruling either in the name of a majority of [W]hite male property owners . . . or because a current majority of nine unelected elite lawyers do not agree with the popular will.”128 This is exactly the type of criticism levied at the Rehnquist majority following Morrison. How can we square judicial review with democratic theory, and what are the consequences for Morrison, where the Court struck down a popular bipartisan bill supported by both houses of the federal legislature, the majority of states, and a mountain of congressional fact-finding? 124. See, e.g., CHOPER, supra note 14; JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980). For an example of a commentator who thinks far too much time has been wasted on the subject, see Rebecca Brown, Accountability, Liberty, and the Constitution, 98 COLUM. L. REV. 531 (1998). Professor Brown writes “[h]onk if you are tired of constitutional theory.” Id. at 531. 125. See RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (2d ed. 1997); ROBERT H. BORK, SLOUCHING TOWARD GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE (1996); Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). 126. ELY, supra note 124, at 181-83. For a commentary concluding that all the major approaches to reconciling democracy and judicial review fail, and then presenting a new candidate, see JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT (2001). Rubenfeld argues that viewing the Constitution as a written commitment over time solves the countermajoritarian problem. Id. at 171. Rubenfeld fails, however, to explain why it is judges and not some other, more democratic, institution that should determine exactly what we have committed ourselves to. Id. 127. Calabresi, supra note 12, at 1385. 128. Id. 290 [VOL. 48:267 Is United States v. Morrison Antidemocratic? The most powerful response to Bickel’s problem takes issue not with his conclusion, but with his definition of democracy.129 If one begins with the proposition that democracy is pure majority rule, then the process of unelected, life-appointed federal judges invalidating actions of popularly elected bodies is at odds with that definition. The originalist position only leads to less frequent use of judicial review— it does not solve the problem. But if one refines the definition of democracy or broadens the conception to include “American” democracy or constitutional democracy, Bickel’s thesis becomes more problematic. The Constitution embodies majority rule as only one of several important values. But majority rule is by no means the only value expressed in the Constitution. As a sign of conflicting constitutional values, The Federalist are loaded with references to the dangers of majority rule.130 The Constitution does not include provisions for devices associated with pure majority rule, such as the national ballot initiatives often seen in state constitutions. In many instances, the Constitution explicitly rejects pure forms of majority rule. The Electoral College, not the popular vote of citizens, elects the president. The allocation of two Senators from each state ensures that citizens of smaller states receive more representation in the Senate than their counterparts from larger states. Prior to the passage of the Seventeenth Amendment, the Senate was even more removed from pure democracy because the Senators were elected by state legislatures, not citizens of each state. Article III provides for appointment of federal judges by a representative of the people, not the people themselves. The Bill of Rights exists by its very nature to limit the power of the majority to impose its will on the minority. Certain subjects—the rights to life, liberty and property; free speech; free press; freedom of worship and assembly; and other rights deemed fundamental—are removed from the realm of majority rule. The system of government under the Constitution is one where majority rule governs within a carefully designed structure. The choices of the majority govern only so long as those choices comport 129. See Erwin Chemerinsky, The Price of Asking the Wrong Question: An Essay on Constitutional Scholarship and Judicial Review, 62 TEX. L. REV. 1207, 1211-26 (1984); Erwin Chemerinsky, The Supreme Court 1988 Term: Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 74-77 (1989). 130. See, e.g., THE FEDERALIST NO. 10, at 77 (James Madison) (Clinton Rossiter ed., 1961); THE FEDERALIST NOS. 15-16, at 105-18 (Alexander Hamilton) (Clinton Rossiter ed., 1961); THE FEDERALIST NO. 62, at 378 (James Madison) (Clinton Rossiter ed., 1961). 2004] 291 Howard Law Journal with other values embedded in the Constitution: equality, liberty, separation of powers, and fundamental rights. Armed with this more precise definition of “constitutional” democracy, judicial review of popularly approved legislation is perfectly consistent with democracy if it is utilized in a manner consistent with the Constitution. The Constitution itself is inconsistent with a definition of democracy as majority rule. Bickel’s thesis then may pose a problem for democratic theory but it does not lead to the conclusion that judicial review is unconstitutional. The move to a more accurate description of our democracy mitigates the problem posed by Bickel, but it does not end the discussion. The above argument against the countermajoritarian problem only tells us why judicial review is not unconstitutional on grounds that it is antidemocratic. In fact, many of the responses to Bickel concede the antidemocratic effect of judicial review by equating it to all of the other antidemocratic designs in the Constitution. The problem then is not that judicial review is unconstitutional, but that it has an effect of lessening democracy and should thus be used sparingly in a system that favors democratic decision-making. Another answer to the countermajoritarian problem is that judicial review serves to limit one of the other major problems faced in democratic theory: the “majoritarian” problem or the tyranny of the majority. Majority rule does not always seem fair or just. Current majorities in pure democracy can enforce harsh, immoral, and cruel rules against minorities. Our Constitution deals with this problem with a set of structural mechanisms designed to limit the force of majority rule in certain situations. These mechanisms include guaranteed individual rights, judicial review, and Federalism itself. In this setting, one of the advantages of judicial review is that it is countermajoritarian, and, therefore, courts have a duty to police these mechanisms to cure possible excesses of majority rule. For those who believe judicial review is unconstitutional, solving Bickel’s problem is easy—eliminate judicial review.131 For those who see judicial review as perfectly democratic, the focus is shifted to de131. See BORK, supra note 125, at 117, 321. Bork urges us to “see the judiciary for what it is, an organ of power without legitimacy either in democratic theory or in the Constitution” and advocates passage of a constitutional amendment allowing Congress to override judicial decisions. Id. at 321. For a proposal for the elimination of judicial review from the opposite end of the political spectrum, see MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 99-102, 154 (Princeton 1999). 292 [VOL. 48:267 Is United States v. Morrison Antidemocratic? veloping theories of when and where it should be applied.132 But when one believes in a majoritarian democracy and in the promise of judicial review, Bickel’s problem remains, and attempts to justify judicial review continue.133 Arguably, the popular view of our constitutional democracy accepts both of these concepts, and so debate over the antidemocratic effect of judicial review is likely to continue. This Article does not attempt to square judicial review with political theory in a general sense. Instead, it seeks to discover whether there are particular characteristics present in Morrison that make that case antidemocratic. In other words, do the unique features of Federalism and especially congressional fact-finding about Federalism require the Court to be particularly deferential when presented with a case like Morrison? Critics of Morrison believe there are two features that distinguish Federalism and fact-finding about Federalism from other constitutional claims. First, they claim the founders intended for the political structure of the Constitution to be the sole check on federal authority and so the judicial review exercised in Morrison is inappropriate and unconstitutional. Second, when Congress makes rational judgments about its Commerce Clause power and supports those judgments with evidence, the Court must defer. III. DISTINGUISHING FEDERALISM: THE POLITICAL SAFEGUARDS THEORY AND DEFERENCE TO CONGRESSIONAL FACT-FINDING a. Political Safeguards of Federalism The primary basis for asserting that Federalism deserves special protection from aggressive judicial review is the “Political Safeguards 132. Ronald Dworkin is the prime example. See, e.g., RONALD DWORKIN, FREEDOM’S LAW: MORAL READING OF THE AMERICAN CONSTITUTION (1996); RONALD DWORKIN, LAW’S EMPIRE (1986). 133. Modern scholars continue to express concern with the countermajoritarian problem. See, e.g., TUSHNET, supra note 131, at 180 (arguing that lawyers ask “the Court to do what [they] want, under the guise of interpreting the Constitution” and that this process is “rather openly antidemocratic.”); Akhil Reed Amar, The Supreme Court, 1999 Term: Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 40-41 (2000) (listing several “major breakdowns of democratic decision making” in the Supreme Court’s decision-making process); Cass R. Sunstein, The Supreme Court 1995 Term: Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 6-8 (1996) (arguing for “decisional minimalism” because it ensures that important decisions are made by democratically accountable actors). THE 2004] 293 Howard Law Journal Theory” of Federalism.134 In his dissent to Morrison, Justice Souter offered a quote by James Madison as proof that the Founders intended politics, not law, to be the chief mechanism for enforcing Federalism: “The National Government �will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights of the individual States, or the prerogatives of their governments.’”135 In making this argument, Justice Souter echoes a long line of commentators who argue that the “political safeguards of federalism” are the sole protections against an overreaching Congress. This theory, famously articulated by Herbert Wechsler, posits that Federalism is an eminently political issue and that the Founders intended for its boundaries to be set by Congress and its political process.136 Wechsler’s thesis posits that the political structure created by the Constitution protects Federalism limits by discouraging congressional overreaching into state domains. The political system is fully capable of responding to expansions of federal authority, and, thus, there is no need or desire for judicially enforced Federalism. Dean Jesse Choper supplemented Wechsler’s Political Safeguards with an argument that courts should not interfere in Federalism cases, but should use their institutional resources to protect individual rights because states have the political resources within constitutional structure to fend for themselves.137 More recently, Professor Bradford Clark defends political enforcement of Federalism on grounds that a strict approach to separation of powers will safeguard states from overreaching federal legislation.138 The argument for politically enforced Federalism is more than a theoretical justification for judicial deference; it is prominent in Commerce Clause precedent. For example, in Hodel v. Virginia Surface Mining and Reclamation Association, Inc., the Court held “[j]udicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. This power is �complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the 134. See Wechsler, supra note 98, at 544; see also RALPH A. ROSSUM, FEDERALISM, THE SUPREME COURT AND THE SEVENTEENTH AMENDMENT: THE IRONY OF CONSTITUTIONAL DEMOCRACY (2001). 135. United States v. Morrison, 529 U.S. 598, 648 (Souter, J., dissenting) (alteration in original) (quoting THE FEDERALIST NO. 46, at 319 (James Madison) (J. Cooke, ed., 1961)). 136. Wechsler, supra note 98, at 544. 137. CHOPER, supra note 14, at 175. 138. See Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001). 294 [VOL. 48:267 Is United States v. Morrison Antidemocratic? [C]onstitution.’”139 While the Hodel Court appeared to acknowledge some limits on congressional power, the Court’s conception of those limits was quite modest: “[T]hus, when Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational.”140 Morrison and Lopez reject this theory in favor of substantive judicial review of Federalism. Professor Larry Kramer makes the historical case that the Founders intended for the political structure of the Constitution to be the sole check on Federalism.141 He argues that Revolutionary America was deeply skeptical of judicial review and was therefore unlikely to trust the judiciary to be the principal check on federal government power.142 Kramer points to the lack of references to judicial review in the ratification debates as proof that the Founders did not foresee an important role for federal courts in protecting the federalist design.143 In addition, Kramer supplements Wechsler by arguing that political parties in the modern political system create an additional layer of political protection of Federalism principles. Kramer points to the vital state of regulatory authority at the state level, the Framer’s intent, and Supreme Court precedent as authority for his view.144 Professor Ralph Rossum has added weight to the Political Safeguards theory.145 Rossum favors the Founders’ strong federal design, but believes politics are the intended means for enforcement of limits on Congress’ power.146 Although the Rehnquist Court adheres to the Founders’ version of Federalism, Rossum believes they are interpreting the wrong document. Rossum argues that the Seventeenth Amendment represents a democratic choice to fundamentally alter the Founders’ Federalism design.147 By removing one of the key political safeguards of Federalism, the people changed the Constitution in favor of democracy and to the detriment of Federalism protections.148 139. (1824)). 140. 141. 142. 143. 144. 145. 146. 147. 148. 452 U.S. at 276 (citations omitted) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 2004] 295 Id.; see also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Kramer, supra note 57, at 10-12, 71-74. Id. Id. at 74. Id. at 60, 110, 168. See ROSSUM, supra note 134. Id. Id. at 281-85. Id. Howard Law Journal According to Rossum, Morrison and Lopez fill a void the Supreme Court has no business filling.149 For believers of the Political Safeguards Theory, aggressive judicial usurpation of political decisions amounts to an antidemocratic and unconstitutional move. If the Founders intended for the political process to determine the extent of Congress’ federal power, then judicial decrees that Congress is overstepping its bounds thwart the will of the people in an area the Constitution gives to the citizenry. Kramer, Wechsler, and others target the key question that arose in Morrison: Which institution, the Court or Congress, has the final say in determining whether a democratically adopted law sufficiently affects interstate commerce to grant Congress authority to enact the law? Advocates of politically enforced Federalism believe that the answer to the question is emphatically Congress. “[L]ogic would suggest that nine justices influenced by ideological goals and removed from the rigors of electoral review are less apt to demonstrate a principled fidelity to Federalism than Congress whose members are constantly under the scrutiny of the electorate.”150 Advocates of this view see Morrison as a prime example. Prior to Congress’ adoption of VAWA, there were four years of congressional hearings, mountains of evidence linking violence against women to interstate commerce, and explicit findings that states were doing an insufficient job addressing the issue. Congress interacted regularly with the states in creating a remedy, and it appeared that most states favored the legislation and federal intervention in the area. VAWA was changed at one point to complement, rather than displace, state law, and, as a result, the law enjoyed strong bipartisan support in both the House and the Senate. In many ways, the political process surrounding VAWA is exactly the scenario imagined by Wechsler: National representatives were motivated to demonstrate respect for state sovereignty and the principles of Federalism. Professor John Yoo makes the historical argument for a judicially enforceable Federalism.151 Yoo argues that the Federalists proposed an early version of the Political Safeguards Theory at the ratification debates that was ultimately rejected. Anti-Federalists opposed this theory on the basis that man’s natural hunger for power would over149. Id. 150. Jennings & Razook, supra note 91, at 62. 151. See John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 131215 (1997). 296 [VOL. 48:267 Is United States v. Morrison Antidemocratic? whelm mere political safeguards. The Federalists conceded this point and began to champion judicial review as the ultimate check on the over-expansion of federal power. It is important to note that Professor Yoo, and others in his camp, do not argue against the idea that political structure was intended as a check on federal power. They simply argue that the political safeguards and judicial review complement each other. Kramer’s argument that judicial review received little attention at the ratification debates achieves little. It is well known that judicial review received little attention, and no amount of historical argument will prove conclusive on the matter. Judicial review was left unsettled until the Marshall Court staked a claim for its place in the constitutional system. While the Marshall Court’s decisions are susceptible to criticism, their ultimate place in history is unassailable. Judicial review is firmly established. Kramer’s arguments about judicial precedent fail as well. It is true that for decades after the New Deal, the prevailing view was that the Supreme Court should defer to congressional judgments about Commerce Clause power, but that alone does not argue for the correctness of that interpretation. The Court has vacillated between Dual Sovereignty and Cooperative Federalism since the founding. Similarly, the Court’s application of deference to political bodies has waxed and waned throughout history. Although the Political Safeguards Theory adequately explains why democratic institutions provide one check on the limits of Federalism, it does not provide a rational argument for excluding this single area of constitutional law from judicial review. Despite valiant attempts to buttress the political safeguards theory, these scholars ultimately fail to establish that politics is the exclusive protection for the boundaries of Federalism. Analysis of text, structure, and original understanding of the Constitution all fail to justify exercise of judicial review in some instances, while simultaneously excluding Federalism from its protections. Where Wechsler and Kramer ultimately fail is in distinguishing Federalism from other areas of constitutional law. If individual rights are properly protected by judicial review, why not limits on federal power? Simply arguing that the political structure provides for checks on federal power does not preclude judicial review of federal power as a backstop measure. There simply is no support in the text for exempting Federalism cases from the group of cases and controversies subject to judicial review. These scholars make a strong case for the existence and effectiveness 2004] 297 Howard Law Journal of political safeguards, but fail to explain why the existence of political safeguards precludes judicial review of the scope of federal power when those political safeguards fail. Wechsler, Choper, and Kramer have chosen the awkward position of arguing that judicial review is inappropriate in cases where the federal government is alleged to have encroached on state authority, but entirely appropriate where states infringe on federal rights. For all their skill, the authors cannot “draw a true distinction between cases protecting the federal government, on the one hand, and cases protecting the states, on the other.”152 In both types of cases, the Court is called on to make substantive judgments about where the Constitution draws the line between federal and state authority.153 Chief Justice Rehnquist himself provides an insightful rebuttal to those who argue that political structure is the only protection for Federalism: Justice Souter’s dissent theory that Gibbons v. Ogden, Garcia v. San Antonio Metropolitan Transit Authority, and the Seventeenth Amendment provide the answer to these cases . . . is remarkable because it undermines this central principle of our constitutional system. As we have repeatedly noted, the Framers crafted the federal system of Government so that the people’s rights would be secured by the division of power . . . . Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution’s provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the Legislature’s self-restraint. . . . It is thus a “permanent and indispensable feature of our constitutional system” that “the federal judiciary is supreme in the exposition of the law of the Constitution.” No doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury this Court has remained the ultimate expositor of the constitutional text. As we emphasized in United States v. Nixon: “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from others . . . . Many decisions of this Court, however, have unequivocally reaffirmed the 152. Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459, 1475 (2001). 153. See id. 298 [VOL. 48:267 Is United States v. Morrison Antidemocratic? holding of Marbury that �[i]t is emphatically the province and duty of the judicial department to say what the law is.’”154 Federalism is vital to liberty and individual rights. The Framers believed Federalism was vital to protect liberty from the tyranny that could result from concentrations of power in the federal government. Distribution of power among the various levels of a federalist system reduced the likelihood of corruption, provided additional checks and balances, and gave citizens additional access points to government. Federalism was considered as important to liberty as guarantees of individual rights. While modern theorists often separate individual rights and structural issues into distinct fields, Federalism is not a purely structural concept, but was intended to protect individual liberty.155 On this realization, the distinction between individual rights and Federalism and their susceptibility to judicial review becomes paper-thin. The Framers believed that both the structural aspects and the rights aspects of the Constitution served to limit the power of the federal government.156 Even the most ardent supporters of politically enforceable Federalism agree that the Court has a role to play when it comes to preserving individual liberty. There is no reason to distinguish between individual rights and Federalism once one achieves the realization that Federalism is as important to liberty as guarantees of individual rights. Dean Jesse Choper has attempted to sustain the distinction between Federalism and individual rights by arguing that states can police Federalism through the political process.157 States do not need the countermajoritarian protection of judicial review, according to Choper, because their interests are already protected in the political process.158 Choper distinguishes constitutional questions of individual liberty because we cannot be sure that minority voices will have an effective voice in the political process.159 Choper’s theory ignores several key characteristics of the Constitution. First, there is no evidence that the Founders intended to draw a distinction between individual rights and Federalism issues. As Choper acknowledges, the Framers viewed politics as one protection for Federalism. The Framers did not 154. United States v. Morrison, 529 U.S. 598, 616 n.7 (2000) (fourth alteration in original) (citations omitted). 155. MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 16-21 (1995). 156. See Prakash & Yoo, supra note 152, at 1476. 157. CHOPER, supra note 14, at 260-75. 158. Id. 159. Id. at 169. 2004] 299 Howard Law Journal stop there; rather they inserted the Tenth Amendment as explicit protection for Federalism principles. The Tenth Amendment, like many other constitutional provisions, is countermajoritarian in the sense that it removes certain issues of government structure from the political system.160 Choper’s theory assumes that the primary function of the judiciary is to protect individual rights.161 By insisting on this assumption, he ignores evidence that the entire Constitution, including the structural provisions, was “created to avoid tyranny and protect liberty.”162 The constitutional scheme of Federalism is one of several features designed to avoid concentration of power. The Framers were “virtual[ly] obsess[ed] with concentration of power.”163 The accumulation of “[a]ll the powers of government . . . . in the same hands is precisely the definition of despotic government.”164 This fear led to the creation of a structure of government that divides power, both between federal branches and between levels of government. The Framers believed Federalism was vital to protect liberty from the tyranny that could result from concentrations of power in the federal government. Finally, the political safeguards theory ignores the possibility that state political actors occasionally have incentives to ignore long-term sovereignty issues in favor of short-term political gain. The VAWA received the support of thirty-eight state attorneys general and passed overwhelmingly in both houses. Critics of Morrison use this evidence to demonstrate that the Court’s decision undermined the political system. The states believed that the VAWA was in their best political interests even though it encroached on a substantive area, gender-motivated violence, which had previously been reserved to the states. Arguably, passage of the VAWA is one example of states placing short-term political gain over defense of their own sovereignty.165 Alexander Hamilton recognized the distinction between a state’s rights and its political interests: “The rights of a state are defined by the Constitution, and cannot be invaded without a violation of it.”166 The 160. 161. 162. 163. 164. REDISH, supra note 155, at 16-21. Id. at 20. Id. Id. at 106. THE FEDERALIST NO. 48, at 310 (James Madison) (Clinton Rossiter ed., 1961) (quoting THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 195 (1787)). 165. Prakash &Yoo, supra note 152, at 1478-79. 166. 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 319 (Jonathan Elliot ed., 2d ed. 1907) (1891), available at http:// lcweb2.loc.gov/ammem/amlaw/lwed.html. 300 [VOL. 48:267 Is United States v. Morrison Antidemocratic? political interests of a state, on the other hand, “have no connection with the [C]onstitution, and may be in a thousand instances constitutionally sacrificed.”167 Judicial review is designated by the Constitution to serve as a backstop measure against constitutional violations that slip through the political process because otherwise the political structure would inevitably break down. Morrison, therefore, is not an antidemocratic usurpation of power by unelected judges, but the judicial branch performing its assigned duties in curbing a Congress that has overstepped its bounds. b. Should the Court Defer to Congressional Fact-Finding? Another popular criticism of Morrison is the charge that the Court’s decision is antidemocratic because it refused to defer to the fact-finding of a political body. Katzenbach endorsed the “rational basis” test as a means to measure the validity of congressional authority under the Commerce Clause: “[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.”168 In Morrison, the Court went beyond rational basis scrutiny to draw its own factual conclusions about VAWA’s effect on interstate commerce. The legislative record supporting VAWA was “far more voluminous than the record compiled by Congress and found sufficient” by the Court that upheld that the Civil Rights Act of 1964.169 In Heart of Atlanta Motel and Katzenbach, the Court relied on mostly anecdotal evidence to show the consequences of racial discrimination by motels and restaurants on interstate commerce.170 The Court found that evidence to be conclusive despite the fact that Congress did not compile the aggregate dollar value of nationwide effects of racial discrimination in public accommodations. In stark contrast, prior to passing VAWA, Congress did calculate the aggregate national cost of harms caused by domestic violence and sexual assault, estimating the cost to be $3 billion in 1990.171 Morrison has been especially susceptible to 167. Id. 168. Katzenbach v. McClung, 379 U.S. 294, 303-04 (1964). 169. United States v. Morrison, 529 U.S. 598, 635 (2000) (Souter, J., dissenting). 170. Katzenbach, 379 U.S. at 299-300; Heart of Atlanta Motel v. United States, 379 U.S. 241, 252 (1964). 171. See supra Part II. 2004] 301 Howard Law Journal criticism because the Court refused deference to fact-finding that supported the VAWA as substantially affecting interstate commerce. These criticisms are common but they must rest on two tenuous assumptions. First is the claim that Congress is the preferred factfinding institution—that Congress is better suited than courts to gather facts needed to assess the commercial effects of a regulated activity. Second, these critics assume that superior fact-finding ability necessarily calls for judicial deference. This need not be so. In Board of Trustees of the University of Alabama v. Garret172 Justice Stephen G. Breyer, dealing with a state sovereign immunity claim, summarized the commonly held belief that Congress is best suited for fact-finding and therefore deserves deference from the Court: Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. . . . Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have first-hand experience with discrimination and related issues. Moreover, unlike judges, Members of Congress are elected. . . . To apply a rule designed to restrict courts as if it restricted Congress’ legislative power is to stand the underlying principle—a principle of judicial restraint—on its head.173 Justice William J. Brennan has relied on this “institutional competence” of Congress in justifying rational basis review for benign racial discrimination.174 But Justice Brennan never justified this claim of congressional superiority with any evidence. It is true that Congress has the resources, including money and staff, to collect evidence and data that might never enter into evidence at a normal trial. Justice Breyer makes a valid point in arguing that Congress can collect nationwide data versus the narrow scope of most judicial proceedings. The scope of data that Congress can collect is surely greater than what one might expect at a trial limited to a dispute between two parties. The evidence Congress can collect may be highly probative in generating public policy solutions. That ability says nothing about Congress’ 172. 531 U.S. 356 (2001). 173. Id. at 384-85 (Breyer, J., dissenting) (citations omitted). 174. Metro Broad., Inc. v. FCC, 497 U.S. 547, 563 (1990), overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). 302 [VOL. 48:267 Is United States v. Morrison Antidemocratic? ability to determine when those public policy solutions overstep constitutional boundaries on congressional power, however. Accurate fact-finding does not necessarily lead to correct substantive constitutional decisions. If the Court must defer to congressional judgments about the scope of federal power, the Political Safeguards Theory becomes justification for Congress to regulate any problem, so long as they accumulate evidence showing the scope of the problem. Justices Breyer and Brennan ignore another key difference between Congress and the courts. While Congress can collect more data on a wider scope, congressional conclusions should always be viewed through a political lens. Congressional fact-finding may often be a one-sided effort to provide evidentiary support for popular legislation. Ultimately, if one believes that courts should exercise substantive review of legislative judgments, rather than merely procedural review, it follows that the Court need not always defer to fact-finding of Congress. If the court were to do so, its judicial review would become merely procedural. The Commerce Clause under that view only requires that Congress hold hearings and collect data before passing legislation. There simply is no support in the Constitution for subjecting Federalism to mere procedural review.175 Chief Justice Rehnquist himself provides the best response to those who argue that the Court’s refusal to defer to Congress in Morrison amounts to an antidemocratic usurpation of power. Chief Justice Rehnquist acknowledged that the Court does in fact give respect and some level of deference to Congress and its findings, but to not review such findings when they are the basis for constitutionality of the statute under review would amount to abdication of the Court’s responsibility of checks and balances.176 Chief Justice Rehnquist does not substitute judicial fact-finding for that of Congress; rather he acknowledges the principle of judicial restraint. He does not even question the accuracy of the facts that Congress compiled; instead he questions the constitutional conclusions that Congress reached from those facts. 175. See generally REDISH, supra note 155, at 99-134. 176. United States v. Morrison, 529 U.S. 598, 614 (2000). “But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. . . . [S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.”’ Id. at 614 (quoting United States v. Lopez, 514 U.S. 549, 547 n.2 (1995)). 2004] 303 Howard Law Journal In Morrison, Congress found that gender-motivated violence affects interstate commerce “by deterring potential victims from traveling interstate, from engaging in employment in interstate business . . . and in places involved interstate commerce . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of the demand for interstate products.”177 The Rehnquist majority acknowledges that restrained judicial review requires some deference to Congress, but not total deference. The Court believes it is its duty to enforce substantive, not merely procedural, limits of Federalism. In reviewing congressional findings on the VAWA, Chief Justice Rehnquist wrote, “Given these findings and petitioners’ arguments, the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded.”178 In other words, no amount of Congressional fact-finding can make a non-economic activity economic and it is the Court’s duty to enforce substantive limits of Federalism. In his critique of the Rehnquist majority, Professor Rossum points to Chief Justice John Marshall’s writings as evidence that Marshall and the Founders did not fear broad interpretation of the Commerce Clause.179 While this may be true, it ignores the fact that Chief Justice Marshall is the father of strong substantive judicial review.180 If, as Rossum seems to believe, Chief Justice Marshall is a reliable source of original intent, then he fails to reconcile Chief Justice Marshall’s stance on judicial review with his own theory of politically enforced Federalism. Almost by accident, it seems, Rossum gets to the heart of the matter. By focusing on Chief Justice Marshall’s writings on the scope of the Commerce Clause, he reveals that Morrison critics are most upset with the substantive law espoused in Morrison, not the exercise of judicial review that led to the decision. While the Court should give some deference to rational congressional judgments about whether an activity is within its Commerce Clause power, the Court need not abdicate its duty to enforce the substantive limits of that power simply because Congress has provided evidence of substantial effects on commerce. The Morrison court is 177. Morrison, 529 U.S. at 615 (quoting H.R. CONF. REP. NO. 103-711, at 385 (1994), reprinted in 1994 U.S.C.C.A.N. 1803, 1853). 178. Id. 179. ROSSUM, supra note 134, at 157-73. 180. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). 304 [VOL. 48:267 Is United States v. Morrison Antidemocratic? correct in asserting that judicial review should be substantive, not procedural. This Article does not address whether Morrison draws the proper substantive line between federal and state power, but in Morrison, the Court conducted the proper type of review: Substantive judicial review of congressional action, not mere procedural review of the legislative process. The Constitution does not require Congress to support its assertions of power with evidence to placate the courts. Nor does the Constitution require the Court to abdicate its duty to decide cases and controversies just because Congress has amassed evidence to support its exercise of power. First, the call for deference to detailed legislative findings will divert congressional resources to create a legislative record.181 Congress may have more incentive to do what is popular in the short-term than to police the boundaries of its own power for the long run. This would lead to a system where Congress generates huge legislative records in hopes for judicial deference to procedural steps taken. There is no constitutional support for this type of system. Legislative bodies are by nature messy. A legislative record detailing the process will mimic this characteristic. The record will often reflect conflicting views and purposes. Legislators voting for the same bill may have vastly different reasons for supporting it. The Constitution does not call for the courts to review procedure; rather it relies on the Court to serve a backup function. When Congress oversteps the constitutionally created boundaries of its power, it is the Court’s duty to say so. CONCLUSIONS Professor Rossum believes that the Rehnquist Court has tried to fill a void left in Federalism protections following the passage of the Seventeenth Amendment.182 Rossum argues however that the Amendment reflects a Constitutional choice in favor of democratic rule over the Federalism protection given by state-elected Senators.183 According to Rossum, Lopez and Morrison are misguided attempts to replace political safeguards with judicial safeguards.184 Rossum be181. See A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court’s New “On the Record” Constitutional Review of Federal Statutes, 86 CORNELL L. REV. 328 (2001). 182. ROSSUM, supra note 134, at 233. 183. Id. at 181. 184. Id. 2004] 305 Howard Law Journal lieves this theory explains in part the need for the Rehnquist Court to strike down so many federal statutes in the name of Federalism. As a descriptive matter he may be right: Passage of the Seventeenth Amendment and the accumulation of federal power following the New Deal and the Great Society represent a failure of the Federalism protections put in place by the Founders. Normatively, however, Rossum is wrong. He believes the Rehnquist Court is unauthorized and unjustified in stepping in to provide judicial safeguards because the political safeguards were intended to be the only safeguards. The Political Safeguard theorists have argued persuasively that the Constitution provides political checks on federal authority, but have failed miserably to show that politics is the only intended safeguard. The political safeguards are the first line of defense against overreaching by Congress, but as with other constitutional principles, the Court has the duty to police the substantive boundaries of Federalism when the political process fails to do so. Critics of Morrison fail to sustain the distinction between Federalism and individual rights. Their failure leaves them with two options: Either do away with judicial review because the entire institution is unauthorized, or treat Federalism cases and controversies just like those involving individual rights. There are good reasons to believe that Federalism as a doctrine should be maintained and that courts should play a role in enforcing the limits of the doctrine. Federalism promotes individual liberty, political autonomy, and political access. The maintenance of Federalist principles does not fall to one branch of government, but is the responsibility of several branches. The Rehnquist Court’s assertion that Federalism is subject to the same level of judicial review as other constitutional decisions is not overreaching, nor does it deny that political safeguards play a role in enforcing Federalism as well. Of course, Morrison is subject to the same countermajoritarian complaints as all other exercises of judicial review. Substantive judicial review of Federalism may be less democratic than political enforcement when viewed through the lens of pure democratic theory. That difficulty does not make Morrison unconstitutional or even less constitutionally preferred, however. Critics of Morrison have suggested that something about these cases is especially antidemocratic and have attempted to distinguish these cases from individual rights jurisprudence. These efforts represent an attempt to claim that the 306 [VOL. 48:267 Is United States v. Morrison Antidemocratic? Court should be deferential when reviewing federal legislation for constitutional authority, but aggressive when reviewing state legislation for individual rights violations. Ultimately these attempts fail. Our constitutional democracy is not a pure democracy, and so the arguably antidemocratic effect of judicial review does not present constitutional problems. The critics of Morrison are displeased with the substantive results of Morrison and fear that Morrison and Lopez may have dire consequences for favored legislation.185 To the contrary, the Rehnquist Court’s move to enforce substantive Federalism is completely in sync with our constitutional democracy. Morrison is not antidemocratic unless one believes adherence to the structural requirements of the Constitution is antidemocratic. Ultimately democracy can only function if it has rules and structure within which to function. The structural provisions of the Constitution recognize several different majorities and prescribe when and where each majority will rule. A Supreme Court that acts as a neutral umpire to enforce the structural provisions of the Constitution does not suffer from the countermajoritarian problem, at least not in any constitutionally relevant sense, because it is engaged in performing its constitutionally assigned duty to choose which majority should govern on a given issue. Critics of Morrison may have a valid claim that the Rehnquist Court is drawing the line between state and federal power in the wrong place. The history of Federalism shows locating that boundary is no easy task. In actuality, the Morrison decision does not thwart the will of the people; instead, in Morrison, the Court performed its constitutional duty to enforce the structural provisions of the text and to provide boundaries in which democracy can function.186 185. This fear seems especially acute when related to the Civil Rights Act of 1964. Because VAWA has similar characteristics to the Act, many commentators fear that Morrison is the beginning of the end for civil rights legislation. The Court has been careful to distinguish VAWA and GFSZA from the Civil Rights Act, though. In fact, Morrison embraces most of the Court’s Commerce Clause jurisprudence. See Calvin Massey, Federalism and the Rehnquist Court, 53 HASTINGS L.J. 431 (2002). Professor Massey argues that while national action was needed to address racial issues in the 1960s, the Commerce Clause was not the “most adroit” basis for the Civil Rights Act. The right at issue in McClung had nothing to do with interstate movement of goods, but rather “the right of [B]lack Americans to be treated the same way as all other Americans, with no special disadvantage visited upon them by reason of their ancestral heritage. This is the province of the Thirteenth and Fourteenth Amendments, not the commerce power.” Id. at 482. “The Court,” argues Massey, “contorted the commerce power” because the legislation was needed, but he laments the unnecessary erosion of Federalism caused by the decision. Id. He proposes Section 2 of the Thirteenth Amendment as a better basis for the Civil Rights Act of 1964. Id. at 482-83. 186. See Calabresi supra note 12, at 1382-83. 2004] 307 Tragicomedy YXTA MAYA MURRAY* INTRODUCTION: COMEDY AND TRAGEDY AS THE UNANSWERABLE Judges and lawyers employ, and are themselves persuaded by, tragic and comic conventions when arguing their cases. Through written and verbal storytelling, gifted members of the legal profession depend not only upon their abilities to manipulate precedent, statutes, policy, or legislative history, but also upon their capacity to make their audiences cry and laugh. Tragedy and Comedy, however, are not easily mastered, and lawyers may find that they are just as easily bested by these influences as they are skilled wielders of them: Judges are sometimes overwhelmed by the tragic or comic natures of cases, and write opinions that are shaped more by the cathartic emotion evoked by those literary forms than by stare decisis or plain logic. In some cases, opinions may even amount to literary tragedies, or become jokes themselves. And when tears begin rolling, or jurors begin laughing, there is little that the losing lawyer can do. In the courtroom, Tragedy and Comedy are such potent influences that they can prove unanswerable. In Part I of this Article, I will examine successful uses of tragic writing in Payne v. Tennessee,1 Janus v. Tarasewicz,2 and Plessy v. Ferguson.3 In Payne, I will show how the U.S. Supreme Court makes specific use of literary tragic conventions to support its death penalty arguments. In Janus and Plessy, I will demonstrate how the courts themselves are led by the tragic elements in the cases before them. In Janus, excruciating facts of a murder, and the irrepressible human desire to deny mortality, lead a court to make a weakly logical decision * 1. 2. 3. Professor of Law, Loyola Law School in Los Angeles. 501 U.S. 808 (1991). 482 N.E.2d 418 (Ill. App. Ct. 1985). 163 U.S. 537 (1896). 2004 Vol. 48 No. 1 309 Howard Law Journal when pressed to determine when a victim has died; in Plessy, the Supreme Court’s vitriolic reaction to that famous plaintiff’s request that a racially discriminatory law be struck down evokes the cathartic emotions of Greek Tragedy. In Part II of this Article, I will analyze the Ninth Circuit Judge Alex Kozinski’s dissent in White v. Samsung Electronics America, Inc.,4 Justice Antonin Scalia’s opinions in Lawrence v. Texas5 and Grutter v. Bollinger,6 the 1964 New York decision People v. Bruce,7 and Justice Byron White’s decision in Bowers v. Hardwick8 to show how courts and advocates may effectively use, or be overborne by, Comedy in the courtroom. White, Lawrence, Grutter, and Bowers are all cases where judges use humor to stun their opponents and persuade their audience of their arguments. Bruce, on the other hand, is a case where the judges, beset by comic catharsis, are unable to marshal any persuasive defenses against it (or rather against the comic genius of the defendant who was convicted), and so, in the end, become an object of ridicule. In all of these examples, I will show how tragic and comic elements prove to be unanswerable weapons when used by skilled rhetoricians, and how these factors prove overwhelming to deciding courts. To clarify my use of the term “unanswerable,” I will point the reader to two famous plays by William Shakespeare, where characters stagger their adversaries through tragic and comic means. In Shakespeare’s great plays The Merchant of Venice and Hamlet Prince of Denmark, the characters of Shylock and Prince Hamlet speak in the language and tradition of Tragedy and Comedy, respectively, to prosecute their suits. In the case of Shylock, the action concerns his right to claim a pound of flesh as redress for Antonio’s, that is the Merchant’s, forfeit of his bond; in the case of Hamlet, the Prince endeavors to requite the murder of his father, the King, by his newlyuxorious Uncle Claudius. As Shylock submits to Salerino and Solanio, friends of Antonio, his right to take the Merchant’s life, he invokes his own humanity as support for his cause. The famous speech runs as follows: 4. 989 F.2d 1512 (1993) (White II); 971 F.2d 1395 (1992) (White I). 5. 539 U.S. 558 (2003). 6. 539 U.S. 306 (2003). 7. People v. Bruce (N.Y. Crim. Ct. 1964) at A30 (unpublished opinion), available at http:// www.law.umkc.edu/faculty/projects/ftrials/bruce/brucecourtdecisions.html (last visited June 18, 2004). 8. 478 U.S. 186 (1986). 310 [VOL. 48:309 Tragicomedy I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions?—fed with the same food, hurt with the same weapons, subject to the same diseases, [healed] by the same means, [warmed] and [cooled] by the same winter and summer, as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that.9 Though The Merchant of Venice is a Comedy, I submit that Shylock’s speech figures into the tragic category, because it concerns the greatness and vulnerability of man and elicits in the viewer or reader cathartic feelings of pity.2 Further, Shylock’s poignant appeal is so passionate and irrefutable that Salerino and Solanio cannot find any words to discredit him; his claim that he too is a man in all of his tragic dimensions has no riposte. Instead, Solanio dismisses Shylock by feebly analogizing him to the “devil.”10 Hamlet, on the other hand, makes no such affecting prayer when he works to avenge the murder of his father; instead of prosecuting his claim in a direct manner, he instead befuddles those around him (with the notable exception of Gertrude) to obtain a different power over his adversaries. In lieu of courting any fellow-feelings or sympathy, he seeks to confound those of the royal court with a wicked, bizarre, and unanswerable humor so that they will find themselves powerless to resist his retributive plots. In a meeting with Polonius, Claudius’s Lord Chamberlain and spy, the two characters have the following exchange, when Polonius comes upon Hamlet reading a book: Polonius: . . . . What do you read, my Lord? Hamlet: Words, words, words. Polonius: What is the matter, my lord? Hamlet: Between who? Polonius: I mean the matter that you read, my lord. Hamlet: Slanders, sir; if the satirical rogue says here, that old men have gray beards; that their faces are wrinkled; their eyes purging thick amber and plum-tree gum; and that they have a plentiful lack of wit, together with most weak hams: All which sir, though I most powerfully and potently believe, yet I hold it not honesty to have it 9. WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE, reprinted in THE COMPLETE WORKS OF WILLIAM SHAKESPEARE act 3, sc. 1, ll. 54-64 (Wordsworth Editions Ltd. 1996) [hereinafter COMPLETE WORKS OF SHAKESPEARE]. 10. At the appearance of Tubal, an associate of Shylock’s, Solanio mutters, in a fit of antisemitic rage: “Here comes another of the tribe. A third cannot be matcht, unless the devil himself turn Jew.” See id. act 3, sc. 1, ll. 73-74. 2004] 311 Howard Law Journal thus set down; for yourself, sir, shall grow old as I am, if, like a crab, you could go backward. Polonius: [Aside] Though this be madness, yet there is method [in it]. . . .11 Hamlet here is like both Lenny Bruce and a holy fool with his razor-sharp insults and his pretensions to madness, and he makes no small nod to Comedy when he mentions “satirical rogue[s]” and the old men’s “weak hams.” Poor Polonius, who is soon to be stabbed by Hamlet, can only mutter his suspicious and well-known aside as he is so confused and dazzled by his adversary’s verbal pyrotechnics. And though he has some notion that he is being made the butt of a joke, he has little inkling of the Prince’s bloody plans. The literary forms used by Shylock and Hamlet resonate with us still: Tragedy makes us cry; Comedy causes us to laugh, and both because they touch upon the Unanswerable—Pathos and Absurdity. Moreover, the persuasive, dumbfounding uses to which Elizabethan Tragedy and Comedy are so employed by Shylock in The Merchant of Venice and Hamlet in Hamlet Prince of Denmark persist in our society—and not just in the theater. As this Article will show, they are also exerted in twentieth- and twenty-first-century American jurisprudence. I. LAW AS TRAGEDY Aristotle was among the first to define this form of theater, describing it as follows: “[T]he imitation of an action that is serious . . . with incidents arousing pity and fear, wherewith to accomplish [the] catharsis of such emotions.”12 The tragic hero must “enjoy[ ] great reputation and prosperity, [for example] Oedipus, Thyestes, and the men of note of similar families.”13 11. WILLIAM SHAKESPEARE, HAMLET PRINCE OF DENMARK, reprinted in COMPLETE WORKS OF SHAKESPEARE, supra note 9, act 2, sc. 2, ll. 54-64. 12. I hope that purists will not mind that I will cite here to ARISTOTLE, POETICS (Ingram Bywater trans. n.d.), reprinted in THE POCKET ARISTOTLE 340, 348 (Justin Kaplan ed., 1958) [hereinafter ARISTOTLE, POETICS]. 13. Id. at 357; see also Thomas C. Galligan, Jr., The Tragedy in Torts, 5 CORNELL J.L. & PUB. POL’Y 139, 141 (1996) ( “[Aristotle’s] . . . famous literary theory . . . [was] that [T]ragedy effected a purification (catharsis) of the emotions of terror and pity that amounted to an experience of rebirth. The Greek tragedies, which originally formed a part of a religious festival, did not necessarily present a factual account of historical events but were attempting to reveal a more serious truth.”) (quoting K. ARMSTRONG, A CITY OF GOD 37 (1993)) (alterations in original). 312 [VOL. 48:309 Tragicomedy Judges and lawyers in twentieth- and twenty-first-century jurisprudence employ tragic themes and rhetoric to support jurisprudential decisions, and also to give energy to advocacy. Tragedy has a particular persuasive use and appeal in the court of law. This Article studies three cases to show the ways in which judges strive to use tragic imagery and language as a ballast for controversial decisions. Sometimes courts are effective masters of these forms, and sometimes they appear more overborne by tragic catharsis than adepts of their methods. Also, on account of the quality of the writing and the delicacy of the facts, the decisions themselves will qualify as works of Tragedy so high that they may elicit the same painful responses enumerated by Aristotle in his definition of this literary style. A. Payne v. Tennessee14 The question before the Supreme Court in Payne concerned the legality of introducing victim impact statements in death penalty proceedings. In the cases of Booth v. Maryland,15 and South Carolina v. Gathers,16 the Court declared that such impact statements, and any “statements made by a prosecutor to [a capital] sentencing jury regarding the personal qualities of the victim”17 were void under the Eighth Amendment’s prohibition on “cruel and unusual punishment.” The Court reasoned that the character, life, and agonies suffered by the victim were unrelated to the defendant’s culpability (since he would not necessarily have had any awareness of the good or bad character of the victim), and beyond the defendant’s control.18 Moreover, such statements were also regarded as being too inflammatory, and there was a fear on the part of the Court that they would have an extraordinary influence on the jury.19 In Payne, the Court took occasion to revisit the issue of the introduction of these statements, and reversed its own decision. Perhaps the Justices’ reasons for reconsidering Booth and Gathers are not so difficult to fathom when one studies the astonishing and excruciating 14. 501 U.S. 808 (1991). 15. 482 U.S. 496 (1987). 16. 490 U.S. 805 (1989). 17. Payne, 501 U.S. at 818. 18. Booth, 482 U.S. at 504 (noting that statements introduce factors that might be “wholly unrelated to the blameworthiness of a particular defendant.”). 19. Cf. Mann v. Oklahoma, 488 U.S. 877, 878 (1988) (Marshall, J., dissenting.) (“Photographic evidence of this sort seems no less inflammatory or prejudicial than the victim impact statements deemed inadmissible in Booth v. Maryland . . . .”). 2004] 313 Howard Law Journal facts of the case. On June 27, 1987, the Defendant, Pervis Tyrone Payne entered the home of Charisse Christopher, and in an inebriated state began to solicit this mother of two young children for sexual favors.20 When his victim was not forthcoming, Payne lost control and attacked her, as well as her two children, two-year old Lacie, and three-year old Nicholas, with a knife. Charisse and Lacey died after being stabbed several times, but Nicholas, though penetrated with several knife wounds, survived.21 The prosecutor and the Court set forth the horrors of that day with almost novelistic detail. Chief Justice William Rehnquist described the scene as follows: Payne passed the morning and early afternoon injecting cocaine and drinking beer . . . . Sometime around 3 p.m., Payne returned to the apartment complex, entered the Christophers’ apartment, and began making sexual advances toward Charisse. Charisse resisted and Payne became violent. A neighbor who resided in the apartment directly beneath the Christophers heard Charisse screaming, “�Get out, get out,’ as if she were telling the children to leave.” The noise briefly susbsided and then began, “�horribly loud.’” The neighbor called the police after she heard a “blood curdling scream” from the Christopher’s [sic] apartment. When the first police officer arrived at the scene, he immediately encountered Payne, who was leaving the apartment building, so covered with blood that he appeared to be “�sweating blood.’” . . . Inside the apartment, the police encountered a horrifying scene. Blood covered the walls and floor throughout the unit. Charisse and her children were lying on the floor in the kitchen. Nicholas, despite several wounds inflicted by a butcher knife that completely penetrated through his body from front to back, was still breathing. Miraculously, he survived, but not until after undergoing seven hours of surgery and a transfusion of 1,700 cc’s of blood—400 to 500 cc’s more than his estimated normal blood volume. Charisse and Lacie were dead. Charisse’s body was found on the kitchen floor on her back, her legs fully extended. She had sustained [forty-two] direct knife wounds and [forty-two] defensive wounds on her arms and hands .... 20. Payne, 501 U.S. at 812-13 (citations omitted). 21. Id. 314 [VOL. 48:309 Tragicomedy Lacie’s body was on the kitchen floor near her mother. She had suffered stab wounds to the chest, abdomen, back, and head. The murder weapon, a butcher knife, was found at her feet.22 What remains so striking about Payne is not just the holding, but Chief Justice Rehnquist’s decision to render the facts in this powerful, detailed, and extremely sympathetic manner. Payne did not have to be written this way, and, indeed, the exceptional manner in which its authors tell the story of Charisse’s and Lacey’s murders sets it apart from the majority of other Supreme Court decisions where facts are usually set forth in a far more sterile fashion—particularly when the decision supports the rights of defendants. In Coker v. Georgia,23 for example, the Court set forth the rule that the death penalty could not serve as a legal punishment for the “rape of an adult woman”24 as it violated the “cruel and unusual” clause of the Eighth Amendment. Justice White, writing for the majority, set forth the case’s facts: At approximately 11 o’clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a “board,” he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver’s money and the keys to the family car. Brandishing the knife and saying “you know what’s going to happen to you if you try anything, don’t you,” Carver then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.25 Justice White writes about this attack in language that is not only not novelistic, but also distinctly remote, sanitary, and unfeeling in the extreme (“Mrs. Carver was unharmed.”). It is Chief Justice Burger, dissenting, who comes closest to describing the dramatic features of the rape (and then-Associate Justice Rehnquist, notably, joins this dissent) when he writes the following about one of Coker’s earlier rape offenses: “After twice raping this sixteen-year-old victim, he stripped her, severely beat her with a club and dragged her into a wooded area where he left her for dead.”26 22. 23. 24. 25. 26. 2004] Id. 433 U.S. 584 (1977). Id. at 592. Id. at 587 (emphasis added). Id. at 606 (Burger, C.J., dissenting). 315 Howard Law Journal So why all the dramatic writing in Payne? The reason lies in the fact that Chief Justice Rehnquist seeks an outcome that will circumscribe the rights of defendants and buttress the rights of victims and their families at death penalty hearings—but I seek to focus on the particularly effective use of tragic motifs in Chief Justice Rehnquist’s prose, which elicits from its reader an Aristotelian catharsis. The Payne opinion also resembles Shakespeare’s sublime tragic efforts, through the voice of Shylock, to describe the human condition in such painful and universal terms that we find ourselves unable to respond with any equal refutation—and we may be reduced to the same stuttering reaction as Salerino and Solanio, who cannot respond to Shylock’s salvo with any kind of lucid counter argument. As noted previously,27 what Tragedy seeks to accomplish—both in law and in literature—is to describe, and present, the unanswerable—the ineffable. And the Justices occasionally use this literary form (to the extent their writing ability enables them) as its own particular persuasive tool. When we read this rendering of Payne’s facts and its legal conclusions, we might notice, if we are able to rip ourselves from the page, and “think like lawyers,” that we are no longer dealing with logic problems, traditionally phrased public policy arguments, cost-benefit analyses, or stare decisis. Once we begin reacting to Nicholas’s incredible survival and his mother’s blood-curdling screams, the attractions of cold logic fade, and, indeed, may cease to have any meaning. We are in the realm, not only of law, but of art. We find ourselves within a High Tragedy. A careful scan of Payne’s facts section reveals literary elements that feel not like the sister cases Coker, or even Gregg v. Georgia,28 but instead like Macbeth and Beowolf—or even Bram Stoker’s Gothic masterpiece, Dracula.29 Payne is limned not so much as a fellow 27. See supra Introduction and text accompanying note 12. 28. 428 U.S. 153 (1976). Though Gregg, which outlawed Georgia’s death penalty scheme, does contain dramatic elements, it focuses on graphic details in a fashion that nowhere resembles the art of Payne: [T]he petitioner fired three shots and the two men fell near a ditch. The petitioner, at close range, then fired a shot into the head of each. He robbed them of valuables and drove away with Allen. . . . [B]oth men had several bruises and abrasions about the face and head which probably were sustained either from the fall into the ditch or from being dragged or pushed along the embankment. Id. at 159-60. 29. BEOWULF (Burton Raffel trans., 1999) ( n.d.); BRAM STOKER, DRACULA (2004) (1897); WILLIAM SHAKESPEARE, MACBETH, reprinted in COMPLETE WORKS OF SHAKESPEARE, supra note 9, at 858. 316 [VOL. 48:309 Tragicomedy human being, but more like a monster, for no humans are capable of “sweating blood.” Moreover, Charisse’s screams, the literary-forensic description of her body (“Charisse’s body was found on the kitchen floor on her back, her legs fully extended.”),30 the representation of blood on the walls, and of Nicholas’s agonizing half-alive state and his “miraculous” recovery are all pitch-perfect novelistic or theater-like description of horrors that the reader can barely believe are real. As in the realm of literary Tragedy, there is no real answer to any of this. Oedipus, in the famous eponymous play of Sophocles, reacts at his own revelation that he killed his father and slept with his mother31 with the repetitive guttural prayer: LIGHT LIGHT LIGHT Never again flood these eyes with your white radiance, oh gods, my eyes.32 The character of Michael Corleone, when confronted by his daughter’s death in Francis Ford Coppola’s The Godfather Part III,33 emits a silent, aching scream as he holds her body in his arms. And, as stated, Shylock paints the picture of his tragic humanity in such powerful terms that his listener is stunned, then answers only in an idiot’s stumbling slur. This dazed, incoherent, and defenseless reaction proves the same response that the majority in Payne evoked when it wrote in tragic mood. Moreover, in their concurrences, Justices Sandra Day O’Connor and David Souter appear to be struggling for the same grand and powerful tone of Shakespeare’s The Merchant of Venice when they describe dead victims in all their lost splendor, and in language that echoes Shylock’s celebration of his own humanity. “[Murder] transforms a living person with hopes, dreams, and fears into a corpse, thereby taking away all that is special and unique about the person,”34 Justice O’Connor wrote. Justice Souter, in a section that uncannily resembles the quoted passage from The Merchant of Venice, asserted: Just as defendants know that they are not faceless human ciphers, they know that their victims are not valueless fungibles; and just as 30. Payne v. Tennessee, 501 U.S. 808, 812 (1991). 31. See infra notes 86-89 and accompanying text. 32. SOPHOCLES, OEDIPUS THE KING 77 (1978) (Stephen Berg & Diskin Clay trans.) [hereinafter SOPHOCLES, THE KING]. 33. THE GODFATHER PART III (Paramount Pictures 1990). 34. Payne, 501 U.S. at 832 (O’Connor, J., concurring). 2004] 317 Howard Law Journal defendants appreciate the web of relationships and dependencies in which they live, they know that their victims are not human islands, but individuals with parents or children, spouses or friends or dependents.35 These Justices’ use of tragic conventions is more astonishing than advocates’ use of them—for Tragedy is the criminal lawyer’s ancestral weapon. Just as an example of the dramatic use of the facts made by the prosecutor in Payne, consider the statements deemed admissible at the defendant’s death penalty proceeding: “But we do know that Nicholas was alive. And Nicholas was in the same room. Nicholas was still conscious. His eyes were open. He responded to the paramedics. He was able to follow their directions. He was able to hold his intestines in as he was carried to the ambulance. So he knew what happened to his mother and baby sister. .... . . . No one will ever know about Lacie Joe because she never had the chance to grow up. Her life was taken from her at the age of two years old. So, no there won’t be a high school principal to talk about Lacie Jo Christopher, and there won’t be anybody to take her to her high school prom. And there won’t be anybody there – there won’t be her mother there or Nicholas’ mother there to kiss him at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby.”36 For the past six years, I have taught Payne in both my Criminal Sentencing and Law and Literature classes at Loyola Law School in Los Angeles, California, and there are days when I wish I had never seen it at all. As usual when I analyze Payne, I begin crying, and I am crying now after having quoted this last paragraph, and it would not surprise me if others share my response. That the Supreme Court in this 1991 decision permitted such statements to be included in death penalty proceedings meant—in terms of studying the connection between law and literature—that it would allow High Tragedy into these hearings, in addition to its election to write in the tragic mode in its own opinions. As Aristotle notes, one of Tragedy’s hallmarks is its ability to trigger a catharsis in its audience, and if one feels catharsis at Oedipus Rex or MacBeth or 35. Id. at 838 (Souter, J., concurring). Compare this passage with Shylock’s speech in text accompanying supra note 9. 36. Payne, 501 U.S. at 815-16 (quoting the prosecutor’s arguments in the death penalty proceedings) (second omission in original). 318 [VOL. 48:309 Tragicomedy La Boheme,37 imagine the absolute volcano of emotion that would erupt at this speech on the part of the prosecutor. Perhaps we feel that it is appropriate to undergo catharsis at a death penalty hearing in a case such as Payne, as the ability to experience these immense emotions is an important, necessary, and sacred human gift. Yet, we should also remember other figures in Tragedy, the magnificent and terrible furies:38 When confronted with such speeches, perchance we too will find ourselves tempted into the role of those screaming witches, who attacked that famous matricide, Orestes, with red tooth and claw; the similar passion modern readers may feel upon the reading of Payne may prove so great that it transcends the cooler genius we demand of fact finders.39 Again, Tragedy is a part of jurisprudence, and is used to a specific persuasive end. Its arguments are irrefutable, and it spurs us into cathartic, and very ardent, reactions. B. Janus v. Tarasewicz40 Like Payne, the 1985 Janus decision qualifies as a work of Tragedy in and of itself, as it decides when a person murdered by cyanide is truly “dead” for the purposes of determining the proper beneficiaries of a life insurance policy. In Janus, the phenomenon that was 37. GIACOMO PUCCINI, LA BOHEME (Ellen H. Bleier trans., Dover Publications 1962) (1896); WILLIAM SHAKESPEARE, MACBETH, supra note 29; SOPHOCLES, OEDIPUS REX (WilliamAlan Landes ed., E.H. Plumptre trans., Players Press 1992) (n.d.). 38. The Furies exact a violent vengeance in Aeschylus’s trilogy, The Oresteia. Cf. Maria Aristodemou, Classical Greek Themes in Contemporary Law: The Seduction of Mimesis: Theater as Woman and the Play of Difference and Excess in Aeschylus’s Oresteia, 11 CARDOZO STUD. L. & LITERATURE 1, 9 (1999) (considering the “relationship between justice and private vengeance, the will of Zeus and the force of the old chthonian religion represented by the Furies: how did the new assembly and law courts fit into the system of revenge and retribution?”); Marie Adornetto Monahan, The Role of Women in the Development of the First Court of Justice, 25 CUMB. L. REV. 577, 597 (1994) (“[T]he Furies are horrific female goddesses whose purpose is to avenge the murder of Clytemnestra. Their physically repulsive appearance represents the extremity of their political and ideological position, which is diametrically opposed to that of Apollo. They are consumed by a savage spirit of revenge for Clytemnestra’s murder even though it was sanctioned by a god—Apollo.”); William Joseph Wagner, The Pursuit of the Hunt, Interrupted: Changing Literary Images of Law, 49 CATH. U. L. REV. 945, 947 (2000) (discussing Aeschylus’s character Orestes, a mother-killer, whose “destruction by the Furies is the inexorable next step in the Atrean cycle of vengeance, guilt, and violence”). 39. This danger may be particularly apt in cases where we fear that racial prejudice also helps sway the jury’s determination. See Furman v. Georgia 408 U.S. 238, 255 (1972) (striking down a death penalty scheme because “[T]he discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking in political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position”). 40. 482 N.E.2d 418 (Ill. App. Ct. 1985). 2004] 319 Howard Law Journal visible in Payne—that of a court employing tragic devices to strengthen a controversial argument—is not quite so clear, but if we examine the text of the opinion, we are able to see how the Tragic works a similar towering influence on the author. The specter of a needless and gruesome death, which occurs in the most galling of circumstances, and the sympathy for the victims lead the court to define death in a most expansive and controversial manner, using no other persuasive support than the pathetic,41 unanswerable, and heroic impulse that we must hang on to precious human life at all costs. Moreover, the court is spurred to define life and death in so elastic a fashion by the cathartic emotions that the facts of Janus arouse in us. The facts in Janus are horrible; they involve the well-known spree of the “prankster” who dosed various bottles containing Tylenol with cyanide.42 On September 29, 1982, Stanley and Theresa Janus had “recently returned from their honeymoon” when they were called to the home of Stanley’s brother, Adam Janus, to mourn his death, which had occurred only hours before. Adam was one of the first victims of the Tylenol poisoning, but at that time no one yet knew where he might have come into contact with cyanide.43 Suffering as they were over this calamity, both Stanley and Theresa appeared to have been experiencing headaches, and they went to Adam’s bathroom medicine cabinet to get some analgesics for their pain. Seeing the pill bottle still in the medicine cabinet: Stanley and Theresa Janus unknowingly took some of the contaminated Tylenol. Soon afterwards, Stanley collapsed on the kitchen floor. Theresa was still standing when Diane O’Sullivan, a registered nurse and a neighbor of Adam Janus, was called to the scene. Stanley’s pulse was weak so she began cardiopulmonary resuscitation (CPR) on him. Within minutes, Theresa Janus began having seizures. After paramedic teams began arriving, Ms. O’Sullivan went into the living room to assist with Theresa. While she was working on Theresa, Ms. O’Sullivan could hear Stanley’s “heavy and labored breathing.” She believed that both Stanley and The- 41. I use this word with its Greek root, pathos, meaning “emotion, deep feeling” and “suffering,” in mind. See W.W. SKEAT, ETYMOLOGICAL DICTIONARY OF THE ENGLISH LANGUAGE 434 (1910). 42. Janus, 482 N.E.2d 418. 43. Id. at 419. 320 [VOL. 48:309 Tragicomedy resa died before they were taken to the ambulance, but she could not tell who died first.44 A paramedic named Ronald Mahon arrived at approximately 5:45 p.m. and saw Theresa faint and go into a seizure; according to his testimony, “her pupils did not respond to light, but she was breathing on her own.”45 At 6:00 p.m., however, Stanley had “�zero blood pressure, zero pulse, and zero respiration’”46—though Mahon also admitted that these times were “merely approximations.”47 At 5:55 p.m., another paramedic, Robert Lockhart, testified that Theresa was manifesting symptoms of “severe neurological dysfunction” and breathing “four or five times a minute” before she stopped breathing on her own altogether.48 Lockhart also stated that “when Theresa was turned over to the hospital personnel [after the ambulance ride, she] had a palpable pulse and blood pressure”—though she showed no visible vital signs when admitted to the hospital emergency room, and hospital personnel had to help her heart to re-start.49 Finally: While Theresa was in the intensive care unit, numerous entries in her hospital records indicated that she had fixed and dilated pupils. However, one entry made at 2:32 a.m. on September 30, 1982, indicated that a nurse apparently detected a minimal reaction to light in Theresa’s right pupil but not in her left pupil.50 It is likely that this detection was erroneous; that day, hospital personnel performed more tests to measure her brain function, but discerned no responses.51 Consequently, the victim was pronounced dead at 1:15 p.m. on October 1, 1982.52 A medical examiner, who never saw either Theresa or Stanley, issued death certificates for them, listing Stanley’s date of death as September 29, 1982 and Theresa’s as October 1, 1982.53 The Metropolitan Life Insurance Company accordingly paid the proceeds of Stanley’s life insurance policy to Theresa’s father, Jan Tarasewicz, and this is where the case of Janus begins to work its way through the 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 2004] Id. at 419-20. Id. at 420. Id. Id. Id. Id. Id. Id. Janus, 482 N.E.2d at 421. Id. 321 Howard Law Journal courts.54 Alojza Janus, the mother of Stanley, sought to contest this distribution, and her claim to the proceeds could only succeed if “there [was] not sufficient evidence to prove that both victims did not suffer brain death prior to their arrival at the hospital on September 29, 1982.”55 Consequently, the following questions were before the Court: When is a person dead, and when is the evidence sufficient to prove her death? At first glance, the answers to these questions appear to depend on refined legal categories, for “survivorship is a fact which must be proved by a preponderance of the evidence by the party whose claim depends upon survivorship,”56 and the earlier case In re Haymer57 had set forth the definitions of death.58 Haymer construed death as “brain death,” meaning an “irreversible cessation of total brain function.”59 The indicia of such cessation were held to be as follows: (1) Unreceptivity and unresponsivity to intensely painful stimuli; (2) no spontaneous movement or breathing for at least one hour; (3) no blinking, no swallowing, and fixed and dilated pupils; (4) flat electroenceph-alograms (EEG’s) taken twice within at least a [twenty-four]-hour intervening period; and (5) absence of drug intoxication or hypothermia.60 The court upheld the lower court’s conclusion that Theresa was alive on September 29, 1982, yet how is that finding consistent with logic? On that day, she could not breathe on her own; her vital signs were non-existent when she entered the emergency room; and, except for the (most likely) mistaken impression of one nurse, her pupils were fixed and dilated. It would not be too hard for a tidy-minded legal thinker to define a corpse as a body without vital signs and responses in the pupils, and whose heart must be started electronically. It is true that Theresa’s heart was re-started, and that on September 30, 1982, her EEG “showed some delta waves of extremely low amplitude.”61 But even the court admits that experts say “a person can be brain dead and still have a spontaneous pulse and blood pressure 54. 55. 56. 57. 58. 59. 60. 61. 322 Id. Id. Id. at 422 (citing In re Estate of Moran, 395 N.E.2d 579 (Ill. 1979)). 450 N.E.2d 940 (Ill. Ct. App. 1983). Janus, 482 N.E.2d at 421. Id. at 422; see also Haymer, 450 N.E.2d at 943. Janus, 482 N.E.2d at 422 (quoting Haymer, 450 N.E.2d at 945 n.9). Id. at 423. [VOL. 48:309 Tragicomedy which is indirectly maintained by artificial respiration”62 and that the “electrical activity measured by the EEG was �very likely’ the result of interference from surrounding equipment in the intensive care unit.”63 It may be argued that the Janus court determined Theresa’s “life” based on scientific criteria64 that do not have much resonance with lay people—as few observing Theresa’s unresponsive form on a hospital gurney would recognize a living being there. A far more lucid interpretation of this decision, however, discerns that the Janus court determined that Theresa survived after September 29, 1982 less out of respect for definitions of life and death handed down by the medical establishment, but rather more out of the fraught and eminently unanswerable desire to believe that life endures despite the dictates of rationality or chance (and again, like Salerino and Solanio, we may be unequipped to muster a satisfactory rebuttal to their judgment). That we are in the realm of High Tragedy when we read Janus is additionally evident when we consider the last, and most contentious, piece of evidence of Theresa’s continuance: that the nurse at 2:32 a.m. recorded “a minimal reaction to light in Theresa’s right pupil.”65 The court acknowledges the argument that “this evidence merely represents the subjective impression of a hospital staff member which is not corroborated by any other instance where Theresa’s pupils reacted to light,”66 but responds only with the assertion that “while these additional pieces of neurological data were by no means conclusive, they were competent evidence which tended to support the trial’s court’s finding, and which also tended to disprove the contention that these tests merely verified that brain death had already taken place.”67 I read this last statement as coming very close to a positive factual determination that Theresa Janus was in fact alive on September 29, 1982—and it is this faith on the part of the court that ushers us most significantly into the tragic realm, where, as in literature, the rules of hard logic are suspended, and the order of cathartic passions reign. Moreover, analogies to Shakespeare’s tragedies continue to have great resonance here—though the detail concerning the nurse’s erro62. Id. 63. Id. at 421 (citing the testimony of Dr. Kenneth Vatz, a neurologist on the hospital staff). 64. Haymer’s criteria were all or much influenced by the extant determinations of Harvard medical scientists. See id. at 422 (citing Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death: A Definition of Irreversible Coma, 25 J. AM. MED. ASS’N 337 (1968)). 65. Id. at 420. 66. Id. at 423. 67. Id. (emphasis added). 2004] 323 Howard Law Journal neous diagnosis in pupil response refers us to a Tragedy other than the Shylock speech in The Merchant of Venice. For now, we find ourselves in the territory of King Lear.68 As the nurse and the court seek some small, unlikely flickering of life in Theresa, so does Lear seek a similar sign in the corpse of Cordelia. Recall the poor King’s last speech, as he holds the strangled girl in his arms: No, no, no life? Why should a dog, a horse, a rat, have life And thou no breath at all? Thou’lt come no more, Never, never, never, never, never!— Pray you, undo this button:—thank you sir.—[O, o, o, o] Do you see this? Look on her—look, her lips— Look there, look there! —[Dies]69 As King Lear dreams of some sign of breath on the lips of his daughter before he passes away from grief, so too will we hope that the nurse saw some flickering in the left eye of Theresa. In both cases, it is our passions, and our agreement to follow the irrefutable imperative that we hold onto life against the logic of death, that guide us, and nothing else. C. Oedipus Rex and Plessy v. Ferguson70 Plessy is yet another legal Tragedy, in three different manners. Like Payne and Janus, it shares the hallmarks of that literary form, as it is invested less in cogent legal argument than in cathartic emotions—here the rage caused by petitioner Plessy’s assault on the (at the time, and from the perspective of the Court) unassailable and perfect human condition known as “White Supremacy.” Second, Plessy presents itself to the twentieth- and twenty-first-century eye as a Tragedy in the plain meaning of the word, for it is evidence of the Court’s bigotry and overwhelming, misused power, as well as proof of the invidious psychological effects of racism. More than that, however, Plessy proves a fascinating subject for legal-literary study because it is the nineteenth-century legal version of that most famous of all theatri68. WILLIAM SHAKESPEARE, KING LEAR, reprinted in COMPLETE WORKS supra note 9, at 885. 69. Id. act 5, sc. 3, ll. 311-17. 70. 163 U.S. 537 (1896). OF SHAKE- SPEARE, 324 [VOL. 48:309 Tragicomedy cal tragedies Oedipus Rex in that both Plessy and Oedipus are men who believe they know who they are until they consult the Oracle. The facts of the decision are known to all of us. On June 7, 1982, Plessy attempted to sit in “a first-class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the [W]hite race were accommodated.”71 Plessy, however, was of “seven-eighths Caucasian and oneeighth African blood.”72 This non-Caucasian “blood” was apparently discernible to the train conductor, who told Plessy to sit in a coach assigned “for persons not of the [W]hite race”73 under a Louisiana statute mandating that there be separate railway accommodations for the “[W]hite and colored races.”74 When Plessy refused, he was ejected from the coach and imprisoned in a New Orleans jail;75 thereafter he brought a claim that the statute under which he was ejected and arrested was unconstitutional under the Thirteenth Amendment, as being a form of slavery and involuntary servitude, and under the Fourteenth Amendment, as being an instrument of unequal protection.76 If the Plessy Court did not write this opinion with the intention to make its readers feel pity for either the state or for the petitioner Plessy, the opinion composes nevertheless an ukase that arouses both fear and awe77—for we become aware of just how far the Court was willing to go to preserve White power, and it depended upon cathartic and (in 1896) irrefutable emotions as support for its dubious logic. The Plessy court perceived the Louisiana segregation statute’s aim of nourishing White purity as so unanswerable, it could barely stammer out a response to Plessy’s argument that segregation imposes a badge of servitude. “That [the statute] does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as punishment for crime, is too clear for argument,”78 71. Id. at 537. 72. Id. at 541. 73. Id. at 538. 74. Id. at 540. 75. Id. at 538-39. 76. Id. at 542. 77. See supra text accompanying note 12 (concerning Tragedy’s design to arouse pity and fear and effect a pleasurable catharsis). 78. Plessy, 163 U.S. at 542. 2004] 325 Howard Law Journal the Court asserted, taking care to proffer also the equally logic-free tautology that: A statute which implies merely a legal distinction between the [W]hite and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as [W]hite men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.79 Like in Payne and Janus—but far, far more disturbingly—the Court relied upon a facet of human feeling that looms so large and seems so self-evident that it subordinates any other reason. In Payne, this phenomenon proved to be the basic human need to declare its pain; in Janus, it amounted to the Lear-like desire to discern life in the face of death. But in Plessy, we are confronted with the social appetite to subjugate others who are different from ourselves. And so, the construct of “White purity” worked in 1896 (and, some would say, continues to do so now) as powerfully and irrefutably as those other tragic motives. As for the specific evocation of cathartic emotion, Plessy does not tug at the heartstrings in the same way that Payne and Janus do; in the classical high tragic mode, those opinions do evoke distinct, excruciating feelings of pity, whereas the tone of Plessy is, again, slightly befuddled, remote, querulous, and hard-hearted: “Laws permitting, and even requiring, [Blacks’] separation in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other,”80 the Court claims, astonishingly. Consider also, the much less Shakespearean than double-speaking mood—a´ la the robotic rhetoric of the State in Orwell’s 198481—of this riposte: We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.82 Yet a volcanically cathartic emotion is present in Plessy, though it is not named by the majority. The task of expressing this passion, as it 79. 80. 81. 82. 326 Id. at 543. Id. at 544. GEORGE ORWELL, 1984 (1950). Plessy, 163 U.S. at 551. [VOL. 48:309 Tragicomedy turns out, was Justice John Marshall Harlan’s, and he dispatched it in his dissent: What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by [W]hite citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.83 And so the first herald of Tragedy, being the elicitation of intense emotion, was made explicit: Plessy was written out of and triggers cathartic emotion—hatred—just as King Lear or Romeo and Juliet84 arouse in us the feelings of love. Moreover, the employment of tragic elements in Plessy is not used to achieve justice.85 This leads us to its second qualification as a work of Tragedy: It remains an ignominious example of state-sponsored racism and oppression. Thirdly, there is a closer parallel to the classic Tragedy Oedipus Rex in Plessy than to either King Lear, or Romeo and Juliet. And when studied, this connection reveals not only the manner in which legal opinions may serve themselves as forms of literary Tragedy, but also the way in which Plessy is a re-interpretation of the most magnificent Tragedy ever written: Like Oedipus, the petitioner Plessy believes that he knows who he is, yet he is mistaken; and he will not discover his true identity until he consults the Gods and the Oracle, who inform him of a fate so shocking and horrible that he blinds himself so he will no longer see the truth. The intersections between the Supreme Court case and the Sophocles play are many: For example, Oedipus Rex, like Plessy, is in some fashion a legal drama, with Oedipus playing the High Sheriff who interrogates witnesses and suspects to discover the name of the killer of Laius, the King of Thebes. First, let us set forth the plot of Sophocles’ great play: Oedipus, a young man from Corinth, enters the Kingdom of Thebes, whose king has recently been killed by a band of robbers. Passing a critical test, 83. Id. at 560 (Harlan, J., dissenting). 84. WILLIAM SHAKESPEARE, ROMEO AND JULIET, reprinted in COMPLETE WORKS OF SHAKESPEARE, supra note 9, at 245. 85. One of the arguments made in the “law and literature” movement is that the literary voice in law will create decisions borne out of greater empathy and justice. See infra note 171. 2004] 327 Howard Law Journal that of answering the Sphinx’s riddle,86 he is made the King of Thebes, and marries Laius’s wife, Jocasta. Afterwards, a terrible plague scours the city and hundreds are dying daily; Oedipus knows that the only way to alleviate this suffering is to discover from the Oracle at Delphi what price the Gods will exact in exchange for the lifting of this curse; accordingly, he sends his brother-in-law, Creon, to Delphi, and Creon returns with the news that Oedipus must discover and punish the killer of Laius. Embarking upon a series of cross-examinations, he questions the blind seer Tireseus, who after being abused by Oedipus, informs the King that he is the killer he seeks, and so reveals the ruler’s true identity. “Today is your mother and your father, Oedipus,”87 Tireseus declares—but, of course, Oedipus refuses to believe him until he interrogates two shepherds, one from Corinth, and one from Thebes. In turn, these two men inform him that the Corinthian shepherd received Oedipus as a foundling from the Theban, who then received the child from Jocasta, after the Queen had been ordered by Laius to have their son killed by exposure to the elements on account of a prediction that guaranteed Laius would die at the hands of his son.88 In grief at this revelation, Jocasta commits suicide, and Oedipus stabs his eyes so that he will never have to see his own foul countenance again; and thus, in great humility, his story ends.89 Thankfully, Plessy did not react to the news of the Oracle at the District of Columbia in the way that Oedipus did, and yet we may be sure that he digested the Court’s holdings with difficulty. Plessy, like Oedipus, believed that he had self-knowledge. In his case, it appears that he believed that he was White, and not Black, and thus one of his primary arguments against being ejected from the New Orleans coach did not rely upon a critique of invidious discrimination; rather, he argued that the conductor of the railway station had simply misinterpreted his race, and so wronged him: “Plessy declined and refused, either by pleading or otherwise, to admit that he was in any sense or in any proportion a colored man.”90 The Court, however, leaves Louisiana’s conclusion about Plessy’s race untouched, and consequently validates the conductor’s finding that Plessy was “colored” and thus excludable: 86. (What animal crawls in the morning, walks in the afternoon, and shuffles in the evening? A man.) 87. See SOPHOCLES, THE KING, supra note 32, at 43. 88. Id. at 67-77. 89. Id. at 80-83. 90. Plessy v. Ferguson, 163 U.S. 537, 539 (1896). 328 [VOL. 48:309 Tragicomedy It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a [W]hite person, is one upon which there is a difference of opinion in the different states; some holding that any visible admixture of [B]lack blood stamps the person as belonging to the colored race . . . ; others, that it depends upon the preponderance of blood . . . ; and still others that the predominance of [W]hite blood must only be in the proportion of three-fourths . . . . But these are questions to be determined under the law of each state, and are not properly put in issue in this case.91 Like in the case of Oedipus, the date of the Plessy decision was in some ways the petitioner’s “mother and his father,” and therein lies the nineteenth-century Tragedy, akin to the ancient tale. Additionally, we see more than a literary parallel here. We see also Tragedy in Plessy because of the Court’s egregious abuse of its power, and its absurdist efforts to maintain the hallucination of White racial purity in all areas of the social sphere. And this calamity is only compounded by what appears to be Plessy’s internalization of racism, in his keen desire to have himself pronounced a member of the White race, which could only have the effect of exacerbating the racial divide made so wide by the Court in the first place. It is, in classical terms, one of Plessy’s “tragic flaws.” But finally—and to return to the literary connections we may make between the play and the case—Plessy is a Tragedy, like Oedipus Rex, because it shows the horror of the unfathomable, and occasionally pitiless, divine powers that may be wielded over mere men. Be the Supreme Court a panel of Oracles or Gods, they exercise a force so terrible that we are even still feeling its reverberations more than 200 years later. And like Sophocles, we do not always have faith in the powers above: “First, [Sophocles] did not believe (or did not always believe) that the [G]ods are in a human sense �just’; secondly, he did not always believe that the [G]ods exist and that man should revere them.”92 Whereas the emotion and dependence upon the unspeakable were hallmarks of Tragedy in Payne and Janus that may evoke sympa91. Id. at 552 (citations omitted). The Court also went on to say that “Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the [W]hite or colored race,” Id., but I have found no evidence that the finding of the conductor was ever overturned. 92. E.R. Dodds, On Misunderstanding Oedipus Rex, in SOPHOCLES’ OEDIPUS REX 44 (1988). 2004] 329 Howard Law Journal thy for the underlying intuitions of those cases (if not for their holdings), the presence of these elements in Plessy demonstrates instead how they can create a climate of fear and loathing. Perhaps it would be best for our law not to resemble too much the great works of Shakespeare or Sophocles. Like the dispatches from the Gods of Tragedy, there is not always justice to be found in court opinions; it might be better counsel to avoid evoking in our judges (or judging out of) a too high emotion, or making decisions based upon that which is unanswerable, out of terror of the judgments that may flow therefrom. II. LAW AS COMEDY Aristotle defines this form as: [A]n imitation of men worse than the average; worse . . . as regards one particular kind [of fault, being] the Ridiculous, which is a species of the Ugly. The Ridiculous may be defined as a mistake or deformity not productive of pain or harm to others; the mask, for instance, that excited laughter, is something ugly and distorted without causing pain.93 When legal opinions carry the hallmarks of High Tragedy, they persuade their readers and are informed by cathartic emotion and the specter of human phenomenon that I have characterized as the “unanswerable,” or the “irrefutable.” When Comedy is used in the legal realm, it may serve as an equally potent tool for persuasion. As Hamlet confounds Polonius with a wicked humor—the “Ridiculous” in Aristotelian terms94—so that this spy will find himself unequipped to resist the Prince’s intrigues, humor may also be used to the same effect in a court of law. More than that, that which is ridiculous or absurd may prove to be not only the antithesis, but also the annihilation, of careful legal arguments, and all else that we deem of high seriousness as well. In The Book of Laughter and Forgetting, for example, Milan Kundera writes of the “laughter of the angels,” which he deems very serious, and potentially destructive.95 During a 1980 interview with the novelist Philip Roth about his novel, Kundera explained his ideas on Comedy and how they operate in his book: 93. ARISTOTLE, POETICS, supra note 12, at 347. 94. Id. 95. MILAN KUNDERA, THE BOOK OF LAUGHTER trans., 1994). 330 AND FORGETTING (Michael Henry Heim [VOL. 48:309 Tragicomedy [M]an uses the same physiologic manifestations—laughter—to express two different metaphysical attitudes. Someone’s hat drops on a coffin in a freshly dug grave, the funeral loses its meaning and laughter is born. Two lovers race through the meadow, holding hands, laughing. Their laughter has nothing to do with jokes or humor, it is the serious laughter of angels expressing their joy of being. Both kinds of laughter belong among life’s pleasures, but when it also denotes a dual apocalypse: the enthusiastic laughter of angelfanatics, who are so convinced of their world’s significance that they are ready to hang anyone not sharing their joy. And the other laughter, sounding from the opposite side, which proclaims that everything has become meaningless, that even funerals are ridiculous and group sex a mere comical pantomime.96 A similar philosophy to Kundera’s may be found in Umberto Eco’s The Name of the Rose, which hinges on the notion that laughter is the one antidote to all that is profound and serious—even the awestriking specter of God Himself.97 In the The Name of the Rose, the power of this laughter is deemed so severe that a diabolical monk murders his brothers so that they will not find Aristotle’s famed lost book on Comedy, which venerates laughter, as he fears that such a license will put the Church in jeopardy.98 Eco writes, in the voice of the The Name of the Rose’s misanthropic character, Jorge of Burgos: “The spirit is serene when it contemplates the truth and takes delight in good achieved, and truth and good are not to be laughed at. This is why Christ did not laugh. Laughter foments doubt.” .... “. . . Certainly one who accepts dangerous ideas can also appreciate the jesting of the ignorant man who laughs at the sole truth one should know, which has already been said once and for all. With his laughter the fool says in his heart, �Deus non est.’”99 If laughter has the power to render even the “sole truth” of the existence of God vulnerable to the laughing man’s doubt (and, in the case of Hamlet Prince of Denmark, we may also recall that Hamlet’s wit renders Polonius vulnerable to murder), then it most certainly could be a vigorous enough force to defuse the somber, mirthless, and arrogant world of law. Laughter, indeed, proves a very effective, if 96. Interview by Philip Roth with Milan Kundera, entitled The Most Original Book of the Season, Nov. 30, 1980, at 7, available at http://www.kundera.de/english/Info-Point/Interview_ Roth/interview_roth.html. 97. See UMBERTO ECO, THE NAME OF THE ROSE (William Weaver trans., 1980). 98. See id. 99. Id. at 132. 2004] 331 Howard Law Journal extremely sensitive, weapon in the courtroom, which can overwhelm and backfire on the judge himself. Once we begin to regard an advocate or a judge as a self-important clown rather than a sage, all his arguments may seem suddenly worthless; moreover, once we deem any person worthy of derision, including members of protected classes, their standing to have their claims taken seriously becomes threatened. Examples of these uses of Comedy—to astonish and baffle and debunk—may be found in an analysis of the Federal Ninth Circuit Judge Kozinski’s dissent in White v. Samsung Electronics America, Inc.,100 Justice Scalia’s opinions in Lawrence v. Texas101 and Grutter v. Bollinger,102 and Justice White’s decision in Bowers v. Hardwick.103 The 1964 New York decision People v. Lenny Bruce104 will also be studied, showing an incident where the court is plagued by Comedy; in an effort to crush a comic genius, the judge himself becomes the clown. A. Judge Kozinski’s Dissent in White, with Reference Also to the Satires of Justice Scalia In White, the Ninth Circuit reviewed a lower court decision upholding the eponymous game show hostess Vanna White’s claim against Samsung for violating her right of publicity by “�appropriating’ her �identity.’”105 She argued that Samsung’s parodic depiction of her in a commercial transgressed her exclusive right to use her “name, likeness, signature and voice for commercial purposes.”106 According to Judge Kozinski, writing in his dissent, the contested commercial ran as follows: Samsung ran an ad campaign promoting its consumer electronics. Each ad depicted a Samsung product and a humorous prediction: One showed a raw steak with the caption “Revealed to be health food. 2010 A.D.” Another showed Morton Downey, Jr. in front of an American flag with the caption “Presidential candidate. 100. 989 F.2d 1512 (9th Cir. 1993) (White II ). 101. 539 U.S. 558 (2003). 102. 539 U.S. 306 (2003). 103. 478 U.S. 186 (1986). 104. People v. Bruce (N.Y. Crim. Ct. 1964) at A30 (unpublished opinion), available at http:// www.law.umkc.edu/faculty/projects/ftrials/bruce/brucecourtdecisions.html (last visited June 18, 2004). 105. White II, 989 F.2d at 1514 (Kozinski, J., dissenting). 106. Id. (citing CAL. CIV. CODE § 3344(a); Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983)). 332 [VOL. 48:309 Tragicomedy 2008 A.D.” The ads were meant to convey—humorously—that Samsung products would still be in use in twenty years from now. The ad that spawned this litigation starred a robot dressed in a wig, gown and jewelry reminiscent of Vanna White’s hair and dress [in her role as a hostess on a gameshow Wheel of Fortune]. The caption read “Longest-running game show. 2012 A.D.” The gag here, I take it, was that Samsung would still be around when White had been replaced by a robot.107 The district court did not uphold White’s cause of action, reasoning that because Samsung had not used her likeness, name, voice, or signature, it did not violate the aforementioned California right of publicity.108 However, the Ninth Circuit reversed on the grounds that to hold otherwise would permit predatory advertisers to use celebrities’ names or likenesses with impunity, and consequently eviscerate their rights.109 Thereafter, the defendant appealed to a rehearing en banc; this petition was denied.110 And it was to this denial that Judge Kozinski wrote his searing and funny dissent. Judge Kozinski was of the mind that the decision in White was “bad law” because it conflicted with the Copyright Act and the Copyright Clause, and also raised some “serious First Amendment problems.”111 In sum, he argued that the publicity right conveyed in White was overbroad, in that it “decimate[d]”112 the Copyright Act’s fair use exception and right to parody,113 and its permission to get “a license to make a derivative work under 17 U.S.C. § 106(b).”114 He contended also that the vast publicity right created by the panel violated the dormant Copyright Clause’s rule that “state intellectual property laws can stand only so long as they [do not] �prejudice the interests of other States’”;115 here, advertisements showing Vanna White Robots that would be legal in Florida, for example, could now be circumscribed by California judgments.116 And last, Judge Kozin107. Id. 108. White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992) (White I ). 109. Id. at 1399 (“We decline Samsung and Deutch’s invitation to permit the evisceration of the common law right of publicity through means as facile as those in this case.”). 110. White II, 989 F.2d at 1512. 111. Id. at 1514 (Kozinski, J., dissenting). 112. Id. at 1518 (Kozinski, J., dissenting). 113. Id. at 1517 (Kozinski, J., dissenting) (“Copyright law specifically gives the world at large the right to make �fair use’ parodies, parodies that [do not] borrow too much of the original.”) (quoting Fisher v. Dees, 794 F.2d 432, 435 (9th Cir. 1986)). 114. Id. at 1518 (Kozinski, J., dissenting). 115. Id. (Kozinski, J., dissenting) (quoting Goldstein v. California, 412 U.S. 546, 558 (1973)). 116. See id. 2004] 333 Howard Law Journal ski was disturbed by the First Amendment implications of the case, as it would prevent artists, advertisers, and writers from “mocking” those in power.117 Although Judge Kozinski’s colleagues on the Ninth Circuit panel did not agree with these lines of reasoning, his arguments concerning the Copyright Act, the dormant Copyright Clause, and the First Amendment all have considerable persuasive force, as they are grounded firmly in the federal law, Supreme Court precedent, and the First Amendment’s general policy of protecting the exchange of ideas. However, Judge Kozinski adds to his dissent’s ammunition—and not just by citing a plethora of legal decisions, regulations, and federal statutes. Rather, he supports his opinion with a caustic, sometimes nasty, very hip, and occasionally truly humorous and unanswerable wit. And his gift for humor has been noticed by many of us in the legal community. In January of 2000, for example, Judge Kozinski was scheduled to appear at the University of Houston Law Center’s Fourth Annual Houston Law Review Frankel Lecture Series, and in the University’s news release, it was observed that “[Judge] Kozinski is a brilliant public speaker noted for his searing wit. �(He) gets away with a lot because he is so funny and charming,’ says a colleague.”118 In January of 2003, moreover, Judge Kozinski appeared at the University of Santa Barbara with defense counsel extraordinaire Gerry Spence in a debate about the death penalty, during which Judge Kozinski began to mock Spence in an effort to debunk his anti-death penalty arguments: As the debate progressed, the speakers took increasingly personal shots at each other. At an intense moment in the debate, during Spence’s final speech, Kozinski began mockingly bobbing and weaving like a boxer, motioning for Spence to take a punch at him, causing the audience great amusement. Spence immediately restored the seriousness of the debate with his response. “I’m glad to see some levity brought to this debate, and I knew that it would come from his honor,” Spence said. “Because this matter is simply not funny.”119 117. Id. at 1519 (Kozinski, J., dissenting). 118. Judge Alex Kozinski to Address Legal Community at UH Law Center, U. HOUS. NEWS RELEASE, Dec. 20, 1999, http://www.uh.edu/admin/media/nr/archives99/1299/kozinski.html. 119. Justin Scott & Missy Maynarich, Death Penalty Debate Revived, at DAILY NEXUS ONLINE, Jan. 28, 2003, at http://www.dailynexus.com/news/203/4294.html. 334 [VOL. 48:309 Tragicomedy Yet, though Spence may have “immediately restored seriousness,” do we not suspect that there were more than a few audience members still stifling giggles and cheering on Judge Kozinski during the remainder of the debate? Judge Kozinski’s use of humor has proved so effective that he has been reprimanded in a newspaper for being too funny in Mattel, Inc. v. MCA Records, Inc.120 In that opinion, Judge Kozinski wrote that “[i]f this were a sci-fi melodrama, it might be called Speech-zilla meets Trademark Kong.”121 Mark Lane, a columnist for the Cox News Service responded to Judge Kozinski’s colorful rhetoric as follows: That’s what the judge wrote. Judge . . . Kozinski of the [Ninth] Circuit Court of Appeals. I did not make up the quote. If I were making it up, it would be called satire. .... It doesn’t always work and it can be hurtful, but satire is one of the cooler ways people explore ideas. Sadly, our court system is not set up to figure when people are just kidding. Law is based on painstakingly literal determinations of meaning. “I was just pullin’ his leg, your honor,” is seldom a welladvised legal defense.122 In White, Judge Kozinski employs the same kind of Comedy; at the beginning of the opinion, he unsheathes his wit to dazzle and confound his antagonists, much in the same way that he labored to befuddle Gerry Spence with shadow-boxing, and again, the way in which Hamlet puts Polonius off guard with his zinging references to old men’s hams. Making fun of claimants to a vast right of publicity, he writes of paranoid and pinchbeck celebrities, who hang themselves on their own egos: Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts . . . . Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.123 120. 296 F.3d 894 (9th Cir. 2002). 121. Id. at 898. 122. Mark Lane, Courts’ Attempts at Humor Aren’t Funny, COX NEWS SERVICE, July 29, 2002. 123. White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1512 (9th Cir. 1993) (White II) (Kozinski, J., dissenting). 2004] 335 Howard Law Journal This may not be high humor, but this writer is a winker and a nudger who wants us to not only see the danger and First Amendment muddle-headedness in White’s arguments, but also to laugh about just how foolish its other proponents are. Embedded in the White dissent is a seductive, in-joking, destabilizing humor of Hamlet’s ilk—but it qualifies as another more modern example of vaudeville as well: It is the ribaldry of the cool kid in high school, of Fonzie in Happy Days,124 or of Bill Maher, who, on the famously canceled television show Politically Incorrect with Bill Maher, persuaded his audience of his political positions less through careful reasoning than by simply making very good fun of his intellectual opponents.125 Comedy, then, is a tool that can be used to the same stunning and persuasive ends as Tragedy, and Judge Kozinski’s brand of humor is the weapon of the “in-crowd” kid and class clown who can make a room full of students turn, very nastily, on the ugliest child in the room through the power of just a few good jokes about his big nose or rear end. Comedy used in this way is much rarer than Tragedy, however, because so few jurists have or display the gift of humor; in our laughter-free profession, most who attempted Judge Kozinski’s “levity” would look like a dolt, or worse. Should there be any questions concerning Judge Kozinski’s intention that we should laugh along, and so agree, with him, there is an even more revealing paragraph in the White dissent, when the Judge shows the absurdity of the too-generous right of publicity allocated by his colleagues on the panel: Consider how sweeping this new right is. What is it about the ad that makes people think of White? [It is] not the robot’s wig, clothes or jewelry; there must be ten million blond women (many of them quasi-famous) who wear dresses and jewelry like White’s. [It is] that the robot is posed near the “Wheel of Fortune” game board. Remove the game board from the ad, and no one would think of Vanna White. But once you include the game board, anybody standing beside it—a brunette woman, a man wearing women’s clothes, a monkey in a wig and gown—would evoke White’s image, precisely the way the robot did.126 124. See Happy Days, at http://www.geocities.com/~maxraby/tv/happy/ (last visited June 11, 2004). 125. See Politically Incorrect with Bill Maher, at http://encyclopedia.thefreedictionary.com/ Politically%20Incorrect%20with%20Bill%20Maher (last visited June 12, 2004); Politically Incorrect with Bill Maher, at http://abc.go.com/primetime/politicallyincorrect/ (last visited June 12, 2004). 126. White II, 989 F.2d at 1515. 336 [VOL. 48:309 Tragicomedy The invocation of the man in women’s clothes and the monkey in a wig are classic figures of low Comedy, our favorite kind, according to Aristotle, and as he evokes our memories of the comedian Milton Burle and dressed-up monkeys,127 he encourages our agreement with his position by seducing us with images of hairy legs sticking out of a flowered skirt and a chimpanzee in a blond ponytail. Furthermore, Judge Kozinski’s opinion itself shows a veneration for, and simultaneous revelation of, a burning desire to protect, the very kind of burlesque that he specializes in, the caustic and occasionally “hurtful” “satire” so bemoaned by Mark Lane:128 “The last thing we need, the last thing the First Amendment will tolerate, is a law that lets public figures keep people from mocking them.”129 In the last analysis, Judge Kozinski’s humor is the “Comedy of the cool,” and along with his razor-sharp legal mind, it is one of his most powerful weapons on the bench; it is a way in which he may hilariously humiliate and subordinate his antagonists. In the aforementioned case Mattel, Inc., for example, Mattel sued MCA for a parodic song about Barbie, and MCA countered with a defamation suit for Mattel’s media characterizations of that company as bank robbers, criminals, and thieves.130 Judge Kozinski addressed the mudslinging, and determined that MCA had no claim; in so deciding, his now-famous last line was “[i]n context, all these terms are non-actionable �rhetorical hyperbole.’ The parties are advised to chill.”131 Judge Kozinski flirts with self parody here, but is also, one would think, making intentional fun of himself at the same time that he decimates MCA, and so gives his decision an additional persuasive punch. Yet if we may applaud such use of humor in the courtroom—for it is such a dry place that laughter seems a refreshing change—this kind of humor’s use as sophistic ammunition contains some dangers— though, I contend, largely at this stage for liberals, as opposed to conservatives. Like in the case of the “in-crowd” kid who provokes the class to rise against the ugly milksop, and the treacherous laughing angels described by Milan Kundera, when we are tickled by judicial use of Comedy, and get seduced by it, I contend that conservatives, 127. The poor dressed-up monkey seems to be a universal and persistent symbol that makes us want to laugh. See, e.g., A Monkey in a Dress, www.adamsoffox.com/monkey.html (last visited June 18, 2004) as just as one of many examples in our popular culture. 128. See supra text accompanying note 122. 129. White II, 989 F.2d at 1519. 130. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002). 131. Id. (emphasis added). 2004] 337 Howard Law Journal like Judge Kozinski, may use their gift of humor so that progressive liberals will find themselves at something of a disadvantage. Is it true that conservatives are funnier than liberals?132 I have not done a study, but the performance of Judge Kozinski does tell a tale of conservative wit, and two performances of another somewhat funny conservative jurist, Justice Scalia, may also serve as cases in point here. In the recently decided Lawrence v. Texas,133 which overruled Bowers v. Hardwick’s 134 denial of a fundamental privacy right in same-sex sexual intimacy, Justice Scalia writes a typically sarcastic dissenting opinion, noting: [T]he [majority of the] Court makes the claim, again unsupported by any citations, that “laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.” . . . The key qualifier here is “acting in private.” . . . I do not know what “acting in private” means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage.135 Similar caustic attempts at humor could be found at oral argument in Grutter v. Bollinger,136 where the Court struck down a Michigan affirmative action “point scheme,” wherein applicants who belong to under-represented groups were given twenty points out of the onehundred needed for admission to the University of Michigan. During oral argument, Maureen E. Mahoney, the attorney for the University mentioned a study conducted by Professor of Education and Social Policy Gary A. Orfield, in which a majority of Harvard and Michigan law students said that “students of different races” provide a “clearly positive element of their educational experience.” Scalia’s quick remark, “Sure, they’re already in,” evoked laughter from the courtroom audience.137 132. Josh Getlin, A New Age of Pundits, Politicos and Punch Lines: American Conservatives Love Red Meat, Especially When Liberals Are on the Chopping Block, L.A. TIMES, Mar. 19, 1996, at E1 (“Beyond the satire of [Rush] Limbaugh and other commentators, the right has been invigorated with publications like the American Spectator and the Standard. [P.J.] O’Rourke gets stiff competition from other H.L. Mencken wannabes, and politicians like Bob Dole exercise their own style of dark, personal humor. Through it all, William F. Buckley’s National Review continues to skewer liberal Democrats with glee, making it the paterfamilias of conservative comedy.”). On the other hand, AL FRANKEN, LIES AND THE LYING LIARS WHO TELL THEM: A FAIR AND BALANCED LOOK AT THE RIGHT (2003) and AL FRANKEN, RUSH LIMBAUGH IS A BIG FAT IDIOT AND OTHER OBSERVATIONS (1996) prove that some liberals are not inescapably dour and earnest. 133. 539 U.S. 558 (2003). 134. 478 U.S. 186 (1986). 135. Lawrence, 539 U.S. at 597 (Scalia, J., dissenting). 136. 539 U.S. 306 (2003). 137. Jennifer L. Steinhardt, Supreme Court Hears Arguments in U. Michigan Case, U-WIRE, Apr. 2, 2003, http://www.uwire.com/content/topnews040203003.html. 338 [VOL. 48:309 Tragicomedy In both cases Justice Scalia, through the use of wit and laughter, and his comedic depiction of his antagonists as ridiculous creatures, showed the weak points in Justice Kennedy’s progressive Lawrence reasoning, and buttressed his argument that the Michigan affirmative action scheme should fall. I do not believe that Justice Scalia is a very artful comedian, but he is regarded widely as having a talent for Comedy, and he used it with efficacy in these contexts.138 Justice Kennedy’s reversal of Bowers was a moral, if radical, act of constitutional interpretation. The long tradition of the persecution of gays and lesbians could be seen as giving anti-sodomy laws the imprimatur of “tradition,” and Justice Scalia is moderately successful at demonstrating the holes in the Kennedy opinion; it does not seem likely that the antisodomy laws failed because they were not enforced “in private.” Moreover, Justice Scalia’s riposte during Michigan counsel Mahoney’s reference to the defense-friendly study tore into its weakest point: It is possible that White students, well-fed and satisfied with their swanky collegiate appointments, would not feel as threatened by affirmative action as those who stood outside the university doors. In sum, Comedy does work as a persuasive tool, and in the courtroom, a baffling, witty, and slightly scary Hamlet lives. It is slightly unnerving for liberals, however, to recognize that, for the moment at least, his political persuasion veers to the right of center. B. People v. Bruce139 The Bruce decision, where a New York trial court declared one of Lenny Bruce’s comedy acts illegal under state obscenity laws, is somewhat similar to the Kozinski example: Here, again, the majority court becomes the butt of a joke, but it is the citizens, and ensuing genera138. See Jennifer G. Hickey, Scalia: Supreme Court Jester: Justice Uses Humor to Pan Argument Constitution is a �Living Document,’ WORLDNET DAILY, Mar. 7, 2003, http://worldnetdaily. com/news/printer-friendly.asp?ARTICLE_ID=31387; cf. Douglas W. Kmiec, Natural-Law Originalism—or Why Justice Scalia (Almost) Gets it Right 20 HARV. J.L. & PUB. POL’Y 627, 628 (1997) (“Justice Scalia is a witty man . . . .”); Marybeth Herald, Closed Chambers and Closed Minds: Some Snapshots Taken Inside the Supreme Court, 103 DICK. L. REV. 89, 105 (1998) (reviewing EDWARD LAZARUS, Closed Chambers: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT (1998)) (recounting a description of Justice Scalia as “witty, brilliant, and self-satisfied”); Russell Nieli, Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law, 44 AM. J. JURIS. 163, 167 (1999) (reviewing DAVID A. J. RICHARDS, WOMEN, GAYS, AND THE CONSTITUTION: THE GROUNDS FOR FEMINISM AND GAY RIGHTS IN CULTURE AND LAW (1999)) (calling Justice Scalia “witty and good-natured”). 139. People v. Bruce (N.Y. Crim. Ct. 1964) (unpublished opinion), available at http://www. law.umkc.edu/faculty/projects/ftrials/bruce/brucecourtdecisions.html (last visited June 18, 2004). 2004] 339 Howard Law Journal tions, who become the laughing audience. It is in this cathartic laughter that a new cultural and legal definition of obscenity is forged. The story of Lenny Bruce is a sad one. In the 1950s and 1960s, Bruce was regarded by the New York intelligentsia as one of the bright lights of the comedic world. In what was a near-unanimity of opinion, writers and critics of stand-up comedy considered Bruce’s irreverent attacks on sexuality, race, and politics as a “near genius” example of the comedic form.140 During these acts, Bruce would challenge prevailing notions of obscenity by using the most outrageous language available, and would also mimic sexual acts to defy conservative, puritanical prohibitions on candid speech. It was in this affront to majoritarian morality—and in Bruce’s fantastic, sadistic, misanthropic manic energies—that audiences and critics concluded that Bruce’s acts were not merely vulgar pantomimes, but also hilarious and carefully crafted send-ups of mores that made him that era’s version of Samuel Johnson or Mark Twain. The State of New York disagreed, however, and, in 1964, Bruce was prosecuted for obscenity after delivering one of his infamous routines at New York’s Cafe´ a Go-Go nightclub.141 In this act and others, Bruce did satirical and profane send-ups of such beloved figures as Eleanor Roosevelt, Jacqueline Kennedy, and the Lone Ranger television series. It was for this disrespect of propriety that the prosecutor’s office and the court discerned speech that may be suppressed as obscene, because it violated the prevailing Supreme Court obscenity cases of Jacobellis v. Ohio142 and Roth v. United States.143 140. See infra note 150. 141. Jack Roth, Lenny Bruce Act Is Ruled Obscene, N.Y. TIMES, Nov. 5, 1964, at 47. 142. 378 U.S. 184 (1964). 143. 354 U.S. 476, 484 (1957). The test cited by the New York court does track both the Roth and the Jacobellis tests, though the court’s application seems clearly misguided. See Debra D. Burke, Cybersmut and the First Amendment: A Call for a New Obscenity Standard, 9 HARV. J. LAW & TECH. 87, 99 (1996) (“In sum, Roth and its progeny defined obscenity as the coalescence of three elements: �(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.’ ”). The 1973 case of Miller v. California changed these standards somewhat. See 413 U.S. 15, 24 (1973) (requiring a finding that “(a) . . . the �average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole, lacks serious literary, artistic, political or scientific value”). 340 [VOL. 48:309 Tragicomedy With respect to the misapplication of the Roth and Jacobellis standards,144 “[t]he dominant theme of the performances appealed to the prurient interest and was patently offensive to the average person in the community, as judged by present day standards. The performances were lacking in �redeeming social importance.’”145 In what way then is the court itself becoming the butt of a joke, and so leading to a transformation of the law? It is easy to read Bruce as a Tragedy, and not as a Comedy—in fact, it is difficult not to do so now, as we know the end of Bruce’s story: After being convicted to serve four months in a workhouse by the New York Court, Bruce jumped bail and then died of a heroin overdose; at this point in his career and his life, he was a broken man.146 Moreover, the New York court’s finding of obscenity was in clear contravention of First Amendment principles in its determination that Lenny Bruce’s work was not lacking in social importance, redeeming or otherwise.147 Nevertheless, the unpublished document of Bruce itself proves an unintentionally bizarre and funny exercise of the court’s slow-witted, fearful, narrow-minded prejudice. And because of this, it has become comical. For example, when providing proof of the performances’ 144. See infra note 147. 145. People v. Bruce (N.Y. Crim. Ct. 1964) at A30 (unpublished opinion), available at http:// www.law.umkc.edu/faculty/projects/ftrials/bruce/brucecourtdecisions.html (last visited June 18, 2004). 146. Linda Kauffman, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius, 11 CARDOZO ARTS & ENT. L.J. 765, 771 (1993) (reviewing EDWARD DE GRAZIA, GIRLS LEAN BACK EVERYWHERE: THE LAW OF OBSCENITY AND THE ASSAULT ON GENIUS (1992)) (“The trials of Lenny Bruce are among the saddest in the book. His shows had been stopped by police in San Francisco, Beverly Hills, Chicago, and New York, where the judge sentenced him to four months in the workhouse. Hearing excerpts from his act, some juries laughed out loud, but between 1961 and 1965, it became impossible for Bruce to earn his livelihood and pay his legal fees because clubs were afraid to book him. A three-member panel of judges in New York convicted him for performing comedy shows containing obscene material. One of those judges has since confessed that he wanted to cast the swing vote in Bruce’s favor, but that the Chief Judge threatened to assign him to traffic court for the rest of his days if he did so. De Grazia reports that Bruce had the naive faith to believe that if he could just �play the Supreme Court’ he would be vindicated. Bruce subsequently jumped bail and later died of a morphine overdose in 1966.”); see also MARTIN GARBUS, READY FOR THE DEFENSE 81-140 (1971). 147. People v. Solomon, 255 N.E.2d 720 (N.Y. 1970) (affirming the reversal of the conviction of Howard L. Solomon, Bruce’s codefendant and the owner of the nightclub at which Bruce gave the performance leading to his arrest and conviction for obscenity, and finding that performance by comedian Lenny Bruce was not obscene within the meaning of the Penal Law); People v. Bruce, 202 N.E.2d 497 (Ill. 1964) (reversing Bruce’s conviction); John F. Wirenius, The Road Not Taken: The Curse of Chaplinsky, 24 CAP. U. L. REV. 331, 356 (1995) (“Materials at common law were repeatedly held proscribable as obscene despite lacking a sexual component, and Lenny Bruce was prosecuted and convicted in New York (even after the Supreme Court redressed this blurring in Roth and even further liberalized the standard in Jacobellis) . . . .”). 2004] 341 Howard Law Journal “obscen[ity], indecen[cy], immoral[ity], and impur[ity]”148 the court begins to describe in explicit detail just what qualifies the acts as obscene, and our conclusion of Bruce’s work as necessary and important after Jacobellis and Roth is clarified by our responses to the court’s account of them as worthless: In the latter two performances, words such as “ass,” “balls,” cocksucker,” “cunt,” “fuck,” “mother fucker,” “piss,” “screw,” “shit,” and “tits” were used about one hundred times in utter obscenity. The monologues also contained anecdotes and reflections that were similarly obscene. For example: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Eleanor Roosevelt and her display of “tits.” Jacqueline Kennedy “hauling ass” at the moment of the late President’s assassination. St. Paul giving up “fucking.” An accident victim — who lost a foot in the accident — who made sexual advances to a nurse, while in the ambulance taking him to the hospital. “Uncle Willie” discussing the “apples” of a 12-year old girl. Seemingly sexual intimacy with a chicken. “Pissing in the sink” and “pissing from a building’s ledge.” The verb “to come” with its obvious reference to sexual orgasm. The reunited couple discussing adulteries committed during their separation, and the suggestion of a wife’s denial of infidelity, even when discovered by her husband. “Shoving” a funnel of hot lead “up one’s ass.” The story dealing with the masked man, Tonto, and an unnatural sex act. Mildred Babe Zaharias and the “dyke profile of 1939.” During the first performance Bruce fondled the microphone stand in a masturbatory fashion. In the second performance, while telling of an act of exposure, Bruce turned his back to the audience and moved his hand outward and upward from below his waist in an obvious and crude pantomime of an act of exposure and masturbation.149 Within this description of Bruce’s acts, there are some references that may make us uncomfortable—in particular, the evocation of child sexual abuse and what appears to have been intended as an anti-lesbian epithet—but our reaction proves more complex than that. Who 148. Bruce (N.Y. Crim. Ct. 1964) at A30. 149. Id. at A29-A30 (citations omitted). 342 [VOL. 48:309 Tragicomedy now does not feel some sense of bemusement upon reading even the first and second descriptions, and must not work to suppress a smile upon reading section number three? By the end of the recitation, many of us are inclined, in fact, to burst out into a loud guffaw at the image of the “obvious and crude pantomime” of masturbation on stage, as well as when we try to imagine Tonto engaging in his “unnatural sexual act.” The court, in its tight-lipped account of Bruce’s “crimes,” emerges as the true object of fun—we imagine a shriveled, humorless pedant hiding beneath his robes whom we would like to laugh literally out of existence. Perhaps this was what the dissenting judge means when he writes, with some vitriol: Throughout the trial we heard much testimony from many sources in an effort to ascertain the “contemporary community standards” as to obscenity, as indeed the directives of higher courts required. But in a total absence of any guideposts or other directives from such higher courts, I fear we have proceeded not unlike an explorer plunged into a vast uncharted virgin area in pursuit of a mirage or some fabled lost golden city. In this quest, the time honored rules of evidence proved to be something of a highly unsuitable incumbrance, and the judicial process revealed itself as a most limited and inadequate, if not improper, tool for this task.150 The dissenting judge has emerged the victor in the appeal to People v. Bruce, as well as in the court of history. In the ensuing years since the Bruce decision, Bruce has been acknowledged as the comedic genius that he was, and the overwhelming consensus is that his Comedy does not and should not amount to obscenity under First Amendment principles because of its literary and artistic merit.151 Both conservatives and liberals now regard the Bruce opinion as a “joke” and Bruce himself as a hero for two reasons: First, because he makes us laugh, and second, because the New York Bruce court 150. Id. at A33 (citations omitted); see also Erin J. Aubry, A Comedian Comes Clean on the News, L.A. TIMES, Oct. 5, 1995, at F1 (“ �This country has only produced three comic geniuses–Mark Twain, Lenny Bruce, and Richard Pryor.’ ”) (quoting Dick Gregory); Paul Freeman, Frankly Speaking: The World According to Henry Rollins, on Disc, Stage, Page, CHI. TRIB., Oct. 9, 1994, at C26 (“ �In my opinion, Lenny Bruce is one of the greatest artists in the history of America’. . . .”) (quoting Henry Rollins); Kurt Jacobsen, The Joker Who Loves to Hate—Andrew Dice Clay, GUARDIAN (London), Jan. 24, 1991 (“Bruce was a genuine rebel genius who courted punishment and mainstream rejection . . . .”); Ken Tucker, �Truth Hurts:’ Didja Ever Hear the One About Sick-Humor Pioneer Lenny Bruce and His Battles with the Law? HBO’s Swear Tells the Tale, ENT. WKLY., Aug. 13, 1999, at 57 (“Bruce was a persecuted genius. . . .”). 151. See supra notes 147, 150. For celebratory reviews of Bruce’s work, see also http://www. members.aol.com/dcspohr/lenny/sounds.htm (last visited Oct. 4, 2004); http://www.freenetpages. co.uk/hp/lennybruce/ (last visited Oct. 4, 2004). 2004] 343 Howard Law Journal does too. And, these are two different forms of laughter. The first conforms to Aristotle’s definitions of Comedy, in that we are amused by that which is low and ugly and clownish—though Bruce is, in modern estimation, a savant and this aligns him also with Hamlet, who makes us laugh and grimace with his savage in-jokes. The second form of laughter, on the other hand, is somewhat different from that which is triggered by Aristotelian Comedy—for though we now see the court as a bumbler and a clown, the laughter that we enjoy, like the tears we shed when confronted by Tragedy, is triggered by an angry, yet precise, attack that is, again, unanswerable: This laughter is Kundera’s laughter of the angels,152 in that it is dangerous, and destructive, and seeks to annihilate this prejudicial court and what it did to Bruce. It is a laughter of inarticulate rage and pain and dissent, as well as a chortle at chickens and Eleanor Roosevelt. And so these two kinds of laughter have defined what is legal. Much in the same way that Justice Stewart in Jacobellis described obscenity as something he “kn[e]w[ ]” when he “s[aw],”153 here, we discern the virtues, and lack of obscenity, of Bruce’s work because it has made us smile. Comedy here, therefore, is not just a persuasive tool that courts and advocates use to win their cases, but also defines legal and constitutional principles. When we are laughing at the bested Bruce court, we are doing more than enjoying an old joke; in the same way that Judge Kozinski seeks to dominate his colleagues on the bench, and Hamlet aims to master his enemies, we are attempting to wrest control from a repressive government and return it to the people by reconfiguring the legal test for determining what is “patently offensive to the average person in the community, as judged by present day standards.”154 C. Bowers v. Hardwick155 In the famous 1986 case, where Justice White, writing for the Court’s majority, held that “sodomy” was not a “fundamental right” to be protected under the federal Constitution, we can see a most pernicious use of Comedy, employed to cast derision upon, and thus un152. 153. 154. 155. 344 See supra note 96 and accompanying text. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). Bruce (N.Y. Crim. Ct. 1964) at A30. 478 U.S. 186 (1986). [VOL. 48:309 Tragicomedy dermine, the claims of a sexual minority. We can, however, also see the weakness of Comedy’s application to such dishonorable ends. Bowers is not—and could never be argued to be—a funny opinion, in the way that Judge Kozinski’s dissertations are sly and humorous, or even in the blunt and gruff manner of Justice Scalia. Rather, Justice White uses Comedy as a persuasive tool, not by exercising any particular funny-man gifts that he may own, but instead by describing gays and lesbians as so lacking in the requisite standing and gravitas and dignity to make a constitutional claim, that they amount to figures of hilarity. In short, Justice White asserts that the plight of gays and lesbians is not to be taken seriously, because it is just funny. The quotation that I refer to here is as terse as it is notorious. Justice White noted that the Supreme Court would only designate certain rights as fundamental if they were “implicit in the concept of ordered liberty”156 and “deeply rooted in this Nation’s history and tradition.”157 With respect to tradition, he was able to discover a longstanding American legacy of discrimination against gays and lesbians, as well as modern persecutions in the form of the twenty-four states that in 1986 persisted in keeping anti-sodomy laws in their criminal codes.158 But Justice White did more than simply conclude from this evidence that there was no support for the claim that same-sex intimacy deserved protection under the Constitution; he further degraded the claim by writing: “Against this background, to claim that a right to engage in such conduct is �deeply rooted in this nation’s history and tradition’ or �implicit in the concept of ordered liberty’ is, at best, facetious.”159 Why write this way, we might ask? By calling the claim facetious—that is, funny, amusing, droll—Justice White worked to support his conclusion not with cogent reasoning, but with the old instrument of humor. As Aristotle notes, “Comedy is . . . an imitation of men worse than the average . . . . [who are] Ridiculous and Ugly” and “distorted” but not “painful.”160 Aristotle’s observations are well borne out by the history of American humor, where discrimination against African Americans was fueled by the minstrel show,161 gender dis156. 157. 158. 159. 160. 161. Id. at 191 (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Id. (citing Moore v. East Cleveland, 431 U.S. 494, 503 (1977)). Id. at 192-94. Id. (emphasis added). ARISTOTLE, POETICS, supra note 12, at 347 (1958). Cf. Mark Sommer, Tribute to Jolson Brings Back an Anguished Debate over Blackface, BUFFALO NEWS, July 10, 2002, at D1. 2004] 345 Howard Law Journal crimination was justified by reference to the comic female termagant or shrew,162 the Chinese were debased with the likes of Charlie Chan,163 transvestites and trans-gendereds find their isolation from civic life exacerbated by the manifold images of the hilarious dresswearing man,164 and gay men have been harassed with the comic figure of the queer.165 By calling the claim “facetious,” Justice White is not being funny in the tradition of Hamlet, but is evoking our memory of such morbid comedies about homosexuals, and his use of humor resembles the earlier-discussed use of Tragedy: The “hilarity” of the claim, and of gay men and lesbians, is based on their supposed baseness, and lowness— a value that one either believes in or not. Humor, like Tragedy, depends on the unanswerable: “They are ridiculous;” “their claims are “Minstrelsy is a direct response to the observation of [B]lacks on the plantation . . . . In the context of slavery, [W]hites totally distorted their observations for comic relief to primarily [W]hite audiences, who bought into this notion that it was OK to imitate [B]lack people inasmuch as they were considered less than human beings to begin with. And out of that, beginning in the early [nineteenth] century, came the traditional comic minstrel show.” Id. (quoting James Pappas, co-chair of the University of Buffalo’s African American Studies Department.) 162. See, e.g., Beverly Boyd, Chaucer’s Audience and the Henpecked Husband, 12 FLORILEGIUM 177 (1993) (“The Wife of Bath’s personality, philosophy of sexuality, and attitude toward sovereignty in marriage obviously are offered as [C]omedy.”), available at www.arts.uwo. ca/florilegium/vol-xii/boyd.pdf (last visited July 10, 2004). 163. Edward M. Chen, The Judiciary, Diversity, and Justice for All, 10 ASIAN L.J. 127, 139 (2003) (“[B]eing the target of the all too familiar epithets �Chink’ and �Chinaman’ . . . dehumanized not only me as an individual, but also my family, my community, and my culture; living under the weight of Asian stereotypes of yellow-faced caricatures like Charlie Chan, Bonanza’s houseboy Hop Sing, and Fu Man Chu . . . .”); Virginia W. Wei, Asian Women and Employment Discrimination: Using Intersectionality Theory to Address Title VII Claims Based on Combined Factors of Race, Gender and National Origin, 37 B.C. L. REV. 771, 801 (1996) (“ �Asians were bit players, extras with buck teeth and pigtails on TV shows like Bonanza and Kung Fu. We were Charlie Chan, Mr. Moto, and Joe Jitsu . . . . We were not real, but cartoons and caricatures, sideshows and servants, jokes in a Jack Nicholson movie and ciphers of the mainstream culture. . . .’ ”) (quoting Garrett Hongo, Introduction to THE OPEN BOAT: POEMS FROM ASIAN AMERICA xxiii, xxiv (Garrett Hongo ed., 1993)). 164. Cf. Jillian Todd Weiss, The Gender Caste System: Identity, Privacy, and Heteronormativity, 10 L. & SEXUALITY 123, 141 (2001) (“Transsexual people are often considered mentally unstable and/or sexually perverse. Exposure to gender variant people may be limited to a comic drag queen on a television sitcom or a sensational tabloid story about the arrest or murder of transvestite prostitutes.”); Anna Webb, Dr. Heidi Reeder, IDAHO STATESMAN, June 16, 2003, at 32 (“[A]nything dealing with transgendered issues is usually treated as a [C]omedy.”). 165. See cf. Tom McGeveran, Shmomo Erectus, N.Y. OBSERVER, Aug. 18, 2003, at 1 (“Is this liberation, or is it stereotype? Is the current increase in gay visibility progress, or is it a retrograde throwback to the homosexual caricatures of the 1950’s, of a Nelly Nation of queens, hairdressers and interior decorators? Should we just all sit back and enjoy the show, as the caricature of the aesthetically obsessed, sweet-smelling gay man joins the American ranks of the non-threatening interloper: the funny little Jew, the tap-dancing Negro, and last year’s model, the fumblingly illiterate Italian mobster—the lovable social misfits for a new age?”). 346 [VOL. 48:309 Tragicomedy facetious;” “they are absurd.” This humor serves to debunk the claimant; it entitles her to no standing, no voice, no power. Sometimes things that once were very funny are simply not any more. After awhile, people no longer get the joke, and we begin to hate or laugh at the authority which repressed it in the first place. In this we can discern the hazard, to a jurist like Justice White, in attempting to employ Comedy to gain support for a decision such as Bowers. Once more, comic conventions prove difficult to master, and the judge may lose control over this form. Both the holding and the language employed in that case were so obviously malicious that Justice White ran the risk it would not stand “the test of time”166 because we would not want to be complicit in such an ugly and sneering decision, which provoked so many people’s rage.167 Moreover, Justice White’s jab proved a weak spot in the Bowers decision, when it was reversed by the Kennedy decision in Lawrence v. Texas.168 For Justice Anthony Kennedy’s description of the constitutional disapproval of the State’s “demean[ing] of their existence [and] control[ling] their destiny” appears a salvo directed at such smug nastiness as Justice White’s; in addition, so does his application of Planned Parenthood v. Casey’s169 description of liberty as “�the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’”170 to the context of same-sex intimacy, because he is insinuating that Justice White’s opinion violated those sacred principles. 166. See Anand Agneshwar, Ex-Justice Says He May Have Been Wrong: Powell on Sodomy, NAT’L L.J., Nov. 5, 1990, at 3 (“Professor [Lawrence] Tribe, who said that the loss in Bowers has been the most difficult high court defeat to justify, holds out hope that ultimately the decision will not stand the test of time.”). 167. See Mary C. Dunlap, Gay Men and Lesbians Down by Law in the 1990’s USA: The Continuing Toll of Bowers v. Hardwick, 24 GOLDEN GATE U. L. REV. 1, 14 (1994) (“The opinions against Hardwick’s position from the Justices themselves sound similar to anti-gay epithets, albeit framed in legalisms. Justice White’s labeling of the privacy argument made in behalf of Hardwick as �facetious,’ as well as [Justice] White’s slurring conflation of consensual, private, non-commercial adult gay/lesbian sexual activity with �adultery, incest, and other sexual crimes . . . committed in the home,’ constitute an act of verbal gay-bashing. . . .”); Robert F. Nagel, Lies and Law, 22 HARV. J.L. & PUB. POL’Y 605, 608 (1999) (“[W]hen someone notices the unusual way words are being used in constitutional law—as when Justice White characterized as facetious the argument that the right to engage in homosexual sodomy is �deeply rooted’ in American history—many sophisticated people react with indignation.”); Kenji Yoshino, Covering, 111 YALE L.J. 769, 783 (2002) (“[Justice] White’s opinion in Bowers . . . described the claim that the constitutional right to privacy protected homosexual sodomy as �facetious,’ a characterization that would enrage the gay community for years to follow.”). 168. 539 U.S. 558 (2003). 169. 505 U.S. 833 (1992). 170. Lawrence, 539 U.S. at 574 (quoting Casey, 505 U.S. at 851). 2004] 347 Howard Law Journal Nevertheless, Justice White’s sense of the comic did prevail for nearly twenty years between Bowers and Lawrence, and was the status quo for long before that. It would be wonderful to see humor used only in the interests of equal justice, and like our modern reaction to the court in the Bruce decision, we would like to employ the laughter of the angels to debunk not the minority, but tyranny. Yet, of course, this is not so; humor, like logic, passion, a photographic memory, a genius for “framing the issue,” and Tragedy, proves only one of a number of general instruments that lawyers and judges use every day to win their cases. The point of this Article is to reveal how Comedy, supposedly limited to works of theater and literature, is used and bungled by lawyers. And so we see that Justice White, Justice Scalia, Judge Kozinski, Hamlet, Lenny Bruce and his fans, are all brothers in this; they employ Comedy to prosecute their case. Using humor, they befuddle and amuse, seduce and betray, convince, dazzle, define, and dominate lawyers, judges, and the law. CONCLUSION The connection between law and literature has been made much of,171 and our understanding of the ways that Tragedy and Comedy 171. There is a great deal of literature today on the Law and Literature movement. See, e.g., INTERPRETING LAW AND LITERATURE: A HERMENEUTIC READER (Sanford Levinson & Steven Maillous eds., 1988); MARTHA C. NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND PUBLIC LIFE (1995); THEODORE ZIOLKOWSKI, THE MIRROR OF JUSTICE – LITERARY REFLECTIONS OF LEGAL CRISES (1997); Symposium, Law and Literature, 60 TEX. L. REV. 373 (1982); Law, Literature, and the Humanities: Panel Discussion, 63 U. CIN. L. REV. 387 (1994). A number of anti-subordination scholars have hoped that the “literary voice” in law will help achieve greater justice. See Mae Kuykendall, Resistance to Same-Sex Marriage as a Story About Language: Linguistic Failure and the Priority of a Living Language, 34 HARV. C.R.-C.L. L. REV. 385, 398 n.50 (1999) (“[T]he poetry of Walt Whitman captures the idea of a democratic voice in the sounds of the commonplace. Whitman wrote and lectured on the importance of an American voice embodied in the spirit of free people: �There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in themselves,—and lose their roughness and spirit of defiance.’ Retrospectives of the American literary voice often remark on the intrusion of a rough voice challenging the gentlemanly conventions of Europe.”) (quoting WALT WHITMAN, WALT WHITMAN’S WORKSHOP 58 (Clinton Joseph Furness ed., 1928)); Elizabeth Tobin, Law and Literature: Imagining the Mother’s Text: Toni Morrison’s Beloved and Contemporary Law, 16 HARV. WOMEN’S L.J. 233, 272 (1993) (“The literary work is only valuable in its relation to law if it is read alongside the �real’ as a way to respond to the various narratives that both the legal and the literary voices provide. By listening to mothers’ stories, we can begin to imagine their suffering and their healing.”); Lindsey MartinBowen, Comment, Words from a Teller of Tales: Can Storytelling Play an Effective Role in Feminist Jurisprudence?, 66 UMKC L. REV. 95, 123 (1997) (“Yet, long before the slave narratives influenced the public, women’s literary voices called to the middle class. Many of those female 348 [VOL. 48:309 Tragicomedy operate within legal opinions further blurs the distinction between novels, plays, poems, and the “applied science” of law.172 There are times when our jurisprudence does not flow from logic alone, or stare decisis, natural law, liberalism, original intent, anti-subordination, or the other manifold descriptions we have appended to the practice of “thinking like a lawyer.” Rather, in certain instances, we prosecute our cases and judge them out of cathartic emotion, or out of a sensation of the absurd, which, in both cases, leads us to make decisions, not on fine legal distinctions, but on the more murky and transcendent impulse toward the Unanswerable—being laughter and tears. Shylock’s voice may be heard echoing in the court halls, as may King Lear’s, when we are faced with facts that require us to acknowledge our own mortality, potential for evil, and, as in Plessy, ungovernable appetites for power. Hamlet’s ribaldry, moreover, proves a sharp lance in the tourney that is judging and lawyering, as there are few who will be able to defend themselves against the modern day jongleur-knight who rips his adversary’s dignity and arguments to shreds with scabrous, angelic wit. Legal scholars have argued that the literary voice is well-needed in the law to achieve justice,173 and that we should make efforts to further import this poetry into our profession. Yet, aside from the observation that law is literature, we may also have a more hesitant response to that recommendation, when we see how Tragedy and Comedy may be used as a means to both progressive and backwardslooking ends. Literature may be a more complex and dangerous device than those theorists suppose, for there is no guarantee that a literary-minded lawyer or judge will execute justice—merely that, if they are good literary artists, they will have a prodigious weapon at their disposal. But, at the same time, we remain much impressed with the tragic and comic elements of our law, our judging, and our lawyering. Who does not groan at the fate of the victims in Payne and in Janus, or writers would be termed feminists today because, like contemporary feminists, they expounded themes that cracked society’s molds for women.”). 172. See NORMAN F. CANTOR, THE CIVILIZATION OF THE MIDDLE AGES 82 (1963) (“It is highly significant that medicine and art were omitted from the liberal arts by Martianus [Capella] and hence from the arts faculties by the high medieval universities and even our modern liberal arts colleges. Like Augustine, Martianus argued that medicine and law were not �liberal’ studies because they were concerned with �earthly’ things—or, as we would say [today], they were applied, not pure, sciences.”). 173. See supra note 171. 2004] 349 Howard Law Journal desire to access the might of Kundera’s angels, and laugh tyrants out of power in Bruce? In the end, the literary gift is beautiful and seductive, though not one that can be used with equal force by all. As with the other weapons we exploit in the legal realm, the question becomes what will we do with its considerable power. 350 [VOL. 48:309 Freedom Now!—Race Consciousness and the Work of De-Colonization Today ¨ OK ¨ * JOHN HAYAKAWA TOR I. PREFACE We saw neither the end of racism nor the end of history in the last decade of the twentieth century.1 Conditions in American law and society clearly differ now from a century ago when W.E.B. Du Bois declared that the problem of the twentieth century was the problem of the color line.2 They differ from when Charles Hamilton Houston and William Henry Hastie were active as lawyers and change agents between the 1920s and the 1950s.3 They differ also from when Derrick Bell published the first edition of his Race, Racism and American Law treatise some thirty years ago.4 * Copyright  John Hayakawa TO¨ rO¨ k, 2004. All Rights Reserved. Doctoral Candidate, Department of Ethnic Studies, University of California, Berkeley. J.D. 1991 C.U.N.Y. Law School. As their former student, I dedicate this Article to the memory of C.U.N.Y. Law School Dean Haywood Burns and Visiting Professors Denise Carty-Bennia (Northeastern) and Kellis Parker (Columbia). I thank Bettina Scholdan for a critique. I thank Rehan Ansari, Mark Engler, Michele Goodwin, Allynnore Jen, Thomas Joo, Susan Kuo, George Morris, Gary Okihiro, Lia Scott Price, Reginald Robinson, Fatima Rizvi, Sakina Rizvi, Jean-Marc Troadec, David Wang, Phil Weichert, Frank Wu, and Rosslyn Wuchinich for conversation, comments, and assistance. Last, but not least, I thank my editor, Tameka N. Simmons. 1. See Vernillia R. Randall, Race, Racism and American Law Webpage, at http://academic. udayton.edu/race (last visited Feb. 1, 2004). See generally DINESH D’SOUZA, THE END OF RACISM: PRINCIPLES FOR A MULTICULTURAL SOCIETY (1995); FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1992). 2. W.E.B. DU BOIS, THE SOULS OF BLACK FOLK xi (Henry Louis Gates Jr. & Terri Hume Oliver eds., Signet Classic ed. 1982) (1903). For example, racial segregation is no longer the law of the land and women now have the right to vote. See EVELYN NAKANO GLENN, UNEQUAL FREEDOM: HOW RACE AND GENDER SHAPED AMERICAN CITIZENSHIP AND LABOR (2002) (discussing Reconstruction to 1930); see also ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998). 3. See GENNA RAE MCNEIL, GROUNDWORK: CHARLES HAMILTON HOUSTON AND THE STRUGGLE FOR CIVIL RIGHTS (1983); GILBERT WARE, WILLIAM HASTIE: GRACE UNDER PRESSURE (1984). Their life work is discussed infra notes 197-229, and accompanying text. 4. DERRICK A. BELL, RACE, RACISM AND AMERICAN LAW (1973) [hereinafter BELL, RACE, RACISM AND AMERICAN LAW]. The White backlash to race-based affirmative action, for example, was not yet organized as it is today. 2004 Vol. 48 No. 1 351 Howard Law Journal Nonetheless, we have not yet achieved racial justice in the United States. While the legality of the racial subordination that Houston and Hastie challenged has abated, work to address the embedded character of American racism remains.5 The movement for reparations for slavery is one current racial justice initiative.6 Moreover, given current American imperial overstretch,7 the idea of a clash of civilizations merits rigid scrutiny by American anti-racist activist intellectuals.8 We are fortunate that we can draw on an established African American tradition of critique that links domestic and global racism.9 5. See DERRICK A. BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM (1992) [hereinafter BELL, PERMANENCE OF RACISM]; THE HOUSE THAT RACE BUILT: BLACK AMERICANS, U.S. TERRAIN (Wahneema Lubiano ed., 1998) (discussing how White supremacy operates in coded quasi-respectable forms); JODY DAVID ARMOUR, NEGROPHOBIA AND REASONABLE RACISM: THE HIDDEN COSTS OF BEING BLACK IN AMERICA (1997) (discussing unconscious racism); DERRICK A. BELL, RACE, RACISM AND AMERICAN LAW (5th ed. 2004) [hereinafter BELL, RACE, RACISM, AND AMERICAN LAW, 5th ed.]; DOUGLAS MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1998) (discussing continuing housing discrimination resulting in high rates of African American residential segregation and the effects thereof); 6. Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations, 40 B.C. L. REV. 429 (1998); National Coalition of Blacks for Reparations in America, National Coalition of Blacks for Reparations in America Homepage, at www.ncobra.org (last visited Sept. 21, 2004). 7. MICHAEL HARDT & ANTONIO NEGRI, EMPIRE (2000) (discussing the shift from “modern” European imperialisms to the “postmodern” twentieth century “empire” that draws on U.S. constitutionalism and traditions of expanding frontiers and hybrid identities, and implications of this shift for White left praxis); CHALMERS JOHNSON, THE SORROWS OF EMPIRE: MILITARISM, SECRECY AND THE END OF THE REPUBLIC (2004) (describing the over 725 American military bases that existed outside the United States in September 2001 as a pure manifestation of militarism and imperialism, and their effects on U.S. foreign policy); 8. See HARDT & NEGRI, supra note 7, at 190-95 (discussing imperial racism); SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATION AND THE REMAKING OF THE WORLD ORDER (1996). A new work requiring critical scrutiny is: SAMUEL P. HUNTINGTON, WHO ARE WE?: THE CHALLENGES TO AMERICA’S IDENTITY (2004). Huntington’s student Fareed Zakaria may be read as arguing that despotism often works, and democracy is too good, for colored people. See Niall Ferguson, “The Future of Freedom”: Overdoing Democracy, N.Y. TIMES, Apr. 13, 2003 (reviewing FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND ABROAD (1st ed. 2003)). 9. PENNY M. VON ESCHEN, RACE AGAINST EMPIRE: BLACK AMERICANS AND ANTICOLONIALISM, 1937-1957 (1997) (discussing African American anti-colonial critique of U.S. foreign relations); RAYFORD W. LOGAN, THE DIPLOMATIC RELATIONS OF THE UNITED STATES WITH HAITI, 1776-1891 (1941) (arguing U.S. sixty-year failure to recognize Haiti, the first free independent Black republic that was hostile to slavery and contested Euro-American global power, resulted from U.S. policymakers racism); BRENDA GAYLE PLUMMER, RISING WIND: BLACK AMERICANS AND U.S. FOREIGN AFFAIRS, 1935-1960 (1996) (discussing how African American intellectuals and journalists linked domestic and global racism in analyzing foreign affairs); J. Clay Smith, Jr., United States Foreign Policy and Goler Teal Butcher, 37 HOW. L.J. 139 (1994) (discussing life work of Howard law professor international law/Africa specialist and activist); see also Robin D.G. Kelley, “But a Local Phase of a World Problem”: Black History’s Global Vision, 1883-1950, 86 J. AM. HIST. 1045 (1999) [hereinafter Kelley, Black History’s 352 [VOL. 48:351 Freedom Now! The following Speech10 was the opening presentation at the 2003 Critical Race Theory Workshop (CRTW).11 I wrote and gave it as a response to my panel’s title: Race-Consciousness: Progressive Tool or Outmoded Instrument?12 I wrote this preface later to give readers who have not participated in the movement or read the Critical Race Theory (CRT) literature some context.13 The preface also extrapolates some of the ideas that were implicit in the Speech as given. In the Speech, I sought both to re-examine the life work of Houston and Hastie through the lens of a leftist Black Nationalism, and to give a reading of contemporary world events through that same lens. I later realized that the Speech itself was an exercise in progressive race consciousness. Whether race consciousness is a progressive tool, of course, depends on how it is defined.14 Some critical race theorists are questioning the efficacy of race consciousness15 to our collective antiGlobal Vision ] (arguing that the race consciousness of early Black historians framed their global perspective on Black history from the origins of the discipline). 10. See infra notes 146-276 and accompanying text. This Article thus follows a tradition of CRT authors who have broken form. See Linda S. Greene, Breaking Form, 44 STAN. L. REV. 909 (1992) (reviewing PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991)). 11. For background on and the early literature of the CRT movement, see CRITICAL RACE FEMINISM (Adrien Katherine Wing ed., 1997); CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado ed., 1995) [hereinafter CUTTING EDGE I]; CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado & Jean Stefancic eds., 2d ed. 2000) [hereinafter CUTTING EDGE II]; CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberle´ Crenshaw et al. eds., 1995) [hereinafter KEY WRITINGS]; Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993); Angela Harris, Foreword to the Jurisprudence of Reconstruction, 82 CAL. L. REV. 741 (1994); Stephanie L. Phillips, The Convergence of the Critical Race Theory Workshop with LatCrit Theory: A History, 53 MIAMI L. REV. 1247 (1999). 12. For an example of early “critical race” consciousness, see A HUBERT HARRISON READER (Jeffrey B. Perry ed., 2001) [hereinafter PERRY] (discussing the “father of Harlem radicalism”). 13. I note at the outset that I share the anti-essentialist understanding of races and racisms, as well as other social formations. See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990). 14. For example, Alain Locke, the “leader of the Harlem Renaissance,” used “race-consciousness” to mean what we would today call Black transnationalism. Michael Hanchard, Acts of Misrecognition: Transnational Black Politics, Anti-imperialism and the Ethnocentrisms of Pierre Bourdieu and Loic Wacquant, 20:4 THEORY, CULTURE & SOC’Y 5, 18-19 (2003) [hereinafter Hanchard, Acts of Misrecognition] (citing ALAIN LOCKE, THE NEW NEGRO (1925)); Michael Hanchard, Afro-Modernity: Temporality, Politics and the African Diaspora, 11:1 PUB. CULTURE 245, 257-59 (1999) [hereinafter Hanchard, Afro-Modernity] (discussing transnational “New Negro” concept). 15. I believe theirs is a critique of a philosophically unsophisticated and, in contemporary multicultural democracy, politically short-sighted Black nationalist ideology. Cf. PAUL GILROY, AGAINST RACE: IMAGINING POLITICAL CULTURE BEYOND THE COLOR LINE (2000); Edward W. Said, The Poverty of Nationalism, PROGRESSIVE, Mar. 1998, at 27 (critiquing Palestinian nationalism). 2004] 353 Howard Law Journal subordination project.16 I understand that the 2003 CRTW organizers had this internal critique in mind when they named the first panel.17 Nevertheless, deconstructing American race consciousness was always part of CRT’s work.18 My argument in this Article is not that all race consciousness is progressive.19 Rather, I argue that since a progressive variety can be identified, race consciousness as such is not an outmoded instrument.20 I submit that anti-colonial, anti-subordination race consciousness remains a progressive tool. I denominate21 this post-colonial race consciousness.22 I contend, fundamentally, that CRT and its theoretical progeny build on a progressive history of race consciousness. This tradition centers on work for justice and equality both domestically and internationally.23 We should spotlight this illuminating tradition in CRT. It can inspire us for our present and future anti-subordination work.24 16. Professors Reginald Robinson, christi cunningham, and Alex Johnson are the critical legal scholars associated with this move. My view is that non-White race consciousness is primarily a weapon against White supremacy and White privilege. It can be crafted in the form of a scalpel, as a sledgehammer, or anything in between. Through the internal critique of race consciousness, we re-craft this tool for the next stage of struggle. See generally BELL, PERMANENCE OF RACISM, supra note 5. 17. The organizers of the 2003 Workshop, Professors Darren Hutchinson, Pamela Bridgewater, and Leti Volpp of the American University, Washington College of Law, and Professor Devon Carbado of the U.C.L.A. School of Law, deserve our gratitude. 18. CRT thus furthered a radical critique of the liberal civil rights paradigm. HERBERT H. HAINES, BLACK RADICALS AND THE CIVIL RIGHTS MAINSTREAM, 1954-1970 (1988); KEY WRITINGS, supra note 11, at xiv-xvii, xix. 19. White supremacy is both a variety of race consciousness and an ideology, and is not progressive. See, e.g., ANDREW MACDONALD, THE TURNER DIARIES (1978); LOTHROP STODDARD, THE RISING TIDE OF COLOR AGAINST WHITE WORLD SUPREMACY (1922). However, White race consciousness can be progressive. CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR (Richard Delgado & Jean Stefancic eds., 1997). 20. While I use Black race consciousness to make my argument, I am also not arguing that every variety of Black race consciousness is progressive. 21. I define this variety of race consciousness in this Article based on an examination of anti-colonial Black critical social thought, discussed infra notes 66-70 and accompanying text. The critical social thought of non-Black racial “minorities” could also be used to define it. 22. Like other “posts,” the “colonial” in global power relations, and international and domestic subordination, is constantly being deconstructed and reconstituted. Cf. BELL, PERMANENCE OF RACISM, supra note 5. 23. It builds on the historical analysis linking domestic and global racism, see supra note 9, and on Black anti-colonial thought, see infra notes 66-70 and accompanying text. 24. At the time I wrote the Speech, I was unaware of ROBIN D.G. KELLEY, FREEDOM DREAMS: THE BLACK RADICAL IMAGINATION (2002) [hereinafter KELLEY, FREEDOM DREAMS]. I now realize the project of my Speech, to highlight and reinterpret some rather obscured history about Black race radicals was, except for my emphasis on cause lawyering and the related organizing, somewhat similar to Kelley’s. See generally CAUSE LAWYERING – POLITICAL COMMITMENT AND PROFESSIONAL RESPONSIBILITIES (Austin Sarat & Stuart Scheingold eds., 1998) [hereinafter CAUSE LAWYERING]. 354 [VOL. 48:351 Freedom Now! A. CRT and Other Race-Conscious Critical Legal Theory Unlike the Frankfurt School in its early years, CRT never had a wealthy patron to finance its institutionalization and support the development of its theoretical literature.25 Notwithstanding this constraint, CRT and its progeny are clearly productive critical intellectual movements in legal theory.26 In writing an account of this critical legal intellectual movement,27 “I am simply carrying on a tradition, trying to write and live the story of our struggle, creating a history that has already created me, seeking to keep the faith.”28 In 1989, thirty-five law scholars responded to a call to synthesize a theory responsive to the realities of U.S. racial politics29 and grounded in critical theory.30 To advance anti-subordination raceconscious legal thought, and as the first active phase of the CRT movement, nine invitational CRT workshops and two public conferences were organized between 1989 and 1997.31 In jurisprudential terms, CRT encompasses analytical and normative components: respectively, analysis of what was or is, and discussion of what should 25. See MARTIN JAY, THE DIALECTICAL IMAGINATION: A HISTORY OF THE FRANKFURT SCHOOL AND THE INSTITUTE OF SOCIAL RESEARCH, 1923-1950 5-11 (1996). 26. See infra notes 29-55. 27. CRT and progeny are evolving. The following account only sketches these critical theory movements. CRT’s founders acknowledge an intellectual and political debt to Critical Legal Studies. 28. VINCENT HARDING, THERE IS A RIVER: THE BLACK STRUGGLE FOR FREEDOM IN AMERICA xxii-xxiii (1981) [hereinafter HARDING, RIVER]. 29. While CRT began as a U.S.-based legal intellectual movement, it is increasingly transnational. See Ibrahim J. Gassama, Transnational Critical Race Scholarship: Transcending Ethnic and National Chauvinism in the Era of Globalization, 5 MICH. J. RACE & L. 133 (1999); Hope Lewis, Reflections on �BlackCrit Theory’: Human Rights, 45 VILL. L. REV. 1075 (2000); Proceedings of the Canadian Critical Race Theory Conference 2003: Pedagogy and Practice, May 2-4, 2003, at www.lib.sfu.ca/ccrc (last visited May 9, 2003). 30. KEY WRITINGS, supra note 11, at xxvii. See generally http://sun3.lib.uci.edu/indiv/ssctr/ online.html (last visited Feb. 1, 2004) (U.C. Irvine Critical Theory Resource). 31. CUTTING EDGE I, supra note 11; KEY WRITINGS, supra note 11. CRT is an oppositional movement. See generally HARDING, RIVER, supra note 28, at xx (arguing the “central theme of [B]lack history in the United States [is] . . . the active [B]lack struggle for freedom and justice”); Jerome Karabel, Towards a Theory of Intellectuals and Politics, 25 THEORY & SOC’Y 205 (1996) (arguing that what needs explanation is not the accommodation of intellectuals to the status quo but what causes them to rebel at particular places and historical moments). 2004] 355 Howard Law Journal be. CRT’s praxis component32 is activism—the idea being that analysis should not lead to paralysis.33 The CRT Workshop met annually between 1989 and 1997. It always included African American, Asian American, and Latina/o critical legal scholars. Later on it included Native Americans.34 Centering Black35 critical social thought36 as we began the 2003 Workshop seemed proper following a debate at and after the 1998 LatCrit conference37 on Black consciousness in critical legal theory.38 For CRTW 2003, it seemed that a “thicker description” of historical Black race 32. Angela Y. Davis states that praxis “charges lawyers and legal academics with the awesome task of translating complicated theoretical relationships among these [gender, class, sexuality, race] categories into transformative legal practice.” Foreword to GLOBAL CRITICAL RACE FEMINISM: AN INTERNATIONAL GUIDE xii (Adrien Katherine Wing ed., 2000) (praxis can include coalition-building, board memberships, speeches, and writing) [hereinafter GLOBAL CRITICAL RACE FEMINISM]. 33. See generally KEY WRITINGS, supra note 11. I first heard this turn of phrase from Haywood Burns. 34. Phillips, supra note 11, at 1254 n.19. 35. I share the view that African Americans are a cultural group and thus require denotation as a proper noun. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710 n.3 (1993) (citation omitted). The move here is from an “African American” identity bounded by the nation-state to a transnational “Black” identity.” Cf. Michael Hanchard, Identity, Meaning and the African American, 24 SOC. TEXT 31, 39 (1990) (“It is imperative that progressive political and cultural movements by [B]lacks in this country reject the idea of America as the United States. For to accept that definition, with its self-selected borders and dominions, is to impoverish a political and cultural heritage to which [B]lacks from the Caribbean and Latin America have made important contributions.”). 36. I take this term from CORNEL WEST, PROPHESY DELIVERANCE! AN AFRO-AMERICAN REVOLUTIONARY CHRISTIANITY 15 (1982) [hereinafter WEST, PROPHESY DELIVERANCE!]. West uses the term “Afro-American,” but I use “Black,” because the former term is also limited by the borders of the American nation-state. See THE BEST FROM THE BLACK SCHOLAR: CONTEMPORARY BLACK THOUGHT (Robert Chisman & Nathan Hare eds. 1973). Cf. BLACK FEMINIST THOUGHT 22 (Patricia Hill Collins ed., 1991) [hereinafter BLACK FEMINIST THOUGHT] (defining Black feminist theorizing). 37. For information on LatCrit conferences, see LatCrit & University of Miami School of Law, LatCrit Website, at http://personal.law.miami.edu/~fvaldes/latcrit (last visited June 2, 2003). 38. From RaceCrit to LatCrit to BlackCrit? Exploring Critical Race Theory Beyond and Within the Black-White Paradigm, Moderated Focus Group Discussion, LatCrit III, Comparative Latinas/os: Identity, Law and Policy in LatCrit Theory, May 9, 1998, Miami, Florida (conference materials on file with author); see Athena D. Mutua, Shifting Bottoms and Rotating Centers: Reflections on LatCrit III and the Black/White Paradigm, 53 MIAMI L. REV. 1177 (1999) (discussing same); Phillips, supra note 11 (responding to same); Dorothy E. Roberts, BlackCrit Theory and the Problem of Essentialism, 53 MIAMI L. REV. 855 (1999); see also Elizabeth M. Iglesias, Identity, Democracy, Communicative Power, Inter/National Labor Rights and the Evolution of LatCrit Theory and Community, 53 MIAMI L. REV. 575, 622-29, 675 n.222 (discussing same); Margaret E. Montoya, Introduction: Mapping Intellectual/Political Foundations and Future SelfCritical Directions, 53 MIAMI L. REV. 1119, 1124-26 (1999) (discussing same); Francisco Valdes, Theorizing “OutCrit” Theories: Coalitional Method and Comparative Jurisprudential Experience – RaceCrits, QueerCrits and LatCrits, 53 MIAMI L. REV. 1265, 1279-85, 1311-15 (discussing same). 356 [VOL. 48:351 Freedom Now! consciousness than seemed common in the race paradigm critiques would contribute to that debate.39 Latina/o Critical Legal Studies (LatCrit) emerged from the CRT workshop and movement.40 As Francisco Valdes notes, the two legal intellectual movements are supplementary and complementary, and close, ideally favorite, cousins, mutually welcome to be present in the flesh and always mutually present in spirit.41 LatCrit is the best organized of the currently active race-conscious critical legal theory movements. It has met nine times.42 The Asian Pacific American Legal Scholarship Workshop (APALSW), which is at the center of Asian American critical legal thought, convened in 1999 and 2001.43 I am not aware of an organized Native American critical legal studies project.44 Critical Race Feminism (CRF)45 and Global Critical Race Feminism (GCRF),46 like LatCrit, emerged from the CRT movement. CRF also has roots in a Women of Color and the Law movement that preceded CRT itself becoming organized.47 Adrien Katherine Wing 39. See, e.g., Juan Perea, The Black/White Binary Paradigm of Race: Exploring the “Normal Science” of American Racial Thought, 85 CAL. L. REV. 1213 (1997). 40. Iglesias, supra note 38, at 680-85; Phillips, supra note 11; Valdes, supra note 38, at 12991300. 41. Valdes, supra note 38, at 1299 (citations and quotation marks omitted). 42. LatCrit’s convocations have resulted in many published symposia. For a list, see LatCrit Website, supra note 37. 43. The APALSWs met under Peter Kwan’s leadership and started at the same point of departure in CRT as LatCrit (workshop materials on file with author). First organized in 1993, the Conference of Asian Pacific American Law Faculty (CAPALF) incorporated in 2003 (organizational materials on file with author). CAPALF Inc.’s purposes include organizing periodic APALSWs. These organizational structures provide an institutional base for building Asian American consciousness in legal thought and legal academia (CAPALF) and critical legal theory (APALSW). 44. Some writing has engaged the “BlackCrit” concept. See, e.g., Lewis, supra note 29. However, a serious historical engagement by CRT with American colonial and national era race consciousness regarding “Indians,” and Native American anti-subordination race consciousness historically and into the present, and their relation to “law,” is very much in order. 45. CRITICAL RACE FEMINISM: A READER (Adrien Katherine Wing ed., 1997) [hereinafter CRF I]; CRITICAL RACE FEMINISM: A READER (Adrien Katherine Wing ed., 2d ed. 2003) [hereinafter CRF II]. 46. GLOBAL CRITICAL RACE FEMINISM, supra note 32; see also Smith, supra note 9 (discussing Goler Teal Butcher). 47. My first encounters with CRT adherents as a J.D. student included two early Women of Color and the Law Conferences, N.Y.U. (1989) and Stanford (1990) (conference materials on file with author). According to Chandra Mohanty, “women of color” is “a sociopolitical designation for women of African, Caribbean, Asian, Latin American and indigenous descent.” GLOBAL CRITICAL RACE FEMINISM, supra note 32, at 2. The first Women of Color and the Law conference (Yale, 1988) preceded the first CRTW (Wisconsin, 1989). Feminism was an integral part of CRT even before the formal articulation of Critical Race Feminism in the early 1990s. 2004] 357 Howard Law Journal notes that CRF and GCRF are consciously “part of [CRT].”48 The name Critical Race Feminism reflects the three intellectual traditions upon which it draws: Critical Legal Studies, Critical Race Theory,49 and Feminist Jurisprudence.50 CRF formally underwent a “global turn,” which added emphases on international and comparative law, global feminism, and postcolonial theory to the CRF project.51 There have been two national CRF conferences,52 and CRF, like CRT, emphasizes praxis.53 A number of Asian American law teachers and law students are articulating Asian American Jurisprudence.54 This is also an anti-subordination, race-conscious legal intellectual movement. Asian American Jurisprudence (AAJ), like LatCrit relative to Chicano/a and Latina/o and Caribbean Studies, is in part inspired by, but goes beyond, Asian American Studies because of its grounding in legal theory.55 AAJ shares with CRT, LatCrit Theory, and CRF both the critique of essentialism and a commitment to working against all forms of subordination. At the 2003 CRTW, I originally submitted and planned to present an unpublished article on AAJ as a post-colonial race conscious intervention in law curriculum. That article focuses in part on the curriculum component of a law student intervention on Asian American law 48. CRF I, supra note 45, at 2; CRF II, supra note 45, at 5. 49. Mutua proposed “shifting bottoms” in addition to “rotating centers” to highlight the analysis of different, multidimensional aspects of subordination in critical legal studies of race, races, and racisms. See Mutua, supra note 38. While Wing describes CRF as “feminist intervention in CRT,” GLOBAL CRITICAL RACE FEMINISM, supra note 32, at 7, I see CRF more as a change in emphasis within CRT. Cf. Angela Y. Davis, Women of Color at the Center: Selections from the Third National Conference on Women of Color and the Law, 43 STAN. L. REV. 1175 (1991). 50. CRF I, supra note 45, at 2; CRF II, supra note 45, at 4, 7; GLOBAL CRITICAL RACE FEMINISM, supra note 32, at 1. 51. The movement “draws on various theoretical and organizing traditions to help counter the egregious effects of globalization on women throughout the world and to affirm the possibility of building feminist community around struggles of poor women of color in the North and women throughout the Southern countries.” Angela Y. Davis, Foreword, GLOBAL CRITICAL RACE FEMINISM, supra note 32, at xii. 52. The first was held in Iowa in 1998 and the second at U.C. San Diego in 2000. 3 J. GENDER RACE & JUST. (1999); The Future of Intersectionality and Critical Race Feminism, 11 J. CONTEMP. LEGAL ISSUES (2001). 53. CRF I, supra note 45, at 5; CRF II, supra note 45, at 6, 7; GLOBAL CRITICAL RACE FEMINISM, supra note 32, at 6. 54. The law teachers include Professors Jerry Kang (Harvard, U.C.L.A.); Frank Wu (Columbia, Howard); Mari Matsuda (Georgetown); and Leti Volpp (American, U.C.L.A.), among several others. 55. On LatCrit, see supra notes 40-44 and accompanying text. 358 [VOL. 48:351 Freedom Now! faculty hiring and curriculum at Columbia.56 While writing that piece, I assumed that building Asian American race consciousness was a progressive tactic and a proper direction for CRT.57 The question in my panel’s title caused me to seek support, however, albeit implicitly and from Black race consciousness, for the premise about building race consciousness as a CRT project.58 Thus, in my speech, I historicized and contextualized Black consciousness about U.S. law and society to approach whether race consciousness still matters, and if so, to suggest some future directions for CRT.59 As the fiftieth anniversary of Brown v. Board of Education60 approached, examining Charles Hamilton Houston and William Henry Hastie’s work in a CRT context seemed timely. By focusing on Houston and Hastie, and further on Black nationalist and Pan-African activist intellectuals,61 I spoke about a male elite’s race consciousness.62 Since there were always “race women,” as well as men, this story is 56. It further focuses on the curriculum of the first Harvard Law AAJ class, and will appear in the Spring 2005 issue of the Michigan State Law Review. An earlier article theorizes the Columbia intervention as a CRT activist project. John Hayakawa Tor ¨ ok, ¨ The Story of “Towards Asian American Jurisprudence” and Its Implications for Latinas/os in American Law Schools, 13 BERKELEY LA RAZA L.J. 271 (2002). 57. Teaching race consciousness in a law school class is proper. See Kimberle´ Williams Crenshaw, Foreword to Towards a Race-Conscious Pedagogy in Legal Education, 11 NAT’L BLACK L.J. 1 (1989). Houston and Hastie’s legal education project against American apartheid, see infra notes 206-11, 222-26 and accompanying text, taught race consciousness. 58. Hanchard’s conceptualization of Afro-Modernity is useful here. “Afro-Modern politics are characterized by (a) a supranational formulation of people of African descent as an imagined community that is not territorially demarcated but based on the shared belief in the commonalities of Western oppression experienced by African and African-derived peoples; (b) the development of alternative political and cultural networks across national-state boundaries; and (c) an explicit critique of the uneven application of the discourses of the Enlightenment and processes of modernization by the West, along with those discourses’ attendant notions of sovereignty and citizenship.” Afro-Modernity, supra note 14, at 248. 59. Asian American Jurisprudence’s effort to advance Asian American race consciousness is one such direction. 60. 347 U.S. 483 (1954). 61. THE STRUGGLE FOR LIBERATION: FROM DU BOIS TO NYERERE (Bert J. Thomas ed., 1982) [hereinafter STRUGGLE FOR LIBERATION] and WEST, PROPHESY DELIVERANCE!, supra note 36 were particularly important for my survey. See also MANNING MARABLE, RACE, REFORM AND REBELLION: THE SECOND RECONSTRUCTION IN BLACK AMERICA 1945-1990 (2d ed. 1991) [hereinafter SECOND RECONSTRUCTION]. 62. On the female elite race consciousness, see, for exam
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