De-Segregation in the U.S.
• Declaration of Indipendence, 1776:
“We hold these truths to be self-evident, that all
men are created equal, that they are endowed
by their Creator with certain unalienable Rights,
among these are Life, Liberty and the pursuit of
Happiness.“
From “white Constitution“ to Obama‘s election
U.S. Constitution 1787
Art. I Section. 2.
Clause 3: Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Service for a Term of
Years, and excluding Indians not taxed, three fifths of all other Persons.
Art. I Section. 9.
Clause 1: The Migration or Importation of such Persons as any of the States
now existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year one thousand eight hundred and eight,
but a Tax or duty may be imposed on such Importation, not exceeding ten
dollars for each Person.
Art. I Section. 9.
Clause 3: No Person held to Service or Labour in one State, under the
Laws thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but
shall be delivered up on Claim of the Party to whom such Service or
Labour may be due.
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1st phase: acceptance of segregation
• Origins: (constitutional) compromise North and South
• Case: Dred Scott v. Sandford (1857)
• Theory of a “white nation”:
- Blacks cannot be(come) citizens of the US
- Congress cannot prohibit slavery
• US SC: constituent fathers considered
“all afro-americans as inferior beings, not of the same
dignity as the white race in social and political relations“
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2nd phase: civil war and reconstruction
• Civil war amendments: XIII.-XV. amendments
• Civil rights act (1866)
• Reconstruction act (1867)
• Voting rights for Blacks,
but the SC did not declare provisions of States
unconstitutional which deprived Blacks from their voting
rights (political question - state’s rights)
• Civil right cases (1883)
• “Separate but equal” (case Plessy v. Ferguson, 1886)
• … over 50 years for overcoming the disfranchisements
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2nd phase: … segregation continued
• Problem: State’s competency in electoral matters as
well as for registration of voters (blacks)
• Disfranchisements: creative counter-measures,
e.g. poll taxes, literacy tests and interpretation tests
• “Grandfather clause“ unconstitutional (1915), but
language test legitimate requirement for
registration
• “Minimalist“ interpretation of XIV and XV
amendments: strong limits
• Texas: “white elections“
Blacks excluded “only“ from primaries
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3rd phase: Openings
in education and redistricting
• Separate and parallel education(al facilities) are
discriminatory due to substantial effects
(case Brown v. Board of Education, 1954)
• Gerrymandering and malapportionment:
electoral districts created with strange shapes,
in order to exclude (but also to include)
specific groups of persons
(or for obtaining political results)
• Continues until today
• “Hands off policy”
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4th phase: 1960’s
• “Hands-off “ policy
overcome by SC (Warren) in 1960’s
• Civil Rights Act (1964) and Voting Rights Act (1965)
• Substantial equality and promotion of positive actions
• Change in tendency: case Bakke, 1977
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Strict Scrutiny Test (US SC)
I. Suspect classifications - strict scrutiny
a) compelling public interest
b) narrow tailoring test
(1) absolute proportionality
(2) suitibility of instruments
(3) reasonableness
II. Quasi-suspect classifications - intermediate scrutiny
a) important public interest
b) instrument closely related
III. Rational basis test for non-suspect classifications
a) legitimate public interest
b) rationally related instrument
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5th phase: return towards formal equality
Electoral Districts:
•
“Three-pronged test” (1986)
•
Subsequent tendency of excluding racial gerrymandering
as an instrument of political exclusion or inclusion
(case Shaw v. Reno, 1993)
•
After that judgment, racial gerrymandering has been
(more or less) abandoned, but continues on political level (“redistricting”)
Education:
limit: quotas (race decisive criterion?); no logic of reparation
• Grutter v. Bollinger (2003)
• Gratz v. Bollinger (2003)
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US de-segregation
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