- Kendall is, among many
things, my first teacher
of constitutional law, and
as breathtakingly brilliant
as that class was, I've just
now found myself wishing
there were rather more singing in it too.
(audience laughs)
Well, good evening.
I am Trevor Morrison and I'm
the Dean of the law school here
and welcome to the 24th
annual Derrick Bell Lecture
on Race in American Society.
This lecture is among the
most important annual events
that we hold at NYU Law,
and one that we eagerly
anticipate each year.
We are delighted to see so many
of Derrick's family members
and friends here.
We're especially honored
to be joined by his widow,
Dr. Janet Dewart Bell, and sons
Carter and Derrick Bell III.
Derrick had a profound
impact on this law school,
and indeed on the law
and society more broadly,
and I know that many of you here tonight
can attest directly to that.
He was a singular and
tremendous figure in the law.
His leadership as a scholar and a teacher
and an activist help to foster
dialogue on the progress,
or lack of progress, in racial
reform in the United States.
His steadfast sense of
integrity permeated every phase
of his celebrated career
from his early role
as the only African American
among hundreds of lawyers
working in the Civil Rights Division
of the Department of
Justice to his role at NACCP
Legal Defense and Education
Fund under Thurgood Marshall.
We are grateful that Derrick,
ultimately, and eventually
chose NYU law as his academic home,
where he was deeply admired
by students and faculty
and administrators alike.
Hundreds, indeed thousands
of members of our community
counted him as their teacher.
In 2012 he was posthumously
awarded the law school's
Podell Distinguished Teaching
Award for his outstanding
achievements as a teacher
of constitutional law,
which is just one of the
innumerable examples I could list
of his well deserved honors,
and tonight we gather to
celebrate and carry forward
Derrick's extraordinary legacy
and to continue to expand
the work that he set
forth for racial reform
in the United States.
Now in the past several years,
this lecture has been offered
in Tishman Auditorium along the way,
which is under renovation this fall,
but it's a special pleasure this evening
to be able to host the
lecture in this room
and to see the Derrick has joined us
now that his portrait is here
hanging in Greenberg Lounge,
and so for that reason, among many others,
he is with us tonight.
(audience applauds)
The mission of this lecture
series is ambitious.
It's to examine the role of
race in American society.
It has served as an important
platform for leading scholars
and lawyers and activists to
share their thoughts and work
on racial justice and civil rights.
And in a short while,
Professor Kenneth Mack of
Harvard University will
present this year's lecture,
"Race, Violence and the Word:
Living in Uncertain Times."
Professor Mack will be introduced
formally in just a moment
by Vincent Southerland, the
Executive Director of our
Center on Race, Inequality and the Law.
The center itself expands
and builds upon the framework
that Derrick left at the law school.
It is an interdisciplinary
center that offers courses
and serves as a resource
for those whose scholarship
addresses subjects related to race,
ethnicity and inequality.
The center support students
in that work as well,
and I think is an aspect
of the carrying forward
of Derrick Bell's vision
here at the law school
and I'm very grateful to
Vincent for his leadership
of the center along with the leadership
of the two faculty co-directors,
Deborah Archer and Tony Thompson.
Now before I complete my work here
by introducing Dr. Janet
Bell, I want to take a moment
to note that we are
dedicating this year's lecture
to Professor Charles Ogletree,
who was the inaugural Bell lecturer.
As many of you may know,
his Alzheimer's is entering
an advanced stage and we are
keeping Professor Ogletree
and his family very much in
our thoughts this evening.
Now I'd like to introduce Dr. Janet Bell,
who has been an important
member and leader
of our law school
community for many years.
In fact, the Derrick Bell
Lecture Series was Janet's idea,
conceived as a gift for
Derrick 65th birthday.
What an idea that was and
what a gift it continues to be
to us here at the law school.
It's not surprising that
Janet would think up
such a compelling event
given her own professional
and personal commitment to
education, public engagement,
racial justice and equal rights.
We are so grateful, Janet
to have you as part of
our community, and that you
were here with us tonight.
Please will you all join me
in welcoming Dr. Janet Bell?
(audience applauds)
- Good evening everyone.
I should start by saying, number one,
how much Derrick loved this law school.
You know, he taught several places,
but this was his favorite
place, to which he has given
his archives and his heart and his soul.
I'm so glad that we're
dedicating this lecture
to Charles Ogletree, who
was one of his students,
and who is the leader in the
same field that Derrick was,
and also to Pam Ogletree.
You know, Derrick believed in partnership
and he believed in a loving relationship
and if some of you saw
that article recently about
Charles and Pam Ogletree,
you can't read Charles
without reading Pam,
and so this is dedicated to her as well.
I want to thank Dean Morrison
who, when he came here
a number of years ago, after
I was here, Dean Morrison,
not on faculty of course,
but as a volunteer,
I used to call him our baby Dean.
I'm not doing that anymore.
He's a teenage Dean.
(audience laughs)
He has been such a
wonderful person in terms of
personal support and
institutional support,
and he's absolutely been
gracious and I just have learned
so much to respect him and to love him.
Thank you, Trevor Morrison.
(audience applauds)
Derrick lived to teach and
teaching kept him alive.
He taught the week before he died.
He just wanted to get
that one last class in.
But for him, it was always students first.
That was a mantra, and
it still is a mantra
in our household.
I say in the universal encyclopedia,
his portrait is next to the word mentor.
For him, there was no
higher calling than teacher.
It is always gratifying
and humbling the students
who never met him in person
are very much his students
continuing to carry on his work
with integrity and dedication.
I too want to acknowledge
the three Bell sons,
two of whom are here
tonight, Derrick Bell III,
Douglass Dubois Bell,
and Carter Robison Bell.
Some of you got the
significance of those names.
(audience laughs)
As the family wit, Carter notes
that he really has three last names,
Carter being in honor of Derrick's mentor,
Robert L. Carter and his wife, Gloria.
I'd also like to acknowledge
our adopted daughters
who are here tonight, Lisa
Marie Boykin, class of '95
here at NYU, and Lisa
Jones Mack, who's there
and who is also the wife
of our speaker tonight,
so this is a family affair and
you're welcome to the party.
(audience laughs)
And I also want to, as I
always do, lift up the memory
of Derrick's first
wife, a phenomenal woman
whom I never met.
I met Derrick after
Jewel Hairston Bell died.
As partners, she and
Derrick set a standard
that we all should aim for.
Now, 24 years ago, a ragtag
group of people decided
that we would have something
to honor Derrick 65th birthday,
and I thought, oh, a
lecture would be good,
and Derrick said no, no
one's going to come to it.
Well, after about the second or third year
he realized that it was a really good idea
and he tried to take over, but
I wouldn't let him do that.
I told him he was not on the committee,
so you can imagine having that
argument with Derrick Bell,
but the people who actually established it
were with Judge Robert L. Carter,
the late Paulette Jones Robinson as well
and Valerie Cavanaugh and William Cursted
who helped give us seed
money for the first one.
They're here from California,
as they come every year,
and I see that Valerie and
Bill represent an illustrious
and fierce group of social
justice and legal advocates
and stop being shy, stand up
so people see who you are.
(audience applauds)
And then there is Alice
Young, who is one of Derrick's
first students at Harvard.
She, along with Harvard
professor and Bell student
Charles Ogletree helped start this series
and helped endow this series.
There have been recent assists
from Lewis and Kitty Steele
who are in the audience, so
wave so people know who you are.
(audience applauds)
From Nina and Ted Wells
and for many others.
The Bell lectures have
been consistently wonderful
and have moved the issue of race along.
When we started 24 years
ago, people thought,
put a check mark, that that
talk about race was done.
Derrick knew it wasn't done.
We knew it wasn't done.
We knew that was something
we had to do every day,
that the price of freedom
is eternal vigilance
and that freedom is not free.
(audience applauds)
I want to thank the support
of the previous Deans,
John Sexton who's the University President
and a Bell student at Harvard,
as well as Ricky Revesz.
I'd like to thank too the Law
Alumni of Color Association,
LACA, and its President
Rafiq Kalam Id-Din.
In addition to the archives
and that wonderful portrait there,
there is a bench in the courtyard
that's named after Derrick
so please those of you who
want to film it, Revolution,
please go sit there and
enjoy some time there.
It's my pleasure to also
introduce the person
who is so modest, and he
is the faculty liaison
for the Bell lecture since Derrick died
and he's been with me
every step of the way.
I could not do this without Randy Hertz.
(audience applauds)
As students loved Derrick,
they love Randy Hertz
because he's always student focused.
So Derrick, you know, loved
music, and on every Bell program
there's music, so you heard the choir,
The First Presbyterian
Church Choir of Brooklyn,
where we attended,
and they also sang at
Derrick's memorial service.
And so before we do the
Stevie Wonder version
of "Happy Birthday," those of
you, so warm up your pipes,
we're going to do that.
I'm going to introduce Vincent Southerland
and then we will do the Happy Birthday.
By the way, the day is November 6th.
That's Derrick's actual birthday.
It's also, a friend of mine
sent me something today,
David Goodman, whose
brother was Andrew Goodman.
Goodman, Schwerner and Cheney,
who were killed in 1964 in Mississippi.
And this is, Mickey, Michael
Schwerner's birthday too
and I want to lift him up as well,
because the social justice
movement is interconnected,
it's diverse and we all
need to support each other
and love each other through all of this.
Vincent, such a pleasure to meet you.
And he joined the Center on
Race Inequality and the Law
as its inaugural Executive
Director in February, 2017.
He has dedicated his career
to advancing racial justice
and civil rights.
He came to NYU Law after serving as
Assistant Federal Public Defender
with the Federal Defenders
for the Southern District of New York.
Prior to his time at
the Federal Defenders,
Vincent and spent seven years at
the NAACP Legal Defense
and Educational Fund,
where he was a senior counsel.
While at LDF he engaged
in litigation and advocacy
at the intersection of
race and criminal justice,
including the successful representation
of death sentence prisoners
across the American South
and juveniles sentenced to life
imprisonment without parole.
He also led LDF's advocacy
efforts around race and policing
and was lead counsel
in school desegregation
and employment discrimination matters.
He's clearly is a stellar
scholar in his own right,
and I'm so happy that the Bell
lecture, which is now a part
of the Center on Race
and Equality in the Law,
and it couldn't be under better care
than under Vincent Sutherland
and Tony Thompson and Debra.
Thank you.
So I appreciate all that people are doing.
Now, back to the music bit.
Every year, we sing Happy
Birthday, and every year
we sing the Stevie Wonder version.
(piano music)
So Kendall Thomas, who is a professor
and who also shows you that
there's life beyond law,
because he's a great singer,
as you've heard tonight,
is really going to do this with me
and he's going to lead this,
and I want you all to join me
in celebration of Derrick's
life of meaning and worth.
So, Professor Kendall.
- ♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday to you ♪
♪ Happy birthday to you ♪
♪ Happy birthday ♪
♪ Happy birthday to you ♪
♪ Happy birthday to you ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday ♪
♪ Happy birthday to you ♪
♪ Happy birthday to you ♪
♪ Happy birthday ♪
(audience applauds)
- A lot of tough acts to follow there.
So I want to start by
thanking Kelly Spencer
and his staff at
the Office of the Development
and Alumni Relations
for all the incredible work they've done
to make this evening happen.
(audience applauds)
And before I get to the task at hand,
which is to introduce tonight's lecturer,
allow me to tell you a little bit about
the Center on Race,
Inequality and the Law.
The research, public education
and advocacy in all its forms
we work to confront the
laws, policies and practices
that oppress and
marginalize people of color.
We do so with a particular
focus on shaping the discourse
on and raising our collective
consciousness about
race and inequality in America.
Overhauling a criminal legal
system that has conflated race
with criminality and confused
harsh punishment with justice.
Addressing the racial justice
implications of technologies
at work and the systems
that govern our lives.
In fighting against
the forces that produce
racial segregation and
castrate economic disadvantage
in communities of color.
Most fundamentally, as you heard,
we strive to put into practice
the lessons of Derrick Bell's
teaching and scholarship,
and work to infuse those
touched by the law and legal
education with an understanding
of race and inequality in America.
I have the distinct honor of
introducing tonight's lecturer
Kenneth Mack to deliver his lecture,
"Race, Violence and the Word:
Living in Uncertain Times."
It often feels like the only thing
that we can be sure of
today is the uncertainty
that awaits us every day when we wake up.
I cannot wait to hear what I know will be
a dynamic, insightful
and enlightening lecture
from Professor Mack, one that
I'm sure will help all of us
make a little bit of sense
out of that ucertainly.
But before we get there,
let me tell you a little bit
about our distinguished guest.
Kenneth Mack grew up in
Harrisburg, Pennsylvania.
He earned an undergraduate
degree in electrical engineering
from the Jacksonville University.
Upon graduation, he began
working as an electrical engineer
at Bell Laboratories, where
he designed computer chips.
The law called and
Kenneth Mack switch gears.
See did their telephone joke
and an engineering joke?
(audience laughs)
Wait for it.
And followed his true passion,
enrolling in Harvard Law
School, where he was classmates
and friends with my
President, Barack Obama.
After earning his law
degree Kenneth, clerked
for the legendary Judge Robert L. Carter
here in the Southern District of New York,
spent a few years as an associate
at Covington and Burling
and then went on to earn his Master's
and PhD in history from Princeton.
He began a stellar career in legal academy
with his appointment at Harvard Law School
nearly two decades ago, and
over the course of that career
he has produced a prolific scholarship.
He is the author of two
critically acclaimed books,
has published extensively in
the most respected law journals
and publications in the nation,
and I could spend an hour
listing all of his lectures,
articles, interviews
and professional accolades.
He's also taught at Stanford,
Georgetown University
and the University of Hawaii and served
as a senior visiting scholar at
the Center for History and Economics
at Cambridge University.
Simply put, Kenneth is
your favorite scholar's
favorite scholar.
And what has all that
scholarship, all that work
been about?
Race and the law?
Yes, of course.
But more than that, it's been
about the broad transformative
social goals of movements for
racial justice and equality,
interplay between race relations
politics and economic life,
and all done through the lens of history.
James Baldwin reminds us that
the great force of history
comes from the fact that
we carry it within us,
are unconsciously controlled
by it in many ways.
History is literally
present in all that we do.
It is with that understanding
that Kenneth Mack
has shaped a generation,
helping to chart a path forward
for all of us as we confront
the racial justice challenges
of the 21st century and beyond.
And beyond all that, I know
he's a phenomenal father
and a wonderful husband.
Seeing the love in his children
and his wife's eyes tonight
tells you all need to
know about Professor Mack.
And so it's a great honor for
me to welcome him to the stage
as he adds another chapter
an incredibly storied career
by delivering this year's
Derrick Bell Lecture.
Please join me in welcoming
Professor Kenneth Mack.
(audience applauds)
- Thank you Professor
Southerland for the introduction
that I hope I deserve.
Thank you to the selection committee
for the Derrick Bell Lecture
for honoring me this year.
Thank you to New York University.
Thank you to Janet Dewart Bell
for your friendship and support.
Thank you to various friends, colleagues
and my family for attending.
As many of you know, Derrick Bell
was my constitutional law professor.
In fact, I was in the last
class that Derrick taught
for credit before taking
his famous leave of absence
from Harvard Law School.
And I was there with my
friend, Rebecca Hylade,
who I think is in the audience today.
I came to know Derrick
better in later years,
largely because he was a beloved mentor,
as has been already mentioned,
to my wife Lisa Jones.
And of course, I'm deeply
honored to be teaching
at Derrick's former institution,
where I pass his photograph
every day in Wasserstein Hall
on my way to teach my classes.
I'm also honored to be
delivering a lecture
that this year honors
Charles and Pamela Ogletree,
people who also made a great
difference in my own life.
Okay, I'm humbled to give this lecture.
In August of 2014, protests
broke out in Ferguson, Missouri
following the shooting death
of an African American youth
named Michael Brown by Darren Wilson,
a local police officer.
They quickly spread across the country
and through the tendrils of social media,
bringing one era of racial
politics to a close.
The protest and the
movement for black lives
that they sparked book
ended the period that lasted
almost exactly 10 years,
beginning with the emergence
of Barack Obama as a national figure.
Obama's meteoric ascent to the presidency
had a source in his own professed politics
of racial empathy.
The claim that politics could be organized
around the fundamental
need to see the world
through the eyes of
others, and in particular,
to see it across the fundamental
political divide of race.
But the new movement activists
describe a radically
different world than Obama's,
one that systematically discounted
the values of black lives,
and which government
at all levels was complicit
in racial violence.
The new movement birthed a
new confrontational style
of activism and indeed a new
way of talking about race
where conversations about
racial inequality must confront
the continuing specter of violence.
It's now been over five years
after that moment of inflection,
and it seems abundantly
clear that we live in a world
where we can almost talk about
racial violence in shorthand.
All I have to do is
recite a list of names.
Eric Garner, Freddie Gray, Tamir Rice,
Laquan McDonald and of
course, Michael Brown,
that serve as a marker for
what I'm talking about.
I could recite another list of names,
lesser known names.
Michelle Cusseaux, Tanisha
Anderson, Aura Rosser
and Meagan Hockaday.
As the legal scholar
Kimberle Crenshaw reminds us,
names of women of color
who evoke the public
and private violence, often perpetuated
against racial minorities that
seems endemic to our times.
I can invoke
the Mother Emanuel African
Methodist Episcopal Church
in South Carolina, or even
the Tree of Life congregation
in Pittsburgh.
I can invoke the names of
political leaders and their allies
in the media, both in the United States
and in other countries, who
regularly portray immigrants
and refugees as part of an alien invasion,
and then have their rhetoric parroted
by the purveyors of violence.
Indeed, violence is the language of race
is now so commonplace
a theme, we might say
that there's a new literature,
a new set of scholarship
that places it at the center
of the American narrative.
The poet and essayist Claudia
Rankine, for instance,
asked whether the condition of black life
is one of mourning, citing
the daily strain of knowing
that as a black person, you can be killed
for simply being black, and
knowing that none of us,
at least none of us who can
claim to be marked as racial,
ethnic or religious
outsiders, is immune from it.
Over the last decade
or so, a spate of books
have emerged with titles
like, "Mourning in America."
And when I say mourning I mean, mourning.
"Mourning in America: Race
and the Politics of Loss."
"They Left Great Marks on Me:
"African American Testimonies
of Racial Violence
"from Emancipation to World War I."
"Killing African Americans:
Police and Vigilante Violence
"as a Racial Control Mechanism."
And "The New Worlds of Violence:
"Cultures and Conquests in
the Early American Southeast."
Perhaps future historians
will make some sense of it all
as an emergence of a new
canon of racial violence.
For my topic today, I'd
like to ask the question,
what does all of this have to do with law?
Of course, the conventional
view of the legal system
is that it is the antithesis
of what I'm talking about.
To cite the popular
interpretation of the work
of the great sociologist Max Weber,
what law means is that
the state has a monopoly
on legitimate violence.
We vest the state with
the ability to coerce
and punish precisely so we
don't do it to each other.
And whatever violence the state does
in the process of coercing and
punishing us is constituted
and constrained by law,
generalizable rules
that have reasons to back them up.
With regard to race, our
most famous charter of law
is of course the 14th Amendment
of the United States Constitution,
and in particular its
citizenship, due process
and equal protection
clauses, which brought many,
although not all, previously
excluded racial groups
within the bounds of law
or discipline the violence
that might be applied to them.
On this account, the
world of racial violence
that has suddenly come into
view over the past five years
is contrary to how law
should be functioning.
And as we will see, in
practice the 14th amendment
was a charter protecting
against racial violence,
but was applied unevenly.
It protects us far less
than we might imagine,
but perhaps it's still true that the law
should be protecting us,
particularly outsiders,
from both public and private violence,
rather than doing the opposite.
And our job should be to
do the necessary political,
legal and organizing work
to make the legal system
do what it should be doing.
Now, there's another, second
view of the relationship
between law and racial
violence that might explain
where we are right now.
And to encapsulate that second view,
I'd like to turn to the work
of someone I know and respect,
someone who's actually given this lecture.
The legal scholar Paul Butler.
Butler, in his 2017 book entitled
"Chokehold: Policing Black
Men," which itself is part
of the post-Ferguson
literature on racial violence,
focuses on policing and racial violence,
and he argues that the by
now well known instances
of police violence against
black men are not the exception,
or in any way aberrational, but in fact,
are the way the system
is supposed to work.
The work of the police is
to preserve law and order,
Butler argues, including the racial order.
Throughout American history,
from slavery to Jim Crow
to the civil rights movement
to today, Butler asserts,
"There have always been legal ways
"to keep black people down."
In Butler's account, the
violence that the law does
or does not fail to prevent
is simply a manifestation
of that larger racial order
and the need to define
certain groups of people
as being at the core
of the American project
and others as outsiders.
So we have two views of
the relationship between
law and racial violence.
One account where law is
the means of disciplining
racial violence, and another
where violence is just a tool
that the legal system employs to maintain
the existing racial order.
And after the events of
the past half a decade,
I must confess, most of my
students are more sympathetic
to the second view than the first.
But I'd like to offer
a more complicated view
of the relationship or the
question of law and violence
in the task in front of us,
and for that I'd like to turn to the work
of the late legal scholar, Robert Cover
and his famous essay,
which supplied the title
for my lecture today,
"Violence and the Word."
Originally published in
1986, just two years after
its author's own untimely death,
Cover's text is famous for its evocative
and disturbing first line.
"Legal interpretation," Cover argues,
"takes place on a field
of pain and death."
"Pain and death and
violence," Cover argued,
"are not antithetical to how law works,
"but rather are at its core."
Cover was a law professor at Yale.
And he was a professor,
and he was a person who had
his own set of experiences
with pain and violence.
Like many white progressive
scholars of his day,
Cover had gone south during
the Civil Rights Movement,
and that experience became
a turning point in his life.
He spent three weeks in jail in Georgia,
where he went on a hunger
strike and suffered beatings
at the hands of other prisoners.
Although, of course, Cover
was undoubtedly aware
that his own privileges of
race and class shielded him
from the type of violence
that daily threaten
the lives of African
Americans in the south.
Cover was deeply affected
also by the Vietnam War
and by what he viewed as judicial rulings
that legitimated what he thought of
as a violent and immoral war.
And he wrote a book
about anti-slavery judges
inspired by that experience.
And he was deeply worried
about outsider traditions
in American life, traditions
that he derived from Jewish law
and the experiences of African Americans
and Mormon dissenters
and the cultural violence
with which the law
sometimes suppresses them.
So what did Cover mean when he said
that the core narrative
of law was pain and death?
Cover focused on criminal law,
although he admitted
that his idea might apply
to other areas of law as well,
and argued that when judges
interpret law, somebody loses his freedom,
his property, his children, even his life.
Of course, we can offer
reasons that seem to justify
these losses, but our losses
are simply what Cover called
justifications for violence
which has already occurred
or which is about to occur.
When the legal system is
done with its violence it,
as Cover argued, frequently
leaves behind victims
whose lives have been torn
apart by these organized
social practices of violence,
and victims who can never fully understand
the violence being done to them,
and who can only feel the fear and pain
that is being imposed.
In Cover's estimation,
what law did to those
upon whom it visited
it was to silence them
and to inflict upon them a
form of suffering and pain
that was literally impossible to describe.
Now, much of what Cover has to say
might sound a bit like the second view
of the relationship between
law and racial violence
that I outlined previously.
Because Cover's tale of
losing one's freedom,
one's property, one's
children or even one's life
or his story of people whose
lives have been torn apart
by the pain the legal
system it visits upon them
might sound familiar.
In recent years, such accounts have become
quite familiar to us.
In fact, one of my former
students started something
called the SC Justice
Group, which provides
peer support services to women
with incarcerated loved ones.
It turned out, my student figured out,
that one in every four women in America
has a loved one who has some relationship
with the system of incarceration,
and one in every two black women.
Astounding numbers.
Incarceration, it turns
out, visits its pain
not only upon those in jail,
but devastates entire families,
and it's doing this to a
vast number of Americans.
But Cover framed the
question of law's violence
as a moral question.
Cover's really concerned
about the question
of how the legal system
can do immoral things.
These are precisely the kinds of questions
that someone like Butler
would put to the side.
For instance, Butler argues that,
"We might care about police
shootings of black men
"as a moral issue," but he says,
"but honestly, many people
will not give a damn
"for those reasons."
"We should put moral questions
to the side," he argues,
"for they're simply of no
use in the instrumental work
"of swaying the larger public."
And Butler himself has
become a prison abolitionist,
one of the growing movement
of people who wants to imagine
a world without prisons, not
as part of some utopian future,
but as something we might work for
and get to in the near future.
And part of the work of getting there
would be a radical rebooting of the system
of criminal justice in order
to make it into something
that it's never been, according to Butler,
something other than a prop
for the existing racial order.
Now for Cover, the
problem of law's violence
is different than this,
and in many ways deeper
and more intractable.
Cover's arguing that as long
as we have a legal system
"that declares winners and losers,
"a system that punishes and
delivers pain of some sort,
"we have a system that
is based on violence,
"and we also have the moral question
"about how to justify that violence."
And what law does so often, he argues,
"is to deflect these moral questions
"and to turn them into something else,
"something that makes
the system more palatable
"to the purveyors of law's violence."
Now, from our perspective
decades after Cover wrote this
in the mid 1980s, it's
apparent that there's silences
in his famous narrative of the violence
of the American legal order.
First and foremost, the victims are silent
in Cover's account.
Indeed for Cover, the horror
of law's violence is so acute
that its victims simply
have no language with which
to express their views of it,
at least not any language which would be
cognizable within the legal order.
Indeed, Cover likened the
victims of such violence
to Christian or Jewish martyrs,
who simply feel the pain
and have to persevere.
If victims speak, according
to Cover's account,
it is on other terms than those of
the mainstream legal order,
and the larger society
simply cannot hear them.
Yet we might note, despite this
silence in Cover's account,
that in the past decade
and indeed long before,
the victims of law's
violence, its racial violence,
even unspeakable violence,
have begun to speak out.
Take for instance, Albert Woodfox,
whose account of his more than 40 years
in solitary confinement, limited
to a six foot by nine foot
windowless cell in Louisiana,
longer than any other person
in American history, has been shortlisted
for this year's National Book Award.
During his time in prison,
Woodfox and his supporters
dubbed him and two
others who spent decades
in isolation there the Angola Three.
Now, in theory, solitary
confinement, you know,
Woodfox is in solitary
confinement for 40 years,
solitary confinement is
supposed to be temporary,
a limited disciplinary measure
unrelated to one's sentence.
But Woodfox had been convicted
on allegedly manufactured
evidence for a crime
he probably did not commit,
the 1972 murder of a
white corrections officer.
Local whites certainly seemed to have
had it in for him since that moment.
His conviction was
overturned more than once,
but even decades later, local authorities
would simply keep re-indicting him
and re-convicting him for the murder.
At his trials, prosecutors openly relied
on his black nationalist political beliefs
to secure his convictions.
For someone who believed
in Black Pantherism,
as the prison warden
described Woodfox's worldview,
there is no rehabilitation.
These are the words of the
warden of Woodfox's prison.
And instead, what the legal
system had done to him was to
punish and punish and punish
until presumably he died,
yet Woodfox has been able to speak
after his release from prison in 2016,
and on terms the larger
society is willing to hear.
In fact, he spoke at my own
institution, Harvard Law School
not long after his release from prison.
Now the second great
silence in Cover's narrative
concerned race, and that silence
is more difficult to explain.
Cover's essay was all about what law,
often the criminal law, does
to those on the receiving end
of its force, although he
never talks about race.
Clearly, he was thinking of it.
His formative experience
with law was the violence
that had been visited upon
him and on black southerners
during the Civil Rights Movement.
Part of Cover's project
was to get us to see law
from the perspective of the disempowered,
those on the receiving
end of the legal system,
losers in legal conflicts.
The legal scholar Patricia
Williams reminds us
that when law teachers and professors
talk about the disempowered,
those in the receiving end
of the law, they are
nearly always talking about
racial minorities, women and children.
But for some reason, Cover
didn't mention explicitly
what he must have been thinking about:
the violence of the legal system,
most prominently the criminal law
that other parts of the system
visits upon racial minorities.
So despite its two great silences,
I think that Cover's account
might have something to add
to our project of grappling
with racial violence in the law,
for Cover framed the question
of violence in the law
as an intractable one,
inexplicable from the nature
of what we do when we
apply the techniques of law
in a way that causes pain and death.
He argued that everyone
involved in the justice system
is implicated in the
system of legal violence
and that much of what the system does
is to deflect the moral
consequences of this fact,
that law is violence, and to
allow those who participate
in the system to get on
with their lives without
directly confronting the moral
consequences of their acts.
So, in spite of it
silences, Cover's account
might have something to
say about racial violence
and its long history in America,
something that might speak
to our own movement, and to explain this,
I'm going to have to start with a question
of what it might be to
be outside the system,
outside the commands
of law, violent or not
and to be among the disempowered,
those whom Cover himself
thought might not really be able
to be heard amidst the suffering
and death that law imposes,
for there are many who imagine that given
the racial inequality that law
imposes, it might be better
to imagine someplace outside the system,
and perhaps even to abolish the system,
in the interest of racial
minorities in particular.
There is in fact a left
version and a right version
of this argument.
And to better illustrate what I mean here,
I want to start with
the historical example
that took place in my hometown,
Harrisburg, Pennsylvania.
It involves the great African
American formerly enslaved
abolitionist Frederick Douglass
and a speech that he gave,
or at least tried to give,
in Harrisburg in 1847.
As many of you know, by that time Douglass
was the most famous black man in America.
He had escaped from slavery,
penned an autobiography
recounting his years in
bondage and affiliated himself
with leading American abolitionist
William Lloyd Garrison.
Garrison found slavery so
morally repugnant that he argued
that abolitionists should
refuse to have anything to do
with the political and legal
system that sanctioned it.
Indeed, when Douglass
spoke at Harrisburg in 1847
alongside Garrison
himself, it was in favor
of a Garrisonian concept
he called disunion.
Now, disunion meant exactly
what it sounds like.
That true abolitionists should
argue for the dissolution
of the American nation itself,
for it was better to be
without the protections
of national law than to affiliate
oneself with legal system
that was complicit in the violence
and death imposed by slavery.
Now, it was one thing
for a white abolitionist
like Garrison to take such
a position, but it was
quite another for a black man
such as Douglass to do so,
as the two of them found out
just as they started speaking
in front of a hostile crowd
in Harrisburg's courthouse.
And here I'm relying on
the account of my friend
David Blight and his recent
award winning biography
of Douglass.
Garrison spoke for about an hour,
launching into a
disquisition about disunion
without much incident.
But when Douglass rose to speak
it only took a minute or two
for the crowd to start
throwing rotten eggs, rocks,
and brickbats.
Soon, Garrison and Douglass
were being pelted with eggs.
A rock just missed Douglass's head.
The crowd started screaming,
throw that n-word out!
Fearing for their safety,
the men locked arms
with a group of black men in attendance
and in a scrum, forced their
way through the front door.
But Douglass's ordeal was not done,
for his next speaking
stop was in Pittsburgh,
and to get there he had
to take a stagecoach
over the Allegheny Mountains,
stopping in small towns
along the way for food and shelter.
Along the way, Douglass was often denied
both food and shelter and all
along the way he encountered
what he called, "brutal
insults and outrageous,
"violent encounters upon the road."
Now, there was a legal precedent
that stretched all the way
back to England which said what
were called common callings,
people who offered food
and lodgings to travelers
along the road, were
supposed to serve all comers.
But Douglass was a black
man and the protections
of Pennsylvania law were not for him.
He often couldn't get anyone to serve him
or sell him food along the way,
and he arrived in Pittsburgh
having not eaten anything
for two entire days.
And after he arrived and finally been fed
by local African Americans,
he was once again supposed
to endorse the principal
of disunion and separation
from the racist American legal system.
Now, most of you know how this story ends.
Douglass would eventually
break from Garrisonianism
and would fully affiliated himself
with the American legal
and constitutional order.
He famously read the American Constitution
to be an anti-slavery document,
rather than a pro slavery document.
To conclude that the legal
orders, suffused as it was
with racial violence, as Douglass knew
from brutal experience, merely
reflected racial oppression
and did nothing else, was untenable.
There was plenty of racial violence
embedded in the legal
system, Douglass knew.
After all, he was a
fugitive slave and subject
to violent capture and return
to bondage at any moment.
At least, until his supporters
finally purchased his freedom
from his former master's family.
There was little protection for Douglass
from law's violence.
But despite that, for him,
it was better to be inside
that system, racist or not, than out.
Douglass's friend and
sometimes rival, a black lawyer
named John Mercer Langston,
largely traveled the same path.
Although in Langston's
case the starting point
was black nationalism
rather than Garrisoninanism.
Langston lived in a
state that was so racist
that he had to pretend he
was white in order to vote
and to be admitted to the bar.
That state was Ohio.
Ohio was one of a number
of Midwestern states
that enacted the notorious Black Laws,
that among other things, excluded
its free black population
from the voting booth, jury service,
testifying against
whites, the state militia,
and the public schools.
The state had been a haven
for African Americans
who had escaped from slavery,
as readers of the late
Toni Morrison's novel
"Beloved" now know well.
And white Ohioans did
their best to exclude
the black populace from
the protection of law.
In 1836, for instance, a
mob of whites moved into
the black section of
Cleveland, burned part of it
and forced many of its black
residents to flee their homes.
Langston still was relatively
lucky, for he was the son
of a white Virginia slave owner
and a formerly enslaved
woman named Lucy Langston.
He also happened to be the great uncle
of the poet Langston Hughes.
By the early 1850s, he grew so discouraged
with the prospect of
getting any protection
under the laws of Ohio,
that for the first half
of the decade, he flirted
with leaving the United States
for a place like Haiti, where black people
could set up their own
republic and be governed
by their own non-racist laws.
But he had an epiphany in 1854
in the middle of his studies for the bar.
At a black immigration
conference in Cleveland,
he declared publicly that
America's Constitution
and its Declaration of
Independence were for freedom
and he told us black
listeners that he intended
to "work out my destiny
in Lorain County, Ohio,"
to which later, he would
be admitted to the bar,
although, as I mentioned previously,
he had to ask the court to
admit him as a white man
because they didn't admit
black people into the bar.
Still, even as a practicing lawyer,
violence always lurked around the corner
for someone like him.
When he came to court, Langston never knew
whether he would have to back
up his words with his fists.
On one occasion, he was
hauled before a grand jury
after getting into a fistfight
with his opposing counsel.
Fortunately for him, the
jury refused to indict him
and Langston eventually
rose to the presidency
of the Equal Rights
League, the first national
African American civil
rights organization, in 1864.
In fact, at a speech at
the Equal Rights League
Convention in Syracuse, New York,
where he was elected President
of this African American organization,
was one where he demanded
the protections of law.
"The Negro demands
absolute legal equality,"
Langston argued, "Rights to
bring suit, to be a witness,
"to make contracts, to acquire,
hold and transmit property,
"to be liable to none
other than the common
"and usual punishment,
trial by a jury of his peers
"and to the free and
untrammeled use of the ballot."
Now both Langston and
Douglass would eventually
get their wish, not only
the abolition of slavery,
but a charter of freedom
and citizenship bringing
African Americans fully into
the ambit of American law
in the form of the 14th Amendment.
Our conventional story of where
the 14th Amendment came from
focuses on the amendment as an
antidote to the Black Codes,
the post-emancipation Southern
laws that tried to reduce
freed slaves to a condition as
close to slavery as possible.
But here, I'd like to
emphasize another impetus
behind the choice of Congress
to draft the 14th Amendment
and the choice of Americans to ratify it.
For many Americans, the 14th
Amendment was a response
to racial violence.
And here, I'd like to
recommend my colleague
Henry Louis Gates's his
recent book, "Stony the Road:
"Reconstruction, White Supremacy
and the rise of Jim Crow,"
yet another entry in our
seemingly endless catalog
of recent works that have
framed racial violence
as a core theme of American history.
For instance, there were
the Memphis Riots of 1866,
where between May 1st and 3rd,
1866, which happened to be
the same week that Congress
began to consider the provision
that would become section
one of the 14th Amendment,
which contains, of course,
the citizenship clause.
The Memphis Riot of 1866
involved a confrontation
between African Americans
and police officers,
which would be a recurring
theme in the violent history
of the 14th Amendment.
Specifically, it began with
a confrontation between
de-mobilized Black Union troops
and local police officers
in the context of repeated complaints
about police brutality.
Mobs of local whites,
about a quarter of whom
were local police
officers and firefighters,
enraged at the sight of black troops,
proceeded to murder 46
local African Americans
and burned 89 of their homes.
And then the following months,
there was the New Orleans Riot of 1866,
where a white supremacist mob
attacked a political gathering
where black residents were
gathering and organizing
in advance on the state
Constitutional Convention,
and the mob killed more than 35 of them.
And of course, we know that
the years 1865 and 1866
were the period in which the
first Ku Klux Klan emerged.
This was a violent struggle, taking place
against the backdrop of
local legal institutions
that were complicit in that violence
or failed to protect
African Americans from it.
And that was what was on
the minds of Americans
as they framed and
ratified the 14th Amendment
between 1866 and 1868.
And as we know from our
recent outpouring of work
studying and trying to make
some sense of racial violence
as a core theme of American history,
that both before and
after the ratification
of the 14th Amendment, African
Americans petitioned Congress
and the Freedmen's Bureau for assistance
in being free from racial violence.
They desperately and genuinely
wanted the protection of law
and believed that being inside the system,
imperfect and violent as it was,
was preferable to being outside.
One of the first things they
did in the post-war South,
one of the first things
that black people did
upon emancipation, as we
know from Khadija Williams's
"They Left Great Marks on
Me," was to create networks
that passed their stories of
violence on to one another
until they could reach some official
with the legal power to
do something about it.
And that network of African
Americans petitioning
and asking for legal
protection from violence
did provoke a response.
Not only the 14th Amendment,
but Congress passed
several more statutes around 1870,
the Enforcement Act of 1870,
the Ku Klux Klan Act of 1870
and the Ku Klux Klan Act of 1871.
And I should remind my
listeners that these statutes
have continuing importance
in the struggle to discipline
racial violence, for one looks
at the Department of Justice
report on the Ferguson Police Department,
you will find the modern descendants
of these particular statues
cited as an authority
for the Justice Department
to intervene in the workings
of a local police department.
So if one looks at this period,
one finds African Americans
petitioning, asking to be
free of racial violence
and asking the law for some response.
They hardly believed,
as is sometimes asserted
particularly during our
own pessimistic times,
that freedom and citizenship
was merely the substitution
of one form of racial control for another.
At the same time, it's understandable
that some have described
this transition in fact,
every legal struggle since that time,
which tried to foster racial equality,
as simply a reworking of the system
of violent racial control.
Now to understand that, we should recall
that Cover emphasizes that much of what
legal decision makers do is
deflect the moral questions
that surround the violence
that law imposes or authorizes
and to turn them into something
else, something that makes
the system more palatable to
the purveyors of that violence.
And that is a strong and persistent theme
in the legal history of racial
violence in this period.
For instance, one of the moral questions,
indeed the central moral
question of that age,
was how much should the
national government step in
and protect African Americans
when such protections
from violence, the
violence of ordinary life,
are usually lodged within the states?
And as we'll see, the Supreme
Court engaged in a process
of deflecting the
morality of that question
and allowing that violence to continue.
And to give a sample of
that theme in action,
I'm going to turn to the first major case
in which is the Supreme
Court had to decide
how much had been federalized by Congress
and by the American people
in the aftermath of the Civil War.
Now, I won't talk about the
case that you find standing
for this question in most
constitutional law case books,
the Slaughterhouse Cases.
I'm going to talk about
a usually overlooked case
that was decided by a Supreme
Court only one year before.
It's called Blyew v. the United States.
The facts were horrific.
In 1868, two white men, after attending
a Democratic party rally in Kentucky,
entered the home of a
black family, the Fosters,
and hacked most of them
to death with an axe.
The family's 16 year old son
Richard survived the attack
and was able to get to a neighbor's house
where he signed a written
statement before dying.
The 10 year old daughter
Laura survived by hiding,
while the 16 year old daughter
Amelia was scarred for life.
Laura, however, testified
at the subsequent trial
of the perpetrators.
With the help of Richard's
statement before he died
and Laura's statement at
trial the two men were tried
in federal court under the
Civil Rights Act of 1866,
yet another statute that Congress enacted
largely in response to racial violence,
and initially sentenced to death.
Now you might ask, I said
they were tried under
the Civil Rights Act of 1866.
Why weren't they tried in state court?
Well, one answer is this.
This is a case where,
like the Memphis Riots,
state authorities were
complicit in the violence
or were unwilling to prevent it.
In addition, Kentucky still held onto its
pre-Civil War rule the blacks
could not testify in court,
and the only witness statements
were from the surviving children, right,
so blacks can't testify
against whites in court.
You can't prosecute them in state court
because black people can't testify.
Even so, additional questions remained.
After all, weren't these
two men essentially
convicted of murder, which
is a state law crime,
and how could they be tried on
the Civil Rights Act of 1866,
which we preemptively
know today is a statute
that protects contract and property rights
and allows certain state
officials to be sued?
What turns out is that the
statute, which Congress enacted
in response to racial
violence, is more complicated
than it's usually understood to be,
because in addition to
protecting common law rights,
what the statute did was to try
to protect African Americans
from state violence,
either through neglect
or direct participation of state actors.
And to see that we have to see
that we have to do, you know,
grapple, and I'm gonna do
it just really briefly,
with how the statue was written.
The Civil Rights Act of 1866
says citizens shall have
the same right to the full
and equal benefit of laws
and proceedings for the
security of persons and property
as is enjoyed by white
citizens, and it also says that
the district courts of the United States
shall have cognizance of all
causes, civil and criminal,
affecting persons who are
denied or cannot enforce
any of the rights secured to them
from the first Section of the Act, right?
So, if in fact you are
denied the rights to security
of person and property,
and you can't vindicate
your rights in state
court, you can bring them
in federal court according to
the Civil Rights Act of 1866.
So in fact, at issue,
when the Supreme Court
had to decide Blyew v. the
United States, the issue,
by that time, was quite large.
By that time, a number
of African Americans,
like the surviving members
of the Foster family,
had invoked federal jurisdiction
in order to bring cases
of state violence into federal court
and federal district attorneys
had begun to bring cases
in federal court invoking the new statues
to prosecute state violence.
And of course, the more
of this kind of violence
was cognizable in the federal
courts, the more courts
were going to have to
confront the morality
of that violence and the ability
or inability of federal law
to protect against it.
So you know where this is going.
So the decision in Blyew is
essentially the Supreme Court's
first opportunity to confront the morality
of racial violence after the Civil War,
and what it did was very clear.
It ruled that laws were
going to be of limited use
in prosecuting state violence.
Specifically, the court ruled that
since says the statute says,
it says affecting persons, right?
So, you know, it has to be
a case affecting persons,
right, and they have to be
denied the protections of law.
You have to be an effective
person, according to the court,
to invoke federal jurisdictions, right,
you have to have your rights denied
and you're an affected person.
The prosecution was for the
murder of the deceased members
of the Foster family, so the court says
they're the affected persons,
and they're not in court
because they're dead.
Therefore, there was no federal remedy
according to the US Supreme Court.
Now, what everybody
knew was that the court
was going out of its way to deny access
to federal law to victims
of racial violence,
but what it was also doing is hiding
the morality of that decision,
a decision to consign African
Americans in the south
to rampant state violence
behind the facade of federalism.
And in fact, I could tell the story
of the end of Reconstruction, right,
from the end of
Reconstruction to Jim Crow,
to the beginnings of the
Civil Rights Movement
and the story of the 14th Amendment
entirely through well
known episodes like these,
because the logic in
each case was the same.
The question was always
whether the 14th Amendment
would provide a backstop to victims
of localized state
violence, either through
active participation by the
state or through state neglect,
allowing the violence to continue.
And everyone understood
that without some backstop
that the way the system worked,
the way it had always worked,
was that without some backstop
such violence would
continue without remedy.
Still, African Americans kept
asking for a legal remedy,
asking for law to protect
them against state violence,
and out of these claims would emerge
the modern Civil Rights Movement.
It emerged from the campaign
against state violence.
For instance, we know
that the NAACP itself,
the oldest civil rights
organization in the United States,
was founded in response to yet another
instance of racial violence, a race riot,
the Springfield Riot of 1908,
where in response to
interracial rape accusations,
a mob ransacked black
neighborhoods in a city
most identified with Abraham Lincoln.
In fact, up to about 1935,
the main civil rights priority
of the NAACP was not school desegregation,
but passing an anti-lynching
law to federalize
state violence against African Americans.
But you might ask, how did the NAACP
come to choose this issue?
You know, why did they
choose anti-lynching?
Well we know, and again,
from recent scholarship
on racial violence, that
was pushed to do this
by black victims of
violence, and then it built
its anti-lynching case out of
a network of African Americans
who continued to ask for a legal remedy.
In its early years, the NAACP
consisted mostly of a group
of well meaning white
reformers in New York,
with a few African Americans,
such as the anti-lynching
crusader Ida B. Wells Burnett,
and the scholar and activist
W. E. B. Du Bois.
When we tell the story of the
NAACP's anti-lynching crusade,
we kind of assume, we
know that the NAACP had
this anti-lynching campaign,
but we kind of assume
that they just kind of had
knowledge that these lynchings
and racial violence were
occurring in some far off place
like Mississippi, Oklahoma or Indiana.
And we sort of take that
largely for granted,
but that knowledge was hard bought.
African Americans around
the country, in fact,
petitioned the NAACP,
they wrote it letters
identifying cases of violence
and asking the organization
to send someone in to
seek some legal response.
For instance, in December 1913,
after a group of 20 whites
Louisianans lynched
Frank and Ernest Williams
for their alleged
involvement in the murder
of a white man named Kato Parish,
a local African American
man named PL Blackmen
took the time to write
to the national office,
appraise them of the
situation and asked that,
"If the association
would spend a few dollars
"in this vicinity to
collect evidence sufficient
"to arrest and convict," he concluded,
"it would go far in
diminishing these crimes."
The NAACP responded by
writing to a local member
in New Orleans, seeking
advice about the lynching
and asking for its course of action.
Indeed, the NAACP's
anti-lynching crusade was built
out of the patient and persistent efforts
of African Americans across
the country to set up networks
that recorded local racial
violence and demanded
that the organization
make some legal response.
The NAACP's organization
and its legal team,
according to recent
scholarship on racial violence,
was built out of the petitioning
of local African Americans
to have that violence
identified and acted upon
by the legal system.
And we know from the outpouring
of recent scholarship
on racial violence, that this is even true
for the most famous of the
organization's achievements,
the victory over school segregation
in Brown v. Board of Education.
We know this from a book
called "Unexampled Courage,"
written by Federal Judge Richard Gergel.
Now, Judge Gergel is someone
who has intimate experience
with the persistence of racial
violence in recent years
because he is the judge who presided over
the trial of the white
supremacist who massacred
nine African Americans at
Emanuel AME Church in 2015
and he is the same judge who
sentenced the killer to death.
Judge Gergel's book
focuses on an army veteran
named Isaac Woodard, who
just after his 1946 discharge
from the military, was beaten senseless
and permanently blinded
by a racist sheriff
in a small town in North Carolina,
sorry, in South Carolina,
for the offense of failing
to call a white bus driver sir.
What Gergel shows is that
the NAACP used the horror
of racial violence experienced
by Sergeant Woodard
to convince President Harry Truman
to become the first
United States President
to go on the record in
support of civil rights
for African Americans.
And indeed Gergel shows
that this famous incident
of racial violence was the defining event
in the life of a blue blood
southern federal judge
named J. Waties Waring, who presided over
the unsuccessful prosecutor of the sheriff
who has blinded Woodard.
Until about the time of
that trial, Judge Waring
had lived his life among
Charleston's white elite,
never questioning racial segregation
or the violence that accompanied it.
But after hearing about and presiding over
the trial that followed
Woodard's blinding,
he became a changed man.
He was radicalized.
He became an outspoken
advocate for black equality,
he issued a series of
pro-civil rights rulings
in cases involving peonage, voting rights
and school desegregation,
including the South Carolina case
that would become part of
the Brown v. Board of
Education litigation.
Indeed, it was Judge Waring,
having been radicalized
by the racial violence
of Woodard's blinding,
who convinced an initially
reluctant Thurgood Marshall
to use the South Carolina case
to launch it all out attack
on school segregation,
rather than simply asking
for equal resources
within segregated schools.
It was racial violence and
the campaign to discipline it,
in part, that produced
Brown v. Board of Education.
So, I could sketch a continuing theme,
one has a sense of a
continuing theme here.
African Americans petitioning
to be inside the legal system
despite the violence that
it perpetuates and allows
and continuing efforts
to deflect that violence,
to deflect the moral questions
raised by that violence
and to convert them into something else.
This occurs over and over
and over in American law.
So this brings us back to the
question that we started with:
how to think about the continued attention
to racial violence in recent years
and what should law do about it?
How should we think about it?
How should we act?
I've given this account
of a longer history
of racial violence and raised the question
of what to do about it
from the perspective of law
not primarily to criticize
those who describe
the only interesting questions about it
is about whether and how it constitutes
a system of racial control.
Although I should note,
those who dedicate themselves
to this line of argument must account
for the long history of
African Americans petitioning
to be inside the system,
African Americans who were
not naive, who understood
that it was a racist system
that allowed racial violence to occur,
but nonetheless, who
felt that it was better
to be inside than outside.
They did not conclude that
the sole purpose of the system
was to maintain a racial order.
But I present this account
primarily to raise the question
prompted by Cover's work,
the morality of a system
that justifies and
deflects moral questions
associated with continuing
racial violence,
the highest effect of this violence itself
behind such deflections, as it always has.
How and why this is so, it
seems, should be a core question
that we should grapple with,
that we should devote our attention to
five years after the incident
in Ferguson, Missouri.
I return here to the
work of Claudia Rankine,
who reminds us of the
work that we do every day
to ignore the violence, the
racial violence all around us
and the work of political
leaders to justify it,
and the work that we must
do to confront that violence
and to bring world
questions that it raises
to the forefront.
Thanks.
(audience applauds)
I'm told we have Q&A.
You know, I don't know how this goes.
- We do, and we have some microphones
and we have time for
at least two questions.
Dr. Mack has agreed to take some.
- Sure.
- [David] Professor, my
name is David Goodman.
My brother was Andrew Goodman,
murdered by the Ku Klux Klan.
Hi Janet, my beloved Janet,
thank you so much for inviting me.
The Enforcement Act of
1871, could you address
the nature of the law as it
regarded Kennedy's prosecution
of the men who murdered
Goodman, Schwerner and Cheney
under the Enforcement
Act, and how that fit in,
because it's very interesting
to me, but I don't know,
I'm a civil engineer, not a lawyer,
how that came to be and that
went to the Supreme Court,
as I understand, that case.
- Yeah.
- [David] Thank you.
- Yeah, it's a long story
and in the interest of time
I didn't fully develop it, but essentially
the Supreme Court, it's a
process of kind of deflecting
these moral questions.
In several cases of the 19th century
and in the middle of the 20th century,
basically try to make the
Enforcement Acts of 1870 and 1871
of as little use as possible.
So there are two cases called
Reese v. the United States
and Cruikshank v. the United States.
Cruikshank, in particular,
involved a coal factor.
Okay, this is 19th century.
During Reconstruction in
Louisiana, black people are,
a biracial government
maintains power and whites
take back power by essentially
murder and violence.
And there's a case that goes
to the US Supreme Court,
and the perpetrators of the
violence were brought into court
were prosecuted by federal officials,
and the case goes to the US Supreme Court,
and in Cruikshank v. United
States the court, essentially,
it's a complicated
decision, but I'll simplify
and say that they say that the indictments
aren't specific enough,
that the statutes are worded
in a very complicated way,
and I'll say just in short
that the Supreme Court goes
out of its way to construe
the statutes very narrowly,
so it's very hard to prosecute
cases of racial violence.
But there's a second case in
the middle of the 20th century
called Screws v. United States,
written by Felix Frankfurter,
who is, you know,
regarded himself as a hero
and civil rights circles
and was an advisor to the NAACP.
Screws v. United States
involved a southern sheriff,
Claude Screws, was also prosecuted
under the Reconstruction era statutes
and what the court
essentially holds in Screws
is that the the sheriff had basically shot
a couple of black suspects.
What the court holds in
Screws is the sheriff
had to be thinking about
their constitutional rights
and deciding that he wants to violate
their constitutional
rights when he shot them.
That's not something you're likely
to ever be able to prove in court.
So, you know, there's a
long pattern of this, right?
The court kind of going
out of its way to deflect,
you know, these kinds of questions
and make them into other
kinds of questions,
so we quite can't quite see the morality
behind the questions
that are being raised.
So by the 1960s. the
Kennedy Justice Department
is very aware of this,
and they struggle mightily
with those precedents, and
it makes it really hard.
I mean, they're just,
there's the brute fact that
if you get a jury trial,
it's going to be hard
to get a southern jury to convict,
a southern jury with white
people on it to convict.
And then there's the, the
roadblock, the legal roadblocks,
which have been largely
erected by a Supreme Court
that does not want to
confront the moral questions
raised by racial violence.
Thank you for coming.
(audience applauds)
- Thank you.
- Thank you very much.
Please join me in thanking
Professor Mack once again.
This is a fantastic and
very learned contribution
to our Bell Lecture series.
We hope that you'll all stay
and join us for a reception
in the back of the room.
Again, thank you for being
here this evening to celebrate
the continuing legacy of Derrick Bell.
Goodnight.
(audience applauds)
