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Fran Lisa Buntman
excerpt from: Fran Lisa Buntman, Race, Reputation, and
the Supreme Court: Valuing Blackness and Whiteness, 56 University of
Miami Law Review 1-24, 1-3, 24 (October, 2001) (118 Footnotes Omitted)
"[I]f He Be A Colored Man . . . He Is Not Lawfully Entitled To
The Reputation Of Being A White Man."
In the United States, being black, or not being white, has long been
seen as a sign of criminality, or at least criminal propensity. The
notion of racial profiling, recently the subject of considerable public
attention, assumes that police officers, among others, can successfully,
if illegitimately, use a person's race as an indicator of likely
criminal conduct. Racial profiling usually refers to the assumption of
possible law- breaking by African Americans or Latino Americans,
although it can be applied to a person of any perceived race. Most
people are unlikely to admit to the role that a person's skin color
plays in their assessment of their worthiness or credibility. In
practice, however, for many people and not just police officers, race is
frequently an indicator of suspicion, usually in the case of people of
color, or the lack of suspicion, usually in the case of whites.
Practices such as racial profiling cannot be understood without
recourse to broader considerations of the ways in which American
discourses shape discussions on the link between race and reputation.
Assumptions made about the character of people because of their skin
color are assessments that assume a correlation between race and
reputation. These racial reputations, however, are not confined to
issues of presumed innocence or criminality. For instance, common racial
stereotypes assign to African Americans reputations of athletic prowess
or to Asian Americans reputations of mathematical skill. Reputation is a
social attribute that refers to how a person is assessed and measured
and usually reflects generalized, common appraisals about the person or
group's standing and acceptance.
Reputations may be positive or negative. To have a good reputation is
to be well-regarded. Achieving or sustaining a good reputation can be
based on a person's actions or inactions, ideas or practices. Reputation
can also be imputed by signifiers and symbols. In the United States and
elsewhere, one of those signifiers of reputation was--and in different
and similar ways, still is--race. Americans came to "recognize[ ]
the reputational interest in being regarded as white as a thing of
significant value, which like other reputational interests, was
intrinsically bound up with identity and personhood."
This article explores aspects of the United States Supreme Court's
discourse regarding race and reputation, examining both consistencies
and shifts over time. It begins with a discussion of slavery, focusing
on the Scott v. Sanford decision. The impact of the Reconstruction
Amendments is discussed in the context of the Civil Rights Cases and
Plessy v. Ferguson. Decades later, Brown v. Board of Education marked a
well-recognized and decisive shift in the way the Court reassigned both
racial rights and reputations. In analyzing post-civil rights movement
era cases concerning jury composition, affirmative action, and the death
penalty, however, this Article argues that the Court has retained a
world view, reflected in its discourse, in which whites and African
Americans are assigned very different reputations. Thus, the challenge
of obtaining equality in rights and reputation is carried into the
twenty-first century.
The Court's attitudes toward the meaning of race, which is narrowed
in this Article to the meaning of blackness and whiteness, are important
for at least two core reasons. First, the Court's pronouncements affect
the lives of real people. For instance, as the Court interprets laws or
the Constitution to expand or contract rights, real people experience
actual effects in their lives. Second, the Court not only reflects
societal views, but shapes, legitimizes, or challenges them. Southerners
and Democrats therefore embraced the majority decision in Scott, while
Northerners and Republicans favored and even disseminated Justice
Curtis's dissent. Nearly a hundred years later, Brown announced to
segregationists that their views put them at odds with the Constitution,
and thus the nation. Ideas once considered radical-- from the principle
of racial equality to the right of people, even criminal suspects, to
know their legal and constitutional rights--are often quickly
incorporated into the mainstream and hegemonic culture once the Supreme
Court asserts them as part of what the Constitution requires, or even
more crudely, as part of the meaning of being American.
. . .
The differential reputation of whites and African Americans in United
States history and politics has played itself out in the field of law,
including the decisions of the Supreme Court. The nadir of the Court's
discourse on race and reputation was during slavery, especially as
displayed in the Scott decision. But the Court's reluctance to
fundamentally repudiate a view of white superiority and black
inferiority was evinced in both the facts and the language of decisions
which declined to accord African Americans and other people of color
their full rights and the associated reputation of human equals. While
the Court used Brown to challenge not just segregation and inequality
but the reputation of inferiority which undergirded it, the same degree
of introspection or political commitment has not marked the more recent
Supreme Court decisions. Under the guise of race neutrality,
colorblindness, and equal protection of the laws irrespective of race,
and using an analysis of affirmative action and an instance of capital
sentencing review, we see that the Court has again valorized whites and
the reputation of whiteness, and accepted a denigration of black life
and African American repute. While assessments of the Court's comments
on race profiling itself are beyond the scope of this article, it is
clear that the Court's discourse contributes to a world view in which
racial profiling and other acts of civil and criminal justice
discrimination can find legitimation. |
