Introduction: The African American Journey—One Fate

Vol. 36 No. 4

By

Gloria J. Browne-Marshall is an associate professor of Constitutional Law at and The Graduate Center (CUNY) and the founder and executive director of The Law and Policy Group, Inc. in New York City. She is the author of three books, including Race, Law, and American Society: 1607 to Present.

This edition of Human Rights magazine provides an opportunity to examine American history through the prism of the African American experience. I find it a daunting task to place in sum the journey of a people as diverse, unique, and complicated as African Americans. The space allotted is small. The journey could span over five hundred years in North America alone. Yet each story must begin. The beginning of this journey is Africa, the Cradle of Civilization. Unfortunately, events of the last four centuries have overshadowed the vast African contributions to Western art, science, and law. Yet, there remains a connection to Africa throughout this journey in the New World.

The African journey in what would become America began in the 1600s. King James of England desired a colony in the New World. The Jamestown Colony of Virginia, founded in 1607, became the first permanent English settlement in North America. This past summer I walked among the artifacts and replica buildings of Jamestown and Old Williamsburg. I envisioned the urban Englishmen, in swampland, battling insects, disease, and each other to carve out a viable colony under a blazing sun. The early colony in Roanoke had disappeared. Jamestown had been given a mandate not only to succeed but to be profitable. The likelihood of that success was slim.

In 1619, twenty Africans arrived in this colony. They had been taken from a Spanish slave ship and traded to the colonists for supplies. There had been Africans in North America prior to this date. However, 1619 marks the introduction of Africans into what would become the foundation of this country. That same year, the House of Burgesses, the colony’s governing body, was
established. The rule of law lay in the hands of the wealthy English with a royal mandate to create a self-sustaining colony in the name of King James. The social hierarchy in Jamestown was based on class. Race-based slavery did not yet exist. Initially, the Africans were treated as servants with certain rights, freedoms, and privileges. In 1620, the Mayflower landed in Massachusetts. The African American experience predates the Mayflower .

The descent into slavery began within a few decades. I stood at the bank of the Jamestown River imagining different choices—a different journey. The Africans, skilled planters from an agrarian society, became essential to the urban English, who had discovered tobacco. Tobacco would make poor men rich and rich men richer. Powhatan Indian, Angolan African, and English cultures would conflict and combine in this colony. Land was needed. Labor was required to work the land. The English controlled the law—and law enforcement. Profit, greed, xenophobia, religion, fear—all led to the enactment of laws that stripped most Africans of legal protections and their divine rights as human beings. A socio-racial hierarchy would inform the African American journey from this point forward. Free blacks and enslaved ones would fight a centuries-long battle against legalized racism.

The battle for freedom would take many forms. Prince Hall, a black civil rights leader of the seventeenth century, petitioned the Massachusetts legislature, demanding a public education for the children of free blacks. Africans escaped slavery by night and rioted against slavery by day. The cruel consequences for their rebellion—branding, beatings, amputation, death—would not deter their desire for freedom of the mind and body. Resistance brought harsher laws and more desperate penalties. Reading these laws today, I am struck by the arrogance of those who legislated torture in such clear and concise terms. Moreover, I am amazed by the perseverance of the Africans who defied them.

The conflicted nature of American race relations is sewn into this country’s cultural fabric. The Declaration of Independence, written in the presence of slaves, speaks of King George’s tyranny and certain unalienable rights. Our Constitution begins with “We the people.” However, the Supreme Court made clear in Dred Scott v. Sanford (1857) that Africans in America were not considered people and certainly were not included in the preamble of this great document. Dred Scott, an enslaved African, sought justice in the courts. He received Chief Justice Taney’s edict that a black man was not an American citizen and had no rights a white man need respect.

To many Americans, the Constitution is a sacred document. Aspects of the African American journey are revealed in the many direct and indirect references to African Americans within the Constitution—more references than any other group. Most attorneys are familiar with the Thirteenth, Fourteenth, and Fifteenth amendments. Fewer know of the references to the Transatlantic Slave Trade (Art. I) or realize that the Constitution contains a Fugitive Slave provision (Art. IV). The Three-Fifths Rule (Art. I) counted an African as three-fifths of a person to determine the number of representatives to Congress.

In 1865, the Thirteenth Amendment abolished slavery except as punishment for a crime. These last six words “except as punishment for a crime” reveal a cruel compromise that haunts the African American journey to this very day. African soldiers were crucial to the Union’s victory. However, elevation to an appropriate place for Africans in American society, after the Civil War, was complex. Colonization societies and early advisors to President Lincoln had lobbied to ship Africans back to Africa; the descendants of African Americans in Liberia and Sierra Leone are evidence of that plan. For blacks in America, backlash follows each step of progress. With freedom came Black Codes—criminal laws enacted to restrict the newly created rights of blacks—and with it chain gangs, and the convict lease system. The prisons would supplement the labor lost to freedom. Whereas it was poor business to incarcerate a slave, incarcerating free blacks created a financial windfall for businesses and municipalities across the South.

In 1868, African Americans became people by law, as the Fourteenth Amendment reversed the Supreme Court ruling in Dred Scott v. Sanford . Dred Scott did not live to see the ratification of the Fourteenth Amendment, which provides citizenship, privileges and immunities, due process, and equal protection rights to all persons of African descent. I wonder if Dred Scott or Chief Justice Taney could have realized that their actions would reverberate into the twenty-first century? How might Congressmen of 1868 react to the modern interpretation of the Fourteenth Amendment, in which equal protection, created specifically for Africans in America, has become a fundamental American principle as well as the underpinning for “reverse discrimination” actions?

In 1870, black men gained the right to vote. The Fifteenth Amendment gave access to the political process. Hiram Revels, the first African American U.S. Senator, was elected that same year. Federal, state, and local black politicians followed his path. Reconstruction, the Freedman Bureau, and the federal troops who protected the rights of blacks throughout the South allowed for great progress. At this juncture of the journey, black institutions were built. Howard University School of Law was established in 1869. Illiteracy decreased. The African American professional class grew exponentially. The country was once again at a crossroads. The promise of social, economic, and political inclusion was close. However, the political tide turned. Reconstruction ended. The troops were removed. African Americans were vulnerable to hate and terrorism and jealousy. Those who sought revenge for the loss of the Civil War did so with impunity. State courts refused to administer justice while federal legislation offered limited protection.

In 1889, my foreparents left Kentucky. My family’s journey to Kansas in search of opportunity, justice, and security would be replicated by millions of African Americans around the country. It was this desire for a life without racism that motivated Homer Plessy to challenge his conviction under Louisiana’s Separate Car Act, which required blacks and whites to sit in separate railroad cars or risk incarceration. Plessy sought justice from the nation’s highest court. In 1896, the Court responded with a ruling that states could segregate the races as long as the treatment was “separate but equal.” Thirty-one years after slavery was abolished, apartheid was established. Justice Harlan’s dissent in Plessy v. Ferguson reminds me that there have always been nonblacks on this journey who have risked life and livelihood to oppose racism. Justice Harlan wrote the Constitution is color-blind. His prescient warning that the majority’s decision would affect this country for generations to come was ignored.

The African American journey in the twentieth century reflects a determination to force America to live up to its ideals. Black civic organizations, sororities, fraternities, and community groups were established to assure advancements in education and economics despite racism. Clergy, health-care workers, and women’s clubs worked tirelessly to respond to the needs of the black community. The NAACP, working with local attorneys, confronted legalized segregation. Social scientists, writers, and activists rallied to address the onslaught of prejudiced rhetoric strewn at the black community. Progress was made in slow, deliberative steps. No one will fully know the human cost of that progress. Countless lives were lost to race riots, lynching, and terrorism of all forms. Racism also killed in subtle ways—broken spirits, ill health, endless toil, and poverty.

In 1941, the country was at war. America’s propaganda spoke of fighting for freedom overseas, while in the United States, African Americans were vulnerable to racial attacks and dehumanizing treatment as a daily occurrence. My father-in-law fought in France during World War II. Like many blacks, he left the segregated south for a segregated American military. Beyond his warm treatment by the French, my father-in-law refuses to discuss the war or manner in which he was treated by the Veterans Administration after his honorable discharge. He, like other African American men and women who served in World War II, returned to a country with racially divided education, housing, transportation, and employment opportunities. A brilliant legal strategist, Charles Hamilton Houston dedicated his life to overturning Plessy v. Ferguson . Houston did not live to see his protégé, Thurgood Marshall, argue the case or benefit from the outcome of Brown v. Board of Education .

After Brown , the country stood at a crossroads. African Americans were impatient for change. “With all deliberate speed” meant no speed at all. Protesters in suits and prim dresses stood silently, nonviolently, for their rights. The backlash was brutal and expected. However, this time frustration with broken promises and unrealized dreams turned civil disobedience into civil unrest. Riots followed more deaths. I watched my country burn on the television news. The pressure of lobbying, protest, and more deaths led to remarkable federal legislation—Civil Rights Act, Voting Rights Act, Fair Housing Act—more promises of progress. Hundreds of lawsuits, filed in courthouses in the North and South, were required to make the promises within civil rights legislation a reality.

Finally, some African Americans could partake in the opportunities that had been denied for so long. More choices in education, employment, housing, and social outlets were made available. Though school desegregation sparked riots across the country. I was bused to the former all-white high school across town. The elevated resources failed to make up for the disconnection with my community or the harsh lessons of racism. To date, I have little patience for those who see me only as a token black grateful merely to be in the room. Perhaps self-actualization will comprise the next part of the African American journey. I followed a path into civil rights and public interest law. This path has been paved for me by the sacrifices of countless people over many generations.

America stands at yet another crossroads. A black family is in the White House. In 2009, President Barack Obama became the third African American to receive the Nobel Peace Prize. African Americans are astronauts and ballerinas, neurosurgeons and Supreme Court justices, race car drivers and professors of racial justice, chief executive officers and Commander in Chief. However, racial disparities still abound. Racism continues to destroy the lives and livelihoods of far too many African Americans through criminal injustice, ill health, under-employment, inadequate education, and poor housing.

Whatever form racism takes in this new millennium, our fates are inextricably connected. For the African America journey is one of perseverance, self-determination, and a quest for justice. The African American journey will be America’s journey.

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