This paper looked at the origin of the American judicial system, examined how it functions in the here and now and concludes that it appears deliberately designed to incarcerate African Americans. It appears the judicial system is used as a political weapon in the war against people of African origin. The idea is to reduce them to second class status if not to outright slave status. That war is self-defeating for no human being accepts slavery and second class status for ever. As Jean Jacque Rousseau observed, human beings are born free and everywhere are in chains and seek freedom. Only political systems that seek optimal liberties for people can last long; those that seek unnecessary restriction of people’s liberties hasten their fall and replacement by more just political systems.
The American Judiciary And African Americans
Ozodi Thomas Osuji
Before we take a look at how African Americans fare in the American judicial system let us first understand how that system came into being and what it is supposed to do.
America is part of the British common law judicial system. By common law is meant that their laws are not always laws made by legislatures but by judges; judges’ rulings act as precedents on how other judges rule on similar cases. This is different from other legal systems.
In continental Europe their judges do not have the power to make laws; they rule in accordance with the laws written down in the books (the system is derived from Roman and Napoleonic jurisprudence where what is law is carefully coded and judges apply them in their rulings without injecting their opinions).
The English common law system has a long history. In 1066 Norman French men conquered England and appointed dukes to rule designated provinces and the latter appointed their subordinates (counts, barons, marquis etc.). Technically, the king in London is supposed to make the laws and adjudicate them too. But in practice he appointed judges who rode the circuit, who travelled from one county (shire) to another to hear cases and decide on the law. Over time what those judges ruled were used as precedents by other judges in making their own rulings.
The King of England in 1066 was actually the Duke of Normandy, France. As part of the French nobility he had a stake in the French throne. Thus it came to pass that the kings of England would claim to be the rightful king of France and would go to war in France to become the king of France. Many such succession wars were fought. These wars were expensive. The king had to get the money from somewhere (not to talk of the men who fought his wars for him). The king was incessantly asking his dukes and their subordinates to come up with the money and men he needed to fight his wars in France and other parts of Europe. It got rather expensive and the lords were quaffing because of the financial pressure the king put them under.
Pope Urban called on Christendom to wage a holy war against the Mohammedans who had taken over the Holy land of Jerusalem. Thus Kings and their knights would suit up and march to Jerusalem for war. In the eleventh to thirteenth centuries when the crusades took place the journey from Europe to Israel took months (done on horses and feet). The King of England, Richard the lion hearted marched off to the crusades and had his brother John deputize for him while he was away. John was reportedly very harsh on his dukes and other lords.
In 1215 John called on his lords to come up with money for his ventures. At the meeting the lords extracted an agreement from him that he had to consult them before he embarked on his wars and or required any kind of money from them. The contract is called the Magna Carter and is generally seen as the beginning of Parliament in England. It meant that henceforth the King and his lords met regularly, and that the lords were consulted before certain policies were made by the king; in effect, they had curtailed the king’s absolute authority to rule as he pleased.
Thus, England was now ruled by the King and his lords (House of Lords that is). Much of English history is documentation of how the House of Lords gradually wrestled power from the king and with the emergence of the middle class how the commoners wrestled power away from both the lords and the king.
Today England is ruled by the House of Commons, not by the lords or the King. The House of Commons makes the laws of England.
England does not have a written constitution; its laws are a compendium of the laws made since the magna carter was signed between the king and his lords.
In England there are two sources of law: the law made by the Parliament (that is, the House of Commons, assented to by the House of Lords and signed by the Queen), and the legal precedents made by judges.
When the British came to North America beginning in 1607 (that is not quite correct for earlier they had visited New found land, Canada and Roanoke, the Carolinas but did not undertake permanent settlement there) they brought with them their common law legal practices. The King appointed a Governor (equivalent to a Duke) for each colony and he in turn appointed his subordinates). The colonies were ruled by the Parliament in London via the Governor who acted as the chief executive and implemented the laws made by the English Parliament.
An interesting development took place in the colonies. Each colony established its own legislature that made local laws for the colony, laws that must be approved by the governor, of course.
As in England courts were established in the colonies and judges appointed and those like English judges applied the laws made by Parliament as well as the legal precedents established by English judges. This was the legal situation until America separated from Britain in 1776.
When America politically separated from Britain it retained its common law jurisprudence. The 1787 Federal constitution established a Supreme Court. The Supreme Court is the highest court in the land. The President nominates the justices of the Supreme Court (there are now nine of them, they weren’t always nine) and the Senate approves their appointment.
The Supreme Court is the court of last appeal; in Britain, on the other hand, individuals can appeal their cases to the Parliament (the House of Lords, making the Parliament the last court of appeal).
American federal judicial structure has three tiers: the Supreme Court, the appellate courts (also called Circuit courts) and District courts. In theory the President appoints the judges in all these courts. In practice the President has the senator from each state give him a list of persons to be appointed to districts courts in their states. The appellate courts are fewer in number and the president consults with the senators in the areas where each circuit court operates before he nominates the judges for the Senate to approve.
The Supreme Court is supposed to interpret the law and not make the law (Congress is the law making entity in the land). However, this is not always how it works.
In the 1803 Madison versus Marbury ruling the Supreme Court essentially expanded its role and gave its self the power of judicial review. This power now means that the Supreme Court has the right to review what Congress and the President decided is the law and if it does not agree with them over rules them. In effect, the Supreme Court makes laws, not just adjudicate laws. This is a very important development in American jurisprudence for the recently passed Affordable Health Care Act by Congress and President Obama could be over ruled and thus killed by the Supreme Court.
In effect, unelected nine men and women make decisions for the entire country. This is unprecedented power not found in Britain or most other countries. Whereas if the court rules in ones favor one feels okay but the fact is that the Court could also rule against one.
For example, when Congress dominated by Southern racists refused to enact civil right acts the NAACP bypassed Congress’s legislative authority and focused on the Supreme Court to essentially make the law. In 1954 the Supreme Court essentially made the law for Americans when it ruled in the Brown versus Topeka, Kansas Board of Education that segregation is unconstitutional. The Supreme Court, in effect, made the law for schools to be integrated. Such rulings are called judicial activism. In this case judicial activism served the interests of black folks. But this is a doubled edged sword for judicial activism could also serve the interests of those on the right of the political spectrum who do not want to do anything to help black folks.
Judicial activism on the night could overrule the Affordable Health Care Act that would have helped poor Americans have access to health insurance. Indeed, when President Franklyn Delano Roosevelt enacted his new deal legislations the Republican dominated Justices on the Supreme Court over ruled some of those programs until Roosevelt threatened to pack the Court; that is, to point more justices to it, for technically he could appoint however many judges that he wanted to the Court and if the Senate approved them they are justices of the Supreme Court; the constitution did not state how many justices there should be on the Supreme Court. The threat led some of the conservative members of the Court to come down from their high horses and approve the new deal legislations.
(Barack Obama appears weak and unable to fight with the conservative members of the Supreme Court, thus if they over rule his health care plan he would probably smile and move on; it is even doubtful that his heart is in providing Americans with health insurance; the man appears to not believe in anything strong enough to fight for it.)
The above is the legal structure of the Federal government. Each state has its own legal structure; the legal structure of each state is also three tiered: a state supreme court (many states elect their judges), a state appellate court (s) and county superior courts. In addition to these three layers of courts, some states have magistrate courts that deal with such things as traffic tickets and minor legal issues that do not require sending folks to do time in jails.
During the era of slavery American law did not consider Africans human beings. Africans were considered mules (cow) with which folks did work. They were bought and used to do work, pretty much as folks bought mules (and these days tractors) to do farm work and that was all there was to them. They were properties of their owners and if they ran away the Courts simply ruled that they should be returned to their owners. We do not need to review the various states laws regarding the status of slaves for what they meant is pretty much said by the word property.
There were always white folks who did not feel comfortable with the practice of buying human beings as property. The struggle to abolish slavery probably began with the first slaves brought to Europe and the Americas.
What is clear is that by the late 1700s the struggle to abolish slave trade intensified. In England men like William Wilberforce organized and lobbied Parliament to abolish the trade in human beings. In 1807 the British Parliament abolished slavery. But other European nations, such as Spain and Portugal, did not immediately follow suit so the trafficking in human beings continued. In the mid-1800s Britain stationed a naval fleet on the West African coast with the specific intention of boarding ships to make sure that they did not have slaves on them and if they did seizing them and freeing the slaves (they were resettled at Freetown, Sierra Leon; Britain deported its own slaves to Freetown).
(It would be interesting to see whether in Africa Africans struggled to end slavery; one hopes that they did for if they did not, if all they did was gladly sold their people to whoever wanted to buy them their morality is questionable. If they did not try to stop the slave trade it follows that they are morally corrupt and their current corrupt leaders is a continuation of their historical corruption. This would mean that there is little hope for solving the intolerable level of corruption in Africa soon.)
In America many persons from the North joined the fight to abolish slavery, especially Quakers, but folks in the South dug in their heels and came up with all sorts of weird ideas as to why enslaving the black man is justified. As they saw it, the black man is sub human and left alone could not amount to much, could not have civilization and is better served working for the white man as his slave.
By the 1850s it was clear that something had to be done about slavery. Individual abolitionists like John Brown were taking the law into their hands trying to stop slavery (John Brown had his standoff with the military at Harpers Ferry, Virginia). The South dug in and would not budge.
The South’s way of life, apparently, depended on slavery; the plantations needed cheap labor to man them and without slaves the plantation system and the gentlemanly life of leisure it spawned would die out thus southerners were prepared to go to war rather than end slavery.
In the 1800s America was expanding from its traditional Atlantic sea board to what is now called the Midwest and West coast. The debate was whether the newer Midwestern and Western states should be allowed to own slaves. Southerners argued that all states should be allowed to have slaves; the North wanting to contain slavery to the South argued that the newer states should be slave free. The Missouri compromise specified which states could have slaves and which ones could not.
In the meantime the slaves themselves were engaged in acts of insurrection. Nat Turner and Denmark Vesey had organized slave rebellions. The polity was heating up and something had to be done about slavery for those opposed to it could no longer tolerate those who wanted to have it; rationalizations as to why some people should be slaves were no longer persuasive to most people.
Slaves were increasingly running away from their Southern masters and seeking refuge in the non-slave states and many, through the underground rail road, were finding their way to Canada. One such runaway slave, Dred Scott ran to Missouri. He was caught; he and his supporters went to court to demand whether he should be returned to his master in the south.
In the 1857 Supreme Court ruling in that case the chief justice of the United States Supreme Court, John Taney, wrote that Africans have no right that any white man should respect and returned Dred Scott to slavery.
Things came to a head in 1860 when the south seceded from the union and the union declared war on it. The civil war lasted to 1864 and by the time it was over slaves was emancipated.
In a different paper I looked at the politics of the Reconstruction era, the immediate aftermath of the civil war. We saw how the South did all it could to return Africans to slavery. We looked at the political shenanigans engaged in by white southerners and ultimately their terroristic methods of keeping “niggers in their place” (such as the KKK).
The South won legal victory when in 1896 the Supreme Court ruled that that the races should be separated and that it was constitutional to do so. That Ferguson ruling essentially relegated black folk to second class living, to life behind the color bar (Jim Crow).
In the meantime the freed slaves were acquiring a modicum of education. Schools were built for freed slaves (Howard, Tuskegee, Fisk, Morehouse, Lincoln, Spellman, and other colleges were set up to train black folks). Folk like W.E.B Dubois (see his 1903 Souls of Black Folk) were writing about the black situation. In 1910 the NAACP was formed by Dubois and supporting white liberals. They established a legal defense fund to which folks contributed money and with that money attorneys were hired and they challenged many of the segregationist’s laws of the land.
Thurgood Marshall led in these legal efforts that challenged segregationist laws. Many laws were challenged in courts; many suits were lost but a few were won.
The 1954 win in the Brown Versus Topeka, Kansas Board of Education was a landmark for it essentially ended Jim crow and its color bar (not quite for it took the 1960s sit ins and college students trips to the South to challenge segregation laws...such as defying restaurants refusal to serve blacks by going into them and having one’s self arrested; refusing to sit in areas designated for blacks in buses etc. that finally ended racial segregation in the south).
By the end of the 1960s de jure segregation ended in the land although de facto segregation remained.
THE CRIMINAL JUSTICE SYSTEM
It appears that the American judicial system is established to do one thing and one thing only: arrest, try and put black folks into jails and prisons. The judges appear to construe their existence as one whereby they live to jail black folks. Minor issues that no one should be sent to jail for, that in any case white folks are not sent to jails for, black folks are sent to jail for.
America has over two million folks in jails and prisons; over half of them are black folks. And this does not include the many black teenagers (age 13-18) who are routinely sent to juvenile jails (juvenile detention centers). It seems that black folks are in and out of jails for frivolous issues.
A police man stops a black teenager and asks him what he is doing in a certain part of time; the boy feels angry at being racially profiled and yells at the police officer; he is arrested for disobeying a police officer. He is sent to jail. He begins his in and out trips to jails. In the meantime he feels wronged and gets angrier. In time he feels that he might as well behave like criminals and does something that is really criminal and of course he is arrested and white judges slap him with long term imprisonment.
One out of four black youngsters between ages 14-24 is either in jails, prisons or is supervised by parole and probation officers. This is an outrage; it is actually a war against the black race.
The intention of the war, apparently, is to have black folks in jail and or to give them prison records so that they are put out of the political arena (with felony they cannot vote and cannot obtain jobs...and being jobless they have to engage in crimes such as sell drugs to make a living and of course are arrested for selling drugs and jailed and after three such jail times they are given life time prison terms).
Why jail someone for possessing marijuana and for that matter for any other drugs? Why not legalize drugs? Of course drugs are not good for your health (even beer and alcohol is not good for you but the solution is teaching folks to avoid using drugs). Only a fool would take alcohol, smoke cigarette or do drugs like cocaine, crack, and heroin, LSD and so on but the answer to such self-destructive behavior is treatment, not imprisonment.
Imprisonment ought to be for crimes against other people, not against one’s self such as destroying one’s body with drugs. Yet many of the blacks in American prisons are there for taking drugs. This is ridiculous.
The American judicial system seems designed to jail black folk. Even if all you did is have minor traffic ticket and go to a court you sense that the white judge would love to send you to jail. And he will if you do not pay the hefty fine he slaps on you. If you did not pay it and a police officer stops you and calls in and finds out that you owe outstanding ticket charges he arrests you and jails you.
The Judicial system seems to rejoice when a black man is jailed. Another “nigger has been put where he belongs, jails and prisons”.
The penal system spends over $35, 000 annually to keep one inmate in jail. The political system does not spend a quarter of that amount for each child’s education. If only rational persons are in charge and spent the kind of money spent to incarcerate folks on efforts to educate folks we would have a safer society. But apparently the goal is not to have a safer society but to have black folks in jails and prisons.
One is at a loss why the political system seems to thrive on jailing black folks for trivial matters that ought to not even be brought to court. Consider divorce and child support matters. Why are those criminal issues? Why should they even be brought to court? Why is it the business of a judge and court in the first place? Folks marry. They decide that they no longer want to stay married. They ought to go to a county office and file a paper of divorce and that is all there is to it. But, no, they have to go before a judge to make a decision on their divorce. Attorneys are brought in. If a black man is involved God save him if his spouse is white for the judge looks for every opportunity to stick it to him, for daring to mess with his women. He slaps spousal support of unbearable amount on him, and if there are children impossible child support obligations. If he fails to pay them he is arrested and jailed.
Why is family support issue a criminal issue that folks should be sent to prisons for? It is true that men should support their children financially but how does threatening to jail them for not doing so serving that goal? You jail a father and then he feels angry and stops making any efforts to support his children so how has the legal action improved the prospects of him supporting his children here?
The support of children should not be done on the basis of fear of punishment; love is the basis of caring for one’s family and force cannot be used to replace love.
But we are talking reason here; the American legal system apparently is not set up to act rationally; it appears set up to apprehend and incarcerate black folks.
Why do white folks feel a need to jail black folks? Where in the world did they get this desire to humiliate and degrade black folks? This must be a psychopathology that ought to be studied rather than accepted as normal; these people are sick. Sick people need to be healed rather than seen as normal and their behaviors accepted.
Something ought to be done regarding America’s relationship with African Americans; what currently exists cannot last long; the system is spending itself to bankruptcy trying to put black folks behind bars and keep them there (the prison industry got to be one of the fastest growing industries in the land).
Society ought to be spending money training folks at schools and jobs, preparing them for the jobs needed by the twenty first century, jobs that require knowledge of science and technology.
The American legal system takes a hostile, unfriendly attitude towards African Americans. As it were, it does not see them as folks the law exists to protect but as folks the law exists to punish. If black folk step out of line, just one little bit, they are arrested, tried and jailed.
This is not a justice system but a punishment system manned by sadists out to oppress those considered enemies of the political system.
Of course no one is encouraging anti-social behavior; I am very draconian in my approach to law and order. Anyone who harms another human being ought to be severely punished. Laws ought to exist to protect us from each other’s harms. There can be no society if there are no laws protecting people.
Laws that are supposed to protect people are not laws that unnecessarily punish folks just because of their color. Punishment of folks because of their race is unjust and as a matter of fact is sinful and ought to be desisted from.
A political system that deliberately encourages what passes as America’s justice for black folks is digging its grave and would sooner or later collapse and be replaced by a more just political system. America is careening to a collapse and replacement with a just political system; what it currently has is unsustainable.
This paper looked at the origin of the American judicial system, examined how it functions in the here and now and concludes that it appears deliberately designed to incarcerate African Americans.
It appears the judicial system is used as a political weapon in the war against people of African origin. The idea is to reduce them to second class status if not to outright slave status.
That war is self-defeating for no human being accepts slavery and second class status for ever. As Jean Jacque Rousseau observed, human beings are born free and everywhere are in chains and seek freedom. Only political systems that seek optimal liberties for people can last long; those that seek unnecessary restriction of people’s liberties hasten their fall and replacement by more just political systems.