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
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
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
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 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
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
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
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
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
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
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
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
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
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.
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
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
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
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.
Ozodi Thomas Osuji
April 28, 2012