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FALL 2004
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FALL 2004
Member, National Conference of Law Reviews
* Senior Members
† Associate Editors
Kurt L. Schmoke, Dean, J.D., Harvard University
Warner Lawson, Jr., Associate Dean for Academic Affairs, J.D., Howard University
Denise W. Spriggs, Associate Dean for Student Affairs and Records, J.D., Syracuse University
Reginald McGahee, Assistant Dean of Admissions, J.D., Howard University
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Rhea Ballard-Thrower, Associate Professor of Law, J.D., University of Kentucky
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e. christi cunningham, Professor of Law, J.D., Yale Law School
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Andrew I. Gavil, Professor of Law, J.D., Northwestern University
Aminata Ipyana, Associate Professor of Law, J.D., Washington University
Steven D. Jamar, Professor of Law, J.D., Hamline University, LL.M., Georgetown University
Henry H. Jones, Professor of Law, LL.B., Howard University
Adam H. Kurland, Professor of Law, J.D., University of California, Los Angeles
Homer C. LaRue, Professor of Law, J.D., Cornell University
Isiah Leggett, Professor of Law, J.D., Howard University, LL.M., George Washington
Cynthia R. Mabry, Professor of Law, J.D., Howard University, LL.M., New York University
Harold A. McDougall, Professor of Law, J.D., Yale Law School
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University of Virginia
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Washington University
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Jeanus B. Parks, Jr., Professor of Law, LL.B., Howard University, LL.M., Columbia
Noah Bookbinder, J.D., Stanford University*
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Frederick D. Cooke, Jr., J.D., Howard University
Hon. John F. Dean, LL.M., Georgetown University
Marisa J. Demeo, J.D., New York University
June White Dillard, J.D., Howard University
Julian R. Dugas, LL.B., Howard University*
Joanne Doddy Fort, J.D., University of Pennsylvania
Michael E. Geltner, LL.B., Columbia University*
Diane L. Griffin, J.D., Georgetown University
Thomas Irving, J.D., Duke University*
Orlan Johnson, J.D., Howard University
Lesliediana Jones, J.D., Wayne State University
Christine Lehman, J.D., New York University*
James McCollum, J.D., Howard University*
Thomas Peterson, J.D., Cleveland-Marshall College of Law
Monique Daniel Pressley, J.D., Howard University
Quentin Pair, J.D., Boston University*
Parisa Salehi, J.D., Howard University
Colline Silvera, J.D., Howard University
H. Clay Smith, J.D., Howard University
Matthew Solomon, J.D., Georgetown University*
Deborah K. St. Lawrence, J.D., University of Maryland
Nkechi Taifa, J.D., George Washington University
Nicholas Targ, J.D., Boston College*
Inga A. Watkins, J.D., George Washington University
Wendell Webster, J.D., Howard University, LL.M., Harvard University
Hon. Alexander Williams, Jr., J.D., Howard University*
Robert Willis, J.D., Howard University
Benjamin Wilson, J.D., Harvard University*
Judy Woodall, J.D., Howard University*
Raymond Wyrsch, J.D., University of Houston; LL.M., George Washington
*Team teachers
FALL 2004
CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . W. Sherman Rogers
FLAGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Bennett Capers
NIGERIA IN THE NEW CENTURY . . . . . . . . . . . . . . . . . . . . . . . Philip C. Aka
THE COUNTERMAJORITARIAN DIFFICULTY . . . . . . . . . . . Michael Keenan
TRAGICOMEDY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yxta Maya Murray
TODAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . John Hayakawa Tor
¨ ok
OF THE UNITED NATIONS . . . . . . . . . . . . . . . . . . . . . . . . . Dr. Jacques Diouf
AND THE ENVIRONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Clive Stannard, 397
Niek van der Graaff,
Alan Randell,
Peter Lallas
& Peter Kenmore
JUDGING JUDGES JUDGING . . . . . . . . . . . . . . . . . . Stephen J. Fortunato, Jr.
DECOLONIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Karina Camacho
BATTERER DUPLICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Erin Street Mateer
The Black Quest for Economic Liberty:
Legal, Historical, and
Related Considerations
Introduction and Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. The Black Economic Journey From the 1600s to the
Civil War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Role of Legal Principles in the Economic Journey
of African Americans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. First Black Entrepreneur and Other Pre-Civil War
Entrepreneurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Conservative Estimate of the Wealth of the 500,000
Free Blacks Prior to 1860 Approximately $50
Million but $75 Million is a More Realistic Figure . .
D. Sources of Black Wealth Prior to the Civil War . . . .
1. Primarily Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Other Sources: Stocks, Bonds, and Annuities . . .
E. Business Pursuits of Free Blacks and Slaves Prior to
the Civil War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
* W. Sherman Rogers is a member of the full-time tenured faculty of the Howard University School of Law. The author has written this Article for a wide audience including scholars,
the general public and all persons seeking the American dream of economic independence and
security within the structure of capitalism. The purpose of the Article is to explore the legal,
historical, sociological and political factors which help to explain the economic condition of
black people in America from the date of their arrival in America to the present time. The goal
of the Article is to fill an apparent informational gap regarding the role of law and politics in
charting the economic circumstances of black people at all historical stages in their journey from
slavery to freedom. The author would like to dedicate this Article to Professor Emeritus J. Clay
Smith Jr., of the Howard University School of Law, who provided the inspiration for the author
to write an article addressing the issue of the unfulfilled quest of black Americans for economic
liberty. The author would also like to thank Professor Julian R. Dugas of the Howard University
School of Law who constantly encouraged the author to continue working on the Article until it
was completed. The author also would like to thank his research assistants, Malibea Burguillo,
Natalie Ward, and Tiakyta Wilie, for their assistance.
2004 Vol. 48 No. 1
Howard Law Journal
F. Why Black Entrepreneurial Activities Prior to the
Civil War Are Utterly Amazing . . . . . . . . . . . . . . . . . . . .
1. The South’s Preoccupation in Maintaining
Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Many Whites Did Not Consider Blacks to Be
Fully Human During This Era . . . . . . . . . . . . . . . . . .
II. The Reconstruction Era (1867-1877) . . . . . . . . . . . . . . . . . . . .
A. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. President Lincoln and President Johnson’s Leniency
With the Conquered South Caused Congress to Pass
the Military Reconstruction Legislation . . . . . . . . . . . . .
C. Although the Reorganized Southern States Ratified
the Thirteenth Amendment, Their Enactment of
Black Codes Showed That They Did Not Intend to
Give Equal Rights to Blacks . . . . . . . . . . . . . . . . . . . . . . . .
D. The Reconstruction Act of 1867, Like Other
Legislation of This Era, Passed over the Veto of
President Johnson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. The Four Supports upon Which the Economic
Rights of Blacks Depended After the Civil War . . . .
1. South was Divided into Five Military Districts;
Voters were to Elect State Convention to Frame
a State Constitution; States Had to Ratify the
Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . .
2. The Fourteenth Amendment . . . . . . . . . . . . . . . . . . . .
3. Because of the Recently Enacted Fifteenth
Amendment, Blacks Had the Right to Vote on
All Issues Involving the Reorganization of the
Southern States During the Period of Military
Reconstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. The Civil Rights Act of 1875 . . . . . . . . . . . . . . . . . . .
F. Benefits of Reconstruction . . . . . . . . . . . . . . . . . . . . . . . . . .
1. South Elected 22 Blacks to Congress;
Mississippi Elected 2 Blacks to the U.S. Senate;
Louisiana Elected 2 Black Senators but the
Senate Refused to Seat Them; 794 Blacks
Elected to State Legislatures, and Other
Surprising Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Blacks and Whites Were Interacting with Each
Other Socially and in Other Ways . . . . . . . . . . . . . .
[VOL. 48:1
Black Quest for Economic Liberty
3. Some Blacks Were Able to Make Substantial
Economic Progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Major Black Colleges Established by Black
Organizations and Others Immediately After
the Civil War and During Reconstruction . . . . . .
5. Beneficial Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . .
6. End of Reconstruction Period . . . . . . . . . . . . . . . . . .
a. In Compromise of 1877, Republicans
Agreed to Pull the Military out of the South
to Capture the Contested Presidential Race
for Rutherford B. Hayes . . . . . . . . . . . . . . . . . . . .
b. Reasons for the North’s Loss of Interest in
Equal Justice for Blacks . . . . . . . . . . . . . . . . . . . .
III. Government-Imposed Segregation of the Black Race:
Jim Crow and the Theory of Economic Detour . . . . . . . . .
A. Between the End of the Civil War and the Turn of
the Twentieth Century, the U.S. Supreme Court
Judicially Silenced Virtually Every Major Effort by
Congress to Achieve True Equality of Opportunity
for Blacks and All Americans . . . . . . . . . . . . . . . . . . . . . .
1. The Slaughter House Cases . . . . . . . . . . . . . . . . . . . . .
2. United States v. Cruikshank . . . . . . . . . . . . . . . . . . . . .
3. United States v. Reese . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. The Civil Rights Cases . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Hall v. de Cuir . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6. Plessy v. Ferguson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Blacks Were the Only Minority Group Excluded
From the General Marketplace During
Government-Enforced Segregation . . . . . . . . . . . . . . . . .
1. The Sociology of Entrepreneurship, Solving the
Riddle of Why the Black Economic Journey
Has Been Different Than Minority Groups
Immigrating to the United States . . . . . . . . . . . . . . .
a. The General Concept . . . . . . . . . . . . . . . . . . . . . . .
b. Theory Underlying Sociology of
Entrepreneurship Presupposes That Ethnic
Minorities Adjusting to a New Country
Have Access to the General Market of
Consumers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Howard Law Journal
Free Blacks in the 1700s and 1800s Were
Operating with Access to the General
Market of Consumers, and Set the
Foundation of the Black Business
Tradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Theory of Economic Detour Shows That the
Government Forced Blacks, Unlike Any Other
Ethnic Group in This Country, to Operate in a
Segregated Market During the Era When Blacks
Were Socially and Economically Segregated from
the General Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Retail Trade and Restaurants . . . . . . . . . . . . . . .
b. Undertakers, Barbers, and Beauticians . . . . .
c. Building Trades and Manufacturing . . . . . . . . .
d. Banking and Finance . . . . . . . . . . . . . . . . . . . . . . .
e. Life Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
f. Teachers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
g. Clergy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
h. Medical Profession. . . . . . . . . . . . . . . . . . . . . . . . . .
i. Legal Profession . . . . . . . . . . . . . . . . . . . . . . . . . . . .
j. Officials and White Collar Workers in
Government Employment . . . . . . . . . . . . . . . . . .
k. Performing Arts . . . . . . . . . . . . . . . . . . . . . . . . . . . .
l. The Black Underworld . . . . . . . . . . . . . . . . . . . . .
m. Myrdal’s Findings Compared with Post-Civil
Rights Era Developments . . . . . . . . . . . . . . . . . .
C. Notable Events and Statistics During the Era of
State-Imposed Discrimination . . . . . . . . . . . . . . . . . . . . . . .
1. Lynchings and Disenfranchisement . . . . . . . . . . . . .
2. Development of Rigid Segregation Produced
the Most Significant Ideological Split Among
Black Scholars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Booker T. Washington . . . . . . . . . . . . . . . . . . . . . .
i. Speeches of 1884 and 1895 . . . . . . . . . . . . .
ii. Positive Aspects of Booker T.
Washington’s Approach . . . . . . . . . . . . . . . .
iii. System of Rigid Segregation—
Applicable Exclusively to American
Blacks—Doomed Booker T.
Washington’s Vision of Economic
[VOL. 48:1
Black Quest for Economic Liberty
Prosperity for Southern Blacks Through
Entrepreneurship . . . . . . . . . . . . . . . . . . . . . . .
iv. Unfortunate Aspects of Booker T.
Washington’s Approach . . . . . . . . . . . . . . . .
b. W.E.B. Du Bois . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. Civil Rights Era of the 1950s-1970s to the Present . . . . . .
A. The End of Legally Imposed Apartheid in the
United States in 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Civil Rights Groups with an Economic Agenda
During the Modern Civil Rights Era . . . . . . . . . . . . . . .
C. Programs Designed to Deal with the Social,
Political, and Economic Problems of Blacks . . . . . . . .
1. Lyndon B. Johnson and Executive Order
11,246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. The Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . .
3. 1965 Voting Rights Act . . . . . . . . . . . . . . . . . . . . . . . . .
4. The Civil Rights Act of 1968 . . . . . . . . . . . . . . . . . . .
5. Government Efforts to Assist Black Businesses
in View of the Former Economic Caste System
Legitimized by Plessy . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Government Contracting and Set-Aside
Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. The Supreme Court’s Decisions in Fullilove
v. Klutznick, City of Richmond v. J. A.
Croson, and Metro Broadcasting v. FCC . . . .
c. The Supreme Court’s Decision in Adarand
Constructors, Inc. v. Pena . . . . . . . . . . . . . . . . . . .
d. Current Statistics on the 8(a) Program and
the Future of Set-Asides for Minority
Business Enterprises . . . . . . . . . . . . . . . . . . . . . . . .
D. Uneven Distribution of Economic Benefits to the
Entire Black Community in the Civil Rights Era . . .
E. Statistics on Black Businesses and the Black
Consumer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Collective Black Earning Power Approximately
$601 Billion Annually . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Black Business Statistics . . . . . . . . . . . . . . . . . . . . . . . .
a. Historical Notes and Background . . . . . . . . . . .
b. Approximately 95% Sole Proprietorships . . .
c. Approximately 3% Partnerships . . . . . . . . . . . .
Howard Law Journal
d. 3% Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . .
e. Approximately 83% of Black Firms Have
No Paid Employees . . . . . . . . . . . . . . . . . . . . . . . . .
f. Black Rate of Entrepreneurship is Lower
Than All Other Ethnic Groups (3% of
Entrepreneurs but 12% of the Population) .
g. Gross Revenues of Black Businesses . . . . . . .
h. The Combined Gross Revenues of the 100
Largest Black Industrial and the 100 Largest
Auto Dealers in 2003 Was $21.9 Billion . . . .
i. One-Half of Black Men and Two-Thirds of
Black Women are Civil Servants . . . . . . . . . . . .
j. Obtaining Capital More Difficult for Blacks
Than for Other Ethnic and Minority
Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V. Things the Black Entrepreneur Should Consider in
Starting, Managing, and Expanding the Business
Enterprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Choosing the Appropriate Vehicle for Doing
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. The Organizational Features Usually Desired by
the Owners of Small Start-Up Businesses
Almost Exclusively Involve Legal
Characteristics Provided for by General
Partnership Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Pros and Cons of the Seven Most Common
Forms of Business Organizations . . . . . . . . . . . . . . .
a. The Sole Proprietorship . . . . . . . . . . . . . . . . . . . .
b. The General Partnership. . . . . . . . . . . . . . . . . . . .
c. The Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d. The Limited Liability Partnership . . . . . . . . . .
e. The Limited Partnership . . . . . . . . . . . . . . . . . . . .
f. The Limited Liability Limited Partnership . .
g. The Limited Liability Company . . . . . . . . . . . .
B. Raising Capital for the Business: Special Problems
Usually Encountered by Black Entrepreneurs and
Things Every Potential Black Entrepreneur Should
Know About Obtaining Funding for the
Enterprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[VOL. 48:1
Black Quest for Economic Liberty
1. The Cash Crunch Which Many Black
Entrepreneurs Face . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Sources of Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Early Stage Financing . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Growth Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Alternatives to Traditional Financing . . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A stunning array of statistical, legal, historical, and sociological
data chronicle the African American1 quest for economic liberty. The
role that law has played in the economic progress of African Americans, however, lies near the core of any meaningful discussion. It was
law that enslaved, freed, segregated, and ultimately provided a window of hope for the economic aspirations of black people in the
United States.2 However, greed and fear, the twin engines of capitalism,3 are the primal forces which underlie every manifestation of significant and persistent economic disparity between groups.4 This
1. The author uses the term “black” without a capital “b” to refer to “African Americans”
in many, if not most, instances throughout this article. The dominant culture did not consider
black people of African descent to be legally capable of being “American” during a substantial
portion of this nation’s history. See Dred Scott v. Sandford, 60 U.S. 393 (1856). Accordingly, the
author considers it awkward to refer to black people as “African Americans” in some parts of
this Article. Additionally, not all black persons permanently residing in the United States are
“Americans.” The term “black” is, therefore, a much more inclusive description of persons of
African descent.
2. See Thurgood Marshall, The Constitution: A Living Document, 30 HOW. L.J. 623 (1987).
3. See Albert B. Crenshaw, Fear, Greed the Players in Pension Debate: Middle Ground
Could Prove Elusive as Congress Considers Reforms After Enron, WASH. POST, Feb. 8, 2002, at
4. See generally Paul Farhi, Feeding the Beast: The Greed That Lives (and Seems to be
Thriving) in Us All, WASH. POST, Mar. 3, 2002, at F1. Adam Smith, capitalism’s founding philosopher, acknowledged in his landmark book, the “Wealth of Nations,” that a self-interested desire
for gain drives capitalism and that this self-interest could be beneficial to everyone. Id. The
great British economist, John Maynard Keynes, also noted, somewhat sarcastically, that “Capitalism is the extraordinary belief that the nastiest of men, for the nastiest of reasons, will somehow work for the benefit of us all.” Id.
The United States has the largest economic disparity between rich and poor than any other
industrial nation in the world. See ROBERT HEILBRONER & LESTER THUROW, ECONOMICS EXPLAINED 193 (1998). In Finland, the most egalitarian nation, the income of the top ten percent
was 2.7 times greater than the total income of the bottom ten percent. In Norway it was 2.8 to 1;
in the Netherlands, it was 2.9 to 1. Id. In Canada, it was 3.8 to 1; In the United States, it was 5.7
to 1. Id. The ever-present hope of Americans of achieving wealth and riches, however, largely
explains why Americans—both black and white—are willing to tolerate the huge gap in economic equality between rich and poor. See John Derbyshire, Attack of the Wealth Eaters, NAT’L
REV., Sept. 25, 2000, at 39, available at 2000 WL 11593985. Accordingly, most Americans tolerate a government that provides a less generous system of social services in exchange for lower
Howard Law Journal
Article attempts to explain the lower economic status of black Americans in comparison to the white population in light of legal, historical,
sociological, political, and economic considerations related to
America’s legacy of slavery, segregation, and rampant discrimination
against blacks.
A snapshot of black America today reveals the following groups:
a burgeoning population of college-educated, middle-class, and uppermiddle-class blacks who live in fear that those who control the levers
of power may roll back programs that assisted them to achieve their
current status;5 an insecure group of lower-middle-class blacks who
lack college educations who work as cooks, truck drivers, secretaries,
janitors, mail delivery personnel, factory workers, and similar positions;6 and a shrinking, but persistent, impoverished black underclass
that comprises approximately twenty-eight to thirty-three percent of
all black Americans.7 Recent studies indicate that the black lower
middle-class and the so-called black underclass were unprepared for
the shift in the American economy from an industrial labor economy
to a knowledge- and technology-driven system spurred by competitive
capitalism, globalism, and the off-shoring of jobs.8 The new economy,
unlike the industrial labor economy, is one that values brains and education over brawn.
taxes and reduced regulation. This, in turn, allows for a greater investment in capital to produce
wealth, which will supposedly benefit all. Id.
Fear, however, has often caused greedy, self-interested persons who benefit most from the
American capitalistic system, to consider the negative consequences that can occur when great
economic disparities exist between persons in society. Fear of societal upheaval has, undoubtedly, been an unspoken factor in the passage of legislation that benefits the poor and minorities.
Professor Marcellus Andrews, Associate Professor of Economics at Wellesley College, argues that black people were completely unprepared for, and unable to take advantage of, the
shift in structure of the American economy toward a knowledge and technology driven system,
which offers huge rewards for brains over brawn. See MARCELLUS ANDREWS, THE POLITICAL
This, he maintains, is because black people largely remain an industrial labor force in a postindustrial country. Id.
Professor Andrews also asserts that, in the post-industrial society of competitive capitalism
and globalism, the preference of the wealthy in controlling the unwanted classes and the coming
black rebellion is for incarceration and prison growth rather than the old policies of income
redistribution and race-based redress. Id. at 126-28,142, 160, 175-84. Professor Andrews maintains that the old policies—income redistribution and race-based redress—are no longer tenable
in an age of competitive capitalism, globalism, budget deficits, and capital mobility. Id. at 13839, 152-57.
5. Id. at 29-31.
6. Id. at 28-29.
7. Id. at 17-26.
8. See generally id.; infra note 4 and accompanying text; see also discussion infra note 762
with regard to the phenomenon of offshoring jobs.
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Suggested solutions for narrowing the economic gap between
black and white Americans include programs to increase black entrepreneurship, community-based empowerment programs, vigorous enforcement of the anti-discrimination laws, better schools, and a
concerted effort to encourage and fund blacks in obtaining college
and specialized degrees. However, education is the key to the economic advancement of black Americans. A recent study indicates
that the ever-widening gap between the richest and poorest households in America is largely based on the level of one’s educational
attainment.9 Since 1973, the real wages of the least educated American workers have declined between twenty and thirty percent.10
Historical data reveals African American entrepreneurial activity
at the incipient stages of the nation’s development in the 1600s.11 One
historian determined that a conservative estimate of the collective
wealth of the nearly 500,000 free African Americans on the eve of the
Civil War was approximately $50 million.12 Studies indicate that in
2001, African Americans earned a whopping $601 billion.13 This figure exceeds the gross domestic product of all but fifteen nations of the
192 independent countries in the world.14
9. See D’Vera Cohn, D.C. Gap in Wealth Growing: Uneducated Suffer Most Study Shows,
WASH. POST, July 22, 2004, at A1 (discussing a study by the D.C. Fiscal Policy Institute citing
poor schooling and lack of a college or specialized education as fueling the widening gap between the richest and poorest households in Washington, District of Columbia and all major
cities). See generally discussion infra text accompanying note 75. The study also noted a disturbing trend in the economy “in which people without college educations will be stuck at the
bottom.” Id.
10. ANDREWS, supra note 4, at 176; see also discussion infra note 75.
11. LERONE BENNETT, JR., BEFORE THE MAYFLOWER 37-38 (Penguin Books 6th ed. 1993);
ABRAM L. HARRIS, THE NEGRO AS CAPITALIST 5 (Urban Research Press, Inc. 1992) (1936); THE
AFRICAN AMERICAN ALMANAC 4 (L. Mpho Mabunda ed., Gale 7th ed. 1997). These sources set
forth the first documented entrepreneurial activity by a black person in America. The individual
in question, a man by the name of Anthony Johnson, originally came to this country in 1620 or
1621 as an indentured servant from England.
12. HARRIS, supra note 11, at 10-11.
13. Lee Ann Jackson, Not Just For a Rainy Day, Getting African Americans to Start Saving
One Dollar at a Time, BLACK ENTERPRISE, Jan. 2003, at 87; Krissah Williams, Radio One
Branches out So Blacks Will Tune in, WASH. POST, Feb. 5, 2003, at E1 (citing statistics reported
by Target Market News, an organization which studies the black consumer market).
14. There were 192 independent countries in the world as of 2002. See THE WORLD ALMANAC AND BOOK OF FACTS 857 (2003) [hereinafter WORLD ALMANAC 2003]. Of these 192 nations, only 15 had gross domestic products that exceeded the collective income of black
Americans. In 2001, for example, only the United States ($10 trillion, 82 billion), China ($5
trillion, 560 billion), Japan ($3 trillion, 450 billion), India ($2 trillion, 500 billion), Germany ($2
trillion, 174 billion), France ($1 trillion, 510 billion), United Kingdom ($1 trillion, 470 billion),
Italy ($1 trillion, 402 billion), Brazil ($1 trillion, 340 billion), Russia ($1 trillion, 200 billion),
Mexico ($920 billion), Canada ($875 billion), South Korea ($865 billion), Spain ($757 billion),
and Indonesia ($687 billion) had gross domestic products which exceeded the gross income of
African Americans. Id. at 108.
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African Americans have achieved these economic gains under
difficult circumstances. American law freely allowed for others to enslave black people; segregate black people from the general economic
marketplace; segregate black people from attending any establishment owned by whites; prohibit black individuals from having any social relationships with white persons; and discriminate against black
persons in employment, ownership of property, and all other benefits,
privileges, terms, and conditions afforded to persons of the dominant
While in Senegal, Africa in July 2003, President George W. Bush
acknowledged the effect of these practices on black Americans today.
He boldly and clearly stated that “[R]acial bigotry fed by slavery did
not end with slavery or with segregation. And many of the issues that
still trouble America have roots in the bitter experience of other
times.”16 The American legal system’s long tolerance of such practices, both legislative and judicial, and the subtle continuation of these
practices partially explains why African Americans remain mired at
the bottom of the economic ladder today.
Black individuals, when compared to their white counterparts,
experience twice the rate of unemployment,17 have substantially lower
personal and family income,18 are three times more likely to live in
poverty,19 and possess only one-fifth of the net worth of whites.20 Additionally, 75% of black children are born to unwed mothers;21
33.33% of black men are under judicial supervision;22 black men constitute a majority of incarcerated persons although African Americans
constitute only 12% of the population;23 and only 12% of black persons in high school are proficient in reading and math.24 “ConvenThe $601 billion total income of black Americans, however, is only 5.96% of the U.S. gross
domestic product. This figure is well under the percentage of black Americans in the population,
which is approximately 12%. Id. at 400 (indicating that black persons constitute approximately
12.3% of the population).
15. See generally BENNETT, JR., supra note 11, at 86-111, 255-96.
16. Colbert I. King, Happy Talk on Holiday, WASH. POST, July 12, 2003, at A17 (quoting
President George W. Bush).
5 (2002) [hereinafter WALLACE, BLACK WEALTH].
18. Id. at 6-8.
19. Id. at 9-10.
20. Id. at 5-6.
21. Clint Bolick, Rule of Law: So Far, Clinton Can’t Kick His Quota Addiction, WALL ST. J.,
June 12, 1996, at A17.
22. Id.
23. N. Taifa, Criminal Sentencing, 12 UWLA L. REV. 158, 160 (1996).
24. Bolick, supra note 21.
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tional economists . . . forget that human beings will do almost anything
to avoid viewing themselves as failures, even at the risk of destroying
themselves and their communities.”25 Moreover, a cost/benefit analysis partially explains why some members of the black underclass who
have experienced multiple generations of damage to their self-esteem
turn to crime to win acceptance, achieve wealth, and gain prestige.26
However, statistics indicate that the median income of black families comprised of married couples is significantly closer to that of similarly situated whites than any other comparison. This strongly
supports the conclusion that the traditional family unit composed of
two parents “remains the cornerstone of societal structure”27 and
demonstrates that “[i]t is statistically verifiable that marriage has a
powerful wealth[-building] effect.”28 Children of single parent families are “five times more likely to be poor, four more times more
likely to engage in criminal behavior, and three times more likely to
become welfare recipients when they reach adulthood.”29 However,
the two-parent black family has declined from 67% in 1960 to 33% in
1995. The white marriage rate has declined from 91% to 76% during
the same time frame.30 Black persons have the lowest marriage rate
of any group in America.31
Interestingly, the family instability that plagues today’s black
family was essentially unknown among black migrant communities in
the twentieth century. “In 1925 Harlem, 85[%] of black families were
intact and single teenaged mothers were a rarity.”32 While it would be
“absurd” to suggest that the failure to marry will result in poverty,33
the research clearly shows that “[g]etting married and maintaining a
25. ANDREWS, supra note 4, at 82.
26. Id. at 176. In economics, marginal analysis is used to determine how people should
allocate their scarce resources (such as ability to work, see infra note 43) to get the most value.
The formula for marginal analysis is “net benefits = total benefits – total costs.” See WALTER J.
27. WALLACE, BLACK WEALTH, supra note 17, at 8. The gap between black family income
as a percentage of white family income increases from 64.3% to 87% when one compares black
families without two parents and black families with two parents. Id.
28. See Michelle Singletary, Many Marriages Would Benefit From Sound Family Financial
Plans, WASH. POST, Apr. 25, 2002, at E3 (referring to statement made by Matt Daniels, Executive Director for the Alliance for Marriage).
29. Id. (citing statistics compiled by the Alliance for Marriage).
31. See id.
32. See Glenn C. Loury, Making It All Happen, in ON THE ROAD TO ECONOMIC FREEDOM,
AN AGENDA FOR BLACK PROGRESS, 118 (Robert L. Woodson, ed., 1987).
33. See Singletary, supra note 28 (citing Matt Daniels, Executive Director of the Alliance
for Marriage).
Howard Law Journal
healthy union in which both partners communicate well about money
can be financially beneficial.”34
The wide economic and related disparities which exist between
blacks and whites today may have been substantially narrowed if, in
the years following the Civil War, the U.S. Supreme Court had
demonstrated that it valued true racial equality above maintenance of
the status quo, and if Congress had continued its efforts to bring
blacks into the mainstream notwithstanding the Court’s decisions.
During this period, the Reconstruction Era, “emancipated slaves
giddy with optimism opened businesses, banks, funeral homes, insurance companies, schools and newspapers.”35 However, in several instances, the U.S. Supreme Court undermined congressional efforts to
achieve equality between black and white Americans by either invalidating federal laws or restrictively interpreting federal and state laws
aimed at seeking the equality of black people.36 The Court ultimately
crushed the economic aspirations of black people near the end of the
nineteenth century by allowing states to exclude blacks from any interaction with the white population, a phenomenon directed exclusively to African Americans.37 Moreover, Congress did nothing to
legislatively “fix” the statutes or to protect blacks from rampant discrimination by private businesses and individuals in view of the
changed political climate.38 Consequently, private companies were
free to blatantly discriminate against blacks in every conceivable way.
The United States has excluded blacks from participation in the
American economic system of capitalism for most of its history. To
34. Id.
35. See Teresa Wiltz, BET a Case of Selling Out or Selling Up? But Has the Network Sold a
Bit of its Soul? WASH. POST, Nov. 4, 2000, at C1.
36. In The Civil Rights Cases, 109 U.S. 3 (1883), and United States v. Reese, 92 U.S. 214
(1876), the U.S. Supreme Court invalidated important civil rights statutes. Moreover, Congress
did nothing to amend these statutes to make them pass constitutional muster. See discussion
infra text accompanying notes 362-75.
In The Slaughterhouse Cases, 83 U.S. 36 (1873), and in United States v. Cruikshank, 92 U.S.
542 (1876), the Supreme Court weakened federal laws to the extent that they had little or no
value in protecting the federal rights of U.S. citizens, and especially the recently freed slaves
whom these laws were primarily intended to protect. Additionally, the Supreme Court, during
this time period, overturned a state anti-discrimination law enacted to prevent the segregation of
blacks. See Hall v. De Cuir, 95 U.S. 485 (1878). See discussion infra text accompanying notes
37. See Plessy v. Ferguson, 163 U.S. 537 (1896).
38. See LAURENCE H. TRIBE, CONSTITUTIONAL LAW TREATISE 922 (3d ed. 2000). In 1894,
for example, Congress repealed the most important Reconstruction civil rights legislation which
the Supreme Court had not previously invalidated. This legislation included the suffrage protections of the Enforcement Act and the Force Act. Id. at note 12 (citing 1 B. SCHWARTZ, STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 830-34 (1970)).
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include a group in a capitalistic system, the following elements must
exist:39 (1) the government must legally accord the right of ownership
of private property to all persons;40 (2) prospective employees must
have the legal right to work or not to work as they choose;41 (3) there
must be a market system in which economic activities are left to men
and women freely responding to the opportunities and discouragements of the marketplace, not to the established routines of tradition
or the dictates of someone’s command;42 and (4) the market must
allow for a regular flow of wealth into production through a flow of
savings and investment organized through banks and other financial
companies to which borrowers pay interest as the reward for using the
lenders wealth.43
Accordingly, the hallmarks of capitalism consist of government
protection of the freedom of economic contract, government protection of all persons’ rights to own private property, and government
protection of an individual’s freedom to choose whether to make business decisions free of the dictates of others or the routines of tradi39. See HEILBRONER & THUROW, supra note 4, at 11-17.
40. Id. at 12.
41. Id. at 12-13.
42. Id. at 14.
43. Id. Economics is the study of the allocation of the scarce means of production toward
the satisfaction of human wants. See STEVE SLAVIN, ECONOMICS: A SELF TEACHING GUIDE 35
(2d ed. 1999). The scarce means of production are land, labor, capital, and entrepreneurial ability. Id. at 34.
Land is valuable primarily because of its location and its scarcity. There is a finite amount
of land and the most desirable land is relatively scarce. “Land can also be expensive because oil
or gold or another precious commodity is buried under it.” Id.
“Economists consider virtually all paid work ‘labor’.” Id. Labor is scarce ‘[b]ecause only a
certain number of people are physically, mentally, and emotionally capable of doing the work
that needs to be done”. Some types of labor, like a doctor’s or a plumber’s, are so scarce that
they are very expensive. Id. In an interesting article, one professor argues that the notion of
“racial scarcity” in the labor context “creates a market bias for white labor in certain occupations
that precedes individual preferences.” The Professor then states that this “market bias provides
context for individual discriminatory acts and means that white workers enjoy a hiring advantage
in certain sectors and that white work, even if it is underpaid, is overpriced relative to non-white
work.” See, e.g., christi cunningham, Identity Markets, 45 HOW. L.J. 491, 494-95 (2002).
The term capital, in economics, refers to “all the plant and equipment used to turn out the
goods and services that we produce. Capital, then, includes factories, machinery, farm equipment, shopping malls, office buildings, computer systems, and all of the tools of production and
distribution.” Capital, like land and labor is limited in quantity. Id.
Entrepreneurial ability is a scarce means of production because an entrepreneur “recognizes an opportunity to make a profit, raises the money to open a business, and eventually hires
managers to run that business. The entrepreneur is able to combine land, labor, and capital in a
way that will make money.” Id. at 35. Entrepreneurial ability is a resource because “three out
of every five new businesses in the United States fail within their first two years of operation.”
Howard Law Journal
tion.44 Government-sanctioned slavery of blacks, government
approval of the segregation of black persons from the rest of society,
private and governmental discrimination against blacks in employment, housing, contracting, borrowing, and other aspects of life make
clear that America excluded black Americans from fully participating
in the benefits of the economic system of capitalism.
The U.S. Supreme Court continues to have a significant role in
either assisting or frustrating the long-delayed inclusion of black
Americans into all aspects of the American economic system. For example, in Grutter v. Bollinger,45 the Court recently decided that an
educational institution’s use of racial diversity as a factor in the admissions’ process is constitutional in light of the reality that blacks are still
recovering from the racial caste system the Court endorsed in 1896
and only overturned in 1954.46 The Court also based its decision on
the observation that admission to selective, elite institutions of higher
education “is a prelude to power, and that a racially and ethnically
mixed leadership . . . . is essential to the public’s support of American
44. See HEILBRONER & THUROW, supra note 4, at 16-17.
45. 539 U.S. 306 (2003).
46. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court ended the system of
government-authorized racial separation which it had earlier permitted in its decision in Plessy v.
Ferguson, 163 U.S. 537 (1896). The Court’s 2003 decision in Grutter noted that racial equality is
still a distant dream. 539 U.S. at 343.
47. Grutter, 539 U.S. at 332; see also Charles Lane, In Court’s Ruling, a Nod to Notion of a
Broader Elite, WASH. POST, June 25, 2003, at A1.
The Supreme Court, in Grutter, ruled 5-4 that that the University of Michigan Law School’s
approach to enrolling a “critical mass” of blacks, Latinos, and Native Americans, under which
the school considered each applicant individually and did not set explicit quotas was constitutional. Grutter, 539 U.S. at 328-30; see also Charles Lane, Affirmative Action for Diversity Is
Upheld, in 5 to 4 Vote, Justices Approve U-Mich. Law School Plan, WASH. POST, June 24, 2003, at
A1 [hereinafter Lane, Affirmative Action for Diversity].
The Supreme Court reviews all governmentally imposed racial classifications under the
Equal Protection Clause under a strict scrutiny standard. To withstand strict scrutiny analysis,
the use of race by a state or federal governmental entity in its university admission’s or other
programs must employ “narrowly tailored measures that further compelling governmental interests.” See Grutter, 539 U.S. at 326; see also Charles Lane, Highlights of the Decisions in Grutter
v. Bollinger and Gratz v. Bollinger, WASH. POST, June 24, 2003, at A8 [hereinafter Lane, Highlights] (setting forth highlights from the majority and dissenting opinions).
Justice O’Connor, in Grutter, cited former Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U.S. 265, 316-19 (1978) for the holding that diversity can be a
“compelling interest” capable of overriding the Constitution’s usual ban on governmental racial
classifications. Grutter, 539 U.S. at 328-29. Justice O’Connor went on to hold that the law
school’s methods of reviewing individual applicants—which she described as “highly individualized” and “holistic”—were “narrowly tailored” to meet that interest. Id. at 337; see also Lane,
Affirmative Action for Diversity, supra; Lane, Highlights, supra.
However, in Gratz v. Bollinger, 539 U.S. at 244, 270, the Court rejected the undergraduate
affirmative action program which gave every single member of an “underrepresented minority”
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The majority in Grutter recognized that racial discrimination has
not ceased and that the playing field is not level. This recognition was
manifested by Justice O’Connor’s hope that affirmative action would
not be necessary twenty-five years from the date of the decision.48
Justice Ginsburg elaborated on this point in a separate concurring
opinion in Grutter and stated “one may hope, but not firmly forecast,
that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.”49 Additionally, the extent to which private and
public entities may use affirmative action in the employment process50
and the award of government contracts51 remain hot-button issues.
The desire for economic prosperity and security underlie both issues.
group an automatic 20-point bonus on the 150-point scale used to rank applicants. The Court
viewed the selection process in that case as too mechanistic and not “narrowly tailored” enough
to further the compelling governmental interest in achieving diversity on campus. Id. at 270-75;
see also Lane, Affirmative Action for Diversity supra.
48. Justice O’Connor, in her majority opinion in Grutter, stated that “We expect that
[twenty-five] years from now, the use of racial preferences will no longer be necessary . . . .”
Grutter, 539 U.S. at 343; see also Charles Lane, Affirmative Action for Diversity is Upheld: Court
Backs Affirmative Action but Envisions Its End, WASH. POST, June 24, 2003, at A9.
49. See Grutter, 539 U.S. at 346 (Ginsburg, J., concurring); see also Lane, supra note 48.
Justice Ginsburg, speaking more pointedly in her dissent in the companion case of Gratz v.
Bollinger, noted that blacks “historically have been relegated to inferior status by law and social
practice” and that the affirmative action measure in the Gratz case was designed to “hasten the
day when entrenched discrimination and its aftereffects have been extirpated.” Gratz, 539 U.S.
at 301-03; see also Lane, supra note 48.
50. Regarding public entities, in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), the
Supreme Court ruled 5-4 that a public school board’s desire to maintain a sufficient number of
minority teachers as role models did not justify a policy of laying off white teachers with more
seniority than minority teachers who kept their jobs.
Regarding private entities, in United Steel Workers v. Webber, 443 U.S. 193 (1979), the Supreme Court upheld a collective bargaining agreement that set a quota on promotions for black
aluminum plant workers. The Court held that the Civil Rights Act of 1964 did not prohibit
voluntary private agreements to help blacks when the agreements were temporary, not designed
to maintain racial balance, and necessary to eliminate a manifest racial imbalance in traditionally
segregated job categories.
51. In City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the U.S. Supreme Court
struck down a Richmond, Virginia affirmative action plan that set aside thirty percent of city
contracts for minority firms. The Court held that state and local race-conscious programs to
benefit minorities must face the same “strict scrutiny” under the Constitution as discrimination
against minorities.
In Metro Broadcasting v. FCC, 497 U.S. 547 (1990), the Supreme Court held that the federal
government may take race into account when distributing broadcast licenses to ensure diversity
on the air waves. However, the Court held that only an intermediate scrutiny should apply to
affirmative action plans authorized by Congress in the exercise of its powers to remedy discrimination under Section 5 of the Fourteenth Amendment.
In Adarand Constructors, Inc. v. Pena,
˜ 515 U.S. 200 (1995), the Supreme Court, with Justice
Clarence Thomas having replaced Justice Thurgood Marshall on the Supreme Court, overruled
Metro Broadcasting 5-4, holding that “strict scrutiny” applies to federal affirmative action
Howard Law Journal
During the 1800s and well into the twentieth century, economists,
using Western European and American whites as the standard, assumed that genetic inferiority was the reason for the low economic
status of African Americans, Eastern Europeans, and other minorities.52 Institutional economists such as Gunnar Myrdal dismantled
these commonly held assumptions during the twentieth century by
showing that a culture of poverty, discrimination, and oppression were
the primary cause of the lower economic status of African Americans.53 Nevertheless, there are some economists today who believe
that laws prohibiting race discrimination are unnecessary and inefficient in a free market system.54
A chorus of critics, both black and white, has increasingly come
to view African Americans and black culture as the primary cause of
the ongoing economic disparity between blacks, whites, and others.55
52. Robert Cherry, The Culture of Poverty Thesis and African Americans: The Work of
Gunnar Myrdal and Other Institutionalists, 29 J. ECON. ISSUES 1119 (1995).
53. Id. However, the genetic inferiority argument persists. See ANDREWS, supra note 4, at
54. See Micheal J. Zimmer et al., Are Antidiscrimination Laws Necessary?, in CASES AND
EMPLOYMENT DISCRIMINATION 35, 35-55 (5th ed. 2000) (reproducing RICHARD A. EPSTEIN,
In the excerpts from this portion of Epstein’s book, Epstein, an economist, argues, like Milton
Friedmen, that absent government compulsion as in the pre-1964 South, market forces alone are
all that is necessary to generate economic progress for blacks. ZIMMER, supra, at 36, 45.
Epstein’s position is based on John Locke’s theory of property—that each person is the
exclusive owner of his labor. Id. at 37. The self-ownership of individual labor forms the cornerstone for freedom of contract in labor markets, with immediate political relevance to the antidiscrimination laws. All individuals own their own labor and hence can act as both producers
and consumers in a relatively competitive labor market. Id. at 37-38. Epstein argues that in a
world of free access to open markets, systematic discrimination even by a large majority offers
little peril to the isolated minority. Unconstrained by external force, members of minority
groups are free to search for jobs in those firms that do want to hire them. Id. at 40.
Epstein, citing GARY BECKER, THE ECONOMICS OF DISCRIMINATION ch. 3 (2d ed. 1971),
notes that an employer’s taste for discrimination, even if not rational, may place those who hold
it at a substantial cost disadvantage relative to their competitors. See ZIMMER, supra, at 41. In
Epstein’s opinion, the pre-1964 South cannot be fairly characterized as a market system but a
totalitarian system in which discriminatory attitudes were strongly reinforced by a pervasive system of both governmental and extralegal sanctions imposed upon anyone who opposed the racist
consensus. Id. (citing Professor Gregory S. Crespi, Market Magic: Can the Invisible Hand Strangle Bigotry? 72 B.U. L. REV. 991, 1002 (1992) (summarizing Epstein’s views)). Epstein, however, acknowledges Title VII’s initial gains, unlike the Chicago School orthodoxy. Id. (citing
John J. Donahue III, Advocacy Versus Analysis in Assessing Employment Discrimination Law,
44 STAN. L. REV. 1583, 1593 (1992)). However, Epstein takes the position that Title VII is no
longer necessary as long as state and local governments do not return to the days of de jure
segregation and toleration of private violence. Zimmer, supra, at 49.
AMERICA, (2000); see also ANDREWS, supra note 4, at 38-45 (discussing with disapproval DINESH
position that blacks are the victims of their own bad culture)).
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Some even argue that an inferior black culture is the reason for all the
social problems facing many poor African Americans and that segregation was a well-intentioned system created to “protect” blacks from
the real racists.56 Additionally, middle- and upper-income blacks,
who compromise approximately two-thirds of all blacks, have increasingly become more vocal in their criticisms of the behavior and attitudes of blacks of lower socio-economic status.57 However, many
middle- and upper-income blacks do not believe this criticism is
Some commentators believe that the most effective way for African Americans to achieve true economic liberty is by assimilating
more completely into the dominant culture.59 For example, Gunnar
Myrdal, who wrote in the late 1930s and early 40s concerning the
plight of blacks during the tough days of segregation, noted the importance of improving the educational level of blacks. To Myrdal, however, “Education mean[t] an assimilation of white American culture.
It decrease[d] the dissimilarity of the Negroes from other Americans.”60 Myrdal noted “there is no magic either in mixed schools or
segregated schools” and emphasized that blacks needed good schools
regardless of their race.61 Today, statistics indicate that black students
56. See Koteles Alexander, Adarand: Brute Political Force Concealed as a Constitutional
Colorblind Principle, 39 HOW. L.J. 367, 380 (1995) (taking issue with the views of D’SOUZA,
supra note 55). Alexander also states that the political majority’s use of the sciences to morally
justify the exclusion of racial minorities from economic benefits and opportunities were “never
scientifically successful, although mythologically successful.” Id. at 379-80.
57. See Jonetta Rose Barras, United We Stood, but Divisions Now Show; Cosby Ignited a
Debate About Class. We Need to Keep Talking, WASH. POST, June 27, 2004, at BO3; Hamil R.
Harris, Some Blacks Find Nuggets of Truth in Cosby’s Speech, Others Say D.C. Remarks About
Poor Black Went Too Far, WASH. POST, May 26, 2004, at B5.
58. See ANDREWS, supra note 4. at 1-6, 26-29, 48, 53, 138-39, 152-57 (competitive capitalism,
globalism and racism have combined to limit the access of poor blacks to education, good jobs,
health care and good lives); see also Barras, supra note 57; Harris, supra note 57.
AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 304 (1998) [hereinafter MYRDAL 1]. Chapter eight of Frazier’s book is entitled Negro Business: A Social Myth. Id.
ch. 8. Also, see the views of W.E.B. Du Bois in Lateef Mtima, African American Economic
Empowerment Strategies for the New Millennium—Revisiting the Washington-Du Bois Dialectic,
42 HOW. L.J. 391, 400 (1999) (citing to W.E.B. Dubois, The Talented Tenth, in THE NEGRO
DEMOCRACY 879 (1998).
61. Id. at 902; see Walter R. Allen & Joseph O. Jewell, The Miseducation of Black America:
Black Education Since an American Dilemma, in AN AMERICAN DILEMMA REVISITED, RACE
RELATIONS IN A CHANGING WORLD 181 (Obie Clayton ed., 1996) (noting that Myrdal “Like
most of the social scientists of his era, believed in assimilation as the “final solution” to the race
problem). Allen and Jewell state that “Myrdal did not anticipate the black political cultural
Howard Law Journal
who attend black colleges are more likely to graduate than those who
attend white institutions.62
Others believe the ultimate solution for black economic equality
is through entrepreneurship.63 The proponents of this approach believe that entrepreneurship will bring financial independence, transmission of black wealth to successive generations of black persons,
and is more likely to create a class of professionally educated offspring.64 A third position suggests that a blending of the assimilation
and entrepreneurial theories is the better approach.65 Perhaps, this
position is the most realistic alternative. Although black people attempt to engage in entrepreneurial activities at a greater rate than
their white counterparts,66 the reality is that “three out of every five
new businesses in the United States will fail within the first two years
of operation.”67 Nevertheless, black entrepreneurship remains underdeveloped in America when compared to the majority population.68
Therefore, existing efforts to increase the number of thriving blackowned business should remain a priority.69
This Article canvasses the legal, historical, and other considerations that help to explain the current economic condition of African
Americans in this country. The legal issues, however, are at the bottom of any analysis of this topic whether it be issues of sociology, economics, history, political science, or other disciplines. This Article
maintains that any decision by the U.S. Supreme Court or any other
movement of the 1960’s and 1970’s, which not only advocated community control of educational
institutions but also questioned the validity of the broader American culture and its relevance
for black students.” Id. at 182. They also note that Myrdal’s study relative to education “failed
to anticipate the intractability of American racial prejudice and discrimination.” Id. at 185.
62. See THERNSTROM & THERNSTOM, supra note 30, at 194. Accordingly, black colleges
remain a significant avenue of social and economic mobility for black Americans. Id.
The Negro in Business, the Professions, Public Service, and Other White Collar Occupations, in
at 142-45, 164-65 [hereinafter Butler, Myrdal Revisited].
64. Butler, Myrdal Revisited, supra note 63, at 142-45 and 164-65; see discussion infra notes
574-77 and accompanying text.
65. Mtima, supra note 59, at 393.
66. See discussion infra text accompanying notes 786-89.
2d ed. 1999).
68. See discussion infra text accompanying notes 786-89.
69. See discussion infra text accompanying notes 682-90, 740-55, 949-51 with respect to programs designed to help blacks and other minorities succeed in establishing, maintaining, and
growing their business enterprises.
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entity with decision-making power which suggests the history of pervasive racial discrimination in the United States has ended will only
prolong the day of economic liberty for many African Americans.
Until African Americans and other disadvantaged groups become
more connected to the American economic system, increases in the
crime rate, continued social imbalance, and racial distrust should be
This Article strongly suggests that African Americans must attempt to become economically independent, preferably as entrepreneurs, to the greatest extent possible regardless of the likelihood of
business failure. The statistics suggest that the families of entrepreneurial African Americans fare better than those who assimilate
into the job structure of the dominant culture. Accordingly, taking a
chance in starting a business is probably better than never testing the
The benefits flowing from the civil rights movement have not
been distributed evenly among the entire black community.71 However, innovative federal initiatives such as the Empowerment Zone
and Enterprise Community Program72 have helped inner cities and
their residents outpace the nation between the 1990 and 2000 census
in population growth, household income, housing unit growth, high
school graduates, college graduates, home ownership, and poverty
Nevertheless, competitive capitalism, globalism, and racism have
combined to limit the access of poor blacks to education, health care,
and good jobs.74 Accordingly, this Article contends that the American brand of capitalism must be modified to lessen the gap between
rich and poor. This goal can be accomplished through innovative efforts to improve and provide access to the education system and the
continuation of programs to assist blacks in employment, business de70. See discussion infra notes 572-73, and accompanying text.
71. See discussion infra text accompanying notes 756-62.
72. See AFRICAN AMERICAN DESK REFERENCE 245 (Philip Koslow ed., 1999).
73. See Aaron Bernstein et al., An Inner City Renaissance, BUS. WK., Oct. 27, 2003, at 64.
The authors also note that gentrification explains only a small part of this development. Id. at
68. They also note that, “While the inner city poverty rate of [thirty-one percent] is nearly three
times the national average, the 6.5 million poor people who live there represent less than a fifth
of the country’s 34.6 million poor.” Id. Approximately 21 million people live in the 100 largest
inner cities. Id. at 66. Also noteworthy are the efforts of black churches through a variety of
church-sponsored community empowerment programs. See Bill Alexander, The Black Church
BLACK PROGRESS, supra note 32, at 45-69.
74. See ANDREWS, supra note 4, at 1-6, 24-26, 48, 53, 138-39, 152-57.
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velopment, and community-based empowerment programs. Research
demonstrates a clear relationship between investments in education
and economic well-being. Thus, education is ultimately the key.75
A. Role of Legal Principles In The Economic Journey Of African
The late Justice Thurgood Marshall, in a major speech in 1987,
observed the striking role legal principles have played in determining
the economic, political, social, and legal condition of black people in
the United States.76 Justice Marshall observed that it was law that
enslaved, emancipated, disenfranchised, and segregated blacks.77 It
took a bloody Civil War, constitutional amendments, and the lapse of
approximately one-hundred years subsequent to the Civil War before
the United States took steps to provide blacks with such basic rights as
the right to equality in education, housing, employment, voting, and
public accommodations.78
Justice Marshall noted that, contrary to popular opinion, the
founding fathers, in drafting the Constitution, created a flawed document.79 In Justice Marshall’s view, the founding fathers’ foresight and
sense of justice was troubling and not particularly profound.80 He
noted that economic interests of the Northern and Southern states led
the Constitution’s framers to a compromise that allowed the Southern
states to continue importing slaves to the United States until 1808.81
The first three words of the Constitution’s preamble, “We the Peo75. Education remains the key to economic equality. See THERNSTROM & THERNSTROM,
supra note 30, at 191. There is a clear economic relationship between investments in education
and economic well-being. See ANDREWS supra note 4, at 72-75 (citing GARY BECKER, HUMAN
CAPITAL: A THEORETICAL AND EMPIRICAL ANALYSIS, WITH SPECIAL REFERENCE TO EDUCATION (1975)). Moreover, studies indicate that the inflation-adjusted wages of young high school
graduates declined by eighteen percent between 1963 and 1992. In contrast, the inflation adjusted wages of college graduates rose eight percent during this general period while the wages
of male high school graduates of all ages fell by forty percent. See ANDREWS, supra note 4, at
147; see also Cohn, supra note 9. “For better or worse, university education is a gateway to
authority in a complex, hierarchical, technology-driven society that distributes power and prestige on the basis of achievement.” ANDREWS, supra note 4, at 170.
76. See Marshall, supra note 2.
77. Id. at 627.
78. Id. at 626-27.
79. Id. at 624.
80. Id.
81. Id. at 624-25.
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ple,” did not include black people although they were counted for representational purposes as three-fifths of a white man. Moreover,
nearly seven decades after the Constitutional Convention, the Supreme Court made clear that the founding fathers never intended persons of African descent to be citizens of the United States. Justice
Marshall, citing the Supreme Court’s decision in Dred Scott v. Sandford,82 noted that the framers of the Constitution considered blacks to
be no more than “an article of property” and had “no rights which the
white man was bound to respect.”83
The true miracle of America, Justice Marshall stated, was not the
birth of the Constitution. The true miracle, which resulted in the
America we know today, was the evolution of the Constitution as a
living document and the laws passed pursuant to it after much suffering, struggle, bloodshed, and sacrifice.84 This Article chronicles that
evolution and the current economic impact of those policies on African Americans today.
B. First Black Entrepreneur and Other Pre-Civil War
Non-black scholars have failed to discuss, cite, or otherwise mention the historical roots of black entrepreneurship and business enterprise in America when writing about how distinct ethnic groups have
adjusted to American capitalism through entrepreneurial endeavors.85
Yet, an understanding of the early history of black business enterprise
and the considerable obstacles that black business persons had to
overcome provides valuable information and perspective to the population of black Americans who seek to adjust to the American capitalistic economy through entrepreneurship. Additionally, exposure to
this information removes a cloud of ignorance and misunderstanding
with respect to the white population as to why black people remain in
a catch-up stage in establishing business enterprises in the twenty-first
The first group of black indentured servants arrived in colonial
America in 1619.86 These black indentured servants had approximately identical economic opportunities as their white counterparts
60 U.S. (19 How.) 393 (1856).
Marshall, supra note 2, at 626.
Id. at 627.
See infra text accompanying notes 402-15.
THE AFRICAN AMERICAN ALMANAC, supra note 11, at 3.
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after fulfilling the terms of their indentures. Colonial documents indicate that they engaged in entrepreneurial activities, voted, and participated in public life.87 The first black entrepreneur was probably
Anthony Johnson. Mr. Johnson arrived in Jamestown, Virginia in approximately 1620 or 1621 as an indentured servant from England. Mr.
Johnson worked out the term of his indenture, accumulated property,
had black and white servants, and established one of America’s first
black communities.88 Official records of the 1650s document this entrepreneurial activity.89 Virginia did not deny the right to vote to
blacks until 1670.90
Both free blacks and slaves engaged in business enterprise prior
to the civil war.91 John Baptiste Du Sable, Paul Cuffe, Emmanuel,
Thomas Downing, and Robert Bogle are notable examples of black
persons who engaged in entrepreneurial activities in America during
the 1700s and early 1800s.
John Baptiste Du Sable was a black pioneer, entrepreneur, and
capitalist.92 Du Sable was a leader in the Westward movement and
the founder of Chicago93 in the 1770s.94 He built the first home and
opened the first business there.95 Some commentators have suggested
there are “indications” that white settlers, in keeping with the prevalent racial attitudes prevalent of that time, isolated Du Sable.96
Paul Cuffe, born near Dartmouth, Massachusetts in 1759,97 engaged in entrepreneurial activities from the 1770s to approximately
1817 as a ship builder, ship captain, builder, and African colonizer.98
“Mr. Cuffe, in 1797, built a wharf and warehouse on the Westport
River in Massachusetts.99 By 1806, he owned one ship, two brigs, and
several smaller vessels.”100 Mr. Cuffe commanded black crews that
made voyages to Europe, Russia, Africa, and the West Indies.
87. Id.
88. Id. at 4.
89. Id.; see also BENNETT, JR., supra note 11, at 37; BUTLER, ENTREPRENEURSHIP, supra
note 63, at 35-36.
90. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 4. According to BENNETT, JR.,
supra note 11, at 37-38, Virginia did not deny the right to vote to blacks until 1723.
91. BUTLER, ENTREPRENEURSHIP, supra note 63, at 36.
92. BENNETT, JR., supra note 11, at 84; Butler, Entrepreneurship, supra note 63, at 36.
93. BENNETT, JR., supra note 11, at 79.
94. Id. at 84.
95. Id. (noting that there is abundant evidence supporting this claim).
96. Id. at 84-85.
97. Id. at 446.
98. See generally BENNETT, Jr., supra note 11, at 79; HARRIS, supra note 11, at 23-25.
99. BENNETT, JR., supra note 11, at 78.
100. Id.
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In 1811, Mr. Cuffe traveled to Sierra Leone “attending to missionary duties . . . and exploring the country to determine what opportunities it offered the free Negroes for trade and colonization. He
hoped to encourage trade relations between Sierra Leone and
America and England.”101 Mr. Cuffe, aware of the sentiment held by
some blacks that white America would never change, carried thirtyeight blacks to Sierra Leone in his own ship in 1815.102 Interestingly,
it was anti-black and pro-slavery whites, not blacks, who were behind
the movement to re-settle free blacks to Liberia in the wake of the
Gabriel Prosser slave uprising in Virginia.103 Apparently, most free
blacks believed that a mass exodus of blacks would strengthen slavery
in America and deprive slaves of support and sustenance from free
blacks.104 Cuffe never migrated to Africa and died in Massachusetts
in 1817.105 He was the forerunner of a large number of black Americans who attempted to mix their entrepreneurial efforts with racial
Free blacks engaged primarily in small service businesses.107 In
the North, free blacks ran popular eating and drinking establishments
that, in the 1700s and early 1800s, catered to a white clientele.108 For
example, in the middle 1700s, an emancipated slave named Emmanuel
established the first oyster and ale house in Providence, Rhode Island.
Emmanuel was the forerunner of a large number of black saloon
keepers, restaurant owners, and caterers who followed in the next
century.109 Emmanuel, at his death in 1769, left an estate of valued at
539 pounds and 10 shillings.110
In 1800, Thomas Downing, in the footsteps of Emmanuel, established and operated a restaurant near Wall Street in New York.
Downing’s restaurant served New York’s professional and commercial
101. HARRIS, supra note 11, at 24.
102. BENNETT, Jr., supra note 11, at 145-46; Harris, supra note 11, at 24-25.
103. BENNETT, JR., supra note 11, at 144-45. For example, the Maryland legislature fearing
the increase in the population of free slaves because of free blacks purchasing the freedom of
their relatives, passed a statute providing that all slaves freed thereafter should be exiled to
Liberia. HARRIS, supra note 11, at 5. In 1800, Gabriel Prosser, a slave insurrectionist, planned
to lead thousands of slaves in an attack on Richmond, Virginia. The plan failed and authorities
arrested, tried, and hung Prosser and fifteen of his followers. See THE AFRICAN AMERICAN
ALMANAC, supra note 11, at 11.
104. BENNETT, JR., supra note 11, at 146.
105. Id. at 145-46.
106. HARRIS, supra note 11, at 25.
107. Id. at 1-12.
108. Id. at 14.
109. Id.
110. Id.
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classes at this location for over thirty years.111 George Bell, George
Alexander, and Austin Steward operated similar businesses in nearby
neighborhoods.112 Similarly, in the early 1800s, caterers Prosser and
Minton served the leading citizens of Philadelphia.113 The restaurant
business was a significant source of business for black people throughout the North during this period.114
Free blacks in the South had practically no competition in operating personal service enterprises “where their social position had long
habituated them to the obsequiousness and humility necessary for
conducting this type of business.”115 Black enterprises operating barbershops, livery stables, and tailoring shops provided a source of considerable income for free blacks in the South prior to the Civil War.116
Moreover, knowledge and performance of skilled trades in the
South—for example, carpentry, the blacksmith trade, shoemaking—
were concentrated almost exclusively among blacks.117 White masters
forced their servants to become proficient carpenters, blacksmiths,
shoemakers, and tailors to avoid the expense of obtaining white labor
to perform these skilled services.
In the North, free blacks did not engage in the skilled trades to
the same extent as in the South.118 However, in 1840, free blacks in
New York City “were publishing a Newspaper, The Colored American
. . . operating two first class restaurants in the downtown financial district, six boarding houses, a hairdressing establishment, two dry good
stores, two coal yards, four pleasure gardens, a confectionery and a
fruit store.”119
Free blacks, however, entered into businesses that represented
virtually every sector of the business community. For example, Henry
M. Collins of Pittsburgh, Pennsylvania, was engaged in real estate brokerage and development.120 Samuel T. Wilcox, a merchant in Cincinnati, Ohio built a wholesale grocery store in 1850 and soon became
BUTLER, ENTREPRENEURSHIP, supra note 63, at 42.
HARRIS, supra note 11, at 12.
Id. at 12-13.
BUTLER, ENTREPRENEURSHIP, supra note 63, at 44.
HARRIS, supra note 11, at 11.
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the largest dealer in provisions in the city; he invested heavily and
profitably in real estate and had a fairly sizeable net worth upon his
In the 1840s, Stephen Smith of Columbia, Pennsylvania, was one
of the wealthiest black men in the country before the Civil War. He
and William Whipper engaged in the coal and lumber business. Smith
individually owned approximately fifty houses in the city of Philadelphia, and several more in Lancaster and Columbia, Pennsylvania.122
By 1864, statisticians placed Smith’s net worth at $500,000.00.123
Henry Boyd, who was in the manufacturing business, was born a
slave in Kentucky on May 14, 1802, and learned cabinetmaking from
one of his masters. In 1826, at the height of his trade, he settled in
Cincinnati, formed a partnership with a white man, manufactured all
types of furniture, and hired twenty to fifty black and white workmen.
Boyd also invented a machine for turning the rails of a bed but failed
to obtain a patent. His factory was equipped with improved machinery, and the Boyd Bedstead had a national market.124 “His success
aroused the antagonism of his fellow townsmen [who] burned him out
four times. Three times he rebuilt, but the fourth blaze compelled him
to yield since insurance companies failed to insure the risk.”125 James
Forten of Philadelphia, who lived between 1766 and 1841, operated a
major manufacturing firm that made sails; by 1829, his manufacturing
operations employed approximately forty black and white employees.
Forten was reputed to be worth $100,000.00 in 1832.126
A few enterprising slaves were allowed to engage in business ventures through the paternalism of liberal masters.127 Due to their status, these slaves could not become true entrepreneurs. They did,
however, use what earnings they generated to purchase freedom for
121. Id. at 19, 28.
122. BUTLER, ENTREPRENEURSHIP, supra note 63, at 39; HARRIS, supra note 11, at 21, 27.
123. BUTLER, ENTREPRENEURSHIP, supra note 63, at 39; HARRIS, supra note 10, at 27.
124. HARRIS, supra note 11, at 22.
125. Id. at 22. BUTLER, ENTREPRENEURSHIP, supra, note 63, at 43 (commenting on this
event, observed that: “[T]he experiences of Henry Boyd are more than interesting. They alert us
to a very important aspect of competition within the American business world—namely, the
tendency of Euro-Americans to view significant profits in an enterprise to be reserved for themselves. Their reaction to Boyd’s success repeats itself systematically in the literature on race and
business experience.”).
126. HARRIS, supra note 11, at 7. Forten’s enterprise, however, faced great odds in adjusting
to steam transportation, which was already proving itself to be adaptable to river and ocean
commerce. Id. at 21; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 39.
127. BUTLER, ENTREPRENEURSHIP, supra note 63, at 36.
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their families and themselves.128 Lunsford Lane,129 Robert
Gordon,130 Robert Clark,131 and Free Frank132 are examples of slaves
who used tips from providing services to whites to purchase their freedom and start business enterprises.
The story of Lunsford Lane, as recounted by Abram Harris in his
book, The Negro as Capitalist,133 is a particularly illuminating example
of the ingenuity and resourcefulness of slaves who used their tips to
purchase their freedom and pursue entrepreneurial endeavors. Lane’s
experiences also portray the difficulties these men faced134 in achieving a degree of economic security during the era of slavery before the
Civil War. Abram Harris describes135 the journey of Lunsford Lane
as follows:
Lunsford Lane was the house servant of Sherwood Haywood, a
prominent citizen of Raleigh, North Carolina. Lane purchased
practically all of the food that the household required. Often he
secured bargains on his own account when goods were exceptionally
cheap and these he resold later at a profit to himself. His ability as
a waiter became known throughout the city and he was frequently
called upon to attend evening parties. He was paid well for these
services. Another source of income was the tips given him by his
master’s guests. During his free hours he ran errands for the
merchants of the city and did general cleaning around the stores.
When the legislature was in session he earned small sums by performing menial services for the delegates. His first business venture
was that of furnishing the members of the legislature with smoking
tobacco. His father had taught him a process of preparing tobacco
in a way that made it unusually pleasant and he sold large quantities
of the product at fifteen cents a quarter of a pound. Later he made
pipes which he sold for ten cents. In order to have more time for
these operations Lane hired his time from his master at a rental of
from $100 to $120 a year. Within eight years he was selling tobacco
throughout the state and had accumulated a surplus of $1,000 over
the rental which he paid his master. With this money he purchased
128. Id. at 36; HARRIS, supra note 11, at 4-5.
129. HARRIS, supra note 11, at 11, 17-19.
130. Id. at 20.
131. Id. at 13.
132. BUTLER, ENTREPRENEURSHIP, supra note 63, at 46 (citing Juliet E.K. Walker, Racism,
Slavery, and Free Enterprise 364 BUS. HIST. REV., Autumn 1986, at 60).
133. HARRIS, supra note 11, at 11, 17-19.
134. Id. at 17-19.
135. HARRIS, supra note 11, at 17, cites to W.G. HAWKINS, LUNSFORD LANE (1863) in
describing the story of Lunsford Lane.
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his freedom. But the papers could not be recorded in Raleigh since
it was against the state law for a slave to gain freedom by any other
means than meritorious service. He therefore made a trip to New
York in company with his master’s agent and negotiated the transaction there. Upon returning to Raleigh, Lane converted his business into a general merchandise store and also opened a wood yard.
His patrons included the leading citizens. In 1839 he bought a
house and lot for $500 and agreed to pay $2500 for the freedom of
his wife and six children.
During this time Lane was exceptional in his public conduct
trying at all times to retain the friendship of the slave owners. His
steady progress, however, did not go unnoticed. Sentiment began to
grow against him. Finally a group composed of ‘poor whites’ and
the younger sons of slave owners rose up demanding his expulsion
from the state. In consequence, Lane, who had been legally freed in
New York was expelled from the state on the basis of a statute that
forbade free blacks from other states to take up residence in North
Carolina. Lane then went to Philadelphia and finally to New York
where he was engaged to lecture on southern slavery. In 1842 he
requested the written permission of the Governor of North Carolina
to allow him to return to that state for the final settlement of his
accounts. The Governor was powerless to grant this request but advised Lane to come on anyway on the chance that he would not be
molested. Shortly after arriving, Lane was arrested on the charge of
making abolitionist speeches in Massachusetts. The case was dismissed by the Mayor. In spite of the precautions of the police he
was seized by a mob at night fall, tarred and feathered, and driven
from the state. Upon returning North he attempted to recoup his
business losses by placing upon the market a proprietary herb
medicine which he called Dr. Lane’s Vegetable pills. But this as
well as his real estate investments turned out poorly.136
As seen in the story of Lunsford Lane, the situation for free
blacks was not much better than the circumstances of slaves. Prior to
America’s independence from Britain, the colonies enacted laws to
limit the rights of free blacks. Some of the colonies denied free blacks
the right to vote, carry weapons,137 or serve as witnesses in court cases
against white persons.138 In the 1800s, some of the states in the newly
independent United States of America enacted laws that restricted the
136. Id. at 17-19.
137. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 6.
138. Id. (referring to a Virginia law enacted in 1705 which forbade any black person from
serving as a witness in court cases). In 1744, Virginia amended the law to allow free blacks to
testify in legal proceedings involving other black people. Id.
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rights and movements of free blacks,139 established higher property
and residency requirements for blacks as a precondition for them to
vote,140 denied free blacks the right to vote,141 prohibited free blacks
from meeting in groups of more than five persons,142 required the deportation of free blacks,143 attempted to expel free blacks because of
complaints from white businessmen that free black laborers and entrepreneurs monopolized some of the service industries,144 and prohibited whites from teaching the free black children to read.145
Prior to the Civil War, free blacks in the 1700s and the 1800s laid
the foundation for the black business tradition.146 White hostility and
intense racism forced blacks into entrepreneurial undertakings as a
means of economic survival.147 Historically, black business development, has been greatest when racism, discrimination, and poverty
have been at their highest levels.148
Black entrepreneurs prior to the Civil War were self-starters with
no form of government assistance.149 They developed restaurants, catering, and tavern businesses that served a white clientele outside of
the black community. In these personal service enterprises, the free
blacks had practically no competition because whites tended to avoid
such businesses because of their servile status.150 These businesses
flourished until the large influx of Europeans immigrated151 to the
139. Id. at 11 (giving an example of state legislation enacted in 1804 which restricted the
movement of free blacks).
140. Id. at 12. In 1821, for example, the New York legislature enacted a law which established higher property and residence requirements for free black persons. Id.
141. Id. at 12. In 1822, for example, the Rhode Island Legislature enacted a law which denied free blacks the right to vote. Id.
142. Id. In 1823, for example, the Mississippi Legislature enacted a law which prohibited
free blacks from meeting in groups of more than five persons. Id.
143. Id. at 13. In 1830, many states, in an attempt to counter the abolitionist movement
passed laws requiring, among other things, the deportation of free blacks. In 1851, Virginia
passed new laws requiring freed slaves to leave Virginia within a year or be enslaved again. Id.
at 15.
144. Id. at 17. In 1859, for example, the State of Maryland unsuccessfully attempted to pass a
resolution to expel free blacks from the State of Maryland because of complaints that free blacks
monopolized certain service industries. Id.
145. Id. at 14. In 1834, South Carolina enacted a law prohibiting the teaching of black children whether free or slave. Id.
146. BUTLER, ENTREPRENUERSHIP, supra note 63, at 42-43, 77, 292.
147. Id. at 292.
148. Id.
149. Id. at 294.
150. Id. at 40.
151. Id. at 62 (noting the effect of the great European migration beginning in the 1840s on
black businesses which previously had no competition).
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United States.152 These immigrants effectively ended black entrepreneurs’ unimpeded access to this white clientele.
C. Conservative Estimate of the Wealth of the 500,000 Free Blacks
Prior to 1860: Approximately $50 Million; but $75 Million
is a More Realistic Figure
Many persons reading this Article may be surprised to learn
about the economic achievements of free blacks as well as slaves prior
to the Civil War. There is much that today’s generation of blacks and
whites can learn from this bit of American history in terms of the benefits of entrepreneurship and ownership in a capitalistic economy. In
The Negro as Capitalist, the black scholar Abram Harris stated that a
conservative estimate of the wealth of free blacks prior to the Civil
War was approximately $50 million.153
D. Sources of Black Wealth Prior to the Civil War
1. Primarily Real Estate
Free blacks did not own much real estate during the colonial
years of U.S. history.154 Their holdings increased, however, between
the Revolutionary War and the Civil War.155 This is illustrated by the
growth in real estate holdings by free blacks in Pennsylvania, New
York, and Ohio.156 Free blacks in slave states also acquired real estate. Approximately 3,777 blacks also owned slaves as personal property by 1830.157 Benevolent motives seemed to be an important factor
in such purchases.158 However, some black slave owners seemed motivated by economic gain in purchasing other blacks as slaves.159
2. Other Sources: Stocks, Bonds, and Annuities
Free blacks’ ownership of stocks, bonds, and annuities was negligible due to restrictions prohibiting blacks from becoming stockholders and depositors.160 However, they were able to own securities and
Id. at 72-73.
HARRIS, supra note 11, at 10-11.
Id. at 6.
Id. at 6-9.
Id. at 4.
Id. at 4-6.
Id. at 5-6.
Id. at 10.
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other investments in some jurisdictions where these prohibitions were
not rigorously enforced.161
E. Business Pursuits of Free Blacks and Slaves Prior to the Civil
The business enterprises owned by blacks prior to the Civil War
included barber shops,162 livery stables,163 tailoring, and clothing businesses,164 cooking, catering, restaurant and drinking establishments,165
farming enterprises,166 real estate brokerage and development companies,167 merchandising, retailing and commercial undertakings,168
manufacturing and building,169 water transport, and trade businesses.170 Additionally, free blacks began their first activities in banking and money lending businesses prior to the Civil War.171
These free black entrepreneurs faced numerous obstacles in
growing their businesses.172 Some of these obstacles included difficulty in obtaining credit,173 mob violence by whites who resented successful black business persons,174 prohibitions against black ownership
of certain types of property, and denial of the right to sue.175 In response to these obstacles, free black persons formed mutual assistance
organizations176 and began their first attempts to engage in banking
Id. at 12.
HARRIS, supra note 11, at 12-13.
Id. at 13.
Id. at 14-15.
Id. at 15-16.
Id. at 17.
Id. at 17-21.
Id. at 21-23.
Id. at 23-25.
Id. at 26-27.
Id. at 29-30.
As early as 1789, records show that blacks found it difficult to borrow money. BUTLER,
ENTREPRENEURSHIP, supra note 63, at 40. They managed, however, through hard work to overcome these obstacles. Id. at 40. Blacks organized mutual assistance societies to generate capital.
Id. This, in turn, led to the development of private lending businesses which were the precursors
to efforts to organize black banks. Id. at 41. It was difficult, however, as a general matter for
blacks to obtain sources of credit to finance their ventures. There are, however, many explicit
references in the historical records which indicate that some enterprising blacks were able to
obtain loans. See HARRIS, supra note 11, at 28. Harris noted that the enterprising blacks of
Charleston, South Carolina, Solomon Humphries of Macon, Georgia, Stephen Smith and William Whipple of Pennsylvania, and Samuel Wilcox of Ohio were able to borrow from white
institutions to finance their business enterprises. Id. (citing C.W. Birnie, The Education of the
Negro in Charleston, South Carolina, Prior to the Civil War, 12 J. NEGRO HIS. 13 (1927)).
174. HARRIS, supra note 11, at 29-30.
175. Id. at 29-30.
176. Id. at 25-30.
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and money lending businesses. In the decade prior to the Civil War,
free blacks in New York and Philadelphia held meetings to discuss the
establishment of a bank.177 However, “[n]othing came of these proposals.”178 The wealth of free black persons prior to the Civil War is
impressive when viewed in light of the obstacles confronting them.
However, because of the hostility and numerous obstacles they faced,
“[o]nly a pitifully small number of free [blacks] [could] be considered
wealthy even when judged by the business standards of that day.”179
It was these obstacles that prevented free blacks from developing
large business enterprises and a wealthy class of black businessmen
prior to the Civil War.180
F. Why Black Entrepreneurial Activities Prior to the Civil War are
Utterly Amazing
1. The South’s Preoccupation in Maintaining Slavery
The political climate was particularly hostile to black people prior
to the Civil War. The Southern states were politically committed to
the indefinite enslavement of black people as part of the operation of
the Southern economy. Therefore, the economic accomplishments of
black persons during this period are somewhat astonishing. However,
the Northern states had effectively recognized the immorality of slavery prior to the Civil War. All of the states north of the Mason-Dixon
Line181 had enacted laws prohibiting slavery by 1804.182 The Southern
states, however, were preoccupied with legal maneuvering in Congress to maintain slavery at all costs during the time that free blacks
were attempting to achieve a measure of economic security in the
United States. Slavery and the role of black people in this country
177. Id. at 29-30.
178. Id. at 29.
179. Id.
180. Id.
181. The Mason–Dixon Line is the boundary line between Pennsylvania on the north and
Maryland on the south. The Mason-Dixon Line is the line celebrated as the line of demarcation
between the slave and free states. Charles Mason and Jeremiah Dixon, commissioners in a dispute between the Penn Proprietors and Lord Baltimore, ran the line. The line extended 244
miles to the Delaware River where Indians stopped it. See BLACK’S LAW DICTIONARY 503
(Abridged 5th ed. 1983).
182. Massachusetts became the first state to legalize slavery in 1641. See THE AFRICAN
AMERICAN ALMANAC, supra note 11, at 4. The Massachusetts Supreme Court, however, abolished slavery in 1783 and granted blacks, in taxable categories, the right to vote. Id. at 9. New
York abolished slavery on July 4, 1827. Id. at 13. The number of slaves in the English colonies in
1700 was approximately 28,000. Approximately 23,000 of these slaves, however, resided in the
South. Id. at 5. Upon New Jersey’s passage of an emancipation law in 1804, all states north of
the Mason-Dixon Line had enacted laws forbidding slavery. Id. at 11.
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were at the root of every significant piece of legislation that led to the
Civil War. The economic importance of maintaining slavery in the
South was clear. Excluding World War II, the number of Americans
who died in the Civil War exceeds the deaths of Americans in all other
wars combined.183 The continued legal recognition of slavery and the
status of black persons as property clearly delayed the economic
emancipation of black persons in the United States.
Nevertheless, in some instances free blacks were achieving fairly
remarkable economic progress and gaining financial solidarity in the
late 1700s. The Southern states’ preoccupation with ensuring the continuance of slavery, however, was playing itself out in Congress to the
detriment of both free and enslaved blacks. For example, the Northwest Ordinance of 1787, which Thomas Jefferson drafted,184 barred
slavery from the territory that became the states of Ohio,185 Indiana,186 Illinois,187 Michigan,188 and Wisconsin,189 to insure that the
number of free and slave states would be equal as the United States
spread westward. Similarly, the admission of Kentucky,190 Tennessee,191 Alabama,192 Mississippi,193 and Louisiana194 to statehood was
done in a manner to ensure that the number of free and slave states
remained equal.
Other significant legislation that followed witnessed a nation focused on matters other than economic and social liberation of enslaved and free black people in America. The Missouri Compromise,
enacted in 1820, provided that Missouri195 would enter the Union as a
slave state while Maine196 would enter as a free state.197 This scheme
183. See Laura Stanton & Seth Hamblin, Remembering the Fallen, WASH. POST, May 26,
2003, at A7.
(Mark C. Carnes ed., Routledge 2000).
185. The United States admitted Ohio as a state on March 1, 1803. See WORLD ALMANAC
2003, supra note 14, at 382.
186. The United States admitted Indiana as a state on December 11, 1816. Id. at 371.
187. The United States admitted Illinois as a state on December 3, 1818. Id. at 370.
188. The United States admitted Michigan as a state on January 26, 1837. Id. at 374.
189. The United States admitted Wisconsin as a state on May 29, 1848. Id. at 389.
190. The United States admitted Kentucky as a state on June 1, 1792. See id. at 372.
191. The United States admitted Tennessee as a state on June 1, 1796. Id. at 385.
192. The United States admitted Alabama as state on December 14, 1819. Id. at 364.
193. The United States admitted Mississippi as a state on December 10, 1817. Id. at 376; see
also THE AFRICAN AMERICAN ALMANAC, supra note 11, at 12.
194. The United States admitted Louisiana as a state on April 30, 1812. See WORLD ALMANAC 2003, supra note 14, at 372.
195. The United States admitted Missouri as a state on August 10, 1821. WORLD ALMANAC
2003, supra note 14, at 376.
196. The United States admitted Maine as a state on March 15, 1820. Id. at 373.
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allayed fears that the South would gain more influence in the U.S.
Senate.198 The South agreed to outlaw slavery north of “36° 30'” latitude, a line extending west from Missouri’s southern border.199 The
compromise made the new territory of Arkansas, present day
Oklahoma200 and Arkansas,201 open to slavery, but barred slavery
from the remainder of the Louisiana Purchase. Accordingly, under
the Missouri Compromise, the United States barred slavery in the areas consisting of present day Kansas,202 Nebraska,203 Colorado,204
Minnesota,205 Iowa,206 Montana,207 Wyoming,208 North Dakota,209
and South Dakota.210
The Compromise of 1850 attempted to address the issue of slavery’s expansion as a result of the U.S. victory in the Mexican American war.211 The territory covered land that would become the states
of California,212 Nevada,213 Utah,214 New Mexico,215 and Arizona.216
The Compromise of 1850 provided that the United States would fulfill
the following requests: admit California as a free state; organize the
rest of the territories without restrictions on slavery; outlaw the slave
trade in the Capitol Washington, D.C. (but not slavery itself); and enact a tougher Fugitive Slave Act.217
Congress enacted the Kansas-Nebraska Act in 1854 because
Southern senators foresaw that, under the Missouri Compromise,
197. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 12.
198. See EARLE, supra note 184, at 54.
199. Id.
200. The United States admitted Oklahoma as a state on November 16, 1907. WORLD ALMANAC 2003, supra note 14, at 382. This took place well after the political balancing act to maintain
an even split between free and slave states became unnecessary with the advent of the Civil War
in 1861.
201. The United States admitted Arkansas on June 15, 1836. Id. at 365.
202. The United States admitted Kansas as a state on January 29, 1861. Id. at 372.
203. The United States admitted Nebraska as a state on March 1, 1867. Id. at 377.
204. The United States admitted Colorado as a state on August 1, 1876. Id. at 366.
205. The United States admitted Minnesota as a state on May 11, 1858. Id. at 375.
206. The United States admitted Iowa as a state on December 28, 1846. Id. at 371.
207. The United States admitted Montana as a state on November 8, 1889. Id. at 377.
208. The United States admitted Wyoming as a state on July 10, 1890. Id. at 389.
209. The United States admitted North Dakota as a state on November 2, 1889. Id. at 381.
210. The United States admitted South Dakota as a state on November 2, 1889. WORLD
ALMANAC 2003, supra note 14, at 385.
211. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 15.
212. The United States admitted California as a state on September 9, 1859. See WORLD
ALMANAC 2003, supra note 14, at 366.
213. The United States admitted Nevada as a state on October 31, 1864. Id. at 378.
214. The United States admitted Utah as a state on January 4, 1896. Id. at 386.
215. The United States admitted New Mexico as a state on January 6, 1912. Id. at 379.
216. The United States admitted Arizona as a state on February 14, 1912. Id. at 365.
217. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 15.
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slavery would be prohibited in each state carved out of Nebraska Territory and some parts of Kansas territory. The Act repealed that part
of the Missouri Compromise that prohibited slavery in the territory
above “36° 30' latitude” in favor of allowing “popular sovereignty” to
determine the issue.218 Battles between pro-slavery and anti-slavery
forces attempting to settle Kansas became known as “Bleeding
In 1857, the U.S. Supreme Court, in Dred Scott v. Sandford,220
attempted to resolve the question of slavery in the territories in one
comprehensive decision. The Supreme Court’s consideration of the
case was set against the backdrop of mounting tensions surrounding
“Bleeding Kansas,” which threatened to draw the nation into open
warfare. The case involved a slave, Dred Scott, who argued that his
stay in territory above the “36° 30'” latitude made him a free man
after his owner died. The Supreme Court held that the Missouri Compromise was unconstitutional,221 and noted, among other things, that
the Constitution’s reference to “citizens” and the Preamble’s reference to “We the People” did not include blacks of African descent;222
that Congress had no power under the Constitution to keep slavery
out of any territory;223 and that the case should not have been heard in
the first place since slaves of African descent were not citizens of the
United States.224 The case was certainly a surprise to many free
blacks who were legal citizens in several Northern states.225 The Dred
Scott case was clearly one of the driving forces leading to the Civil
By 1859, there were fifteen free states and an equal number of
slave states.227 On December 20, 1860, South Carolina voted to repeal
218. Id. at 16.
219. See EARLE, supra note 184, at 58.
220. 60 U.S. (19 How.) 393 (1856).
221. Id. at 452. See generally id. at 449-52.
222. Id. at 404-07, 410-11.
223. Id. at 449-52.
224. Id. at 410-11, 454.
225. See EARLE, supra note 184, at 59.
226. See BENNETT, JR., supra note 11, at 178.
227. The slave states were Delaware, Georgia, Maryland, South Carolina, Virginia, North
Carolina, Kentucky, Tennessee, Louisiana, Mississippi, Alabama, Missouri, Arkansas, Florida,
and Texas. The free states were Pennsylvania, New Jersey, Connecticut, Massachusetts, New
Hampshire, New York, Rhode Island, Vermont, Ohio, Indiana, Illinois, Maine, Michigan, Iowa,
Wisconsin, and California. See generally EARLE, supra note 184, at 35; WORLD ALMANAC 2003,
supra note 14, at 364-90 (data on states and other areas of the United States). The United States
admitted Minnesota to statehood on May 5, 1858, and left it to the people of that state to decide
the issue of slavery. The United States admitted Oregon as a state on February 14, 1859 and left
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its 1788 ratification of the U.S. Constitution. Ten other states voted,
in convention, to secede from the United States of America in 1861:
Mississippi (January 9), Florida (January 10), Alabama (January 11),
Georgia (January 19), Louisiana (January 26), Texas (February 1),
Virginia (April 17), Arkansas (May 6), Tennessee (May 7), and North
Carolina (May 21).228
On February 8, 1861, seven southern states voted to form the
Confederate States of America and named Jefferson Davis of Mississippi as provisional President.229 These states adopted a provisional
Constitution for the Confederate States of America. On March 11,
1861, the Confederate states adopted a permanent Constitution that
abolished the African slave trade, but did not bar interstate commerce
in slaves.230 On July 20, 1861, the Confederate Congress moved to
Richmond, Virginia. In October 1861, the Confederate Congress
elected Jefferson Davis as the permanent President and inaugurated
him on February 22, 1862.
The Civil War began on April 12, 1861, when the Confederates
fired upon Fort Sumter in Charleston, South Carolina and captured it
on April 14, 1861.231 The Civil War ended on April 9, 1865, when
General Robert E. Lee surrendered 27,800 Confederate troops to
General Ulysses S. Grant at Appomattox Court House in Virginia.232
The Civil War resulted in more American deaths than any war other
than World War II. No other war in which Americans have fought,
except World War II, even comes close to the number of people,
214,938, killed during the Civil War. The combined deaths of all other
wars, excluding World War II, do not exceed this number.233 Matters
of race have always been near the center of American life.
it to the people of that state to decide the issue of slavery. The United States admitted Kansas as
a state on January 29, 1861, on the eve of the Civil War. See THE WORLD ALMANAC 2003, supra
note 14, at 364-90.
228. See WORLD ALMANAC 2003, supra note 14, at 551; see also EARLE, supra note 184, at
229. WORLD ALMANAC 2003, supra note 14, at 530.
230. Id. at 552.
231. Id. at 530.
232. Id.
233. See Stanton & Hamblin, supra note 183 (detailing American deaths for every American
war through charts with pictures and statistics). The combined American deaths in all wars,
excluding World War II, totaled 158,519 compared to the 214,938 deaths during the Civil War.
The breakdown, excluding World War II and the current war in Iraq, is as follows: American
Revolution (4,435); War of 1812 (2260); Indian Wars (1000); Mexican War (1,773); Spanish
American War (385); World War I (53,198); Korean War (36,516); Vietnam War (58,198); Persian Gulf War (382); Afghanistan War (69). Id. In World War II, 291,557 Americans died. Id.
In the most recent war and subsequent occupation in Iraq, 1,078 Americans have died, as of
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2. Many Whites Did Not Consider Blacks to Be Fully Human
During This Era
The Declaration of Independence’s statement in 1776 of universal
equality did not apply to blacks.234 Under the U.S. Constitution ratified in 1787, blacks counted as “three-fifths of all other persons for
political representation purposes.”235 The Constitution also prevented Congress from prohibiting the slave trade until 1808236 and
sought to ensure that “escaping” slaves would be returned to their
In Prigg v. Pennsylvania,238 the Supreme Court made it clear that
any state effort to prevent individuals from capturing and returning
slaves to their owners was preempted by the Fugitive Slave Act of
1793.239 In Dred Scott v. Sandford,240 the Court gave the clearest exposition on the attitude of white Americans toward blacks. The Court
stated that white people regarded blacks of African origin as no more
than an article of property;241 that the white race considered blacks to
be of an inferior order and altogether unfit to associate with the white
race;242 that blacks had no rights which the white man was bound to
respect; and that whites could lawfully reduce blacks to slavery for the
benefit of blacks since whites deemed blacks too stupid to make wise
These statements and legal enactments emanating from the majority race indicate that the economic achievements of black persons
who lived during this era were truly remarkable.
October 12, 2004. War in Iraq, Forces: U.S. Coalition and Casualties, at
casualties/SPECIALS/2003/Iraq/forces/casualties (last visited Oct. 12, 2004).
234. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 411.
235. Id. at 412.
236. U.S. CONST. art. I, § 9, cl. 1; see THE AFRICAN AMERICAN ALMANAC, supra note 11, at
237. U.S. CONST. art. IV, § 2.
238. 41 U.S. 539 (1842). In Prigg v. Pennsylvania, the U.S. Supreme Court held that a Pennsylvania anti-kidnapping law was unconstitutional since the authority to regulate the recapture
of slaves was an exclusive power of the Congress. The case arose when Pennsylvania courts
convicted Edward Prigg of kidnapping when he recaptured an escaped slave. See generally THE
AFRICAN AMERICAN ALMANAC, supra note 11, at 15.
239. See THE AFRICAN AMERICAN ALMANAC, supra note 11, at 412.
240. 60 U.S. (19 How.) 393 (1856).
241. Id. at 407-08.
242. Id. at 407.
243. Id.
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A. Overview
The United States probably would not need affirmative action today244 if Congress had continued its progressive legislative course during the Reconstruction era following the Civil War.245 Reconstruction
Era politics represented “the expression of a profound economic
change” in the United States and Western Europe—“the triumph of
capitalistic finance and industry over agrarianism and the plantation
economy”246 The ascendance of capitalism was accompanied by “new
political ideals” stressing “legal equality and universal suffrage for
men.”247 The goal of equal citizenship was a middle-class conception
that carried with it the right to vote, hold office, acquire property, and
achieve economic independence.248
In this context, Congressman Thaddeus Stevens and the radical
republicans viewed equal citizenship for the recently freed slaves and
all blacks as the best means of assimilating black people into the
American mainstream.249 Both conservative and radical republicans
believed that opportunities for blacks to obtain education, wealth, and
political equality were necessary attributes of full citizenship.250 In
the first decade after the Civil War, Congress proposed and obtained
passage of constitutional amendments and statutes providing civil liberty and equality for blacks. During this period, the federal government and states were instrumental in establishing universities for
blacks.251 On March 3, 1865, Congress chartered the Freedman’s
Conservative republicans supported the radicals, in part, to get
the support of the black vote to further their economic interests. After achieving their economic goals, the conservative republicans tacitly
accepted the disenfranchisement and segregation of blacks in the new
See discussion supra text accompanying notes 36-38, 45-48.
See discussion supra text accompanying note 38.
HARRIS, supra note 11, at 31.
Id. at 31.
Id. at 32.
Id. at 34-56.
Id. at 31.
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The eventual rift in attitudes between the radical and conservative republicans led to “two separate and antagonistic approaches” for
blacks to achieve equality and economic liberty.254 Abram Harris, a
black scholar writing in the 1930s, referred to the first approach as the
“militant civil libertarian” program of W.E.B. Du Bois and the second approach as Booker T. Washington’s “program of conciliation,
thrift and industry.”255
The Du Bois approach led to the dismantling of governmentally
enforced segregation of blacks and the enactment of congressional
legislation seeking to affirmatively assist black businesses which had
been long excluded from the ability to compete in the general American economy under the separate but equal doctrine of Plessy v. Ferguson.256 The Du Bois approach also led to congressional legislation
prohibiting racial discrimination by private and governmental entities
in employment, housing, and public accommodations.257
Washington’s approach, that blacks could achieve wealth through
business ownership and thrift notwithstanding the vicious system of
enforced racial segregation, is often dismissed because of Washington’s passive acceptance of the system of legal segregation as just a
sad fact of life. However, Washington’s approach arguably leads to
greater wealth and self determination for blacks assuming an equal
playing field in the economic market.258
B. President Lincoln and President Johnson’s Leniency with the
Conquered South Caused Congress to Pass the Military
Reconstruction Legislation
The Civil War established the supremacy of the federal government over the states and ended the doctrines of nullification and secession.259 The Civil War also destroyed the influence of southern
planters in national government and gave dominance to northern industrialists. Consequently, businessmen carried the nation into a new
period of industrialization and Western expansion.260
President Lincoln’s plan for bringing the defeated states of the
Confederacy back into membership in the United States imposed very
Id. at 32.
163 U.S. 537 (1896).
See discussion infra notes 663-65, 679-81 and accompanying text.
See discussion infra notes 575-77 and accompanying text.
Reconstruction, in 2 THE VOLUME LIBRARY 1728 (1995) [hereinafter Reconstruction].
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few restrictions. Lincoln’s plan provided that each of the formerly rebellious states could establish its own government if ten percent of
their respective citizens who voted in 1860 swore to faithfully defend
the Constitution of the United States and voted to abolished slavery.261 In response, the radical republicans passed the Wade-Davis
Bill, a much harsher plan which required that a majority of white
males in the former Confederate states swear to have never supported
the Confederacy, abolish slavery, and repudiate debts and acts of
President Johnson asserted that the reconciliation policy was an
executive branch decision. President Johnson demanded that the reorganized states repudiate Confederate debts and acts of secession,
and legally end slavery by ratifying the Thirteenth Amendment. President Johnson stated that he would grant a full pardon to anyone, including former Confederate officials, who swore allegiance to the U.S.
Constitution. All the former Confederate states, except Texas, met
President Johnson’s demands by December 1865.263
C. Although the Reorganized Southern States Ratified the
Thirteenth Amendment, Their Enactment of Black Codes
Showed That They Did Not Intend to Give Equal
Rights to Blacks
The reorganized states ratified the Thirteenth Amendment, but
did not intend to give equal rights to the newly freed blacks, whom
people referred to as freedmen. As the reorganized states drew up
their new state laws, they incorporated a number of pieces of legislation called Black Codes.264 The Black Codes relegated freedman to
social, economic, and political inferiority. They forbade blacks from
carrying arms, governed their employment, and imposed curfews
upon the freedmen.265 Additionally, legislators gave “masters” the
right to whip “servants” under the age of eighteen. Whites could punish blacks for “insulting gestures,” “seditious speeches,” and the
“crime” of walking off the job.266 These legislative acts further post261.
Id.; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 63.
Reconstruction, supra note 259, at 1728.
BENNETT, JR., supra note 11, at 224-25.
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poned the inclusion of African Americans into the economic fabric of
D. The Reconstruction Act of 1867, Like Other Legislation of This
Era, Passed Over the Veto of President Johnson
Congress passed legislation creating the Freedmen’s Bureau on
March 3, 1865.267 The Freedmen’s Bureau was the first federal welfare agency.268 The Bureau gave direct aid, established hospitals, day
schools, night schools, industrial schools, institutes, and colleges.269
Congress renewed the Freedmen’s Bureau and extended its powers to
protect blacks in February 1866. President Johnson vetoed this legislation. Congress, however, passed a new version in July and overrode
Johnson’s veto.270
Similarly, in April 1866, Congress passed the Civil Rights Act declaring Freedmen citizens entitled “to full and equal benefits of the
laws.”271 President Johnson, on the grounds of states’ rights, vetoed
this legislation. Congress promptly overrode President Johnson’s
veto.272 Congress, fearing that the Supreme Court might agree with
President Johnson, proposed the Fourteenth Amendment to the Constitution. President Johnson objected to the Fourteenth Amendment
as an invasion of states’ rights and advised the southern states not to
ratify it.273 However, without the Fourteenth Amendment the pronouncement in Dred Scott v. Sanford that persons of African descent
were not citizens of the United States would, arguably, remain the law
of the land.274
Republicans who opposed President Johnson in the congressional
elections of 1866 won overwhelmingly. Congress quickly passed the
Reconstruction Act of 1867 over Johnson’s veto.275 Moreover, Congress made clear that the former Confederate states would not be
readmitted to the Union unless they ratified the Fourteenth
Id. at 218.
Reconstruction, supra note 259, at 1728.
BENNETT, JR., supra note 11, at 224-25.
See Reconstruction, supra note 259, at 1728.
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Neither President Lincoln nor his successor, President Johnson,
came to grips with the plight of blacks. As discussed earlier, they both
wanted to readmit southern states upon ten percent of the pre-war
electorate taking an oath of allegiance.277 Moreover, President Johnson appointed conservative provisional governors with pro-slavery biases.278 It was these governments which enacted the infamous Black
Codes, which restricted the rights of freedmen under vagrancy and
apprenticeship laws; gave “masters” the right to whip “servants”
under eighteen; and allowed freedmen to be punished for “insulting
gestures,” “seditious speeches,” and the “crime” of walking off the
job.279 The attitudes expressed in such legislation clearly indicated
that the executive branch of the federal government had no thought of
proposing any programs that would provide for the economic equality
of black Americans. On the other hand, the executive branch was
content on leaving the plight of black Americans to their recently conquered slave masters under the rationale of states rights, the same basis set forth by the Southern states for the Civil War.
Congress instituted military reconstruction for several reasons:
the Black Codes, which placed blacks virtually in a position of servitude; the officially sponsored killings and rapes of black persons; the
burnings of black churches; and the failure of the President Johnson to
do anything to prevent these atrocities from happening.280
A joint congressional committee of fifteen reported on proposed
legislation which put the South under military control and authorized
new elections in which all males, irrespective of race, could participate.281 The tally of qualified voters indicated that black voters outnumbered whites in five states: Mississippi, South Carolina, Louisiana,
Alabama, and Florida. The statistics further indicated that blacks outnumbered whites by majorities of seven, eight, and nine to one in
some counties.282
Senator Charles Sumner283 and Representative Thaddeus Ste284
were the driving forces behind this Reconstruction legisla277.
BENNETT, JR., supra note 11, at 224.
Id. at 224.
Id. at 225.
Id. at 226.
Id. at 226, 233-34 (charts).
Id. at 230.
Id. at 223.
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tion.285 Sumner and Stevens were also responsible for pushing the
Fourteenth and Fifteenth Amendments through Congress and the enabling legislation which sent military troops to the South to protect
the rights of blacks.286
E. The Four Supports upon Which the Economic Rights of Blacks
Depended After the Civil War
The economic rights of blacks depended on four major pieces of
legislation subsequent to the Civil War: the continued military presence of the federal government in the South pursuant to the Reconstruction Act; the Fourteenth Amendment to the U.S. Constitution;
the Fifteenth Amendment to the U.S. Constitution; and the Civil
Rights Act of 1875.287
1. The South Was Divided into Five Military Districts; Voters
Were to Elect a State Convention to Frame a State
Constitution; States Had to Ratify the Fourteenth
The Reconstruction Act divided the South into five military districts each under the control of a military commander. “The [military]
commander was to register the voters, exclude prominent Confederate leaders, and include all other male citizens ‘of whatever race,
color, or previous condition of servitude.’”288 Voters were to elect a
state convention to frame a state constitution. Pursuant to the Reconstruction Act, Congress would readmit the states to the union if Congress was satisfied with the terms of these newly drafted state
constitutions and if the state legislatures ratified the Fourteenth
Amendment.289 By 1871, all former confederate states had reorganized and had been readmitted to the Union.290
2. The Fourteenth Amendment
The Fourteenth Amendment to the Constitution, ratified by the
states in 1868, makes all persons born or naturalized in the United
States, citizens of the United States and of the state where they reside.
Id. at 226.
BENNETT, JR., supra note 11, at 260-61.
Reconstruction, supra note 259, at 1728.
Id. at 1729.
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The Fourteenth Amendment also prohibits the states from enforcing
any law that abridges the privileges or immunities of citizens of the
United States; from depriving any person of life, liberty, or property
without due process of law; and from denying any person within the
jurisdiction of a state the equal protection of the laws.291
3. Because of the Recently Enacted Fifteenth Amendment, Blacks
Had the Right to Vote on All Issues Involving the
Reorganization of the Southern States During the
Period of Military Reconstruction
The Fifteenth Amendment to the Constitution provides that the
rights of citizens of the United States to vote shall not be denied or
abridged by the United States or by any state on account of race,
color, or previous condition of servitude.292 The relationship between
politics and the economic advancement of African Americans in this
country is fairly obvious. The entire post-Civil War legislative agenda,
which consisted of the passage of civil rights statutes and proposed
constitutional amendments, was the result of a massive change in the
political landscape accompanying the victory by the North over the
South. Similarly, the Civil Rights legislation of the 1960s and the
1970s could not have occurred in the absence of a changed political
Congress’ introduction and passage of the Fifteenth Amendment
meant that blacks now had the right to vote. The new black vote was
directly responsible for the election of a notable number of black politicians to state and federal offices.294 White northerners who had
moved to the South following the war (called carpetbaggers) and
southerners who had remained loyal to the Union during the Civil
War and supported Reconstruction (called Scalawags) were exerting
power in state governments.295 A group of disgruntled whites formed
the Ku Klux Klan to end black participation in political elections
through force, intimidation, and murder.296 Congress enacted the
291. U.S. CONST. amend. XIV, § 2; see also BENNETT, JR., supra note 11, at 260; THE AFRIAMERICAN ALMANAC, supra note 11, at 134.
292. BENNETT, JR., supra note 11, at 260; see also THE AFRICAN AMERICAN ALMANAC, supra
note 11, at 135.
293. See discussion infra notes 672-74 and accompanying text. See U.S. CONST. amend. XV.
294. Reconstruction, supra note 259, at 1729; see also BENNETT, JR., supra note 11, at 233-34.
295. Reconstruction, supra note 259, at 1729; see also BENNETT, JR., supra note 11, at 232-33
(noting that in all Southern states, black leaders shared power with carpetbaggers and
296. Reconstruction, supra note 259, at 1729; see also BENNETT, Jr., supra note 11, at 231.
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Force Act of 1870 and the Ku Klux Klan Act in 1871 to outlaw the
activities of the Ku Klux Klan.297
4. The Civil Rights Act of 1875
The Civil Rights Act of 1875 provided that all persons within the
jurisdiction of the United States were entitled to the full and equal
enjoyment of “‘the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other
places of public amusement, subject only to the conditions and limitations established by law and applicable alike to citizens of every race
and color, regardless of any previous condition of servitude.’”298
Success in starting and operating a business requires access to the
general population and the ability to commingle freely with the entire
population. The hallmarks of capitalism consist of government protection of the freedom of economic contract, government protection
of all persons’ rights to own private property, and government protection of an individual’s freedom to choose whether to make business
decisions free from the dictates of others or the routines of tradition.299 The Civil Rights Act of 1875 along with earlier legislation
guaranteeing blacks equal rights in contracting and in property transactions sought to bring blacks into the economic mainstream.300
F. Benefits of Reconstruction
1. South Elected 22 Blacks to Congress; Mississippi Elected 2
Blacks to the U.S. Senate; Louisiana Elected 2 Black
Senators but the Senate Refused to Seat Them; 794
Blacks Elected to State Legislatures and Other
Surprising Positions
Freedmen voted for the first time in the elections held in 1867 to
1868.301 “[T]wenty-two blacks [from Southern states] served in the
U.S. Congress” and “794 blacks served in Southern legislatures”302
297. Reconstruction, supra note 259, at 1729.
298. BENNETT, JR., supra note 11, at 260; see also THE AFRICAN AMERICAN ALMANAC, supra
note 11, at 137.
299. See discussion supra notes 39-44 and accompanying text.
300. See Civil Rights Acts of 1866, ch. 31, 14 Stat. 27, 27 (1866) (codified as amended at 42
U.S.C. §§ 1981, 1982 (2000)) (guaranteeing blacks the same rights as white persons in contracts
and property transactions).
301. BENNETT, JR., supra note 11, at 233.
302. Id. at 233 n.*.
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during the Reconstruction Era.303 Most of the black politicians in
Congress had more formal education than Abraham Lincoln, and
some have been described as brilliant.304 Mississippi and Louisiana
each elected two U.S. Senators during reconstruction, but the Senate
refused to seat them.305 One black served as a state governor;306
blacks in three states served as lieutenant governor.307 Blacks also
served as state supreme court judges,308 education superintendents,
state treasurers, judges, and major military generals.309 These developments were also economically beneficial to African Americans.
2. Blacks and Whites Were Interacting With Each Other Socially
and in Other Ways
Blacks and whites were attending school together, riding on public transportation together, and engaging in other interpersonal relationships protected by the by Civil Rights Act of 1875.310 The South
Carolina House of Representatives was majority black. Additionally,
blacks and whites were cohabiting together in and out of wedlock.311
There were black postmasters, black lawyers, black jurors, and black
judges. All of these improbable events took place during the Reconstruction Era.312 If these developments had continued, African Americans could have, perhaps, achieved economic equality before the
twenty-first century. Thus, if America had stayed the course, the
United States might well have become the colorblind society it is still
seeking to become today.
3. Some Blacks Were Able to Make Substantial Economic
A small number of blacks were able to economically benefit from
the unprecedented change in political and social circumstances during
the first ten years following the Civil War.313 Some laborers were able
to ascend to the artisan class. Some black farmers acquired relatively
Id. at 233-34.
Id. at 236.
Id. at 233 (Mississippi), 234 (Louisiana).
Id. at 234 (Pinchback of Louisiana).
Id. at 233 (South Carolina), 234 (Louisiana), 234 (Florida).
Id. (South Carolina).
Id. at 214-15.
Id. at 215.
BENNETT, JR., supra note 11, at 215.
Id. at 216.
Id. at 252.
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large plots of land. Additionally, a few black politicians made small
fortunes as cotton farmers. They also served as directors of railroads,
steamship companies, oil corporations, and banks.314 As is true today,
many of the benefits of political and legislative change did not reach a
large segment of the black population.315
4. Major Black Colleges Established by Black Organizations and
Others Immediately After the Civil War and During
Black organizations and other entities established several black
institutions of higher education during the period generally referred to
as the Reconstruction Era. These colleges and universities include:
Atlanta University and Virginia Union in 1865; Fisk and Lincoln (Missouri) in 1866; Talladega, Howard, Morgan and Morehouse in 1867;
Hampton in 1868; Clark, Dillard, Tougaloo and Claflin in 1869; Allen,
Benedict and Le Moyne in 1870; Alcorn in 1872; Bennett in 1873;
Knoxville in 1875; and Meharry in 1876.316 Education has undoubtedly been the key to economic advancement for African
5. Beneficial Legislation
Congress passed the Fourteenth and Fifteenth Amendments to
the U.S. Constitution and enacted the Civil Rights Acts of 1866, 1871,
and 1875 during the Reconstruction Era. The state legislatures, with a
majority of black legislators in some instances, established a public
school system in a region hostile to public education that benefited all
citizens318 and public works programs of an unprecedented nature.319
Id. at 253-54.
See discussion infra notes 756-62 and accompanying text.
BENNETT, JR., supra note 11, at 218.
See THERNSTROM & THERNSTROM, supra note 30, at 189-94.
BENNETT, JR., supra note 11, at 253-54.
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6. End of Reconstruction Period
a. In the Compromise of 1877, Republicans Agreed to Pull the
Military Out of the South to Capture the Contested
Presidential Race for Rutherford B. Hayes
The North began losing interest in the rights of black Americans
as other events began to transpire.320 One momentous event was the
death of Pennsylvania congressional representative Thaddeus Stevens
of Pennsylvania in 1868. Government corruption under President
Grant’s administration became the new hot button issue.321 Virtually
all of the black population still resided in the South during this time.
The black population’s hopes for economic, social, and political justice
were grounded, in large measure, on the military presence of the
North in the South.322 Military presence was explicitly based on the
perception of the South as a conquered people and provided protection and assurance to the recently liberated black population.323 In
the Compromise of 1877, the Republicans agreed to end the military
presence in the South, in order to secure the presidency of Rutherford
B. Hayes in an election virtually too close to call.324 Only four states
were still controlled by Republicans by 1874.325 The South almost immediately began a vicious process of suppressing the social and civil
rights of the black population with much assistance from the United
States Supreme Court.326
b. Reasons for The North’s Loss of Interest in Equal Justice for
The North’s new focus on political corruption in President
Grant’s administration was only one of several reasons contributing to
the North’s loss of interest in pursuing the goal of equal justice for
black persons in America. Other reasons include the North’s interest
in the conquest and dispossession of Native Americans from their ancestral homelands during the westward expansion; the North’s drive
to become an imperialist power in the Philippines, the Caribbean and
other areas inhabited by people of color; and Europe’s diminished
Reconstruction, supra note 259, at 1729.
Id. at 1729.
BUTLER, ENTREPRENEURSHIP, supra note 63, at 64.
Id.; see also BENNETT, JR., supra note 11, at 250-51.
BENNETT, JR., supra note 11, at 246.
Id. at 250-52.
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persuasiveness on the issue of equality for blacks in America due to
Europe’s preoccupation with imperialism in Africa, India, South
America, and other parts of the globe.327
Additionally, in the fifty years following the Civil War, industrial
expansion completely changed the United States from a rural and agricultural nation to a nation that was urban and industrial.328 From
1870 to 1920, approximately 25 million immigrants came to the United
States and the native born population grew from 38 million to 106
million.329 The United States became an imperialist nation, acquiring
control of foreign countries inhabited by non-whites.330 It was an age
of innovative and resourceful industrial leaders and ingenious investment bankers who found creative ways to raise capital.331
Underlying these events was the unprecedented rise in productivity due to technological advances. Scientific theories established during the period between Reconstruction and 1927 laid the foundation
for much of the technology utilized during the United States’ industrial growth during this period, all of the twentieth century and continuing into the twenty-first century.332 To some extent, many of these
scientific theories changed the world’s concept of reality and encouraged sinister ideas by leaders in certain countries of world domination through the misuse of these theories.
Greed and fear, the two elemental forces of American capitalism,
led those in control of legislative policy to rationalize the segregation
of blacks from the core of American society and its economy. The
U.S. Supreme Court’s rationalization for permitting state governments to allow the segregation of all American black people from
327. Id. at 261-62.
328. Coming of Age, in 2 THE VOLUME LIBRARY, supra note 259, at 1730.
329. Id.
330. Id. at 1733-34 (citing, as examples, U.S. activity in the Philippines, the Caribbean, Hawaii (which the United States annexed in 1898), Alaska (which the United States purchased in
1867), and the Spanish-American War of 1898).
331. Id. at 1730.
(1999). For example, Albert Einstein’s 1905 research papers proved the existence of atoms, Id.
at 47, set forth the theory underlying development of the atomic bomb (e = mc2), see P. ERIC
GUNDERSON, THE HANDY PHYSICS ANSWER BOOK 373 (1999), and provided the basis for quantum theory, see MCEVOY & ZARATE, supra, at 47-56, which is the basis for technology such as
the laser, light detectors, and television cameras. See Frederick Golden, Albert Einstein, Person
of the Century, TIME, Dec. 31 1999, at 62, 80-81.
Quantum theory is the most successful set of ideas ever devised by human beings. It
explains the periodic chart of the elements and why chemical reactions take place. It
gives accurate predictions about the operation of lasers and microchips, the stability of
DNA and how alpha particles funnel out of the nucleus.
See MCEVOY & ZARATE, supra, at 3.
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American society and the general American economy continues to
have lasting repercussions to this day.333
A. Between the End of the Civil War and the Turn of the
Twentieth Century, the U.S. Supreme Court Judicially
Silenced Virtually Every Major Effort by Congress to
Achieve True Equality of Opportunity for
Blacks and All Americans
The U.S. Supreme Court arguably did more to crush the economic aspirations and self-esteem of black people than any other institution during the post-Reconstruction era. The damage done to
black people by the Court, especially its infamous decision in Plessy v.
Ferguson, has had lasting effects which have not been totally eradicated. This section of the Article illustrates the role the Court played
in creating legal barriers which undermined the efforts of African
Americans to participate equally in the American economic system of
1. The Slaughterhouse Cases334
In The Slaughterhouse Cases, the Supreme Court held that the
Fourteenth Amendment’s prohibition against state enforcement of
any law abridging the privileges and immunities of citizens of the
United States did not protect a U.S. citizen’s right to be free from
fundamental civil rights violations not protected by state law.335 The
Court then held that the only rights protected under the Privileges and
Immunities Clause of the Fourteenth Amendment were a group of
vaguely defined rights of national citizenship.336 Those rights of national citizenship included free access to seaports, federal protection
when on the high seas or within the jurisdiction of a foreign government, and a few other limited rights.337
See generally discussion supra notes 45-49 and accompanying text.
83 U.S. (16 Wall.) 36 (1873).
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The Court’s decision made the Fourteenth Amendment’s Privileges and Immunities Clause irrelevant in protecting United States citizens from state infringement of their fundamental rights secured by
the Constitution’s Bill of Rights and other laws as the Supreme
Court’s four-justice minority argued.338 This limited view of the
Amendment has prevailed to this day. The Supreme Court’s post
Slaughterhouse listing of rights of national citizenship include the right
to travel from state to state, to petition Congress for redress of grievance, to vote in national elections, to enter federally-owned lands, to
be protected while in the custody of a U.S. Marshall, and to inform
U.S. authorities of violations of federal law.339 The Amendment remains limited to a few rights of national citizenship.
The Supreme Court’s decision in the The Slaughterhouse Cases,
which relied on the states to protect its citizens from civil rights violations, certainly did not advance the prospect of African Americans
becoming equal participants in the American capitalistic economic
system.340 Indeed, it was the Southern states, where 9 out of 10 African Americans resided,341 that were most determined to exile blacks
to their own communities and to exclude blacks from associating with
the rest of American society. However, The Slaughterhouse Cases
were only an omen of what was to come.
2. United States v. Cruikshank342
The Supreme Court’s decision in United States v. Cruikshank paralyzed the federal government’s attempt to protect black citizens by
punishing violators of their civil rights. The decision, “in effect,
shaped the Constitution to the advantage of the Ku Klux Klan.”343
The government’s failure to protect the civil rights of a distinct group
of individuals effectively excludes them from the economic system of
338. At least one early decision of a lower federal court read the language of the Fourteenth
Amendment’s Privileges and Immunities Clause to protect individuals from state violations of
fundamental rights contained in the Bill of Rights. See TRIBE, supra note 38, at 1303 (citing
United States v. Hall, 26 F. Cas. 79, 82 (C.C.S.D. Ala. 1871)).
339. EMMANUEL, supra note 336, at 404.
340. See discussion supra notes 39-44 and accompanying text.
341. See discussion infra note 582 and accompanying text.
342. 92 U.S. 542 (1876).
343. See Leonard W. Levy, Cults (Religions) and the Constitution, in ENCYCLOPEDIA OF THE
AMERICAN CONSTITUTION 527 (Leonard W. Levy ed., 1986) (discussing Cruikshank).
344. See discussion supra notes 39-44 and accompanying text.
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The case arose out of a federal prosecution of nightriders responsible for the Colfax massacre of 1873 in Grant Parish, Louisiana. Several hundred armed whites besieged a courthouse where hundreds of
blacks were holding a public assembly.345 The attackers burned down
the building and murdered about 100 people. The United States tried
Cruikshank and others involved in the massacre and convicted three
for violating § 6 of the Force Act of 1870.346 That statute, which survives as § 241 of Title 18 of the United States Code,347 is a general
conspiracy statute making it a federal crime for two or more persons
to conspire to injure or intimidate any citizen with the intent of hindering his free exercise of any right or privilege guaranteed him by the
Constitution or laws of the United States.348 The indictment claimed
Cruikshank violated the federal rights of the victims to peaceably assemble, the right to bear arms, the right to be secure in one’s person,
life and liberty, and the right to vote.349
The Court, in a unanimous opinion by Chief Justice Morrison R.
Waite, ignored the statute and focused on the indictment to ascertain
whether the rights of the black victims which Cruikshank and others
interfered with were granted or secured by the United States.350 The
Court, reasserting the theory of dual citizenship advanced in the
Slaughterhouse Cases concluded that that the United States could not
grant or secure rights not under its jurisdiction.351
The Court, examining each right that the indictment claimed to
have been violated under the statute, found that each right was solely
within the jurisdiction of the states to provide protection.352 According to the Court, none of the asserted rights were a federal right of
national citizenship. The Court held that the right to peaceably assemble predated the Constitution and remained subject to state juris345. Id.
346. Id.
347. Title 18 is the U.S. Criminal Code.
348. 18 U.S.C. § 241 (2000). This statute is the modern successor to the criminal provision on
which §1985(c) is based. Derived from the Civil Rights Act of 1870, § 241 punishes two or more
persons who “conspire to injure, oppress, threaten or intimidate any citizen in the free exercise
or enjoymeny of any right or privilege secured to him by the Constitution or laws of the United
States” or who “go in disguise upon the highway” with intent to hinder enjoyment of such a
349. United States v. Cruikshank, 92 U.S. 542, 544-45 (1876).
350. Id. at 551.
351. Id. at 549, 551-59 .
352. Id. at 551-59
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diction.353 The Court stated Congress could not infringe it nor protect
it since the right to peaceably assemble was not an attribute of U.S.
citizenship.354 The Court’s rationale was the same with respect to the
right to bear arms and the right to be secure in one’s person, life, and
liberty.355 Accordingly, the Court held that Congress could not punish
violence perpetrated by private persons such as Cruikshank. As for
the right to vote under the Fifteenth Amendment, the Court held that
the Fifteenth Amendment merely protected against discrimination
based on race.356 The Constitution did not confer the right to vote on
anyone. Thus, the Court held that the right to vote was not an attribute of national citizenship.357 The Court, by such reasoning, held
that that the indictment did not show that the conspirators had hindered or prevented the enjoyment of any right granted or secured by
the Constitution.358 Therefore, no conviction based on the indictment
could be sustained. Consequently, the Court ordered the defendants
The conspiracy statute remained impotent until revived during
the Civil Rights Era of the 1960s. It was not until 1966 that the U.S.
Supreme Court in United States v. Guest359 and United States v.
Price360 upheld the first convictions under the Force Act and diminished the sweep of Cruikshank.
3. United States v. Reese361
The Supreme Court’s decision in Reese was the first voting rights
case under the Fifteenth Amendment. The Reese decision crippled
the federal government’s legislative efforts to protect the rights of
blacks to vote by making it constitutionally possible for states to circumvent the Amendment through facially nonracial voting qualifica353. Id. at 551-52.
354. Id.
355. Id. at 553-54.
356. Id. at 555.
357. Id.
358. Id. at 549-51, 557-59.
359. 383 U.S. 745 (1966). In Guest, the Supreme Court upheld a conviction against private
persons under 18 U.S.C. § 241. The Supreme Court held that Congress could proscribe racially
motivated conduct committed with the intent to deprive the victim of rights guaranteed by the
federal Constitution. In Guest, that right was the federally guaranteed right of interstate travel.
360. 383 U.S. 787 (1966). In Price, the Court held that private individuals who had acted
together with local law enforcement officials in the notorious 1964 murder of three civil rights
workers near Philadelphia, Mississippi acted under color of law and could be charged under 18
U.S.C. § 242 even though they themselves were not law enforcement officers.
361. 92 U.S. 214 (1876).
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tions intended to prevent otherwise qualified blacks from voting. The
Court’s decision in Reese, along with its decisions Dred Scott v. Sandford, United States v. Cruikshank, and Plessy v. Ferguson, ranks as one
of the Court’s worst decisions ever.362
Reese involved a federal prosecution of two state election officials
who refused to allow a black citizen to pay his poll tax and vote in a
municipal election.363 The United States prosecuted the election official under a congressional statute that prohibited election officials
from refusing to qualify eligible voters or not allowing them to vote.364
Part of the statute specified denial on account of race and another
part did not. For example, one section provided for the punishment of
any person who prevented any citizen from voting or qualifying to
The Court, in an eight-one decision written by Chief Justice
Waite, held the congressional statute unconstitutional because it swept
too broadly as two sections did not “confine their operation to unlawful discriminations on account of race, etc.”366 The Court noted that
the Fifteenth Amendment provided that the right to vote should not
be denied because of race. Congress, however, had overreached its
powers by seeking to punish the denial on any ground.367 The Court
voided the whole statute because it said that the statute’s sections
were inseparable.368 However, the Court inexplicably refused to
broadly construe the stated sections in terms of those sections that
explicitly prohibited election officials from denying persons the right
to vote because of their race.369
The Court, by its narrow interpretation of the Fifteenth Amendment, made it constitutionally possible for states to deny the right to
vote on any ground except race. As a result, the states created a number of facially neutral devises to ensure that whites would be able to
362. Baltimore Sun Columnist Gregory Kane, shortly after the Supreme Court’s decision in
Bush v. Gore, 531 U.S. 98 (2000), responded to “critics of the Supreme Court, who asserted that
the Court “gave the 2000 election to George W. Bush.” Mr. Kane stated that the Court’s decision in Bush v. Gore was “not even in the top five” of the Court’s most horrible decisions. Mr.
Kane ranked the Court’s decisions in Plessy, Dred Scott, and Cruikshank as second, third, and
fourth worst decisions ever made by the Court. See Gregory Kane, High Court’s Gore Ruling
Far From Its Worst, BALT. SUN, Dec. 24, 2000, at 1B.
363. Reese, 92 U.S. at 215.
364. Id. at 215-18.
365. Id.
366. Id. at 220.
367. Id.
368. Id. at 221.
369. Id.
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vote but not blacks. Some of the devices used by states to achieve the
disenfranchisement of blacks while ensuring that white voters would
not be excluded included poll taxes, literacy tests, good character
tests, understanding clauses, and grandfather clauses.370 The Reese
decision had a negative impact on the efforts to fully include African
Americans in the political and economic fabric of the United States.
The relationship between politics and the economic advancement of
African Americans has been amply demonstrated in American
4. The Civil Rights Cases372
In The Civil Rights Cases, the U.S. Supreme Court invalidated the
Civil Rights Act of 1875, which prohibited private persons from denying, on the basis of race, any individual’s equal access to any place of
public accommodations (for example, hotels, public transportation,
theatres).373 The Supreme Court held that the Fourteenth Amendment only prohibited state action. The Court also ruled that the Thirteenth Amendment was inapplicable because private individuals
refusing entry to blacks did not constitute a badge of slavery.374
5. Hall v. de Cuir375
In Hall, the U.S. Supreme Court ruled that the Commerce Clause
prevented a state from prohibiting segregation on a common carrier.376 The Court implicitly held, by negative implication, that states
legally could require segregation of the races without violating the
370. See generally discussion infra note 581 and accompanying text.
371. See discussion supra notes 632-754 and accompanying text.
372. 109 U.S. 3 (1883).
373. Id. at 10.
374. In The Civil Rights Cases, the Court conceded that Congress could reach purely private
conduct under the Thirteenth Amendment since it prevents individuals from holding others in
slavery. 109 U.S. at 10. The Court’s narrow view of what constitutes a “badge of slavery” has
been clearly overruled, at least with respect to Congress’ power to enact legislation to enforce
the Thirteenth Amendment. In Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court
dramatically broadened the power of Congress to enact legislation pursuant to its power, under
Section 2 of the Thirteenth Amendment to “enforce” the amendment by “appropriate legislation.” The Court held that Congress had the power under the Thirteenth Amendment “rationally to determine what are the badges and incidents of slavery.” See id. at 440. Additionally, the
Court held that Congress’ definition of those badges and incidents could rationally be a very
broad one. The Court held that the Civil Rights Act of 1866, 42 U.S.C. § 1982, which prohibits
race discrimination in real estate transactions and which was enacted solely in reliance on the
Thirteenth Amendment, could not be impaired by private discrimination. Id. at 413.
375. 95 U.S. 485 (1878).
376. The Court held that a Louisiana law prohibiting racial segregation could not be applied
to steamboat operations on the Mississippi River because of the burden it would impose on
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federal policy underlying the Fourteenth Amendment. Otherwise, the
Court would have been compelled to hold, as it did eighty-five years
later, that a state cannot interfere with interstate commerce by banning segregation since the Constitution prohibits both state and federal governments from requiring racial discrimination.377 The
decision in Hall paved the way for the Supreme Court’s decision in
Plessy v. Ferguson in which the Court permitted state governments to
legally separate black people from the rest of the population.378
6. Plessy v. Ferguson379
In Plessy, the Supreme Court legalized state-enforced segregation
of the races so long as states provided separate but equal accommodations for blacks. The Court held that the Fourteenth Amendment
could not have been intended to abolish distinctions based on color,
or to enforce social equality or a commingling of the two races upon
terms unsatisfactory to either.380 The Supreme Court’s decision in
Plessy sanctioned the racial caste system endorsed by the Southern
states that allowed the states to separate African Americans from the
general population. The Plessy decision effectively doomed the aspirations of African Americans to participate equally in the American
capitalistic economic system.
The laws passed during the era of legalized racial segregation are
often referred to as “Jim Crow laws.”381 Greed and fear were the
underlying motives behind these laws.382 More specifically, these motives included: the elimination of competition,383 economic exploitation of blacks,384 and prevention of the twin taboos of interracial
marriage and dining.385 The states also intended for these laws to
serve as a means for isolating, subordinating, disciplining, controlling,
punishing, and humiliating blacks.386 Moreover, private companies
steamboat operators if other states along the river enacted laws requiring segregation. See id. at
377. See Colo. Anti-Discrimination Comm’n v. Cont’l Airlines, Inc., 372 U.S. 714 (1963).
378. 163 U.S. 537 (1896).
379. Id.
380. Id. at 544.
381. BENNETT, JR., supra note 11, at 255-56.
382. Id. at 258.
383. Id. at 257.
384. Id. at 257-58.
385. Id. at 256.
386. Id. at 257.
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and individuals were free to explicitly discriminate against blacks in
employment and virtually any other aspect of life.387
During this era, there were white jobs and black jobs. Furthermore, employers created rules that put strict limits on the relations
between black and white factory workers.388 States passed laws which
prohibited black and whites from eating together; forbade white
nurses from treating black males; prohibited white teachers from
teaching black students; made it a crime for black and white cotton
mill workers to look out the same window; required separate textbooks for white and black students; mandated separate telephone
booths for whites and blacks;389 required separate public drinking
fountains and restrooms;390 and required that black and white witnesses swear upon separate bibles in court.391
One commentator has noted that, despite the indignities and horrors heaped upon black people during this era, there was “another
side” to the “segregation drama.” The writer, in discussing this other
side of the segregation drama, states that:
Much is made of the horrors of the pre-civil rights South, the rigidity of Jim Crow regulations, the lynchings, the indignities of living
life etched sharply in black and white. Those horrors were real . . .
[a]nd yet . . . there was another side, a far more complicated side to
the segregation drama, a side where black folks of means re-created
the world in their own colored image. A colored world, that was, by
necessity, populated with ‘Negro’ educators, teachers hell-bent at
uplifting the race at ‘Negro’ universities, ‘Negro’ lawyers, ‘Negro’
newspapers, ‘Negro’ hospitals.392
Today, however, traditionally black-owned businesses formed
during the days of segregation are increasingly being sold to corporate
387. See, e.g., The Civil Rights Cases, 109 U.S. 3 (1883).
388. BENNETT, JR., supra note 11, at 258.
389. Id. at 256-57.
390. Id. at 289.
391. Id. at 256.
392. See Wiltz, supra note 35.
393. Id. For example, Bob Johnson sold BET to Viacom for $3 billion. Id. Similarly, “traditionally black-owned companies like Johnson Products, Soft Sheen, and Pro-Line, companies
that were started in family basements, with everyone chipping in to make a go of it, have been
sold to conglomerates.” Id. Moreover, Motown and many other black-owned companies sold
out long ago. As a result, “there is among some African Americans a sense of loss” when blackowned companies become owned by non-blacks. Id.
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B. Blacks Were the Only Minority Group Excluded From the
General Marketplace During Government-Enforced
The institution of segregation laws involved the interference of
government into the normal operation of the marketplace.394 The
idea of economic detour395 is that black people, following reconstruction, were restricted from operating their businesses in the open market.396 This was not true for any other race or minority group.397 The
U.S. Commerce Department acknowledged that there was a separate
African American economic market apart from the general open market. In doing so, the Commerce Department conceded that the general open market place was closed only to blacks and no other
The Chinese in Mississippi and the Japanese in California were
able to enter the open market and compete although they often encountered hostility.399 When the Japanese had to rely solely on a Japanese market, their businesses were not successful.400 Similarly,
blacks were more likely to be successful when they were able to develop a business clientele outside of the black community.401
1. The Sociology of Entrepreneurship, Solving the Riddle of Why
the Black Economic Journey Has Been Different than
Minority Groups Immigrating to the United States
a. The General Concept
The sociology of entrepreneurship examines the tendency of ethnic minorities to engage in business enterprise because of their exclusion from positions of political influence and subordination to a group
of rulers.402 It is the sociology of self-help through entrepreneurial
activities. Max Weber laid the foundation for studies examining the
sociology of entrepreneurship.403 Weber observed that national or religious minorities who are in a position of subordination to the ruling
BUTLER, ENTREPRENEURSHIP, supra note 63, at 72.
Id. at 71-72.
Id. at 72-73.
Id. at 71.
Id. at 72.
Id. at 2.
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class are likely to be driven into economic activity because of their
exclusion from positions of political influence.404
b. Theory Underlying Sociology of Entrepreneurship Presupposes
that Ethnic Minorities Adjusting to a New Country Have
Access to the General Market of Consumers
Edna Bonacich explored the relationship between ethnic minorities and entrepreneurship in America in her article entitled “A Theory
of Middleman Minorities.”405 Bonacich’s research attempted to answer the question of how ethnic immigrants from other countries406
succeed in America in the face of systematic discrimination, prejudice,
and political powerlessness.407 These immigrant groups typically leave
their countries of origin in search of a “better way of life” in which
they can find economic security.408 Her research established that disfavored ethnic groups achieved economic security by playing the middleman position within the structure of capitalism.409 Middlemen
occupations include positions such as labor contractors, rent collectors, money lenders, and brokers. As middlemen, they negotiate
property transactions between producers and consumers, owners and
renters, the elite and the masses, and employers and employees.410
Hostility to these ethnic minorities forces them to operate on the
fringes of the economic system.411
c. Free Blacks in the 1700s and 1800s Were Operating with Access
to the General Market of Consumers, and Set the
Foundation of the Black Business Tradition
Contemporary scholars treating the sociology of entrepreneurship and race relations, such as Max Weber and Edna Bonacich, fail to
acknowledge the works of black authors whose ideas and findings predate their own similar ideas.412 Yet these black scholars as early as
1898413 had demonstrated how free blacks during the 1700s had engaged in business enterprises even though they possessed half free sta404.
BUTLER, ENTREPRENEURSHIP, supra note 63, at 2.
Id. at 4.
Id. at 7.
Id. at 8.
Id. at 5.
Id. at 35.
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tus.414 They make no mention of the entrepreneurial activities of
persons such as Anthony Johnson in the 1600s, Jean Baptist Du Sable
in the 1700s, the black-owned businesses during the 1700s, the variety
of enterprises established by blacks prior to the Civil War, and the
many black inventors415 during and after slavery was abolished. Some
of the items which blacks invented include the potato chip, ice cream,
the mop holder, the player piano, the rotary engine, the car coupler,
the locomotive smoke stack, the ironing board, street-sweepers, the
horseshoe, the lawn mower, the lawn sprinkler,416 the cooking range,
riding saddles, the golf tee, the bicycle frame, the pencil sharpener, the
elevator, the scaffold, the folding chair, the fountain pen, the clothes
drier, and the refrigerator.417
2. Theory of Economic Detour Shows That the Government
Forced Blacks, Unlike Any Other Ethnic Group in This
Country, to Operate in a Segregated Market During
the Era When Blacks Were Socially and
Economically Segregated from the General Population
The majority culture totally excluded blacks from professional
opportunities in non-minority businesses during the years prior to the
passage of Title VII of the 1964 Civil Rights Act.418 Private companies providing public accommodations such as hotels, restaurants, and
other services were free to openly treat blacks with contempt, disdain,
and hostility since they were not required by law to provide services to
blacks on the same terms as to whites and other groups.419
Black professionals, including business people, medical doctors,
dentists, and lawyers, had virtually no opportunity to use their professional expertise in the larger society. Similarly, the dominant culture
largely excluded black wage earners from many skilled trades.420
Black workers, however, were always struggling to enter these skilled
professions. Thus, white society relegated black workers to the status
of laborers.421
BUTLER, ENTREPRENEURSHIP, supra note 63, at 38.
Id. at 48-63.
Id. at 52, 60.
Butler, Myrdal Revisited, supra note 63, at 139.
See generally The Civil Rights Cases, 109 U.S. 3 (1883); supra notes 372-74 and accomtext.
Butler, Myrdal Revisted, supra note 63, at 139.
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Gunnar Myrdal, a Swedish institutional economist, provided a
detailed account of the status of black business persons, professionals,
and other workers in chapter fourteen of his groundbreaking book An
American Dilemma: The Negro Problem and Modern Democracy.422
Myrdal gave the book its name in view of the “moral contradiction of
a nation torn between allegiance to its highest ideals and awareness of
the base realities of racial discrimination.”423 Chapter fourteen entitled The Negro in Business, the Professions, Public Service and Other
White Collar Occupations, provided an in-depth study, replete with
statistical analysis, highlighting the majority culture’s exclusion of
blacks from the larger white economy during the years 1910-1940.424
Myrdal’s considerable research indicated that black business people and other black professionals were outside the overall American
economy. Myrdal observed,
while the Negro community gives places for a fair number of Negro
preachers, teachers, and neighborhood storekeepers, it does not offer much chance for civil engineers and architects . . . [t]he latter
have to work in the white economy, which does not want Negroes in
such positions . . . [t]he Negroes’ representation among managers of
industry, if anything, is still smaller.425
As former Republican congressman Jack Kemp stated in response to the Supreme Court’s decision in Grutter v. Bollinger,426
“Blacks were removed from the mainstream economy, denied access
to education, job opportunities and access to capital and
The overwhelming majority of all black workers served the general white-dominated economy in low-paying subservient positions.
Nevertheless, most black businessmen, professionals, and white-collar
workers were either dependent on the segregated black community
422. See, MYRDAL 1, supra note 59, at 304. Gunnar Myrdal served as Swedish Minister of
Trade and Commerce. Myrdal came to the United States as a Rockefeller Fellow and wrote An
American Dilemma at the invitation of the Carnegie Corporation. See the back cover of Volume
I of the 1998 reprinted edition.
423. Id. at back cover of Volume I of the 1998 reprinted edition.
424. See id. at 304-32.
425. Id. at 304.
426. 539 U.S. 306 (2003) (upholding the University of Michigan Law School’s use of racial
diversity as a factor in its admissions process).
427. See Michael A. Fletcher & Lee Hockstader, U-Mich. Rulings Spur Strategic Scramble:
Affirmative Action’s Backers and Foes Ponder Response to High Court’s Decision, WASH. POST,
June 25, 2003, at A9. Mr. Kemp went on to state that “African Americans have long been
denied their full measure of justice under law, and while great progress has been made, we have
a long way to go.” Id. He also noted that: “While I agree that ultimately a colorblind society
should be our goal, we certainly are not there yet.” Id.
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for their market or they served in public institutions like schools and
hospitals set up exclusively for the use of blacks. Some civil service
employees were the only significant exception.428 This exclusion from
the larger white-collar economy meant that very little opportunity existed for inclusion of blacks in the American ideal of attaining middleclass status.
This restriction of economic choice resulted in an almost non-existent black middle and upper class, and skewed the occupational distribution in those classes.429 The distribution of blacks resulted in a
fair number of black preachers, teachers, and neighborhood storekeepers, while offering little chance for successful black engineers, architects, and other advanced professions.430 Industries catering to
black customers, however, presented a virtual monopoly for blacks.431
Nonetheless, the monopoly of the black market presented a host of
societal and ideological issues. Commenting on this point, Gunnar
Myrdal noted that “[o]n one hand, [blacks] find that the caste wall
blocks their economic and social opportunities [while] . . . [o]n the
other hand, they . . . have a vested interest in racial segregation since it
gives them what opportunity they have.”432
Myrdal’s study reviewed, among others, the employment of
blacks in the following twelve businesses and occupations between
1910 and 1940: retailers and restaurants owners;433 undertakers, barbers, and beauticians;434 builders and manufacturers;435 bankers and
financiers;436 life insurancers;437 teachers;438 clergy;439 medical professionals;440 legal professionals;441 government employees;442 performing artists;443 and the black underworld.444
MYRDAL 1, supra note 59, at 304.
Id. at 305.
Id. at 307-08, 310.
Id. at 309-10, 311.
Id. at 312-13.
Id. at 314-16.
Id. at 317-18.
MYRDAL 1, supra note 59, at 319-20.
Id. at 321.
Id. at 322-25.
Id. at 326.
Id. at 327-29.
Id. at 329-30.
Id. at 330-32.
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a. Retail Trade and Restaurants
Black persons in the retail trade businesses had difficulty competing with white businesses445 because of the small size and high cost of
operating such establishments,446 the greater difficulty blacks experienced in securing credit for their businesses,447 and social and economic factors barring black persons from establishing retail businesses
in the “main shopping districts.”448 Accordingly, the black retailer’s
prices tended to be higher than the white retailer’s or, if the black
businessman kept his prices down, his profit margins would be smaller
than those of his white counterpart. Consequently, black owners of
these businesses often failed to have a large enough variety of goods
in stock to supply their customers’ needs.449 The relatively low level
of black purchasing power,450 the higher prices charged by the black
entrepreneur for his goods, the lack of product variety, the inability to
generate any business from the white community, and minimal success
in attracting black customers combined to create a vicious cycle which
kept black entrepreneurs in the retail and restaurant businesses from
achieving financial success.451 The “don’t buy where you can’t work”
campaign in the North was an effort to get white-owned businesses in
black neighborhoods to hire blacks in their establishments.452 This
movement mostly found more of a home in the more politically open
North than in the South. Nevertheless, in spite of the political oppor445. Blacks had only five or ten percent of the total trade to black consumers in the retail
trade and restaurant businesses. Id. at 307.
446. Id. at 307-08.
447. Id. at 308.
448. MYRDAL 1, supra note 59, at 308.
449. Id. at 307-08.
450. Id. at 307. Myrdal noted that the black share of the national income was between 3-4 %
of the total between 1910 and 1940. Id. Blacks constituted approximately 11.6% of the total
U.S. population in 1900. Between 1920 and 1940, the black population averaged approximately
10% of the population. See WORLD ALMANAC AND BOOK OF FACTS 1998 397 (1998) (citing to
Commerce Department figures by sex, race, residence and median income from 1790-1997). In
2001, the black national income of $601 billion constituted 5.96% of the total gross domestic
product of the United States, which was $10 trillion, 82 billion. See discussion supra at notes 1314 and accompanying text. Accordingly, the percentage of black income has risen, at best, by
three percent since 1930. This tends to indicate how little has changed, in some respects, since
Myrdal did his research. Nevertheless, because of the size of the U.S. economy, the income of
black Americans is greater than most nations on Earth. See discussion supra note 14; see also
ANDREWS, supra note 4, at 15 (“On average, all Americans, no matter their color, are rich compared to most other people in the world.”).
451. See MYRDAL 1, supra note 59, at 307.
452. Id. at 313.
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tunity for dissent in the North, the black community witnessed little
impact from this freedom movement.453
b. Undertakers, Barbers, and Beauticians
The “real business group” according to Myrdal was the pool of
about 3,000 black undertakers, making up nearly ten percent of all
undertakers.454 Myrdal notes that black undertakers had a monopoly
in this line of business because white undertakers did not want to
touch the bodies of deceased blacks.455 This was especially true in the
South.456 Black undertakers were successful, even though they never
handled white funerals, because black people tended to spend lavishly
on funerals irrespective of their economic plight.457
Black barbers, beauticians, and hairdressers tended to be successful for the same reasons;458 in 1930, there were 34,000 black entrepreneurs and employees in this line of work, constituting about ten
percent of all such workers in the country.
Myrdal noted that the undertaking and hair-care businesses were
the only businesses in which the blacks were protected from white
competition.459 He noted that blacks were able to retain only a small
portion of the black market in other business endeavors of any consequence and seldom succeeded in keeping a substantial white
c. Building Trades and Manufacturing
In the South, there were more skilled black workers than skilled
white workers in the building trades prior to the Civil War.461 Black
contractors soon lost their footing in the industrialized South after the
Civil War because of the need for capital and white society’s refusal to
extend credit to blacks in this field. Whites, who imposed great restrictions on black efforts to obtain employment as wage earners, were
even more unwilling to risk their money on black entrepreneurial ef453.
Id. at 309.
Id. at 309-10.
Id. at 310.
MYRDAL 1, supra note 59, at 311-12.
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forts in the building and manufacturing areas.462 Compounding these
factors was the poor self-image held by post-emancipation blacks;
feelings of inferiority and lack of adequate training were enhanced by
the black would-be-entrepreneur’s slavery background.463
d. Banking and Finance
The Freedmen’s Savings Bank and Trust Company, established
on May 16, 1865,464 was the first notable attempt to assist blacks in
establishing a bank that would cater to the needs of the black community.465 President Lincoln signed an Act of Congress incorporating
the Freedmen’s Bank and Trust Company on March 3, 1865, the same
day on which he signed the Act creating the Freedmen’s Bureau.466
Congress did not incorporate the bank as a government institution.
Congress, however, viewed the bank as a philanthropic venture that
would safeguard the savings of the freedmen and encourage them in
habits of thrift.467 Between 1866 and 1871, the bank established a total of thirty-four branches, thirty-two of which were in the South.468
The bank ultimately had branches in thirty-six cities469 and, by 1874,
total deposits of $57 million.470
The Freedmen’s Bank and Trust Company aimed to train black
businessmen and to encourage blacks in the acquisition of property.471
The bank employed few blacks when it was first established.472 Nonetheless, an increasing number of blacks obtained positions after
1870.473 Abram Harris notes in his book, The Negro as Capitalist, that
“[i]n Richmond and Norfolk, Virginia, as well as in Washington [District of Columbia], Negro business men and property holders were
members of the advisory councils and the board of trustees. Many
were also employed as clerks, tellers and bookkeepers at the central
office and at numerous branches.”474
462. Id.
463. Id.
464. HARRIS, supra note 11, at 34.
465. MYRDAL 1, supra note 59, at 314.
466. HARRIS, supra note 11, at 34.
467. Id. at 37.
468. Id. at 35.
469. MYRDAL 1, supra note 59, at 314.
470. Id. at 314; see also HARRIS, supra note 11, at 36 tbl.II (showing the total business of the
Freedmen’s Bank).
471. HARRIS, supra note 11, at 56.
472. Id.
473. Id.
474. Id.
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Unfortunately, the bank, though covered by U.S. securities, made
unwise use of reserve deposits and failed during the Depression of
1874.475 Harris notes, however, that the bank’s speculative and dishonest management group caused the bank’s failure by “its investments in overcapitalized and speculative ventures . . . its high
operating costs and heavy investments in fixed assets.”476 The Freedmen’s Bank, although mismanaged, accomplished its purpose of “implant[ing] certain social and economic ideals in Negro life” including
“respectability.”477 Nevertheless, the Freedmen’s Bank failure, with a
loss of $4 million that was not replaced, caused much distrust among
blacks inclined to save.478
In the 1880’s, black leaders began to call for the development of
black businesses in increasing numbers.479 They also called upon the
black population to form banks to assist black businesses in acquiring
credit and capital.480 In 1888, fifteen years after the failure of the
Freedmen’s Bank, blacks established the first banks that were actually
organized and administered by blacks.481 The growth of black banks
thereafter was remarkable.482 Blacks organized no fewer than twentyeight banks between 1899 and 1905.483
These banks followed in the wake of the expansion of fraternal
insurance and burial societies that took place in the first twenty years
after the Civil War.484 The black church and ministry were largely
responsible for the establishment of the fraternal insurance and burial
societies.485 These fraternal insurance and burial societies were necessary since it was clear that the dominant society did not accept former
slaves as the social equals of whites and did not welcome them to assimilate into the social life of the general community.486 As the fraternal organizations and societies increased in number, there was a
corresponding increase in the capital, investments, and subsidiary
businesses developed by these organizations.487 The increasing asset
MYRDAL 1, supra note 59, at 314.
HARRIS, supra note 11, at 50.
Id. at 55.
MYRDAL 1, supra note 59, at 314-15.
HARRIS, supra note 11, at 61-66.
Id. at 66-67.
Id. at 57.
Id. at 58.
Id. at 57.
Id. at 58.
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basis of these organizations led to the formation of the first banks
organized and administered by blacks.488
Blacks organized at least 134 banks between 1888 and 1934.489
The greatest number of black bank failures occurred between 1928
and 1931 during the Great Depression.490 The total number of black
banks during this period decreased by 50%.491 There were 30 black
banks in 1927, 28 in 1928, and 21 in 1929.492 In 1934, there were 12
black banks in existence.493 The most significant failures of black
banks494 took place in Virginia,495 the District of Columbia, Maryland,496 Pennsylvania,497 and Illinois.498
During the era of segregation, most black banks were small, a
characteristic that increased operating costs.499 Because of their small
size, these banks tended to invest in more secure, low-yield government securities.500 Bank investments in black-owned property produced dismal results since segregation produced a restricted market
for black-owned property.501 A large percentage of black borrowers,
compared to white borrowers, used loans for consumption rather than
investment and production purposes.502 Additionally, very few black
families had any money for savings or checking accounts.503
Blacks began to establish building and loan associations because
they were unable to obtain loans from white institutions to build their
own homes. Blacks formed the first black-owned building and loan
association in Virginia in 1883.504 By 1930, blacks established approximately 70 savings and loan associations with assets totaling $6.6 million. This was less than 1% of the total assets of all American building
and loan associations.505 Some of the more successful savings and
HARRIS, supra note 11, at 75.
Id. at 76.
Id. at 76.
Id. at 77-124.
Id. at 125-50.
Id. at 151-72.
Id. at 173-96.
HARRIS, supra note 11, at 173-96.
MYRDAL 1, supra note 59, at 315.
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loan associations had a partly white clientele providing larger business
and greater diversification of risks.506 Most black savings and loans,
compared to their white counterparts, were small, had higher costs,
and charged somewhat higher rates of interest.507
e. Life Insurance
Black entrepreneurs had greater business success in the life insurance industry.508 The reasons included the differential treatment afforded black customers by white insurance companies in the form of
higher premiums and the fact that even the poorest black families had
some form of insurance.509 The life insurance business provided little
real protection to anyone other than black undertakers, however.510
In 1939, there were sixty-seven black insurance companies with
1,677,000 policies, a total income of $13 million and about 8,000 workers.511 The black insurance business, like other black financial institutions, grew out of the black church, lodges, and benevolent
associations.512 Nevertheless, the black-managed insurance company,
like the black banks of this era, could not escape the fact that they
thrived on a poor, segregated community that could not offer these
businesses any range of investment opportunities to minimize their
f. Teachers
Teaching was the principal black profession during the era of segregation when Myrdal did his research.514 A black person’s chance of
getting a job was much higher in the segregated South than in the
North.515 Black teachers were able to monopolize the teaching field
in the South. The open field of segregated classrooms in the South did
not mean, however, that black teachers were paid on the same scale as
506. Id. at 316.
507. Id.
508. Id.
509. Id.
510. Id. at 317.
511. Id.
512. Id.
513. Id. at 318.
514. Id.; see also id. at 319 tbl.3 (charting census figures for black professional workers in
1910 and 1930).
515. MYRDAL 1, supra note 59, at 318.
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their white counterparts.516 Blacks constituted 4.9% and 5.2% of all
teachers in the United States in 1910 and 1930, respectively.517
g. Clergy
The black clergy constituted the second largest group among
black professionals.518 They “enjoy[ed] a complete monopoly behind
the caste wall of segregation.”519 This did not mean, however, that the
profession provided sufficient income for that population to survive.
Many ministers had very small, very poor congregations and were
forced to have second jobs to survive.520 The ministry was the only
profession in which blacks had greater representation than their percentage of the general population.521
Black clergymen constituted 14.8% and 16.8% of all such professionals in the United States in 1910 and 1930, respectively.522 Myrdal
stated that probable reasons for the high percentage of black ministers
in the profession were that opportunities were restricted for blacks in
other fields, more blacks attended church than whites, and the religious interests of blacks were more divided than whites.523
h. Medical Profession
During the segregation era, most whites would not go to a black
doctor due, at least in part, to racial prejudice.524 There were some
questionable exceptions to this general practice. White patients who
wanted to conceal venereal diseases and pregnancy from their white
friends, and some low-income whites who had problems getting treatment from white doctors would visit black doctors.525 The black doctor, in spite of his secret white clientele, still had difficulty succeeding.
The black doctor had to rely heavily on his black patients, who had
little income to expend on health care, and white patients who were
equally poor. Additionally, black doctors had to convince their white
patients to trust them.526
Id. at 319.
Id. tbl.3.
Id. at 321.
Id. at 319 tbl.3.
Id. at 321.
Id. at 322.
MYRDAL 1, supra note 59, at 322.
Id. at 323.
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The hospital setting provided an even greater challenge for black
doctors.527 Harlem Hospital in New York City was one of the few
hospitals in the country where white and black doctors practiced together under a system of equality.528 Moreover, the growth of public
health facilities limited the employment opportunities for black physicians who were faced with the prospect of losing all their patients unless he was given a place in the new public health system.529 Loss of
patients and minimal opportunities for training and specialization at
hospitals fueled the perception that black physicians and surgeons
were not as qualified as their white counterparts.530 Howard University in Washington, District of Columbia and Meharry University in
Nashville, Tennessee, trained about four-fifths of all black doctors
during this time period.531 The students at these schools passed the
state medical boards in approximately the same percentages as graduates of white schools.532 Black medical doctors constituted 2% and
2.4% of all members of that profession in 1910 and 1930,
The medical profession treated black nurses similarly to black
doctors. The nursing profession was even harsher, resulting in an
even smaller number of blacks in this profession.534 Nurses had to
depend on the public health system for employment because they
could not count on income from private practice.535 Black nurses occupied a peculiar place in the health system since white nurses treated
black patients directly but had black nurses do all the “dirty work.”536
Black nurses constituted 3% and 1.9% of all nurses in the United
States in 1910 and 1930, respectively.537
Black dentists fared only a little better than doctors and nurses.
There were very few black dentists in rural areas, forcing those blacks
to frequent white dentists whether they wanted to or not.538 The
black dentist, like the black doctor had to resort to other outside jobs
Id. at 324.
Id. at 319 tbl.3.
Id. at 325.
MYRDAL 1, supra note 59, at 325.
Id. at 319 tbl.3.
Id. at 325.
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to survive.539 Black dentists constituted 1.2% and 2.5% of all dentists
in the United States in 1910 and 1930, respectively.540
i. Legal Profession
Blacks constituted less than 1% of all attorneys licensed to practice law in the United States in 1910 and 1930.541 Almost two-thirds of
black lawyers lived outside the South and were the product of white
law schools in the North.542 The majority of black lawyers in the
South had some other occupation to support themselves.543 Black attorneys during this era rarely appeared in court to represent blacks in
actions against whites. Instead, they focused on work dealing with
black churches, fraternal organizations, domestic relations, and criminal matters.544
j. Officials and White Collar Workers in Government Employment
All, or at least some, of the black workers previously discussed,
teachers, physicians, surgeons, nurses, social workers, extension service workers, and so on, worked in public service for some government agency.545 Despite adversities, blacks had more opportunity for
employment in the government than in any other profession. When
government employment of blacks in the military is factored in, it becomes clear that government work has been an important factor in
black economic stability.546 The largest remaining occupation of
blacks in government service in 1930 was the 18,000 blacks working in
the postal service. Of this number, 7,000 were clerks, 6,000 were mail
carriers, and the remaining group occupied various minor categories.547 This was approximately triple the number in 1910.548
In other public service work, there were approximately 6,000
black officials and white collar workers in 1930. Of these, less than
2000 were policemen, sheriffs, and detectives; more than 3000 were
clerks and kindred workers. Government employed the remaining
539. Id.
540. Id. at 319, tbl.3
541. Id. at 326.
542. Id.
543. Id.
544. Id.
545. MYRDAL 1, supra note 59, at 327.
546. Myrdal addressed employment by blacks in the military in chapter 19, section 4 of his
book; see also discussion infra notes 571-72 and accompanying text.
547. MYRDAL 1, supra note 59, at 327.
548. Id.
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blacks in a variety of categories.549 This group made up approximately 1% of the total.
Whites drove out most blacks from positions in state and local
government after Reconstruction.550 The process of driving blacks
from positions in the federal government, however, was slower. During the Wilson administration, the number of black postmasters declined from 153 in 1910, to 78 in 1930, and the government removed
several other black officials.551 Moreover, the federal government utilized new methods to screen out potential black job applicants. One
screening device simply required that each applicant supply a photograph. However, the expansion of the federal government during
World War I, the rapid increase in the number of black voters in the
North, and the friendlier attitude toward the employment of blacks
under the New Deal era of President Roosevelt counteracted, somewhat the effects of these discriminatory policies.552
k. Performing Arts
Historically, whites have given blacks a somewhat backhanded
praise for artistic ability.553 Blacks created the jazz, blues, rock and
roll, and hip-hop art forms and tend to excel in sports.554 The assumption during the era of segregation was that the arts were the only field
in which blacks could have achievements and that the arts required
less academic prowess.555
Prior to 1915, blacks made up very little of the audience attending
shows, and whites played most black characters.556 Blacks served as
assistants in these shows and the later migration of blacks to the North
greatly increased the number of blacks in show business.557
New York was the center for black employment in the entertainment industry during the earlier period of the twentieth-century. New
York was home to the Apollo Theater and provided more opportunities for blacks to find work in the white-owned downtown theatres.558
Hollywood employed a few hundred blacks, but they mostly played
Id. at 327-28.
Id. at 329.
See AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 368-71, 510-44.
MYRDAL 1, supra note 59, at 327.
Id. at 329.
Id. at 329-30.
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minor parts and acted as extras. Accordingly, economic opportunities
for black screen actors were very limited during the first forty years of
the twentieth century.559
l. The Black Underworld
The great restrictions of economic and social opportunities for
blacks in ordinary lines of work, the encroachments on their rights
and personal integrity, and their general experience of exclusion and
isolation contributed to the proliferation of the black underworld of
crime.560 Other factors that contribute to this underground economy
are crowded ghettos that are often in proximity to “red light districts”
and the lack of wholesome recreation for blacks in urban areas.561
Accordingly, in most large cities, there was a black underworld economy of petty thieves, gambling, racketeers, prostitutes and pimps,
bootleggers, dope addicts, and those organizing and controlling these
various crimes and vices.562
The pervasiveness of institutional racism, based on the premise
that blacks were inferior and whites were superior, which dictated that
they should not mix socially, politically, or economically, is the real
reason why blacks have found such little success in business. The persistent segregation and exclusion of African Americans from the dominant culture served to insulate the dominant criteria of economic
achievement from the influence of black American culture. The policies of segregation and exclusion also perpetuated the existence of a
black American culture that is different from, and subordinate to, the
dominant perspective.563 Black Americans in business in the early
1900s were still living under the shadow of Dred Scott v. Sandford,564
which declared that they had no rights that the white man was bound
to respect.565
559. Id. at 330.
560. Id. at 332.
561. Id.
562. Id. at 330.
563. See generally Robert L. Hayman & Nancy Levit, The Constitutional Ghetto, 1993:3 WIS.
L. REV. 627 (1993).
564. 60 U.S. (19 How.) 393 (1857).
565. Id.
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m. Myrdal’s Findings Compared with Post-Civil Rights Era
John Sibley Butler, in his work entitled Myrdal Revisited: The Negro In Business, the Professions, Public Service and Other White Collar
Occupations,566 noted that Myrdal’s work stands as the standard for
analysis in race relations despite the massive changes which have
taken place since the time Myrdal wrote An American Dilemma.567
Those changes include the end of segregation and a massive civil
rights movement which resulted in legislation designed to provide
equality for blacks in employment, public accommodations, housing,
education, government contracting, and other areas.568
Myrdal’s discussion of blacks in business and the professions took
place when segregation was in full force. Today, blacks are still underrepresented in the professions, although there have been some nominal improvements in certain categories such as nursing. The
percentage of black physicians, as a percentage of the black population, demonstrated essentially no growth as of the 1980 census, and
black lawyers remain underrepresented.569 The participation of
blacks in the military, however, arguably represents the greatest
change since Myrdal’s work.570 The military has provided an opportunity structure and economic security for blacks that have probably exceeded developments in the civilian sector.571
With regard to black businesses, perhaps the greatest change
since Myrdal’s research is that black businesses now serve the entire
business community and not just the black community.572 Additionally, black businesses are engaged in manufacturing, technology, and
other sectors not readily available to black entrepreneurs prior to the
modern civil rights movement.573
John Sibley Butler’s analysis indicates that, regardless of the historical period, blacks who have adjusted to the harsh realities of racism through entrepreneurship rather than assimilation have
demonstrated a stronger emphasis on self-help and the value of edu566.
Butler, Myrdal Revisited, supra note 63, at 138.
Id. at 138, 154; see also discussion infra at notes 633-755, and 949-51 and accompanying
Id. at 160-61.
Id. at 160.
Id. at 157.
Id.; see also discussion infra at notes 795-96, and 798-803 and accompanying text.
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cation.574 Black entrepreneurs produce, through their children, the
greatest number of black college graduates, professionals, and businessmen. Research also indicates that these values are seen in members of the military and their progeny.575 Butler suggests that future
research should examine the black professional and business class in
the tradition of middleman minorities576 to better understand data
patterns from a historical view.577
C. Notable Events and Statistics During the Era of State-Imposed
1. Lynching and Disenfranchisement
Between 1878 and 1898, whites lynched approximately 10,000
persons, most of whom were black.578 Between 1890 and 1900, whites
lynched approximately 1,217 persons, most of whom were black.579
Additionally, during this era, states systematically disenfranchised blacks through violence, massacres,580 and a variety of legal
devices such as literacy tests, property tests, poll taxes, understanding
clauses, and grandfather clauses.581 At the turn of the century, nine
out of every ten blacks lived in the rural South582 and four million
freedmen had grown to eight million.583 In 1901, George H. White,
574. See id. at 146-60, 164-65.
575. Id. at 163, 165.
576. The “theory of middleman minorities,” see supra notes 402-11 and accompanying text,
“holds that a segment of an oppressed community turns to entrepreneurship and institutional
building because of discrimination.” Butler, Mydral Revisited, supra note 63, at 164. It is these
middleman minorities, research indicates, that produce the college-educated population and a
professional class. Id.
577. Id. at 165.
578. Id. at 258.
579. Id. at 271.
580. Id. at 265-77.
581. Id. at 275-76. Lerone Bennett states the initial problem facing the former Confederate
states in their desire to prevent blacks from voting was the following dilemma: “How it was
possible to disenfranchise poor blacks without at the same time legally disenfranchising poor
whites.” Id. at 275. Bennett then states:
The answer the South came up with was a wall with holes in it. The wall was made of
literacy and property tests and poll taxes. The holes, designed especially for illiterate
and property-less poor whites, were ‘understanding clauses’ and ‘grandfather clauses’.
If a man’s ancestors voted on or before a selected date in, say 1866—a date on which
unfortunately there were no black voters—then he could escape the other provisions.
Or he could escape through the holes of ‘good’ character or the ‘under-standing’ clause.
If he couldn’t read or write and if he was white, surely he could understand and explain
an article of the constitution. But if he was black, the ‘read and write’ and ‘understanding’ clauses were unbridgeable walls that no amount of literacy could bridge.
582. Id. at 295.
583. Id. at 296.
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the last black congressman elected in the 1800s from the South, ended
his last term in congress.584
2. Development of Rigid Segregation Produced the Most
Significant Ideological Split Among Black Scholars
Beginning in the 1880s, black leaders began urging the black population “to place increasing faith in business and property as a means
of escaping poverty and achieving economic independence.”585 Black
leaders urged this route as a means of black self-help through racial
cooperation with the ultimate goal of economic emancipation.586
Black leaders of this era looked to business enterprise as the basis of
black economic advancement.587 They exhorted the black masses to
escape the wage earning class and to become entrepreneurs in charge
of their own fate.588 From 1898 to 1930, black enterprises grew in
number from approximately 1,900 to 70,000.589 The driving force in
this movement became the Negro Business League, formed in 1900.590
Booker T. Washington was the organization’s first president.591
a. Booker T. Washington
i. Speeches of 1884 and 1895
Booker T. Washington was a nine-year-old slave in Virginia when
General Robert E. Lee surrendered to General Ulysses S. Grant at
Appomattox in 1865.592 Washington enrolled at Hampton Institute in
1872 at the age of sixteen.593 He founded Tuskegee Institute, “which
he built from the ground up”594 in 1881, at the age of twenty-five.595
In 1884, Booker T. Washington, the twenty-eight year old president of Tuskegee gave a speech to the National Education Association
in Madison, Wisconsin.596 The U.S. Supreme Court, a year earlier in
1883, had struck down the Civil Rights Act of 1875 which prohibited
Id. at 295-96.
HARRIS, supra note 11, at 61.
Id. at 61.
Id. at 62.
Id. at 66.
BENNETT, JR., supra note 11, at 262.
Id. at 263.
BENNETT, JR., supra note 11, at 263.
BENNETT, JR., supra note 11, at 263.
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private individuals from discriminating against black persons in providing public accommodations such as theatres, hotels, places of public amusement, and other facilities. Washington told the audience at
the National Education Association that it was unnecessary to press
for a new civil rights bill to guarantee blacks civil rights and such efforts should not be undertaken.597 Instead, Washington said that
“[b]rains, property, and character for the Negro will settle the question of civil rights.”598 His solution was that “[g]ood school teachers
and plenty of money to pay them will be more potent in settling the
race question than many civil rights bills and investigating
Booker T. Washington’s speech, eleven years later, at the opening
of the Cotton States and International Exposition on September 18,
1895, is his most influential speech.600 The speech brought Washington
national prominence for his position that blacks accept segregation for
guarantees of economic progress.601 Washington’s dazzling speech, a
parable with extensive use of metaphors,602 is best summarized by the
following quotes. Washington stated that “[i]n all things purely social
[blacks and whites] can be as separate as the fingers . . . yet one as the
hand in all things essential to mutual progress.”603 He then stated that
“the agitation of questions of social equality is . . . folly” and that the
economic and social equality of blacks “must be the result of severe
and constant struggle rather than of artificial forcing.”604 Washington
became the official spokesman for the black community for the next
twelve years, dining with President Theodore Roosevelt and wielding
considerable influence.605
ii. Positive Aspects of Booker T. Washington’s Approach
Washington’s approach assumed that whites would have little
hostility to black business endeavors since black people would not be
protesting for civil rights.606 Consequently, Washington believed that
white people would be willing to contract with black businesses for
Id. at 263-67.
BENNETT, JR., supra note 11, at 263-64.
Id. at 265.
BUTLER, ENTREPRENEURSHIP, supra note 63, at 66.
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certain services in which whites were not active.607 Washington envisioned a captured black market for black entrepreneurs in those types
of occupations.608 He recognized that segregation made it difficult for
blacks to venture out of their community with respect to a wide array
of endeavors.609 Yet, Washington saw the possibility of black economic stability through business enterprise which would be able to
cater to the needs of black Americans and, hopefully, to the needs of
whites.610 Washington’s ideas laid the foundation for economic nationalism, which predated the ethnic enclave theories of Max Weber,
Edna Bonacich, and others. None of these individuals have recognized Washington’s contribution, however.
Washington’s motto, that one need not hunt for a job if one could
perform some useful service, stressed the need for blacks to own their
own businesses and to become economically self-sufficient.611 Therefore, Washington emphasized the need for blacks to obtain an industrial education to learn a variety of trades that could form the basis of
a profitable business.612 Washington’s entire approach, however, was
predicated on black entrepreneurs serving an integrated clientele.613
iii. System of Rigid Segregation—Applicable Exclusively to
American Blacks—Doomed Washington’s Vision of
Economic Prosperity for Southern Blacks Through
The system of complete governmental segregation demolished
Washington’s goals for black economic stability in the South. The
rigid system of segregation established in the South applied exclusively to African Americans; it was not applicable to Mexican Americans, Chinese Americans, Jewish Americans, Native Americans, or
anyone else.614 Government-imposed segregation and the customs of
white private businesses took away the opportunity for blacks to compete in a truly open market.615 The fundamental difference between
black businesses and other ethnic businesses is that the government
at 66-67.
at 64.
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forced blacks to find clients within their own communities. The U.S.
Department of Commerce acknowledged that the black business market was separate from the general economic market that included all
other groups.616
iv. Unfortunate Aspects of Booker T. Washington’s Approach
Washington acquiesced on issues of social equality; he did not believe blacks should focus on protesting for civil rights possessed by
other Americans.617 Critics of Washington suggest that his philosophy
paved the way for the Supreme Court’s decision in Plessy v. Ferguson;
critics also suggest that Washington’s passive philosophy may have
been responsible for the increased violence against blacks in the
b. W.E.B. Du Bois
William Edward Burghardt Du Bois was born in 1868 and died in
1963.619 Du Bois was a sociologist by training who was drawn into the
political arena for two major reasons. The first was his antipathy toward racism.620 The second was his opposition to Booker T. Washington’s approach, which encouraged blacks not to protest for social
equality and civil rights621 in the hope that white people would be
more inclined to utilize black businesses.622
Du Bois urged blacks to protest for civil rights without regard to
race.623 He also encouraged the most intellectually talented blacks to
seek a broad liberal arts education624 that would prepare them to obtain positions of leadership within the American economy.625 Thus,
Du Bois encouraged gifted black students to look beyond Washington’s focus on industrial education and labor-intensive industrial occupations. Du Bois was one of the founders of the Niagara Movement
616. BUTLER, ENTREPRENEURSHIP, supra note 63, at 72-73.
617. BENNETT, JR., supra note 11, at 265.
618. Id. at 265, 267. “Down went the buckets and they came up filled with brine. Economic
discrimination continued. Caste lines hardened. Separate became more separate and less equal,
and lynchings reached new and staggering heights. Washington was not responsible for these
developments. But his “submissive philosophy,” C. Vann Woodward said, “must have appeared
to some whites as an invitation to further aggression.” Id. at 267.
619. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 81.
620. Id.
621. Id.
622. BUTLER, ENTREPRENEURSHIP supra note 63, at 66-67.
623. Id. at 64.
624. Id.
625. Id. at 61.
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and the subsequent NAACP in 1909.626 He would edit the NAACP’s
journal, The Crisis, for the next twenty-five years.627
Du Bois’ research628 indicated that northern black businesses in
the services industry, established as early as the 1700s in places like
Philadelphia, were being replaced by businesses run by immigrants arriving during the great wave of European immigration.629 Du Bois
noted that the arrival of immigrant groups invaded the black
stronghold in these businesses. These black businesses in the North
became as vulnerable as those in the South because of the shrinkage
of the market to the black community.630 The development of legal
segregation in the South and new racial patterns in the North set the
pattern of racial interaction for the next one hundred years.631
A. The End of Legally Imposed Apartheid in the United States in
The modern civil rights movement began after World War II.632
Blacks were no longer willing to tolerate discrimination in a country
they had fought and died to defend.633 The movement began its major
phase after the Supreme Court’s decision in Brown v. Board of Education,634 which ended the legal apartheid permitted by Plessy v. Ferguson.635 Some of the major events of this era include the
Montgomery Bus Boycott (1955-1956),636 formation of the Southern
Christian Leadership Conference (1957),637 the Student Nonviolent
626. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 81.
627. Id.
628. See BUTLER, ENTREPRENEURSHIP, supra note 63, at 69; see also, BENNETT, JR., supra
note 11, at 678.
629. BUTLER ENTREPRENEURSHIP, supra note 63, at 69.
630. Id. at 69-70.
631. Id.
632. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 60.
633. Id.
634. 347 U.S. 483 (1954) (Brown I).
635. 163 U.S. 537 (1896); see also AFRICAN AMERICAN DESK REFERENCE, supra note 72, at
636. Id. at 16, 60, 68, 84.
637. Id.
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Coordinating Committee (1960),638 the Freedom Rides (1961),639 the
March on Washington (1963),640 and Freedom Summer (1964).641
The Brown decision ended the era of legal, state sanctioned
apartheid permitted by the Court’s decision in Plessy. The Brown decision, however, did not affect the right of private businesses and individuals to discriminate on the basis of race in employment, the
provision of public accommodations, and other aspects of life. These
private firms and individuals were able to continue their discriminatory practices without restriction until the effective date of the Civil
Rights Act of 1964.642
During the 1960s, the Supreme Court also gave surprisingly expansive rulings in interpreting several civil rights statutes enacted immediately after the Civil War and during the subsequent
Reconstruction era. Prior to these decisions, the legal community assumed that these statutes, the Civil Rights Acts of 1866, and the Civil
Rights Act of 1871 required “state action” in order to be violated.643
The Supreme Court held that private entities and individuals who
were not employed by state or local governments could violate these
civil rights statutes.644 Additionally, the Supreme Court gave new life
to another Reconstruction Era statute, § 1983 of the Civil Rights Act
of 1871,645 by overturning a long-standing assumption, based on the
Civil Rights Cases,646 that the statute only prohibited misconduct resulting from “state action” either officially authorized or so widely tolerated as to amount to a custom or usage under state law.647 In
Monroe v. Pape,648 the Supreme Court held that § 1983 could be violated even by the unauthorized conduct of state officials.649
638. Id. at 16, 18, 60, 67, 68, 165.
639. Id. at 16, 17, 60, 65, 68.
640. Id. at 17, 21, 60, 68.
641. Id. at 17-18, 60, 65, 85.
642. The Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-2000h (2002), became effective on July
2, 1965. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
643. See, e.g., supra note 374.
644. See, e.g., Runyon v. McCrary, 427 U.S. 160 (1976) (giving a similarly broad reading to 42
U.S.C. 1981, which prohibits race discrimination in contractual dealings); Griffin v. Breckenridge, 403 U.S. 88 (1971) (holding that 42 U.S.C. § 1985(3) prohibits private conspiracies to deny
equal rights); and Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (giving new life to 42 U.S.C.
§ 1982, which prohibits race discrimination in property transactions, by holding that the statute
could be violated by private entities and individuals).
645. 42 U.S.C. § 1983 (2000).
646. 109 U.S. 3 (1883).
647. See Monroe v. Pape, 365 U.S. 167, 171-72 (1961).
648. Id. at 167.
649. Id. at 172.
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B. Civil Rights Groups with an Economic Agenda During the
Modern Civil Rights Era
The major black civil rights organizations,650 which pushed an economic agenda during the modern civil rights era, include the National Association for the Advancement of Colored People
(NAACP),651 the National Urban League,652 the Southern Christian
Leadership Conference,653 the Congress of Racial Equality
(CORE),654 the Nation of Islam,655 and the Black Panther Party.656
These organizations recognized that the social and political gains of
the 1960s would be incomplete without the efforts to achieve economic liberty and equality for all black Americans.
C. Programs Designed to Deal with the Social, Political, and
Economic Problems of Blacks
1. Lyndon B. Johnson and Executive Order 11,246
President Lyndon Johnson issued Executive Order Number
11,246 in 1965.657 The Executive Order mandated that every nonexempt federal government contract contain provisions that impose dual
obligations on contractors and subcontractors not to discriminate
against employees or applicants because of race, color, religion, sex,
or national origin; and to take affirmative action to insure that applicants and employees are employed without regard to such factors.658
The heart of the Order is the requirement that an employer take
affirmative action to recruit, hire, and promote women and minorities
whenever those groups are “underutilized” in the employer’s work
force, regardless of whether the employer has discriminated against
those individuals in the past. President Johnson delegated responsibility for administration of the Order to the Secretary of Labor.659 The
Secretary of Labor, in turn, established the Office of Federal Contract
See AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 64-72.
Id. at 65.
Id. at 65-66.
Id. at 68; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 282.
Id. at 64; see also BUTLER, ENTREPRENEURSHIP, supra note 60, at 282.
AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 64; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 283.
657. Exec. Order No. 11,246, 3 C.F.R. § 339 (1965), reprinted as amended in 42 U.S.C.
§ 2000e (2000).
658. Id. § 202(1).
659. Id. § 201.
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Compliance Programs (OFCCP) within the Department of Labor to
enforce and administer the Order.660
The standard contract clause requires that the contractor agree to
comply with the provisions of the Order and all OFCCP rules, regulations, and orders.661 The OFCCP may bring administrative enforcement proceedings to impose sanctions, including an order by the
Secretary debarring a contractor from future government contracts.662
2. The Civil Rights Act of 1964
Title VII663 of the 1964 Civil Rights Act, as amended, prohibits
employment discrimination on the basis of race, color religion, sex,
national origin, and pregnancy. It is a part of the comprehensive Civil
Rights Act of 1964, which also prohibits, among other things, race discrimination by private persons and entities in the provision of public
accommodations,664 and discrimination on the basis of race, national
origin, and religion in federally assisted programs.665
3. 1965 Voting Rights Act
Congress’ efforts to eradicate racial discrimination in the South
during the Reconstruction era did not meet with much success.666
Congress repealed most of these statutory provisions in 1894 instead
of re-enacting them in modified form to satisfy court objections.667 By
then, the former Confederate states had already begun the process of
disenfranchising black Americans.668
660. Prior to 1978, eleven different agencies had contract compliance sections which had
responsibility for administering and enforcing the Executive Order. The Secretary assigned each
contractor, by Standard Industrial Classification Code (SIC code), to one of these agencies. The
OFFCP generally supervised and coordinated their activities. In 1978, Executive Order 12,086
consolidated within the OFCCP the enforcement and implementation functions previously performed by the contracting agencies. Exec. Order No. 12,086, 3 C.F.R. § 230 (1978), reprinted in
42 U.S.C. § 2000e (1994).
661. Id. § 202 (4). The OFCCP published its regulations at 41 C.F.R. § 60 (1980).
662. See 41 C.F.R. § 60-1.26 (1980).
663. Title VII appears in the United States Code. 42 U.S.C. § 2000e (2000).
664. See Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (2000).
665. See Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000).
666. See, e.g., United States v. Reese, 92 U.S. 214 (1876); see also discussion supra notes 36171 and accompanying text.
667. See 1 B. SCHWARTZ, supra note 38, at 803-34.
668. The disenfranchisement movement began in the Southern states between 1888 and
1893. See Derrick Bell, Disenfranchisement: Post-Reconstruction Style, in DERRICK BELL, RACE,
RACISM AND AMERICAN LAW 580 (Aspen Law and Business 4th ed. 2000) (1973).
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The Southern states relied on violence, fraud, or hastily enacted
voting restrictions to exclude blacks from the vote.669 These states
also enacted residency requirements, poll taxes, literacy tests, property tests, understanding and character clauses, and grandfather
clauses as disenfranchisement tools to prevent black Americans from
voting.670 For example, all of the former Confederate states enacted a
poll tax by 1904.671
Litigation under the Fifteenth Amendment was time-consuming
and difficult. Moreover, even when courts ordered states or counties
to eliminate a practice found discriminatory, they were able to devise
some new scheme to perpetuate racial discrimination in voting. Congressionally enacted civil rights voting legislation passed in 1957, 1960,
and 1964 proved ineffective.672 In January 1965, for example, Selma,
Alabama had allowed only two percent of voting age blacks to register
when Dr. Martin Luther King, Jr., initiated demonstrations in Selma
in support of a voter registration drive.673 The city’s vicious response,
in which local whites killed two white civil rights activists from Massachusetts and Michigan, was well covered by the media and resulted in
national and international shock and denunciation.674 President Johnson urged new voting legislation in an emotional speech to the nation
on March 15, 1965. Five months later, in August 1965, President Johnson signed the Voting Rights Act of 1965 into law.675
Congress’ intent in enacting the 1965 Civil Rights Act was to
eradicate racial discrimination in voting by suspending the practices
utilized by Southern states to disenfranchise blacks for a period of five
years. This approach made it unnecessary for litigants to challenge
such practices on a case-by-case basis.676 The Supreme Court upheld
Congress’ power to enact the statute in South Carolina v. Katzenbach.677 The Court relied on Congress’ broad remedial powers to
combat documented past and prospective violations of the Fifteenth
669. Id. at 580-81.
670. Id. at 581-85; see also discussion supra notes 581 and accompanying text.
671. Bell, supra note 668, at 582-83.
672. See id. at 594-96.
673. Id. at 594.
674. Id.
675. Id.; see Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended
at 42 U.S.C. §§ 1971, 1973 to 1973bb-4 (2002).
676. Bell, supra note 668, at 597-98.
677. 383 U.S. 301 (1966).
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Amendment pursuant to its power to enforce the Amendment
through appropriate legislation.678
4. Civil Rights Act of 1968
Title VIII of the Civil Rights Act of 1968679 generally bans discrimination on the basis of race, color, religion, national origin, sex,
handicap, or familial status in the sale or rental of housing.680 The Act
prohibits owners and realtors from engaging in discriminatory preferences among prospective customers, prohibits discrimination in the financing of housing, prohibits discrimination in the provision of
services and facilities, and prohibits discrimination in advertising concerning housing.681
5. Government Efforts to Assist Black Businesses in View of the
Former Economic Caste System Legitimized by Plessy
a. Government Contracting and Set-Aside Programs
Federal minority contracting programs provide a major point of
entry for socially and economically disadvantaged businesses to enter
the American mainstream.682 Both federal and state governments
created minority business set-asides to encourage minority business
ownership with the principal purpose of overcoming the continuing
effects of past discrimination.683
In 1968, Congress enacted the Small Business Act, commonly
known as the 8(a) program,684 which requires any prime contractor
678. See id. at 325-27.
679. 42 U.S.C. §§ 3601-3619 (1994).
680. Bell, supra note 668, at 398-399. Congress added sex discrimination in 1974 and handicap and familial status in 1988. See JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 464 (5th
ed. 2002).
681. See DUKEMIER & KRIER, supra note 680, at 463-64, 474-77.
682. See Mitchell F. Rice & Maurice Mongkuo, Did Adarand Kill Minority Set-Asides?, PUB.
ADMIN. REV. Jan/Feb., 1998, at 82.
683. There are two basic types of set-asides: pure set-asides which provide that a certain
percentage of the total number of government contracts be allotted to minority businesses and
subcontractor goal set-asides which require that a certain portion of a prime contractor’s fee be
spent with minority-owned businesses. See M. Wilson, Set-Asides of Local Government Contracts for Minority-Owned Businesses: Constitutional and State Law Issues, 17 N.M. L. REV. 337359 (1987).
684. The Small Business Act, Pub. L. No. 85-536, 72 Stat. 384 (codified as amended at 15
U.S.C. §§ 631-37). The Section 8(a) program is at Section 637. The “inception of the 8(a) program” was in 1968. See U.S. SBA OFFICE OF BUSINESS DEVELOPMENT REPORT TO CONGRESS
2001, at 13; see also Fullilove v. Klutznick, 448 U.S. 448, 460, 463-64 (1980) (The 8(a) program
which Congress established in 1968 served as an administrative model for the MBE provision of
the Public Works Act of 1977.).
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with a federal construction contract that exceeds $1 million to establish percentage goals for the utilization of both small businesses
owned and controlled by socially and economically disadvantaged individuals.685 The Act defined “socially disadvantaged individuals” as
“those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without
regard to their individual qualities.”686 The Small Business Act set a
goal of awarding to such disadvantaged businesses “not less than [five
percent] of the total value of all prime contract and subcontract
awards for each fiscal year.”687
The Small Business Act requires federal contracts to state that
“[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans,
Native Americans, Asian Pacific Americans, other minorities, or any
other individual found to be disadvantaged” by the Small Business
Administration.688 The statute’s presumption of minority disadvantage is only a rebuttable presumption, however; persons not listed in
the enumerated groups have the opportunity to prove that they are
entitled to certification as disadvantaged689 and disappointed bidders
can present evidence to rebut the presumption of disadvantage for
particular individuals.690
Government set-aside programs have now been in existence for
over three decades. President Nixon issued Executive Order Number
11,458 in 1969, to establish the Minority Business Development
Agency (MBDA) in the U.S. Department of Commerce to preserve
and strengthen minority businesses.691 President Nixon issued a second Executive Order Number 11,625, to strengthen the MBDA.692
685. See generally Rice & Mongkuo, supra note 682, at 82.
686. Adarand Constructors. v. Pena, 515 U.S. 200, 206 (quoting 15 U.S.C. § 637(a)(5)).
687. Id. at 206 (quoting 15 U.S.C. § 644(g)(1)). The statute states that the five percent minimum applicable to all affected federal programs is a goal rather than a minimum. See id. at 206.
688. Id. at 205 (quoting 15 U.S.C. § 637(d)(2)(C)(ii)). The Small Business Administration
has adopted additional, similar regulations which contain similar presumptions to those of the
Small Business Act. See id. at 205 (citing 15 U.S.C. §§ 687(d)(2)(3)).
689. Such groups as disabled Vietnam veterans, Appalachian white males, and Hasidic Jews
may be eligible if they demonstrate they are socially and economically disadvantaged. See Rice
& Mongkuo, supra note 682, at 84.
690. Adarand, 515 U.S. at 208 (citing 13 C.F.R. 124.111 (c)–(d), which states that the presumption of disadvantage is rebuttable).
691. BUTLER, ENTREPRENEURSHIP, supra note 63, at 296.
692. See Mitchell F. Rice, Government Set-Asides, Minority Business Enterprises, and the Supreme Court, PUB. ADMIN. REV., Mar./Apr. 1991, at 114 [hereinafter Rice, Government SetAsides]
Howard Law Journal
The MBDA is the only federal agency formed specifically to promote
the creation and expansion of minority businesses.693
In 1977, Congress enacted the Public Works Employment Act
(PWEA), the first federal statutory attempt to utilize expressed racial
quotas in the administration of public works contracts.694 That Act
provided that, absent an administrative waiver, at least ten percent of
the federal funds granted for local public works projects must be used
by state or local grantees to procure services or supplies from “minority business enterprises.”695
In Fullilove v. Klutznick696 the U.S. Supreme Court upheld the
use of federal set-asides for minorities contained in the Public Works
Employment Act of 1977. Thereafter, set-aside programs proliferated
nationwide to include some 36 states and 190 localities by the late
Set-asides have had a major impact on the status of minorityowned businesses. For example, in 1986, the federal government reported $4.4 billion in contracts to minority and disadvantaged businesses under the 8(a) program.698
b. The Supreme Court’s Decisions Fullilove v. Klutznick, City of
Richmond v. J. A. Croson, and Metro Broadcasting v. FCC
The U.S. Supreme Court’s decision in City of Richmond v. J. A.
Croson699 represented a dramatic turn of events. In Croson, the Supreme Court struck down the City of Richmond, Virginia’s Minority
Business Utilization Plan under the Equal Protection Clause of the
Fourteenth Amendment. The City’s plan required prime contractors
of city-funded construction contracts to subcontract at least thirty percent of the contract’s dollar amount to minority business enter693. Id.
694. Id.
695. See 42 U.S.C. § 6705(f)(2) (1977). The section defines a minority business enterprise
(MBE) as a business of which (1) at least 50% is owned by minority group members, or (2) in
the case of publicly owned corporations, at least 51% of the stock is owned by minority group
members. The statute defines minority group members as United States citizens “who are Negroes, Spanish speaking, Orientals, Indians, Eskimos, and Aleuts.”
696. 448 U.S. 448 (1980).
697. J.H. Benjamin, The Supreme Court Decision and the Future of Race-Conscious Remedies, GOV’T FIN. REV., Apr. 1989, at 21.
698. See Rice, Government Set-Asides, supra note 692; discussion infra notes 742-57 and accompanying text for the latest statistics and information on the 8(a) program.
699. 488 U.S. 469 (1989).
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prises.700 The Richmond city council had no evidence that the city
itself had ever discriminated in the award of construction contracts.701
The city council did have evidence, however, that although Richmond
was 50% black, the city had only awarded .67% of the city’s prime
contracts to minority business enterprises in the prior five years; and
that most of the area’s contractors’ associations had no minority businesses within their membership.702 The council also had before it congressional reports containing strong evidence that there had been
extensive, nationwide discrimination against African American construction enterprises.703
Prior to Croson, the Supreme Court had upheld a federal setaside program in Fullilove v. Klutznick704 against a challenge by white
contractors who argued that the statute constituted a violation of the
Constitution’s ban on governmentally sponsored race discrimination.
The Fullilove Court, in upholding the federal set-aside under the Public Works Act of 1977, noted the broad congressional authority under
the Commerce Clause to address discrimination against minorities in
the federal procurement process705 and Congress’ special powers
under Section V of the Fourteenth Amendment to remedy racial discrimination in its relation to state and local governments in such instances.706 Moreover, a majority of the Justices in Fullilove appeared
to expand the circumstances when governmental bodies could permissibly use programs requiring racial preferences by seemingly adopting
an intermediate level of judicial review in upholding the Public Works
Act of 1977.707
700. Croson, 488 U.S. at 477. A business had to be at least fifty-one percent owned by a
minority group to be classified as a Minority Business Enterprise. Id. at 478. The city plan’s
definition of “minority group members” included African Americans, Hispanics, Asians, Indians, Eskimos, and Aleuts. Id.
701. Id. at 480.
702. Id. at 479-80.
703. Id. at 480, 484.
704. 448 U.S. 448 (1980).
705. Id. at 475-76.
706. Id. at 483.
707. In Fullilove, Chief Justice Burger, also writing for Justice White on the particular issue,
seemed to suggest that a congressional enactment establishing racial preferences will be upheld
if it: is designed to remedy identified discrimination, is properly tailored to cure the effects of
discrimination with minimal adverse effect on whites, and is limited in time and flexible. Id. at
473, 477-82, 484-86, 490, 513. Three other Justices, Justices Marshall, Brennan, and Blackmun,
would uphold racial preferences which serve “an important and articulated purpose” if the
means chosen to implement the preference are “substantially related to achievement” of that
purpose. Id. at 519. Only Justice Powell, in a concurring opinion, contended that the set-aside
provision had to be judged by “the most stringent level of review,” strict scrutiny, because the
program utilized a racial classification. Id. at 496. One dissenting Justice, Justice Stevens, did
Howard Law Journal
In the wake of Fullilove, numerous state and lower federal courts
interpreted the language of Fullilove as authorizing the creation of
non-federal minority set-asides. Consequently, state and local governments patterned set-aside programs after the Public Works Employment Act in an effort to benefit minority enterprises.708
Until the Fullilove decision, the Supreme Court repeatedly stated
that government classifications based on a “suspect” classification,
such as race,709 or which impinge on some “fundamental right”710
must pass the strictest judicial scrutiny to survive analysis under either
the Equal Protection Clause of the Fourteenth Amendment,711 or the
Equal Protection component of the Due Process Clause of the Fifth
Amendment712 In such cases, the Supreme Court held that states
must show a compelling governmental interest which cannot be
achieved through less restrictive means.
The Supreme Court used an intermediate level of scrutiny, however, for certain other classifications that required that a state merely
establish that a challenged statute was “substantially related” to important governmental objectives.713 In most instances, however, the
Court recognized that states could justify their unequal treatment of
persons by simply establishing a rational relationship between the discriminatory state requirement and a legitimate state objective.714
In Croson, the Supreme Court majority held that ostensibly benign or remedial race-based affirmative action plans developed by
state and local governments should be subjected to the same strict
scrutiny as are governmental actions that intentionally discriminate
against minorities.715 The Court, in striking down the city’s affirmative action plan, noted that the city had not identified itself as engaged
in discriminatory behavior nor had the city shown with specificity that
anyone in the Richmond construction industry had discriminated
not find that the Equal Protection Clause contains an absolute prohibition against any statutory
classification based on race but demands that Congress identifies the characteristic that justifies
a racial preference. Id. at 537, 545, 541. Two dissenting Justices, Justices Stewart and Rehnquist,
concluded that racial preferences violated the Equal Protection Clause. Id. at 523 n.1.
708. See Drew S. Days, III, Fullilove, 96 YALE L.J. 453, 454-55 (1987).
709. See, e.g., Loving v. Virginia, 388 U.S. 1, 9 (1967) (race).
710. See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (fundamental right of interstate
711. See, e.g., Loving, 388 U.S. at 9.
712. Bolling v. Sharpe, 347 U.S. 497 (1954).
713. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976) (gender-based classifications).
714. See, e.g., Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 487-88 (1955).
715. See City of Richmond v. J.A. Croson, 488 U.S. at 493-94, 498-506.
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against minority firms.716 Accordingly, the Court found that the city
failed to establish that it had a compelling need to redress past discrimination in its government contract operations and had failed to
demonstrate that its plan was narrowly tailored to address its remedial
objectives.717 The Court did not believe, however, that all race-conscious remedial plans would necessarily fail this strict scrutiny test.
For example, the Court noted that an inference of discrimination
might arise, even in the absence of direct proof718 where there is a
“significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and
the number of such contractors actually engaged by the locality or the
locality’s prime contractors.”719 The Court distinguished Fullilove on
the grounds that Congress possessed special powers to remedy racial
discrimination under Section V of the Fourteenth Amendment that
state and local legislatures did not possess.720
After Croson, many jurisdictions utilized disparity studies as the
route to justify the continued existence of set-aside plans.721 These
efforts on the part of governmental jurisdictions partially explain why
Croson did not significantly influence the level of municipal contracting with minority-owned and operated businesses.722 In 1994, for
example, the MBDA reported that minority businesses received $14.6
billion or 8.3% of the total value of government contracts through
prime and subcontracting procurement.723
In Metro Broadcasting, Inc. v. FCC,724 the Supreme Court upheld, by a five-to-four vote, two federal policies of the Federal Communications Commission (FCC) which favored minority applicants for
716. Id. at 500.
717. See id. at 509. For example, the city did not show that it had considered race-neutral
means (for example, city financing for small firms without regard to the race of their owners) or
that it would not increase minority participation adequately. Id. Similarly, the city did not establish that the thirty percent goal was narrowly tailored to any goal since there was no showing
that qualified black firms could get thirty percent of the work in the absence of discrimination.
Accordingly, the city’s thirty percent quota was not a narrowly tailored way of redressing past
discrimination even if the city had adequately proven that discrimination. Id. at 507-08.
718. The Court noted that governmental bodies may create narrowly tailored race-conscious
affirmative action plans where there is clear evidence of discrimination by a governmental body
or, perhaps private parties. Id. at 509-10.
719. Id. at 509.
720. Id. at 486.
721. James D. Ward, Response to Croson, PUB. ADMIN. REV, Sept./Oct. 1994, at 483.
722. Id.
723. See Rice & Mongkuo, supra note 682, at 82.
724. 497 U.S. 547 (1990).
Howard Law Journal
broadcast licenses.725 The more important policy provided that the
FCC would consider minority ownership as one positive factor among
several in the application process.726 The FCC’s goal was to enhance
broadcast diversity by reducing the industry’s ninety-eight percent
white ownership.727 The Metro Broadcasting majority applied an intermediate level review in judging whether race-conscious, but benign,
action by Congress violated the Equal Protection rights of non-minorities.728 The Supreme Court, utilizing this standard, upheld the FCC
policies as valid even though they were not designed to remedy past
governmental discrimination.729
c. The Supreme Court’s Decision in Adarand Constructors, Inc. v.
In Adarand,731 the Supreme Court overruled Fullilove and Metro
Broadcasting to the extent that the Adarand Court held that congressionally authorized race conscious affirmative action plans must be
subject to strict scrutiny review.732 Adarand federalized Croson since
the federal government must now satisfy the same strict scrutiny standard for race-based affirmative action as state and local governments.
Accordingly, the federal government may only use race in a way that
is narrowly tailored to achieve some compelling governmental objective.733 Moreover, the Court’s decision was not limited to federal setasides and contracting.
Plaintiff Adarand Constructors was a white-owned construction
firm that had placed the lowest bid on a subcontract to supply guardrails to a federal highway project in Colorado.734 The general contrac725. See Metro Broad., 497 U.S. at 566, 600-01. One plan gave a preference to minorityowned broadcasters in the award of FCC licenses, and the other plan provided certain tax advantages to marginal licensees who sold their stations to minority-owned broadcasters. See id. at
726. 497 U.S. at 556-58.
727. Id. at 553.
728. Id. at 564-65, 579. Accordingly, the FCC (and also Congress, which told the FCC what
to do in general terms) only needed to establish that its chosen means were “substantially related” to the achievement of “important” governmental objectives. Id.
729. Id. at 564-65.
730. 515 U.S. 200 (1995).
731. Id.
732. Id. at 227.
733. Id.
734. In 1989, the Central Federal Lands Highway Division, which is a part of the Department
of Transportation, awarded a $1 million-plus prime contract for a 4.7 mile highway construction
project to Mountain Gravel and Construction Company. Mountain Gravel then solicited bids
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tor, however, took a bid from a minority-owned firm that qualified
under federal regulations as a disadvantaged business.735
The Small Business Act requires that federal prime contracts
state that “[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanics
Americans, Native Americans, Asian Pacific Americans, and other
minorities or any other individual found to be disadvantaged” by the
Small Business Administration.736 The general contractor’s contract
did not require that it award the subcontract to a minority disadvantaged business enterprise. However, the contract provided that the
general contractor would receive a financial bonus, the lesser of 10%
of the amount of the subcontract or 1.5% of the general contract, if
the general contractor chose the minority disadvantaged business enterprise, which it did.737
The Supreme Court found that the rebuttable presumption in the
federal legislation, that racial minorities, but not whites, are presumed
to be socially and economically disadvantaged, constituted a suspect
racial classification under the Equal Protection component of the Fifth
Amendment.738 The Court, however, did not decide whether the particular set-aside regulations could survive strict scrutiny. Instead, the
court remanded the case to the lower courts.739 Nevertheless, the continuing statistical disparities between whites and blacks in every area
from subcontractors for the guardrail portion of the contract. See Adarand, 515 U.S. at 205, 20810.
735. 515 U.S. at 209-10.
736. Id. at 205 (quoting 15 U.S.C. § 637(d)(2)(C)(ii)). Small white-owned firms could also be
disadvantaged enterprises under the statute, but a firm owned by an African American, Hispanic
or certain other minority groups (as well as a firm owned by a woman), were automatically,
though rebuttably, presumed to be disadvantaged. A firm owned by a white male, by contrast,
had to prove disadvantage by “clear and convincing evidence.” See id at 205-08. The Surface
Transportation and Relocation Act, the statute under which the federal government awarded the
contract, adopted the Small Business Act’s presumption of social and economic disadvantage
contained in the Small Business Act. Id. at 208 (quoting 23 U.S.C. § 101(c)(2)(B)).
737. The Department of Transportation, in its prime contract with the general contractor,
Mountain Gravel and Construction Co., included this bonus provision pursuant to federal statutes and agency regulations that required most federal contracts to include such clauses as a
means of assisting disadvantaged small businesses. Adarand, 515 U.S. at 208-10 (recognizing
general federal contracting requirement). In addition, the Surface Transportation and Uniform
Relocation Assistance Act of 1987, the statute which was the basis for the federal government’s
award of the prime contract to the general contractor, required that at least ten percent of the
federal highway funds appropriated by that Act go to enterprises owned and controlled by socially and economically disadvantaged individuals. See 23 U.S.C. § 101-160 (1994). The ten percent provision is codified at 23 U.S.C. § 101(1) (1994).
738. 515 U.S. at 213, 227, 235-36 (focusing on the presumption).
739. Id. at 238-39.
Howard Law Journal
of social and economic life reveal the limitations inherent in the
Court’s decision.
d. Current Statistics on the 8(a) Program and the Future of SetAsides for Minority Business Enterprises
The U.S. Small Business Administration, in its Report to Congress on Minority Small Business and Capital Ownership Development for fiscal year 2001, indicated that the 8(a) Business
Development Program made significant contributions to the federal,
state, and local tax base and created an estimated 181,080 jobs in the
nation’s economy.740 The Report noted that, during fiscal year 2001,
the 8(a) program assisted small businesses owned and controlled by
socially and economically disadvantaged individuals in receiving $6.3
billion in new contract awards to active 8(a) program participants and
8(a) program graduates.741 Accordingly, the program’s benefit to the
economy from the $6.3 billion in new contracts awarded to small, disadvantaged businesses and the creation of 181,080 new jobs dwarf the
government’s $24.5 million in total expenditures in operating the 8(a)
The U.S. government contracted with 8(a) firms for goods and
services in 440 different areas of work.743 The government awarded
the largest dollar amounts in contracts to businesses owned and controlled by socially and economically disadvantaged individuals in the
following industries: (1) Commercial and Institutional Building Construction;744 (2) Facilities Support Services;745 (3) Engineering Services;746 (4) Computer System Design Services;747 (5) Other
741. Id. at 5, 25. Participants can remain in the 8(a) Program for a maximum of nine years.
After that time, they “graduate” from the program. Id. at 7.
742. For the 2001 fiscal year, the Program’s administrative costs were $21,229,247.00 and the
costs for management and technical assistance was $3,242,000.00 (a total of $24,470,247.00). Accordingly, the total cost to the U.S. government in operating the program was approximately
$24.5 million. Id. at 15.
743. Id. at 25. The government relies on the five digit North American Industry Classification System (NAICS) Codes to identify the 440 different areas of work. Id.
744. The government awarded contracts worth $732,803,000.00 in this industry classification.
745. The government awarded contracts worth $464, 965,000.00 in this industry classification.
746. The government awarded contracts worth $417,175,000.00 in this industry classification.
747. The government awarded contracts worth $346,819,000.00 in this industry. Id.
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Computer Related Services;748 (6) Data Processing services;749 (7) Research and Development in the Physical, Engineering, and Life Sciences;750 (8) All Other Heavy Construction;751 (9) Custom ComputerProgramming Service;752 and (10) Security Guards and Patrol
There were 6,942 firms participating in the 8(a) program during
fiscal year 2001.754 The ethnic heritage of the owners of these firms
during fiscal year 2001 were as follows: “Black American—2,766
(39.8[%]); Hispanic American—1,709 (24.6[%]); Asian Pacific American—868 (12.5[%]); Subcontinent Asian American—690 (9.9[%]);
Native American—589 (8.5[%]); Native Hawaiian American—45
(0.07[%]); Caucasian American—185 (2.7[%]); and Other American—90 (1.3[%]). Men own 74.5[%] of the firms and women own
25.5[%] of the firms.”755
D. Uneven Distribution of Economic Benefits to the Entire Black
Community in the Civil Rights Era
The benefits flowing from the civil rights movement have not
been evenly distributed in the black community.756 Blacks with
money were able to take advantage of the changes that accompanied
the passage of civil rights laws.757 Stokely Carmichael and Charles V.
Hamilton addressed these concerns in their book, Black Power: the
Politics of Liberation.758 Integration, according to Carmichael and
Hamilton, was based on the notion that to have a decent house or
education, black people must move into white neighborhoods and
send their children to white schools. The result, they argued, was that
a handful of black children got in white schools while ninety-four percent were left in unimproved all-black schools.759 Carmichael and
748. The government awarded contracts worth $343,735,000.00 in this industry. Id.
749. The government awarded contracts worth $281,084,000.00 in this industry. Id.
750. The government awarded contracts worth $253,731,000.00 in this industry. Id.
751. The government awarded contracts worth $208,796,000.00 in this industry. Id.
752. The government awarded contracts worth $160,844,000.00 in this industry. Id.
753. The government awarded contracts worth $126,711,000.00 in this industry. Id.
754. Id. at 19.
755. Id.
756. BUTLER, ENTREPRENUERSHIP, supra note 63, at 285.
757. Id.
759. BUTLER, ENTREPRENEURSHIP supra note 63, at 285 (citing CARMICHEAL & HAMILTON,
supra note, 758, at 54).
Howard Law Journal
Hamilton also discussed the class split in the black community that
resulted from integration. They stated that, in their judgment:
The goals of integrationists are middle-class goals, articulated primarily by a small group of Negroes with middle-class aspirations or
status. This kind of integration has meant that a few blacks ‘make
it’, leaving the black community, sapping it of leadership potential
and know-how . . . those token Negroes—absorbed into a white
mass—are of no value to the remaining black masses. They become
meaningless showpieces for a conscience-soothed white society.760
In the newly integrated America, blacks with credentials were
able to take advantage of the newly created opportunities afforded by
the Civil Rights Movement.761 Accordingly, the issue of class has become an undoubtedly important factor in determining life-chances of
black Americans in the global economy of the post-industrial servicesoriented age.762
The Empowerment Zone and the Enterprise Community Program [EZ/EC], however, is showing signs of revitalizing the inner cities and creating jobs for those in the black community who have not
benefited significantly from the gains of the civil rights movement.763
The 1993 legislation creating the EZ/EC Program was designed to
promote economic development in less affluent communities. The
Department of Housing and Urban Development administers the EZ/
EC Program by providing
[T]echnical assistance, loans, grants and tax credits to qualified business organizations. As of 1997, EZ/EC programs were operating in
43 states. In New York City, the upper Manhattan Empowerment
Zone, with a total budget of $300 million in loans and grants and
$250 million in tax credits, had approved $15.2 million for 12
projects-ranging from a retail and entertainment complex to a geriatric center that were expected to create 1300 jobs.764
760. BUTLER, ENTREPRENEURSHIP supra note 63, at 285-86 (citing CARMICHEAL & HAMILsupra note, 758, at 53).
761. Id. at 286.
EQUALITY AND PUBLIC POLICY (1975); and WILLIAM JULIUS WILSON, THE DECLINING SIGNIFICANCE OF RACE (1978)). The modern global services-oriented economy has had a negative impact on black workers who largely remain an undereducated industrial labor force. See
ANDREWS, supra note 4. This development has been exacerbated by the practice of U.S. Corporations “offshoring” their manufacturing needs to reduce their labor costs. See generally The
Jobless Recovery, WASH. POST. Jan. 27, 2004, at A16.
763. See generally Bernstein et al., supra note 73.
764. AFRICAN AMERICAN DESK REFERENCE, supra note 72, at 245.
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E. Statistics on Black Businesses and the Black Consumer
1. Collective Black Earning Power Approximately $601 Billion
The $601 billion earned by blacks in 2001 exceeded the gross domestic product of all but 15 nations of the 192 independent nations of
the world.765
2. Black Business Statistics
a. Historical Notes and Background
Black businesses, excluding insurance companies and banks, fell
into four main categories by 1930: (1) amusement and recreational
enterprises; (2) real estate businesses; (3) retail trade enterprises; and
(4) businesses providing personal services.766 The largest number of
successful black enterprises were those providing personal services,
“restaurants, beauty parlors, barber shops and funeral parlors.”767
These types of personal service businesses were characterized as “defensive enterprises”768 because they were the result of racial segregation.769 Consequently, between 1900 and 1930, the largest numbers of
successful black businesses were in the field of personal service ventures.770 Blacks, during this time period, owned no significant commercial or industrial enterprises in “[b]asic industry, natural resources,
transportation, and communication. These types of businesses “continued to be owned and controlled by white capitalists.”771
The size and types of black businesses between the great depression and the decades of the 1950s and 1960s were much like those of
the late 1800s to 1930, small service-oriented businesses primarily
serving a black clientele.772 State enforced segregation was the primary reason black businesses failed to expand into many industries
serving the general community.773 This trend continued through the
765. See discussion supra notes 13-14 and accompanying text.
766. HARRIS, supra note 11, at 68.
767. Id. at 66.
768. Id.
769. Id.
770. Id.
771. Id.
772. BUTLER, ENTREPRENEURSHIP, supra note 63, at 296-97.
773. Id. at 297; see also Butler, Myrdal Revisited, supra note 63, at 138-43, 151-65; discussion
supra notes 566-73 and accompanying text. See generally MYRDAL 1, supra note 59, at 304-32;
discussion supra notes 428-577.
Howard Law Journal
late 1980s.774 By 1987, service industries accounted for 49% of all
black-owned firms and 31% of gross revenues. Retail trade comprised the next greatest concentration, comprising 15.6% of black
firms and 29.8% of gross revenues.775 Automobile dealers and service
stations had the highest gross revenues in 1987, totaling nearly $2.2
From 1898 to 1930, black businesses grew from 1,900 to 70,000.777
From 1920 to 1930, blacks in white collar positions experienced a parallel growth.778 Black-owned businesses, during this time period, employed a large number of black white collar workers.779 By 1987, the
Bureau of census reported that African Americans owned 424,165
businesses, a 37.6% increase from 308,260 in 1982.780 The number of
black-owned firms rose 46% between 1987 and 1992 from 421,165
firms to 620,912.781
b. Approximately 95% Sole Proprietorships
An overwhelming number of emerging black businesses which
engage in providing some sort of personal service continue to be
solely owned by the founder or his successor.782 In 1987, for example,
sole proprietors owned 94.4% of all black firms.783 These figures are
consistent with 1982 and 1977 statistics, which indicate that 95% and
94.3% of black-owned businesses were sole proprietorships in those
c. Approximately 3% Partnerships
In 1987 2.7%
THE AFRICAN AMERICAN ALMANAC, supra note 11, at 569.
HARRIS, supra note 11, at 66.
THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568.
BUTLER, ENTREPRENEURSHIP, supra note 63, at 297.
THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568.
Id.; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 297.
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d. 3% Corporations
In 1987, 3% of black firms were small, closely held corporations
which had elected to be taxed under Subchapter S of the Internal
Revenue Code to achieve flow-through taxation similar to the taxation of a general partnership.786
e. Approximately 83% of Black Firms Have No Paid Employees
In 1987, 83.3% of black-owned firms had no employees. However, the 16.7% of black firms that had employees, accounted for
71.5% of the gross receipts. There were 189 firms with 100 or more
f. Black Rate of Entrepreneurship is Lower Than All Other
Ethnic Groups (3% of Entrepreneurs but 12% of the
Although blacks attempt to start businesses at three times the
rate of white men and two times that of white women,788 blacks only
own 3% of all businesses.789
There were 163,000 black-owned businesses in 1969; the number
increased to 231,203 by 1977, and by 1982, the number of black-owned
businesses had increased to 339,239.790 The number of black-owned
businesses increased, however, by 38% between 1982 and 1987. The
number of black-owned firms rose 46% between 1987 and 1992 from
424,165 to 620,912.791 Nevertheless, black entrepreneurship remains
786. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568; see also BUTLER, ENTREsupra note 63, at 297. There are three tax schemes for businesses. Subchapter C
describes the traditional corporate income tax. Subchapter K describes the taxation applicable
to partnerships and associations taxable as partnerships. Subchapter S is an alternative tax election available to closely held corporations that meet its eligibility requirements. See generally
government subjects the income of “C” Corporations to double taxation. The corporation initially pays income taxes on its net revenues. If the corporation subsequently distributes a portion of the previously taxed income to the shareholders as a dividend, the shareholders must also
pay taxes on that income. Id. at 28-29. The government taxes the income of a general partnership only once under Subchapter K. Id. at 30. The government taxes the income of closely held
corporations eligible for the Subchapter S taxation in a manner which avoids the double taxation
on distributions. Id. at 29-30.
787. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 569; see also BUTLER, ENTREPRENEURSHIP, supra note 63, at 297.
788. BUTLER, ENTREPRENEURSHIP, supra note 63, at 311.
789. Jeanne Saddler, Black Entrepreneurship: The Next Generation, Young Risk Takers Push
the Business Envelope, WALL ST. J., May 12, 1994, at B1; see also Black Entrepreneurs: Have
Capital Will Flourish, ECONOMIST, Feb. 27, 1993, at 33 [hereinafter Have Capital Will Flourish].
790. BUTLER, ENTREPRENEURSHIP, supra note 63, at 297.
791. WALL STREET JOURNAL ALMANAC 1999, supra note 781, at 179.
Howard Law Journal
underdeveloped. In 1995, just 3.7% of the 22.87% of blacks in the
labor force were self-employed as compared with 9.5% of whites.792
g. Gross Revenues of Black Businesses
From 1982 to 1987, the collective gross revenues of all black businesses increased by 105% from $9.6 billion to $19.8 billion.793 The
collective gross revenues of all black firms rose 63% from $19.8 billion
to $32.2 billion between 1987 and 1992.794
Interestingly, only 0.5% of black corporations grossed $1 million
or more.795 The corporations grossing over one million dollars constitute 37% of the gross revenues of all black-owned businesses although
they are miniscule in number at 0.5% of the total.796 Approximately
35% of the firms, however, had gross receipts of less than $5,000. The
average black business, in 1987, had revenue of only $47,000.00, far
below the $192,000.00 figure for businesses in general.797
h. The Combined Gross Revenues of the 100 Largest Black
Industrial and the 100 Largest Auto Dealers in 2003 was
$21.9 Billion
The combined revenue of the Black Enterprise Magazine’s 100
largest industrial corporations and the 100 largest auto dealers was
$13.19 billion in 1997.798 This was a 6.49% drop from the $14.1 billion
figure in 1996 and the first decline since the Black Enterprise Magazine’s list of 100s combined in 1988.799 The reason for the decline was
the decision of TLC Beatrice International Holdings, Inc., the perennial list leader with $2.2 billion in revenues, to sell all of its subsidiaries that year.800 By the 1999 listings, TLC Beatrice had decided to
liquidate what assets it still retained.801 By 2002, however, the com792. See THERNSTROM & THERNSTROM, supra note 30, at 188-89.
793. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568.
794. WALL STREET JOURNAL ALMANAC 1999, supra note 781, at 179.
795. THE AFRICAN AMERICAN ALMANAC, supra note 11, at 568.
796. Id. at 568.
797. Id.
798. Derek T. Dingle, B.E. 100’s 26th Annual Report On Black Business, BLACK ENTERPRISE, June 1998, at 93.
799. Id.
800. Id.
801. B.E. 100’s Overview, BLACK ENTERPRISE, June 2000, at 108.
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bined figure for the two groups was $20.979 billion.802 In 2003, the
combined figure was $21.9 billion.803
i. One-Half of Black Men and Two-Thirds of Black Women are
Civil Servants
It is not surprising that statistics indicate that one-half of black
men and two-thirds of black women are civil servants.804 Historically,
blacks have had the greatest opportunity for employment in the government than in any other sector. Thus, it is clear that government
employment has been an important factor in black economic stability.805 The Office of Personnel Management, in its Fact Book for
2002, stated that government employees were 69% white, 17% black,
7% Hispanic, 5% Asian and 2% American Indian; these statistics are
notable for blacks since they constitute 17% of the federal government workforce but only 12% of the population.806 The government,
astonishingly, employs half of all black professionals as opposed to
only a quarter of white professionals.807 Moreover, when government
employment of blacks in the military is factored in, the significance of
government work to black economic security becomes readily
j. Obtaining Capital More Difficult for Blacks than for Other
Ethnic and Minority Groups
75% of black entrepreneurs state that that they have encountered
some discrimination in obtaining bank financing.809 In 1982, 69% of
black owners started their businesses without borrowing money.810 It
is estimated that the gap between the capital available to blacks and
that which whites can employ is over $200 million and projected to
802. Derek T. Dingle, B.E. 100’s 31st Annual Report on Black Business, BLACK ENTERPRISE,
June 2003, at 96.
803. Derek T. Dingle. B.E. 100’s Overview, Only the Strong Survive, BLACK ENTERPRISE
June 2004, at 102.
804. See Have Capital Will Flourish, supra note 789, at 75-76.
805. See generally MYRDAL 1, supra note 59, at 327-28; discussion supra notes 545-52 and
accompanying text.
806. See The Typical Federal Worker, WASH. POST, Sept. 1, 2003, at A23.
807. See THERNSTROM & THERNSTROM, supra note 30, at 188-89.
808. MYRDAL 1, supra note 59, at 327-28; see also Butler, Myrdal Revisited, supra note 63, at
809. Dorothy J. Gaiter, Black Entrepreneurship: A Special Report, Short-Term Despair,
Long-Term Promise: As Traditional Black-Owned Businesses Lose Ground, Hopes Rest on a
New Generation of Entrepreneurs, WALL ST. J., Apr. 13, 1992, at R1.
810. BUTLER, ENTREPRENEURSHIP, supra note 63, at 309-11.
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grow at a rate of $13.8 million a year.811 The historical inability of
blacks to obtain capital is well documented.812
A. Choosing the Appropriate Vehicle for Doing Business
1. The Organizational Features Usually Desired by the Owners of
Small Start-Up Businesses Almost Exclusively Involve
Legal Characteristics Provided for by General
Partnership Law
Virtually all black businesses are closely held businesses owned
by one or two persons.813 Only a handful of black businesses are publicly held enterprises with stock that is traded over a secondary market.814 Owners of businesses with more than one owner must be
concerned with issues of management control, fair treatment of other
owners, and a host of other matters. Anecdotal evidence suggests that
African Americans, because of their long exclusion from being able to
enter fairly the world of business enterprise, need assistance in understanding the pros and cons of doing business in a particular form of
business organization. Even in 2004, many African Americans are the
first in their families to graduate from college or to start a business
enterprise. Accordingly, this section of the article discusses some of
the legal considerations which African Americans should consider in
selecting the most appropriate business organization.
The proposed business structure for enterprises with two or more
owners should, ideally, be one which provides its owners with: equal
rights to participate in the management of the business,815 limited liability,816 the right to individually take tax deductions for expenses in811. Id. at 309.
812. See, e.g., HARRIS, supra note 11, at 28-30; MYRDAL 1, supra note 59, at 308, 311-12, 314;
discussion supra notes 445-51, 461-63, 502-04 and accompanying text.
813. See discussion, supra notes 782-84 and accompanying text.
814. See Jeffrey McKinney, The Perils of Being Public, BLACK ENTERPRISE, April 2001, at
99. The article makes reference to only six African American-owned companies that had shares
listed for trading on a secondary market. Moreover, several of those companies appeared to be
on the verge of being de-listed.
816. Id.
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curred by the business,817 relative ease in withdrawing his or her
equity investment in the business upon leaving the business,818 and the
ability to prevent new persons from becoming owners in the business
without the consent of all existing owners.819 The general partnership,
with the exception of the limited liability feature,820 provides owners
all of these benefits.821 Traditional corporation law, with the exception of limited liability, provides none of these protections.822 Accordingly, the owners need to have a specific, comprehensive written
agreement between them,823 which addresses the expectations of the
owners with respect to these matters. African Americans and other
historically disadvantaged groups who are considering launching a
business enterprise should be particularly careful in addressing these
2. Pros and Cons of the Seven Most Common Forms of Business
a. The Sole Proprietorship
The sole proprietorship has only one owner by definition.824 The
statistics indicate that approximately ninety-five percent of all black
enterprises are sole proprietorships.825 The owner need not file any
articles of organization with any governmental agency to exist as a
sole proprietorship.826 This form of business fails to protect the owner
from personal liability for the debts of the business. Accordingly, the
sole proprietor has unlimited personal liability for all the contractual
debts of the business if business is unable to pay its debts.827 The sole
817. See generally HAMILTON, supra note 786, at 28-39.
818. See HYNES, supra note 815, at 189; EISENBERG, supra note 815, at 244, pt. 1.e., 322-23,
333-336; HAMILTON, supra note 786, at 346-48, 366-373.
819. EISENBERG, supra note 815, pt. 1.d (Partnership law, requires the consent of all the
partners for any person to be admitted into the partnership—in other words, admission through
the transfer of ownership units to that person—in the absence of an agreement to the contrary).
See UNIF. PARTNERSHIP ACT of 1914, § 18(g), 6 U.L.A. 101 (2001)(Part II); REV. UNIF. PARTNERSHIP ACT of 1997, § 401(i), 6 U.L.A. 133 (2001)(pt. II).
820. General partners under partnership law are unlimitedly personally liable for the debts
of the partnership. See UNIF. PARTNERSHIP ACT § 15, 6 U.L.A. 613 (2001)(Part I); REV. UNIF.
PARTNERSHIP ACT § 306 (a), 6 U.L.A. 117 (2001)(pt. I).
821. See EISENBERG, supra note 815, at 243-44.
822. Id. at 244-45.
823. HAMILTON, supra note 786, at 348-73.
824. HYNES, supra note 815, at 10, 194-196.
825. See discussion supra notes 782-84 and accompanying text.
826. See ALFRED F. CONARD ET AL., AGENCY-PARTNERSHIPS 4 (4th ed. Foundation Press
ed. 1987)[hereinafter AGENCY-PARTNERSHIPS].
827. Id.
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proprietor is also liable for torts committed by the proprietor’s agents
in performing work on behalf of the owner/proprietor.828 Therefore,
the sole proprietor should maintain adequate insurance because the
proprietor’s agents829 may render the proprietor liable as a principal830 in contract831 and tort.832 African American entrepreneurs
should be aware of these potential dangers in doing business in the
sole proprietorship format. However, the sole proprietorship does
provide the owner with all of the other features normally desired by
one starting a small start-up business since the sole proprietor has the
exclusive right to make all the decisions for the business.833
828. HYNES, supra note 815, at 196.
829. The term “agent” refers to anyone who has manifested consent to act in a fiduciary
relation on behalf of another and subject to his control. Id. at 3, 6.
830. The term “principal” (or “master” or “employer”) in the law of agency refers to a person who has authorized another to act on his account and subject to his/her control. Id. at 8, 9. In
order for an agency relationship to exist, the principal: must consent to the relationship with the
agent; must expect to receive some benefit from the services provided by the agent; and must
control (or have the right to control) the manner and method in which the agent performs his
work on behalf of the principal when assisting the proprietor in operating the business. Id. at 13
(citing RESTATEMENT (THIRD) OF AGENCY § 1); see also AGENCY-PARTNERSHIPS, supra note
826, at 79.
831. Contract liability in agency involves an agent who represents the principal in business
dealings with third parties. There must be some act on the part of the principal constituting
appointment of a person as an agent, i.e., it is a consensual relationship. See HYNES, supra note
815, at 12-14; see, e.g., White v. Consumers Fin. Serv., Inc., 15 A.2d 142 (Pa. 1940); see also
AGENCY-PARTNERSHIPS, supra note 826, at 80-81. While a principal must have contractual capacity (for example, legal age and sound mind), any person may be an agent. The agency relationship may be created by an act of the principle (for example, Estoppel and Statute), under
such circumstances when it can be said that the principal has created the illusion of an agency
relationship in the eyes of the third party (the plaintiff). HYNES, supra note 815, at 135-37. In
practice, estoppel is similar but not identical to the doctrine of apparent authority. Id. If the
principal claims that the agent lacked authority to sign the contract, the plaintiff must prove that
the principal created (vis-a-vis
the agent) either one or more of the following types of agency
authority: actual express authority, id. at 116-20, actual implied authority, id. at 121, apparent
authority, id. at 125-35, inherent authority, id. at 138-40, or ratification (subsequent authority),
Id. at 161-173.
832. A principal may be liable to third parties for torts (for example, negligent acts causing
physical injury) committed by his agent under the doctrine of “respondeat superior” (sometimes
referred to as derivative or vicarious liability). Two basic elements must be established: there
must be a (i) a master-servant relationship and (ii) the servant’s wrongful conduct must have
been committed within the scope of the employment relationship. See HYNES, supra note 815, at
72-75, 92-102. For a master-servant relationship to exist, the principal must have consented to
the relationship; must expect to receive a benefit from the agent’s activities, and have control or
the right to control the method and manner in which the agent performs his work. Id. at 13-18.
The requirement that the servant’s wrongful conduct be performed within the scope of the
employment relationship is closely related to the idea that the agent must have been doing something to benefit his master at the time the tort occurred. Sometimes, whether an agent was
within the scope of his employment at the time of the tort is a matter of degree. Id. at 92-96.
833. Id. at 10, 194-96.
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b. The General Partnership
A general partnership is an association of two or more persons
who combine to carry on as co-owners of a business for profit.834 The
owners do not need to file any organizational documents for a general
partnership to exist between them. Partnership law states that sharing
of profits from the business constitutes prima facie evidence that one
is a partner in the business.835 The general partnership, like the sole
proprietorship, renders its owners liable for the debts of the partnership if the partnership cannot pay its bills.836 African American entrepreneurs should be aware of the ramifications of joint and several
liability in doing business as a general partnership precisely because of
the reality that creditors of the business can seize their personal assets
if the business fails. Moreover, it makes no difference if a particular
partner is innocent of any wrongdoing that may cause the partnership
to be liable. If one partner is held liable, all partners are liable under
general partnership laws regardless of fault or involvement in the
wrongful act.837
The general partnership, however, provides the business owners
with all the other features normally desired by one who is starting a
business enterprise.838 Accordingly, the general partners, in the absence of an agreement to the contrary, are presumed to have equal
rights to participate in the management and control of the partnership,839 have apparent agency authority to bind the partnership to
contracts,840 owe a fiduciary duty of care and loyalty to co-partners,841
are able to recoup their investment stake in the net worth of the partnership upon withdrawal from the partnership,842 and have a veto
power over anyone becoming a new owner in the business.843
834. UNIF. PARTNERSHIP ACT § 6, 6 U.L.A. 313 (2001)(pt. I); REV. UNIF. PARTNERSHIP ACT
§ 202(a), 6 U.L.A. 92 (2001).
835. UNIF. PARTNERSHIP ACT § 7(4), 6 U.L.A. 418 (2001)(pt. I); REV. UNIF. PARTNERSHIP
ACT § 202(c), 6 U.L.A. 92-93 (2001)(pt. I). Other rules for determining whether a partnership
exists between two or more persons can also be found in the partnership statutes. Id.
836. HYNES, supra note 815, at 237-41.
837. Id.
838. See discussion supra notes 815-21 and accompanying text.
839. HYNES, supra note 815, at 227-37.
840. Id. at 232-35.
841. Id. at 244-55.
842. Id. at 266-82.
843. See UNIF. PARTNERSHIP ACT § 18(g), 6 U.L.A. 101 (2001) (Pt. II); REV. UNIF. PARTNERSHIP ACT § 401 (i), 6 U.L.A. 133 (2001)(pt. I).
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c. The Corporation
Under traditional corporation law, the primary benefit that the
corporate form of business provides to owners of small start-up businesses is limited liability. The corporation is deficient in every other
respect, however.844 Accordingly, African Americans who are considering starting a business enterprise should carefully consider these deficiencies before choosing this business format.
Traditional corporate law does not vest management control in
the shareholders directly. Instead, these statutes place control of the
corporation in a board of directors and designated officers who are
accountable to the board.845 Directors, however, need not be owners
of the corporation.846 Accordingly, persons with no ownership stake
in the business can participate in the control of the corporation. Additionally, tax law does not provide flow-through taxation to the shareholders.847 Consequently, tax law does not permit shareholders to
deduct expenses incurred by the corporation unless the corporation is
a small closely held business which applies for and meets the requirements for recognition as a Subchapter S corporation.848 Traditional
corporation law also makes it potentially difficult for owners to
recoup their investment in the business after they withdraw from the
business849 and allows for persons to become owners without the consent of the other owners.850
Nevertheless, it is possible for a business organized as a corporation to have all the features normally desired in a start-up business.
The owners, however, must (1) incorporate under a close corporation
statute851 and (2) have a detailed shareholders’ control agreement,852
which provides a method of assuring that the owners have an equal
844. There have been developments in the law, however, which allow owners to achieve all
of the features normally desired in a business structure for a small start-up business. See generally HAMILTON, supra note 786, at 29-30, 348-75
845. Id. at 228-35.
846. See, e.g., Delaware General Corporation Law, 8 DEL. CODE ANN. 141(b).
847. HAMILTON, supra note 786, at 28-29; see discussion supra at note 786.
848. To achieve this objective, the corporation must be eligible for subchapter S tax treatment. Id. at 29-30, 36-39. See discussion supra at note 786.
849. Corporations can only be dissolved under traditional statutes if shareholders approve by
a vote sometimes as high as two-thirds. See HAMILTON, supra note 786, at 631-32. See generally
EISENBERG, supra note 815, at 158, 244.
850. Traditional corporation statutes assume that each owner can freely transfer his/her stock
ownership interest. See EISENBERG, supra note 815, at 67; see also HAMILTON, supra note 786, at
851. See HAMILTON, supra note 786, at 357-60. Compare close corporation statutes, id. at
357-60, with traditional corporation statutes, id. at 228-44, to see the difference in approaches.
852. Id. at 348-53.
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right to manage the corporation, relative ease in obtaining their investment in the net worth of the business upon leaving the business,
and a veto power over the admission of new owners in the business.
Additionally, the owners should (3) apply to the Internal Revenue
Service for recognition as a Subchapter S Corporation in order to
achieve flow-through taxation.853
Small, closely held corporations are distinguished from publicly
held corporations chiefly by three characteristics: “(1) a small number
of stockholders; (2) no ready market for the corporate stock [to be
traded]; and (3) substantial majority stockholder participation in the
management . . . and operations of the corporation.”854 Interestingly,
well over ninety-eight percent of all corporations are closely held.855
The expectations of shareholders in closely held corporations,
which are basically incorporated partnerships in which the shareholders are running a business to make a living, are vastly different than
the interests of shareholders in publicly held corporations who view
their ownership as a pure investment in a company run by others. Accordingly, state legislatures have attempted to relax traditional corporate statutory norms856 to give closely held corporations the flexibility
and simplicity of partnerships.
853. Id. at 29-30. See discussion supra note 786 at 29-30.
854. See Donahue v. Rodd Electrotype, 328 N.E.2d 505, 511(Mass. 1975).
855. Approximately 94% of all corporations have only between 1 and 10 shareholders. Approximately 98% of all corporations have less than 100 shareholders. The large and famous
corporations which many are familiar with only comprise a meager three-tenths of one percent
(.03%) of the total number of corporations in existence. The breakdown in terms of number of
shareholders in all corporations breaks down as follows: 1-10 shareholders—93.94% of all corporations; 11-99 shareholders—4.03% of all corporations; 100-499 shareholders—1.53% of all corporations; 500-1499 shareholders—.29% of all corporations; 1500—1499 shareholders .10% i.e.,
one-tenth of 1% of all corporations; 3000—10,000 Shareholders = .07% of all corporations; over
10,000 shareholders—.03% of all corporations. See WILLIAM LUCIUS CARY & MELVIN ARON
EISENBERG, CASES AND MATERIALS ON CORPORATIONS 168 (1995) (citing to 1970s data as probably representative of today’s percentages). Thus, the bulk of corporations are essentially incorporated sole proprietorships and partnerships in which the owners work in order to make a
living. Usually, the owners need a “business prenuptial” agreement (called a shareholder’s control agreement) to govern such matters as: (i) management rights of the owners (ii) ensuring that
a shareholder will be able to recoup his investment upon his voluntary or involuntary withdrawal
from the business; (iii) the mechanics of determining whom will be allowed to become a new
shareholder, and a myriad of other matters. See generally HAMILTON, supra note 786, at 348-73.
856. Under traditional corporate norms, shareholders do not have power to manage the corporation, do not have agency authority to bind the corporation, do not owe other shareholders a
fiduciary duty of care and loyalty, have the power to freely transfer their ownership interests to
strangers, have relative difficulty in obtaining their portion of the net worth of the business upon
withdrawal from the business in the absence of owning a majority or, sometimes as high as twothirds of the outstanding shares of the business. See EISENBERG, supra note 815, at 243-45.
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Thus, legislative and, in some instances, judicial attempts have
been made: (i) to make it easier for shareholders in closely held corporations to obtain their stake in the net worth of the business when
they voluntarily or involuntarily withdraw from the business;857 (ii) to
give shareholders the right to veto the admission of new owners in the
business;858 (iii) to pass close corporation statutes giving such businesses the flexibility of general partnerships;859 and (iv) to impose
partnership-like fiduciary standards on shareholders.860 Courts, however, have held that controlling shareholders861 of publicly held corporations also have a fiduciary duty of loyalty to the corporation and its
Both shareholders in closely held corporations and the owners of
partnerships and other small businesses should always enter into
agreements which protect their rights to participate in the management of the business and outline a process whereby they can obtain
their portion of the net worth of the business upon withdrawal from
the business. Aspiring African American entrepreneurs should enter
into these agreements as a matter of course.
857. See, e.g., McCallum v. Rosen’s Diversified, Inc., 153 F.3d 701 (8th Cir. 1998) (applying
Minnesota’s mandatory buy-out provision for shareholders treated unfairly). See generally HAMILTON, supra note 786, at 371-73.
858. See generally EISENBERG, supra note 815, at 312-13. The basic restrictions on shareholders ability to transfer their shares are first refusal restrictions, first option restrictions, and consent restrictions. Id. See generally HAMILTON, supra note 786, at 288-303.
First refusal restrictions prohibit a sale of stock to third parties unless the shares have been
first offered to the corporation, the other shareholders, or both. Id. at 312; see, e.g., Ringling
Bros.–Barnum & Bailey Combined Shows v. Ringling, 53 A.2d 441(Del. Sup. Ct. 1947). First
option restrictions are similar to first refusal restrictions except that the shareholders must first
offer the shares to the corporation or other shareholders at a price (or pricing formula) fixed in
the option restriction agreement. EISENBERG, supra note 815, at 312-13. See, e.g., Allen v.
Biltmore Tissue Corp., 141 N.E.2d 812 (N.Y. 1957). A consent restriction prohibits a sale of
stock without the permission of the corporation’s board of directors or shareholders. EISENBERG, supra note 815, at 313; see, e.g., Colbert v. Hennessey, 217 N.E. 2d 914 (Mass. 1966).
859. See EISENBERG, supra note 815, at 253-54. See generally HAMILTON, supra note 786, at
860. See, e.g., Donahue v. Rodd Electrotype Co., 328 N.E. 2d 505 (Mass. 1975). In Donahue,
the Massachusetts Supreme Court held that controlling shareholder (eighty percent owner) of a
closely held corporation owed the non-controlling group substantially the same fiduciary duty in
the operation of the business as a partner would owe to a co-partner. Id. at 515. The court, in a
later case, held that a controlling shareholder cannot use his/her control of the board of directors
to provide opportunities/benefits which only favor the controlling shareholder and exclude the
non-controlling shareholder unless there is a legitimate business purpose for the majority’s action. Wilkes v. Springside Nursing Home, 353 N.E.2d 657, 663-64 (Mass. 1976).
861. A controlling shareholder is one who owns a majority of the outstanding shares of the
corporation or who owns a sufficient number of shares to elect a majority of the corporation’s
board of directors. See Kahn v. Lynch Comm. Sys., Inc., 638 A.2d 1110, 1113-14 (Del. Sup. Ct.
862. Id.
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The objectives of protecting one’s management rights in the business and obtaining one’s investment in the business upon withdrawing
from the business can be achieved, in appropriate cases, through pooling agreements;863 voting trusts;864 cumulative voting;865 classified
stock and weighted voting;866 control agreements, which stipulate the
persons who shall serve on the board of directors;867 control agreements which stipulate that the shareholders who are parties to the
agreement will vote for each other to be directors and that, in their
capacity as directors, they will vote for each other to be executive officers of the corporation;868 supermajority voting provisions;869 provisions making dissolution easy—in the sense of ease of recouping one’s
investment upon voluntary or involuntary withdrawal from the business;870 restrictions on an owner’s ability to sell his equity interest to a
863. Pooling agreements with respect to shareholder voting are when shareholders agree to
agree as to how they will vote their shares. See HAMILTON, supra note 786, at 278-81, 660; see,
e.g., Ringling Bros., 53 A.2d 441.
864. Voting trusts are somewhat like a pooling agreement except that the shareholders transfer the legal title to their shares to the trustee who then votes the beneficial owners’ shares as per
the trust agreement. See HAMILTON, supra note 786, at 281-86, 672.
865. The number of votes that shareholders have to vote for directors at an annual meeting is
determined by multiplying the number of shares owned by the shareholder by the total number
of directors to be elected the meeting. The shareholder, in normal, straight voting, can only give
the number of shares he/she owns to each director to be elected. Thus, if the shareholder owns
10 shares and there are 9 directors to be elected, the shareholder has a total of 90 votes to
expend. The shareholder, however, can only give no more and no less than 10 votes to each of
the 9 directors to be elected in straight voting. Under cumulative voting, however, the director
can bunch his total votes and give all 90 votes to one nominated director, 30 to 3 nominees, 45 to
2 nominees and any other formula for bunching his 90 votes. Id. at 263-70; see e.g., Ringling
Bros., 53 A.2d at 444 n.1.
866. Classified stock and weighted voting can be used to regulate voting control in a closely
held corporation. For example, the shareholders may agree that the owners of Class A Stock
can have the power to elect 3 directors while the owners of class B Stock are allowed to elect 2
directors. Another example would be a shareholder arrangement whereby class A voting stock
is issued to the owners in equal amounts while class B stock is issued to the owners according to
how much capital they have contributed to the business. Accordingly, the owners will have equal
voting rights but share profits based on the percentage of money invested in the business. See
HAMILTON, supra note 786, at 189-90, 286-87, 353-56; see also EISENBERG, supra note 815, at 266267.
867. See, e.g., Galler v. Galler, 203 N.E.2d 577 (Ill. 1964).
868. McQuade v. Stoneham, 189 N.E. 234 (N.Y. 1934) (upholding the first portion of such an
agreement as a pooling agreement but striking down the second portion of the agreement which
dictated the way directors must vote for election of officers as against public policy). The New
York legislature, in response to McQuade, enacted section 620(b) of the New York Corporations
Statute, which explicitly allowed shareholders in closely held corporations to enter into agreements encroaching on directors independence if such a restriction is included in the articles of
incorporation of the corporation.
869. See e.g., Sutton v. Sutton, 637 N.E.2d 260 (N.Y. 1994).
870. See HAMILTON, supra note 786, at 295-303 (discussing option or buy/sell agreements).
A mandatory buy-sell arrangement is often recommended as the best solution in possible deadlock situations, where (usually) two equal shareholders operate the business
but fear that there may be disagreements in the future . . . . In the event of signifi-
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person not currently an owner in the business or other persons;871 and
preemptive rights in the owners to purchase his current percentage of
ownership in any new corporate offering of stock for cash to prevent
dilution of the shareholder’s percentage of ownership.872
d. The Limited Liability Partnership
The limited liability partnership (LLP) may be an excellent
choice of business format for African Americans starting a small business enterprise depending on the protections provided by the particular state statute. The LLP is a general partnership in which there is no
joint and several liability for partners who did not participate in the
matter that gave rise to tort liability. The limited liability partner,
under the first LLP statute enacted in Texas, remained liable for the
contractual obligations of the firm.873 Statutes creating limited liability partnerships basically do away with joint and several liability of
general partners for wrongdoing in which they had no involvement.874
Nevertheless, a partner is not shielded from the consequences of his
own wrongdoing or from negligent supervision of others.875 Other
states have passed so-called full shield statutes that extend liability
protection to all types of claims.876 In 1997, Texas broadened its statute to cover contract as well as tort claims.877 A full broad shield LLP
provides limited liability for partners similar to the limited liability
available to shareholders in a corporation or to limited partners in a
partnership that do not participate in the management of the
cant . . . disagreement, it seems much neater and cleaner that one shareholder should
buy out the other.
Id. Such arrangements also allow a deceased owner’s interest to be purchased with life insurance proceeds and, thereby, prevent disruption or possible liquidation of the corporation. Id. at
871. Id. at 288-95. See discussion supra note 858 and accompanying text (discussing share
transfer restrictions).
872. Id. at 196-201, 660.
873. Id. at 22. The first LLP statute was enacted by the Texas legislature in response to
claims brought against innocent partners in litigation resulting from the collapse of real estate
and energy prices in the late 1980s. More than one-third of all the bank failures occurred in
Texas. Id. at 20.
874. Id. at 22; see also EISENBERG, supra note 815, at 372.
875. See HAMILTON, supra note 786, at 21-22; see also EISENBERG, supra note 815, at 372.
876. HAMILTON, supra note 786, at 22-23.
877. Id. at 22.
878. Id. at 23.
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e. The Limited Partnership
The limited partnership fails to provide management control for
all of the owners because the limited partners cannot take part in control of business without sacrificing limited liability.879 Legislative
changes in the statutes, however, have made it possible for limited
partners to engage in some management-related activities without losing limited liability protection.880
The limited partnership is also deficient since the general partner
remains unlimitedly liable. There are ways, however, for even a general partner to escape liability. The general partner in a limited partnership may accomplish this by incorporating the general partners or
forming a limited liability limited partnership.881
Additionally, it is relatively difficult for a limited partner to withdraw his or her equity interest in the typical limited partnership since
limitations on limited partner withdrawal of their equity interests are
allowed under the limited partnership statutes and are common in
limited partnership agreements.882 For this reason, African Americans should not choose this business format for doing business unless
engaged in real estate syndications for construction and management
of commercial shopping centers, office projects, and similar real estate
f. The Limited Liability Limited Partnership
Some jurisdictions have adopted limited liability limited partnership (LLLP) statutes which extend to general partners the liability
protection afforded by the LLLP election. Nevertheless, these organizations still have the other deficiencies listed in the section discussing
the limited partnership and the limited liability partnership.884 The
LLLP statute is not in wide use today. The more common practice in
limited partnerships is to have only a single corporate general partner
that is usually minimally capitalized and has nominal equity interest in
the limited partnership.885 For these reasons, African Americans
879. HYNES, supra note 815, at 312-14; see, e.g., Gateway Potato Sales v. G.B. Inv. Co., 822
P.2d 490 (Ariz. 1991).
880. Id. at 313-14.
881. See HAMILTON, supra note 786, at 23.
882. HYNES, supra note 815, at 316.
883. See HAMILTON, supra note 786, at 17-18.
884. Id. at 23.
885. Id.
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should not generally choose this form of business to engage in their
entrepreneurial endeavors.
g. The Limited Liability Company
The limited liability company (LLC) is an excellent organizational format for African Americans operating closely held businesses.
The LLC is a hybrid between a general partnership and a corporation.
The LLC, when properly structured, provides owners with management control, limited liability, flow through taxation, ease in recouping the owner’s stake in the net worth of the business, and the ability
to veto the admission of new owners to the business. Accordingly, the
LLC affords its owners all of the features normally desired by persons
starting a small closely held business.886 For these reasons, the LLC is
probably the best business organization format for most African
Americans taking the entrepreneurial plunge.
B. Raising Capital for the Business: Special Problems Usually
Encountered by Black Entrepreneurs and Things Every
Potential Black Entrepreneur Should Know About
Obtaining Funding for the Enterprise
1. The Cash Crunch Which Many Black Entrepreneurs Face
African Americans have always found it more difficult to obtain
capital to start, maintain, and grow their business enterprises largely
due to discrimination and social realities.887 This history of discrimination has forced African American entrepreneurs to rely on bootstrapping, the art of learning to do more with less, as a routine
matter.888 Bootstrapping techniques were the foundation for the beginning of Apple Computer,889 Black & Decker Corp.,890 Clorox
See EISENBERG, supra note 815, at 354-59; HAMILTON, supra note 786, at 23-26, 40-45;
supra note 815, at 320-37.
See discussion supra notes 809-12 and accompanying text.
A very good discussion on the “art and science of bootstrapping” can be found in ANDREW J. SHERMAN, RAISING CAPITAL 81 (2000) (discussing the art and science of
889. Id. at 84 (“Steve Jobs and partner Steve Wozniak sold a Volkswagen van and a HewlettPackard programmable calculator to raise $1,350[.00] in seed capital—they built the first Apple
1 [Personal Computer] in Atari employee Job’s garage in 1976.”).
890. Id. (“Started for $1,200[.00] in 1910, the $5 billion tool manufacturer ensured its success
in 1916, when its founding partners realized that there was greater demand for electric drills than
for their original products, which included a milk-bottle–cap machine.”).
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Co.,891 Coca Cola Co.,892 Dell Computer Corp.,893 Dominos Pizza,
Inc.,894 Eastman Kodak Co.,895 E&J Gallo Winery,896 Gateway 2000,
Inc.,897 Hewlett-Packard Co.,898 Lands End, Inc.,899 Lillian Vernon
Corp.,900 The Limited, Inc.,901 Marriott Int’l, Inc.,902 Microsoft
Corp.,903 Nike, Inc.,904 Rodeway Express, Inc.,905 United Parcel Services, Inc.,906 and Wm. Wrigley, Jr. Co.907 Accordingly, bootstrapping
techniques should be studied and utilized by African American entrepreneurs and other disadvantaged groups who may be starting their
business enterprises with minimal resources.
891. Id.
892. Id. (“A [fifty-three]-year-old Atlanta pharmacist, John S. Pemberton, invented a soft
drink in his backyard in May 1886. In 1891, Asa Chandler, a fellow druggist, brought the company for $2,300. In 1999, the company’s market capitalization was $200 billion.”).
893. Id. (“Putting little money down, Michael Dell started selling computer components
from his dorm room in 1983. When his sales grew as high as $80,000[.00] a month, he dropped
out and put all his energy into the business. In 1999, Dell’s sales were more than $10 billion.”).
894. Id. (“Tom Monaghan didn’t finish college, but he stayed long enough to learn that undergrads eat a lot. He brought a small pizzeria with his brother for $900.00 in 1960 and expanded according to a simple strategy; locate stores near campuses or army bases, and deliver
within half an hour.”).
895. Id. at 84-85 (“George Eastman’s first private investor, Henry Alvah Stong, owned a
profitable buggy-whip factory. In 1880 he put up $5,000[.00] to capitalize Eastman, who still held
a job as a bank clerk. Eastman’s first Kodak $25[.00] camera debuted in 1888.”).
896. Id. at 85 (“The famous fraternal winemakers (who invested $923[.00] in savings and
borrowed $5,000[.00] to launch their business) had no business or wine-making experience when
they rented their first warehouse, in Modesto, California, in 1933. They learned winemaking by
studying pamphlets at the local library.”).
897. Id.
898. SHERMAN, supra note 888, at 85 (“The first big client of HP (started with $538.00 in
1938) was fellow bootstrapper Walt Disney, who needed sound equipment for the production of
Fantasia in 1940.”).
899. Id.
900. Id. at 85-86.
901. Id. at 86.
902. Id. (“J. Willard ‘Bill’ Marriott, his fiance,
´ and a partner started a nine-seat A&W soda
fountain with $3,000[.00] on May 20, 1927. They demonstrated a knack for hospitality and clever
marketing from the beginning, attracting a day-one crowd by playing a radio that continuously
updated patrons on the progress of Lindbergh’s first trans-Atlantic flight.”).
903. Id. at 86-87 (“Harvard dropout Bill Gates and his high school side-kick Paul Allen
moved into an Albuquerque hotel room in 1975. There, they started Microsoft, writing the programming language for the first commercially available microcomputer.”).
904. Id. at 87 (“In the early 1960’s, Philip Knight and his college track coach, William
Bowerman, sold imported Japanese sneakers form the trunk of a station wagon. Start-up costs
totaled $1,000[.00]. In fiscal 1999, the swoosh’s sales exceeded $8 billion worldwide.”).
905. Id.
906. Id. (“In 1907, two Seattle teenagers pooled their cash, came up with $100[.00], and began a message-and parcel-delivery service for local merchants. In 1999, the company completed
one of the largest IPO’s in history.”).
907. Id.
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2. Sources of Capital
The author, based on nearly thirty years of interaction as a lawyer
involved in the black community, has concluded that a substantial lack
of knowledge exists, even among educated blacks, about techniques
for raising capital for new businesses. This should not be a surprise,
however, given the primary role of African Americans as laborers or
employees working for others, whether employed by the government
or private industry. Accordingly, the author has included this portion
of the Article as both a public service and a convenient information
source concerning basic aspects of corporate law and finance.
The sources of capital fall into two main categories—debt financing (borrowed funds obtained from third parties which must be repaid)908 and equity financing (internally generated funds obtained
from investors in the business which do not have to be repaid by the
Sources of debt financing include commercial banks,910 commercial finance companies,911 state and local government lending programs,912 trade credit and consortiums,913 and company issued debt
instruments.914 Some commercial banks are more willing to provide
start-up capital to small businesses if the loans they provide are guaranteed by the Small Business Administration.915 Accordingly, African Americans considering starting a business enterprise should
become familiar with this process.916 Additionally, leasing companies
offer an alternative to traditional debt financing with respect to obtaining the necessary equipment to operate the business.917
Sources of equity capital include private investors,918 institutional
venture-capital firms,919 mergers and acquisitions with companies rich
in cash,920 strategic investors and corporate venture capitalists,921 and
SHERMAN, supra note 888, at 9.
Id. at 10.
Id. at 11.
Id. at 16.
Id. at 144, 147-54.
See discussion infra notes 949-51 and accompanying text.
SHERMAN, supra note 888, at 11.
Id. at 11, 57-81.
Id. at 12.
Id. at 13.
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overseas investors.922 The ultimate form of equity-financing to promote the growth of a business is the initial public offering.923
When successful closely held businesses go public, the corporation directly sells, usually through an investment banker, a certain
amount of its authorized but not yet issued shares to investors in the
primary market924 who have expressed a willingness to purchase
shares directly from the corporation. The Securities Act of 1933 regulates the process of going public.925 Entrepreneurs must file a registration with the Securities Exchange Commission in the absence of an
exemption.926 The process of going public can be very expensive.927
Accordingly, many organizations seeking to raise funds through an initial public offering attempt to qualify for an exemption from the registration requirements. The most common exemptions include the
private offering exemption,928 the Regulation D exemptions under
922. Id. at 14.
923. Id. at 185-215.
924. In a primary market transaction, the corporation (or other business) sells its securities
to raise money for the corporation directly to the subscribing purchaser. See EISENBERG, supra
note 815, at 203-04.
925. The 1933 Securities Act applies whenever entrepreneurs wish to raise money for their
business by selling investments in the business to anyone who will listen to the organization’s
sales pitch. The Act is applicable whenever the value of the investment depends on the performance of the business and the entrepreneur causes the investor to expect profits solely from the
efforts of the entrepreneur or a third party. In such instances, the investment meets the definition for a “security” under the Act. See generally Reves v. Ernst & Young, 294 U.S. 56 (1990);
SEC v. W.J. Howey Co., 328 U.S. 293 (1966).
926. Part I of the Registration Statement is the Prospectus—the legal offering or “selling”
document which must be furnished to all purchasers of the securities. Part II of the Registration
Statement contains additional information available at the SEC for inspection by the public. See
EISENBERG, supra note 815, at 904-05. During the pre-filing period, the business cannot make
any offer to sell or consummate any transaction prior to filing the registration statement with the
SEC. Id. at 948. During the waiting period—the period after the business has filed the registration statement but before to the SEC has approved the registration statement—the business may
make offers to sell the securities via a statutory red herring prospectus but may not consummate
any transactions. Id. at 948-49. During the post-effective period—the period after the SEC has
approved the prospectus—the business may accept offers and consummate the sales transaction
via the final statutory prospectus. Id. at 949.
927. SHERMAN, supra note 888, at 190-95.
928. Id. at 95-111. To qualify under the private offering exemption, it is necessary that the
business sell its securities only to: (1) persons who have sufficient knowledge and experience in
financial matters that they are capable of of evaluating the risks and merits of the investment; (2)
persons who have access to the type of information normally provided in a 1933 Act prospectus,
and (3) persons who agree not to resell or distribute the securities. Additionally, the business
may not sell the securities through any form of public solicitation or general advertising. See
EISENBERG, supra note 815, at 924 (citing to SEC, Q & A: Small Business and the SEC Concerning the Private Offering Exemption 14-15 (1993)).
Howard Law Journal
SEC Rules 504,929 505930 and 506,931 so called SCOR offerings,932 the
Regulation A exemption,933 and the intrastate offering exemption.934
The market value of the original owners’ stock is sometimes billions of dollars after the corporation completes the initial public offering and the stock acquires a market value in subsequent secondary
trading of the stock.935 The original owners or entrepreneurs cause
929. See SHERMAN, supra note 888, at 96-97. The Rule 504 exemption allows a business to
offer and sale not more than $1 million of its securities during any 12-month period. The issuer
can be held liable under the general anti-fraud provisions for making any misleading statements
in connection with the offering. It is advisable to prepare a disclosure document (prospectus) to
avoid lawsuits for securities fraud in connection with the offering. Id.
930. Id. at 97-98. Rule 505 permits a business to sell up to $ 5million of its securities within a
twelve month period to an unlimited number of accredited investors (i.e., well capitalized and
sophisticated investors as defined by the 1933 Act Rules issued by the SE) “and up to [thirtyfive] non-accredited investors regardless of their net worth, income or sophistication.” Id. at 97.
The business may not offer its securities through advertising and general solicitation. The business must also provide non accredited investors with certain specified information. See EISENBERG, supra note 815, at 926-28.
931. See SHERMAN, supra note 888, at 98-100. Rule 506 is similar to Rule 505 but has no
dollar limit. Id.; see generally EISENBERG, supra note 815, at 927-28.
932. SHERMAN, supra note 888, at 101, 210-11.
This offering allows a small company to raise up to $1 million over a 12-month period.
SCOR is an acronym for Small Corporate Offering Registration (some states refer to
this program as ULOR, or Uniform Limited Offering Registration). The minimum
stock price is $5.00 per share. A company can either issue a SCOR offering directly to
the public or use a traditional IPO model, in which the underwriter sells the stock to
the public.
Id. at 210-11. Among other things:
[T]he SCOR offering does not require the issuer to file an offering circular with the
SEC. A SCOR is meant to to be simpler and less expensive. This is accomplished by
using Form U-7. This form is in question-and-answer format and is about 30 pages long.
Under [Rule] 504 of the 1933 Securities Act, a company engaged in an offering that is
up to $1million may market the offering using television, radio and print ads.
933. Id. at 210.
Regulation A allows a company to raise as much as $5 million over a 12-month period.
For a company to file a Regulation A offering, the company must not already be a
public company, nor an investment, oil or gas company. There are no restrictions on
the types of investors who can participate in a Regulation A offering (that is, they need
not be accredited investors).
Id. However, a business is “essentially required to make the same disclosures as if [the business]
filed a registration statement. Regulation A offerings requires that [the business] file an offering
circular with the SEC. An offering circular is basically a prospectus, but the financial statements
in an offering need not be audited.” Id.
934. See EISENBERG, supra note 815, at 932-33. To qualify for the intrastate exemption, the
business must (1) be incorporated in the state where it is making the offering; (2) carry out a
significant amount of its business in that state; and (3) make offers and sales only to residents of
that state. The exemption is intended to facilitate the local financing of local business operations.
Id. (citing SEC, Q &A: Small Business and the SEC, the Intrastate Offering Exemption).
935. See, e.g., Steven Pearlstein, Pixar Stock Offering a Hit for Steve Jobs, WASH. POST, Nov.
30, 1995, at B11. The article noted that after the first day of secondary trading in Pixar stock,
subsequent to the company’s initial public offering, the stock of the “tiny company from Richmond, California [ ] with 150 employees and sales of less than $5 million [had] a market value of
about $1.5 billion. And with [eighty percent] of the company stock still in his portfolio, the
[forty-]year-old Jobs entered the select fraternity of billionaires.” Id.
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the corporation to issue millions of shares to themselves for a pittance
when the corporation is still closely held. When the corporation goes
public, these shares now have a market value that creates instant billionaires in some instances.936
Of course, when corporations go public, they usually become subject to intense regulation under the 1934 Securities and Exchange Act
if they fall in either class of publicly held corporations as set forth
under the Act’s statutory provisions and rules.937
3. Early Stage Financing938
Early stage financing can come from the entrepreneurs’ own resources,939 angel investors,940 university and private business incubators,941 economic development agencies and community development
corporations,942 customer financing,943 and vendor financing.944
Other sources of early stage financing include private placements
of a company’s equity securities,945 commercial lenders,946 leasing,947
factors,948 and commercial lenders participating in the Small Business
936. Id.
937. Corporations whose shares are sold on any national exchange and corporations whose
shares trade in the over-the-counter-market and have at least 500 shareholders and assets in
excess of $10 million are subject to rather intensive regulation under the Securities and Exchange Act of 1934, 48 Stat. 891 (codified as amended at 15 U.S.C. § 782 (2000)). See §§ 12(a),
(b), and (g) and Rule 12g-1. These publicly held corporations must: register their equity securities with the SEC, id.; file quarterly, annual, and other reports with the SEC, see § 13(a); submit
proxy statements with the SEC and mail the proxy statements to each shareholder of record
prior to every annual meeting of the shareholders and other meetings in which a shareholder’s
vote must be taken, see §§ 14(a), (c) and Schedule 14(a), and comply with the Williams Act
amendments to the 1934 Act with regard to the tender offer, § 14(d); toehold acquisition, see
§ 13(d), issuer repurchases, see § 13(e), and the anti-fraud provisions, see § 14(e), of the Williams
Act. Additionally, the officers, directors, and more than ten percent owners of these publicly
held corporations must file reports with the SEC whenever they buy or sell stock in these corporations. See § 16(a). Moreover, the corporation may sue these persons if they purchase and sell
or sell and purchase the corporation’s stock within a six-month time frame and the corporation
can match a lower purchase price with a higher sales price during that period. See § 16(b). This
is referred to as a short swing profit, which the statute allows the corporation to recover.
938. See SHERMAN, supra note 888, at 57.
939. Id. at 73-75.
940. Id. at 62-72.
941. Id. at 73-74.
942. Id. at 75-77.
943. Id. at 76-78.
944. Id. at 78-79.
945. Id. at 95-111.
946. Id. at 113-30.
947. Id. at 131-39.
948. SHERMAN, supra note 888, at 139-44.
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Administration’s (SBA) section 7(a) Loan Guaranty Program,949
Microloan Program,950 and the Certified Development Company (504
Loan) Program.951
4. Growth Financing
Growth financing normally comes from venture capitalists.952
African Americans who own businesses that need additional capital to
realize their growth potential should be aware of the role of venture
capitalists in this process. There are more than 800 venture capital
firms providing risk capital to small, growing companies.953 The four
primary types of venture capitalists are public and private international venture capitalist firms,954 small business investment companies
(SBICs),955 minority enterprise small business investment companies
(MESBICs),956 and corporate venture capital divisions.957
The start-up company, as consideration for the venture capitalist’s investment, will normally issue to the venture capital firm either
preferred stock,958 convertible debentures,959 or debt securities with
warrants.960 Venture capitalists rarely choose to purchase common
stock from a business in its formative stages since it fails to afford
949. Id. at 144-45, 146-54. The SBA’s 7(a) loan guaranty program “provides loans to small
businesses unable to secure financing on reasonable terms through normal lending channels.”
Id. at 144. Under the program, private sector lenders provide loans which are guaranteed by the
SBA. The SBA does not provide funds for direct lending or grants under the program. Specialized 7(a) programs include (1)the Low Doc program (designed to increase the availability of
funds under $100,000 through an expedited loan-review process); (2) the Fastrak program (a
pilot program designed to increase capital available to businesses up to $100,000); (3) the
CAPLines program (designed to help businesses meet their short term and cyclical working
–capital needs); (4) the International Trade program (designed for businesses preparing to or
already engaged in international trade or adversely affected by competition from imports); (5)
The Export Working Capital Program (a combined effort of the Export-Import bank and the
SBA designed to provide short-term working capital to exporters); and (6) the Minority and
Women’s Prequalification programs (designed to assist prospective minority and women borrowers in “developing viable loan-application packages and securing loans through help provided by
intermediaries”). Id. at 144-45, 146-54.
950. Id. at 145, 155. The SBA’s Micro Loan Program “works through intermediaries to provide small loans from as little as $100.00 up to $25,000” Id.
951. Id. at 145, 155-56. The SBA’s Certified Development Company (504 Loan) Program
“makes long-term loans available for purchasing land, buildings, machinery and equipment, and
for building, modernizing or renovating existing facilities and sites.” Id.
952. Id. at 159, 160-62.
953. Id. at 159.
954. Id. at 160-61.
955. Id. at 161.
956. Id.
957. Id. at 161-62.
958. SHERMAN, supra note 888, at 176.
959. Id.
960. Id.
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them any special rights, preferences, or fixed return on their investment.961 The venture capitalist’s focus will be on how the entrepreneur intends to return the venture capitalist’s original investment and
return on capital within a four-to-six-year period.962 Accordingly, the
venture capitalist is keenly interested in the exit strategy in which it
recoups its investment and achieves a healthy return on its investment.963 The exit strategies normally utilized by venture capitalists to
recoup their investment and obtain a respectable return on their investment include an initial public offering of the growing company’s
stock,964 sale of the company to an interested bidder,965 and the company’s redemption of the venture capitalist’s stock at a price reflecting
the enhanced value of the company.966 Other exit strategies include
restructuring the company,967 licensing the company’s intellectual
property,968 finding a replacement investor,969 or liquidating the
5. Alternatives to Traditional Financing
Entrepreneurs may also seek, as alternatives to traditional financing, to develop their businesses through franchising,971 joint ventures,972 co-branding,973 licensing,974 and acquisition of other
companies through mergers,975 and other types of acquisitions.976 The
African American entrepreneur should, at a minimum, be aware of
how these alternatives can potentially increase the earnings of their
business enterprises.
Id. at 177-78.
Id. at 169-70.
Id. at 169-70, 185-242.
Id. at 169-70.
See SHERMAN, supra note 888, at 170, 185-242.
Id. at 246-56.
Id. 256-61.
Id. at 261-67.
Id. at 267-76.
Id. at 277-95.
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The story of the black quest for economic liberty has been largely
lost. The historical zest for free enterprise, self-assertion, and open
debate within its ranks is a peculiarly American story of trial, tribulation, and triumph. In the past, the black community has had to rely on
its own resources to survive. Black communities, however, because of
Jim Crow laws and practices, evolved into viable societies with their
own hospitals, banks, restaurants, insurance companies, gas stations,
moving companies, and other essential enterprises necessary to maintain a community’s viability. Black newspapers reported on the community’s life, black doctors tended the community’s sick, and black
undertakers buried the community’s dead.
Prior to the American Revolution, blacks, determined to succeed
in this country, entrenched themselves as workers and entrepreneurs.
The total personal wealth of free blacks on the eve of the Civil War
has been conservatively estimated at fifty million dollars. Black progress continued throughout the early years of the twentieth century.
The more restrictive the political, social, and economic barriers, the
more determined black America became in its resolve to overcome
Despite the terrible economic and social oppression to which this
country subjected slaves, modern research has shown that they created a vibrant family and religious and cultural tradition that continues to this day. The kind of social dislocation and family instability
that plagues today’s black ghettos was virtually unknown among the
black migrant communities in the North in the early years of the twentieth century. In 1925 Harlem, eighty-five-percent of black families
were intact while single teenaged mothers were a rarity.977
Black Americans now confront a great challenge and an enormous opportunity. The black struggle for equality in American society was born in the dark days of slavery and nurtured with the courage
and sacrifice of generations who would not silently accept second-class
citizenship. The great challenge facing black America today is the
task of taking control of its own future by exerting the necessary leadership and building the necessary institutions to make black social and
economic development a reality. Meeting this self-help challenge ultimately depends on black action. It is unwise to suppose that any state
or federal government would remain indefinitely committed to the
977. See supra note 32 and accompanying text.
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current programs of black revitalization. Nevertheless, such programs
are still necessary.
Justice O’Connor, in Grutter v. Bollinger,978 expressed hope that
black Americans would achieve parity with whites within twenty-five
years of that decision, which would be June 2028. The American style
of capitalism, however, in contrast to European capitalism, deplores
government intervention and regulation and has a high tolerance for
inequality.979 American capitalism, as set forth by conservative economists, views government regulation, no matter how “noble” or “morally perfect,” as interfering with the “rights of property owners to
pursue their own interests.”980
Not surprisingly, the United States has a higher economic disparity between rich and poor than any other industrialized nation in the
world.981 This does not bother most Americans because of the belief
that the American system will inevitably lead to personal wealth. Indeed, “[s]ome [fifty-five percent] of Americans under [thirty] think
they will become rich, and by [six-to-one] believe that poverty is due
to personal flaws.”982
Europeans, on the other hand, have sharp differences with the
American view. The fifteen countries that comprise the European
Union, in contrast to the American view, believe that civil and social
groups should have equal say with commercial interests; favor cultural
and linguistic diversity over assimilation; and guarantee all their citizens, as a matter of legal right, access to health care, paid vacations,
housing assistance, and continuing education.983 A European-type approach, though not flawless, seems the more realistic route for
America to take if black economic and social parity is to be gained
within the next twenty-five years.
The economic, social, educational, and political problems of the
black poor are enormous. Black America cannot lift itself up by its
own bootstraps into great wealth overnight. There is, however, great,
untapped potential for change at the individual and community level.
Blacks are at a turning point in history. The era of the great civil
978. 539 U.S. 306 (2003).
979. ANDREWS, supra note 4, at 151-55.
980. Id. at 151.
981. HEILBRONER & THUROW, supra note 4.
982. Peter Engardio, Nice Dream If You Can Live It, BUS. WK., Sept. 13, 2004, at 22 (reviewing JEREMY RIFKIN, THE EUROPEAN DREAM: HOW EUROPE’S VISION OF THE FUTURE IS QUIETLY ECLIPSING THE AMERICAN DREAM (2004)).
983. Id.
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rights marches is over. Although passage of the civil rights legislation
of the 1960s aroused hopes that all blacks could finally enter the mainstream of society, this has proven to be more illusion than reality.
New policies should be geared toward maximizing independence and
economic opportunity. Accordingly, black America must recognize
the value of, and expand on, indigenous, self-help neighborhood efforts. These efforts should, among other tasks, seek to encourage
marriage in the black community. Nevertheless, innovative governmental efforts to improve the education system, to provide greater
opportunities for blacks to acquire college and specialized degrees and
to assist blacks in employment, business development, and community-based empowerment programs must be maintained and strengthened for the foreseeable future if black economic, educational, and
social parity is to be achieved in the next twenty-five years.
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During my fifth year as an Assistant U.S. Attorney in the Southern District of New York, I transferred from the Violent Gangs Unit
to the Securities and Commodities Fraud Unit. Even within the U.S.
Attorney’s Office, which already had the rarefied air of an exclusive
country club,1 the Securities and Commodities Fraud Unit had a reputation for being an even more exclusive “boy’s club.” I mention this
to provide some context, but also to explain—or is it to excuse—my
inaction. Acquiescence. Silence.
The other part of the context is this: Nearly a third of my of my
unit, including the chief of the unit at the time, were attending a threeday Securities Fraud course at the National Advocacy Center
(NAC)—the training center for federal prosecutors2—in South Caro* Copyright I. Bennett Capers, 2003. Assistant U.S. Attorney, Southern District of New
York 1995-2004, and Adjunct Professor of Law, Brooklyn Law School. J.D. Columbia Law
School, 1991. I am indebted to many people for their suggestions and encouragement, including
Darren Lenard Hutchinson, Peggy C. Davis, Seth Michael Forman, Astrid Gloade, Michael
Dorf, The Honorable Deborah A. Batts, Jasper Johns, Randolph Ross, and Vanessa Merton.
Finally, I must extend a special thanks to Derrick Bell and Patricia Williams, whose pioneering
work served as an inspiration throughout this project.
1. As I write this, the U.S. Attorney’s Office for the Southern District of New York is
comprised of approximately 241 attorneys, of which only 4 are African American. This is a drop
from the usual number of African American prosecutors, which is 7. Indeed, known by African
American prosecutors and defense lawyers around the country for never having more than 7
African American prosecutors at a time, the U.S. Attorney’s Office for the Southern District of
New York has much in common with the fictitious law school in DERRICK BELL, Chronicle of the
(1987). This homogeneity is by no means limited to the Southern District of New York, but
rather extends throughout the Department of Justice, as evidenced by a recent, but unsuccessful,
diversity initiative. See Tom Brune, Justice Diversity Drive Opens Door to White Men, NEWSDAY, Oct. 17, 2003, at A20. The findings of an internal report of diversity within the Department
of Justice were so dismal that the Department declined to post the full report on its website, and
instead posted a version with half of its 186 pages, including the summary, blacked out. David
Johnston & Eric Lichtblau, A Critical Study, Minus Criticism, N.Y. TIMES, Oct. 31, 2003, at A19.
2. NAC is operated by the Department of Justice, and provides training programs for federal government personnel through the Office of Legal Education of the Executive Office for
2004 Vol. 48 No. 1
Howard Law Journal
lina, which just so happens to be my home state. This was in 2000, the
year that the NAACP and other organizations were calling for a boycott of South Carolina because of its prominent display of the Confederate flag atop of its capitol building.3
That the Justice Department continued to send its attorneys to
South Carolina was, to my mind, an issue in itself. Although there
had been a few isolated and whispered grumblings among minority
employees about the Justice Department’s practice, lacking a critical
mass, our grumblings remained whispers, or were met with the response that the South Carolina Legislature had already offered a compromise by lowering the flag from its position on top of the capitol
Indeed, I employ the term “critical mass” in the hope of contextualizing its meaning, which apparently still remains a subject of debate. During oral argument in the affirmative action case Grutter v.
Bollinger,5 for example, Justice Antonin Scalia demanded a numerical
Justice Scalia: Is [two] percent a critical mass, Ms. Mahoney?
Ms. Mahoney (University of Michigan): I don’t think so, Your
Justice Scalia: OK. Four percent?
Ms. Mahoney: No, Your Honor. What you . . .
Justice Scalia: You have to pick some number, don’t you?
Ms. Mahoney: Well, actually what the . . .
Justice Scalia: Like [eight]? Is [eight] percent?
Ms. Mahoney: Your Honor, the . . .6
In fact, critical mass is not solely numerical. Rather, a critical
mass implies a climate where one is neither conspicuous nor on display, where one does not feel the opprobrium of being a token, nor
the burden of being the designated representative for an entire group.
U.S. Attorneys. For an example of training for state and local prosecutors that the NAC provides, see (describing the NAC).
3. See, e.g., Rick Freeman, South Carolina’s Allegiance to the Flag; State Is a Sports Outcast
Because of Confederate Link, WASH. POST, May 20, 2000, at D1; NAACP Votes to Boycott South
Carolina over Flag, WALL ST. J., Oct. 18, 1999, at A43; Sue Anne Pressley, Boycott Aims to
Bring Flag Down; NAACP Targets South Carolina Tourism to Rid Capitol of ‘Symbol of Slavery,’
WASH. POST, Aug. 2, 1999, at A3.
4. See S.C. CODE ANN. § 1-10-10 (2000) (authorizing removal of Confederate flag from
atop the dome of the State House, and the installation of a Confederate flag on the grounds of
the Capitol Complex, effective July 1, 2000).
5. 539 U.S. 306 (2003).
6. Morning Edition: Profile: Supreme Court Hears Affirmative Action Cases (NPR radio
broadcast, Apr. 2, 2003), available at 2003 WL 4857011.
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It also implies a climate where one can speak freely, where one not
only has a voice, but a voice that will be heard. In the Justice Department, a critical mass was what we lacked.
Our concerns remained whispers; trivialized; disregarded. It
seemed of no import that, having removed the Confederate flag from
atop of the capitol, the legislature immediately reinstalled it in front of
the capitol where, if anything, the flag was even more visible.7 No
import at all. In fact, during my time at the NAC, where I and a few
other African Americans were like flies in buttermilk really, there was
no mention of the flag, at least not in my presence, and had things
proceeded in this uneventful manner, I probably would not be writing
this Article. On either our second or last night in Columbia, however,
it occurred to those of us from my office that we had not tried any of
the barbeque that seemed the local staple, and we asked one of the
administrators at the NAC if she would recommend a good barbeque
I remember that the administrator reminded me of the actress
Betty White in the television show Golden Girls,8 or better yet her
role in the movie Bringing Down the House.9 I also remember that as
she looked at the group of us, she seemed hesitant. “Well,” she began,
“the absolute best barbeque place is Maurice’s BBQ.” “That’s where
we want to go,” the chief of my unit said. “The thing is”—was it here
that I sensed she was avoiding eye contact with me?—“the owner has
a lot of Confederate flags up. Some of you might be put off by that.
There are other places though.”
The chief looked at me and at another member of our group, an
Asian American. I have no doubt he was sincere in not wanting the
two of us to feel uncomfortable. “It’s really up to you,” he said. The
others in our group waited patiently, though a few looked away. “Do
you want us to go someplace else?” the chief asked. I have no doubt
that he thought he was being solicitous. “If it bothers the two of you,
it’s no problem.”
7. Pamela Hamilton, Confederate Flag Remains Hot Issue, Despite Relocation; NAACP,
Not Happy with Compromise, Is Still Pushing for Boycott, CHARLOTTE OBSERVER, July 20, 2003,
at 10Y.
8. Golden Girls (NBC television broadcast 1985-1992); see also Ultimate Golden Girls
Cite, at (last visited Sept. 19,
9. BRINGING DOWN THE HOUSE (Touchstone Pictures 1993); see also Earth’s Biggest
Movie Database, Bringing Down the House, at (last visited
Sept. 29, 2004).
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Of course I would rather have gone someplace else, but again,
lacking a critical mass, I felt powerless even to voice an objection. To
borrow from W.E.B. DuBois, in the intersection of large ideas and
every day experience, I, as an African American, was a “problem.”10
So we went. I convinced myself that, if nothing more, it would at
least be an adventure. Something I could later joke about with my
better half back in New York. Inside the restaurant, the Confederate
flag was everywhere. The owner had even set up a gift shop of sorts,
where one could purchase replicas of the Confederate flag, battle flag
socks, Tenth Amendment Heritage Protector t-shirts, Confederate
flag beach towels, and, most American of all, Confederate flag baseball caps. For a donation—to what, I did not want to know—customers could also receive pamphlets reminiscent of W.D. Griffith’s “true”
story of the South in Birth of a Nation,11 pamphlets such as Honest
Abe Wasn’t Honest, and The Truth About the Confederate Flag.12
Until that point, I had followed the news articles about the public
controversy surrounding state displays of the Confederate flag with
some remove. While I was personally offended by the choice, in the
scheme of things, or so I thought, there were far more pressing issues
to address.13 It was just a flag, after all, a rectangle of cloth on a pole,
a minor matter. Sitting in this restaurant, however, I began to realize
that this wasn’t just about a flag. Rather, the flag was, in a way, inextricably tied to numerous other issues involving race and privilege.
This was about South Carolina’s state-supported military college
the Citadel, founded to quell a slave uprising,14 which ten years ago
10. W.E.B. DU BOIS, THE SOULS OF BLACK FOLK 1-2 (First Vintage Books 1990) (1986).
11. BIRTH OF A NATION (Epoch Pictures 1915). W.D. Griffith’s film purports to portray the
deleterious effects of emancipation on a South Carolina family of slave owners. The film opens
with images of field slaves contentedly picking cotton, and house slaves blithely waiting on their
beneficent masters.
12. Additional curios and books, such as MYTHS & REALITIES OF AMERICAN SLAVERY,
purchased online through Maurice Bessinger’s “Truth Store;” see
for more details.
13. State Representative Joe Neal, former chairman of the Legislative Black Caucus in
South Carolina, recently echoed this sentiment. See Hamilton, supra note 7 (quoting Representative Neal as stating, “[w]e don’t have the luxury of just dealing with the flag. There are so
many other issues that have been pressing”).
14. In June 1822, 2,500 armed Whites patrolled the streets of Charleston in response to
information that enslaved Blacks were planning a revolt to obtain their freedom. Ultimately,
over 131 [B]lacks were arrested, and 35, including the leader of the revolt Denmark Vesey, were
sentenced to death. The city freed the slave who revealed the planned uprising to his master,
and transferred the discipline of other “problem” slaves to the public sphere:
At the workhouse, a treadmill was installed. Now plantation owners—for a fee—could
bring recalcitrant slaves to be lashed to an overhead pole and forced to run along a
[VOL. 48:121
fought the admission of women,15 and where until recently Dixie was
turning wheel while “drivers” whipped and pushed them on. So long as a man or woman kept the pace, the pain was not so bad. But once a person’s legs gave out, those
wooden steps slapped hard into bare flesh while strips of cowhide tore and snapped.
Finally, to protect Whites from any future uprising, the city created a corp of cadets,
reinvented as a school in 1842. In return for keeping free [B]lacks and slaves “completely
subordinate,” as local ordinances required, cadets, initially comprised of impoverished Whites,
received a free education. Id. at 37-38.
15. Throughout most of its 160-year history, the Citadel, which until recently boasted a
Confederate flag on the water tower high over its campus, was exclusively White, and exclusively
male. Even after the first Black male student was admitted, the sole Black cadet in the class of
1970, the school continued to maintain a policy excluding women from its Corps of Cadets, and
racism persisted. See generally Ellan Yan, Battles Won Before Shannon, NEWSDAY, Sept. 2, 1996,
at A19; Profile: Black Female Cadets Graduating From the Citadel (NPR radio broadcast, May
10, 2002), available at 2002 WL 3188070. For example, a 1977 college yearbook shows cadets
outfitted in white robes and hoods pointing a gun at a Black cadet with a noose around his neck.
See MANEGOLD, supra note 14, at 136. Nearly a decade later, on October 23, 1986, several White
cadets, again dressed in the garb of the Ku Klux Klan, burst into a Black freshman’s room brandishing a burnt cross and shouting obscenities. The Black cadet quit the Citadel shortly after the
incident, and brought a lawsuit. The White cadets—Steven Webb, Jeffery Plumley, Paul Koss,
Jimmy Biggerstaff and Maurice Bostic, Jr.—eventually settled out of court for approximately
$880,000, but not before graduating from the Citadel. See Paul Leavitt, Nationline, USA TODAY,
Jan. 24, 1989, at A3. The Justice Department declined to seek criminal charges against the perpetrators. Bruce Smith, Official Says No Federal Criminal Prosecution in Citadel Hazing, ASSOCIATED PRESS, Oct. 13, 1987, available at 1987 WL 3183141.
In 1993, a female high school student, Shannon Faulkner, launched an attack on the Citadel’s male-only policy by gaining admission for matriculation, and only then declaring her gender. Upon learning Faulkner was female, the Citadel promptly revoked her admission, and
Faulkner promptly brought a § 1983 action alleging an Equal Protection violation. Faulkner v.
Jones, 858 F. Supp. 552 (D.S.C. 1994). Although the district court found, after a two-week bench
trial, that the Citadel’s male-only admissions policy violated the Equal Protection Clause and
ordered the Citadel to admit Faulkner to the Corps of Cadets beginning in the fall of 1994, the
4th Circuit modified the remedial order. Following its holding in United States v. Virginia, (VMI
I) 976 F.2d 890 (4th Cir. 1992), cert. denied, 508 U.S. 946 (1993), in which it held that Virginia’s
violation of the Equal Protection Clause through its maintenance of a male-only admissions
policy at Virginia Military Institute could be remedied if Virginia established a parallel institution for women, the Fourth Circuit in Faulkner ordered that the Citadel should first be permitted
a reasonable time to do the same. Faulkner v. Jones, 51 F.3d 440 (4th Cir. 1995), cert. denied, 516
U.S. 938 (1995). In response to this decision, the Citadel filed a proposed plan to create a parallel program at a pre-existing women’s college. In the midst of challenges to the adequacy of this
plan, the Supreme Court granted a writ of certiorari in VMI I, and in June 1996 issued a decision
that parallel programs are not an adequate to remedy equal protection violations. United States
v. Virginia, 518 U.S. 515 (1996). Two days after the Supreme Court announced its decision, the
Citadel’s Board of Visitors voted to end the male-only admissions policy and to admit women to
the Citadel’s Corps of Cadet. Throughout the legal and social battle, Faulkner was vilified, and
targeted for harassment and ridicule. Playing on the Citadel mascot, the bulldog, alumni sold tshirts proclaiming “1952 Bulldogs and One Bitch”; graffiti in Citadel bathrooms included the
sentiment, “Let her in – then fuck her to death”; and in fact, she received death threats. SUSAN
Sharpen for Haircut of the Century, INDEPENDENT (London), Aug. 12, 1994, at 9. Four women
entered the Corps of Cadets in August 1996. In May 2002, the Citadel graduated its first Black
female cadets. Citadel Graduates First Black Female Cadets, ASSOCIATED PRESS, May 9, 2002.
Howard Law Journal
sung at football games.16 It was about Susan Smith, who claimed that
she had been carjacked by a Black man who had driven off with her
two children, and was believed, when in fact she herself had drowned
them in a lake.17 It was about Denny’s Restaurant, headquartered in
16. The Citadel finally discontinued its practice of singing Dixie at football games in 1992,
around the same time that Sports Illustrated devoted an article to the racism and hazing suffered
by [B]lacks at the Citadel. Geraldine Baum, Storming the Citadel for 151 Years, the State College
Has Been All Male. That Tradition May Fall if Shannon Faulkner Gets Her Way. Among Her
Big-Name Foes: South Carolina, L.A. TIMES, Feb. 13, 1994, at 1. The song, credited to Daniel
Decatur Emmett, a member of a group of minstrels who sang in blackface, was adopted by
Confederates and depicts Blacks as longing for a return to plantation life. Although contemporary versions of the song omit the dialect, Emmett penned the song in “[B]lack dialect.” Here is
an excerpt:
I wish I was in land ob cotton,
Old times dar am not forgotten,
Look away! Look away! Look away! Dixie Land.
In Dixie Land whar’ I was born in,
Early on one frosty mornin’,
Look away! Look away! Look away! Dixie Land.
Den I wish I was in Dixie, Hoo-ray! Hoo-ray!
In Dixie land, I’ll take my stand to lib and die in Dixie;
Away, away, away down south in Dixie,
Away, away, away down south in Dixie.
C.A. BROWNE, THE STORY OF OUR NATIONAL BALLADS 120-21 (1960). Although the Citadel
acknowledged the offensiveness of Dixie and discontinued singing the song at its football games
in 1992, Chief Justice William H. Rehnquist apparently did not receive the memo. In 1999, Chief
Justice Rehnquist led a sing-along of Dixie at the fourth Circuit Judicial Conference, a gathering
of hundreds of federal judges from Maryland, Virginia, West Virginia, North Carolina, and South
Carolina. Craig Timberg, Rehnquist’s Inclusion of ‘Dixie’ Strikes a Sour Note, WASH. POST, July
22, 1999, at B1.
17. On October 25, 1994, police nationwide were asked to look for a car with South Carolina tag GBK 167, after Susan Smith tearfully claimed that a [B]lack man in his 20s to early 30s
jumped into the front passenger seat of her car, brandished the barrel of a gun, and said, “Shut
up and drive or I’ll kill you.” The carjacker later forced her out, and drove off with her two
toddlers, Michael Daniel Smith and Alexander Tyler Smith, while Smith stood in the middle of
the road and screamed, “I love you all.” Robert Davis, Prayers Lifted up for Abducted Boys,
Tots Whisked off in S.C. Carjacking, USA TODAY, Oct. 27, 1994, at 10A. While Smith spent
hours helping a police artist compose a sketch of the [B]lack man, and helicopters and planes
searched the back roads and woods of South Carolina, the boys’ maternal grandfather urged
people to “lift up the names [of the boys] to the Lord.” Id. An FBI Supervisor described the
kidnapping as “the nation’s nightmare,” and vowed that the FBI was “amassing all the resources
we have nationwide.” Robert Davis, Little to Go on but Hope in S.C.’s Tots’ Kidnapping, USA
TODAY, Oct. 28, 1994, at 3A. Black residents in Union, South Carolina were questioned as the
police went door to door looking for information, and several [B]lacks were detained. Gary Lee,
Black Residents Angered by Reaction to False Story: ‘No One Has Rushed Forward to Apologize,’
WASH. POST, Nov. 7, 1994, at A10. Once found, the carjacker potentially faced the death
In the end, the nation learned that Smith’s carjacking claim was nothing more than a
fabrication. On November 3, 1994, Smith confessed to sending her toddlers, alive and strapped
in their car seats, into the waters of a lake to drown. As Professor Charles P. Ewing later noted,
Smith was able to fool the nation precisely because her story played to the “fears of the public
and the racism that fuels fear of crime in this country.” Elizabeth Kastor, The Worst Fears, the
Worse Reality; for Parents, Murder Case Strikes at Heart of Darkness, WASH. POST, Nov. 5, 1994,
at A1; see also Eric Harrison, S. Carolina Case of Deceptions Also a Case of Perceptions Crime:
A Mother’s Tale of a Carjacker Is Now Seen as Another Example of Vilifying Black Men. But in
[VOL. 48:121
Spartanburg, South Carolina, which, after settling a Justice Department lawsuit18 and then two 1994 class action suits19 alleging race discrimination,20 now makes amends by contributing “[twenty] cents
from the sale of every All-American Slam (at participating restaurants) to the King Center,”21 the National Civil Rights Museum in
Memphis, Tennessee. It was about the prohibition against interracial
dating at Bob Jones University in Greenville, South Carolina, where
President George W. Bush kicked off his 2000 presidential campaign.22 It was about the grade schools in South Carolina, not to menthe Tight-Knit Town, Cries of Racism are Tempered, L.A. TIMES, Nov. 8, 1994, at A27. At trial,
the jurors spared Smith the death penalty that her “fictitious” carjacker could have received.
Tamara Jones, Susan Smith Gets Life in Jail for Killing Sons, Death Penalty Wouldn’t Serve Justice: Juror, CHI. SUN-TIMES, July 29, 1995, at 1.
18. Benjamin A. Holden, Parent of Denny’s Restaurants Signs Bias-Case Decree, WALL ST.
J., Mar. 26, 1993, at A5; Amy Stevens, Denny’s Agrees to Alter Practices in Bias Settlement,
WALL ST. J., Mar. 29, 1993, at A9 (“According to the Government, Denny’s employees required
[B]lack patrons to show identification before being allowed to enter the restaurants; employees
removed some [B]lack patrons from restaurants without good cause . . . [and] [B]lacks—but not
[W]hites—were required to prepay for meals and to pay cover charges.”). Just hours before a
federal court signed over the consent decree, patrons at a Denny’s restaurant in Annapolis faced
discrimination. The patrons, six Black Secret Service agents preparing for a U.S. Naval Academy visit from President Clinton, ordered breakfast but were not served for more than an hour,
while a group of [W]hite Secret Service agents sitting at another table were served without delay.
The Black Secret Service agents left after an unsuccessful attempt to get an explanation from
management. Denny’s employees then attempted to hide the fact that the six Secret Service
agents had complained. Peter Hermann, U.S. Agents Accuse Annapolis Restaurant of Racism –
Six Plan to File Suit Against Denny’s, BALT. SUN, May 23, 1993, at 1A.
19. See Dyson v. Flagstar Corp., C.A. No. 93 1503 (D. Md. 1994); Ridgeway v. Flagstar
Corp., Civ. No. 93-20202, 1994 WL 525553 (N.D. Cal. 1994); see also All Things Considered:
Denny’s Tries to Clean up Image After Racial Bias Suits (NPR radio broadcast, Sept. 22, 1994),
available at 1994 WL 8680234.
20. See McCoo v. Denny’s, Inc., No. COV.A.98-2458RDR, 2000 WL 156824, at *1 (D. Kan.
2000); Savage v. Denny’s Inc., No. Civ. A. 97-882, 1997 WL 169377, at *2 (E.D. Pa. 1997); Ron
Ruggless, 2000 Year in Review, 34 NATION’S RESTAURANT NEWS 51 (2000); Chris Winston, Advantica President Steps Down, SPARTANBURG HERALD (South Carolina), Jan. 5, 2001, at A1
(“[T]he 1,756 unit Denny’s chain, a division of Advantica Restaurant Group, agreed to retrain
managers at company locations after facing U.S. Justice Department charges of discriminatory
hiring practices”). Denny’s history of discrimination is so well known that it was recently commented upon by the Sixth Circuit in reversing and remanding a district court’s grant of summary
judgment in favor of Denny’s. See Logan v. Denny’s, Inc., 259 F.3d 558, 577 (6th Cir. 2001)
(“Denny’s past history of discriminatory conduct, both to its minority patrons and employees
alike, is well known in the jurisprudence and public forums.”).
21. For more detail, see
22. Following public criticism over President Bush’s visit, Bob Jones University modified its
blanket ban on interracial dating, and agreed to permit interracial dating so long as the student
first obtain written approval from his or her parents. Bob Jones U. Hasn’t Changed, HARTFORD
COURANT, Mar. 16, 2000, at A18. Bob Jones University honorary degree recipients include Attorney General John Ashcroft; upon accepting the degree in May 1999, Ashcroft reminded graduating students that, “We have no king but Jesus,” and “thank[ed] God” for the institution.
Libby Quaid, Liberals Examine Ashcroft Speech, CHI. SUN-TIMES, Jan. 13, 2001, at 14.
Bob Jones University also has an interesting history with respect to the American flag and
Dr. King:
Howard Law Journal
tion the churches and the cemeteries, still being segregated by race.23
It was about South Carolina refusing, until the flag controversy
erupted, to honor Dr. Martin Luther King, Jr.’s contribution to civil
rights with an official holiday.24 It was about the shame White South
Carolinians felt upon learning that Senator Strom Thurmond, who
had once declared that “all the bayonets of the Army cannot force the
Negro into our homes,” had fathered a Black daughter.25 It was about
housing subdivisions being named, to this day, wistfully, after
Thinking along these lines, and the unsuccessful grassroots and
legislative efforts of the NAACP to remove the flag, I began to wonder about legal challenges to State displays of the flag,27 both through
the Equal Protection Clause of the Fourteenth Amendment, and
In April of 1968 we had had a Bible conference that included Ian Paisley, the militant
northern Irishman, and at the end of a Saturday night, Bob Jones, Jr., got to the podium
and said “Martin Luther King, Jr. has just been shot in Memphis, Tennessee. The President has asked us to fly the flag at half-mast. We will not fly the flag at half-mast for an
apostate,” at which time the audience clapped and cheered. I had never witnessed such
a racist act.
AND THE AMERICAN FLAG 56-62 (1999) (quoting interview of Denis MacDonald, in The Glory
and the Power: Fundamentalism Observed (WHYY television broadcast, June 1962)).
23. See, e.g., Cal Harrison, Herald Chronicles Century Of Racial Tension, HERALD (Rock
Hill, SC), Apr. 17, 1997, at 52D; Jennifer Talhelm, Race Line May Blur If Fort Mill Adds Cemetery, CHARLOTTE OBSERVER, Nov. 18, 2001, at 12B.
24. B. Drummond Jr. Ayres, Campaign Briefing, N.Y. TIMES, May 2, 2000, at 24; S.C. to
Mark King Holiday, NEWSDAY, May 2, 2000, at A19. The bill recognizing Dr. King with a holiday also honored Confederate soldiers who fought to retain slavery by creating Confederate
Memorial Day.
25. The late Senator’s niece, Mary T. Thompkins Freeman, has described the public announcement that Strom Thurmond fathered a child with a Black maid as “a blight on the family.” Ms. Freeman added, “I went to a church meeting the other day and all these people came
up to me and you could tell they didn’t know what to say. For the first time in my life, I felt
shame.” Ms. Freeman noted that had Thurmond secretly fathered a [W]hite child, “it would be a
whole other situation.” Other family members questioned the daughter’s motives for coming
forward, especially publicly, and feared that the existence of a Black relative would affect not
only Thurmond’s legacy, but the political prospects of his descendants. Jeffrey Gettleman, Thurmond Family Struggles with Difficult Truth, N.Y. TIMES, Dec. 19, 2003, at A1.
26. Derrick Bell, through his alter ego Geneva Crenshaw, notes that “minor matters”
should not be disregarded precisely because they
convey unintended signals to [B]lacks and [W]hites about how the Court weighs the
relative interests of the two races. The Court’s inclination to avoid upsetting [W]hites
any more than is necessary, combined with its use of a standard of review that encourages government officials to create “neutral” rules that everyone knows will disadvantage [B]lacks, in effect creates a property right in [W]hiteness and the consequent loss
of some cases that we should by all rights win.
BELL, supra note 1, at 172.
27. My interest is limited to state displays of the Confederate flag. While I may personally
be offended by private persons who display the flag, I recognize, and respect, their right to do so.
Indeed, such private displays actually benefit me, in that they signify to me whom I should avoid
and not extend certain courtesies to, and permits me to redirect my business, and dollars and
cents—indeed, make that sense—elsewhere.
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through the Thirteen Amendment.28 My interest was limited to State
displays of the Confederate flag. While I may be personally offended
by private persons who display the flag, I recognize and respect their
right to do so. Indeed, such private displays actually benefit me, in
that they signify to me whom I should avoid and not extend certain
courtesies to, and permits me to redirect my business, and dollars and
cents—indeed, make that sense—elsewhere.
I quickly learned that there had been challenges elsewhere—in
Alabama in NAACP v. Hunt,29 and in Georgia in Coleman v. Miller,30
as well as numerous challenges to the removal of Confederate symbols in public schools,31 universities,32 and cemeteries33—and that
these challenges had failed. The more I examined these cases and the
scholarly responses to them,34 however, the more I became convinced
28. There have also been challenges to state displays of the Confederate flag on First
Amendment grounds, most recently in Briggs v. Mississippi, 331 F.3d 499 (5th Cir. 2003). There,
the court held that such displays neither violate the Establishment Clause under Lemon v. Kurtzman, 403 U.S. 602 (1971), nor contravene the First Amendment’s right to free speech. See, e.g.,
Briggs, 331 F.3d at 505-08.
29. 891 F.2d 1555 (11th Cir. 1990).
30. 912 F. Supp. 522 (N.D. Ga. 1996), aff’d, 117 F.3d 527 (11th Cir. 1997) (Coleman I).
31. In general, where there has been a showing of past disruption resulting from the display
of Confederate flags, courts have found school bans constitutional under Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969). See, e.g., Scott v. Sch. Bd., 324 F.3d 1246, 124849 (11th Cir. 2003); West v. Derby Unified Sch. Dist. 260, 206 F.3d 1358, 1365-1367 (10th Cir.
2000); Melton v. Young, 465 F.2d 1332, 1335 (6th Cir. 1972); Phillips v. Anderson County Sch.
Dist. 5, 987 F. Supp. 488, 492 (D.S.C. 1997). In the absence of evidence of past disruption, courts
have generally concluded that school authorities have failed to establish a sufficient likelihood of
disruption to support banning the flag. See, e.g., Castorina v. Madison County Sch. Bd., 246 F.3d
536, 542-43 (6th Cir. 2001) (reversing summary judgment for school officials where there was no
showing of disruption); Denno v. Sch. Bd. of Volusia County, 182 F.3d 780, 785 (11th Cir. 1999),
vacated, and decided on separate grounds, 218 F.3d 1267 (11th Cir. 2000) (“noting the absence of
any facts . . . that would suggest a reasonable fear of disruption”).
32. The University of Mississippi, for example, has been a locus of controversy. The
school’s mascot, Colonel Rebel, is a personification of an Old South plantation owner; Dixie,
until recently, was sung at football games; the University’s nickname, Ole Miss, is the slave term
for the [W]hite female head of a plantation. Until 1983, the University distributed Confederate
flags to fans at football games, and cheerleaders carried Confederate flags down the field. See
Ronald J. Rychlak, Civil Rights, Confederate Flags, and Political Corrections: Free Speech and
Race Relations on Campus, 66 TUL. L. REV. 1411, 1413-16 (1992).
33. See, e.g., Griffin v. Dep’t of Veterans Affairs, 274 F.3d 818, 824 (4th Cir. 2001) (declaring Department of Veteran’s Affairs’s decision to limit the display of the Confederate flag at
National Cemetery reasonable and viewpoint neutral under the First Amendment).
34. See, e.g., Robert J. Bein, Stained Flags: Public Symbols and Equal Protection, 28 SETON
HALL L. REV. 897 (1998) (applying reception theory to argue that State displays of Confederate
flag have a discriminatory effect); James Forman, Jr., Note, Driving Dixie Down: Removing the
Confederate Flag from Southern State Capitols, 101 YALE L.J. 505 (1991) (arguing that state
displays violate First and Fourteenth Amendments); Alexander Tsesis, The Problem of Confederate Symbols: A Thirteenth Amendment Approach, 75 TEMP. L. REV. 539 (2002) (arguing that
the Thirteenth Amendment empowers the federal government to prohibit the states from flying
Confederate flags).
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that something was missing from the analysis. Although the cases cursorily addressed the historiography surrounding the display of the
flag, the decisions were silent when it came to any analysis of the
power associated with this display.
Replicating my own heuristic approach to this issue, in Part I, I
review the Equal Protection challenges to state displays of the Confederate flag that have been mounted to date, paying particular attention to the cursory manner in which federal courts have addressed the
plurality of meanings behind the flag itself. In Part II, I offer a rereading of the cases by, among other means, examining them in light of
current juridical approaches to analyzing Equal Protection claims, and
I argue that the cases, by effect if not design, perpetuate social
Returning to the plurality of meanings35 in the Confederate flag,
in Part III, I attempt to “thicken” the analysis by mapping out not
only what the Confederate flag denotes, but also what the Confederate flag connotes. Though perhaps unconventional, I consider the
Confederate flag against the backdrop of flags in general. In doing so,
I consider the Confederate flag as an iconic metaphor, as conveying
messages implicating protection, allegiance, and stasis. I attempt to
concretize my analysis by imagining other flags that could be displayed by States and how challenges to those flags would likely fare.
In Part IV, I offer a retelling of Derrick Bell’s Chronicle of the Space
Traders, and explore how the Confederate flag functions as an assurance of how any proposal that pits the interests of the minority against
interests of the majority will be resolved. Finally, in Part V, I explore
how the view of the Confederate flag as a signifier of protection, allegiance, and stasis could strengthen future challenges to the government-sponsored display of the Confederate flag.36
35. I am not suggesting here that there is any meaning immanent in the Confederate flag, or
in any other flag for that matter. In semiotic terms, flags, like words, are simply signifiers, and
the various meanings associated with them are signifieds that otherwise bear no relation to what
(Charles Bally et al. eds., Open Court Publ’g Co. 1986) (1916). Nor am I suggesting that the
signifieds or meanings, associated with any particular flag are fixed. As the literary theorist
Mikhail Bakhtin has emphasized, signs are inherently “dialogic,” modified and transformed in
meaning by differing social tones, valuations, and connotations assigned to them by a heterogeneous society composed of conflicting interests and views. M. M. BAKHTIN & P.N. MEDVEDEV,
THE FORMAL METHOD IN LITERARY SCHOLARSHIP: A CRITICAL INTRODUCTION TO SOCIOLOGICAL POETICS (Albert J. Wehrle trans., 1928). What I am suggesting is that flags, because they are
so imbricated with history, social convention, and mythology, are particularly polysemic.
36. This is not to suggest that the removal of the Confederate flag would have an immediate
transformative effect on states such as South Carolina. History suggests that judicial decisions
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To date, two federal appellate courts have considered Equal Protection challenges to State displays of the Confederate flag.
A. NAACP v. Hunt
In 1988, the NAACP and several of its Alabama members filed
suit in the Middle District of Alabama against Governor Guy Hunt
and other state officials (the “State”), seeking declaratory judgment
that the flying of the Confederate flag atop the Alabama capitol dome
violated the Equal Protection Clause of the Fourteenth Amendment,
as well as the First and Thirteenth Amendments. The District Court
dismissed the case on procedural grounds,37 and on appeal, the U.S.
Court of Appeals for the Eleventh Circuit affirmed. The Eleventh
Circuit, however, elected not to rest its dismissal solely on procedural
grounds, noting instead that because of the “controversial concerns,”
it was “important that all issues be laid to rest on the merits.”38
Turning to the merits, the Eleventh Circuit concluded that while
the NAACP had satisfied the first prong for stating a cause of action
under 42 U.S.C. § 1983 by establishing that the Confederate flag was
flown by individuals acting under the cloak of State authority,39 the
NAACP could not satisfy the second prong, which required a deprivation of some right, privilege, or immunity secured by the Constitution
or by law.40 Relying on Hunter v. Underwood,41 in which the Supreme
Court held that facially neutral state action will violate the Equal Prorarely result in social change. See DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY 5662 (1977); R. SHEP MELNICK, REGULATION AND THE COURT: THE CASE OF THE CLEAN AIR
ACT 110-12 (1983). As Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 765
(1991) has pointed out, Brown v. Board of Education may be the “most conspicuous confirmation of the point.” Despite the Supreme Court’s mandate that states desegregate public schools
“with all deliberate speed,” ten years after the decision, only about two percent of Black children
in the South attended desegregated schools. Id.; see also G. STONE ET AL., CONSTITUTIONAL
LAW 474 (1986). That being said, I am suggesting that removal of the flag can catalyze change.
37. Specifically, the district court dismissed the NAACP’s claims as precluded by res judicata. NAACP v. Hunt, 891 F.2d 1555, at 1561 (11th Cir. 1990). The dismissal was based on the
fact that several years earlier, in 1975, one of the Hunt plaintiffs, Alabama State Legislator Alvin
Holmes, had filed a nearly identical action in Holmes v. Wallace, 407 F. Supp. 493 (M.D. Ala.
1976), aff’d without published opinion, 540 F.2d 1083 (5th Cir. 1976). There, the district court
had dismissed Holmes’s claims based on the Thirteenth and Fourteenth Amendments, finding
that while a “[s]tate sponsored display of the Confederate flag may offend sensitive descendants
of former slaves,” Holmes’s “embarrassment and humiliation in the absence of some recognized
right to liberty or property” was insufficient to allow recovery. Holmes, 407 F. Supp. at 497-98
(emphasis added).
38. Hunt, 891 F.2d at 1561-62.
39. Id. at 1562 (citing Monroe v. Pape, 365 U.S. 167, 184-87 (1961)).
40. Id. at 1562-63 (citing 42 U.S.C. § 1983).
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tection Clause only if: (1) the state action was motivated, at least in
part, by racial animus; and (2) the state action produced a disproportionate effect along racial lines, the Eleventh Circuit concluded that
the plaintiff had failed to demonstrate racial animus. Noting that the
record revealed “two accounts of why Alabama flies the flag,” only
one of which suggested animus,42 the Eleventh Circuit declined to find
that the flag was hoisted for racially discriminatory reasons. The Eleventh Circuit then summarily dismissed the NAACP’s claim that “the
flag was ‘tantamount to holding public property for racially discriminatory purposes’ and that it denied its members their rights to equal
education, equal economic opportunity, and equal protection.”43 Instead, the Eleventh Circuit concluded “there is no unequal application
of the state policy; all citizens are exposed to the flag. Citizens of all
races are offended by its position.”44
Finally, in what can be described as an ad hominem attack, the
Eleventh Circuit noted that the NAACP had been advancing discrimination suits in federal and state courts “over the [twenty-five] years
since the flag was raised,” and had never before requested that it be
brought down.45
41. 471 U.S. 222 (1985). Underwood involved a challenge to an Alabama law disenfranchising persons convicted of “any crime . . . involving moral turpitude.” Id. at 223 (quoting ALA.
CONST. art. VIII, § 182). Historical evidence indicated that the law was enacted to disenfranchise Blacks, and in fact accomplished its goal. As such, the Court concluded that it deprived Blacks of equal protection. Id. at 225.
42. Hunt, 891 F.2d at 1562. Here, the Eleventh Circuit was clearly attempting to transform
what it had earlier identified as the “two occasions” that Alabama had raised the flag into “two
accounts” for raising the flag. Id. at 1558. The two occasions were as follows: Alabama raised
the flag in 1961 ostensibly for the purpose of commemorating the one-hundreth anniversary of
the Civil War. Id. The second time Alabama raised the flag was in 1963 in response to efforts to
desegregate the University of Alabama. Governor George Wallace had threatened to physically
block the admission of newly matriculated Black students to the University. On the morning of
April 25, 1963, the day that U.S. Attorney General Robert F. Kennedy traveled to Alabama to
confront Wallace, Alabama hoisted the flag in a show of defiance. Id.
43. Id. at 1562.
44. Id.
45. The Eleventh Circuit also rejected the NAACP’s remaining claims. The Eleventh Circuit noted that while the Thirteenth Amendment grants Congress the authority to enact legislation to eradicate badges and incidents of slavery, Congress had not used this authority to pass
legislation forbidding the flying of the Confederate flag, precluding the NAACP’s Thirteenth
Amendment claim. Id. at 1564.
The Eleventh Circuit also rejected as meritless the NAACP’s contention that, given the Ku
Klux Klan’s use of the flag “as part of their religious rituals,” Alabama’s flying of the Confederate flag amounted to excessive entanglement with religion. Applying the three-prong test established in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), which held that a state practice is
valid under the Establishment Clause if (1) it has a secular legislative purpose; (2) its principal or
primary effect neither advances nor inhibits religion; and (3) it does not foster excessive government entanglement with religion, the Eleventh Circuit concluded:
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Having elected to lay “to rest on the merits” the claims raised by
the NAACP, the Eleventh Circuit concluded by electing to insulate
itself from accountability by passing the buck:
It is unfortunate that the State of Alabama chooses to utilize its
property in a manner that offends a large proportion of its population, but that is a political matter which is not within our province to
decide. The remedy for such a grievance lies within the democratic
processes of the State of Alabama and the voting rights of all its
citizens, “the restraints on which the people must often rely solely,
in all representative governments.”46
B. Coleman v. Miller
Seven years after the Eleventh Circuit claimed to lay to rest the
“controversial concerns”47 raised in the NAACP’s challenge to Alabama’s display of the Confederate flag, it was presented with another
challenge, this time to the constitutionality of the state flag of Georgia.48 At the time, Georgia’s state flag consisted of the Georgia state
seal, which covered approximately a third of the flag, and the Confederate battle flag emblem, which covered the remaining two-thirds.49
In a civil rights action filed in the Northern District of Georgia under
42 U.S.C. § 1983, James Coleman, an African American resident of
Georgia, had challenged the legislation establishing the flag and the
flag’s design on several grounds, including the ground that it violated
his constitutional rights to equal protection under the Fourteenth
It is clear that whether the flag was hoisted to decry integration or to recognize history,
the purpose in its hoisting was secular. It is also clear that the primary effect of the flag
is not to promote religion; rather, it is to remind citizens, albeit offensively to some, of a
controversial era in American history . . . . Finally, the NAACP has produced no evidence that the flag constitutes excessive entanglement with religion . . . . Without
meaningful evidence of purpose, effect, and entanglement, the Establishment Clause
claim must fail.
Hunt, 891 F.2d at 1564-65. Finally, the Eleventh Circuit rejected the NAACP’s claim that Alabama’s display of the Confederate flag either interfered with the NAACP’s free speech, or
amounted to improper “government speech” or “ ‘monopolization of the marketplace of ideas.’ ”
Id. at 1565-66.
46. Hunt, 891 F.2d at 1566 (quoting Gibbons v. Ogden, 22 U.S. 1 (1824)).
47. Id. at 1561.
48. Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997) (Coleman II). Coleman, an African
American resident of Georgia, brought his civil right action challenging the flag, and seeking an
injunction ordering the immediate removal of the Georgia flag from all state office buildings in
Georgia, in 1994. Id. at 524-25.
49. Id. at 528.
50. Id. Coleman also claimed that Georgia’s incorporation of the Confederate battle flag
compelled him “to be the courier of an ideological message to which he objects,” in violation of
his rights to freedom of expression and association under the First Amendment; deprived “him
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At an evidentiary hearing before the District Court, Coleman
presented evidence detailing the “historical incidents leading to
the . . . flag’s enactment,”51 which included the following:
In [May] 1954, the [U.S.] Supreme Court decided Brown v. Board
of Education, holding that racial segregation in public schools violated the Equal Protection Clause. Later that year, Georgia voters
[reacting to Brown I] ratified a constitutional amendment allowing
parents to withdraw their children from public schools and [permitting the state legislature to] divert[ ] public money to nonsectarian,
segregated schools.
In April 1955, John Sammons Bell, counsel to the County Commissioners Association of Georgia and Chairman of the State Democratic Party, [proposed modifying Georgia’s state flag]. . . . to
incorporate the Confederate battle flag . . . .
In May 1955, the Supreme Court decided [Brown II, requiring]
states to desegregate public schools “with all deliberate speed.”
[Brown II ] fomented great controversy and deep emotion in Georgia. Politicians, including Governor Marvin Griffin, advanced a policy of massive resistance to desegregation in response.
[In August 1955, in a further response to Brown I and Brown
II,] the Georgia School Board ordered all teachers belonging to the
[NAACP] to resign from the organization or have their teaching licenses revoked.
[In August 1955 Georgia’s] State Attorney General . . . advocat[ed] the doctrine of interposition, . . . maintain[ing] that states
may interpose themselves to block the enforcement of unconstitutional mandates such as Brown. . . .
In December 1955, . . . . Georgia[’s] . . . Board of Regents . . .
passed a resolution . . . [prohibiting Georgia Tech’s football team
from] play[ing] . . . intrastate games against teams with [B]lack
[In January 1956,] . . . . [i]n his . . . state of the State address,
Governor Griffin . . . [promised, among other things, the following:]
of his fundamental privacy interest in intimate associations with Caucasians free from Government intrusion,” in violation of his Due Process rights under the Fourteenth Amendment, and
intimidated him and other African Americans “into refraining from exercising their right to
vote” in violation of the Voting Rights Act of 1965, 42 U.S.C. § 1971. Coleman v. Miller, 912 F.
Supp. 522, 530-32 (N.D. Ga. 1996), aff’d, 117 F.3d 527 (11th Cir. 1997) (Coleman I). The District
Court rejected each of these claims as meritless, and only the Equal Protection and Freedom of
Expression claims were addressed on appeal. See id.
51. Coleman I, 912 F. Supp. at 525.
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“[T]here will be no mixing of the races in public schools, in
college classrooms in Georgia as long as I am the governor. I campaigned with segregation as the number one plank in my platform.
We must not desert future generations of Georgians. We must
never surrender. All attempts to mix the races, whether they be in
the classrooms, on the playgrounds, in public conveyances, or in any
other close personal contact on terms of equality harrow the mores
of the South.”
In . . . February 1956, [State] Senator Willis Harden sponsored a bill
to adopt . . . [a] new design for the state flag. . . .
The bill passed 107 to 32, to 61 abstentions.52
Having accepted this factual history, the district court nonetheless
bypassed the racial animus prong of Hunter53 and granted Georgia’s
motion for summary judgment on the second prong of Hunter,
namely, that Coleman had failed to show that Georgia’s display of the
flag had resulted in a “concrete, present-day discriminatory impact on
African[ ]Americans.”54 Although Coleman argued that he suffered
certain intangible harms,55 and that under Brown disparate harm need
“not be specifically identifiable but may amount to feelings of inferiority such that they cause harm to the African[ ]American community,”56 the district court rejected this claim and distinguished Brown
on the ground that the statute at issue there was not facially neutral,
but explicitly classified children on the basis of race.57
52. Coleman I, 912 F. Supp. at 526-28. The district court noted that nothing in the legislative record of the bill, which is codified at O.C.G.A. § 50-3-1, revealed any discussion of segregation or White supremacy. Id. at 528. A likely explanation for this omission, however, is that
segregation and White supremacy were taken as a given. The district court did acknowledge that
segregation was a focus of the remainder of the 1956 session of the General Assembly. The
District Court noted:
Of the 150 acts passed in the session, ten bills and two resolutions dealt with massive
resistance to desegregation. One such law passed after the flag bill, the Interposition
Resolution, declared the Brown cases and all similar decisions to be null and void.
Finding that the Supreme Court had usurped powers reserved to the states in Brown, it
repudiated the Court’s right to declare state laws unconstitutional. It also asserted that
Georgia had the right to decide for itself how to educate its children in keeping with the
State’s segregated social structure. The resolution passed with twenty-five abstentions
and only one dissent.
53. Coleman I, 912 F. Supp. at 530.
54. Id. at 529.
55. In an attempt to satisfy the disparate impact prong of Hunter, Coleman claimed that the
flag’s existence called upon Georgia citizens to adopt the “symbolic state policy of discrimination” and resulted in his devaluing himself as a person. Coleman I, 912 F. Supp. at 529-30. The
district court found neither of these contentions persuasive. Id.
56. Id. at 530 n.8 (quoting Coleman’s brief in opposition to the summary judgment motion).
57. Id.
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On appeal, the Eleventh Circuit affirmed the district court’s grant
of summary judgment to the State of Georgia, concluding that Coleman had failed to satisfy Hunter by presenting “specific factual evidence to demonstrate that the Georgia flag presently imposes on
African[ ]Americans, as a group, a measurable burden or denies them
an identifiable benefit.”58
Appellant relies on his own testimony to demonstrate a disproportionate racial effect. He testified that the Confederate symbol in
the Georgia flag places him in imminent fear of lawlessness and violence and that an African[ ]American friend of his, upon seeing the
Georgia flag in a courtroom, decided to plead guilty rather than litigate a traffic ticket. This anecdotal evidence of intangible harm to
two individuals, without any evidence regarding the impact upon
other African[ ]American citizens or the comparative effect of the
flag on [W]hite citizens, is insufficient to establish “disproportionate
effects along racial lines.”59
The Eleventh Circuit concluded that Coleman faced the same,
presumably insurmountable, hurdle as the plaintiff had in NAACP v.
Hunt: “‘[T]here is no unequal application of state policy; all citizens
are exposed to the flag. Citizens of all races are offended by its
Finally, as it had done before in Hunt, the Eleventh Circuit attempted to insulate itself from criticism by expressing its disagreement
with Georgia’s decision to fly the flag, while simultaneously disclaiming any authority to order the removal of the flag:
We recognize that the Georgia flag conveys mixed meanings; to
some it honors those who fought in the Civil War and to others it
flies as a symbol of oppression. But because the Confederate battle
58. Coleman II, 117 F.3d at 530.
59. Id. (quoting Hunter, 471 U.S. at 227). Coleman’s fear of “lawlessness and violence” is
not entirely farfetched. The Confederate flag has been embraced not only by members of the Ku
Klux Klan and neo-Nazis, but by other supremacists groups as well. See Forman, Jr., supra note
34, at 526 n.57 (citing examples of various supremacists invoking the Confederate flag); L.
Darnell Weeden, How to Establish Flying the Confederate Flag with the State as Sponsor Violates
the Equal Protection Clause, 34 AKRON L. REV. 521, 553 n.64 (2001). More recently, federal
agents who searched serial bombing suspect Eric Robert Rudolph’s storage unit in 1998 found
“guns, ammunition . . . and Confederate flags.” Rudolph was subsequently arrested on May 31,
2003, after a much publicized, five-year manhunt, and is awaiting capital trial in federal court in
Alabama in connection with the 1998 bombing of an abortion clinic there. Rudolf also faces
charges in Georgia, in connection with three bombings there, including one at the 1996 Olympics. Don Plummer, Rudolph Caches Revealed Items Seized Expand Portrait of Bomb Suspect,
ATLANTA J. CONST., July 1, 2003, at A5.
60. Coleman II, 117 F.3d at 530 (quoting NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir.
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flag emblem offends many Georgians, it has, in our view, no place in
the official state flag. We regret that the Georgia legislature has
chosen, and continues to display, as an official state symbol a battle
flag emblem that divides rather than unifies the citizens of Georgia.
As judges, however, we are entrusted only to examine the controversies and facts put before us.61
That the Eleventh Circuit decisions in Hunt and Coleman are assailable on a number of grounds perhaps goes without saying. That
some greater showing of harm—a “concrete, present-day discriminatory impact on African[ ]Americans”62—must be proved where a statute is facially neutral, as opposed to discriminatory on its face, is far
from apodictic. One need only look at the district court’s “facially
neutral” recitation of the “facts” adduced at the evidentiary hearings
to see how easily race can be alluded to without being stated.
Throughout the district court’s recitation, racial identification is ubiquitous, a given, and yet at the same time absent. Thus, the district
court was able to note the “public outcry to desegregation,” 63 “voters
ratif[ying] a constitutional amendment allowing parents to withdraw
their children from public schools,”64 and “[p]oliticians advanc[ing] a
policy of massive resistance to desegregation,”65 without once needing
to identify the race of the actors.66 Indeed, during the Civil Rights
Era, states routinely responded to judicial invalidations of racially explicit legislation by purposefully enacting facially neutral, yet discrimi61. Id. at 530. One effect of this assertion of the court’s “view” is that it provides support
for the court’s earlier claim, not based on any evidence in the record, that “all races are offended
by” Georgia’s display of the flag. The judges on the three-member panels that decided NAACP
v. Hunt and Coleman v. Miller were all White men. Notwithstanding the fact that African Americans comprise approximately twenty percent of the Eleventh Circuit, there has never been more
than one African American judge at a time on the Eleventh Circuit. See generally Report on
Presidential Appointments of African American Article III Judges, available at
(last visited Oct. 4, 2004).
62. Coleman I, 912 F. Supp. at 529.
63. Id. at 526.
64. Id.
65. Id. at 527.
66. Id. Race is similarly a given in Governor Griffin’s 1956 state of the State Address, as
the following rewrite demonstrates: “I campaigned with segregation as the number one plank in
my platform. We [Whites] must not desert future generations of [White] Georgians. We
[Whites] must never surrender.” Id.
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natory, laws.67 Given the fact that it is relatively easy to cloak racially
motivated legislation in facially neutral language,68 there seems little
basis for imposing a more stringent standard in challenges to facially
neutral statutes.69 Indeed, as Darren Lenard Hutchinson has convincingly argued, requiring proof of racial animus departs from the spirit
of the Equal Protection Clause, as explicated by law’s most famous
footnote,70 and contributes to what Hutchinson identifies as the “inversion of privilege and subordination in Equal Protection jurisprudence.”71 Put differently, under Hutchinson’s theory, Hunt and
Coleman can be read as belonging to a growing body of cases in which
courts, having extended solicitude to the discrimination claims
brought by members of privileged classes in “reverse discrimination”
cases, find claims of discrimination deficient when brought by mem-
67. See, e.g., Bd. of Educ. v. Swann, 402 U.S. 43 (1971) (prohibiting busing enacted to
thwart integration); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (excluding all but four Black
voters from the city); see also Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252 (1977) (zoning decision); Kimberle’ Williams Crenshaw, Race, Reform, and Retrenchment:
Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1337-38
(1988) (discussing the de jure manifestation of subordination that existed prior to the Civil
Rights movement).
68. As the Supreme Court has noted:
It is difficult or impossible for any court to determine the “sole” or “dominant” motivation behind the choices of a group of legislators. Furthermore, there is an element of
futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant
governing body repassed it for different reasons.
Palmer v. Thompson, 403 U.S. 217, 225 (1971).
69. See, e.g., Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95 (1971); John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205 (1970); Seth F. Kreimer, Reading the
Mind of the School Board: Segregative Intent and the De Facto/De Jure Distinction, 86 YALE L.J.
317 (1976); Eric Schnapper, Perpetuation of Past Discrimination, 96 HARV. L. REV. 828 (1983);
David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 948
(1989) (arguing that “[i]f explicit racial classifications are unlawful, it makes little sense to allow
a government that is subtle enough to use an ostensibly neutral surrogate for race to get away
with maintaining the Jim Crow regime”).
70. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). The footnote reads,
in relevant part:
Nor need we enquire whether similar considerations enter into the review of statutes
directed at particular religious, . . . or national . . . or racial minorities . . . whether
prejudice against discrete and insular minorities may be a special condition, which
tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
71. Darren Lenard Hutchinson, “Unexplainable on Grounds Other Than Race”: The Inversion of Privilege and Subordination in Equal Protection Jurisprudence, 2003 U. ILL. L. REV. 615
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bers of historically vulnerable classes—the very persons that the
Equal Protection Clause was drafted to protect.72
Similarly, one could quarrel with the Eleventh Circuit’s adoption
of an Equal Protection test based on anti-differentiation, rather than
anti-subordination or equal citizenship.73 Under the anti-differentiation standard, exemplified by Washington v. Davis,74 courts invalidate
only those government actions that make explicit and purposeful distinctions between similarly situated groups.75 By contrast, under an
anti-subordination approach, exemplified in Brown I,76 the constitutionality of a law is not determined by simply examining whether it
differentiates among similarly situated classes; rather, a law unlawfully
discriminates if it reinforces the marginalized social, economic, or political status of historically disadvantaged classes.77 In the alternative,
the Eleventh Circuit could have adopted the equal citizenship approach advocated by scholars such as Kenneth Karst,78 and exempli72. Id. at 671.
73. For a general discussion of the various meanings of equality that scholars and jurists
have advanced in the context of equal protection analysis, see id. at 619-27.
74. 426 U.S. 229 (1976). In Washington v. Davis, plaintiffs challenged on equal protection
grounds the requirement of an aptitude test to gain employment with the Washington, District of
Columbia police department. Finding that the test was applied equally to all applicants, and
rejecting statistical evidence of disproportionate pass/failure rates, the Court found the test
75. See generally Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1005 (1986) (describing the anti-differentiation approach as precluding only different treatment on the basis of a particular normative view about race or sex);
see also Cedric Merlin Powell, Blinded by Color: The New Equal Protection, the Second Deconstruction, and Affirmative Inaction, 51 U. MIAMI L. REV. 191, 228 (1997).
76. 347 U.S. at 483 (“To separate them from others of similar age and qualifications solely
because of their race generates a feeling of inferiority as to their status in the community that
may affect their hearts and minds in a way unlikely ever to be undone.”); see also Michael C.
Dorf, Foreword: The Limits of Socratic Deliberation, 112 HARV. L. REV. 4, 76 (1998) (noting that
Brown “has been most persuasively defended as the Court’s recognition that, as actually practiced, American segregation was a crucial piece of a system of racial subordination”).
77. See Colker, supra note 76; Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV.
2410, 2411 (1994); Robin L. West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 FLA. L. REV. 45, 71 (1990) (advocating an “anti-subordination model,
which targets legislation that substantially contributes to the subordination of one group by
78. See, e.g., Kenneth L. Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship
Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 5-6 (1977) [hereinafter Karst, Equal
The principle of equal citizenship presumptively insists that the organized society treat
each individual as a person, one who is worthy off respect, one who “belongs.” Stated
negatively, the principle presumptively forbids the organized society to treat an individual either as a member of an inferior or dependent caste or as a nonparticipant. Accordingly, the principle guards against degradation or the imposition of stigma.
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fied by Lawrence v. Texas79 and even more recently in the
Massachusetts Supreme Court’s decision Goodridge v. Dept. of Public
Health.80 Under Karst’s theory, the Equal Protection Clause authorizes courts to invalidate laws that reduce groups to “second-class citizenship.” Karst argues:
The essence of equal citizenship is the dignity of full membership in
the society. Thus, the principle not only demands a measure of
equality of legal status, but also promotes a greater equality of that
other kind of status which is a social fact — namely, one’s rank on a
scale defined by degrees of deference or regard. The principle embodies “an ethic of mutual respect and self-esteem;” it often bears
its fruit in those regions where symbol becomes substance.81
Thus, by applying a test based on anti-differentiation, rather than
anti-subordination or equal citizenship, the Eleventh Circuit was able
to ensure a result that was all but predetermined to sustain social and
racial hierarchy.
One could also take issue with the Eleventh Circuit’s application
of the discriminatory impact prong of Hunter, and its statement, first
made in Hunt and reiterated in Coleman, that citizens of all races are
offended by the Confederate flag, and the implicit suggestion that
such citizens are offended equally. The Eleventh Circuit offered no
empirical support for this supposition; and indeed, their conclusion
runs contrary to polls reflecting the public’s responses to the flag.82
Moreover, as demonstrated by Justice Clarence Thomas’s statements
during oral argument in Virginia v. Black,83 which involved a First
Amendment challenge to a Virginia statute criminalizing cross burning, the targets of symbols of supremacy justifiably feel offended to a
greater degree than even their most liberal sympathizers.84 For exam79. 539 U.S. 558 (2003) (invalidating Texas’s anti-sodomy law as infringing on the right to
liberty under the Due Process Clause).
80. 798 N.E.2d 941, 948 (Mass. 2003) (reading the Massachusetts Constitution’s guarantees
of equality before the law as “forbid[ding] the creation of second-class citizens,” and thus precluding the denial of the civil marriage benefits to same-sex couples); see also In re Opinion of
the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004).
81. Karst, Equal Citizenship, supra note 78, at 5-6.
82. Cf. infra note 88.
83. 538 U.S. 343 (2003).
84. As one commentator described it:
[N]early midway through the hour-long hearing, Justice Clarence Thomas transformed
the debate with his booming and rarely heard voice, cautioning government lawyers
against “understating the effects of burning crosses.” Cross burning was part and parcel of “100 years of lynching in the South,” Thomas said, adding that “this was a reign
of terror.” Burning a cross, he said, is “intended to have a virulent effect. It is unlike
any other symbol.”
Tony Mauro, Remarks by Thomas Alter Argument, LEGAL TIMES, Dec. 16, 2002, at 7.
[VOL. 48:121
ple, it would be irrational for a non-minority to fear physical assault
from an approaching group waving Confederate flags. By contrast,
given the history of violence associated with the Confederate flag,85 it
would be entirely rational for a member of a historically oppressed
class, in the face of the same approaching group, to fear for his safety.
This is not to suggest that the plaintiffs in Hunt and Coleman
mounted the strongest cases imaginable. Ultimately, the Eleventh
Circuit was able to point to the plaintiffs’ failure to present “specific
factual evidence” to refute the court’s assessment that the Confederate flag imposes no disproportionate effect along racial lines. Rather
than relying on empirical data or expert testimony and reports from
sociologists, as the NAACP had done to great effect in Brown,86 the
plaintiffs in Hunt and Coleman instead relied on personal, anecdotal
evidence. One could argue that the failure on the part of the plaintiffs
to present data supporting their claim of disparate impact was fatal,
though whether the Eleventh Circuit would have been receptive to, or
persuaded by, such data is questionable.87
One could also argue that by deferring to the state legislature,
which by definition is majoritarian, the Eleventh Circuit abdicated its
function of protecting “discrete and insular minorities.”88 Stated dif85. Several violent White supremacist groups have adopted the Confederate battle flag as
their symbol. See, e.g., Ashley Dunn & Jeffrey Miller, ‘I Had to Stop it,’ Says Guard Who Held
off Alleged “Skinheads,” L.A. TIMES, June 1, 1989, at B1 (A group of Los Angeles skinheads
wearing Confederate battle flag tattoos attacked a Middle Eastern couple and baby in a supermarket parking lot.); John M. Glionna, Unfavorite Son, L.A. TIMES, Oct. 30, 1990, at E1 (Tom
Metzger, former Grand Dragon of the KKK and leader of the White Aryan Resistance, who was
ordered to pay $12.5 million in damages for his role in the killing of a Black man in Oregon, flew
the Confederate battle flag above his home.); Peggy O’Hare, Task Force Reveals Arrests of Four
After Infiltration of Bandidos Gang, HOUSTON CHRON., Oct. 11, 2000, at 21A (gang displayed
swastikas and Confederate flag); Paul W. Valentine, Police Boost Security at NAACP; White
Supremacists Picket Headquarters, WASH. POST, Jan. 5, 1990, at C1 (KKK and neo-Nazi protestors demonstrating outside the national headquarters of the NAACP carried a Confederate battle flag along with signs saying “Nuke the NAACP.”).
87. For example, the Supreme Court found unpersuasive statistical data evidencing a racial
pattern in the imposition of the death penalty in Georgia. McCleskey v. Kemp, 481 U.S. 279
(1987). For a general discussion of the Supreme Court’s rejection of discriminatory impact statistics in Equal Protection actions, see Sheila Foster, Intent and Incoherence, 72 TUL. L. REV.
1065, 1144-61 (1998).
REVIEW (1980) (invoking footnote four of United States v. Carolene Products Co., 304 U.S. 144,
152 n.4 (1938), to explicate a process-based theory of judicial review to protect disadvantaged
minorities, who by definition are subject to the will of the majority in a majoritarian legislative
process); see also Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 716 n.
5 (1985); Lewis F. Powell, Jr., Carolene Products Revisited, 82 COLUM. L. REV. 1087 (1982).
Howard Law Journal
ferently, Hunt and Coleman can be read as a failure of
countermajoritism. Instead of protecting the interests of “insular minorities” from the majoritarianism of representative government, as
envisioned under the late John Hart Ely’s model of judicial review,
the Eleventh Circuit instead protected the preferences of the majority.
Indeed, scholars such as Charles Lawrence and Girardeau A. Spann
would argue that the failure of counter-majoritarianism is all but inevitable in such cases, given that judges, through the nomination and
confirmation process, usually arrive at the bench already “inculcated
with majoritarian values.”89
Specifically, Spann persuasively argues that Supreme Court Justices are, by necessity, majoritarian, in the sense that they have been
socialized by the dominant culture. His argument has equal force
when applied to other federal judges:
[Judges] have internalized the basic values and assumptions of [the]
culture, including the beliefs and predispositions that can cause the
majority to discount minority interests. Indeed, a justice’s sympathy
toward majoritarian values is thoroughly tested by the appointment
and confirmation process, which is specifically designed to eliminate
any candidate whose political inclinations are not sufficiently centrist for the majoritarian branches to feel comfortable with that candidate’s likely judicial performance. As a statistical matter,
therefore, a [federal judge] is more likely to share the majority’s
views about proper resolution of a given social issue than to possess
any other view on that issue. Moreover, to the extent that the justice has been socialized to share majoritarian prejudices, he . . . may
not even be consciously aware of the nature of those prejudices, or
the degree to which they influence the exercise of the [judge’s] discretion. Whatever factors cause majority undervaluation of minority interests, [judges] socialized by the dominant culture will have
been influenced by them too. Accordingly, justices will come to the
task of protecting minority interests possessed by the very same dispositions that they are asked to guard against.90
Finally, one could argue that the Eleventh Circuit was either naı¨ve or disingenuous in urging the plaintiffs to seek recourse in the legislative arena. The simple fact is that efforts by minorities to obtain
relief in the legislatures have proved unavailing, and will in all likeli89. Girardeau A. Spann, Pure Politics, 88 MICH. L. REV. 1971, 1982 (1990) [hereinafter
Spann, Pure Politics]; see also GIRARDEAU A. SPANN, RACE AGAINST THE COURT (1983);
Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious
Racism, 39 STAN. L. REV. 317 (1987).
90. Spann, Pure Politics, supra note 89, at 1982-83.
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hood continue to prove unavailing.91 As Reinhold Niebuhr noted, insular minorities cannot expect “complete emancipation from the
menial social and economic position into which the [W]hite man has
forced him, merely by trusting in the moral sense of the [W]hite
On another level, however, Hunt and Coleman suffer from a failure of context. After all, how can one decide whether the state display of the Confederate flag violates the Equal Protection Clause,
without first considering what it means for the State to display a flag?
“You might ask mockingly: ‘A flag? What’s that? A stick with a rag
on it?’ No sir, a flag is much more. With a flag you lead men, for a
flag, men live and die. In fact, it is the only thing for which they are
ready to die in masses, if you train them for it. Believe me, the
politics of an entire people . . . can be manipulated only through the
imponderables that float in thin air.”93
Symbolism is a primitive but effective way of communicating ideas.
The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind.94
I am what you make me; nothing more. I swing before your eyes as
a bright gleam of color, a symbol of yourself.95
In the collection of the Staten Island Historical Society, there is a
thirty-four-star American flag that has an interesting, if apocryphal,
history. According to legend, during the period of the Civil War, a
Confederate sympathizer made the mistake of hanging a Confederate
flag from the window of the Staten Island boarding house where he
was staying. An angry mob quickly gathered, forcibly removed the
Confederate flag, and threatened to burn the house to embers unless
91. For example, in 2001, a referendum was put to the voters in Mississippi on removing the
Confederate emblem from the state flag. The removal was easily defeated, with only thirty-five
percent of voters supporting the removal. At the time, Mississippi was thirty-six percent Black.
Nicholas Dawidoff, Mr. Washington Goes to Mississippi, N.Y. TIMES, Oct. 19, 2003, at 48.
POLITICS 252 (1932).
93. Theodore Herzl, regarded as the founder of modern Zionism, wrote these words to a
(1995) (omission in original) [hereinafter GOLDSTEIN, FLAG DESECRATION].
94. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943) (Justice Jackson holding
unconstitutional compulsory flag salutes in public schools).
95. Richard Lowe, Are We Flagging? BRISTOL EVENING POST, Apr. 19, 2003, at 3 (quoting
Franklin L. Kane, Secretary of the Interior, on Flag Day, 1914).
Howard Law Journal
its occupants raised a Union flag in its place before nightfall. Having
no Union flag on hand to raise, the landlord and tenants hurriedly
began to sew one, using whatever cloth they could find. Their efforts
paid off. Just as night was falling, they draped a Union flag from the
window. The mob, satisfied, moved on, and the boarding house was
What was striking about this story was its similarity to the Biblical
story of Passover. The Union flag, in the story, becomes the functional equivalent of lamb’s blood smeared on a door, a sign of allegiance, something that permits safe passage, and at the same time
signifies to whatever pestilence, plague, or mob that happens to be
about to move on, to pass over.97
Examples of the American flag having this almost talismanic effect are legion. Not surprisingly, however, these examples begin with
the Civil War. Although not commonly known, the public’s adoption
of the flag as iconic did not begin on June 14, 1777, when the Continental Congress approved the stars-and-stripes design for the American flag,98 but eighty-five years later, when the Civil War began.99
96. History Detectives (PBS television broadcast, Aug. 2003); see also Historic Flag, STATEN
ISLAND REG., Aug. 26 - Sept. 1, 2003, available at
221&edition=55 (last visited Sept. 13, 2004).
97. See generally Exodus 12:1-51 (describing how the Israelites smeared lamb’s blood on
their doors as a sign to the Lord to pass over their houses when He smote the first born of the
98. The resolution passed by Congress read simply: “RESOLVED: That the Flag of the
United States be thirteen stripes, alternate red and white: that the Union be thirteen stars, white
in a blue field, representing a new constellation” J. CONT. CONG. VIII, 464; ROBERT PHILLIPS,
ABUSES]. From the legislative record, it does not appear that Congress made any provision for
the making of new flags for its militia, or notified the militia of its action. FREDERICK C. HICKS,
THE FLAG OF THE UNITED STATES 100-03 (2d. ed. 1926). [hereinafter HICKS, FLAG OF THE U.S.];
see generally PHILLIPS, USES AND ABUSES, supra, at 40-42.
The year prior to its adoption of the “Stars and Stripes” design, Congress passed a resolution adopting as the official flag what is commonly known as the Grand Union flag. Although
the Grand Union flag also bore thirteen stripes, the canton displayed the Union Jack—from the
flag of England—rather than a constellation of stars. Indeed, that meaning is not immanent in a
flag is evidenced by the reaction of British and Loyalist soldiers upon first seeing the Grand
Union flag in Charlestowne, Massachusetts in 1776. Seeing that the flag incorporated the Union
Jack, the British and Loyalist soldiers interpreted the flag as a sign of surrender. WILLIS
NATIONAL FLAG]. As George Washington wrote to his friend Colonel Joseph Reed:
“[F]arcical enough, we gave great Joy to them (the Red Coats I mean) without knowing
or intending it, for on that day . . . we had hoisted the Union flag in compliment to the
United Colonies, but behold! It was received in Boston as a token of the deep Impression [the King’s warning] had made upon us, and as a signal of Submission—so we
learn by a person out of Boston last night—by this time I presume they begin to think it
strange that we have not made a formal surrender of our Lines.”
ALFRED MORTON CUTLER, THE CONTINENTAL “GREAT UNION” FLAG 9 (1929) (quoting Washington’s letters).
[VOL. 48:121
Indeed, between 1777 and the outbreak of the Civil War, the flag was
displayed almost exclusively on federal government buildings, naval
ships, and forts, and as flag historian Robert Philipps has noted, regarded as “peculiarly governmental property.”100 The flag was
neither unfurled over schools, nor displayed outside homes. As one of
the directors of the Betsy Ross house in Philadelphia stated, “it would
have been unthinkable to fly an American flag at a private home. It
simply was not done.”101 Similarly, cultural historian Wilbur Zelinsky
has noted: “During its early career, the national flag was remarkably
unimportant to the citizenry at large.”102
The change in attitude about the American flag, rather, and its
metamorphosis into a totemic symbol, was the result of the outbreak
of the Civil War; specifically, by Confederate troops firing on the
American flag-bedecked Fort Sumter, in South Carolina.103 As Robert Justin Goldstein noted, “‘all at once the people of the Northern
States and the Union discovered that there was an American Flag and
towns and villages, cities and county hamlets blossomed full-bloom
with a most gorgeous display of the Red, White and Blue.’”104 As
another flag historian noted:
99. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 3-4. This is not to suggest that the
American flag did not enjoy brief periods of popularity prior to the Civil War. For example,
following England’s unsuccessful attack on Baltimore, Maryland on September 13, 1814, Francis
Scott Key wrote the Star-Spangled Banner, which in turn sparked public interest and pride in the
flag. After the close of the war, however, the song lost its popularity, as did the flag. Both the
song and the flag regained their popularity following the outbreak of the Civil War. JOHNSON,
THE NATIONAL FLAG, supra note 98, at 75-77.
100. PHILLIPS, USES AND ABUSES, supra note 98, at 58.
101. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 4. Just as America’s idolatry of the
flag can be traced to the Civil War, so can the story of the flag’s creation by Betsy Ross. The
idea of Ross as “the mother of our country” began with her grandson William J. Canby who, in
an address before the Pennsylvania Historical Society in 1870, claimed that that when he was a
child, his grandmother informed him that she had created the first flag after being visited by
George Washington. Scholars have since questioned this claim, given the absence of any mention of her in connection with the flag in Congressional records, Washington’s diary, or any other
Revolutionary documents. For a discussion generally of this creation myth, see HICKS, FLAG OF
THE U.S., supra note 98, at 16-17; JOHNSON, THE NATIONAL FLAG, supra note 98, at 38-42.
102. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 4. Along these lines, it is interesting
to contrast the painter Gilbert Stuart’s pre-Civil War portraits George Washington (1795-96),
John Adams (1800-15), James Madison (1805), James Monroe (1818), Thomas Jefferson (180507), Paul Revere (1813) and Chief Justice John Jay (1794), in which flags are absent, with Emanuel Leutze’s famous painting Washington Crossing the Delaware (1851) depicting Washington
leading the attack on Hessians at Trenton on December 25, 1776. In Leutze’s painting, an anachronistic American flag figures prominently.
104. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 5 (quoting an 1896 Connecticut
Sons of the American Revolution report).
Howard Law Journal
The fall of Sumter created great enthusiasm throughout the loyal
states, for the flag had come to have a new and strange significance . . . One cry was raised, drowning all other voices—“War!
war to restore the Union! war to avenge the flag! . . .”
When the stars and stripes went down at Sumter, they went up
in every town and county in the loyal states. Every city, town and
village suddenly blossomed with banners. On forts and ships, from
church-spires and flag-staffs, from colleges, hotels, store-fronts, and
private balconies, from public edifices, everywhere the old flag was
flung out . . . .
The demand for flags was so great that the manufacturers could
not furnish them fast enough. Bunting was exhausted and recourse
was had to all sorts of substitutes. In New York, the demand for
flags raised the price of bunting from [$4.75] a piece to [$28.00].105
The flag, following the outbreak of war, thus became a symbol
around which loyalists rallied.
At a flag raising ceremony that attracted 100,000 people at Union
Square in New York City on April 20, 1861, the tattered remnants of
the Fort Sumter flag were placed in the hands of a statute of George
Washington; throughout the war, this relic was used as a fund-raising
device, and upon the recapture of Sumter in 1865, the flag was retuned and rededicated in an elaborate ceremony.106
It was during this period that the removal of one flag, namely the
Confederate flag, and the raising of another flag, the Union flag, resulted in the boarding house on Staten Island being spared.107 The
protection that could be secured by displaying the American flag continued through World Wars I and II. For example, in 1918, a New
106. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 6.
107. Far from being an isolated incident, vigilantes in Philadelphia, Pennsylvania, Trenton,
New Jersey and other cities also demanded, under threat of violence, that various businesses and
newspapers display the Union flag. Id. at 7.
Of course, there are other nineteenth-century examples of flags providing protection. During the height of a contested presidential election in Mexico, for example, a mob converged on
the U.S. embassy in search of Spaniards seeking sanctuary there, and shots were fired. The U.S.
Minister to Mexico, Joel R. Poinsett, then ordered that an American flag be unfurled from the
balcony. According to legend, as Poinsett stood below the flag and proclaimed its protection for
all in his household, the shouting ceased, guns were lowered, and the mob retreated. 1 GEORGE
children’s story from the nineteenth century in which:
[T]he flag mysteriously saves a boy named Joe trapped in a burning house on the
Fourth of July—the flagpole bends over to him when he finds himself cut off on the
second story; he takes hold of the banner, pulls himself out of the blazes, and shimmies
down to safety.
SCOT M. GUENTER, THE AMERICAN FLAG 1777-1924 111 (1990); see also J. William Fosdick, The
Studlefunk’s Bonfire, in ST. NICHOLAS 23 (1986).
[VOL. 48:121
York woman was arrested for removing an American flag that a
neighbor had placed in her window and replacing it with a German
flag while declaring, “To hell with the American flag. I want my own
flag.”108 Similarly, in 1930, a mob of 700 local residents and Ku Klux
Klan (“KKK”) members confronted two women who ran a Communist children’s camp in Van Etten, New York, and demanded that they
hoist an American flag. When the women refused, the mob seized
them and brought them before a judge, and flag desecration charges
were filed. Following trial, the judge sentenced the two women to
ninety days in prison each, declaring that their sentences were intended “as a warning to Communists all over the United States that
they could not trifle with the American flag or teach un-Christian
That having the correct flag was essential to protection is perhaps
best demonstrated when one considers the trade unions and striking
workers that sought recourse in the American flag during the early
part of the twentieth century. Strikers during this period routinely
carried or marched behind American flags to show their bona fides as
patriotic Americans and to ward off physical attacks by those who
perceived striking as un-American.110 During this same period, being
without a flag often led to ostracism and violence. Hundreds of Jehovah’s Witnesses were expelled from school for refusing to salute the
flag because their refusal, on religious grounds, was viewed as evidence of insufficient patriotism,111 expulsions which the Supreme
Court initially deemed constitutional, on “national security” grounds,
108. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 81.
109. Id. at 90.
110. Although strikers during this period routinely carried or marched behind flags to show
their bona fides as patriotic Americans and ward off physical attacks by those who perceived
them as un-American, the flag did not insulate them completely in this regard.
[D]uring a bitterly fought coal strike in Colorado in 1914, strikers carried a flag when
they greeted the well-known labor agitator “Mother” Jones at a railroad station in January. After she was arbitrarily jailed strikers marched behind a flag to demand her
freedom, only to be attacked by mounted troops with guns and sabers drawn, an event
that led to headlines in the labor press such as, “Woman carrying American flag
knocked down with butt of gun and flag torn from her hands by militiamen.” During a
textile strike in Passaic, New Jersey, which erupted amidst the Red Scare of 1919, strikers held a mammoth parade on March 17, led by army veterans holding American flags.
And according to a standard history of the labor movement in Colorado, striking miners who were shot at by state police in 1927, with the result that five men were killed
and another critically wounded, had marched “with the front rank carrying American
flags, as was customary.”
GOLDSTEIN, FLAG DESECRATION, supra note 93, at 88.
VS. THE FLAG 9-10 (1973).
Howard Law Journal
in Minersville School District v. Gobitis.112 It is far from an exaggeration to note that the Supreme Court’s decision sanctioned the continued expulsion of students, and implicitly fostered the harassment and
mob attacks of Jehovah’s Witnesses,113 which continued unabated until 1943, when the Supreme Court reversed itself and struck down
compulsory flag salute laws in West Virginia Board of Education v.
Barnette.114 That the flag signified protection is also evident in popular culture during this period. In December 1940, Marvel Comics created Captain America.115 A year later, a month before the bombing
of Pearl Harbor, DC Comics created Wonder Woman.116 Both
superheroes, it can be argued, are anthropomorphisms of the American flag.117 Their costumes are reconstructed flags. Their charge: To
protect America from its enemies.
The flag as a protector continued during the Vietnam era, when
citizens used flags to align themselves with the Government and police, and separate themselves from anti-war activists.118 During this
112. 310 U.S. 586, 595-96 (1940).
113. For example, in 1940, police officials in Richwood, West Virginia “forced a group of
[Jehovah’s] Witnesses to swallow large doses of castor oil [and] paraded them roped together
before a large crowd . . . [which] attempted unsuccessfully to force them to plead allegiance to
the flag.” GOLDSTEIN, FLAG DESECRATION, supra note 93, at 94.
114. 319 U.S. 624, 641-42 (1943).
115. Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2d Cir. 2002).
116. Hank Stuever, Keeping Wonder Woman in Shape, L.A. TIMES, May 23, 2001, at E4.
117. By contrast, the artist Rene Cox, in her Raje series (1998), photographs herself as a
Black superhero battling urban blight and villains. Cox also costumes herself in the colors of a
flag, but chooses the red, yellow and green colors of the Black solidarity flag. In a similar vein, a
South Carolina rap group has incorporated into its act what it calls the “New South” flag—the
Confederate flag redone in Black solidarity colors. See Mike Smith, Banner Combines Confederate Flag, Colors of Black Liberation, ATLANTA J. CONST., Apr. 22, 1994, at A4.
118. By contrast, many in the Civil Rights movement read the flag as reinforcing the racial
hegemony I argue the Confederate flag now communicates. The American flag, during this
period, symbolized to many African Americans a lapse in protection. Thus, during a civil rights
demonstration in Cordele, Georgia, in March 1966, protesters ripped down an American flag
from the Cordele courthouse, prompting Governor Carl Sanders to order state police to protect
the flag and prompting the KKK to hold a counter demonstration during which the Grand
Dragon admonished White Georgians, “If you can’t protect this flag we will bring enough
Klansmen to do it for you.” GOLDSTEIN, FLAG DESECRATION, supra note 93, at 157.
The following year Sidney Street, a forty-seven-year-old African American bus driver who
had been awarded a Bronze Star for his heroism during World War II, committed an equally
political act. While listening to the radio in his Brooklyn apartment, Street heard a report that
James Meredith, a civil rights leader, had been shot by a sniper in Mississippi. Saying to himself,
“They didn’t protect him,” Street “took from his drawer a neatly folded, [forty-eight]-star American flag which he formerly had displayed on national holidays,” took it to a street corner, and
publicly burned it, exclaiming that if “they let that happen to Meredith, we don’t need an American flag.” Street v. New York, 394 U.S. 576, 578 (1969). The Supreme Court overturned his
conviction for violating New York’s flag desecration law (which also outlawed contemptuous
remarks about the flag) upon the ground that the trial record did not preclude the possibility
that his conviction was based solely on his remarks, rather than the flag burning. Id. at 594.
[VOL. 48:121
period, hundreds of thousands of Americans pasted flag decals on
their windows, and flag stickers on their car bumpers; for example, in
1969 and 1970, over 70 million flag decals were distributed, including
as part of commercial promotions through magazines, gas stations,
banks, and civil organizations.119 The necessity of displaying the flag
was even noted by a cartoon in the October 24, 1970 issue of the New
Yorker. The cartoon depicted an executive telling an employee,
“‘Naturally, X, the company doesn’t care whether its employees have
little flags on their desks or not. It’s purely a voluntary thing. We just
wondered why you happened to be the only person who hasn’t got
one.’”120 The idea of the flag as protector has only continued since
then. We have seen it most obviously, since September 11, 2001 in
Arab-Americans literally cloaking themselves in the American flag121
to ward against everything from job discrimination,122 to racial profiling,123 to harassment,124 to violence.125
119. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 157.
120. Id. (quoting a cartoon from NEW YORKER, Oct. 24, 1970, at 56).
121. See, e.g., Francis X. Donnelly, Metro Arabs, Muslims Suffer Harassment, Hatred, DETROIT NEWS, Nov. 4, 2003, at 1 (Arabs and Muslims have “wrap[ped] themselves in the American flag, hoping that its presence in their homes and workplaces send the message that they are
not terrorists”); Beth J. Harpaz, Times Are Tense for Arab Americans Even in New York a City
of Immigrants, Sees Incidents of Backlash, CHARLOTTE OBSERVER, Sept. 23, 2001, at 3A (profiling a Muslim woman who “wears an American flag pin—partly to show solidarity, but partly as a
defensive measure”); David A. Markiewicz, The Year That Changed America: Dearborn, Michigan, Arab Enclave Wrestles with Identity, ATLANTA J., Dec. 30, 2001, at A18 (in “Arab-American
neighborhoods, American flags and patriotic messages adorn shop windows, front lawns and
automobiles” in a public assurance of patriotism); Thane Peterson, The Gift of Diversity, the
Need for Tolerance, BUSINESSWEEK ONLINE, Sept. 18, 2001 (“Arab-American store owners are
threatened with vandalism if they don’t display American flags”), at http://www.businessweek.
com; Emily Sweeney, Backlash Felt Far from Ground Zero, Anti-Muslim Bias Focus of Discussion, BOSTON GLOBE, June 16, 2002, at 4 (Muslim responded to harassment by taping “American
flags up in the windows of his store.”).
AND DISCRIMINATION AGAINST ARAB AMERICANS: THE POST-SEPTEMBER 11 BACKLASH 7 (reporting over 800 cases of employment discrimination against Arab-Americans following September 11, 2001, a four-fold increase over previous annual rates), available at (last
visited Oct. 6, 2004).
123. Id. (reporting over eighty cases of discriminatory removal of Arab-American and Muslim passengers from aircrafts after boarding, but before takeoff, following September 11, 2001);
see also Donnelly, supra note 121 (“Arab-Americans have a name for the offense they seem to
be punished for: Flying While Brown.”).
at, reports 481 Islamic bias incidents in 2001, an increase of
more than 1600% over the previous year, during which 28 such incidents occurred, FED. BUREAU OF INVESTIGATION & U.S. DEP’T OF JUSTICE, CRIME IN THE UNITED STATES 2000, HATE
CRIME 60 (2000), available at (last visited Sept. 26,
2004); see also Donnelly, supra note 121 (Complaints received by Council on American-Islamic
Relations tripled after September 11, 2001, and survey of 945 Muslims found that 48% believed
the quality of their lives had declined since September 11, 2001.).
Howard Law Journal
In addition to signifying protection, the flag also marks territory,
asserts power and control, extends and delineates borders. Think of
Robert Peary planting the American flag at the North Pole,126 or Neil
Armstrong planting a waving flag127 on the moon. Think of the Joe
Rosenthahl photograph of soldiers raising the flag on Mt. Suribachi
during the battle for Iwo Jima in February 1945, marking the first Japanese soil captured by the Americans, which photograph was recently
replicated after the fall of the World Trade Center towers, quite literally to reclaim control and power over the site. For a more recent
example, think of the debacle that resulted in April 2003, when American soldiers in Baghdad, before toppling a statue of Saddam Hussein,
first draped his head in the American flag. The American flag was
quickly removed, and replaced with an Iraqi flag, but sparked worldwide controversy and condemnation nonetheless, and prompted the
Army to subsequently issue a statement barring any display of the
American flag on vehicles, buildings, statues, or command posts.128
The controversy was the result of the flag being such a universal symbol of occupation, imperialism, 129 colonization,130 and control.131
125. Executive Summary to AM-ARAB ANTI-DISCRIMINATION COMM, supra note 122, available at (last visited Oct. 5, 2004) (section entitled Physical and Psychological Attacks) (reporting over 700 violent incidents targeting
Arab Americans, or those perceived to be Arab Americans, Arabs and Muslims in the first nine
weeks following the attacks, and approximately 165 violent incidents from January 1, 2002 to
October 11, 2002).
126. Although Peary is generally credited with being the first explorer to reach the North
Pole, recent scholarship suggests that in fact his companion, Matthew Henson, an African American, reached the North Pole forty-five minutes ahead of Peary. When Peary finally caught up
with Henson, Henson greeted him by saying, “I think I’m the first man to sit on top of the
world.” Henson recalled that this angered Peary, who responded by “fasten[ing] a flag to a staff
and plant[ing] it firmly on top of his igloo. Anna Brendle, Profile: African-American North Pole
Explorer Matthew Henson, NAT’L GEOGRAPHIC NEWS, Jan. 15, 2003, available at http://news. (last visited Oct. 5, 2004).
127. In fact, the planting of a “waving” flag on the moon was a constructed illusion. Because
the atmosphere on the moon is airless, a specially designed brace was created to give the impression that the flag was blowing in the wind. HARRY HURT III, FOR ALL MANKIND 180-81 (1988).
128. Bernard Weinraub, After Euphoria, U.S. Flag Goes into Hiding in Iraq, INT’L HERALD
TRIB., Apr. 11, 2003, at 5.
129. The language flag historian Willis Johnson uses in describing the flag at new frontiers is
telling. For example, Johnson describes Commodore Matthew Calbraith Perry’s carrying the
flag into the harbor of Yeddo, Japan as symbolically opening “that hermit empire to rational
intercourse with the civilized world.” JOHNSON, THE NATIONAL FLAG, supra note 98, at 88.
Johnson also becomes effusive in describing Henry Morton Stanley’s carrying of the flag into the
“torrid jungles of Equatorial Africa . . . the heart of the dark continent” to “rescue” the explorer
David Livingston:
There have been few more interesting scenes than that of the meeting of two [W]hite
men, amid a multitude of Black natives in the African wilderness, when Stanley, carrying the Stars and Stripes in one hand and raising his hat with the other inquired: “Doctor Livingston, I presume?” Three years later, Stanley went to Africa again, and made
his way from the East Coast to the Great Lakes, thence to the upper reaches of the
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Perhaps, the only flag that suggests the absence of control is the white
flag of surrender, the flag wiped clean, its colors erased.
The flag can also be read as signifying a utopian idea of the status
quo. As the art history scholar John Yau notes in an essay on Jasper
Johns’ seminal Flag painting:
[A] flag is a symbol that helps citizens believe they stand outside
time and change. It sums up a moment of resolution in a collective
history, as if that moment is neither mythically narrative nor subject
to disruption or revision. Like most flags the American flag represents both a belief in unity of purpose and the existence of a common social reality. It is a palpable symbol which proposes that the
world will go on being the same, and that its existence within the
world as a meaningful object is guaranteed.132
In this sense, the American flag can be read as an assurance of
stability, as a promise to ensure an “American way of life.” Stated
differently, in protecting, the flag also preserves—although what it
preserves may be an idealized version of what exists. Instead of cinema verite, the American flag promises Leave It To Beaver133 and
Congo, and so down that mighty river to its mouth. Thus, the Stars and Stripes was the
first flag ever to be borne down from the Indian Ocean to the Atlantic; the first to
follow the thitherto unknown course of the Congo, and the pioneer in opening the way
for the Congo Free State.
Id. at 89.
130. That America was colonized with a flag, at least in our collective mythology, perhaps
goes without saying. As described by Christopher Columbus’s son:
Columbus dressed in scarlet first stepped on shore from the little boat which bore him
from his vessels, bearing the royal standard of Spain emblazoned with the arms of Castile and Leon in his own hand, followed by the Pinzons in their own boats each bearing
a banner of the expedition, viz: a white flag with a green cross, having on each side the
letters F and Y surmounted by golden crowns.
STATES 110-11 (1872)
131. One could argue that it was the fear of control, or at least symbolic control, that
prompted laws forbidding the display of red flags during the Red Scare of the early twentieth
century. See generally Elmer M. Million, Red Flags and the Flag, ROCKY MOUNTAIN L. REV.
1940-1941, at 13, 47-60. The Supreme Court was called upon to address the constitutionality of
these laws in Stromberg v. California, 283 U.S. 359 (1931), which involved the conviction of
nineteen-year old summer camp counselor who, in addition to teaching the children history and
economics, taught “class consciousness” and “the solidarity of the workers,” and routinely led
the students in a pledge of allegiance ‘to the worker’s red flag, and to the cause for which it
stands; one aim throughout our lives, freedom for the working class.” Id. at 362. Concluding
that the law was unconstitutional under the First Amendment, the Court reversed Stromberg’s
conviction. Id. at 369-70.
133. Leave It To Beaver (CBS television broadcast 1957-1959, NBC television broadcast
1959-1963); see also Peter Orlick, Leave it to Beaver, at
htmlL/leaveittob/leaveittob.htm (last visited Sept. 26, 2004).
Howard Law Journal
Happy Days.134 Instead of Edward Hopper, the flag promises Norman Rockwell.135
It is this idea of the flag exemplifying protection, and power, and
stasis that perhaps explains the visceral reaction many Americans
have not just to the burning or mutilation of the flag, but to the disregard of the flag. Examples include the rash of flag burnings during the
Vietnam era, including a highly public and publicized flag burning in
Central Park in April 1967, which prompted Congress to pass the first
federal flag desecration law in 1968; the outrage that erupted following an art exhibit by “Dred” Scott Tyler, which included a flag on the
floor and an invitation to patrons to step on it;136 and Republican
Presidential candidate George H.W. Bush’s use of the flag during the
1988 campaign to portray himself as patriotic, and to impugn the patriotism of his democratic rival Michael Dukakis. During his campaign, Bush led his audiences in recitals of the pledge, surrounded his
campaign stops with flags, and conducted campaign stops in Flag City,
U.S.A. and at a flag factory.137 At the same time, citing Dukakis’s
veto as Governor of Massachusetts against a law requiring daily recitation of the Pledge of Allegiance to the flag, and ignoring the Supreme Court’s decision in Barnette, Bush portrayed Dukakis as
unpatriotic.138 Bush invoked the flag so often that Time magazine
Five weeks after the Republican convention, the public can be certain of [only] two things about George Bush: he loves the flag, and
he believes in pledging allegiance to it every morning. But some
voters may wonder what he would do with the rest of his day if he
became president.139
A firestorm of protest also erupted after the Supreme Court reversed the conviction of Gregory Lee Johnson in Texas v. Johnson.140
Johnson was convicted for violating Texas’s flag desecration law by
burning a flag outside the 1984 Republican National Convention as
134. Happy Days (ABC television Broadcast 1974-1984); see also Happy Days, at http:// (last visited Sept. 27, 2004).
135. Indeed, it is this sanitized version of America that another artist, Faith Ringgold, critiques in her quilted version of the American flag, Flag for the Moon: Die Nigger 1967-69, in which
the word “DIE” can be seen dimly against the stars, and the silver stripes spell out the word
136. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 201-02.
137. Whitney Smith, The American Flag in the 1988 Presidential Campaign, FLAG BULL. 128
138. Id.
139. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 201.
140. 491 U.S. 397 (1989).
[VOL. 48:121
part of a larger protest by hundreds of demonstrators. On appeal, the
Supreme Court overturned his conviction, finding Texas’s flag desecration law, and by implication flag desecration laws in general, unconstitutional under the First Amendment. The protest that followed
the Supreme Court’s decision was immediate. Within a week of the
decision, President Bush proposed a constitutional amendment to
overturn the decision, and thirty-nine separate resolutions were sponsored in the House and Senate calling for such an amendment.141
Polls showed that seventy-one percent of Americans favored a constitutional amendment, and within months of the decision, 1.5 million
Americans had signed a petition in support of an amendment.142 In
the end, Congress responded by passing the Flag Protection Act of
1989 (FPA),143 rather than seeking a constitutional amendment.144 Instead of putting an end to the flag debate, however, the FPA spurred
the largest wave of flag burning incidents in American history, and a
flurry of arrests.145 On March 13, 1990, U.S. Solicitor General Kenneth Starr invoked the mandatory and expedited review provision of
the FPA to seek Supreme Court review, which the Supreme Court
accepted in cases consolidated and known as United States v. Eichman.146 Notwithstanding the FPA’s allegedly neutral content, the Su141. The response to the Supreme Court’s decision in Texas v. Johnson was, for the most
part, not only emotional, but highly vitriolic, as Goldstein has noted.
Representative Ron Marlenee of Montana termed the decision “treasonous” and, referring to the six marines depicted in the Iwo Jima Memorial, declared, “These six
brave soldiers were symbolically shot in the back by five men in [B]lack robes.” The
Chairman of the South Carolina Joint Veterans Council called on Americans to write to
their elected officials to demand that “this crap” be stopped, while conservative columnist Patrick Buchanan termed the decision an “atrocity” and the Court a “renegade
tribunal” to which the American people should respond by putting “a fist in their face.”
The New York Daily News termed the Johnson decision “dumb” and declared it put the
Court in “naked contempt” of the American people and displayed “pompous insensitivity to the most beloved symbol of the most benevolent form of government ever to
appear on this Earth”; it also published a cartoon showing a figure resembling President Bush pouring gas on a pile of law books forming a pyre below five bound judges
who were bearing copies of the “flag case,” with the caption, “Anybody got a match.”
GOLDSTEIN, FLAG DESECRATION, supra note 93, at 206. Determined not to be outflagged, Democrats joined in the “fusillade of pro-flag rhetoric,” matching the Republicans “word for word.”
Robin Toner, Democrats, in a Flurry of Bills, Seek to Recapture the Flag Issue from the Foe, N.Y.
TIMES, June 26, 1989, at B6; see also GOLDSTEIN, FLAG DESECRATION, supra note 93, at 208.
142. Legislators Support Flag Move, N.Y. TIMES, July 4, 1989, at 6.
143. The Flag Protection Act was viewed as neutral since it provided penalties of up to one
year for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or
ground, or tramples upon any flag of the United States,” without regard to the actor’s intent.
Pub. L. No. 101-131, 103 Stat. 777 (amending 18 U.S.C. § 700).
144. GOLDSTEIN, FLAG DESECRATION, supra note 93, at 208.
145. Id. at 208.
146. 496 U.S. 310 (1990).
Howard Law Journal
preme Court struck down the FPA as a clear violation of the First
That flags signify protection, power, and stasis is at the heart of
other recent controversies over displays of the flag. The controversy
surrounding the display of the rainbow flag of lesbian and gay pride is
one example. In Columbus, Ohio, a battle between long-term residents, mostly Black and working class, and newer residents, mostly
White and gay and attempting to gentrify the neighborhood, was exemplified by flag wars. Young gay men and women, after moving to
the neighborhood, began to hang rainbow flags. Many Black residents, in response, began to hang Black solidarity flags.
This battle for control and power was thus replicated in a battle
of flags, a battle documented in the film “Flag Wars,” recently shown
on the PBS Network.148 More recently, when Orlando, Florida hung
rainbow flags, just temporarily, to celebrate Gay Pride Month, Pat
Robinson claimed that Orlando was bringing about “the destruction
of your nation. It’ll bring about terrorist bombs; it’ll bring earthquakes, tornadoes and possibly a meteor.”149 In response to the controversy, Orlando officials banned the future display of any flags.150
More recently, the KKK elected to stage a rally at the City Hall
in Cleveland, Ohio because the city had flown a rainbow flag there,
again temporarily, for the Gay Pride Month in June. Apparently hoping to kill two birds with the same stone, the KKK also elected to
stage the rally on a Saturday, to protest Rosh Hashana. Prior to the
rally, the KKK publicly announced that it planned to burn both the
rainbow flag and an Israeli flag.151
As another example, think back to the protests that erupted a few
years ago when, on the penultimate episode of Seinfeld, Kramer accidentally set a Puerto Rican flag on fire, and then attempted to put out
147. Id at 319. Championing flag desecration laws remains a way to appeal to segments of
the population. General Wesley K. Clark, in campaigning for the Democratic nomination for
president this past year, told a crowd on Veteran’s Day that he supported a constitutional
amendment that would make it illegal to desecrate the American flag, drawing applause from
the crowd. Edward Wyatt, Clark Tells Veterans He Backs Amendment on Flag Desecration, N.Y.
TIMES, Nov. 12, 2003, at A18.
148. POV: Flag Wars (PBS television broadcast, June 17, 2003).
149. Thomas B. Edsall, Forecasting Havoc for Orlando; on TV, Robertson Says Display of
Gays’ Flags Invites Disaster, WASH. POST, June 10, 1998, at A11.
150. Sherri M. Owens, New Flag Question Is About Flying Old Glory, ORLANDO SENTINEL,
June 24, 1998, at D1.
151. Mathew Marx, Police Prepare for KKK Rally, Counter Rally on Busy Sunday, COLUMBUS DISPATCH, Sept. 10, 1999, at 3B.
[VOL. 48:121
the fire by stomping on the flag.152 Even more recently, a school district’s flying of the purple-and-white flag of the Iroquois Confederacy,
in recognition of the members of the five tribes who comprised
twenty-three percent of the student body, was met with protests and
petitions from other students and parents, who viewed the flying of
the Iroquois flag as a ceding of control.153 Of course there is the controversy surrounding state displays of the Confederate flag.154
The typical debate about state displays of the Confederate flag
turns on two readings of the flag. On the one side, there are those
who see the flag as an emblem of Southern pride, as recognition of the
many young men who fought and died as Confederates during the
Civil War, as a recognition of tradition.155 On the other side, there are
those who see the flag as a reminder of slavery, or as a wistful reminder of the good old days when cotton was king.156 Framed in this
manner, one is either a “survivor” or a “victimizer.”157
152. The episode sparked a fury of protests, including condemnation from Governor Pedro
Rossello of Puerto Rico, and resulted in NBC issuing a formal apology and withdrawing the
episode from future syndication. Herb Boyd, ‘Seinfeld’ Inflames Group of Puerto Rican Protesters, N.Y. AMSTERDAM NEWS, May 27, 1998, at 10; Lloyd Grove & Blaine Harden, ‘Seinfeld’
Parade Steps on Some Toes, WASH. POST, May 9, 1998, at D1. Miguel Perez, Seinfeld’s Ethnic
Insult, RECORD (Northern, N.J.), May 13, 1998, at A3; Puerto Rico Blasts Seinfeld, TORONTO
STAR, May 12, 1998, at E6.
153. Michelle York, School’s New Iroquois Flag Stirs Protests, N.Y. TIMES, Nov. 17, 2003, at
154. For example, former Vermont Governor Howard Dean, in campaigning for the Democratic nomination of president, was recently excoriated by rivals for suggesting that the Democrats regain disaffected Southern voters by speaking to “guys with Confederate flags in their
pickup trucks.” See, e.g., Jodi Wilgoren, In a ‘Jam,’ Dean Apologizes for Remarks on Rebel Flag,
N.Y. Times, Nov. 6, 2003, at A26. As Dean later conceded, his statement set off a “huge contretemps,” notwithstanding the context. Ultimately, Dean was forced to issue an apology. Richard
L. Berke, What You Say Can’t Hurt You Until It Can, N.Y. TIMES, Nov. 9, 2003, at Wk.3.
155. A former, Mississippi-born editor of Harpers magazine put it this way:
In modern-day America, there is too much fashionable tampering with authentic tradition. At the peril which such contentions evoke, I argue that this juggling with expressions of the past is reminiscent of the way the communists are eternally rewriting
history, obliterating symbols with each new guard. Finally, one could make a strong
case that Dixie and the flag and the names “Ole Miss” and “Rebels,” deriving from old
suffering and apartness and the urge to remember, are expressions of a mutual communal heritage, [W]hite and [B]lack, springing from the very land itself and its awesome
strengths and shortcomings. As a historian friend of mine once remarked, “There’s
nothing wrong with the Confederate flag. The Civil War was fought over more than
in original).
156. See, e.g., Forman, Jr., supra note 34, at 513 (arguing that the Confederate flag “glorifies
and memorializes [the] brutal regime [of chattel slavery]”).
157. See J.M. Balkin, Transcendental Deconstruction, Transcendental Justice, 92 MICH. L.
REV. 1131 (1994).
Howard Law Journal
A more contextualized approach, however, reveals the State display of the flag as a sign of protection, of control, of allegiance, of
stasis.158 Put differently, the Confederate flag, when displayed by the
Government, declares the state as belonging, primarily, to a particular
group,159 and declares recognition of a duty to protect that group.160
Its message need never be articulated, but its meaning is evident.
Indeed, if one has any doubt of the message the state display of
the Confederate flag sends, one need only imagine the message that
would be communicated by a state or local authority displaying, in
addition to the American flag, a flag depicting a Swastika.161 Although a swastika is an extreme example, the display of less incendiary flags also makes the point. Were Staten Island, New York to raise,
in addition to the American flag, an Italian flag, for example, it would
send not only a message of Italian pride, but also the message that
Staten Island is Italian, belongs to the Italians, and is for Italians. It
would thus suggest a hierarchical positioning of Italians at the top of
its various constituents. Similarly, were the Bronx to raise, say, a
158. For example, in his book on southern tradition, the historian Eugene D. Genovese laments the “ ‘modernization’ that is transforming the South” and has resulted in what he perceives to be the “neglect of, or contempt for, the history of southern [W]hites, without which
some of the more distinct and noble features of American national life must remain incomprehensible.” EUGENE D. GENOVESE, THE SOUTHERN TRADITION: THE ACHIEVEMENT AND LIMITATIONS OF AN AMERICAN CONSERVATISM x-xi (1994). The Confederate flag functions as a
rearguard against such modernization. See also Forman, supra note 34, at 506 (noting that the
Confederate flag “also stands for a history of resistance to change in the twentieth century”).
159. Akhil Reed Amar, Civil Religion and its Discontents, 67 TEXAS L. REV. 1153, 1166 n.76
(1989) (reviewing SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988)) has noted, Confederate
flags “all too easily exclude large numbers of citizens, most notably [B]lacks.”
160. Indeed, one can read the state display of the Confederate flag as a silent ratification of
the principles articulated in the Confederate Constitution. For a discussion of the Confederate
Constitution and its explicit guarantee to maintain the underclass status of Blacks, see MARSHALL L. DEROSA, THE CONFEDERATE CONSTITUTION OF 1861: AN INQUIRY INTO AMERICAN
CONSTITUTIONALISM 1-5 (1991) (summarizing creation and extirpation of Confederate Constitution); WILLIAM L. MILLER, ARGUING ABOUT SLAVERY: THE GREAT BATTLE IN THE UNITED
STATES CONGRESS 21 (1996); Martin D. Carcieri, The South Carolina Secession Statement of
1860 and the One Florida Initiative: The Limits of a Historical Analogy and the Possibility of
Racial Reconciliation, 13 ST. THOMAS L. REV. 577, 584 (2001); Ralph Michael Stein, The South
Won’t Rise Again but It’s Time to Study the Defunct Confederacy’s Constitution, 21 PACE L. REV.
395 (2001); Tsesis, supra note 34, at 596-98. The Confederate Constitution, which was adopted
in 1861, is reprinted in EMORY M. THOMAS, THE CONFEDERATE NATION 1861-1865 307-22
161. Indeed, the swastika is considered such an incendiary symbol that its display, and the
display of other Third Reich symbols, are banned under Germany’s Constitution, with exceptions for artistic purposes. See GRUDGESETZ [GG] [Constitution] art. 5(2) (F.R.G.), translated in
CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 106 (1994); see also Jonathan Kaufman, As
Neo-Nazis Riot, Germany Still Outlaws the Swastika, BOSTON GLOBE, Feb. 4, 1993, at 1; David
E. Weiss, Note, Striking a Difficult Balance: Combating the Threat of Neo-Nazism in Germany
While Preserving Individual Liberties, 27 VAND. J. TRANSNAT’L L. 899, 928 (1994).
[VOL. 48:121
Black Power flag, it would communicate both Black pride and Black
precedence. It is perhaps by imagining other flags being displayed by
the Government that one begins to appreciate how a State’s display of
the Confederate flag reifies an antiquated racial order, renders Blacks,
and Jews, and gays, and other minorities second-class citizens.
This analysis, I hope, makes transparent the violence162 inherent
in the Eleventh Circuit’s decisions in Hunt and Coleman. Peggy Davis
uses the term “microagression “to refer to the ‘subtle, stunning, automatic, and non-verbal exchanges which are ‘put downs’ of Blacks by
offenders.’”163 She, in turn, borrows the term from psychiatry, which
defines “microagressions” this way:
“Microagressions simultaneously sustain defensive deferential
thinking and erode[ ] self confidence in Blacks . . . . [B]y monopolizing . . . perception and action through regularly irregular disruption, they contribute[ ] to relative paralysis of action, planning,
and self-esteem. They seem to be principle foundation for the verification of Black inferiority for both [W]hites and Blacks.”164
Here, the Eleventh Circuit decisions, and the state display of the
Confederate flag, are more than microaggressions. Given its
messages, the state display of the Confederate flag is more like “spiritmurder,” the term coined by Patricia Williams to refer simultaneously
to acts of racism, and the rupture of self and invisible lacerations suffered by victims of racism. As Patricia Williams has noted:
Society is only beginning to recognize that racism is as devastating,
as costly, and as psychically obliterating as robbery or assault; indeed they are often the same. Racism resembles other offenses
against humanity whose structures are so deeply embedded in culture as to prove extremely resistant to being recognized as forms of
oppression. It can be as difficult to prove as child abuse or rape,
where the victim is forced to convince others that he or she was not
at fault, or that the perpetrator was not just “playing around.” As in
rape cases, victims of racism must prove that they did not distort the
circumstances, misunderstand the intent, or even enjoy it.165
162. See Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1609 (1986).
163. Peggy C. Davis, Law as Microagression, 98 YALE L.J. 1559, 1565 (1989) (quoting Pierce,
Psychiatric Problems of the Black Minority, in AMERICA HANDBOOK OF PSYCHIATRY 512, 515
164. Id. at 1566-67 (quoting C. PIERCE, UNITY IN DIVERSITY: 33 YEARS OF STRESS 17) (unpublished manuscript 1986) (omissions and alterations in original).
165. Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as
the Law’s Response to Racism, 42 U. MIAMI L. REV. 127, 129-30 (1987).
Howard Law Journal
This is what the state display of the Confederate flag is. Nothing
In The Chronicle of the Space Traders,166 Derrick Bell weaves a
metaphorical tale to explore the limits of the Equal Protection Clause
when the inequality of a few is pitted against what I refer to as the
superequality167 of the majority. The story he tells is at once familiar
and disturbing: The arrival of 1,000 space ships on the first day of a
new year; the welcoming delegation of government officials and members of the media; the alien crew, cloaked in invisibility, sounding
“like the former President Ronald Reagan whose recorded voice, in
fact, they had dubbed into their computerized language translation
system;” and the visitors’ proffer of various bounty: “gold to bail out
the almost bankrupt federal, state, and local governments; special
chemicals that would sanitize the almost uninhabitable environment;
and a totally safe nuclear engine with fuel to relieve the nation’s
swiftly diminishing fuel resources.”168 The rub is in what the space
travelers seek in return, and in the country’s response:
The visitors wanted to take back to their home star all African
Americans [defined as all citizens whose birth certificates listed
them as [B]lack]. The proposition instantly reduced the welcoming
delegation to a bumbling disarray. The visitors seemed to expect
this reaction. After emphasizing that acceptance of their offer was
entirely voluntary and would not be coerced, they withdrew to their
ships. The Traders promised to give the nation a period of sixteen
days to respond. The decision would be due on January 17, the national holiday commemorating Dr. Martin Luther King, Jr.’s
The proposed trade, in Bell’s narrative, proves to be a temptation
not easily resisted. Congress is called into special session; state legislatures are convened; negotiations are begun:
166. Derrick Bell, After We’re Gone: Prudent Speculations on America in a Post-Racial Epoch, in CRITICAL RACE THEORY: THE CUTTING EDGE 3 (Richard Delgado ed., 1995). I first
heard this tale when Derrick Bell spoke at Columbia Law School while I was a student there.
That I remembered it almost word-for-word in subsequent years is a testament to its polemical
167. By superequality, I am referring to the type of equality advanced by Orwell’s Napoleon:
“All animals are equal, but some animals are more equal than others.” GEORGE ORWELL,
ANIMAL FARM 112 (1946).
168. Bell, supra note 166, at 3.
169. Id. at 3-4.
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[U.S.] officials tried in secret negotiations to get the Space Traders
to exchange only those [B]lacks locked in the inner-cities, but the
visitors made it clear that this was an all or nothing offer. During
these talks, the Space Traders warned that they would withdraw
their proposition unless the United States halted the flight of the
growing numbers of [B]lacks who—fearing the worst—were fleeing
the country. In response, executive orders were issued and implemented, barring [B]lacks from leaving the country until the Space
Traders’ proposition was fully debated and resolved. “It is your patriotic duty,” [B]lacks were told, “to allow this great issue to be resolved through the democratic process and in accordance with the
rule of law.”170
Legal challenges to the process itself are dismissed as “political
questions,” and those in favor of acceptance the Space Traders’ offer
dispel claims that acceptance would violate the Constitution’s most
basic protections by drafting legislation to induct all [B]lacks into special service of transportation under the terms of the Space Traders’
offer, and convening a constitutional convention to draft a constitutional amendment to validate the legislation. The proposed amendment declares: “Every Citizen is subject at the call of Congress to
selection for special service for periods necessary to protect domestic
interests and international needs.”171 Although many Americans
work hard to defeat the amendment, “given the usual fate of minority
rights when subjected to referenda or initiatives,” the outcome is all
but predetermined.
By a vote of seventy percent in favor—thirty percent opposed—
Americans accepted the Space Traders’ proposition. Expecting this
result, the government agencies had secretly made preparations to
facilitate the transfer. Some [B]lacks escaped, and many thousands
lost their lives in futile efforts to resist the joint federal and state
police teams responsible for the roundup, cataloguing, and transportation of [B]lacks to the coast.
The dawn of the last Martin Luther King holiday that the nation would ever observe illuminated an extraordinary sight. The
Space Traders had drawn their strange ships right up to the beaches,
discharged their cargoes of gold, minerals, and machinery, and began loading long lines of silent [B]lack people. At the Traders’ direction, the inductees were stripped of all but a single
170. Id. at 4.
171. Id. at 5.
Howard Law Journal
undergarment. Heads bowed, arms linked by chains, [B]lack people
left the new world as their forebears had arrived.172
I repeat Professor Bell’s Space Traders narrative here for two
reasons: First, it illustrates, in a manner that only narrative can, the
limits of Equal Protection when the interests of the majority are at
stake. Second, it dovetails with my argument about the messages
communicated by the Confederate flag. With the Confederate flag
flying in front of the South Carolina Capitol building, and incorporated in the Georgia flag, those states make clear where they would
stand should the Space Traders in fact land. In truth though, there is
no need to imagine such a fantastic scenario. Each day, Southern
states make good on the promises inherent in their display of the Confederate flag by according certain benefits to its majority citizens, and
imposing certain burdens on its minority citizens.173 It is evident in
how public services are distributed and school budgets are apportioned.174 It is evident in how justice is administered.175 It is even
evident in where dumps are placed.176
172. Id.
173. The subordination message carried in the Confederate flag was recently replayed in the
gubernatorial race in Mississippi. In campaigning, the Republican candidate, former head of the
Republican National Committee Haley Barbour, wore a lapel pin bearing the United States and
Mississippi flags, the latter of which features the Confederate battle emblem, to “encourage a
strong [W]hite turnout.” David E. Rosenbaum, Mississippi Incumbent Surprises His G.O.P. Opponent, N.Y. TIMES, Oct. 17, 2003, at A16. The candidate’s display of the flag, it can be argued,
functioned as a promise to put the concerns of White Mississippians first. See also Dawidoff,
supra note 91 (noting Barbour’s appeal to Whites, and his appearance at a function organized by
the White segregationist organization Council of Conservative Citizens to raise funds for private
academy school buses).
174. Cases challenging school financing disparity based on district wealth, which in general
correlates to racial composition, have not fared well for the most part. See, e.g., McDaniel v.
Thomas, 285 S.E.2d 156 (Ga. 1981) (dismissing school finance lawsuit in deference to Georgia
legislature); Richland County v. Campbell, 364 S.E.2d 470 (S.C. 1988) (rejecting claim that system for financing public schools based on district wealth violates state constitutional requirements for free public schools or for equal protection). On school financing inequality in general
and the racial implications, see Kenneth Fox, The Suspectness of Wealth: Another Look at State
Constitutional Adjudication of School Finance Inequalities, 26 CONN. L. REV. 1139 (1994); Denise C. Morgan, The New School Finance Litigation: Acknowledging That Race Discrimination in
Public Education Is More Than Just a Tort, 96 NW. U. L. REV. 99 (2001).
175. See generally Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and
the Supreme Court, 101 HARV. L. REV. 1388, 1411-13 (1988) (noting the continuing pervasiveness of racism in the administration of criminal justice in the South).
COMMUNITIES (GAO/RCED-83-168, June 1983) (examining four communities near hazardous
waste landfills in the Southeast and finding that Blacks were the majority population in three of
the four communities); see also Edward Patrick Boyle, Note, It’s Not Easy Being Green, The
Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal
Protection Analysis, 46 VAND. L. REV. 937 (1993); Paul Mohai & Bunyan Bryant, Environmental
[VOL. 48:121
On March 4, 1861, the same day that Abraham Lincoln became
President, the Convention of the Confederate States of America,
meeting in Montgomery, Alabama, adopted a Confederate flag as a
demonstration of their intent to preserve the sovereignty of the
South.177 This first Confederate flag, which retained the colors of the
Stars and Stripes, but displayed only seven stars, was roundly criticized for sharing too great a resemblance to the Stars and Stripes. Indeed, the resemblance was so great that following the outbreak of the
Civil War, one flag was often mistaken for the other in battle.178 To
reduce confusion, Confederate soldiers began to carry an alternative
flag designed by William Porcher Miles in its stead. This alternative
flag, first used by General Pierre G.T. Beauregard, consisted of a red
field spanned by a blue Saint Andrew’s cross edged with white and
bearing along its arms thirteen white stars, and became known as
“Beauregard’s Battle Flag,” the “Battle Flag of the Confederacy,” and
the “Southern Cross.”179 It was this unofficial flag that enjoyed currency among [W]hite secessionists.
On May 1, 1863, to address the concerns about the official Confederate flag, the Confederate Congress at Richmond adopted a second flag, which consisted of a canton of the Southern Cross set against
a plain white field. Advocates of this flag, commenting on its white
field, or perhaps articulating meaning, and its exclusion, christened
this flag the “White Man’s Flag.”180
Although this “White Man’s Flag” also had its flaws – its dimensions proved cumbersome, and the white field suggested truce – it remained the official flag of the Confederacy until February 4, 1865,
when the Confederate Congress adopted its third official flag. This
third flag altered the dimensions of the second flag and added a red
bar to the white field. Before this third flag could enter circulation,
however, General Lee surrendered at Appomattox, Virginia, effectively bringing the war to an end. Interestingly, it was not under any
of the official Confederate flags that Lee surrendered, but rather
Injustice: Weighing Race and Class as Factors in the Distribution of Environmental Hazards, 63
U. COLO. L. REV. 921 (1992).
177. JOHNSON, THE NATIONAL FLAG, supra note 98, at 91.
143-45 (1961).
179. JOHNSON, THE NATIONAL FLAG, supra note 98, at 91-92.
180. Id.
Howard Law Journal
under the unofficial flag General Beauregard championed, the “Battle
Flag of the Confederacy,” or as others called it, the “Southern
Cross.”181 Similarly, it was this unofficial flag, rather than any of the
official flags, that came to stand for the ensign of the Confederacy.
Later, a group of former Confederate soldiers and their followers
would adopt this unofficial flag as their own.182 Donning white robes
and hoods to conjure the ghosts of the Confederate dead,183 they
would transform the southern cross of the flag into hundreds of
wooden crosses, easy to bear, easy to plant, easy to burn. They would
carry out a reign of terror so debilitating, so demoralizing, so dehumanizing, that even a stoic like Justice Thomas would get it.
Almost 100 years later, in 1956, the same year that Georgia, in
response to Brown I and Brown II, adopted a new design for its state
flag to incorporate this unofficial, but now iconic, Confederate battle
flag, South Carolina Senator John D. Long successfully introduced a
resolution urging the Senate, at the time all White, to hang a Confederate battle flag in its chambers.184 Although the South Carolina Senate and House journals are silent as to any debate when the
Confederate flag was raised over the state capitol, historical context,
as well as Senator Long’s sentiments with regard to the KKK, render
the intent transparent. For example, in a speech on the floor of the
South Carolina Senate, Senator Long praised the KKK, saying, “We
honor them and we are proud of them. We will defend them from
defamation to the death.” During the same speech, Senator Long
urged his fellow senators to “dismiss from your consideration any little-sister sob stories about the South’s brutality to the slave and its
inhuman treatment of captive and fugitive slaves.”185 These were the
sentiments Senator Long expressed. Later, a lake in South Carolina
181. Id.
one Klansman put it in a letter to the editor of a southern newspaper:
The soldiers of the South who fought for that flag, their officers and civilian leaders
believed in the establishment of a separate [s]outhern republic; so does this Klan. They
believed in [W]hite supremacy; so does this Klan.
So, we maintain that the Confederate battle flag was bequeathed to us, the Ku
Klux Klan, by our Confederate ancestors. We honor it by standing for the same things
now as they did then. Our use of the flag is legitimate and honorable.
Southern apologists, knee-jerk liberal New South politicians, pansy pants preachers, pinko professors and whoever else will not stand with us in what our flag stands for
can wrap themselves in the Yankee flag and leave ours alone.
Marcus Blanton, Confederate Battle Flag Was Bequeathed to Klan, CLARION-LEDGER (Jackson,
Miss.), June 6, 1991, at 18A (letter to the editor).
183. WADE, supra note 182, at 33-35.
184. Tim Smith, Banner Traced to One Man, AUGUSTA CHRON., Jan. 30, 2000, at B2.
185. Id.
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would be named after him, John D. Long Lake, and a woman named
Susan Smith, in an act of infanticide—make that two acts of infanticide—would quietly strap her two toddlers, Michael Daniel Smith and
Alexander Tyler Smith, into their car seats, and then just as quietly
push her car into the lake. Invoking the collective prejudices of a
country, and the implied promises of her state, she would nearly get
away with murder.
Clearly, any future Equal Protection challenge to South Carolina’s display of the Confederate flag in front of its capitol building
should lay bare this historiography to satisfy the intent prong of
Hunter. Similarly, any future challenge should also present evidence
to refute the suggestion that all races are equally offended by the Confederate flag. Specifically, empirical data and expert testimony should
be introduced to demonstrate that minorities read and experience the
Confederate flag differently, that minority groups are disparately impacted, thus satisfying the second prong of Hunter. Just as the
NAACP submitted Kenneth and Mamie Clark’s “doll” study in
Brown to support their challenge to de jure school desegregation,186
statistical evidence could be gathered to demonstrate that members of
minority groups, in contrast to members of the majority, view the flag
not only as a badge of inferiority, but as communicating messages of
exclusion, of powerlessness, of lacking protection by the state, of being second-class citizens. Such analysis could demonstrate that these
feelings are more than visceral; indeed, they are amply supported by
evidence of discriminatory treatment and services. This analysis could
also demonstrate the impact state displays of the flag have on the dayto-day lives of various citizens: That for Whites, they buttress feelings
of superiority, privilege, and entitlement, and conversely for minority
186. In their 1940 study, the Clarks found that children presented with identical Black and
White dolls thought of the White doll as “nice” and the Black doll as the one “that looks bad.”
Kenneth B. Clark & Mamie Clark, Racial Identification and Preference in Negro Children, in
READINGS IN SOCIAL PSYCHOLOGY 169-78 (Theodore M. Newcomb et al. eds., 1947). The
Brown Court relied in part on this study to conclude that segregation of African American children “generates a feeling of inferiority as to their status in the community that may affect their
hearts and minds in a way unlikely ever to be undone.” See Brown v. Bd. of Educ., 347 U.S. 483,
494-95 & n.11 (1954). For more on the NAACP’s decision to use social science data in Brown,
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citizens, convey feelings of inferiority which circumscribe, shape, and
inform their daily lives.187
In addition to presenting evidence of intent and harm, however,
any future challenge could only be strengthened by including an analysis of the symbolic power of flags. Such a contextual approach will
not only impress upon the court messages communicated by the state
display of the Confederate flag, but may also motivate a court to consider the Equal Protection challenge through the more inclusive lens
of anti-subordination or equal citizenship, rather than anti-differentiation. I hope such an approach proves fruitful.
I began this discussion by talking about my interest in exploring
whether the state display of the Confederate flag violates the Equal
Protection Clause of the Fourteenth Amendment. I can only conclude
by positing that the state display of the flag violates the Equal Protection Clause, and more. In the end, the state display of the Confederate flag itself functions as a pledge, a pledge of allegiance, to protect
one class of citizens over another, to mark an entire state and its resources as belonging, in the first instance, to one class of citizens over
another, and to preserve a hegemony that accords one class of citizens
a higher status than another.
187. Since Brown, the Supreme Court has relied on social science data in a number of cases,
including cases involving obscenity, segregation by gender, jury size, and capital punishment,
although in McCleskey v. Kemp, the Court seemed to retreat from its willingness to find social
science persuasive. See supra note 87. On the use of social science in Equal Protection jurisprudence generally, see David L. Faigman, To Have and Have Not: Assessing the Value of Social
Science to Law as Science and Policy, 38 EMORY L.J. 1005 (1989); Henry F. Fradella, A Content
Analysis of Federal Judicial Views of the Social Science “Researcher’s Black Arts,” 35 RUTGERS L.
J. 103 (2003).
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Prospects for Igbo Human Rights in
Nigeria in the New Century
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NIGERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Defining Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Guarantee of Human Rights in Nigeria . . . . . . . . . . . . .
II. IGBOS IN INTERNATIONAL LAW . . . . . . . . . . . . . . . . . .
A. The Igbo People and Nation . . . . . . . . . . . . . . . . . . . . . . . .
B. Igbos as a Subject of International Law and a
Legitimate Object of Analysis . . . . . . . . . . . . . . . . . . . . . .
RIGHTS IN NIGERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Before Independence: Atrocities Arising from the
Slave Trade and Colonial Rule . . . . . . . . . . . . . . . . . . . . .
1. The Slave Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. British Colonial Rule in Nigeria . . . . . . . . . . . . . . . .
B. From Independence to 1970: Atrocities Arising from
Massacres and a Civil War Conducted in Willful
Breach of the Geneva Convention . . . . . . . . . . . . . . . . . .
* Associate Professor of Political Science, Chicago State University; Vice Chair, American Bar Association Committee on International Human Rights; Member, Illinois Bar; Winner,
Lawrence Dunbar Reddick Memorial Scholarship Award for the Best Article on Africa Published in the Journal of Third World Studies in 2001. J.D., Temple University School of Law;
Ph.D., Howard University; M.A., University of North Texas; B.A., Edinboro University of Pennsylvania. This Article originated as a paper presented at the International Conference on Igbo
Studies held at the Africana Studies and Research Center of Cornell University on April 4-5,
2003. The conference honored Professor Simon Ottenberg of the University of Washington,
Seattle, for his enduring contributions to Igbo studies. The author is indebted to Ken Nichols,
Erin Street, and their colleagues on the Howard Law Journal for their superb editorial work on
this Article.
2004 Vol. 48 No. 1
Howard Law Journal
1. The Massacres of 1966 . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Conduct of the Biafran War . . . . . . . . . . . . . . . . . . . .
a. Partition of the Nigerian Government and
Surveying the Scale of Igbo Destructiveness
in the Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. Assessing Allegations of Genocide
Regarding the Conduct of the War . . . . . . . . .
c. The Role of Major Powers in the Defeat of
Biafra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d. Key Lessons the War Held for Nigeria . . . . .
C. The Post-Civil War Period to the Present: Negation
of the Post-War Reconstruction Program and
Violations Through Marginalization. . . . . . . . . . . . . . . . .
1. Negation of the Post-War Reconstruction
Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Nature and Indicators of Igbo Marginalization .
3. Evaluating the Argument of Igbo SelfMarginalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
HUMAN RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RIGHTS IN NIGERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Reparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Political Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Democracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
THE NEW CENTURY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Changing Notion of Self-Determination and the
Igbo Situation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Statement of the Traditional Doctrine . . . . . . . . . .
2. Mounting Dissatisfaction with the Traditional
Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Prospects for Igbo Human Rights
3. The Changing Doctrine as Governmental
Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Beyond the Traditional Doctrine: Survey of
Professor An-Na’im’s Proposal for Mediating
the Tension Between Sovereignty and SelfDetermination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. International Legal Right to Secession . . . . .
b. Importance of International Action in the
Protection of Human Rights . . . . . . . . . . . . . . . .
5. The Changing Doctrine and Igbos . . . . . . . . . . . . . .
B. Lack of Any Articulable Objections to Igbo
Separate Statehood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Argument that the Igbo Nation as It Exists
Today is a Creature of British Colonialism (the
“No Britain, no Igbo” Argument) . . . . . . . . . . . . . .
2. The Balkanization Argument . . . . . . . . . . . . . . . . . . .
3. The Concern That Separation Will Be Violent . .
4. Concern That an Igbo State Will Not Be
Protective of Human Rights . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Igbo human rights in Nigeria became an issue of international
interest and concern following the horrific massacres of 19661 and the
civil war from 1967 to 1970.2 These successive tragedies led to the
deaths of millions of Igbos, incalculable psychological trauma for survivors of these human holocausts and their kindred, as well as largescale loss or destruction of Igbo property in northern Nigeria and
other parts of the country.3 Igbos4 are an ethnic group,5 or nation,6 in
1. See discussion infra Part III(B)(1).
2. See discussion infra Part III(B)(2).
3. See discussion infra Parts III(B)(1)-(2).
4. For more on the Igbos, see discussion infra Part II. Igbo is spelled variantly as “Ibo,”
“Ebo,” and “Heebo,” but among Igbos, the preferred usage is Igbo, see ELIZABETH ISICHEI, A
the particular usage this Article also adopts.
5. An ethnic group is “a distinct group in society self-consciously united around shared
histories, traditions, beliefs, cultures, and values, which mobilizes its membership for common
political, economic, and social purposes.” NAOMI CHAZAN ET AL., POLITICS AND SOCIETY IN
CONTEMPORARY AFRICA 108 (3d ed. 1999). The term is sometimes interchanged with the word
“tribe,” a word, however, that, because of its pejorative connotation, I refrain from using, unless
quoting the work and language of others.
Howard Law Journal
present-day Nigeria7 reputed for their egalitarianism,8 enthusiasm for
education,9 technical ingenuity,10 and commercial entrepreneurship,11
among other attributes. They were a major group in the defunct Republic of Biafra.12 Although no violation of Igbo human rights of similar proportions and gruesomeness has taken place since 1970,
atrocities against Igbos in the country remain rife and persistent.13 Nigeria violates the human rights of all its inhabitants, but much more so
the human rights of Igbos.14
This Article documents violations of Igbo human rights in Nigeria,15 critically assesses the capacity of the Nigerian political system as
a structure for the effectual promotion of Igbo individual and collective human rights,16 and points to independent Igbo statehood as the
only tool for the effective safeguarding of Igbo human rights in the
new century.17
This Article consists of seven parts. Part I presents a definition of
human rights and history as to the evolution of these rights in Nigeria.
Part II introduces the reader to the Igbo people and nation and addresses the question of whether Igbos, as a non-state entity, can be the
subject of international law and, as in this Article, a legitimate object
of analysis. Part III documents, chronologically, violations of Igbo
human rights. Although the analysis goes back in time, the main focus
is on atrocities isolable to the Nigerian state, particularly abuses that
occurred since the country’s independence in 1960. Part IV assesses
the contributions of General Obasanjo, as a major player in Nigerian
politics, to violations of Igbo human rights. Part V responds to the
allegation that Igbos are no more victims of human rights violations
than other Nigerians. Part VI is an assessment of the capacity of the
Nigerian system as an appropriate structure, focusing on the three im6. A nation is a group of people, with or without territorial control, who share common
customs, origins, history, or language. See DANIEL S. PAPP, CONTEMPORARY INTERNATIONAL
7. See discussion infra note 86 and accompanying text.
8. See discussion infra notes 82-84 and accompanying text; see also infra note 71.
9. See discussion infra note 80 and accompanying text; see also infra notes 283-84 and
corresponding texts.
10. See discussion infra Part VII(B)(4), esp. infra note 561 and accompanying text.
11. See discussion infra note 81 and accompanying text.
12. See discussion infra notes 90-92 and accompanying texts; on the birth and demise of
Biafra, see discussion infra Part III(B)(2)(a).
13. See discussion infra Part III(C); see also discussion infra Part IV.
14. See discussion infra Part V.
15. See discussion infra Part III.
16. See discussion infra Parts VI(A)-(B).
17. See discussion infra Part VII.
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portant elements of reparations, federalism, and democracy, for the
correction of Igbo human rights violations. Part VII lays out the case
for separate statehood as the only effective tool for safeguard of Igbo
human rights. The latter section, along with Part III, comprises the
centerpiece of the Article. Tailoring the purposes of the study, these
seven main parts between and among them embed several critical and
interconnected arguments: Due to the rife and relentless violations of
Igbo human rights in Nigeria, and due to the lack of an adequate
Nigerian structure for safeguarding these rights, Igbos need a separate
state to secure these inalienable liberties; no valid objection against
the creation of such a state exists.
A. Defining Human Rights
Human rights are freedoms such as life, liberty, security, subsistence, and other guarantees to which people as humans have rights.18
They are generally understood as entitlements or claims against the
society held equally by all persons simply because they are human
beings.19 Although human rights are usually taken to have a special
reference to the way governments treat their own citizens,20 life, lib18. See JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS 1 (2d ed. 1998); see also SAEDWARD CORWIN & JACK W. PELTASON, CORWIN & PELTASON’S UNDERSTANDING THE
CONSTITUTION 4 (7th ed. 1976) (describing human rights as “the rights that distinguish men and
women from the other creatures who inhabit the earth, the rights that make for the ‘humanness’
of human beings”).
note 19, at 17 (depicting international law as “some additional instruments” that individuals and
other beneficiaries of human rights could use “to gain access to the enjoyment of these rights
from the state”); Jack Donnelly, Unfinished Business, 30 PS: POL. SCI. & POL. 530 (1998)
(“Human rights . . . typically target the state of which one is a national.”); Louis Henkin, The
Universal Declaration and the U.S. Constitution, 30 PS: POL. SCI. & POL. 513 (1998) (underscoring the national character of international human rights, that the Universal Declaration of
Human Rights “calls on states to recognize the rights of their inhabitants under their national
laws, and to take measures to realize human rights through national institutions within their own
societies.”). Conceptually speaking, human rights is simply the “form in which the international
community, under Western influence, has chosen to express human dignity . . . .” Virginia A.
Leary, The Effect of Western Perspectives on International Human Rights, in HUMAN RIGHTS IN
AFRICA: CROSS-CULTURAL PERSPECTIVES 15, 29-30 (Abdullahi A. An-Na’im & Francis M.
Deng eds., 1990). Although a concept with a Western origin, human rights is also so evolutionary and dynamic that today it is recognized and accepted throughout the world as a universal
term. Id. Human rights, as understood and practiced today under the United Nations system, is
distinguished from the idea of human rights (or freedom), which is something common to every
Howard Law Journal
erty, security, property and other humans rights “may be denied by an
extensive array of individuals or organizations.”21 Protecting human
rights today is a necessary and important part of what governments
do;22 human rights serve as a yardstick for measuring the true standard of a society and its level of development.23 Both safeguarding
minority rights and affording all citizens the opportunity “to participate in the national life in a climate of justice and peace” have become, in our time, the mark of “a morally adult society.”24 Although
scholars such as Professor Henkin of Columbia University stress the
national character of human rights,25 the international community led
by the United Nations—as well as international action—plays a critical role in the safeguarding of human rights. Protecting human rights
is “a matter of joint, global responsibility” that cannot be left exclusively to national governments.26 Not only are “governments . . . answerable internationally within their borders for their citizens’
enjoyment of internationally defined human rights regimes,” but today, “major states and international organizations” are bracing themselves to become “active partners of governments in making basic
civilization. See Philip C. Aka, The Military, Globalization, and Human Rights in Africa, 18
N.Y.L. SCH. J. HUM. RTS. 361, 375-76 (2002) [hereinafter Aka, Military, Globalization, and
Human Rights].
21. DONNELLY, supra note 18, at 1; see also ANDREW CLAPHAM, HUMAN RIGHTS IN THE
PRIVATE SPHERE (1993); Steven R. Ratner, Corporations and Human Rights: A Theory of Legal
Responsibility, 111 YALE L.J. 443 (2001); Paul Redmond, Transnational Enterprise and Human
Rights: Options for Standard Setting and Compliance, 37 INT’L L. 69 (2003); Mary Robinson, The
Business Case for Human Rights, http// (last visited Sept. 1, 2004).
(citing the Declaration and Program of Action adopted by participants at the conclusion of the
Second World Conference of Human Rights held in Vienna in 1993, which states that governments have a “first responsibility” for promoting and protecting human rights); Declaration on
the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms, G.A. Res. 53/144, U.N.
GAOR 53d Sess., U.N. Doc. A/RES/53/144 (1999) (assigning governments responsibility for creating all necessary conditions for the effective enjoyment of every human right guaranteed for
their citizenry).
(1997); see also id. at 23 (indicating that no genuine development takes place “at the expense of
human rights”).
24. Emilio J. Cardenas
& Mar´ıa Fernanda Can˜ as,
´ The Limits of Self-Determination, in THE
WORLD 101, 101 (Wolfgang Danspeckgruber ed., 2002) (quoting Pope John Paul II) [hereinafter
25. See Henkin, supra note 20, at 513.
26. Paul Redmond, supra note 21, at 70; see also OKAFOR-OBASI, supra note 19, at 70-129,
who proposes several techniques the international community could use to facilitate enforcement of state obligations to safeguard human rights.
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human rights part of the working foundations of contemporary
Three isolable categories of human rights are (1) political-civil
rights; (2) social, economic, and cultural (or socioeconomic) rights,
and; (3) solidarity (or group), rights. Political-civil rights are rights
with which governments must not interfere.28 These rights include the
right to life, dignity, personal liberty, due process, private and family
life, freedom from discrimination; also important are the rights to
freedom of thought, conscience and religion, freedom of expression
and the press, peaceful assembly and association, and freedom of
Socioeconomic rights are rights that require the government to
do something, such as provide resources, without which the enjoyment
or realization of these rights is made difficult or impossible.30 These
rights include the right to education, right to work and to social security, right to form and join trade unions, and right to health, among
Solidarity or group rights are rights that the individual may enjoy
as a member of a collective entity.32 These rights include the equality
of peoples, the right to self-determination, the right to free disposal of
natural wealth and resources, the right to development, the right to
international peace and security, and the right to a clean environment.33 A global human rights instrument that codifies political-civil
27. John W. Harbeson & Donald Rothchild, The African State and State System in Flux, in
Donald Rothchild eds., 3d ed. 2000) [hereinafter AFRICA IN WORLD POLITICS]. For more on the
necessity for international action—and the role of the international community—in safeguarding
human rights, see discussion infra Part VII(A)(4)(ii).
28. UMOZURIKE, supra note 23, at 29.
29. See, e.g., NIG. CONST. ch. IV, § 33-41.
30. UMOZURIKE, supra note 23, at 46.
31. See id. at 45-49.
53, 58 (1990).
33. Id. at 59-69. The right to self-determination plays a central role among collective rights
and is so closely interconnected with some of these rights, such as the right to development, that
sometimes it is hard to say where one ends and the other begins. The right to self-determination
has “two mostly separate lives in international” law, involving two set of claims. The first is
uncontested as a human right, while the second, still contested, “derives from collective
processes demanding secession, autonomy, self-rule, self-administration, and the like.” See
Richard Falk, Self-Determination Under International Law: The Coherence of Doctrine Versus the
Incoherence of Experience, in SELF-DETERMINATION OF PEOPLES, supra note 24, at 31, 66. The
concept is used here in the first sense, in the second sense in Part VII, and in a mixed sense in
some sections of the Article, such as Part II(B).
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rights is the International Covenant on Civil and Political Rights
(ICCPR),34 while the one that codifies socioeconomic rights is the International Covenant on Economic, Social, and Cultural Rights
(ICESCR).35 An international human rights instrument noted for its
emphasis on solidarity rights while also guaranteeing the other two
categories of rights is the African Charter on Human and Peoples’
Rights (ACHPR).36 The three categories of rights are denominated,
respectively, first-generation, second-generation, and third-generation
rights. Each of the generations complements and completes the
others. Ranking them by generation does not imply that any category
of rights is superior to or takes precedence over the others.37 The
United Nations (UN) has stated that “all human rights and fundamental freedoms are indivisible and interdependent and that equal attention and urgent consideration should be given to the implementation,
promotion, and protection of” every category of human rights.38
As already implied in the foregoing three-category discussion,
human rights may also be classified based on whether they are held by
individuals or by groups. Political-civil and socioeconomic rights are
individual rights that may also be enjoyed by groups, while collective
rights such as the rights to peace, development, a clean environment,
and the right to self-determination, are collective rights that individuals may also enjoy. The UN recognizes the equality of opportunity for
development as a right that belongs to both individuals and nations.39
34. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N.
GAOR, Supp. No. 16, U.N. Doc. A/6316 (1966), available at
instree/b3ccpr.htm (last visited Sept. 16, 2004).
35. International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200, U.N.
GAOR, 21st Sess., Supp. No. 16, at 49-52, U.N. Doc. A16316. 993 U.N.T.S. 3, 6 I.L.M. 360
(1966), available at (last visited Sept. 16, 2004).
The ICCPR and ICESCR had been envisioned in 1948 as a single treaty, denoted as the International Human Rights Covenants, but was broken into two because of the Cold War. DONNELLY,
Leary, supra note 20, at 25-26. These two documents, together with the Universal Declaration of
Human Rights, see discussion infra note 49 and corresponding text, are known collectively as the
“International Bill of Rights.”
36. African Charter on Human and Peoples Rights, June 27, 1981, 21 I.L.M. 58 (entered
into force Oct. 21, 1986), available at (last
visited Sept. 16, 2004). For an analysis of this instrument, see, for example, A.H. ROBERTSON &
37. Aka, Military, Globalization, and Human Rights, supra note 20, at 375 (The various
generations of human rights “highlight the evolution and mutual interdependence of these rights
rather than suggest that any category should have priority over the others.”).
38. UMOZURIKE, supra note 23, at 42 (quoting U.N. Gen. Assembly Res. 32/130).
39. See id. at 60.
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Also, international human rights instruments, such as the ACHPR,
recognize both individual and group rights.
Because of ambiguities regarding their scope, some international
law scholars and UN governmental delegates do not perceive group or
collective rights as real human rights.40 These rights do qualify as
such, however.41 Instruments or documents relating to international
human rights, such as the ICCPR, ICESCR, ACHPR, the UN Charter, and the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance
with the Charter of the United Nations,42 all recognize the right to
self-determination, a solidarity right, as a human right belonging to
and held by “peoples.”43 Collective rights have special importance
and value for individual rights.
Professor Falk calls the right to self-determination “the underpinning for all individual claimants seeking the legal protection of human
rights . . . .”44 More generally, collective rights are “an essential
framework for realizing most human rights of the individuals; individuals are the direct beneficiaries of collective rights, and further, cannot exercise most of their traditional human rights except as members
of a collectivity.”45 As Professor An-Na’im persuasively illustrates
with discrimination based on race, religion, or language, (usually ex40. See, e.g., JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 14354 (1989); see also Jack Donnelly, The “Right to Development”: How Not to Link Human Rights
and Development, in HUMAN RIGHTS AND DEVELOPMENT IN AFRICA 261-83 (Claude E. Welch,
Jr. & Ronald I. Meltzer eds., 1984). Others such as Philip Alston see collective rights as norms
capable of becoming human rights provided abuse of such designation can be avoided. See
Philip Alston, A Third Generation of Solidarity Rights: Progressive Development or Obfuscation
of International Human Rights?, 29 NETH. INT’L L. REV. 307, 307-22 (1982).
41. See, e.g., Yoram Dinstein, Collective Human Rights of Peoples and Minorities, 25 INT’L
& COMP. L.Q. 102-20 (1976); see also Theo van Boven, The Relations Between Peoples’ Rights
and Human Rights in the African Charter, 7 HUM. RTS. L.J. 183, 183-94, 191-92 (1986), whose
contribution this Article discusses below.
42. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625,
U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028 (1971) [hereinafter Declaration
of Principles]
43. See ICCPR, supra note 34, art. 1.1, 1.2; ICESCR, supra note 35, art. 1.1, 1.2; ACHPR,
supra note 36, art. 20.1; see also ACHPR, supra note 36, arts. 2.1 and 2.2 (dealing with the right
to development); U.N. Charter, arts. 1.2 and 55; Declaration of Principles, princ. (e), para. 7. The
reference in the ACHPR, art. 2.2, to the right to development shows how closely related the
right to self-determination is to the right to development and reinforces our argument, supra
notes 34-5 and corresponding texts, as to the interconnectedness, if not inseparableness, of the
various generations of human rights.
44. Falk, supra note 33, at 32.
45. Abdullahi An-Na’im, The National Question, Secession and Constitutionalism: The Mediation of Competing Claims to Self-Determination, in CONSTITUTIONALISM AND DEMOCRACY:
TRANSITION IN THE CONTEMPORARY WORLD 111 (Douglas Greenberg et al. eds., 1993).
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perienced by individual persons) the individual quality of many individual rights derives its significance from its implications to the
collectivity.46 These occurrences speak to the interconnectedness of
various categories and classes of rights and the undesirability, if not
futility, of any rigid distinction among these categories or classes.
Again, as the UN counsels, “all human rights and fundamental freedoms are indivisible and interdependent.”47
Two objections raised to the recognition of collective rights as
human rights are that: (1) they are not legally enforceable; and (2)
there is no certainty as to the entity against which such rights are to be
asserted or claimed. But each of these objections is disposable.48 Regarding enforceability, leading human rights instruments, such as the
Universal Declaration of Human Rights (UDHR),49 and the ACHPR,
are, as Boven reminds us, “more than legal instruments. They are also
instruments of liberation. . . . The struggles for human rights and peoples’ rights are not only settled in the courts but also and perhaps
more decisively in political fora.”50 This is a view shared by Professor
An-Na’im, who maintains, “it is desirable to think of collective rights,
such as the right to self-determination as a human right because of the
power of the idea of human rights and its utility in political discourse.”51 And, says An-Na’im, collective rights can be formulated
and implemented “in a meaningful way,” so long as: “[i]n doing so,
valid differences between individual and collective human rights must
be recognized; it is particularly important to identify the claimant of
the collective right, the entity against whom the right is held and the
means of satisfying the right in any given case.”52 He advises that
46. Id. at 117.
47. UMOZURIKE, supra note 23, at 42 (quoting U.N. Gen. Assembly Res. 32/130).
48. The quibble over whether collective rights can be real rights cannot but call to mind the
rebuke the African American literary giant, Richard Wright (1908-60), delivered to U.S. conservatives whom Wright said seek “to smother the Negro problem as a whole” when they insist
“upon regarding Negroes as individuals and making individuals deals with individual Negroes,
ignoring the inevitable race consciousness which three hundred years of Jim Crow living has
burned into” the collective heart of American Blacks. Richard Wright, Introduction, in ST.
NORTHERN CITY xxix (1993).
49. Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. GAOR, 3d Sess.,
U.N. Doc. A/810 (1948).
50. van Boven, supra note 41, at 191-92.
51. An-Na’im, supra note 45, at 111.
52. Id.; see also generally OKAFOR-OBASI, supra note 19. This monograph is unique for its
attention to the gap in the literature, until now unfilled, of how to ensure enforcement of state
obligations in human rights. Dr. Okafor-Obasi articulates and discusses various measures for
ensuring that governments live up to their human rights obligations, including coercive and noncoercive techniques as well as international tribunals. Id. at 70-129.
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“rights” in human rights be read “in a broader sense than mere ‘legal’
rights enforceable in a court of law.”53 In regards to the second objection, no difficulty exists in ascertaining the entity against which these
rights can be asserted, because all rights are activated and asserted
against the source of challenge, denial, or threat, be that source the
nation-state of the same people, another people within that state, or
any other state.54
B. Guarantee of Human Rights in Nigeria
The guarantee of human rights in Nigeria “has its genesis in the
attempt to allay the fears of minority ethnic groups”55 who expressed
concern that majority groups in their regions would dominate them
after Nigeria became independent from Britain. As a result, the British government, in 1956, appointed the minorities’ commission otherwise known as the Willink Commission—after Sir Henry Willink, who
headed the panel—to look into these fears and recommend means for
allaying them.56 The Commission recommended the entrenchment of
fundamental rights in the country’s constitution to allay those fears.57
The result was the insertion of fundamental guarantees in the country’s independence and post-independence constitutions.
However, Nigeria has no culture of effective implementation of
the basic rights it inserts in its Constitutions and no tradition of respect for individual and collective human rights. An important relationship exists between the safeguarding of human rights and
constitutionalism; a strong and legitimate constitutional order is necessary not only to articulate but also to ensure the effective implementation of human rights protections.58 Nigeria does not have such a
53. See An-Na’im, supra note 45, at 112-13.
54. See id. at 113.
55. Ekwueme Okoli, Toward a Human Rights Framework in Nigeria, in TOWARD A HUMAN
RIGHTS FRAMEWORK 203-04 (Peter Schwab & Adamantia Pollis eds., 1982).
57. Id.
58. See Philip C. Aka, Nigeria Since May 1999: Understanding the Paradox of Civil Rule and
Human Rights Violations Under President Olusegun Obasanjo, 4 SAN DIEGO INT’L L.J. 209, 26569 (2003) [hereinafter Aka, Nigeria Since May 1999]; see also An-Na’im, supra note 45, at 120
(defining a legitimate constitutional order as one that “provides for and effectuates a decentralized system of government that allows the various peoples the maximum degree of autonomy
compatible with” territorial integrity; “articulates, verbally and institutionally, collective and individual rights”; and ensures the effective implementation of these rights). Professor An-Na’im
identifies legitimate claims to be protected under a country’s legal order to include personal
liberty as well as economic, political, and social justice for all segments of the population. Id. at
122. He argues that violation of constitutional guarantees for basic rights can form the basis for
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legitimate constitutional system. In particular, the country violates
the human rights of Igbos the most.59 Nigeria derives most of its infamous reputation as a nation that disrespects human rights from its
habit of abuses of Igbo human rights. As this Article will show, both
Nigerian governments and ethnic groups alike have violated Igbo
human rights with impunity.
Two major recent events in the history of human rights in Nigeria
are the establishment of the National Human Rights Commission
(NHRC) in 1995, and the 1999 inauguration of the Human Right Violations Investigation Commission, otherwise known as the Oputa
Panel, after Chukwudifu Oputa, a retired Nigerian Supreme Court
Justice, who chaired the seven-person commission.60 The NHRC is
empowered to deal with all matters relating to human rights protection under the Nigerian Constitution, the ACHPR, and the UDHR.61
The Oputa Panel was charged with the responsibility of investigating
human rights abuses in the country from January 1966 to 1999.62 Specifically, its mandate was to ascertain the nature and causes of these
abuses, with particular reference to mysterious deaths and assassinations or attempted assassinations, to identify persons or organizations
who perpetrated those abuses, to determine whether the violations
were a product of state policy, and to recommend measures designed
to redress these past injustices and prevent or forestall future violations.63 Five whole years later, however, the result of this investigaseparate existence by a group denied those rights in order to promote the denied rights. See id.
at 106. The An-Na’im piece was itself a contribution to constitutionalism that utilized the principle of self-determination as a theoretical framework. Id. at 121.
59. See discussion infra Part V.
60. See Aka, Nigeria Since May 1999, supra note 58, at 218 n.57 for the identity of the other
six members of the Commission.
61. Id. at 217-18.
62. Id. at 218-19.
63. Id. at 218. The enabling law establishing the panel did not give it the power and authority to compel witnesses. As a result, three former military rulers of the country, namely, Generals Muhammadu Buhari (1983-1985), Ibrahim Babangida (1985-1993), and Abdulsalami
Abubakar (1998-1999), were subpoenaed to appear before the commission and refused to do so.
See Shola Oshunkeye, No Hiding Place for the Generals, TELL (Lagos), Aug. 27, 2001, at 31-35
(including a description of the abuses for which the generals were subpoenaed). The only former military ruler of the country to appear before the commission was General Obasanjo. General Yakubu Gowon, Head of State from 1966 to 1975, was not even invited to appear. There
are also problems arising from the duration covered by the panel. Although that duration is
broad, the focus on “mysterious deaths and assassinations or attempted assassinations” made the
panel’s mandate rather limiting. As this Article shows, human rights violations in Nigeria for the
period in question encompass large-scale deprivations of life, liberty, and property. However,
the mandate covers only life and leaves out liberty and property. Also, even the spectrum of life
covered is narrow, limited as it is to mysterious deaths and assassinations or attempted assassinations. Life here, for example, does not include the massacres of Igbos in 1966, or the millions
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tion has yet to be released by the government. In short, neither the
setting up of the Panel nor the inauguration of the NHRC has had a
positively observable effect on Igbo human rights.
A. The Igbo People and Nation
The term Igbo designates both a language within the “kwa”
group of the Niger Congo family of languages, and indigenes in parts
of present-day Nigeria who speak the language. Igbos had a history of
independent existence that dates back thousands of years64 before
British intervention into what later became Nigeria. Pre-colonial Igbo
societies were acephalous or kingless communities,65 marked by decentralized political powers.66 Ancient Igbos organized themselves
into village democracies, over 2,000 in all,67 where they practiced a
direct democracy characterized by a system of checks and balances,
the pursuit of consensus through protracted discussion, the use of religious sanctions,68 and political institutions “designed to combine
popular participation with weighting for experience,”69 among other
features.70 Although elders ran affairs in Igbo societies,71 there was
who died during the civil war, many due to the conduct of the war by Nigerian authorities in
willful breach of the Geneva Convention, which stipulates provisions for the “humane” conduct
of war.
64. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 3 (“[M]en have been living
in Igboland for at least [5,000] years. One of the most notable facts of Igbo history is its length
and continuity.”).
65. ELIZABETH ISICHEI, THE IBO PEOPLE AND THE EUROPEANS: THE GENESIS OF A RELATIONSHIP – TO 1906, at 47 (1973) [hereinafter ISICHEI, GENESIS OF A RELATIONSHIP]. The terminology used to celebrate this characteristic is Igbo enwe eze, meaning that “Igbos have no King.”
TO SEVEN COUNTRIES 477 (3d ed. 1995).
THE PRESENT 155 (1995); see also Simon Ottenberg, Ibo Receptivity to Change, in CONTINUITY
AND CHANGE IN AFRICAN CULTURES 130, 130 (William R. Bascom & Melville J. Herskovits
eds., 1959).
68. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 142-43.
69. Id. at 21.
70. Id. As Professor Isichei observes, “One of the things that struck the first Western visitors to Igboland, was the extent to which democracy was truly practiced.” Id. Commenting on
Igbo democracy, based on her reading of Professor Achebe’s celebrated novel Things Fall Apart,
one observer stated:
What is remarkable about [the] Igbos is the degree to which they have achieved the
foundations of what most people seek today—democratic institutions, tolerance of
other cultures, a balance between male and female principles, capacity to change for
the better or to meet new circumstances, a means of redistributing wealth, support for
industriousness, a viable system of morality, . . . an effective system of justice . . . .
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also “much scope for individual mobility,”72 and political participation
was open to many, including women.73 Current pan-Igbo identity and
the use of the Igbo ethnic label are externally imposed, recent phenomena that arose from British colonial rule.74 Before colonial rule
and the politicization of ethnic identity that followed foreign rule,
Igbos thought of and identified themselves only based on villages they
came from: as people from Abakaliki, Asaba, Awka, Enugu, Owerri,
Umuahia, and so forth.75 Although the massacres of 1966 and the war
for Biafra from 1967 to 1970 thrust Igbos into global consciousness,
before 1966 Igbos had already emerged as a major ethnic group in
Nigeria and Africa as a whole.76
Igbo adaptability is one important feature that marks the ethnic
group apart from their counterparts in Africa.77 Beginning with an
economic system built on metallurgy and agriculture during the precolonial period,78 Igbos embraced Western education and commerce
following British entry into Nigeria.79 Their commitment in these
fields expanded over time such that before the civil war, Eastern Nigeria, the region where Igbos had their home, was investing over forty
percent of its budget in education.80 And in commercial entrepreAchebe appears to have tested Igbo culture against the goals of modern liberal democracy and to have set out to show how the Igbo meet those standards.
Diana A. Rhoads, Culture in Chinua Achebe’s Things Fall Apart, 36 AFR. STUD. REV. 61 (1993).
71. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 22. Elaborating on the role
elders played in Igbo politics, based again on a reading of Achebe’s work, Rhoads stated:
For great decisions, the ndichie, or elders, gather together all of Umuofia. . . . The clan
rules all, and the collective will of the clan can be established only by the group. Further, as is appropriate for and in a democracy, each man is judged on his own merits,
according to his worth, not those of his father, as would be the case in an aristocracy or
Rhoads, supra note 70, at 63 (internal quotes omitted).
72. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 71-72.
73. THEEN & WILSON, supra note 66, at 477-78. Dr. Azikiwe, first President of Nigeria, an
Igbo, once praised Eastern Nigeria as “the arsenal of republicanism in Nigeria.” See NNAMDI
74. CHAZAN ET AL., supra note 5, at 109; ISICHEI, HISTORY OF THE IGBO PEOPLE, supra
note 4, at 20; Government of the Republic of Biafra, Introducing the Republic of Biafra, available at at 5 (1967) [hereinafter
Introducing Biafra];.
75. Introducing Biafra, supra note 74, at 3.
76. For a list of the main ethnic groups in Africa, see, for example, RICHARD A. FREDLAND,
77. See Ottenberg, supra note 67, at 130-43; see also Stanley Diamond, Who Killed Biafra?,
14 N.Y. REV. BOOKS 4 (Feb. 26, 1970) (quoting Margery Perham & K. Onwuka Dike) (on file
with author).
78. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 7-14.
79. See id. at 185-225.
80. See id. at 185; see also Nigeria’s Civil War: Hate, Hunger and the Will to Survive, TIME,
Aug. 23, 1968, at 20 [hereinafter Nigeria’s Civil War] “Before their secession from Nigeria, the
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neurship such was the gain made that, in Professor Isichei’s elegant
phraseology, Igbos changed the very name Ohafia (a town in Igboland) in the last century “from oha-ofia, people living in the bush, to
oha-afia, people who trade.”81 This adaptability is due to Igbo culture
being based on achievement, which assesses the work of individuals,
big or small, based on whether they “tried” or did their best, rather
than on inheritance.82 Professor Achebe attributes the rise of Igbos in
Nigerian affairs to a “self-confidence engendered by their open society and their belief that one man is as good as another, that no condition is permanent.”83 Plus the Igbo has an advantage that his rivals
Unlike the Hausa/Fulani he was unhindered by a wary religion and
unlike the Yoruba unhampered by traditional hierarchies. This kind
of creature, fearing [neither] God nor man, was custom-made to
grasp the opportunities, such as they were, of the [W]hite man’s dispensation. And the Igbo did so with both hands. Although the Yoruba had a huge historical and geographical head-start the Igbo
wiped out their handicap in one fantastic burst of energy in the
twenty years between 1930 and 1950.84
Unfortunately, this kind of success can come with its price, which,
for the Igbo, was a “noisy exhibitionism and disregard for humility
and quietness.”85
Igbos were consolidated with many other groups by Britain to
create Nigeria in 1914.86 They are one of the three largest ethnic
Ibos of the Eastern Region were spending [forty percent] of their public funds on education.
Villagers often pooled their resources to send the most promising boy of college age off to study
in Britain . . . .” Id. at 21.
81. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 212.
82. See Diamond, supra note 77; see also supra notes 71-72 and corresponding text; supra
notes 83-84 and corresponding text.
84. Id. at 46. For more on Hausa-Fulanis and Yorubas, see discussion infra note 87.
85. ACHEBE, supra note 83, at 46.
86. The country was named after the River Niger, which cuts through much of the land. The
British citizen who coined that name was Lady Lugard, former girlfriend and later wife of the
first governor-general of the country, Lord Frederick D. Lugard. Some other accounts credit the
invention of the name “Nigeria” to an African correspondent of the Times of London. See
THEEN & WILSON, supra note 66, at 490. Professors Theen and Wilson noted, lamenting the
irrationality of colonial-era world politics, that the British government “incorporated . . . the
impoverished and remote northern region primarily to prevent the French from adding it to their
African holdings.” Id. The consolidation of the North and South, until 1914, held by Britain as
two separate “protectorates” ran against the advice of a committee the British colonial authorities set up in 1899 which recommended a partition of the two, as well as against Lord Lugard’s
own “belief in the oil-and-water incompatibility of the two.” 1 A.H.M. KIRK-GREENE, CRISIS
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groups in the country.87 Igbos number at least 30 million people and
make up about one-quarter of Nigeria’s population.88 While the Igbo
ancestral home, Igboland, is easily identified or demarcated, political
organization of that territory has changed over time in Nigeria. From
1954 to 1967, Igbos combined with other ethnic groups to form the
Eastern Region or Eastern Nigeria. A smaller but important section
of the ethnic group across the Niger River belonged in what was then
the Mid-Western Region or Mid-Western Nigeria. From the end of
the civil war in 1970 to 1976, Igbos constituted the East Central State,
an administrative unit unilaterally created and imposed by the Nigerian government in 196789 that became fully functional only with the
end of the war in 1970. As earlier indicated, Igbos were one of the
groups that comprised the Republic of Biafra.90 They made up almost
87. The other two groups are Hausa-Fulanis and Yorubas. Hausa-Fulanis are actually two
groups which, through religious conquest (by the Fulanis) and intermarriage over a long period
of time, have become seemingly one group and are all, but for the hyphenation, viewed and
treated as a single group. Yorubas are an ethnic group in the Southwest of Nigeria who, according to legend, trace their common ancestry to a founder known as Oduduwa. Among them these
ethnic triumvirate make up approximately two-thirds of Nigeria’s population of over 120 million
people. Nigeria is believed to embody over 200 ethnic groups. But many of these groups are
extremely small, some of them numbering only in the tens of thousands. Not a few of these
groups appear to be simply invisible. Studies on the country are able to identify only a handful
xxi (1998), who points to less than sixty locations of “major ethnic groups” in the country. Igbos
are mostly Christian, unlike Hausa-Fulanis, who are mostly Muslim, and Yorubas, who are divided, about equally, between the Christian and Muslim faiths. Each of the three main groups
has a distinct region of the country that forms its base. For Hausa-Fulanis, that geographical
base is the North; for Yorubas, it is the West; while for Igbos, it is the East. The entire country is
divided into six so-called geopolitical zones, three in the North and three in the South. Igbos
make up two of the country’s six geopolitical zones, namely, the all-Igbo South-East zone, consisting of the majority Igbo states; and the South-South zone, made up of the two Igbo minority
states, and other non-Igbo ethnic groups. The four other zones are the South-West made up of
Yorubas, the North-East and North-West comprising Hausa-Fulanis, and North-Central made
up of various minority ethnic groups in northern Nigeria. Although the six zones have been
suggested as possible replacements for the states as federating units in Nigeria’s nominal federal
republic, since their creation in the days of General Abacha (1993-98), the zones have not been
the locus of any power other than a more manageable device for regrouping the country’s thirtysix states. The reinforcing, as opposed to cross-cutting, nature of social cleavages in Nigeria,
coupled with the fact that class-consciousness is still poorly developed in the country, increases
the chances for ethnic conflict. To use Igbos as an example, ethnicity (Igboness) is magnified by
region (the East), religion (Christianity) and most recently, zone (South-East). Nigeria belongs
among countries that Donald Horowitz calls “centralized” ethnic systems. See generally DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT (1985). In these systems, “a few groups are so
large that their interactions are a constant theme of politics at the center.” Id. at 39. The country’s ethnic structure impedes rather than encourages inter-ethnic cooperation on the poorly
developed nature of social class in the country. See, e.g., THEEN & WILSON, supra note 66, at
89. See discussion infra notes 193-94 and accompanying text.
90. See supra note 12 and accompanying text.
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seventy percent of Biafra’s population of 14 million people then,91
making them the majority group in a republic that also included key
ethnic groups such as Annangs, Efiks, Ibibios, Ijaws, Ogojas, Ogonis,
and Opobos.92 Given this occurrence, portraiture of Igbos as synonymous with Biafra, as some writings do, is inaccurate.93 As a result of
subsequent state creation exercises in the country, Igbos now have
homes in seven out of Nigeria’s thirty-six states.94
Igbos have been at the forefront in the defense of global human
rights and freedom.95 A number of Igbo slaves exported to the New
World (or Western Hemisphere) committed suicide rather than submit to slavery in a foreign land.96 Among those who stayed alive,
some like Olaudah Equiano came to play a major role in the antislavery movement.97 Inside Nigeria, Igbos held a record for the most
91. See George A. Elbert et al., An Exchange on Biafra, N.Y. REV. BOOKS, Apr. 23, 1970
(Stanley Diamond replying to responses to his book review, Diamond, supra note 77); Introducing Biafra, supra note 74, at 3.
92. See Introducing Biafra, supra note 74, at 3-5 (discussing the various peoples that made
up Biafra); KIRK-GREENE 1, supra note 86, at 83 (referring to a political cartoon); see also Elbert
et al., supra note 91 (Stanley Diamond replying to responses to his book review, Diamond, supra
note 77, and discussing the “fundamentals of the minority situation” in Biafra).
93. An analogy here, for example, would be to equate Great Britain (made up of the English, the Welsh of Wales, the Scots of Scotland, and the Irish of Northern Ireland) with England,
even given the overwhelming numerical superiority of the English people who constitute eighty
percent of the country. See THEEN & WILSON, supra note 66, at 20-21.
94. These are Abia, Anambra, Ebonyi, Enugu, and Imo, where Igbos form the majority
group; and Delta and Rivers, where they comprise the minority population. The five major Igbo
states, as previously indicated, form the so-called South-East zone, while the two minority Igbo
states, along with other ethnic groups, form the so-called South-South.
95. See generally Chidi G. Osuagwu, World Struggle for a Just World, Part 1, Address
Presented at Lecture Marking Ojukwu’s 70th Birthday Anniversary, Owerri (Nov. 1, 2003)
[hereinafter Osuagwu, Part 1]; Chidi G. Osuagwu, World Struggle for a Just World, Part 2, Address Presented at Lecture Marking Ojukwu’s 70th Birthday Anniversary, Owerri (Nov. 1, 2003)
[hereinafter Osuagwu, Part 2].
96. See RONALD SEGAL, THE BLACK DIASPORA 30 (1995) (stating that Igbo slaves had “a
disquieting tendency to commit suicide in captivity”); see also Shaundra L. Lee, Ceremony Pays
Tribute to Ibo Sacrifice, BRUNSWICK NEWS (Ga.), Sept. 2, 2002, at 3A (reporting sanctification of
an “Igbo landing” site at St. Simons Island, Georgia in the United States, to honor of thirteen
Igbo slaves who, in 1803, drowned themselves at a creek in the Island upon disembarking from
their ship).
EQUIANO: WRITTEN BY HIMSELF (Robert J. Allison ed., 1995). Equiano was born in Igboland,
sold to British slavers when he was eleven, and shipped off to the British West Indies. After
purchasing his freedom in 1766, he became a major figure in the anti-slavery movement in England. A successful man, Equiano married an English woman and left a huge inheritance for his
family when he died in 1797. Id. at 21. Equiano’s book is praised as “one of the first anti-slavery
books by a former slave.” Id. at 1. Igbo slaves also took active part in the anti-slavery initiatives
within the United States, which role White politicians such as former Alabama Governor and
presidential candidate George Wallace lividly recall. See Osuagwu, Part 2, supra note 95 (“The
Igbo activities to free the African slaves in the United States made . . . Wallace accuse them in
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tenacious resistance to British colonial rule.98 Also, the first largescale uprising against colonial rule in Nigeria, symbolized by the Aba
women’s revolts of 1929, took place in Igboland.99 Other Igbo contributions to human rights and fundamental freedoms include the instrumental roles prominent Igbos, such as Dr. Nnamdi Azikiwe,100 Dr.
Akanu Ibiam, Mbonu Ojike, Dr. Kinsley O. Mbadiwe, Mbazulike
Amechi, and Dr. Okechukwu Ikejiani, among others, played in the
nationalist struggle that led to Nigerian independence in 1960.
Azikiwe himself led the National Council of Nigerian Citizens
(NCNC, formerly National Council of Nigeria and the Cameroons),
the first truly national political party in the country.101
Given this history, it is not surprising that Eastern Nigeria, Igbo’s
home until 1967, was the first region, in 1956, to achieve self-governing status.102 Igbos embraced “with much greater fervor” than any
other single Nigerian ethnic group, the concept of Nigeria but questioned that concept following the massacres of 1966.103 They proudly
1968 of causing the American civil war. He, therefore, opposed any relief to embattled Biafra
during his 1968 presidential campaign.”).
98. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 119 (“No Nigerian people
resisted colonialism more tenaciously than the Igbo. . . . The conquest of Igboland took over
twenty years of constant military action.”); see also ISICHEI, GENESIS OF A RELATIONSHIP, supra
note 65, at 130 (explaining the “peculiar tactical difficulties” that gave rise to this long
99. Diamond, supra note 77. For one account of these revolts, celebrated in Igboland as
ogu umu nwanyi, meaning “women’s war” in Igbo, see CATHERINE COQUERY-VIDROVITCH, AFRICAN WOMEN: A MODERN HISTORY 163-65 (Beth Gillian Raps trans., 1997). Aba was the city
in Eastern Nigeria where most of the revolts took place.
RESTITUTION 6 (1999), available at
[hereinafter OHA-NA-EZE, PETITION] (This document is “A Petition to the Human Rights Violations Investigating Committee.”). Oha-na-eze Ndi Igbo is an Igbo association that calls itself
“the apex organization of the entire Igbo people.” Id. at 1. Ndi Igbo in the name means “Igbo
people” in the Igbo language.
102. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 231.
103. See infra notes 258-60 and accompanying text; see also Introducing Biafra, supra note
74, at 1 (disclosing that before the war, Igbos were the most important single builder of Nigerian
unity “who regarded themselves as citizens of Nigeria to an extent that no other group in the
country ever did”). Examples of the deep Igbo commitment to Nigerian unity are numerous.
First, the first-elected mayor of the important Igbo city Enugu was a northerner from Sokoto.
ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 229. enugu became the administrative
headquarters of the southern provinces in 1929, the capital of the Eastern region up to 1967 and
the capital of Biafra during the war. By 1963, the city grew in population to nearly 150,000
people. Id. at 204-5. Second, Igbo students studying abroad during the 1950s and 1960s routinely proudly identified themselves as Nigerians, rather than as Igbos. Id. at 229. Professor
Isichei disclosed that “The typical decor of an Igbo student’s room in London comprised a map
of Africa, a map of Nigeria, a Nigerian calendar and a picture of the University of Ibadan.” Id.
at 229-30. Last but not least, the NCNC, led by the Igbo Dr. Azikiwe, was the only national
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called themselves Nigerian nationalists when no Nigerian nation existed and when “no one else thought in such terms,”104 but “expressed
their sense of nationality in the creation of the state of Biafra” when
they “lost faith in the possibility of a unified Nigeria.”105 Battling
against overwhelming odds, for nearly three years, they heroically defended this state in a frantic effort to prevent near-certain extermination, in the process, testing with their blood, the scope of the right of
self-determination in Africa and demonstrating for the world the felt
need to extend the right “beyond its colonial context.”106 Since 2000,
as a new century unfolds, Igbos have worked to “resurrect” the campaign for a separate state that ended with their defeat in 1970.107 This
renewed campaign provides some of the backdrop for this Article.
Igbos have always been a Diasporan people. Nobody knows at
what point in Igbo history this impulse evolved,108 but Igbos left the
ancestral homeland during the slave trade. This was not a voluntary
migration. During the colonial period, the migration continued, first
involuntarily as the result of colonial human rights violation,109 but
later voluntarily. By the time political independence came to Nigeria
in 1960, Igbo migration into all parts of the country had become so
complete that “Nigeria became, in effect, an [Igbo] diaspora.”110
Later, the migration came to encompass not only West Africa,111
but indeed Africa as a whole112 and beyond. Igbo migration inside
party, and Dr. Azikiwe worked hard to keep it so. Less than half of the NCNC leadership was
Igbo and only three out of the NCNC federal ministers in 1960 were Igbos. Id. at 229. This
disposition of the NCNC contrasts with the demeanor of the Hausa-Fulani-dominated Northern
People’s Congress (NPC) which refused to even change its name to Nigerian People’s Congress.
KIRK-GREENE 1, supra note 86, at 15. Igbo commitment to national unity is a virtue that sometimes is absurdly attributed by non-Igbo scholars to “self-interest” factors, such as population
pressure and “land hunger.” But such “explanations” make no sense since they fail to account
for why a people like the Igbo supposedly suffering from land hunger would seek to separate
from Nigeria.
104. Conor Cruise O’Brien, A Condemned People, N.Y. REV. BOOKS, Dec. 21, 1967, at 20.
105. Diamond, supra note 77.
106. KIRK-GREENE 1, supra note 86, at xii.
107. See discussion infra Part VII(A)(5).
108. For example, archaeological excavations reveal Igbo contacts with Hausa-Fulanis as far
back as the ninth century AD. See OHA-NA-EZE, PETITION, supra note 100, at 6.
109. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 209 (providing an account
of how “[m]any Igbos left their homes for the first time when conscripted to work on the railways” and how many “followed the railway in its progress” into northern Nigeria).
110. See Chukwuemeka Onwubu, Ethnic Identity, Political Integration, and National Development: The Igbo Diaspora in Nigeria, 13 J. MOD. AFR. STUD. 399, 405 (1975).
111. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 211; Onwubu, supra note 110,
at 404.
112. See IGBOKWE, supra note 88, at 2 (“There is hardly any part of the [B]lack continent
that you will not find [Igbos] earning a living.”).
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Nigeria suffered a temporary setback in 1966 following the return to
the East of more than 2 million dispossessed Igbos who fled the mass
killings in northern Nigeria.113 One of the major developments in
Igbo history beginning from the 1970s was the spread of the nation
into all corners of the world. Migration ranks as “one of the most
striking features” of modern Igbo history.114 Arguably, as a result of
this massive migration, the entirety of the world outside Igboland, in
our time, has become, in effect, an Igbo Diaspora.115
It is in this context that one understands the mission of Igbo nationalist organizations like Ekwe Nche, which work to unite Igbos
from all over the world.116 The organization commits its energies to
an “Igbo nation worldwide,” made up of Igbos in Igboland and in the
Diaspora. A broader perspective to the definition of the Igbo nation
of the kind Ekwe Nche espouses is an idea whose time has come.
While the ancestral home is still important, given the spread of Igbos
today to all corners of the world, restriction of the definition of the
Igbo people to the group found in Igboland has become too
B. Igbos As a Subject of International Law and a Legitimate
Object of Analysis
A key question is whether Igbos are subjects of international law
and, therefore, a legitimate focus of analysis as here in this Article.
Under the traditional rule, the plain answer to that question is no; this
is because, under that rule, only states are proper subjects of international law; individuals and groups are not since they come into contact
with international law only through the medium of their state.117 The
issue for international law, consistent with this rule, “is the international obligation of a state and not the right of its people”; specifically,
only “a state or the community of states forming the [UN] can seek
performance of a state’s obligation to accord self-determination to its
people, not the people of that state.”118 Since Igbos as an ethnic
113. See discussion infra notes 170-71 and accompanying text.
114. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 208.
115. Id.
116. See EKWE NCHE ORG. CONST. § 2.4.1 (adopted Feb. 1999).
117. OKAFOR-OBASI, supra note 19, at 17.
118. An-Na’im, supra note 45, at 109 (quoting S. Prakash Sinha, Self-Determination in International Law and Its Applicability to the Baltic Peoples, in RES BALTICA 256 (A Sprudz & A.
Rusis eds., 1968)).
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group or nation within Nigeria are not a state, under the traditional
rule they are not a proper subject of international law.
However, many now view this traditional view as antiquated if
not downright inaccurate.119 Two alternative interpretations of international law make Igbos subject to international law—and therefore
legitimate object of analysis, as here. The first is the “peoples” interpretation, which gives “people” the right of self-determination in international human rights instruments.
Self-determination is firmly established today in global human
rights instruments as a human right of “peoples,” not states; African
and UN human rights documents, all view the right to self-determination as belonging to “peoples.”120 So peoples within a nation-state
today are entitled to assert their rights to self-determination against
their nation-states.121 In granting “peoples” the right to self-determination, an underlying assumption these international instruments
share, is that “peoples” are represented by their states in the international arena. In short, people are the holders of the right to self-determination, but states are the entities, in line with the traditional rule,
charged with the obligation to secure the enjoyment of the right domestically and internationally.122 This interpretation, which distinguishes a people from their state, is significant because it gives a group
within a country or a people some recourse if the state fails to honor
its obligation to safeguard their right to self-determination.123
Professor An-Na’im laments, “It is ironic that the independent
nation state, once perceived as the essential prerequisite for the
achievement of the peoples’ right to self-determination, is now seen
by many people(s) as a major obstacle to the realization of that
right.”124 Where this becomes the case, as this Article demonstrates
in the case of Igbos, an ethnic group is then charged with the obligation to safeguard its rights and therefore is a proper subject of international law in its own right.
In line with this interpretation, the ACHPR has been read as reserving “a certain amount of political and economic space for peoples
qua peoples,” or “peoples’ sovereignty,” in situations “where the in119.
See id. along with the authorities Professor An-Na’im cited at 123 n.8.
See discussion supra note 43 and accompanying text.
An-Na’im, supra note 45, at 109.
Id. at 111.
Id. at 106.
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terests of the people and those of the state diverge.”125 Professor
Umozurike’s position that “breaches of human rights, especially gross
breaches, are taken out of domestic jurisdiction,”126 also appears to
agree with this outcome. We still need to demonstrate (rather than
simply assert) that Igbos qualify as “people” entitled to the right to
self-determination under international human rights instruments. UN
and African human rights instruments left “people” undefined.127
Definitions of “‘people’ emphasize the attributes of commonality of
interests, group identity, distinctiveness, and a territorial link.”128
Consistent with these attributes, an ethnic, religious, or linguistic minority is a “people” entitled to the right to self-determination, either
internally within an established state or externally through secession
under appropriate circumstances.129 Igbos are “people” within the
meaning of UN and African human rights instruments entitled to the
right to self-determination either internally within a state or externally
outside it because they are an ethnic or linguistic minority. A second
interpretation that makes Igbos a subject of international law is what
may be called the “shifting obligation” interpretation. Under this interpretation developed by the Soviet scholar D.B. Levin:
When a nation exercises its right to self-determination, form[s] an
independent state, voluntarily remains in a multinational [multicultural] state or joins another multinational [multicultural] state, its
right to the free determination of its further internal political, economic, social and cultural status passes to the sphere of state law of
the state to which the nation now belongs. But this holds good only
125. See Richard N. Kiwanuka, The Meaning of “People” in the African Charter on Human
and Peoples’ Rights, 82 AM. J. INT’L L. 81, 83 (1988). This is also the approach adopted by the
Universal Declaration of the Rights of Peoples of July 4, 1976, otherwise known as the Algiers
Declaration. The Declaration is a populist document adopted by a group of people in liberation
struggles, including lawyers, economists, and politicians. The text of the Algiers Declaration can
(Antonio Cassese ed., 1979). Much of the confusion surrounding the meaning and implication of
the right to self-determination, as Professor An-Na’im says, derives from its conceptualization as
vested in one single entity, the nation-state, whereas, in actuality, this right can be satisfied
through a variety of entities, including ethnic groups, “exercising different functions of government.” An-Na’im, supra note 45, at 108.
126. UMOZURIKE, supra note 23, at 7-8.
127. “[D]rafters of international instruments sometimes prefer that a central concept or term
be defined by subsequent practice and jurisprudence rather than impose their own definition.
For example, the International Law Commission declined to define “state” in its draft Declaration of the Rights and Duties of state, preferring rather that the term be interpreted in accordance with international practice.” See An-Na’im, supra note 45, at 112.
128. See id.
129. Id.; see also id. at 117-18; see also Kiwanuka, supra note 125, at 80-101 (identifying several definitions of “people” under the ACHPR).
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as long as the conditions on which the nation became part of the
given state are not violated by this state and as long as the nation’s
desire to stay within it remains in force, and it is not compelled to
do so by coercive means. As soon as one of these phenomena occur, the question again passes from the sphere of state law into the
sphere of international law.130
Under this alternative interpretation, Igbos also qualify as subjects of international law because, violations of the original multi-nationality compact have taken place in Nigeria such as to allow for the
passage of the obligation for safeguarding their human rights from
Nigerian domestic law to international law. The significance of
Levin’s shifting-obligation theory is that a nation’s or ethnic group’s
right to self-determination does not become exhausted with their incorporation into a multinational state, even where that initial incorporation is consensual.131
A similarity exists between Kiwanuka’s interest divergence, (or
people’s sovereignty) theory discussed above as part of the “peoples”
interpretation, and the “shifting obligation” interpretation: both will
make ethnic groups like Igbos subject to international law. But the
two differ in that the Kiwanuka approach is automatic, (an ethnic
group becomes a subject of international law once it is found to be a
people) something that the shifting obligation interpretation lacks
since it requires that the initial condition for a group’s entry into a
multinational “compact” change for a shift to occur from domestic
into international law.
A. Before Independence: Atrocities Arising from the Slave Trade
and Colonial Rule
1. The Slave Trade
The trans-Atlantic slave trade from the fifteenth to the late nineteenth centuries inflicted a heavy toll on Igbo societies. Combined
with the Arab slave trade that preceded it,132 this traffic in humans
130. An-Na’im, supra note 45, at 109 (quoting D.B. Levin, The Principle of Self-Determination of Nations in International Law, SOVIET Y.B. INT’L L. 1962 at 46).
131. See An-Na’im, supra note 45, at 110.
132. The Arab slave trade took place beginning from the ninth century and encompassed
three slave networks, namely: the trans-Saharan slave trade, which principally sold slaves to the
Mediterranean coastal region; the Red Sea slave trade, which sent slaves to the Middle East and
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lasted for a period of “thirteen centuries and represent[s] thirteen lost
centuries in the struggle toward modernity and human rights in Africa.”133 Altogether the European and Arab slave trades were responsible for the forced removal and enslavement of more than 30
million Africans.134 The fate of the slave, from capture to arrival in
the New World (North and South America, and the Caribbean), was
one laced with human rights horrors.135 About 20 million people were
transported from Africa, resulting in depopulation of large areas of
the continent.136 Professor Umozurike assesses that “[t]he trade was
totally extractive of human resources, negated political, economic, social and cultural development and stultified the growth of civilization”
and that it sired tremendous “personal insecurity” as well as a “degradation in the quality of life.”137 No documentation exists as to the
exact number of people from Igboland lost to the slave trade, but the
figure probably runs into several millions.138 Igboland “was one of the
areas of West Africa most seriously affected by the slave trade.”139
For the entire duration of the infamous traffic in humans until it ended in the nineteenth century, Igbo nationals were exported as
South Asia; and the Swahili coast slave trade, which focused on the Indian Ocean islands and
South and Southeast Asia. This slave trade is sometimes referred to as the Islamic slave trade in
recognition of the fact that it was dominated by the Islamic world. SCHRAEDER, supra note 101,
at 52.
133. Aka, Military, Globalization, and Human Rights, supra note 20, at 378.
134. SCHRAEDER, supra note 101, at 8.
135. According to this account by Professor Umozurike:
The suffering of a slave started from the time he was captured . . . and detailed for the
march to the slave market where he was sold to the intermediary slave-trader. The
tortuous march then started to the coast or river port; the slaves were tied to each
other, with chains around their necks and their hands tied behind their backs.
There, the [W]hite slave trader was waiting for his wares. The slave port and island of
Goree off Dakar . . . has a typical slave fortress–airy rooms upstairs for the traders,
dark and insanitary dungeons downstairs for the slaves awaiting transhipment to the
Americas. The slave ship itself was the ultimate in human degradation, for the slaves
were packed like sardines and left in chains.
Stubborn or sick ones were thrown overboard. . . . It was not unusual to have an
[eighty percent] casualty rate in a boat.
UMOZURIKE, supra note 23, at 16-17.
136. Id. at 17. The trade was utterly wasteful of African lives: for about “every 300 slaves
that survived in the [New World], [about] 700 had died–500 during the raids and the march to
the coast, 125 in slave ships, and [75] after landing in the New World.” Id. (citing 1 DOCUMENTS
137. Id.
138. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 46-47; see also ISICHEI,
GENESIS OF A RELATIONSHIP, supra note 65, at 43 (providing rough estimates of the number of
slaves involved).
139. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 46-47.
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slaves.140 Igbo slaves constituted a major proportion of the estimated
20 million people transported to the New World.141 European slave
traders used techniques that gave little regard to human rights, such as
kidnapping and “wars,” to acquire slaves in Igboland,142 and Igbo
slaves shared quite a bit of the already recounted disabilities for slaves
that characterized the middle passage, including deprivations of life,
freedom, and unspeakable indignities. The casualties from the trade
also included those Igbo slaves who, upon arriving in the Western
Hemisphere, committed suicide, preferring death to captivity in a foreign land.143
In addition to the described general effects on African societies,
the trade also had negative ramifications for the texture of Igbo life,
effects, as the historian Professor Isichei points out, evident in evils
such as human sacrifices, trials by ordeal, and the prevalence of kidnapping.144 Although Igbo elites, like their counterparts in other African societies, took part in the overseas slave trade, the collaboration
does not minimize European culpability; the ignominious trade in
humans was by and large “a one-sided relationship, founded and
maintained on [European] threat of force.”145 As Basil Davidson explains, “Africa and Europe were jointly involved. . . . Europe dominated the connection, shaped and promoted the slave trade, and
continually turned it to European advantage and to African loss.”146
Nonetheless, application of the human rights concept to the period
poses a problem because human rights practice today, as opposed to
freedom or the idea of rights, is a recent development that is traceable
only to the formation of the UN system after World War II.147 In any
case, violations during this period preceded the formation of presentday Nigeria and would therefore not qualify as abuses “in Nigeria.”
140. Id. at 45. The territory that later became Nigeria was once called the Slave Coast, in
testimony to the huge slave activities that went on there for hundreds of years. MICHAEL
CROWDER, THE STORY OF NIGERIA 53 (4th ed. 1978).
141. See ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 47 (articulating features
which made Igboland “particularly susceptible” to slave raiding).
142. Id. at 45-47.
143. See discussion supra note 96 and accompanying text.
144. ISICHEI, GENESIS OF A RELATIONSHIP, supra note 65, at 59-60.
145. Elikia M’Bokolo, Who Was Responsible?, in GLOBAL STUDIES: AFRICA 201-02 (F. Jeffress Ramsay ed., 7th ed. 1997).
TRADE (1961)).
147. Aka, Military, Globalization, and Human Rights, supra note 20, at 375-76.
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2. British Colonial Rule in Nigeria
In contrast to atrocities during the slavery era, violations that occurred during the colonial period qualify as abuses in Nigeria, given
the evolution during this era of a government, albeit non-indigenous,
charged with the responsibility of enforcing human rights. British control of Nigeria took place from the late nineteenth century until the
country’s independence in 1960. Colonial control is inconsistent with
any notion of human rights since it negates the right of people to determine their destiny for themselves rather than have foreigners do so
for them.148 European colonial institutions were primarily “structures
of exploitation, despotism, and degradation”;149 colonialism, wherever
it existed in Africa, was something “imposed by violence, and maintained by its potential capacity for violence.”150 Europe had little in
the way of a human rights plan for its colonies in Africa beyond their
use as sources for raw materials for European industrialization and as
markets for excess outputs.151
In addition to these general features, there were also some important senses in which British colonialism impacted Igbos differently as
an ethnic group with negative ramifications for their individual and
collective human rights. First, British “indirect rule” in Igboland destroyed the accountability that was an important feature of the traditional Igbo governance system.152 Second, because Igbos resisted
colonialism more fiercely than any other Nigerian people, “[t]he conquest of Igboland took over twenty years of constant military action”153 with more room for abuse of Igbo human rights than would
probably otherwise have been the case. Instances of violence targeted
at the Igbo nation that occurred during the period of British colonial
rule in Nigeria include the Aba Women’s War of 1929 (revealingly
often referred to as “riots”), in which over fifty women were killed by
British forces;154 and the bloodbath in 1948, minimized as the “Enugu
148. Id. at 371-81.
149. Robert Fatton, Jr., Liberal Democracy in Africa, 105 POL. SCI. Q. 455, 457 (1990).
150. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 119.
ed. 1965).
152. EZENWA-OHAETO, CHINUA ACHEBE: A BIOGRAPHY 220 (1997) (citing the views of
Chinua Achebe). The classic work depicting the enormously devastating impact of British
colonialism on Igbo traditional society is CHINUA ACHEBE, THINGS FALL APART (1959).
153. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 119 (emphasis added).
154. See COQUERY-VIDROVITCH, supra note 99, at 162-65.
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Colliery Shooting Incident,” in which twenty-one coal miners were
killed, and fifty-one wounded.155
Third, the foundation for the pattern of abuse of Igbo human
rights with impunity by other ethnic groups, which came to characterize post-colonial Nigeria, was laid during British rule.156 Two incidents which require mentioning are the cold-blooded killings of
hundreds of Igbos and the destruction of Igbo property and wealth,
usually characterized as “riots,” that occurred in 1945 and 1953, respectively, in Jos and Kano,157 two metropolitan cities in the North
with high populations of Igbos. A constitutional conference in 1954
acknowledged “the deep realities of the [Kano] confrontation.”158
The destruction also convinced British colonial authorities that Nigeria, “if it was to be a nation, must be a federation, with as few subjects
reserved for the Central Government as would preserve national
unity.”159 But little other corrective action took place; mere acknowledgment of the gravity of the attacks could only be cold comfort for
those damaged by the unprovoked atrocities.
Finally, for those enamored of the civilizing effect of European
colonialism, British rule produced few socioeconomic human rights
for Igbos. In 1918, the colonial government devoted only about 1% of
its budget in Nigeria on education, an allocation that increased to only
between 3% and 4% by the 1930s.160 These allocations stand little
comparison, for example, to the Eastern Nigerian government, which,
as a self-governing unit in 1958-1959, spent over 40% of its revenue on
education.161 Because of the low colonial investment in education,
Igbos had no university graduates until the 1930s.162 In short, as Professor Isichei states poignantly in her work on Igbo history, “The im155. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 204.
156. KIRK-GREENE 1, supra note 86, at 10, 12, 15; see also OHA-NA-EZE, PETITION, supra
note 100, at 9 (persuasively arguing that the Civil War from 1967 to 1970 was a culmination of
“the forces of ethnic particularism, which had been artificially repressed during the colonial
157. KIRK-GREENE 1 supra note 86, at 10; Aka, Nigeria Since May 1999, supra note 58, at 221
n.66. The problem with appellations like “riots” in describing what happened is that they give
little sense of the extent of destructiveness involved nor of the premeditation and deliberateness
preceding the particular act of violence. For example, the Kano uprising caused such damage as
to “necessitate the deployment of troops on a scale unprecedented in the North since the pacification era of fifty years earlier.” KIRK-GREENE 1, supra note 86, at 10. Such destructiveness
must have been anything other than the “spontaneous,” uncoordinated action of a “mob.”
158. KIRK-GREENE 1, supra note 86, at 10.
159. Id. (quoting the Colonial Secretary’s diary).
160. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 185.
161. Id.
162. Id. at 188.
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portant thing to the historian of Igboland is the sobering reflection
that after half a century of colonial rule and mission, over 80% of the
population was illiterate.”163
B. From Independence to 1970: Atrocities Arising from Massacres
and a Civil War Conducted in Willful Breach of the
Geneva Convention
Human rights atrocities against Igbos in the years after independence until 1970 arose from two successive, horrific tragedies, namely:
(1) the wanton massacres of Igbos living in northern Nigeria by
Hausa-Fulanis in 1966; and (2) the Nigerian government’s conduct of
the civil war from 1967 to 1970.
1. The Massacres of 1966
The massacres followed a bloody counter-coup in July 1966, supposedly staged by northern soldiers to avenge what they believed to
be an Igbo-inspired coup that had taken place six months earlier.164
163. Id. at 199.
164. Despite the ethnic distribution in the casualties of the January 1966 coup in favor of
Igbos and against Hausa-Fulanis and Yorubas, uncontradicted findings since 1966 have not validated the allegation that this first military coup was Igbo-inspired. Rather, the coup was a wellmeaning attempted take-over that was poorly executed. The coup failed in the Eastern and MidWestern Regions and Lagos where no important politicians or military officers died compared to
the Northern and Western Regions where the failed takeover was executed as planned and
therefore resulted in the killings of important politicians and military officers. For one thing, it is
inconceivable that Igbos would mastermind a coup to overthrow a government that was headed
as President by one of their own, Dr. Nnamdi Azikiwe. Though under Nigeria’s then-prevailing
parliamentary government, real power resided in the Prime Minister rather than the President,
the President still served as a symbol of the entire country. At least the Nigerian federal government was then partly Igbo-headed and partly northern-(or Hausa-Fulani) led. A second reason
why the coup could not have been Igbo-inspired was that the plotters desired to release Chief
Obafemi Awolowo, a Yoruba leader, then doing time in prison for the treasonable felony of
plotting to overthrow the government, and make him Prime Minister. An Igbo-inspired coup
designed to assert Igbo domination of the country would not be making a Yoruba Prime Minister. Third, rather than just Igbos, other ethnic groups, such as the Yorubas, participated in the
coup which, as already indicated, would have installed Yoruba’s Chief Awolowo as Prime Minister if it had succeeded. Fourth, Major-General Johnson Aguiyi-Ironsi, an Igbo, who became the
Head of State and arguable beneficiary of the coup was not part of the coup plan and was only
invited to take office by virtue of his position as the most high-ranking military officer and general commander of the armed forces at the time. Ironsi was, in fact, on the list of military officers the plotters penciled down for elimination. The army leadership under General Ironsi
accepted the request of what was left of the badly-shaken political class to restore order on the
condition that it hold power temporarily until matters stabilize. See Dr. Azikwe, Statement to
the Press in England, Jan. 16, 1966, reprinted in KIRK-GREENE 1, supra note 86, at 127-29. Except for the North where the reaction was more mixed, public opinion across the country welcomed the news of the military takeover with joyous enthusiasm. IGBOKWE, supra note 88, at 12;
ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 244. So, as it turned out, none of the
grounds Hausa-Fulanis adduced for perpetrating the 1966 massacres have any validity. The plot
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The counter-coup practically wiped out the officer corps of Igbos in
the Nigerian army, including the Head of State, General Aguiyi
Ironsi, who was abducted by the mutinous soldiers and murdered.165
The northerners blamed General Ironsi for promulgating a decree
that unified the civil services of Nigeria, until then regionalized.166
The accompanying massacres claimed over 100,000 innocent Igbo civilians.167 The violence on Igbos included looting and destruction of
valuable Igbo property and investments, such as homes, shops,
schools, and businesses.168 These losses do not include permanent
psychological and emotional traumas the horrific experience left on
individuals lucky enough to survive the killings.169 On top of all of
these, about 2 million Igbos living in northern Nigeria fled to the Eastern Region, leaving behind their jobs and whatever personal belongings that had not already been destroyed by their northern
was a purely military affair that had nothing to do with any imaginary Igbo conspiracy to eliminate northern control and dominate the country. OHA-NA-EZE, PETITION, supra note 100, at 10;
see also Larry Diamond, Nigeria: Pluralism, Statism, and the Struggle for Democracy, in 2 DEMOCRACY IN DEVELOPING COUNTRIES: AFRICA 33, 43 (Larry Diamond et al. eds., 1988) (debunking the “ethnic motive” adduced for the coup and commenting that “the coupmakers struck
primarily ‘to end a corrupt and discredited despotism that could only be removed by violence’ ”).
Something was needed to stop the “endless course of chaos and destruction before January 15,
1966” that seized the country, IGBOKWE, supra note 88, at 11, and this first coup did that. Unlike
the second coup, the first coup has sired a number of studies, some of them by the participants
165. OHA-NA-EZE, PETITION, supra note 100, at 11 (estimating the number of Igbo military
officers killed in the coup, including General Ironsi himself, to be over 300).
166. Like the allegation based on Igbo conspiracy to dominate the country, the ground for
the mass massacres, anchored in the Unification Decree No. 34 of 1966, released by the Ironsi
government, is also without foundation, given that subsequent military governments, all of them
headed by non-Igbos, have used exactly the same command structure of unitary system conceived by General Ironsi. Id. at 10.
167. See OSAGHAE, supra note 87, at 63 (putting the number of casualties at 80,000 to
100,000, not counting the “several thousands more wounded”).
168. OHA-NA-EZE, PETITION, supra note 100, at 15; see also OSAGHAE, supra note 87, at 69.
169. See OHA-NA-EZE, PETITION, supra note 100, at 15.
170. See O’Brien, supra note 104, at 14; Ojukwu Rules Out Surrender, reprinted in 2 A.H.M.
at 174 (1971) [hereinafter KIRK-GREENE 2]. To get a sense of how progressively nightmarish
things became over time, by 1969, nearly 6 million refugees existed in the East. Conor Cruise
O’Brien, Biafra Revisited, N.Y. REV. BOOKS, May 22, 1969 (quoting the Biafran Rehabilitation
Commission, an agency that oversaw the welfare of refugees in Biafra). The massacres and
resultant exodus to the East turned Igboland into a region of people “impoverished from top to
bottom.” Diamond, supra note 77, at n.10.
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The result was a mass exodus of dispossessed people, which, had
it occurred across international borders, rather than domestically,
would have been “classified among the great refugee problems of the
twentieth century.”171 Although most of the deaths occurred in the
North, killings of Igbos also took place in other non-Igbo parts of the
country.172 Also, besides Hausa-Fulanis, other ethnic groups, including Binis, Idomas, Tivs, and Yorubas, also participated in the massacres.173 To allay Hausa-Fulani fear of Igbo domination, General
Ironsi appointed a northerner, Yakubu Gowon, as second-in-command, and surrounded himself with northerners.174 These well-meaning gestures appeared to have served little purpose, just as the shift in
control back to northerners did not stop the killings of innocent Igbos.
Rather than stop the violence, Nigerian soldiers actually incited and
participated in the killings175 while the national government now
under General Gowon176 looked on.
Some of the methods used in the killings were surpassingly brutal
and barbaric.177 They included throat slitting, beheading, cutting open
pregnant women and killing their unborn children, and burying people alive in deep wells. Consider also the unimaginable torture—
plucking victims’ eyes out of their sockets, cutting their tongues, cutting their testicles, abduction of Igbo girls from their homes, rape,
forcing Igbo women into sexual intercourse with mad men, and forcing Igbo girls into sex in leper colonies.178 The deliberate nature of
171. O’Brien, supra note 104, at 14.
172. OHA-NA-EZE, PETITION, supra note 100, at 13.
173. Id. Some Tivs turned fatally upon Igbos who passed through Tivland as they headed for
Igboland. OHA-NA-EZE, PETITION, supra note 100, at 13.
174. The New York Times, in fact, initially incorrectly speculated General Ironsi’s downfall
“as a second southern coup, this time engineered by more young Turks . . . reportedly dismayed
by . . . [Ironsi’s selling out] to the Moslem North.” KIRK-GREENE 1, supra note 86, at 53 n.4; see
THOUGHTS OF C. ODUMEGWU OJUKWU 4 (1969) (calling Ironsi’s policy toward the North
175. See, e.g., ISICHEI, HISTORY OF THE IGBO PEOPLE. supra note 4, at 245 (quoting a book
on Nigeria by a foreign scholar); WILLIAM D. GRAF, THE NIGERIAN STATE 45 (1988).
176. See infra note 186.
177. In its petition to the Oputa Panel, Oha-na-eze called the methods of killings “more
bestial and gruesome than the worst holocaust in history.” OHA-NA-EZE, PETITION, supra note
100, at 15. One individual who testified at the Oputa Panel appeared to share the same view
when he called the methods “the most sadistic and inhuman methods that made Jewish holocaust appear like mercy killings.” Uba Aham, Biafra, THENEWS, May 21, 2001, at 26.
178. OHA-NA-EZE, PETITION, supra note 100, at 14-15; see also NTIEYONG U. AKPAN, THE
supra note 4, at 245-46. Akpan, who was Chief Secretary in the Biafran Government during the
civil war, described the “obvious horror” which struck some dignitaries from Western Nigeria
who visited a public hospital in Enugu, the Eastern Nigerian and later Biafra capital, where the
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the acts, coupled with the uncontradicted official participation of the
Gowon government in the misconduct, or its complicit stance in the
face of a legal duty to put a stop to the atrocities, supported the contention by people who viewed the massacres as pogrom, genocide, or
ethnic cleansing.179 Each of these assessments finds justifications in
the facts.180
As the Igbo cultural organization Oha-na-eze argued in its petition to the Oputa panel, the misconduct by the North and their accomplices against the Igbos was an unwarranted and unjustified
“misplaced aggression.”181 Further, as the organization correctly observes, this was the only time in the entire history of a country marred
by numerous coups that the ethnic kindred of the perpetrators of a
coup were visited with killings.182 A 1968 study by a team of over
sixty British subjects, including a former British governor of eastern
Nigeria, into the causes and consequences of the Nigerian civil war,
found the massacres to be “‘an organized affair’” for which “‘there
can be no conceivable justification.’”183 The study noted that Igbos
“were made to feel themselves rejected by the most brutal possible
wounded and maimed were receiving treatment. According to him, the visitors “were all so
shocked that they could not enjoy the hospitality offered them, and before returning home they
surrendered” all money on them “to the Rehabilitation Commission.” AKPAN, supra, at xii.
Akpan also wrote that “[t]he same feeling was evident in the team of top civil servants who
visited Enugu from Lagos and were taken to the same hospital. But what they saw was only a
fraction of the story.” Id.
179. Oha-na-eze uses the three terms, or at least two of them, interchangeably as the following sentence indicates: Both in scale and method of execution, the killings represented “the most
heinous crimes in human history,” given their commission “with such absolute impunity that
even dangerous vermins that exist outside the law seem to enjoy more rights. The crimes were
as wide in scope as the genocide against the Jews but more sadistic and inhuman in implementation than the holocaust.” OHA-NA-EZE, PETITION, supra note 100, at 15 (emphasis added); see
also id. at 11, 12, 18 (referencing the killings as “genocide”). Such assessment agrees with the
findings of judicial inquiries such as the Onyiuke panel, after Hon. Justice G.C.M. Onyiuke, a
Justice of the Court of Appeal, established by the Government of Eastern Nigeria. The commission based its findings on evidence it collected from 235 surviving victims and eyewitnesses. Id.
at 11. The Eastern Nigerian government also assessed the mass killings as pogrom, see its 1966
publication under this title quoted in KIRK-GREENE 1, supra note 86, at 12-13, as well as “premeditated murder.” Id. at 449.
180. There was one account provided by the Eastern Nigerian government in a publication
appropriately titled “pogrom” where Igbo student survivors of the mass killings from institutions
of learning in Northern Nigeria had “all the fingers of their right hands chopped off—that would
help in curtailing, they were told, the educational lead of Eastern Nigeria over the North.”
KIRK-GREENE 1, supra note 86, at 13 (quoting GOVERNMENT OF EASTERN NIGERIA, POGROM 7
181. OHA-NA-EZE, PETITION, supra note 100, at 10.
182. Id.
183. Elbert et al., supra note 91 n.6 (Stanley Diamond replying to responses to his book
review, Diamond, supra note 77).
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means from the North and from Nigeria as a whole.”184 Revenge killings of northerners said to have taken place in Enugu and other parts
of Eastern Nigeria,185 were a spontaneous response to the gruesomeness of the northern attack on victims who survived, and were
dwarfed by the surpassing scale of violence and brutality perpetrated
by northerners.
2. Conduct of the Biafran War
a. Partition of the Nigerian Government and Surveying the Scale
of Igbo Destructiveness in the Conflict
Two regimes emerged in Nigeria that did not see eye-to-eye in the
aftermath of the July 1966 coup and the massacres of Igbos. These
were the Nigerian regime in Lagos under General Gowon that replaced the Ironsi government and the Eastern Nigerian government
under General Chukwuemeka Odumegwu Ojukwu,186 headquartered
in Enugu, which did not recognize the new government in Lagos.187 A
hardening of positions took place between the two sides,188 both of
which traded unfriendly charges and recriminations between each
other.189 Attempts at peace talks within the country failed to break
184. Id.
185. AKPAN, supra note 178, at xii.
186. Both Ojukwu and Gowon were promoted Generals of their respective armies during
the war, Gowon following the start of the civil war in July 1967 and Ojukwu in 1969. See
army recognizes Ojukwu by his rank before the civil war, rather than as General. KIRK-GREENE
1, supra note 86, at 98. The two major figures in the civil war are addressed henceforth in this
Article as General both in testimony to the fact of their promotion to this rank and because of
the practice of referring to top soldiers, especially those who also held political office, as generals, regardless of their actual rank, in the same way that college instructors, irrespective of their
real ranks, are often called “professors” in the United States.
187. Ojukwu’s position, which remained consistent throughout the war, was that Gowon
headed “a government of rebels who had kidnapped their Supreme Commander [referring to
the murdered General Ironsi]. To accept him would be the acceptance of permanent indiscipline
within the Army.” See KIRK-GREENE 1, supra note 86, at 392; see also OJUKWU, supra note 174,
at 157.
188. See KIRK-GREENE 1, supra note 86, at xii (stating that the Ojukwu government represented “a tenaciously felt desire for the extension of the right to self-determination beyond its
colonial context,” and the Gowon government “a no less fervently held and a legitimately
founded belief in the indivisibility and integrity of ‘one Nigeria’ ”).
189. See id. at 13 (conveying that the Hausa-Fulani-dominated Gowon government accused
Igbos of being “militantly chauvinistic,” creating “apprehension in the minds of others,” while
the Ojukwu government accused Hausa-Fulanis of nursing the mind frame that “there can be no
peace and unity in Nigeria unless the country is ruled and dominated by the North”). See also id.
at 389 where during a conference, General Ojukwu charged: “[T]he Northern idea of unity is
that of horse and rider, the horse being the rest of the country and the rider being the North . . . .
The Ironsi regime was overthrown because it happened to be headed by a person who was not of
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this polarization.190 A peace conference in Aburi, Ghana, in 1967,
held at the instance of the Ghana government at which the parties
worked out an agreement for a loose confederal government,191 initially appeared to hold the promise of breaking the deadlock.
Alternatively, not only did General Gowon abrogate the agreement,192 but he also subsequently proceeded to unilaterally carve the
country into twelve states,193 without consulting the Eastern Nigerian
government.194 It was in this setting that the Eastern Nigeria Consultative Assembly, a kind of legislature,195 instructed the Ojukwu govNorthern origin . . . . The pogrom had been directed against Easterners because the North saw in
them a source of obstacle to their eternal domination of the country.”
190. See Summary of Proposals, reprinted in KIRK-GREENE 1, supra note 86, at 245-54.
191. See Official Records of the Minutes at the Meeting in Aburi, reprinted in KIRKEGREENE 1, supra note 86, at 315-40.
192. See Statement, Government of Tanzania, Tanzania Recognizes Biafra (Apr. 13, 1968),
reprinted in KIRK-GREENE 2, supra note 170, at 209 [hereinafter Tanzania Recognizes Biafra]
(“[T]he necessity for an arrangement which would take account of the fears created during 1966
was accepted at Aburi, and renounced thereafter by the Federal Authorities.”); see also General
Gowon’s broadcast to Nigerians emphasizing why “the idea of a temporary confederation”
agreed to at Aburi would be “unworkable,” reprinted in KIRK-GREENE 1, supra note 86, at 30610. Gowon stated that he was “confident that Nigerians can agree on a constitution which will
preserve the integrity of the country and satisfy the aspirations of the vast majority of our people.” He did not accomplish this goal.
193. See Gowon’s Broadcast to the Nation Dividing Nigeria into Twelve States (radio broadcast, May 27, 1967), reprinted in KIRK-GREENE 1, supra note 86, at 444-49.
194. The state creation exercise divided the Northern Region into six and the Eastern Region into three while leaving the Western Region and Mid-Western Region intact. The MidWestern Region was too small to be carved into more than one state. But General Gowon
needed to ingratiate the Yorubas whose leaders’ support he would need in the war to come. The
exercise put Igbos, bereft of all access to the sea, into one state denoted the East Central State
and created two states for eastern minorities with a combined numerical population much less
than the Igbos. Before 1967, these minorities advocated for only one state, known as the Calabar-Ogoja-River (or COR) state, but by this exercise General Gowon gave them two, one state
more than they requested. The Eastern Nigerian government portrayed the decree implementing the exercise as a “one man coup d’etat,” adding that the Eastern Region viewed itself as
“neither a part of [Nigeria] nor a nation in her own right–a state of affairs which the [14] million
people of Eastern Nigeria could not continue to suffer.” KIRK-GREENE 1, supra note 86, at 97.
The state creation exercise put one part of Igbos into Rivers State, another into the Mid-West,
yet others into Cross River State, and left the rest of Igbos isolated and landlocked in what was
called East Central State. It was, according to Oha-na-eze, an act “calculated to paralyze” the
Igbos “and incite [their] neighbors against” them. OHA-NA-EZE, PETITION, supra note 100, at 16.
For similar assessments of this measure, see KIRK-GREENE 1, supra note 86, at 97 (calling the
state creation exercise “a ploy to strike at the very concept of a viable, sovereign Biafra and
reduce it to nothing more than an impoverished, landlocked, over-populated Ibo province,” but
also noting: “Gowon’s shrewd move to block secession turned out to be the final pressure on the
trigger releasing the explosion”); Senator Eugene McCarthy, Speech Urging American Intervention, May 16, 1969, reprinted in KIRK-GREENE 2, supra note 170, at 401, 402-03 [hereinafter
McCarthy, Speech] (calling the twelve-state structure an action designed to confine Igbos “to a
crowded, infertile region smaller than their ancestral homeland, with no access to the sea” to
“break their influence”).
195. Professor Kirk-Greene called the Consultative Assembly “the parallel to what the other
Regions had called leaders of thought.” KIRK-GREENE 1, supra note 86, at 59. This is an unfair
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ernment to declare Eastern Nigeria independent as the Republic of
Biafra “at the earliest practicable date,”196 a mandate General
Ojukwu implemented three days later on May 30, 1967.197 Easterners
felt they were leaving a country that no longer wanted them;198 Igbo
resolve to leave Nigeria grew in the wake of the pogroms.199 In the
language of one Biafran government statement, “Living together with
Northerners had been intolerable from the beginning: By the end of
1966 it had become impossible.”200
Following General Gowon’s rejection of confederation as unworkable, university students in Eastern Nigeria demonstrated with
placards proclaiming “the push is complete,” a reference to General
Ojukwu’s promise that the East would not secede unless it was pushed
out.201 Judging by demonstrations all across Eastern Nigeria favoring
separate existence, “[i]t was . . . obvious by May 1967 that most Easterners preferred secession to any other form of association with the
rest” of Nigeria.202 Easterners based their decision to leave Nigeria
on liberal political philosophy (they are holders of “inalienable
rights”) and immediate security needs (they “can no longer be proassessment that fails to give credit where it is due to the pronounced democratic quality of the
Eastern Nigeria and later Biafran government, in contradistinction to Nigeria where a military
junta kept all power and did not bother to engage in any pretense of basing governmental decision on any input from the citizenry. One U.S. senator who lambasted “the bankruptcy of
American policy of ‘one Nigeria–at any cost,’” was convinced that “Biafra . . . has demonstrated
that it represents the interest of its people.” McCarthy, Speech, supra note 194, at 405.
196. OJUKWU, supra note 174, at 191-94; ‘The Republic of Biafra’: Resolution by the Eastern
Region Consultative Assembly (adopted May 27, 1967), reprinted in KIRK-GREENE 1, supra note
86, at 449-50.
197. See OJUKWU, supra note 174, at 193-96; Ojukwu Secedes and Declares the ‘Republic of
Biafra’ (May 30, 1967), reprinted in KIRK-GREENE 1, supra note 86, at 451-53. May 30 has symbolic importance for Igbos and other Easterners since, as Professor Kirk-Greene correctly points
out, “this was the anniversary of the bloody riots against the Igbo in the North which Biafra now
regarded as the first of the intimidating moves to cast her bodily out of” Nigeria. KIRK-GREENE
1, supra note 86, at 97-98.
198. See id. at 8 (recounting the Eastern Nigerian position that “Biafra did not secede: Biafra
was pushed out”).
199. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 246 (“Before September
[1966], only a small minority had advocated secession. After September, it was probably the
wish of the majority.”).
200. Biafran Memorandum Circulated to Heads of State at O.A.U. (Sept. 1967), in KIRKGREENE 2, supra note 170, at 168.
201. KIRK-GREENE 1, supra note 86, at 73. For the source of Ojukwu’s “complete push”
statement, see the text of his March 13, 1967 conference, in id. at 393. The Biafran leader said
push would become complete if Eastern Nigeria was either attacked militarily or via an economic blockade. Id.
202. IGBOKWE, supra note 88, at 14; see also Diamond, supra note 77 (observing that “[e]very
hamlet geared itself to a war economy: even young children declared themselves Biafran and
stood guard, shouldering wooden guns, at village cross-roads.”).
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tected . . . by any government based outside Eastern Nigeria”)203 that,
properly considered, tie into a singular hard fact: Igbos and other Easterners have “certain inalienable rights which can best be preserved”
only by an Eastern government.
The Nigerian government responded to the declaration of independence with a war it started on July 6, 1967.204 General Gowon
billed the war as a surgical “police action,” something in the nature of
a blitzkrieg that will require “only a few hours.”205 In actuality, however, his government underestimated the depth of Igbo umbrage arising from the mass massacres and the Igbo will to resist, and the war
dragged on until January 15, 1970,206 1000 days after it started and 4
years after the first military coup in Nigeria.207 In resorting to force,
the Nigerian government acted contrary to the Aburi agreement that
forbade the use of force in resolving the dispute.208 It also ignored the
advice provided by some important outside entities that the use of
force could only result in avoidable “estrangement and bitterness . . .”209 The Biafran War claimed the lives of about three million
203. OJUKWU, supra note 174, at 194.
204. See Ojukwu Exhorts His People (B.B.C. radio broadcast, July 20, 1967), in KIRKGREENE 2, supra note 170, at 148 (“Two weeks ago at five o’clock in the early hours of Thursday
July 6, Gowon and his Nigerian junta started the long-promised and awaited invasion of Biafra,
thrusting almost simultaneously at four different points . . . .”); see also TOYIN FALOLA ET AL.,
205. KIRK-GREENE 1, supra note 86, at 111.
206. See Lt.-Col. Effiong Announces Surrender of Biafra (Biafran Radio Broadcast, Jan 12,
1970), reprinted in KIRK-GREENE 2, supra note 170, at 451-52; General Gowon Welcomes Biafra’s Surrender (Radio Broadcast, Jan. 12, 1970) (Federal Ministry of Information Press Release
No. 31/1970), reprinted in KIRK-GREENE 2, supra note 170, at 451-52.
207. KIRK-GREENE 2, supra note 170, at 462. Detailed narrative on the military events connected with the Biafran war is outside the scope of this Article. More-or-less objective accounts
of the conflict include: ZDENEK CERVENKA, THE NIGERIAN WAR 1967-1970 (1971); FREDERICK
AND NIGERIA (1972). Other accounts, of course, include Professor Kirk-Greene’s two-volume
chronicle, KIRK-GREENE 1, supra note 86, and KIRK-GREENE 2, supra note 170, and STREMLAU,
on the international politics of the war, see infra note 232, all of which are cited in this study.
Finally, a portion of ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 241-56, Professor
Isichei’s book on Igbo history, appropriately titled “The Uses of [Igbo] Autonomy,” integrates
summary commentaries on the actual evolution of the war.
208. Gowon conceded that “[i]t is true that at Aburi we all signed an undertaking not to use
force in an attempt to settle our present difficulties in the country,” but that he was “in honor
bound to defend the integrity of the country even if we have to use force.” Gowon’s Private
Address to Heads of African Diplomatic Missions in Lagos, Mar. 1, 1967, reprinted in KIRKGREENE 1, supra note 86, at 372.
209. Statement on Arms Supplies by the Church of England (Aug. 18, 1967) (issued on behalf of British Missionary Societies, Church Missionary Society, Church of Scotland Foreign Mission Committee, and the Methodist Missionary Society), in KIRK-GREENE 2, supra note 170, at
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Igbos,210 displaced or turned several millions into refugees,211 and
completely ruined a region which, before the war, was adjudged one
of the fastest growing economies in the world.212
b. Assessing Allegations of Genocide Regarding the Conduct of
the War
The conflict in Biafra was a civil war the Nigerian government
conducted in willful breach of the UN Geneva Convention on the
proper conduct of war. Although it makes little sense, war in and of
itself, even when bitterly fought, does not amount to a violation of
human rights, if it is conducted according to the international rules for
the “humane” conduct of war laid out in the Geneva Convention.213
Some of the diverse, vicious tactics the Nigerian side used to fight the
war included burying people alive; incessant, indiscriminate bombing
of open markets and other non-military targets; deliberate destruction
of houses, farms, livestock and other civilian properties; economic
blockades;214 and torture and other mistreatment of war prisoners.
International outcry against the excesses of Nigerian troops concerning treatment of Biafran prisoners of war and civilians, including
protests by the International Red Cross, compelled the Nigeria government to draw a Code of Conduct for its soldiers.215
General Gowon strove to assure the world that the war was designed only to “quell a rebellion and not to destroy our people”216
whereas his law enforcement personnel operated on the expressed belief that the Igbos “must be reduced considerably in number.”217 An
“International Observer Team” unilaterally set up by Nigeria conceded to allegations of “treatment of Biafran prisoners of war in a
210. See Alexander A. Madiebo, Obasanjo, The Civil War, and Resource Control, VAN(Lagos), June 29, 2001. General Madiebo commanded the Biafran army during the war.
211. See OSAGHAE, supra note 87, at 69.
212. See id. at 172 (disclosing that the war left Igboland “in ruins, with infrastructure and
utilities destroyed and severe shortages of shelter, food, clothing, and medicine”).
213. The Geneva Conventions consist of international treaties dating back from 1864 and
amplified by numerous changes, some as recent as 1978, dealing with a multiplicity of topics,
including the treatment of civilians during war, humane treatment of prisoners of war, and treatment rules relating to care of the wounded and sick. See GERHARD VON GLAHN, LAW AMONG
214. An estimated 2 million Igbo children suffered permanent intellectual retardation due to
malnourishment arising from the economic blockade against Biafra. OHA-NA-EZE, PETITION,
supra note 100, at 24.
215. Id. at 22.
216. General Gowon, Address to 6th Assembly O.A.U. Heads of State (Sept. 6, 1969), in
KIRK-GREENE 2, supra note 170, at 429.
217. O’Brien, supra note 104, at 14.
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manner inconsistent with the Geneva Convention,” as well as “some
evidence of the non-observation of the Convention.”218 These and
other atrocities perpetrated by Nigerian troops were outside “the legitimate demands of combat and conquest.”219 These savageries reinforce the perception by some observers that the war was a
continuation by other means of the massacres of 1966.220 This was the
position of the UN International Committee in the Investigation of
Crimes of Genocide, which investigated the complaint of the Biafran
government that the conflict was a genocidal war meant to wipe out
Igbos. The Committee interviewed 1,082 people representing all of
the actors from the two sides to the civil war.221 Its finding, in the
words of its principal investigator, Dr. Mensah of Ghana, read: “Finally I am of the opinion that in many of the cases cited to me hatred
of the Biafrans (mainly Igbos) and a wish to exterminate them was a
foremost motivational factor.”222
Given the sheer scale of the number of Igbos killed, the civil war
would still arguably have been a genocidal war, even if the Nigerian
side had not adopted the illegal tactics it employed in conducting it.
The 3 million Igbos who perished in the war represented a third of the
Igbo population at the time.223 The Biafran war is ranked as “the
bloodiest civil war of the twentieth century.”224 As one perceptive
observer points out, “[n]o Igbo family in the world escaped the immediate or long-term impact and consequences of this holocaust.”225
More people died in Biafra than the United States lost in all the conflicts it has fought in the course of its entire history, including the
American civil war (1861-65).226
218. OHA-NA-EZE, PETITION, supra note 100, at 23.
219. Id. at 18.
220. Id. at 18; see also Herbert Ekwe-Ekwe, Obasanjo’s Obsession with Biafra Versus Facts of
History, US AFRICA ONLINE, available at
(last visited July 8, 2004) (contending that the Biafra conflict was a war the Nigerian government
and its allies waged “to overwhelm and destroy the corporate ability of the Igbo people to resist
an aggression triggered” by the horrific massacres).
221. See OHA-NA-EZE, PETITION, supra note 100, at 23 (discussing an investigation of the
International Committee in the Investigations of Crimes of Genocide).
222. Id. at 23.
223. Ekwe-Ekwe, supra note 220.
224. See KIRK-GREENE 1, supra note 86, at vii; see also KIRK-GREENE 2, supra note 170, at
462. (calling the war “the biggest, best-weaponed, and bloodiest war in the whole history of
Black Africa”).
225. Ekwe-Ekwe, supra note 220.
226. For the statistics of U.S. war casualties, see Patrick T. Reardon, As Bodies Pile Up,
Support Can Slip, CHI. TRIB., Mar. 30, 2003, at 8. For a description of the casualities in Biafra,
see OHA-NA-EZE, PETITION, supra note 100, at 1-23.
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One Swedish nobleman, touched by the scale of Igbo suffering,
stated, “‘it would take the world fifty years, at least, to understand
what happened.’”227 The loss easily surpassed the 3 million deaths
inflicted on the Congo in the nineteenth century by King Leopold of
Belgium whose troops ravaged Central Africa searching for ivory and
diamonds.228 Some military commanders who observed the ruthless
destruction that Nigerian troops visited on Biafra believe that a foreign occupying force would have shown more sympathy than these
troops did.229 References have been made to abuses Biafran forces
were alleged to have committed during their brief occupation of the
Midwest. Any abuses that might have occurred, however, were reactions in the ordinary course of the resistance of brutal aggression; they
could never compare to the genocidal proportions of the Nigerian side
and, therefore, could not minimize federal atrocities.
Not all Nigerians took part in violating Igbo human rights and
some, such as the playwright Wole Soyinka, who called for a cease-fire
in the war, actually endured incarceration for their pro-Biafra sentiments.230 However, part of the tragedy of the war over Biafra was
the dire paucity of dissenters within Nigerian society to temper the
wanton war tactics of the Nigerian federal government and stem the
scale of Igbo killings.231
227. EZENWA-OHAETO, supra note 152, at 153 (quoting When von Rosen, a Swedish Count).
228. See generally ADAM HOCHSCHILD, KING LEOPOLD’S GHOST (1999). As tragic as it still
is, the Belgium genocide encompassed peoples from a multiplicity of nations that today form the
Democratic Republic of the Congo, Republic of Congo, Rwanda, Burundi, the Central African
Republic, and Angola, whereas the loss from the Biafran war weighed heavily on one single
nation, the Igbos. Ekwe-Ekwe, supra note 220. With about 700 people per square kilometer in
some places, Igboland ranks among the most densely populated land areas in the whole of Africa next only to the Nile Valley. OHA-NA-EZE, PETITION, supra note 100, at 5. So the war was
waged in its totality in a very confined expanse of territory, where the victims did not have access
to a neutral or friendly contiguous state for refuge or succor. IGBOKWE, supra note 88, at 14.
Biafra was “an island surrounded by a sea of hostile neighbors,” including the Cameroons, which
was strongly pro-Nigeria. Ekwe-Ekwe, supra note 220.
229. See, for example, this account documented by a Scottish newspaper in Dec. 1967 where
Nigerian soldiers had two young men in civilian dress the soldiers suspected to be Igbos appear
before them.
“The young lads looked like secondary school students. With the Northern soldiers was
an Efik-speaking soldier. It was his duty to question prisoners [i]n the Efik language.
His job was to see if any spoke Efik with an Ibo accent. These two young lads did. The
soldiers took aim and they were shot on the spot.”
OHA-NA-EZE, PETITION, supra note 100, at 19.
231. What Professor Soyinka did was so otherworldly at the time that some foreign analysts
mistook him for Igbo. See O’Brien, supra note 104, at 17, n.1 (mistakenly but nonetheless significantly, calling the world-class playwright Igbo, even though Soyinka is Yoruba).
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c. The Role of Major Powers in the Defeat of Biafra
The support that major powers gave to Nigeria was a critical factor in the defeat of Biafra.
These powers include Britain and the Soviet Union whose governments supplied arms to the Nigerian regime. Egypt and East Germany, then Soviet allies, served as proxies for the Russians, supplying
pilots who helped Nigerian troops bomb civilian targets in Biafra.
France had sympathy for Biafra but extended no formal diplomatic
recognition. Also, French arms given to the embattled Ojukwu regime, funneled indirectly through French allies in West Africa, never
amounted to anything more than a trickle.
The U.S. government stayed away from taking any side in the
dispute, citing its ongoing entanglement in Vietnam and its deference
to Britain as the former colonial overlord of Nigeria.232 Ironically,
the major foreign powers that supported Nigeria were moved “by a
complex set of economic calculations, and a realistic assessment of
who was likely to win,”233 not by any Biafran argument of self-determination. They maintained their support for Nigeria in the face of
overwhelming sympathy for Igbos within their very populations.234
For all the efforts of the U.S. government to distance itself from
the dispute, Biafra, somewhat like Vietnam, turned out to be an issue
that divided American politicians.235 Some of the strongest Western
advocates for Biafra during the war were U.S. politicians. These top
politicians included Mr. Richard Nixon, who, as a presidential candidate in 1968, lambasted the American government concerning its
“wringing of hands about what is going on” in Biafra.236 President
Nixon lamented, “[t]he destruction of an entire people is an immoral
232. For extensive analysis of the role of these and other foreign powers in the conflict, see
generally STREMLAU, supra note 207.
233. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 247.
234. In both France and the United States, individuals took their own lives in protest of the
killings of Igbos and in protest of their governments’ support for Nigeria. See, e.g., OJUKWU,
supra note 174, at 387; see also ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 247
(disclosing that the Igbo “case won sympathizers all over the world”).
235. In addition to Richard Nixon, see President Richard M. Nixon, Call for American Action on Biafra (Markpress Release no. Gen. 300), reprinted in KIRK-GREENE 2, supra note 170,
at 334-35 [hereinafter Nixon, Call for Action], and Eugene McCarthy, see infra notes 238-48,
George Wallace also took a position in the war but in favor of Nigeria and against the Igbos, see
supra note 97. Also before his death, the civil rights leader Dr. Martin Luther King Jr., also
privately volunteered his services as mediator in the war. KIRK-GREENE 1, supra note 86, at 87.
236. Nixon, Call for Action, supra note 235, at 334-35.
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objective, even in the most moral of wars. It can never be justified; it
can never be condoned.”237
But by far the most outstanding of these American politicians
was Senator Eugene McCarthy who in a speech to Congress on May
16, 1969, lambasted “‘the bankruptcy’ of American policy of ‘one Nigeria—at any cost,’”238 that “has resulted in our accepting the deaths
of a million people as the price for preserving a nation that never existed.”239 Senator McCarthy believed Biafra “ha[d] demonstrated
that it represents the interest of its people.”240 Therefore, Senator
McCarthy advised the U.S. government to support the embattled republic’s right to a separate national existence, extend diplomatic recognition, help de-escalate great-power involvement in the conflict,
promote negotiations to resolve the conflict, and assist in humanitarian relief for its suffering people.241 He disagreed with the position
that American recognition of Biafra would constitute intervention
into African affairs, stating that non-recognition is also intervention
and that, at any rate, the U.S. government had already, in various
ways, repeatedly effectively intervened in Nigerian affairs.242 Some
examples included backing the Nigerian government after it abrogated the Aburi agreements and by exerting pressure on a number of
African countries not to recognize Biafra. Senator McCarthy believed
that sacrifice “of several million people” to defend “the boundaries of
Nigeria imposed artificially by a colonial power” was too high a price
to pay for national unity.243 The U.S. Senator lamented, “[a] strategy
of siege” designed to produce military victory that has instead “produced massive starvation unparalleled in modern warfare.”244 Taking
his audience through the entire history of the country and of the
Biafran conflict, he noted that the Gowon government unilaterally abrogated the agreement reached at Aburi for a confederated union that
could have resolved the conflict.245 He dismissed the twelve-state system General Gowon announced in place of a confederation which he
Id. at 335.
McCarthy, Speech, supra note 194, at 403.
Id. at 401.
Id. at 405.
Id. at 403.
Id. at 405.
Id. at 401.
Id. at 402.
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saw as a device put in place to hurt the Igbos deliberately.246 Senator
McCarthy foresaw mistreatment of Igbos, building on the state creation exercise that would take place after the war.
The “one Nigeria” of the future would have to be postulated upon
the inequality of different tribes. The Ibos and other eastern tribes
who cooperated in forming Biafra would be stigmatized and penalized in many ways. The Ibos would . . . be confined to a crowded,
infertile region smaller than their ancestral homeland, with no access to the sea. They would be deprived of all but token participation in the reconstituted unitary state. At a recent planning
conference in Nigeria, it was declared that it would be [twenty-five]
years before Ibos can be given positions in Nigeria.247
Senator McCarthy addressed possible objections against an independent Biafra and dismissed them one after the other.248 It was not
without good reason that, as Professor Kirk-Greene noted, the U.S.
Senator’s presentation “sent a shiver down the [Nigerian] Federal
d. Key Lessons the War Held for Nigeria
One Nigerian historian opined that the civil war “confirmed the
futility and inadequacy of secession as the solution to attendant
246. It was “particularly designed to confine the Ibos to a small area and to break their
influence,” id. at 402, and it would confine Ibos “to a crowded, infertile region smaller than their
ancestral homeland, with no access to the sea.” Id. at 403.
247. Id. at 405.
248. These include the objections of (1) economic viability, and (2) possible Igbo domination
of minorities. With respect to the first, the Senator argued that eliminating the hostility generated by an artificial political union could release energy for economic development. “Certainly
the technical ingenuity of the Easterners will be stimulated by the independence of Biafra.” Id.
at 404. Also, he said, independence does not preclude economic association, pointing up the
willingness of Biafrans “to co-operate with Nigeria on vital problems of transportation and communication, particularly the use of the Niger River.” Id. (referring to a blueprint on future
association with the rump of Nigeria the Biafran government released in a Biafran Memorandum on Proposed Future Association (Aug. 29, 1967). The text of the memorandum is contained in KIRK-GREENE 2, supra note 170, at 163-65). But in fact, he said, “[a]lmost any
advantage that can accrue from ‘one Nigeria’ can also be achieved by regional economic arrangements such as a common market and a regional development board for redistributing revenues.” McCarthy, Speech, supra note 194, at 404. But assuming not, “it is clear that Nigeria is
viable without the eastern region,” given its “great resources,” and the fact that “it has been able
to forego eastern oil revenues for [two] years while fighting a costly war,” among other reasons.
Id. Turning to objection number two, he said “the national preference of the minority tribes is a
question which can be settled through plebiscites supervised by the United Nations or the Organization of African Unity.” Id. But “[e]ven without some minority tribes, Biafra would be a
populous country by African standards, larger than three-fourths of the African countries. Only
[ten] of some [forty] African countries would be larger.” Id.
249. KIRK-GREENE 2, supra note 170, at 119.
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problems of post-colonial federalism in Nigeria”250 without indicating
what technique would have been adequate as a solution. Such blaming of “secession” is an unsophisticated understanding that overlooks
a multiplicity of factors. For one thing, Nigeria achieved independence as “a federation rather than a nation, with as yet little substance
to the . . . label of ‘Nigerian’ and with future hope rather than present
truth” of indissoluble personhood.251
For another, the conflict was a culmination of numerous crises
and contradictions, going back into the colonial past, that buffeted the
country, including, to illustrate with events in the post-independence
period, the persistent troubles and violence in the Western Region,
controversies over the accuracy of census figures, a devastating workers’ general strike in June 1964, and a dispute over the rigging and
other electoral irregularities that characterized the conduct of the
1964 general elections.252 Third, as one important study on this topic
counsels, the Igbo declaration of independence must be judged
250. FALOLA ET AL., supra note 204, at 30. For a contrarian position, see Beko RansomeKuti, who, in a survey of Nigerian history in which he touched on the fate of Igbos in the aftermath of the massacres, stated that “our collective experience since 1960 leaves no one in any
doubt that the decision to secede by the Igbo was proper and correct,” adding:
You cannot kill tens of thousands of a people, take over the government with arms and
expect them to stay around like sitting ducks especially after unilaterally abrogating a
negotiated settlement. The principle of self-determination is now so well established in
international law that instead of issues degenerating into civil war, this is an option that
has to be held in front of us at all times.
Beko Ransome-Kuti, Vision for New Nigeria, THENEWS, Dec. 20, 1999, at 48. He inveighed
against Nigeria’s 1999 Constitution, which was written for the country by the departing military
without citizen input or participation. The pre-amble of the Constitution declared: “ ‘We the
people of the Federal Republic of Nigeria having firmly and solemnly resolved to live in unity
and harmony as one indivisible and indissoluble Sovereign Nation . . . do hereby make, enact
and give to ourselves the following constitution.’ ” Id. at 49. He calls the preamble a lie designed
to foreclose the right to self-determination, adding that:
The people of Nigeria never sat or met anywhere, not to talk of solemnly agreeing to
anything. As a matter of fact some sections of the country have been through such
degrading and painful times in Nigeria that they might well prefer to live alone or join a
more viable and conducive enterprise rather than continue with the present
Id. Part of those “some sections of the country” Ransome-Kuti refers to in his essay are Igbos.
251. KIRK-GREENE 1, supra note 86, at 12; see also McCarthy, Speech, supra note 194, at 401
(calling Nigeria “a nation that never existed”).
252. See KIRK-GREENE 1, supra note 86, at 15-23; Larry Diamond, Nigeria: The Uncivic Society and the Descent into Praetorianism, in POLITICS IN DEVELOPING COUNTRIES: COMPARING
EXPERIENCES WITH DEMOCRACY 424-27 (Larry Diamond et al. eds., 1995) [hereinafter POLITICS
IN DEVELOPING COUNTRIES]. For an understanding going back into the colonial formation of
(1978) (conveying that “[t]he events constituting the proximate cause of the Ibo separation were
very much a product of the ethnic hostilities that had blighted Nigerian political development all
along”); OHA-NA-EZE, PETITION, supra note 100, at 9 (portraying the civil war as a culmination
of “the forces of ethnic particularism, which had been artificially repressed during the colonial
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against the background of a “history of volatile inter-group rivalry and
conflict, in which . . . the threat of disassociation was a commonplace
instrument of political coercion.”253 Particularly,
the common currency of secessionist talk in all of the Nigerian regions right up to the actual separation of the East in 1967 gave the
Biafrans a reasonable ground for believing that secession was recognized in Nigeria as a legitimate method of altering one region’s relationship to the others, or at least that it would not be strenuously
Igbos were “certainly justified in thinking that some rearrangement of
the political structure toward a looser union of the regions was in order when the head of the federal government, General Gowon, publicly expressed his belief that ‘the basis for unity is not there.”255
Although unsuccessful, the secession was a legitimate act of selfdetermination by the Biafran people.256 There is no stronger evidence
to support Igbo “overwhelming desire for independence” than their
willingness to endure nearly three years of civil war, disease, and famine to achieve that independence.257 Few perceptive observers can
miss the tragic irony of the Biafran war. President Nyerere of
Tanzania noted that Nigeria started a war to crush the Biafrans in
their own home.258 Another analyst reflected that Igbos proudly
called themselves Nigerian nationalists at a time when there was no
Nigerian nation and when no other group thought in these terms.
“Now that they have in very truth formed a nation on their own soil
under the pressures of history they are in the gravest danger of being
put to death in the name of the nation which they once invented.”259
Much more basically, as one group of British citizens poignantly
pointed out, “‘having seen her people driven out by the rest of Nigeria
and hunted back to their homeland, [Igbos] found Nigeria at war with
253. BUCHHEIT, supra note 252, at 164.
254. Id. at 174.
255. Id.
256. See id. at 173-76.
257. Id. at 174.
258. See generally Tanzania Recognizes Biafra, supra note 192; President Julius Nyerere,
Why We Recognized Biafra (printed in OBSERVER, Apr. 28, 1968, and L.A. TIMES, May 5, 1968),
reprinted in KIRK-GREENE 2, supra note 170, at 211-13. Nyerere insisted “every people must
have some place in the world where they are not liable to be rejected by their fellow citizens.”
Id. at 211. For similar positions, see Statement on British Arms Supplies from Biafran Students in
U.K., reprinted in KIRK-GREENE 2, supra note 170, at 150-51, and Biafra Sees Itself as David,
reprinted in KIRK-GREENE 2, supra note 170, at 171-72.
259. O’Brien, supra note 104, at 20.
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her to preserve the integrity of a Federation where her people could
no longer live.’”260
Commentators who take the posture that “might is right” fail to
realize that it is morally unjustified to use coercion to suppress a campaign for self-determination,261 as the Nigerian government did, especially one like the Biafrans’ that was driven by an “overwhelming
desire for independence.”262 Also, as recent events have proven,
force only temporarily suppresses the burning desire of an oppressed
people to self-determine their political destiny; it does not kill it.263
The secession and attendant civil war underscored the fact that
blatant violation of the individual and collective human rights of any
group can have far-reaching consequences for the geographical integrity of a country.264 The war taught Nigeria that “they cannot hurt
[Igbos] with impunity,”265 and that Igbos, like other injured peoples
throughout history, will “resort to arms in their self-defense where
peaceful negotiations fail.”266 The civil war was a major developmental setback for Nigeria; some, like Professor Mazrui, rank the catastrophe as a factor preventing the country from living up to its full
potential as a leader in Africa.267 But the real setback was the failure
of post-war Nigerian leaders to use the opportunity the conflict afforded “to secure the peace” and “lay a solid foundation for a prosperous future” for all its citizens, Igbos as well as non-Igbos.268
260. Elbert et al., supra note 91, at n.6 (Stanley Diamond replying to responses to his book
review, Diamond, supra note 77).
FROM FORT SUMTER TO LITHUANIA AND QUEBEC 27-28 (1991) for an elaboration of this argument around which the book itself revolves.
262. BUCHHEIT, supra note 252, at 174.
263. See infra Part VII(A)(5).
264. Ransome-Kuti, supra note 250, at 48 (“You cannot kill tens of thousands of a people,
take over the government with arms and expect them to stay around like sitting ducks, especially
after unilaterally abrogating a negotiated settlement.”).
265. Ojukwu Exhorts His People, supra note 204, at 149 (the Biafran leader’s broadcast to his
new nation before the war).
266. Lt.-Col. Effiong Announces Surrender, supra note 206, at 451 (surrender statement of
General Philip Effiong).
267. See Ali A. Mazrui, The Bondage of Boundaries, ECONOMIST, Sept. 11, 1993, at 28.
268. Awolowo, Blueprint for Post-War Reconstruction (1967), reprinted in KIRK-GREENE 2,
supra note 170, at 178, 181 [hereinafter Awolowo, Blueprint]; see also John M. Mbaku, Constitutionalism and the Transition to Democratic Governance in Africa, in THE TRANSITION TO DEMOCRATIC GOVERNANCE IN AFRICA: THE CONTINUING STRUGGLE 103, 112 (John Mukum Mbaku
& Julius Omozuanvbo Ihonvbere eds., 2003) [hereinafter TRANSITION TO DEMOCRATIC GOVERNANCE IN AFRICA] (indicating that the civil war afforded Nigeria an opportunity it, unfortunately, failed to seize, to reconstruct its system for the benefit of all groups). Scholars like
Professor Kirk-Greene advised Nigerian leaders to draw a proper lesson for Africa from “the
dark fratricidal days of 1966-70” by remembering the civil war “not as the ‘Biafran War’ ” but as
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“[O]ne ‘of the greatest betrayals of modern times,’” as Professor
Achebe lamented, is the missed opportunity “‘to turn Nigeria into one
of the great nations of Africa, perhaps the leading Black nation.’”269
C. The Post-Civil War Period to the Present: Negation of the PostWar Reconstruction Program and Violations Through
1. Negation of the Post-War Reconstruction Program
The Nigerian national government unveiled a number of policies
after the war designed supposedly to integrate Igbos back into Nigeria
as full citizens and to rebuild infrastructure in Igbo territories damaged during the war.270 The government did not pursue any of these
policies with any sincerity.271 Worse yet, some of the atrocities that
took place in the prior era continued in this new era. These abuses
include widespread killings of unarmed Igbo civilians by Nigerian
soldiers.272 Unarmed Igbo civilians killed within this period included
the distinguished political scientist Dr. Kalu Ezera.273
The government also effectively continued its starvation policy of
the war years by blocking assistance to Igbos from foreign countries
and humanitarian organizations that it perceived to have sided with
Biafra during the war.274 About a quarter of a million Igbo children
an inclusive “War [for] National Unity” that does not end with the military conquest of Igbos.
KIRK-GREENE 2, supra note 170, at 475. There is small indication that the Nigerian leadership,
committed as they have been since the war’s end to containing Igbos, followed the advice.
269. See EZENWA-OHAETO, supra note 152, at 240 (quoting Chinua Achebe). Professor
Achebe maintains that Nigeria as a nation has not been founded. Id. at 237. He argues that any
individual who will correct some of the many ills recounted in his book on the trouble with
Nigeria will be the person whom posterity will come to recognize as the founder of the Nigerian
nation. Id. “But it is difficult, he’s going to rise beyond all that we know today, to be possessed
by this vision of Nigeria as a modern state in the twenty-first century. He can’t be mucking
around with tribalism, with petty religious arguments.” Id.
270. See, e.g., General Gowon’s Victory Message to the Nation, The Dawn of National Reconciliation (Radio Broadcast, Jan. 15, 1970) (Nigerian House Press Release, Jan. 19, 1970), in
KIRK-GREENE 2, supra note 170, at 457, 458 (including that “[t]here is no question of second[]class citizenship in Nigeria.”); see also OHA-NA-EZE, PETITION, supra note 100, at 26 (referring
to the “reconciliation, rehabilitation, and reconstruction” or triple “R” policy).
271. The reason the national government gave for not carrying out promised reconstruction
in Igbo areas was lack of money. But that was a lame excuse, given that this was the very height
of the oil boom when the government was spending money lavishly on foreign aid and prestigious projects, like global cultural festivals, with little economic value for the country. OHA-NAEZE, PETITION, supra note 100, at 29.
272. OHA-NA-EZE, PETITION, supra note 100, at 26.
273. Id.
274. See id. By the end of January 1970, only 80 distribution centers remained out of the
3,000 that existed in Biafra before the surrender; this was far short of the 9,000 estimated as
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died as a result of this post-war starvation policy.275 New tactics in
Igbo deprivations were also introduced into the mix. One of these
was an attempt to destroy education in Igboland. It was a measure
implemented, more or less silently, through a variety of means, including neglect of the University of Nigeria, Nsukka, an important symbol
of Igbo higher education and a major factor in the evolution of
Biafran resistance during the war; stifling or decimating, rather than
nurturing, Igbo war-time technological accomplishments;276 government take-over of missionary and other private schools; as well as a
ban on private ownership of schools in Igbo areas.
A policy that illustrates these new tactics as well as puts this new
era into perspective is the ban on private ownership of schools. East
Central State, the lone state to which Igboland was reduced,277 was
the only state in the country with this policy. The excuse the government gave for taking over private schools was to “combat sectionalism, religious conflicts, and disloyalty to the cause of a united
Nigeria,”278 as well as to promote “the efficacy, order, stability, and
good government of the [Igbo] state in its relationship with the other
states of the Federation.”279
However, the real excuse for the takeover was, as Professor Diamond stated, “to destroy the Ibo sense of nationality, deprive them of
their history, and control both the definition of education and the uses
to which it can be put.”280 To ensure that the new policy has teeth, the
takeover law adopted a broad-based definition of “school.” It defined
a school as a group of ten persons or more “assembled for the purpose
of receiving regular instruction in a form of education of whatever
kind.”281 The enforcement of the law led to sadly ridiculous occurrences where even typing schools were closed down and their proprietors subjected to legal sanction on the ground that they operated
“illegal” institutions. A net effect of the takeover edict was a decline
necessary to reach the population adequately at that time. See Elbert et al., supra note 91 (Stanley Diamond replying to responses to his book review, Diamond, supra note 77).
275. OHA-NA-EZE, PETITION, supra note 100, at 32.
276. Id. at 27 (illustrating with ogbunigwe or remote-control bombs Biafrans invented during
the war).
277. See discussion supra notes 89, 194 and accompanying text.
278. Stanley Diamond, The Ibo’s Plight, N.Y. REV. BOOKS, Feb. 24, 1972 (citing the thenEast Central State’s Public Education Edict).
279. Id.
280. Id. It should have occurred to the government, Professor Diamond reasoned, that modern schools “were, above all, local institutions, whether established by missions, private persons,
or local government councils.” Id.
281. Id. (citing the Public Education Edict).
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in the number of schools in Igboland from 290 before the war to only
190 in 1972.282
To appreciate the weight of the oppression the government’s “no
private school” policy imposed on Igbo education after the war, one
needs to understand the critical role education plays in Igbo world
view:283 “The school, in the modern era, became the major vehicle for
Ibo prestige, individuality, and self-development.”284 The attack on
Igbo education was more broad-based than imagined and extended to
curtailment of cultural exchanges with foreign countries. For example, the U.S. Embassy was not allowed to reopen its library in
Enugu.285 It also included acts like the proscription of the Igbo State
Union,286 established in 1948, which for many years played the role of
vanguard in the promotion of Igbo education. Finally, it also was not
something limited to only the Gowon regime, but rather a policy diligently pursued by subsequent governments. Thus, during his period
in office as military head of state from 1976 to 1979, General
Obasanjo established six polytechnics (technically-oriented tertiary institutions) in various parts of the country, none of which were sited in
In its petition to the Oputa Panel, the Igbo cultural organization
Oha-na-eze requested reparation for the educational institutions and
other civilian targets the Nigerian government bombed during the
war, as well as money to complete the reconstruction of the University
of Nigeria, Nsukka, and its entire library, which was destroyed during
the civil war.288 In sum, rather than pursue reconstruction of infrastructure damaged during the war it had promised to undertake, the
government strove hard to destroy Igbo education.
Other tactics which characterize the period include:
• release of a law denying reabsorption into the army, prisons, and
police, for thousands of Igbo officers.289 More than 4,000 Igbo
282. Id.
283. OHA-NA-EZE, PETITION, supra note 100, at 27.
284. Diamond, supra note 278; see also discussion supra notes 79-80 and accompanying text.
285. Diamond, supra note 278.
286. IGBOKWE, supra note 88, at 108.
287. OHA-NA-EZE, PETITION, supra note 100, at 27.
288. Id. at 24-25.
289. The law in question was the Public Officers (Special Provisions) Decree No. 46 of 1970.
Id. at 27.
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public servants in the police alone lost their jobs as a result of this
• declaring property and investments Igbos left behind in Port Harcourt and other Nigerian cities during the war “abandoned property.”291 General Gowon’s government did not attempt to
address the problem, and subsequent ones that tried did so halfheartedly and unsuccessfully.292 For example, the MuhammedObasanjo government (1975-1976) compulsorily and unconstitutionally acquired some of the property without adequate compensation to their owners.293
• introducing a fraudulent banking policy that paid every Igbo who
had a bank account before the war a level £20 regardless of the
amount or size of their actual savings. (Given that the Nigerian
government, which won the war, viewed the period from May 30,
1967 to January 15, 1970, during which the Republic of Biafra
existed, as illegal, an equitable resolution of the situation, which
the government could have used but failed to use, would have
been to restore all bank accounts to their balances as of May 29,
1967, the date before Biafra came into existence.294) The policy
pauperized the few people of the Igbo middle class who survived
the war.295
• enacting a business indigenization law precisely at a time when
Igbos were still reeling from the effects of the war.296 The timing
of the law ensured the effective exclusion of Igbos, who lacked
the financial muscle to participate, from ownership in Nigeria’s
industrial sector.297 (The indigenization policy effectively “completed the routing of the Igbo from the commanding heights of
the Nigerian economy[,]” from where the banking policy
stopped.298) It turned Igbos from the economic juggernauts they
were before the civil war, to the street traders they have become
today, and is responsible for the skepticism Igbos individually and
290. Id. Notice that Decree No. 46 ran directly counter to the blueprint for post-war reconstruction, designed perhaps to persuade Igbos to give up “rebellion,” that the government released during the war. See discussion infra note 303-04 and accompanying text.
291. IGBOKWE, supra note 88, at 28-29.
292. Port Harcourt, a city in Eastern Nigeria came over time to exemplify the “abandoned
property” issue. What makes this matter so hurtful for Igbos was that Port Harcourt was a city
founded and developed by Igbos.
293. IGBOKWE, supra note 88, at 29.
294. OHA-NA-EZE, PETITION, supra note 100, at 28.
295. See ACHEBE, supra note 83, at 46 .
296. The law in question was the Enterprises Promotion Decree of 1974.
297. OHA-NA-EZE, PETITION, supra note 100, at 28.
298. ACHEBE, supra note 83, at 46.
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as a group have till this day concerning so-called “privatization”
in the country.299
• using so-called “boundary adjustment” exercises, such as the one
the Olusegun Obasanjo government conducted in 1976, to excise
mineral-rich areas of Igboland and transfer those areas to nonIgbo areas.300
Individually and collectively these tactics took the appearance of
a continuation of the supposedly ended war by other means, or stealth
war. In its effort and determination to destroy Igbo spirit and elan
the aftermath of the war, no means seemed too small for the Nigerian
government. To deny Igbo petty traders struggling to recover from
the war a means of livelihood, the national government even imposed
a ban on the importation of used clothing and stockfish.301
2. Nature and Indicators of Igbo Marginalization
The term that has evolved in the latter post-war period to describe the deliberate exclusion of Igbos from the mainstream of Nigerian life is marginalization. It is a policy by the Nigerian government,
deployed to exclude and contain Igbos, using every imaginable means.
Marginalization is an illegal practice that violates the Federal Character Doctrine.302 It is also a practice that negates the Nigerian government’s well-publicized blueprint for post-war reconstruction released
during the war, which committed the government to several courses of
action, among them a promise that “[t]he surviving victims of past disturbances and of the present military operations shall be cared for
299. See Pat Utomi, Minority Question and the Common Good (2), GUARDIAN (Lagos),
Nov. 2, 1999.
300. See discussion infra note 336 and accompanying text.
301. OHA-NA-EZE, PETITION, supra note 100, at 29-30. Second-hand clothing is more economically affordable for a people recovering from a devastating war. Dried stockfish, which is
rich in protein, is a known Igbo delicacy of choice.
302. One of the important innovations of the country’s Second Republic constitutionalism
(1979-83), this doctrine, in pertinent part, provides:
The composition of the Government of the Federation or any of its agencies and the
conduct of its affairs shall be carried out in such a manner as to reflect the federal
character of Nigeria and the need to promote national unity, and also to command
national loyalty, thereby ensuring that there shall be no predominance of persons from
a few States or from a few ethnic or other sectional groups in that Government or in
any of its agencies.
NIG. CONST. § 14 (3). Put differently, to give every ethnic group within the country a sense of
belonging and to promote national loyalty, the doctrine requires that the distribution of appointments, contracts, educational opportunities, or other federal benefits—what Nigerians colloquially dub “federal presence”—reflect the country’s federal character, and not benefit any one
group at the expense of others. No Nigerian leader has applied this principle consistently, not
even General Obasanjo, under whose first government the doctrine was written into the
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with the utmost compassion” and “[a]ll soldiers, no matter on which
side they had fought, shall be rehabilitated and gainfully employed at
the end of the military operations.”303 Under this same blueprint for
post-war reconstruction, the Nigerian national government promised
not only to win these military operations, but also—and this is by
far more important—to secure the peace, which will follow, by guaranteeing political equality and social justice to all Nigerian citizens,
irrespective of their state of origin, ethnic affiliation, religion, social
status, or the side on which they had fought during the rebellion. It
is above all resolved to lay a sound foundation for a prosperous
future for our country and our people.304
Indicators of Igbo marginalization are legion and include, but are
by no means limited to, the following:
• Insufficient representation of Igbos in federal governing and policy-making institutions.
• Blocking Igbos from aspiring to the Nigerian presidency.
• Deliberate exclusion of Igbos as heads of supposedly sensitive
governmental departments, such as the Ministry of Defense and
Ministry of Internal Affairs, and from appointment to key ambassadorial postings such as the U.S., Britain, Japan, Germany, and
• The lack of federal investments in roads, industries, power supply,
communication technologies, water supply, and other items of
“federal presence” in Igbo areas. (For example, Igboland does
not have one international airport even though Igbos are the
most widely traveled people in Nigeria. In contrast, northern Nigeria has international airports in abundance even when they
have no need for them.)305
• Disgracing Igbo army officers before they reached the rank of
general or retiring them with ignominy; removing Igbo army officers from pure military locations (signal, armored battalion,
mechanized division) once they reach the rank of lieutenant-colonel or colonel; assigning Igbo army officers to branches of the
army where they cannot command troops; and having junior
army officers from privileged ethnic groups determine where senior Igbo army officers are to be posted or transferred.
• Permanent military occupation of Igboland
• Discrimination against Igbo states in revenue allocation.
• Non-maintenance and neglect of Igbo highways and roads.
303. Awolowo, Blueprint, supra note 268, at 179.
304. Id. at 181.
305. IGBOKWE, supra note 88, at 55.
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• Failure of Nigerian law enforcement authorities to protect Igbo
lives from being made targets of violence by northern Islamic
• Improper application of the federal character doctrine with respect to Igbos, including the use of the quota system to deprive
Igbo children of places in federal educational institutions.
• Denying Igbos the right to organize or banning Igbo organizations for the flimsiest reasons.
• Closing Igbo businesses on the slightest excuse.
• Hurting Igbo businesses by banning the importation of certain
goods, including used clothing, stockfish, and used cars.
• Disfavoring Igbos in the creation of states and local governments.
Although comprising about a quarter of the Nigerian population,
Igbos have only 5 states compared to 6 for the other zones and
seven for the Hausa-Fulani Northwest. It also has 94 local governments, the lowest among the 6 zones in the country.
• Organizing police commands in the country such that police posts
in the Igbo states are made to report to neighboring police commands outside the Igbo states.
• Unprovoked attacks on Igbo property and molestation of Igbo
entrepreneurs without compensation for the destroyed business
or punishment of offenders who perpetrate these acts.
• Differential taxes against Igbo businesses in many northern states
in the country.
Marginalization calls forth another chapter in the unending ironies that have come to characterize the Nigerian government’s relationship with Igbos: A Nigerian central government that fought hard
during the war to make Igbos part of Nigeria has fought equally hard
in peace time to both exclude them from “top echelons of governance” in Nigeria and to “systematically disempower[ ]” them “in all
spheres” of national life.306 Every post-war Nigerian government,
military and civilian alike, has engaged in marginalization of Igbos.
Occupation of the vice-presidency, the number two position in the
land from 1979 to 1983, by an Igbo, Dr. Alex Ekwueme, temporarily
halted Igbo marginalization but did not have any sustained ameliorative effect.307 Some have characterized Dr. Ekwueme’s vice presi306. OHA-NA-EZE, PETITION, supra note 100, at 9; see also IGBOKWE, supra note 88, at 104.
307. Professor’s Achebe’s book on Nigeria whose topics include an analysis of the “Igbo
problem,” highlighted details of Igbo discrimination in the siting of federal industries that took
place while Dr. Ekwueme was in office. Achebe wrote concerning the Ajaokuta Steel Project
the Russians were building for the country: “Many have tried to ask but nobody has quite succeeded in explaining away the siting of five steel mills worth 4.5 billion naira on final completion
with estimated employment capacity of 100,000 by 1990, only in the North and West of the
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dency as “a mere academic exercise for the East,”308 but I disagree
with the assessment.
The office has important symbolic value, but in a U.S.-type presidential system of government such as the one Nigeria operated then,
it lacked real substantive power since the vice president has only the
powers that the president allows him.
Although all Nigerian governments since the civil war have
marginalized Igbos, some have engaged in the act more than others.
Such was the degree of exclusion during the Sani Abacha regime
(1993-1998), that Gani Fawehinmi, a Yoruba lawyer and progressive
social crusader, took the government to court. Fawehinmi’s prayer
was for more Igbos to be appointed into the Provisional Ruling Council, the military government’s executive policy-making body.309
Fawehinmi’s efforts did not succeed.
Representation improved during the civilian era between 1979 to
1983, even to the point that some hypothesized that democratic governments hold the best chance for Igbo rehabilitation and demarginalization in Nigerian politics.310 Opportunities for civilian government have been limited to begin with in Nigeria, however, and civilian government under General Obasanjo since 1999 has shown that
the “democratic” character of a Nigerian government has no ameliorative effect on Igbo marginalization. Part of the “politics of
marginalization” in Nigeria today is that non-Igbo ethnic groups, including Hausa-Fulanis who have long dominated national politics, also
country.” ACHEBE, supra note 83, at 49-50. The exclusion of the East in the project took place
notwithstanding the fact that feasibility studies showed “that Igboland satisfies the raw material,
transportation, market, and other requirements for the successful establishment” of this and
other industries. OHA-NA-EZE, PETITION, supra note 100, at 44. Specifically, as Dr. Ekwueme
himself conveyed, the Russian Technical Partners recommended in a paper he was privileged, as
vice president, to see, that for Nigeria’s steel project to be viable, it must be sited in Onitsha.
IGBOKWE, supra note 88, at 27. The national government rejected the recommendation, preferring, as Ekwueme says, “to start a new township and provide virtually everything to make the
project take off” rather than use Onitsha where all the facilities for takeoff already exist. Id.
308. IGBOKWE, supra note 88, at 64.
309. Id. at 104.
310. See id. at 64 (“Igbos come very near to power during civilian government than in military government.”); see also OHA-NA-EZE, PETITION, supra note 100, at 9 (suggesting that the
civilian government in office from 1979 to 1983 “tried to reverse” Igbo exclusion from executive
authority “by giving due regard to federal character in the distribution of offices” but was overthrown in time before any change took root).
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claim to be marginalized.311 As the following passage explains, however, Igbo marginalization is qualitatively different:
Igbo marginalization is a cumulative one of a kind no other ethnic
group in the country suffers and therefore deserving of urgent alleviation in a regime, especially a democratic one, committed to equity and social justice. The East was the theater of the Biafra war
whose scars still remain because . . . the planned reconstruction
never happened. Also, some of the ethnic groups in the oil-producing area, such as the Etches and Ikwerre in the Niger Delta are
Igbos. In short, Igbos bear a double burden of neglect the result of
being an oil-producing area and the location of Igboland as a theater of a brutal war whose effects to date still linger. A factor that
reinforces the rankle and sense of injury arising from this marginalization is that the wealth of the nation, since the birth of the country
controlled by non-Easterners, comes from the East.312
3. Evaluating the Argument of Igbo Self-Marginalization
Some observers such as Igbokwe have canvassed the concept of
Igbo self-marginalization.313 However, the concept is one that I find
problematic. I am persuaded by, and find instructive, the distinction
Oha-na-eze made between marginality and marginalization.314 Marginality is “‘[t]he relative or absolute lack of power to influence a defined social entity while being a recipient of the exercise of power by
other parts of that entity.’”315 Marginalization, on the other hand, is
“the deliberate disempowerment of a group of people in the federation politically, economically, socially and militarily, by another group
or groups who during the relevant time frame wield power and control
the allocation of materials and financial resources at the Center.”316
Marginality refers simply to the state or condition of being peripheral,317 while marginalization necessarily presupposes the existence of an external agent(s) with the capacity to disempower or
311. See Minabere Ibelema, Nigeria: The Politics of Marginalization, 99 CURRENT HIST. 211
(2000). Professor Ibelema euphemistically branded the Hausa-Fulani claim of marginalization
“an anomaly in the country’s politics.” Id. at 213.
312. Aka, Nigeria Since May 1999, supra note 58, at 250.
313. See IGBOKWE, supra note 88, at 37-44
314. OHA-NA-EZE, PETITION, supra note 100, at 7-9
315. Id. at 7 (quoting Adebayo Adedeji, Introduction: Marginalization and Marginality: Context, Issues, and Viewpoints, in AFRICA WITHIN THE WORLD: BEYOND DISPOSSESSION AND DEPENDENCE 1, 5 (Adebayo Adedeji ed., 1993)).
316. OHA-NA-EZE, PETITION, supra note 100, at 7.
317. Id.
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exclude.318 In Nigeria those external agents are Hausa-Fulanis and
Yorubas who benefitted immensely from Igbo departure from the
Nigerian system during the civil war from 1967 to 1970.319 During the
colonial era, all ethnic groups operated on a level-playing field, and
the only marginalizers were the British authorities.320 But by the end
of the civil war, these new marginalizers, with their cronies, managed
to assume such control of the country’s common political and economic resources at the expense of Igbos—giving them a total capacity
to marginalize.321
The self-marginalization writers like Igbokwe perceive is, in actuality, marginality or symptoms of marginalization. Igbo leaders since
the war have been individuals imposed upon by Nigerian authorities
who work overtime to help the victors destroy Igbo values and institutions rather than seek to promote the Igbo collective interest.322
There are some of these “leaders” who will argue that even a
marginalized Igbo is still a Nigerian.323 In that case Malcolm’s memorable diner analogy applies in full force.
“I’m not going to sit at our table and watch you eat, with nothing on
my plate, and call myself a diner. Sitting at the table doesn’t make
you a diner, unless you eat some of what’s on that plate. Being here
in America doesn’t make you an American. Being born here in
America doesn’t make you an American.”324
Consistent with Malcolm’s unfaltering logic, Igbos condemned to
second-class citizenship in Nigeria are not really Nigerians. Much
318. Id. at 8.
319. See id. at 9.
320. Id.
321. Id.
322. Professor Achebe significantly assesses the state of Igbo leadership as “bankrupt” in his
important little book diagnosing the ills with Nigeria. ACHEBE, supra note 83, at 48.
323. One Igbo governor, who attributes Igbo neglect to the ethnic group’s participation in
the civil war, pled with Nigeria to “forgive” Igbos. See VANGUARD (Lagos), Sept. 8, 2003 (on
file with author). Biafran veterans of the war did not find the action amusing. General Effiong
who himself performed the Biafran surrender said the governor was not in any position to ask
for any forgiveness since he was too young when the war was fought. The apology is at odds
with the position of Biafran leader General Ojukwu who continues to maintain that he has no
regrets over Biafra. See Auwalu S. Mu’azu, No Regrets Over Biafra–Ojukwu, DAILY TRUST
(Abuja), Feb. 18, 2003, available at
ubb=get_topic;f=1;t=001083 (last visited Oct. 4, 2004). The governor’s action is ironic, even absurd, given that (1) the country’s war-time leader General Gowon had personally apologized for
his role in the 1966 pogroms as well as for killings that occurred from non-observance of the
Geneva Convention by Nigerian troops in conducting the war, and (2) the Igbo cultural organization Oha-na-eze, in its petition to the Oputa Panel, had called upon the Nigerian government
to follow suit by rendering a public apology to Igbos. See OHA-NA-EZE, PETITION, supra note
100, at 16.
324. MOLEFI KETE ASANTE, ERASING RACISM 158 (2003) (quoting Malcolm X).
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modern-day Igbo leadership in Nigeria calls to mind the severity of
psychological disorders—disorders, Fanon reminds us, that accompany an oppressed people’s acceptance of the logic, mannerisms, ethics, and other worldviews of the oppressor.325 Igbos and other
Nigerians who mouth the concept of Igbo self-marginalization forget
that Igbo present-day marginalization was a policy designed during
the war that actually began with General Gowon’s twelve-state structure in 1967.326 As far back as 1969, Nigerian authorities convened a
conference where they made a determination that it will be twentyfive years before Igbos can be given positions in Nigeria.327 What is
different is that marginalization has continued beyond the initially
projected twenty-five years. It has gone on for thirty-seven long years
counting since the institution of Gowon’s twelve-state structure in
General Obasanjo is one of few Nigerians privileged to have
played a central role in the Biafran conflict as well as in the country’s
post-civil war politics. He fought in the war and was the military commander who received the Biafran surrender in January 1970.328 In the
post-war period, Obasanjo saw service briefly as a federal minister329
before becoming military Head of State in 1976 following the assassination of General Murtala Muhammed. After handing over power to
a democratically elected government in 1979, he retired from the army
and lived the life of a private citizen from which he reemerged into
national service in 1999 as an elected president. He was re-elected for
a second term in 2003 following a presidential election marred by electoral irregularities.330 If he completes his present term, Obasanjo will
have led Nigeria in both military and civilian capacities for nearly
325. See generally FRANTZ FANON, THE WRETCHED OF THE EARTH (Constance Farrington
trans., 1968). The behavior of many modern Igbo leaders also call to mind the words of the
American writer, Richard Wright, about the “powerful Negro press” whom Wright said is afraid
of stating the problem of the Negro fully because “it is apprehensive lest the concentrated gravity of that problem create such anxiety in [W]hites that they will withdraw what few paltry concessions they are now yielding.” Wright, supra note 48, at xxix.
326. See discussion supra note 246 and accompanying text; see also supra note 201.
327. See discussion supra note 247 and accompanying text.
CIVIL WAR 1967-1970 (1981).
170, 172 (1997).
330. See discussion infra note 402 and accompanying text.
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twelve years; this would make him the longest-serving chief executive
in the history of the country.
To whom much is given, much is expected. In fairness to the
General, the foundation for a number of the innovations in the political system, such as the incorporation of the Federal Character Doctrine into the 1979 Constitution took place during his period in
office,331 even though, like other Nigerian leaders, the General pays
only lip service to the doctrine.
Despite the rare opportunity he has had as a central player in
Nigerian post-war politics to promote inclusive politics, however,
General Obasanjo has made little contribution to Igbo reintegration.
To the contrary, he has contributed immensely to Igbo marginalization. A few weeks after the war, as an army commander, General
Obasanjo, unmindful of the government’s “no-victor, no-vanquished”
policy,332 and of its famed blueprint for post-war reconstruction,333 engaged in a publicized rebuke of Igbo officers seeking reintegration
into the army for alleged remorselessness.334
The General also participated in the destruction of the Igbo heritage in education that took place after the civil war.335 During his
years in office as military Head of State, General Obasanjo established and sited six polytechnics (technically-oriented tertiary institutions), none of which was located in Igbo areas. His government also
implemented a so-called boundary adjustment exercise in 1976 that
excised certain oil-producing parts of Igboland that it transferred into
Rivers State,336 in the process negatively affecting the share of national revenue allocated to Igbos. Although known by nature to be
cantankerous, Obasanjo becomes more so when dealing with Igbos;
his tendency to explode when faced with Igbo audiences is
331. See discussion supra note 302 and accompanying text.
332. See discussion supra note 270 and accompanying text.
333. See discussion supra notes 303-04.
334. See KIRK-GREENE 2, supra note 170, at 469.
335. See OHA-NA-EZE, PETITION, supra note 100, at 27.
336. Id. at 30. A more extensive discussion of this problem is contained in Okere Steve
Nwosu, The National Question: Issues and Lessons of Boundary Adjustment in Nigeria–The
Ndoki Case, 15 J. THIRD WORLD STUD. 79 (1998).
337. Professor’s Achebe’s blunt book detailing the troubles with Nigeria includes a portion
where General Obasanjo questioned Igbo patriotism. ACHEBE, supra note 83, at 15; see also
EZENWA-OHAETO, supra note 152, at 208. Some of the sources used in this Article, particularly
the essays written by General Madiebo, see supra note 210, and Professor Ekwe-Ekwe, supra
note 220, are responses to one such explosive utterance where General Obasanjo stated, in complete obliviousness of all facts relating to the cause of the war, that Igbos fought the war out of a
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Igbo marginalization has not let up under the supposedly democratic presidency of General Obasanjo. Rather, in its petition to the
Oputa Panel, the Igbo cultural organization Oha-na-eze documents
“new heights in [Igbo] marginalization” under General Obasanjo.338
The organization avers that under General Obasanjo, the process of
Igbo marginalization has “hit an ugly climax” and run “full circle.”339
Besides being unfair and immoral, these inequities and deliberate
“pattern of disempowerment”340 also violate the Federal Character
Doctrine, which, as military head of state, General Obasanjo helped
write into the 1979 Constitution and has sworn to uphold. In addition
to these acts of marginalization, General Obasanjo has also reserved,
for Igbo organizations advocating for self-determination, a repression
and brutality that he has spared politicians and organizations in twelve
northern states of the country. In actuality, it is these states that, by
abrogating the country’s secular constitutional legal system and replacing it with Muslim Sharia law, are, unlike the groups General
Obasanjo’s government punishes, the ones who have actually engaged
in acts of effective secession from the country.341
Even non-Igbo Nigerians concede that the Nigerian state violates
the collective human rights of Igbos.342 What some of them do not
subscribe to is the violation of Igbo civil-political and socioeconomic
desire to control the oil resources of minorities in Eastern Nigeria. Why, Professor Ekwe-Ekwe
pungently quizzed, did Nigerian military forces not stop the war after the conquer of the nonIgbo speaking portion of Biafra “including the oil fields and installations,” something accomplished after only 11 months by June 1967, but rather kept fighting for 19 long extra months until
January 1970. Ekwe-Ekwe, supra note 220.
338. See OHA-NA-EZE, PETITION, supra note 100, at 35-37, 40. In its memorandum, Oha-naeze lambasted General Obasanjo’s political appointments as “most blatantly partial.” Id. at 8.
339. Id. at 8. One non-Igbo top politician, who, in obvious corroboration of this Oha-na-eze
assessment, has criticized what he views correctly as the Nigerian national government’s policy
of total neglect of Igboland, was Alhaji Ghali Umar Na’Abba, Speaker of the House of Representatives from 1999-2003, who, moved by the sorry state of the roads in Igboland following a
visit there, stated: “It is very sad that . . . [Anambra State] still suffers federal neglect after 29
years of civil war . . . Let me use this opportunity to express our heartfelt sympathy with Anambra State and South-East zone for suffering such a very serious federal neglect.” Id. at 40 (citing
THISDAY (Lagos) Nov. 22, 1999, at 42).
340. Id. at 33.
341. See Aka, Nigeria Since May 1999, supra note 58, at 249.
342. See, e.g., Ransome-Kuti, supra 250, at 48 (commenting that “[s]ince the civil war[,] one
can hardly see an Igbo in any prominent position in government institutions in Nigeria”).
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(individual) rights.343 Their argument is that Nigeria is a country that
disrespects the human rights of all its citizens, Igbos as well as nonIgbos. There is some merit to this reasoning since, generally, Nigerian
governments have a poor reputation for the observance of human
However, in addition to the disrespect of solidarity rights, Nigeria
also violates the civil-political and socioeconomic rights of Igbos more
than those of other Nigerians. This Article has detailed the human
rights atrocities against Igbos that occurred before and during the civil
war, as well as violations since then. Igbo individuals who have been
marginalized since the war suffered that experience solely because
they were Igbos. Similarly, Igbo individuals whose civil-political and
socioeconomic rights were violated during the massacres of 1966 and
the civil war endured that experience because they were Igbos.
Geographic location had little to do with the meting out of atrocities since Igbos were targeted regardless of the portion of the country
in which they were found. Non-Igbo Easterners whose human rights
were violated in these tragedies were those their northern tormentors
could not successfully differentiate from Igbos. They were not victims
of atrocities because they were Easterners; they were victims because
their violators mistook them for Igbos. This was the case with the
massacres but also the case during the war after the return of Igbos in
non-Igbo areas to Igboland.345 Here too, we are in the realm where
the distinction between individual and collective rights completely
breaks down, given that the individuals whose rights are violated suffer that fate because of their membership as Igbos.346 So, because the
various categories have tied into one, the argument about atrocities in
some categories and no atrocities in others does not really hold.
Igbos are undoubtedly exposed to deprivations of life, liberty, security, and subsistence—things to which they as humans have rights—
simply because they are Igbos; these deprivations are of a kind that
343. A Yoruba scholar in the audience took this position during the presentation of the initial version of this paper at Cornell University, Ithaca, New York, on April 4, 2003.
344. See generally Aka, Nigeria Since May 1999, supra note 58, at 209-76.
345. Support for this position is found in the fact that Igbos in mid-western Nigeria (known
as Ika Igbos) were also victims of atrocities even though they were not Easterners and therefore
not part of Biafra. Over 600 people were killed in one spate of attacks on Ika Igbos in 1967.
OHA-NA-EZE, PETITION, supra note 100, at 13 (drawing on sources that included the documentation of an eye-witness, Emma Okocha, appropriately titled Blood on the Niger). They would not
have been targets of atrocities if the aim of their tormentors had been Easterners (since they
were not Easterners), rather than Igbos.
346. See discussion supra notes 45-46 and accompanying text.
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non-Igbos do not experience. Nigeria has an “Igbo problem.”347 As
Professor Achebe points out in his book on the trouble with Nigeria,
one singular issue on which non-Igbo groups agree is “their common
resentment of the Igbo.”348
The Nigerian government may rebut that it should not be blamed
if Igbos became targets of more human rights atrocities than non-Igbo
Nigerians so long as it provides the same level of protection for all
Nigerians, Igbos and non-Igbos alike, without regard to ethnic origins.
But this argument is unavailing because a people, who are resented by
their compatriots and thus more vulnerable, like the Igbos, deserve
protection that matches the higher level of danger they alone face as
they go about their everyday business. However, no such increased
protection exists. Rather, as the Igbo cultural organization Oha-naeze points out, simply because of their ethnicity, Igbos “enjoy less protection of the law than any other ethnic group in Nigeria.”349
For example, in 1994, Islamic fundamentalists in Kano350 seized
and beheaded an Igbo man, George Akaluka, for allegedly driving
over a page of the Moslem bible, the Koran.351 As one representative
narrative of the incident goes, the decedent
was murdered by Shiite Moslem Fundamentalists at the Bompai
prison in Kano. They killed him, cut off his head, hoisted it on a
spike, and like an act from the Stone Age, paraded it round the city.
There were policemen in Kano. There were prison warders in
Kano. They looked the other way.352
None of the individuals who committed this heinous crime, nor
the police officers from whose custody the fundamentalists snatched
the deceased, were brought to justice.353 It is in this context that one
understands the quick rebuttal by one witness at the Oputa Panel to a
347. See ACHEBE, supra note 83, at 45-50.
348. Id. at 45. To rationalize their hatred for Igbos, non-Igbo Nigerians call Igbos aggressive,
arrogant, clannish, and the like. Id. But Professor Achebe in his blunt book diagnosing the
trouble with Nigeria calls these charges, as well as the one about the perceived solidarity of the
Igbos, figments of their authors’ imagination. Igbos “did not concern themselves with pan-Igbo
unity nor were they geared to securing an advantage over non-Igbo Nigerians. Beyond town or
village the Igbo has no compelling loyalty,” he said. Id. at 47. Rather, without the benefit “of
the kind of centralized leadership their competitors presume for them,” Igbos have had to cope
without help “with a new Nigeria in which individual progress would no longer depend on the
rules set by a fairly impartial colonial umpire.” Id. at 47-48.
349. OHA-NA-EZE, PETITION, supra note 100, at 39.
350. Kano is a metropolitan city in northern Nigeria with an ugly reputation for atrocities
against Igbos. See discussions supra notes 157-58 and infra note 369 and accompanying text.
351. Aham, supra note 177, at 35.
352. IGBOKWE, supra note 88, at 32.
353. Id.
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suggestion that Igbos live a happy existence in Nigeria. “They have
been slaughtered at every turn,” he retorted. “Any time there is a
riot, they are slaughtered. Can you say that Gideon Akaluka is living
peacefully? That is an example.”354 A good part of the Nigerian government’s deficit in its human rights record derives from atrocities
targeted at Igbos.
Nigeria does not provide an effective structure to properly address Igbo human rights and the correction of past violations. Correction, as defined here, consists of two complementary and mutually
reinforcing techniques, namely reparations, and institutions of the political system like federalism and democracy (conveniently denoted
here as “political structure”). Reparation is necessary to repair past
atrocities, while an appropriate structure is needed to guard against
future abuses. I discuss these two techniques or measures in turn.
A. Reparations
Reparation means to repair a victim or put that victim back, as
much as possible, to his pre-damage condition. The term also connotes restitution or the return to a victim of something wrongfully
taken from that victim. Although not identical, the two concepts are
sometimes used together or interchangeably. Thus, the Igbo cultural
organization Oha-na-eze designated its petition to the Oputa Panel as
“a call for reparations and appropriate restitution,”355 and one scholar,
focusing on the massacres of 1966, advised Igbos to “exercise their
right to seek full restitution for” damages arising from those horrendous mass killings.356 Applied to Igbos, reparations will involve the
award of monetary payments to those who suffered damages as a result of the massacres357 or from the illegal conduct of the civil war.358
When properly used, reparation brings healing and closure, and promotes reconciliation among former enemies. It may also, where it incorporates abuser accountability for human rights sins, deter
354. Mustapha Ogunsakin, Oputa Panel Ends Sitting, Warns of Imminent Crisis, GUARDIAN
(Lagos), Oct. 19, 2001.
355. OHA-NA-EZE, PETITION, supra note 100, at 1.
356. See infra discussion note 372.
357. See supra discussion Part III(B)(1).
358. See supra discussion Part III(B)(2).
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individuals and groups who might in the future be tempted to violate
the human rights of others.
Reparation requires individuals and groups who are victims of
human rights abuses to bring a lawsuit. The use of lawsuits for correcting human rights atrocities, however, has some inherent weaknesses that must be kept in mind. First, individuals or groups affected
must themselves bring these lawsuits rather than rely on the government to do so for them. Second, these actions must be brought before
the statute of limitations runs, which is about ten years in jurisdictions
such as the United States under the Alien Tort Claims Act of 1789
(ACTA).359 It is probably because of these inherent weaknesses associated with lawsuits that governments choosing to put the sad history
of a repressive past behind them prefer to set up truth and reconciliation commissions to investigate past human rights atrocities and recommend measures to repair these errors and move the nation
forward.360 This was probably the kind of consideration General
Obasanjo had in mind when setting up the Oputa Panel.361
The investigation into human rights abuses unaccompanied by
reparations is incomplete and amounts to little more than window
dressing that does little to promote reconciliation. In South Africa,
the investigation of abuses that took place during the Apartheid Era
was followed by an agreement by the government to pay reparations
totaling $85 million to more than 19,000 victims who testified about
their suffering before the Truth and Reconciliation Commission.362
Under the reparation scheme, the family of each victim of apartheid
would receive a one-time payment more than the average annual salary in South Africa.363
359. 28 U.S.C. § 1350 (2000). Courts have interpreted the statute to carry a ten-year statute
of limitations. See, e.g., Papa v. United States, 281 F.3d 1004 (9th Cir. 2002) (holding that the
ten-year statute of limitations provided by the Torture Victim Protection Act applies to the
Alien Tort Claims Act); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996); Forti v.
Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal 1987). The Statute confers jurisdiction upon U.S.
federal courts to hear civil damages claims by aliens for torts “committed in violation of the law
of nations or a treaty of the United States,” regardless of where the torts were committed. Id.
360. Notable scholarship on the work and functions of truth committees set up since the
1970s in various parts of the world include ANDREW RIGBY, JUSTICE AND RECONCILIATION:
WITH FORMER REGIMES (Neil J. Kritz ed., 1995); Priscilla B. Hayner, Fifteen Truth Commissions:
1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597 (1994).
361. See Aka, Nigeria Since May 1999, supra note 58, at 218 n.58.
362. Government to Pay Families of Apartheid Victims, CHI. TRIB. RED EYE ED., Apr. 16,
2003, at 10.
363. Id.
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Granting reparations would still be the fair and proper thing to
do even if, as this Article argues, Igbos are granted separate statehood
to safeguard their human rights. Although exhaustion after nearly
three years of war was a factor, Igbos repudiated a government in
exile364 and eschewed any possibility of a guerrilla struggle365 in the
belief that a government which fought so hard for nearly three years
to reunify them with the rest of Nigeria will see it fit to rectify the
grievances that led to the war. Unfortunately, the Nigerian government failed to reciprocate the good-faith gestures.
Despite the various benefits associated with reparation, none of
the millions of Igbos damaged as a result of the massacres and the
illegal conduct of the civil war received any compensation for their
losses from the government. Similarly, none of the individuals and
groups who committed (and continue to commit) human rights atrocities against Igbos were punished. Nor, as earlier indicated, did any
promised post-war rebuilding take place in Igboland; instead “since
the end of the civil war, the absence of federal investments in roads,
industries, power supplies, communication technologies, and water
supplies has become a fact of life.”366 Payment of compensation for
the loss of lives, liberty, and property that Igbos have endured since
1966 would have sent an unmistakable message that there are consequences attached to abuses of Igbo, or any other group’s, human
rights. As one analyst observes, referring to the massacres of 1966,
“To ensure that this bloodbath never happens again in Nigeria or elsewhere in Africa, state(s), corporate interests, and persons responsible
for it must be made to account.”367
Making accountability for human rights atrocities an integral part
of any reparation scheme for past violations will compel individuals or
groups to think twice before they violate others’ individual and collective human rights. Conversely, the lack of reparation for past human
rights abuses in Nigeria is probably among the reasons these abuses
recur. None of the individuals involved in the death of Gideon
Akaluka, including the putative law enforcement officers in whose
very presence the fundamentalists seized him, were ever brought to
See Lt.-Col. Effiong Announces Surrender of Biafra, supra note 206, at 451.
See STREMLAU, supra note 207, ch. 12.
Ebere Onwudiwe, Oil and Nigeria’s Economy, GUARDIAN (Lagos), Sept. 28, 2003.
Ekwe-Ekwe, supra note 220.
See discussion supra notes 352-54 and accompanying text.
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The same absence of reparation, rather than a matter of any coincidence, could also have been the reason why atrocities have repeatedly taken place in certain locations, such as Kano, the site of
numerous well-orchestrated “riots” and massacres, including the ones
of 1953, 1966, 1980, and 1982.369 No less tragic is it that it was also in
this very city, in 1994, that the Igbo decedent Akaluka was decapitated allegedly because he drove over a page of the Moslem Koran.
Oha-na-eze filed a petition with the Oputa Panel on behalf of Igbos in
the sum of 8.6 trillion Naira for atrocities against Igbos from 1966 to
1999. However, five years since setting up the Oputa Panel and four
years since the Panel completed its work and submitted its report, the
Obasanjo government has not released the result of the Oputa
Panel,370 and has therefore not made its position known concerning
the payment of any reparations to Igbos.371
One analyst advises that, besides the Oputa Panel, “Igbo people
must exercise their right to seek full restitution for [the] dreadful massacres [perpetrated against them] beyond Nigeria’s territorial jurisdiction, if need be.”372 An impediment here, as earlier indicated, could
be the statute of limitations—a reason why a fair-minded government
should act to rectify these atrocities rather than leave it to individuals
and groups to bring lawsuits. However, there are more recent violations not barred by the passage of time for which Igbos have a cause
of action.
Igbos could also work to protect the human rights of non-Igbo
victims of atrocities. Igbo experience in Nigeria as victims of atrocities makes them a “conscience” of the nation for the defense of
human and democratic rights.373 Such contribution is already occurring now: for example, the Social and Economic Rights Action
369. OHA-NA-EZE, PETITION, supra note 100, at 39.
370. See Human Rights Watch, Nigeria: President Must End Impunity for Human Rights
Abusers, HUM. RTS. WATCH (July 3, 2003), at;
Ken Roth, Letter to President Obasanjo Regarding His Second Term, HUM. RTS. WATCH (July 3,
2003), at
371. Regarding reparation, compensation can never be simply individual or collective monetary payoff. Rather, there are five essential aspects which any meaningful approach to reparations must address: (1) public admission by the Nigerian government of the genocide
perpetrated against Igbos, (2) public apology, (3) public recognition, through the media and the
school system, aimed at teaching and preserving memory of the horror and meaning of the genocide, (4) compensation, and (5) institution of measures designed to prevent the reoccurrence of
such massive destruction of human life, human culture, and human possibility. See MAULANA
372. Ekwe-Ekwe, supra note 220.
373. See Osuagwu, Part 1, supra note 95 (stating that Igbos “don’t want injustice in a community of which they are part. Any community that plans to have them as members must be pre-
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Center, a human rights non-governmental organization based in Lagos, Nigeria and directed by an Igbo, Felix Morka, successfully argued
a case against the Nigerian government before the African Commission on Human and Peoples’ Rights for violating the socioeconomic
rights of the Ogoni people.374
The Igbo nation should also bring claims against ethnic groups
involved in the violation of Igbo human rights, like Hausa-Fulanis.
Such lawsuits against ethnic groups might afford them much needed
opportunity to clear their names. At the hearings of the Oputa Commission, the Arewa Consultative Forum (ACF), which represented the
Hausa-Fulani ethnic group, insisted that “We have children and
grandchildren and we must put things in their proper perspective for
posterity[’s] sake.”375 This was in response to the counsel of Oha-naeze’s contention that the Igbo suit was one directed only against the
government. Lawsuits against groups, where they are not timebarred, afford them the opportunity, as the ACF said, to put things in
proper perspective for the sake of posterity.
B. Political Structure
Political structure plays a major role not only in the correction of
human rights atrocities but also in the protection of human rights.
Lasting protection of any group’s human rights requires an appropriate political structure in addition to any reparation. An effective political structure is necessary given the already specified limitations of
reparations. Although reparation is a remedy for past violations and
may also deter future violations, it is not geared specifically for the
latter purpose. For these future violations, an appropriate political
structure is necessary. Despite the utility of an effective political
structure in correcting and institutionalizing the protection of human
rights, no such structure exists in Nigeria for the safeguard of Igbo
human rights. Neither federalism nor democracy, in the manner it has
been practiced in Nigeria, supply the appropriate structure.
1. Federalism
Nigeria’s dynamic ethnic pluralism rules out a unitary system as a
viable option for societal organization and protection of human rights.
pared to be just”); see also Osuagwu, Part 2, supra note 95 (citing Dr. Azikiwe’s statement to the
effect that “Igbo manifest destiny” is “[t]o free the African from the bondage-of-ages”).
374. Aka, Nigeria Since May 1999, supra note 58, at 214, 215 & n.34, 240.
375. See Ogunsakin, supra note 354.
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A confederal system is also ruled out, given that the country has no
experience with it. A confederal system may, however, hold some
value as a negotiating tool and a halfway house en route to full independence for departing ethnic groups.376 The unsuitability or inapplicability of these two systems as political structures for the
safeguarding of human rights leaves federalism as the only remaining
structural option. But, from the very beginning, federalism in Nigeria
was designed as a tool of northern (particularly Hausa-Fulani) domination that was never meant to be human rights-friendly.
Following the killings of Igbos and the destruction of Igbo property in Kano in 1953, British colonial authorities came to the realization that “Nigeria . . . if it was to be a nation, must be a federation,
with as few subjects reserved for the Central Government as would
preserve national unity.”377 But, the federal system they created in
1954 was a lopsided one in which one federating unit, the Northern
Region, was bigger than all the other units combined. British authorities rejected all pleas to correct this imbalance through the creation of
more regions, on the ground that doing so would delay Nigeria’s independence.378 However, they accepted the recommendation of the
Willink Commission for entrenchment of fundamental guarantees in
the independence constitution to allay the fears of minorities of majority domination.379
The nationalist leaders who received power after independence
made few changes. So, except for the creation of the Mid-Western
Region in 1964, the federalist structure handed down by Britain remained unchanged after independence, contributing much to the instability that led to the demise of the First Republic in 1966.380
376. See infra note 410 for a discussion of Professor Nwabueze’s suggestion for a national
conference. See also infra note 538 and accompanying text.
377. KIRK-GREENE 1, supra note 86, at 10 (quoting the diary of Colonial Secretary, Lord
Chandos). While Lord Chandos’ option is obviously against a unitary system, it is not clear
whether what he actually meant was a federal or con-federal system, given the reference to a
fewness of subjects lodged in a central government “as would preserve national unity.” Id. The
reference calls to mind a confederal as opposed to a federal system. A confederal system is, by
definition, “a league of independent states in which a central government or administration handles only those matters of common concern expressly delegated to it by the member states.”
STEFFEN W. SCHMIDT ET AL., AMERICAN GOVERNMENT AND POLITICS TODAY, 82 (2003). Except for matters like defense and foreign affairs, constituent sub-national units in a confederal
system retain all attributes of independent statehood. Unless the member-units specifically approve, in such a system, the national government has no authority to make laws directly applicable to individuals.
378. See KIRK-GREENE 1, supra note 86, at 11.
379. See supra note 56-57 and accompanying text.
380. Diamond, supra note 252, at 465.
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General Gowon’s twelve-state structure, unveiled in 1967, came too
late to avert a civil war and was actually, as earlier indicated, an immediate factor that precipitated the conflict.381 Also, Gowon’s goal was
not to promote any human rights, but rather to recover Hausa-Fulani
domination, lost as a result of the first military coup,382 and to reconstitute it in a manner such that no group would ever threaten it again.
Due to the fact that Igbos were perceived as the most lethal threat to
northern interests, they were “logically” the group Gowon meant to
hurt by his state creation exercise.383
From a single, modest national government and four regions in
1966, the country grew into a gigantic bureaucratic machine of one
national government and thirty-six state governments plus a federal
capital territory.384 Similarly, from the vibrant, albeit unstable, system
during the First Republic (1960-1966) in which powerful regions vied
to dominate a comparatively weak central government, the character
of the country’s federalism metamorphosed into one where a powerful
central government dominated dozens of weak sub-national governments. So vitiated has been the power of the sub-national governments in comparison to the all-powerful central government that the
six zones into which the states were grouped by the military in 1996385
have been suggested as potential replacements for the numerous
states as federating units.386
These occurrences call to mind one French saying about how
things remain the same the more they change. The one constant is
northern control. To provide Hausa-Fulanis the centralized control
they need to perpetuate their domination of the political system,
Nigerian leaders since 1967 have operated the country’s federal system in a unitary format. This distortion of the country’s federalism in
favor of Hausa-Fulanis assumed such height under military rule that
the leader of the Biafran separatist campaign General Ojukwu, in an
381. See KIRK-GREENE 1, supra note 86, at 96-97 (noting how “Gowon’s shrewd move to
block secession [by creating new states] turned out to be the final pressure on the trigger releasing the explosion”); see also discussion supra notes 200-01.
382. General Gowon took pains to underscore in his speech after mounting power that “God
has put the affairs of this country in the hands of another northerner.” See General Gowon, No
Trust or Confidence in a Unitary System of Government (radio broadcast Aug. 1, 1966), reprinted in KIRK-GREENE 1, supra note 86, at 196-97.
383. See discussion supra notes 200-01 and accompanying text.
384. See, e.g., Richard Joseph et al., Nigeria, in INTRODUCTION TO COMPARATIVE POLITICS
546, 575-85 (Mark Kesselman et al. eds., 2d ed. 2000) (listing the organization of the country’s
complex political system).
385. See discussion supra note 87.
386. See Aka, Nigeria Since May 1999, supra note 58, at 270-71.
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important lecture in 1994, analogized the country’s unity to Jonah in
the belly of the Whale—the Whale being Hausa-Fulanis and Jonah
the rest of the country, especially Igbos.
“For a man to whom unity remains that of Jonah in the belly of the
Whale, that man must question his situation. He is not comfortable
in the Whale’s belly. It is dark. It is soggy. He wants out lest he
dies. The man owes himself to get out despite the fact that the
Whale has felt no discomfort. To this man in extremis lies the obligation to quit.”387
Spells of democratic rule in the country were expected to change
but have not had any ameliorative impact on this centralization. This
includes the present supposedly democratic rule under General
Obasanjo.388 This “unitary federalism” not only runs against the grain
of colonial wisdom which recognized the imperativeness of federalism
as the only viable format for organizing the country,389 but it is also
hypocritical, given that General Ironsi’s Unification Decree was the
excuse Hausa-Fulanis used in 1966 to perpetrate the atrocities of massacres they callously visited on Igbos.390 The centralized control,
needless to say, unfortunately fulfils Senator McCarthy’s uncanny prediction made in 1969 that General Gowon would seek only to accomplish a “reconstituted unitary state.”391
Some Nigerians believe that a “return” to a “true” federalism
could provide the autonomy necessary to assuage ethnic groups’ demand for self-determination. This appears to be the position Beko
Ransome-Kuti canvassed in a 1999 lecture embodying his “vision for a
new Nigeria.”392 He praised the country’s pre-1966 experiment in federalism and warned that “[o]ur future is bleak unless we can liberate
ourselves from this forced union” supposedly of command unitary
federalism “that is squeezing the life out of us.”393 However, it is
doubtful that any “true federalism” is an option for safeguarding Igbo
human rights in Nigeria. First, the defective federalism the country
practiced before 1966 set the stage for the political instability that led
to the human rights deprivations of Igbos. Second, the country’s ex387. IGBOKWE, supra note 88, at 98 (quoting General Ojukwu).
388. See Aka, Nigeria Since May 1999, supra note 58, at 269-70.
389. See supra note 377; see also GRAF, supra note 175, at 133 (stating that an important
truism of Nigerian politics is that “the country’s continuing existence as a nation-state hinges on
its capacity to evolve and maintain an adequate system of federalism”).
390. See discussion supra notes 165-66 and accompanying text.
391. McCarthy, Speech, supra note 194, at 405.
392. See generally Ransome-Kuti, supra note 250, at 46-49.
393. Id. at 49.
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perience since independence shows how easy it can be for the country’s northern-dominated governments to re-centralize power to suit
Hausa-Fulani hegemonic purposes. Finally, federalism does not exist
by itself but rather operates in tandem with and is affected by critical
variables, such as the quality of a country’s democracy, the topic to
which I next turn.
Revealingly, Dr. Ransome-Kuti indicated in his lecture that “The
principle of self-determination is now so well established in international law that instead of issues degenerating into civil war, this is an
option that has to be held in front of us all at all times.”394 He also
challenged the assertion contained in the preamble of the country’s
1999 constitution proclaiming that Nigerians have “firmly and solemnly resolved to live in unity and harmony as one” indissoluble
country.395 He instead stated that “As a matter of fact some sections
of the country have been through such degrading and painful times in
Nigeria that they might well prefer to live alone or join a more viable
and conducive enterprise rather than continue with the present arrangement.”396 In short, with all due respect to Dr. Ransome-Kuti,
“true federalism,” like proposals such as “‘state creation,’ ‘federal
character,’ ‘zoning,’ [and] ‘rotational presidency,’” ranks among the
“pretensions” today that have “failed to settle [the country’s] political
2. Democracy
Nigeria is a country where, since independence in 1960, the ship
of state has been operated with little regard for democracy. Neither
experimentation with the parliamentary model borrowed from Britain
nor the presidential system adopted from the United States has produced any democracy for the country to date.398 Factors that have
served to truncate or neutralize democracy in the country include, but
are by no means limited to, military rule, political and bureaucratic
corruption, and electoral corruption. Long military rule in the country, until recently the norm rather than an aberration, left little time
and room for any actual experiment with democracy. Also, some of
394. Id. at 48.
395. Id. at 49.
396. Id.
397. Aliyu Tilde, BluntPoint (1): Professor Sagay, Buy the Bride a Single-Bed (June 11, 2003),
available at
398. For a good overview of the country’s checkered experience with these various models of
democracy, see Diamond, supra note 252, at 417-91.
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these military regimes, particularly the ones that operated from 1983
to 1998, were exceedingly repressive and marked by human rights
abuses.399 Finally, as General Obasanjo’s style of leadership since
1999 bears out, military rule has instilled into the political system residues of military values, including authoritarian rule and the use of military force in the resolution of non-military disputes, both of which are
inconsistent with democratic culture.400
With respect to political and bureaucratic corruption, Nigeria has
a dubious reputation as one of the most corrupt countries in the
world.401 The nature of the government in power, whether military or
civilian, has had no impact on the incidence of corruption as each of
these forms of government has produced corrupt public officials and
been characterized by corrupt practices. Also, the scale of corruption
has grown progressively with each successive regime.402 Finally, elec399. See, e.g., Aka, Nigeria Since May 1999, supra note 58, at 222-25; Philip C. Aka, Nigeria:
The Need for an Effective Policy of Ethnic Reconciliation in the New Century, 14 TEMPLE INT’L &
COMP. L.J. 327, 351-52 (2000).
400. See, e.g., Aka, Nigeria Since May 1999, supra note 58, at 259-61; Philip C. Aka, The
“Dividend of Democracy”: Analyzing U.S. Support for Nigerian Democratization, 22 B.C. THIRD
WORLD L.J. 225, 234-37 (2002) [hereinafter Aka, Dividend of Democracy].
401. The country has always ranked high on Transparency International’s (TI) index of most
corrupt countries in the world. TI is a watchdog organization committed to exposing and combating corruption in the world. Before 1999, the country ranked number twenty-eight in the
world. Inauguration of democratic rule in the country was supposed to change this picture, but,
unfortunately, did not. Instead, the incidence of corruption has grown worse. Since Obasanjo
took office, the country has ranked as the second-most corrupt country in the world, at one time
beating Cameroon to the dubious number-one prize, and beaten last year only by Bangladesh.
See Doug Ireland, Will the French Indict Cheney? NATION ONLINE (Dec. 29, 2003), at Until becoming president in 1999,
Obasanjo was himself a member of TI.
402. See id. Since the 1980s, the U.S. State Department has issued numerous travel notices
warning American travelers to Nigeria concerning their safety and how to guard against becoming victims of crime, scam, and related fraudulent practices. The institution of democratic rule in
1999 has not brought a stop to these travel warnings. Rather, under General Obasanjo, the State
Department has issued several notices, the latest in December 2003, which superseded a previous warning issued six months earlier. The recent notice warned Americans travelers to Nigeria
about possible “violent crime committed by ordinary criminals, as well as by persons in police
and military uniforms [that] can occur throughout the country,” about kidnapping for ransom of
persons associated with the petroleum sector “common in the Niger Delta area,” about religious
tension between Muslim and Christian communities resulting “in occasional acts of isolated
communal violence that could erupt quickly and without warning,” and about “advance fee
fraud and other scams” by Nigerian-based businesses and individuals “that target foreigners
worldwide.” U.S. Department of State, Travel Warning: Nigeria, Dec. 29, 2003 (on file with author). Finally, the report included this information about transportation in Nigeria: “Use of
public transportation throughout Nigeria can be dangerous and should be avoided. Taxis pose
risks because of the possibility of fraudulent or criminal operators, old and unsafe vehicles, and
poorly maintained roads. Most Nigerian airlines have aging fleets, and maintenance and operational procedures may be inadequate to ensure passenger safety.” Id. This must be one of the
most elaborate reports for any country not on the U.S. terrorist list with which the American
government maintains relations. But, even on the terror front, Nigeria has American homeland
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toral corruption is pervasive in Nigeria. Like with political and bureaucratic corruption, the scale of the phenomenon has grown
progressively over time with each successive regime outdoing the
other in breadth and absurdity. For example, the general elections of
2003 conducted by the Obasanjo government topped all previous elections in scale of irregularity.403 To date, British authorities have conducted the only well-administered election in Nigeria—that of 1959.404
Democracy is a system of government “in which the coercive
powers of the government are effectively constrained by the constitution.”405 It is a process involving widely shared beliefs, “renewed in
each generation” through “practice and performance” until it becomes “so habitually practiced and observed that it is very unlikely to
break down.”406 The beauty of democracy is the slow but steady accretion in constitutional change the process makes possible. General
Obasanjo came into office in 1999 following non-free elections conducted on the basis of a constitution drafted by the departing military
without popular input and participation.407 The nation did not want
to give the army any reason to prolong its stay in office408 and the
security officials worried since enormous support exists in the Muslim North of the country for
Osama bin Laden. See Aka, Dividend of Democracy, supra note 400, at 274-75.
403. See, e.g., Wadas Nas, The Rigged Presidency, WKLY. TRUST (Abuja), May 10, 2003;
Rory Mungoven, Letter to President Obasanjo on Commonwealth Heads of Government Meeting, HUMAN RTS. NEWS, (Nov. 27, 2003), at (reminding the president that “[t]he April and May 2003 elections, which returned
you to office for a second term and secured an overwhelming victory for the Peoples Democracy
Party (PDP), were marred by violence and intimidation, as well as widespread rigging”); Joseph
Winter, Analysis: Nigeria’s One-Party Creep, BBC NEWS ONLINE (Apr. 21, 2003), at http:// Domestic and foreign observers who monitored
the elections, including the U.S. National Democratic Institute, U.S. International Republican
Institute, and the European Union, found large-scale irregularities that compromised the integrity of any verdict coming from those elections. One non-political group of eminent Nigerians
known as the Patriots was so appalled by the results that it called for an Interim Government of
National Unity in place of swearing-in General Obasanjo for a second term as president. See
Chukwudi Nwabuko et al., The Patriots Supports Call for Interim Government, THISDAY (Lagos), May 23, 2003. The group maintained that to allow the results of the elections “obtained by
means of well-attested electoral malpractice” would subvert democracy and constitutionalism
and entrench election-rigging as a permanent feature of Nigerian politics. Obasanjo and his
political party rejected the suggestion.
404. See KIRK-GREENE 1, supra note 86, at 12 (based on the assessment of K.W. POST, THE
405. John Mukum Mbaku, INSTITUTIONS AND REFORM IN AFRICA 189 (1997).
406. See Introduction to POLITICS IN DEVELOPING COUNTRIES, supra note 252, at 53, 56-57.
407. Ransome-Kuti, supra note 250, at 49; Eghosa E. Osaghae, In Search of Democratization
Middle Grounds: Nigeria and South Africa in Perspective, in TRANSITION TO DEMOCRATIC GOVERNANCE IN AFRICA, supra note 268, at 350-51. For a more detailed explanation of the undemocratic nature of the constitution from a top legal draftsman in a position to know, see Chief
Rotimi Williams, A Constitution for the People of Nigeria, GUARDIAN (Lagos), Aug. 26, 1999.
408. See Osaghae, supra note 407, at 351.
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general expectation was that the constitution would be reviewed upon
the president taking office to garner increased popular acceptance of
the document. Unfortunately, no such revision took place.
During his tenure in office, calls have been made for a national
conference to deal with emergent, critical national issues and a definition of the terms of the union. Such calls preceded his regime, but
assumed new urgency due to new events, such as the controversy and
violence surrounding the adoption of a different legal system based on
Muslim Sharia law in many northern states.409 Despite the compelling
merit of the arguments for a national conference,410 no such conference to date, more than four years since the president took office, has
been held; momentous issues going to the country’s very integrity as
one nation have continued to fester. From its very beginning, Nigeria
has been governed by leaders who do not believe in fundamental restructuring. These include General Obasanjo, who one writer said
409. See Aka, Nigeria Since May 1999, supra note 58, at 240-46.
410. An editorial comment by the Lagos Guardian and a piece by Professor Ben O.
Nwabueze, a foremost constitutional lawyer, typify these calls. In its editorial, The Guardian
argued that the country faces many national problems, which, if left unresolved, could heat up
the system and make governmental business difficult and public peace fragile. National Conference: The Way Forward, GUARDIAN (Lagos), June 21, 2001. A national conference is needed to
resolve these pressing problems and “[to] rescu[e] the country from the path of perfidy and
hypocrisy into which the military derailed it through their misrule and corruption.” Id. The
conference “is also about justice, and equity, and due respect for the people’s aspirations.” Id.
The newspaper noted that “[m]any of the problems facing the country . . . arose from a violation
of that original consensus, particularly on the sensitive issues of federalism, power sharing, resource allocation, and the constitution.” Id. The conference should not be “cosmetic,” but
rather “a thorough re-examination of the Nigerian state to ensure that every group within the
union can be proud and confident that it is part of a workable arrangement that is built on a
foundation of truth and justice.” Id. It should be both “general and inclusive” in the sense that
it examines all possible issues and produces conclusions that should form the basis for the preparation of a true people’s constitution that can guarantee a future of stability and progress for the
country. Id. So long as the scope is right, the paper stated, it does not matter whether the
conference is “sovereign,” assessed in terms of whether its conclusions binds the government
now in office or “non-sovereign,” meaning its conclusions are non-binding. Id. Convening such
a conference is good for the peace and stability of the country and something, the editorial said,
the government should facilitate “not as an act of magnanimity but in response to the people’s
wishes and desires” given that “it is neither the president nor his government that is at stake, but
the Nigerian state and its manner of organisation.” Id.
In his piece, Professor Nwabueze also underscores the imperativeness of a national conference. Issues to be addressed at such a conference include (1) resource control, (2) the religious
neutrality of the state, (3) rotation of the presidency, and (4) restructuring of the country’s federal system. These are, he says, issues so complex and fundamental, that they are an exercise in
constitution-making, transcending the power of the government to effect the people without
recourse. He argues that the confederation should be tabled at the conference as an option of
last resort, if delegates are unable to come to an agreement on these issues. See Ben O.
Nwabueze, The Imperative of a National Dialogue, GUARDIAN, June 28, 2001.
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“retains a nostalgic love for the current concept of Nigeria.”411 The
411. Paul Nwabuikwu, Fighting over Talking, GUARDIAN (Lagos), Dec. 8, 1999. A Nigerian
newspaper editorial expressed the opinion, in many respects still unfortunately valid today, that
“ ‘the rulers used power that they held constitutionally to do unconstitutional things. . . . Nigeria
had censuses that were not censuses, elections that were not elections, and finally governments
that were not governments.’ ” KIRK-GREENE 1, supra note 86, at 28 (quoting an editorial entitled The Last Hurrah from a Nigerian Newspaper from February 1966). Supporters of the present concept of Nigeria overstretch their luck regarding the extent to which they can nurture the
status quo ante in opposition to real change. Calls for “true federalism” are growing in the
country as is the perception as well as identification of the North, especially Hausa-Fulanis, as
the main obstacle to change. One typical presentation recently embodying this dual theme is a
lecture by Itse Sagay a university professor and distinguished lawyer. Tilde, supra note 397.
Sagay unveiled a “double-decker” approach to true federation by which Nigeria remains as a
country but under which “ ‘every zone and nationality will operate within the type of federation
it prefers.’ ” Id. (quoting Itse Sagay. True Federalism in an Emerging Democracy: A Case Study
of Nigeria, Address at the at Le Meridien Eko Hotel, Lagos, Nigeria). He stated that the basis
for his double-decker theory is “the lack of consensus among the six geopolitical zones on . . .
political restructuring.” Id. While, he said, four zones are “‘expressly demanding’” fundamental
restructuring of the country, all of the North, except for the Middle Belt (or the north central
zone), does not favor such restructuring. Id. (quoting Sagay, supra). Faced with these “contrasting wishes,” he called for a:
“ ‘double-decker’ or asymmetric federation, in which the north west and north eastern
zones and parts of the north central zone desiring it, can retain the centralized federation which we are operating under the 1999 Constitution, as between those zones and
the Federal Government . . . and a loose restructured federation which is currently
being demanded by the southern states as a minimum condition for their continued
voluntary existence as part of Nigeria for the states demanding it.”
Id. (quoting Sagay, supra).
Professor Sagay says those in the Middle Belt or north central zone who choose could become part of the loose restructured system southerners favor. Id. Sagay envisages that under
this loose federalism, the states involved “will establish their own independent police forces, a
peoples’ militia, [conduct] their own population censuses and control their mineral resources
independently of the federal police, federal census, and federal resources.” Professor Sagay as
precedent for his double-decker federalism, refers to “‘the agreement reached in 1953 when the
North chose to delay its self-government status until 1959, three years after the South.’” Id.
(quoting Sagay, supra).
One analyst, Dr. Aliyu Tilde, himself a northerner who reflected on Sagay’s “asymmetric
federation” lecture, agreed with the Professor that the north has truly favored the status quo in
opposition to any restructuring. “Few northern voices have really championed the cause of restructuring;” instead, “northerners have been equivocal, or rhetorical, or destructively critical of
the idea of a restructured federation. Something, somewhere, [maybe] a hangover of the civil
war, continue[s] to give the northern establishment the wrong notion that it is the custodian of a
unitary ‘Federal’ Nigeria.” Id. Dr. Tilde, however, indicates that those opposed to reform are
the few privileged northern elites who benefit from the current unitary federalism, not ordinary
northerners mired in “poverty, illiteracy, injustice, and neglect” and who are therefore dissatisfied with the status quo. Id. Also, he said, many northerners “are tired of being targets of
frequent abuse and demonization.” Id. “Whatever is their disagreement, Nigerians must accept
that the argument of restructuring is very strong and convincing.” Id. He talks about crises
“arising from mutual distrust” that have punctuated the political history of the country. Id. Besides, he says,
[T]he periphery has grown too large for the corrupt and inefficient center to keep intact
without deterioration setting in. The Yoruba for example are over twenty-five million.
That is a big nation. What sense does it make to deny such a people autonomy of their
choice? Why should anyone today in Sokoto, Maiduguri or Makurdi raise a finger
against a new Biafra? What moral imperative or interest would compel the North to
“save” the oil[-]rich Niger delta if its people now strongly feel that they will be better
off with an autonomy that gives them exclusive control over their oil resources.
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unceasingly low quality of Nigerian democracy fuels frustration
among groups who see in a democratic system the only avenue for the
pursuit of peaceful change.412
Seeking to reform rather than replace socialism, former Soviet
President Mikhail S. Gorbachev attempted to persuade the Baltic republics that sought to separate from the Soviet Union that the expansion of economic ties was a better option for them.413 But his logic did
not move these republics who maintained that the experience of other
countries shows that “modern civilization is moving toward international integration, but not by centralizing and subordinating.”414 The
separatists’ logic prevailed and the Soviet Union broke up. Soviet
Russia not only supported, but also with its proxies, participated in the
Nigerian conflict on the Nigerian side.415 Mikhail Gorbachev, who led
the Soviet Union from 1985 to 1991, was better than post-war Nigerian leaders in that he tried but failed to reform the Soviet system;
Nigerian leaders don’t try at all. The defects of federalism in the land,
coupled with the fact that peaceful change is not possible, leaves independent statehood as the only viable hope for the protection of Igbo
individual and collective human rights.
Persuading the OAU on why its members should support separate independence for Nigeria in 1967, the Biafran government conId. Tilde called appeals to “national integration” “monotonous and empty . . . dialectic[s]” in
which the country can no longer take shelter. Id. Also proposals “like ‘state creation’, ‘federal
character,’ ‘zoning,’ ‘rotational presidency,’ and ‘power sharing’ ” have become “pretensions”
that do not rise to any solutions. Id.
Pre-1999, the problem was thought to be with the mediocre leadership the North has
been accused of giving the nation. Today, with the woeful failure of Obasanjo in the
last four years, it is clear that such mediocrity is not a monopoly of the North anymore.
Apparently, something fundamental is wrong with the structure of the polity.
Id. He says it is not possible, “given the prevailing liberal world order, for the nation to stop any
of its parts from seceding.” Id. “The world today will not sit and watch Nigeria kill a million of
its citizens and starve three times that figure. Never. We have seen stronger unions, like Yugoslavia, disintegrating explosively simply because it failed to readjust at the most appropriate
time.” Id. Tilde says all that Nigerians need to start a true restructuring journey is dialogue. Id.
He concludes that “[w]ith an ever-growing interest in the restructuring agenda nationwide . . .
the crisis over its necessity is almost over.” Id. He advises Professor Sagay that his “doubledecker” idea is really unnecessary; so, he argues, the professor should “allow the baby of restructuring [to] wear a symmetrical face.” Id. Growing calls in the country for restructuring and of
perceptions about groups standing on the way of change also reflect the growing impatience
among Nigerians regarding the status quo.
412. See KIRK-GREENE 1, supra note 86, at 15 (conveying Igbo assessment before the war, a
feeling still, unfortunately, valid today, regarding the 1964 elections as “the final test before
despairing of constitutional, political, and economic reform,” via democracy).
413. See Jeffrey Herbst, Global Change and the Future of Existing Nation-States, in SELFDETERMINATION OF PEOPLES, supra note 24, at 13, 28.
414. Id. (quoting an Estonian member of the Congress of People’s Deputies).
415. See discussion supra Part III(B)(2)(iii).
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tended: “No safeguards can work; none ever did.”416 Three and a half
decades later, this statement appears to summarize the prospects for
protection of Igbo human rights in Nigeria. Just as socialism could not
be reformed in the Soviet Union, the Nigerian State stands no chance
to be reformed, to become a tool for the safeguarding of Igbo human
Separate statehood holds the only hope for the maintenance of
Igbo human rights in the new century. The case for separate statehood as an appropriate structure made here revolves around two interlocking arguments, namely: (1) the changing notion of selfdetermination; and (2) the lack of any lingering objections to Igbo
independent statehood. I discuss these two issues in turn.
A. Changing Notion of Self-Determination and the Igbo Situation
1. Statement of the Traditional Doctrine
Self-determination is an idea as ancient as organized human society, one that became international law doctrine in the twentieth century. It is the collective manifestation of the universal human need to
identify with a group, to exercise control over one’s affairs and fate,
and to promote one’s own political, economic, and social well being.418 A statement of the traditional international law doctrine “implies that people who identify themselves as a nation should have the
right to form a state and exercise sovereignty over their affairs.”419 As
Professor Goldstein elaborates, the doctrine is
416. Biafran Memorandum Circulated to Heads of State at O.A.U., supra note 200, at 171.
417. See Tilde, supra note 397, who points out that before 1999, the developmental problem
of the country was blamed on the mediocre leadership northern leaders provided, but that General Obasanjo’s “woeful” performance since 1999 evinces that “mediocrity is not a monopoly of
the North anymore. Apparently, something fundamental is wrong with the structure of the polity.” Id. It is true that there is only so much that one mortal leader can do if the structure is not
right from distortions arising from decades of incompetent leadership and bad policies. However, General Obasanjo’s main failure arises not from his performance in office, although that
also counts, but rather from his sheer inability, or unwillingness, to lay the ground for structural
418. An-Na’im, supra note 45, at 107, 109.
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a widely praised principle in international affairs [that is, however,]
generally secondary to the principles of sovereignty and territory
integrity, with which it frequently conflicts. Self-determination does
not give groups the right to change international borders, even
those imposed arbitrarily by colonialism, in order to unify a group
with a common national identity. Generally, though not always,
self-determination has been achieved by violence.420
Briefly, OAU and UN Charters and other international human
rights instruments provide that all “peoples” have the right to selfdetermination, but at the same time stipulate that sovereignty and territorial integrity of countries are inviolable.421 They endorse a right of
self-determination to support dependent peoples’ struggles against
colonialism, but restrict that right to only the colonial cases.422 “If in
theory the principle of self-determination extended to all people, in
practice it could be exercised only by those under colonial rule.”423
This occurrence led many countries in Africa to believe that independence from formal colonial rule satisfies the right of their populations
to self-determination, as well as to “individually and collectively
resis[t] claims for secession by various [ethnic groups or] peoples as a
means to achieving self-determination.”424 Under the traditional doctrine, along with African and UN practices that support it, a tension
exists between self-determination and sovereignty that the international community tends to resolve in favor of sovereignty.
2. Mounting Dissatisfaction with the Traditional Doctrine
Dissatisfaction built quickly with the traditional international law
doctrine of self-determination following its institution in the UN system after World War II. This can only be expected of a doctrine,
which, as previously indicated, would even let stand boundaries imposed arbitrarily by colonialism.425 As early as 1973, Rigo Sureda
equated the doctrine of self-determination with the notion that “gov420. Id.; see also UMOZURIKE, supra note 23, at 53 (stating that self-determination “is not a
juggernaut that overrides all other rights,” but rather “must have regard to other equally fundamental principles, such as sovereignty and territorial integrity”).
422. BUCHANAN, supra note 261, at 20.
423. Id.
424. An-Na’im supra note 45, at 113. Professor Mazrui appropriately calls the OAU convention against tampering with colonial boundaries “taboo of officially sanctioned secession.”
Mazrui, supra note 267, at 28.
425. See discussion supra note 420 and accompanying text.
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ernment should be based on the will of the people . . . and people not
content with the government of the country to which they belong
should be able to secede and organize themselves as they wish.”426
Professor Buchanan complained that the traditional doctrine recognizes only fully sovereign states but accords individuals and minority groups only cultural, as opposed to political, status.427 He argues
that some of the countries, such as Britain and Belgium, who helped
write the traditional doctrine were motivated by self-interest: They
feared that recognition of a broad right of self-determination “would
be tantamount to endorsement of a general right to secede for every
ethnic group”428 and they sought “to avoid fueling numerous separatist movements within” their countries.429 Buchanan calls for experimentation with new forms of “semi-autonomy” or “limited
Other observers, statesmen, and scholars alike, who have pointed
out the inadequacies of the traditional doctrine include Lee C.
Buchheit, Prince Hans Adams II of Liechtenstein, and the late Julius
Nyerere of Tanzania. In his pioneering study, Buchheit determined
that natural rights do not include the right to secession. He was, however, persuaded that a highly qualified right of secession had emerged
under positive international law. Buchheit concluded “the evolution
of an international legal recognition of secessionist self-determination,
although cautious and uniformly conservative, is nevertheless perceptive.”431 For him, “[T]he only really inescapable requirement for a
legitimate claim to self-determination is the existence of a genuine
‘self’ wanting to control its own political destiny.”432 Although of the
view that secession is not “a panacea for all the ills of the social condition,” Buchheit maintains that “[i]t makes no sense to uphold the integrity of a State when it no longer satisfies the fundamental purposes of a
political association.”433
Prince Adams laments that “[p]eople everywhere are told that
they have the right to self-determination. Nevertheless, if this right is
427. BUCHANAN, supra note 261, at 20.
428. Id.
429. Id.
430. Id. at 21.
431. BUCHHEIT, supra note 252, at 97.
432. Id. at 223 (discussing the Parochialist’s model of seccession).
433. Id. at 225 (emphasis added).
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suppressed by a sovereign state, the international community supports
territorial integrity until a war of independence is successful. As in
the past, the entire problem is settled on the battlefield.”434 One of
the most memorable criticisms of the traditional doctrine, like Prince
Adams’s, from the world of government and diplomacy, is the
Tanzanian government’s statement recognizing Biafra delivered by
President Nyerere.
Nyerere conveyed that “the purpose of society and of all political
organizations, is the service of man”435 and that states are designed to
safeguard the life and liberty of their inhabitants.436 According to the
respected statesman, the powers and machinery of the state may never
be turned against a whole group because of racial and related
prejudice; where this becomes the case, “the victims have the right to
take back the powers they have surrendered and to defend themselves” by creating another instrument for their protection in the form
of another state.437 Nyerere believed that a rejected people “must
have the right to live under a different kind of arrangement which . . .
secure[s] their existence.”438 He said national unity ceases to exist
when a group of people become convinced that they are rejected and
that there is no longer any basis for unity between themselves and the
rest of the country.439
Yet other criticisms of the traditional doctrine come from Francis
Deng and his colleagues, Thomas Frank, Professor Umozurike,
Professors Raymond Taras and Rajat Ganguly writing together, and
434. Prince Hans Adams II of Liechtenstein, Foreword to SELF-DETERMINATION OF PEOsupra note 24, at ix, xi.
435. Tanzania Recognizes Biafra, supra note 192, at 211.
436. Id. at 208-10. President Nyerere’s statement recognizing Biafra is deservedly praised as
“one of the most striking state documents of our time.” See Diamond, supra note 77, at n.13.
437. Tanzania Recognizes Biafra, supra note 192, at 209; see also id. at 210. Nyerere’s
thought here as elsewhere in this statement, tracks the “natural rights” doctrine symbolized in
the American revolutionary tradition as “codified” in the American Declaration of Independence. The document is world famous for its proposition that governments exist to preserve the
life and liberty of its citizens. As this human and fundamental rights masterpiece proclaims,
governments became “instituted among Men” to ensure the “inalienable Rights” of individuals,
including “Life, Liberty and the Pursuit of Happiness,” and
whenever any form of Government becomes destructive of these Ends, it is the Right
of the People to alter or to abolish it and to institute new Governments, laying its
foundation on such Principles and organizing its Power in such Form, as to them seem
most likely to effect their Safety and Happiness.
438. Tanzania Recognizes Biafra, supra note 192, at 209.
439. Id. at 210. Nyerere believes it is absurd to kill “in the name of unity” and that “[t]here
is no unity between the dead and those who killed them . . . no unity in slavery or domination.”
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Professor An-Na’im. Deng, a scholar and former diplomat, along with
his collaborators, argued for the reconstruction of the doctrine of sovereignty in a manner that tempers the doctrine with responsibility in
matters of human rights and humanitarian assistance.440
Their point is that sovereignty has evolved in our time “to prescribe democratic representation” and “to justify outside intervention” when a humanitarian crisis arises due to a failure to meet this
standard, and that a government should not claim sovereignty if it is
not able to “establish legitimacy by meeting minimal standards of
good governance and responsibility for the security and general welfare of its citizens.”441 Frank advanced a broad principle of “entitlement to equality.”442 According to him, “self-determination is a right
applicable to any distinct region in which the inhabitants do not enjoy
rights equal to those accorded all people in other parts of the same
Professor Umozurike contends that concern for human rights,
and intervention meant to protect those rights, do not negate the principle of non-interference in a country’s domestic affairs because
“breaches of human rights, especially gross breaches, are taken out of
domestic jurisdiction.”444 He also wrote that “self-determination need
not irresistibly lead to independence or secession, inasmuch as it can
also be satisfied through” relations like federalism “that conform with
the wishes of the people,”445 leaving open the implication that sepa440. See generally Francis M. Deng, Reconciling Sovereignty with Responsibility: Basis for
International Humanitarian Action, in AFRICA IN WORLD POLITICS, supra note 27, at 353 [hereinafter Deng, Reconciling Sovereignty with Responsibility]; SOVEREIGNTY AS RESPONSIBILITY:
441. Deng, Reconciling Sovereignty with Responsibility, supra note 440, at 357. Deng and his
collaborators elaborate compellingly that:
Sovereignty is not merely the right to be undisturbed from without, but the responsibility to perform the tasks expected of an effective government. . . .
The obligation of the state to preserve life-sustaining standards for its citizens must
be recognized as a necessary condition of sovereignty. . . .
The state has the right to conduct its activities undisturbed from the outside when
it acts as the original agent to meet the needs of its citizens. . . .
If the obligation is not performed, the right to inviolability should be regarded as
lost, first voluntarily as the state itself asks for help from its peers, and then involuntarily as it has help imposed on it in response to its own inactivity or incapacity and to the
unassuaged need of its own people.
SOVEREIGNTY AS RESPONSIBILITY, supra note 440, at xviii.
443. Id. at 168. Without doubt, Franck meant external self-determination through separate
statehood rather than internal self-determination short of secession.
444. UMOZURIKE, supra note 23, at 7.
445. Id. at 53.
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rate independence is possible where those relations are lacking or exist only in name.
Professors Taras and Ganguly, in their joint text on ethnic conflict, contend that “[w]here a national government does not operate
for genuine mutual advantage and discriminates against or exploits
certain groups, then this in effect voids the state’s claim to the territory in which the victims reside.”446 Mere inequalities do not trigger
this moral argument in favor of secession. Rather, they explained, the
argument applies “when ruling elites skew benefits to favor some and
disadvantage others in unjustified ways.”447
Last but not least, Professor An-Na’im notes regrettably that
“[a]lthough external self-determination in the sense of liberation from
traditional colonialism, is firmly established and largely achieved, internal self-determination within existing nation-states, and against
what might be called ‘local colonialism,’ remains problematic,” especially in Africa.448 He thinks it ironic that the independent nationstate, once perceived as the essential prerequisite for achieving the
peoples’ right to self-determination, is now viewed “as a major obstacle to realization of that right,”449 leading him to warn that unless African leaders correct this situation “by responding to legitimate
demands for self-determination, they should expect to be treated by
their peoples as colonial states to be combated in struggles and wars
of liberation.”450
The point of these contentions and elaborations, tied with the
changes in governmental practice discussed below in the next section,
is that future debate on self-determination will need to “take account
of the fact that state-shattering, far from being an unusual event, may
become routine in the future.”451 Contrary to every expectation, the
forces of globalization have not slowed down campaigns for external
self-determination or independent statehood in the world.452 Instead,
the evolution of an international legal right to secession already evident in 1978 when Buchheit wrote his study on self-determination453
446. TARAS & GANGULY, supra note 421, at 60 (citations omitted).
447. Id.
448. An-Na’im, supra note 45, at 109.
449. Id. at 106.
450. Id.
451. Herbst, supra note 413, at 30.
452. Wolfgang Danspeckgruber, Introduction to SELF-DETERMINATION
note 24, at 6 [hereinafter Danspeckgruber, Introduction].
453. BUCHHEIT, supra note 252, at 97.
PEOPLES, supra
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has become more pronounced today. Not only do powerful forces in
the international political economy, as Professor Herbst points out,
“fully support the geographer’s view of a world with an increasing
number of small nation-states,”454 but the impact of the Diaspora in
the struggle for self-determination in their homeland has grown beyond what they used to be.455
With the Cold War over and a new world order unfolding, it is
about time the international community changed its attitudes and
strategies toward self-determination, developed during the era of the
Cold War.456 American revolutionary tradition gives a people the
right to alter or abolish a government destructive of their rights and
replace it with one built on such principles and organization of power
that “as to them . . . seem most likely to effect their Safety and Happiness.”457 Self-determination draws its moral and political force from
the idea that, like democracy, “government should be based on the
consent of the governed.”458 If it still means anything, the doctrine
signifies that “only the nation itself has the right to determine its
destiny . . . no one has the right forcibly to interfere . . . to destroy
schools and other institutions, to violate its . . . customs, to repress its
language, or curtail its rights . . . to arrange its life on the basis of
autonomy” and that it has “the right to complete secession,” to name
these necessary features.459
3. The Changing Doctrine as Governmental Practice
Although the movements toward doctrinal change articulated
above in the previous section are impressive, even more heart-warming are the changes emanating from governmental practice. These
changes include unprecedented acts of power devolution short of
complete independence, instances of external self-determination
outside the state, and growing constitutionalization of the right to selfdetermination.
454. Herbst, supra note 413, at 30.
455. Wolfgang Danspeckgruber, A Final Assessment, in SELF-DETERMINATION OF PEOPLES,
supra note 24, at 339 (pointing out “[n]ever before in history has” the impact of people in the
Diaspora on the struggle for autonomy in their homeland “been as immediate, extensive, and
direct as today.”) [hereinafter Danspeckgruber, Final Assessment].
456. See Danspeckgruber, Introduction, supra note 452, at 6.
458. See SUREDA, supra note 426, at 17; An-Na’im, supra note 45, at 108.
(1995) (quoting J. Stalin, Marxism and the National Question, in MARXISM AND THE NATIONAL
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One country that is illustrative of the power devolution trend is
Britain where local self-rule of major constitutional import had been
approved for all of the three component nations, namely Wales, Scotland, and Ireland, which, with England, make up the United Kingdom
of Great Britain and Northern Ireland.460 For example, the new assemblies granted to Scotland and Wales, which became effective from
the year 2000, have authority in a multiplicity of issue-areas that include education and culture, health, economic development and planning, and police protection or law enforcement.461 Amazingly, in
Britain, as in the former Yugoslavia, group-beneficiaries of these new
autonomies insist on complete independence but without being
branded “secessionists” as would probably have been the case if these
campaigns had occurred in non-European regions. In Britain, the
Scottish Nationalist party regards the creation of the new assembly as
a first step on the road to a fully independent Scotland,462 while in
Serbia-Montenegro, Montenegro perceives confederation as a prelude
to full independence in 2006.463
These critical measures of self-determination stand in contrast to
Nigeria, which, despite its portraiture as a federal government, leaves
most governmental powers centralized in the hands of the national
government. These experiments in internal self-determination in Britain are both impressive and instructive for two reasons. First, Britain
is a unitary system under which most power theoretically resides with
the national or central government. In Britain, “the national government has all power and has the discretion to grant or withdraw prerogatives and power to local authorities.”464 Second, besides being
creator of the patchwork country Nigeria, Britain played a critical role
in the defeat of Biafra.465
Instances of external self-determination through secession in the
aftermath of the Cold War include the division of the former Soviet
Union into fifteen separate parts; the breakup of the former Federation of Yugoslavia into five independent countries; the division of for460. THEEN & WILSON, supra note 66, at 20. The Union Jack, Britain’s national flag, overlaps the crosses of three peoples who once had separate political units, namely, England and
Wales whose patron saint is St. George, Scotland whose patron saint is St. Andrew, and Ireland
whose own patron saint is St. Patrick. Id.
461. See id. at 22 tbls.2-4.
462. Id. at 22.
463. See Misha Savic, “New Beginning” as Yugoslavia Ceases to Exist, CHI. TRIB., Feb. 5,
2003, at 4.
464. THEEN & WILSON, supra note 66, at 38-39.
465. See discussion supra Part III(B)(2)(iii).
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mer Czechoslovakia into two countries; admission of East Timor,
previously part of Indonesia, into independent statehood; and the ascension of Eritrea, an erstwhile province of Ethiopia, into independent statehood.
Eritrea became independent “with the co-operation of the government in Ethiopia.”466 Africa lags behind the rest of the world in
instances of self-determination through separate statehood. This is of
little import, however. Eritrea is enormously and critically significant
because it strikes the “taboo of officially sanctioned secession,”467 and
is a direct slap in the face to the OAU convention regarding the inviolability of colonial boundaries. Slowly but surely African colonial
boundaries are, in the post-Cold War era, moving toward being modified.468 If, as Professor Clapham poignantly reminds us, “the mighty
Soviet Union breaks up into fifteen different fragments, there is no
way in which an artificial African state can hold together unless most
of its people want it to.”469
One country in Africa that illustrates the trend of constitutionalization of the right to self-determination is Ethiopia, which, in 1994,
adopted a constitution stipulating: “Every Nation, Nationality and
People in Ethiopia has an unconditional right to self-determination,
including the right to secession.”470 One commentary on the provision states that the argument for exercise of this right is “based on the
understanding that the nation-state exists to serve the people and not
vice-versa. If any nation, nationality, or people strongly and consist-
466. Mazrui, supra note 267, at 28.
467. Id.
468. See id. (describing federalism, multi-party systems, and related governmental organizational features, which he says are replacing political conventions that, in the past, helped to
preserve inherited borders).
469. Christopher Clapham, Democratisation in Africa: Obstacles and Prospects, 14 THIRD
WORLD Q. 423, 437-38 (1993). Clapham argues that “[t]he old African state,” based on the
hierarchies of rule inherited from European colonialism, is “on its way out,” and any state structure succeeding this dying formation must today rely more on popular support than in the past.
Id. at 437. The choice open for African governments today, he believes, is between acquisition
of popular legitimacy (meaning being more democratic) or collapse into anarchy. Id. at 437-38.
Political conventions used to maintain non-democratic governments in the past that Clapham
said have now eroded to the point of no return, include foreign support and attachment to inherited artificial boundaries. Id. at 437.
470. ETH. CONST. art. 39, para 1; see also FASIL NAHUM, CONSTITUTION FOR A NATION OF
NATIONS: THE ETHIOPIAN PROSPECT 53 (1997) (praising the right as “part of the broader right to
self-determination,” “the ultimate extension and expression of the right to self-determination,”
and a guarantee “for sustainable peace and a solid foundation for unity based on equality and
mutual respect”).
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ently feels its interest[s] are not being properly served by the existing
status quo, it should be able to change it.”471
The Ethiopian constitution sets forth elaborate procedures designed to facilitate exercise of this right by qualified nationality groups
and to afford groups who remain in the union a voice in the decision
relating to any exit. Laying down legal-constitutional measures for
the exercise of the right to secession smooths out possible disruption
that may emanate when a group leaves an existing union to build its
own separate statehood.472 The measures also meet Professor AnNa’im’s requirement of not making secession easy but at the same
time not so difficult that it is unachievable.473 Just like for Britain, the
constitutional innovations coming from Ethiopia are impressive and
enormously instructive. Ethiopia, under Emperor Haile Selassie, advocated respect for the inviolability of inherited colonial borders and
had no difficulty in supporting Nigeria in opposition to Biafra.474 To
move from this position to not only support independence for Eritrea
but also to insert in its own constitution a provision stipulating the
right of secession as a collective right is a real turnaround in policy
toward self-determination for the formerly feudal society.
Ethiopia is only part of a broader wind of constitutional change
that has been sweeping through Africa since the 1990s.475 In cooperating to let Eritrea go and then leading the way in the institutionalization of constitutional procedures for self-determination for nationality
groups all the way to full independence, Ethiopia also represents an
important part of those constitutional changes. The arguments made
in support of the right to secession—such as that the state exists to
serve people—call to mind the language of the American Declaration
of Independence476 and the word of countries like Tanzania several
471. NAHUM, supra note 470, at 53.
472. See BUCHHEIT, supra note 252, at 241 (stating that the effects of a successful secession
had to be measured both on the remaining state as well as on the international system in
473. See discussion supra notes 493-94 and accompanying text.
474. See KIRK-GREENE 2, supra note 170, at 13-15. Communique´ Issued at End of O.A.U.
Consultative Mission Visit, reprinted in KIRK-GREENE 2, supra note 170, at 173-74; O.A.U. Resolution on Nigeria (Sept. 1967), reprinted in KIRK-GREENE 2, supra note 170, at 172-73.
475. See Philip C. Aka, Democracy, Human Rights, and the New Constitutionalism in Africa
4-5 (Oct. 23-25, 2003) (unpublished paper presented at the International Law Weekend 2003,
American Branch of the International Law Association, on file with author); see also Julius O.
Ihonvbere, Constitutions Without Constitutionalism?: Towards a New Doctrine of Democratization in Africa, in TRANSITION TO DEMOCRATIC GOVERNANCE IN AFRICA, supra note 268, at 137,
137-52 (showing how constitutionalism is taking a center stage in the overall agenda for democratic renewal in Africa).
476. See discussion supra note 437.
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decades ago in recognizing Biafra as an independent country.477 Although it took Ethiopia decades and a devastating civil war with Eritrea to finally embrace this wisdom, that the change occurred at all is
nevertheless significant. Another country, this time European, illustrating the trend of the constitutionalization of the right to self-determination is Liechtenstein, which has proposed a draft amendment
providing, in pertinent part:
Each community has the right to secede. Secession is to be regulated by law or on a case-by-case basis by contract. Secession must
be approved by a majority of Liechtenstein citizens resident in the
community in question. In the case a majority approves secession
the reigning prince shall have the right to order within thirty days a
vote of reconsideration six months later.478
What is so impressive about Liechtenstein, with its advocacy of
“self-determination through self-administration,” is that it is a microstate with a population of 300,000 people and an area of 200 kilometers479 for which governmental defense of any campaign by communities for self-determination with the response of non-viability would
have been compelling. These changes in governmental practices are
among the powerful forces in the global political economy that Professor Herbst says “fully support the geographer’s view of a world with
an increasing number of small nation-states.”480
4. Beyond the Traditional Doctrine: Survey of Professor AnNa’im’s Proposal for Mediating the Tension Between
Sovereignty and Self-Determination
Professor An-Na’im has recently made an impressive contribution to the discussion at hand, and thusly, his writing deserves some
thorough analysis.481 The piece is also remarkable for the thought it
contributes on how to resolve the tension between sovereignty and
self-determination—what An-Na’im portrays as “competing claims to
477. See discussion supra notes 436-39 and corresponding texts.
478. Danspeckgruber, Final Assessment, supra note 455, at 352 (quoting ch. 1, art. 2, of the
Liechtenstein Draft Convention on Self-Determination Through Self-Administration). Text of
the Draft Convention is contained in SELF-DETERMINATION OF PEOPLES, supra note 24, at 38292. For commentary on the Draft Convention, see id. at 365-81.
ed. 2000).
480. Herbst, supra note 412, at 30. Many of the countries that became independent in the
post-Cold War period are small. For example, Croatia has a population of 4.7 million, Slovenia 2
million, and Eritrea 3.5 million. Id. at 26.
481. See generally An-Na’im, supra note 45, at 105-25.
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self-determination.”482 An-Na’im’s proposal revolves around two
identifiable points: (1) recognition of the existence of an international
legal right to self-determination; and (2) the need and necessity for
international action–and the role of the international community–in
mediation of conflicting claims to self-determination.
a. International Legal Right to Secession
An-Na’im believes, through his reading of African and UN
human rights documents, that “an international legal right to secession” exists.483 Specifically, he said the right of peoples to self-determination contained in the ACHPR as well as in the UN Charter and
human rights documents includes internal self-determination at the
domestic level, as well as the right of external self-determination
through separate statehood in appropriate cases.484 He disagrees with
the idea that the right to self-determination stops with internal selfdetermination.
[T]he right to self-determination is exercisable within, as well as
through, the nation-state. The ‘nations’ or peoples constituting the
Nation of the nation[-]state need not challenge and overthrow that
state to satisfy their right to self-determination. Nevertheless, it
must remain conceivable that such challenge with a view to establishing a separate nation[-]state may be justified under certain
“A right to secession should be maintained for use as a last resort
when all efforts at establishing the appropriate constitutional order
have failed.”486 Put differently, an ethnic group should be entitled to
external self-determination through secession if its government fails to
protect its right to substantive internal self-determination through appropriate constitutional measures.487 Professor An-Na’im argues
“that the underlying logic and moral rationale of traditional
decolonization cannot end by the achievement of formal
Rather, just
See id. at 121.
Id. at 108.
Id. at 122.
Id. at 121.
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[a]s colonized people(s) are entitled to the self-determination of formal independence from a colonial power, so they should be entitled
to self-determination through secession from the new independent
state if they are denied internal self-determination. In this way, the
international legal right of minorities to secession can arise if they
are denied internal self-determination at the domestic constitutional
He points out correctly that although the Declaration of Principles affirms the doctrine of sovereignty and territorial integrity of existing states, the affirmation is not absolute since it makes sovereignty
contingent upon states “conducting themselves in compliance with the
principles of equal rights and self-determination of peoples.”490 The
Declaration is important because it is a most authoritative international document that codifies important principles of international law
and deals with the issues those principles tackle in the post-colonial
Although Professor An-Na’im espouses an international legal
right to secession, he wants that right maintained for use “as a last
resort when all efforts at establishing the appropriate constitutional
order have failed.”492 His position is for the combination of an “ultimate threat of secession” and the difficulty of its achievement to provide an incentive to all parties to “a majority/minority conflict to
develop and implement the necessary constitutional mechanisms to
achieve substantive internal self-determination for all segments of the
population.”493 As he sees it, the threat of secession should reinforce
the obligation of the leadership of a country to allow its population
the maximum degree of internal self-determination, while the difficulty of achieving secession should strengthen the cooperation of all
segments of the population in building national unity.494
Put simply, Professor An-Na’im does not want the right to selfdetermination made too difficult that it becomes unachievable or else
there will be no incentive for a government to allow its population the
maximum degree of internal self-determination; on the other hand, it
should not be too easy to achieve so that groups are not tempted to
489. Id.
490. Id. at 114 (interpreting the Declaration of Principles, Princ. (e), para. 7).
491. See generally C. Don Johnson, Note, Toward Self-Determination—A Reappraisal in the
Declaration on Friendly Relations, 3 GA. J. INT’L & COMP. L. 145-63 (1973).
492. An-Na’im, supra note 45, at 122.
493. Id. at 121.
494. Id. at 106.
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use that right illegitimately. Countries need to find some ways to balance the legitimate demand of separate identity against the equally
legitimate claim of national integration. Whether through federalism
or any other devise of autonomy a country chooses, the basic objective should be to afford groups equal opportunity in political, economic and social matters at the national level and equality in pursuit
of cultural identity.495 Where these objectives are achieved, there will
be no objective justification for secession since secession is not an end
in itself, but rather a means to these objectives.496 There is no one
best formula for these things and Professor An-Na’im does not advocate any such universal prescription, but the basic criterion is what he
denominated the “‘golden rule of reciprocity’: one should place the
self in the position of the other person; whatever the self expects or
demands must be conceded to the other person.”497 But articulating
and implementing an appropriate constitutional measure, he said, will
necessarily be predicated upon a fundamental appreciation of the legitimate collective rights of an ethnic or minority group involved.498
b. Importance of International Action in the Protection of Human
Professor An-Na’im advocates a more active role for the international community in safeguarding human rights. He said the fundamental choice facing the international community is between ensuring
satisfaction of people’s right to internal self-determination and risking
the difficult-to-contain-or-confine conflict that might result from demands for secession.499 Conflicts know no national boundaries,500 he
said. Not only that, but seemingly local conflicts can also as well endanger “the vital interests of other states.”501 He says the international community can help prevent this through “international
political accountability” and “economic pressure” on offending governments,502 specifically by impressing on national governments that
they cannot get away with denying their own population’s internal
self-determination. What he means, he says, is not direct unilateral
Id. at 118.
An-Na’im, supra note 45, at 120.
Id. (“No civil war can be relied on to remain within the boundaries of any state.”).
Id.; see also OKAFOR-OBASI, supra note 19, at 96-113.
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intervention, but rather “concerted and coordinated efforts at mediation and influence through multilateral action of regional and international organizations, such as the [UN] and the Organization of African
Unity, to achieve and maintain internal self-determination for all the
peoples of each country.”503
International and regional organizations or other mutually acceptable mediators can provide or devise the forum for negotiations
and where needed, the personnel of these organizations or other mutually acceptable third parties can act as mediators or facilitators of
dialogue and negotiation.504 Where all efforts to achieve internal selfdetermination fail, however, the international community should not
deny an oppressed minority its right to external self-determination
through secession,505 and therefore, the opportunity to secure their
own individual and collective rights with the help of the international
5. The Changing Doctrine and Igbos
Recent developments discussed above relating to the changing
doctrine, including changes in governmental attitude toward self-determination, both support and strengthen the case for Igbo statehood.
Those recent external developments are then in turn significantly reinforced by a Nigerian internal development. That internal development, forming some of the backdrop for the discussion of Igbo human
rights in this Article, is the changed context of the Biafran defeat more
than three decades ago, symbolized by the rise, under General
Obasanjo’s presidency, of a growing movement in the country and in
the Diaspora for the “actualization” of Biafra.506 General Obasanjo
was the military commander who received the Biafran surrender in
1970. A recent Igbo campaign for separate statehood took off in May
2000 when the Movement for the Actualization of the Sovereign State
of Biafra (MASSOB) embarked upon a program aimed at resurrecting the defunct Republic of Biafra, although agitation for Biafra
503. An-Na’im, supra note 45, at 120-21.
504. Id. at 116.
505. Id. at 121.
506. The meaning of actualization includes to realize something in action or portray that
something realistically. See THE AMERICAN HERITAGE COLLEGE DICTIONARY 14 (4th ed.
2002). Therefore, organizations seeking to actualize Biafra appear to believe Biafra never actually died.
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actually preceded that date.507 In a petition it sent to the UN, MASSOB indicated that:
The said Biafra is currently struggling to gain independence from
Nigeria. We, therefore, under the present circumstance, humbly apply to be admitted, registered or treated, as the case may be, as an
unrepresented nation in any of the organs of the United Nations,
having renounced our Nigerian nationality.508
The organization stated that its campaign for actualization of Biafra would be non-violent and non-exodus, meaning that Igbos would
not have to leave their jobs and investments outside Igboland this
time, as they did in 1966-67.509 Elaborating on its actualization strategy, MASSOB pointed out that “Independence is different from overthrowing of government. Independence goes with negotiation. We
are negotiating Biafra’s independence.”510
The rise of MASSOB and other Biafran actualization organizations inside and outside Nigeria is “a response to the terror, cruelty,
failure and utter lack of humanity” of the Nigerian State.511 General
Obasanjo’s response to the peaceful and nonviolent agitation for independence is that “[t]here is no peaceful way of getting out of Nigeria”;
he insists Nigerians “can find a peaceful way of living together in harmony.”512 To underscore this inflexible position, his government has
507. For example, the Igbo pan-nationalist organization, Ekwe Nche, based in Chicago,
adopted a constitution on February 19, 1999 that has as one of its objectives, “striv[ing] for the
peaceful actualization of the Sovereign State of Biafra.” See § 2.5.1 EKWE NCHE ORG. CONST.
(on file with author).
508. Obiora Chukwumba, Tension in the Land, TELL (Lagos), Nov. 22, 1999, at 17.
509. Toyi Olori, Igbos Resurrect Biafra Secessionist Bid, INTERPRESS NEWS SERVICE, May 29,
2000 (on file with author).
510. Id.
511. Anonn Is Anall, Biafra: A Tragedy Set to be Repeated? IRISH DEMOCRAT, at http:// (last updated July 30, 2002). For a detailed discussion of “the secession conundrum” in the country, see Aka, Nigeria Since May 1999,
supra note 58, at 246-52.
512. See Aka, Nigeria Since May 1999, supra note 58, at 248 & n.238 (citing Muyiwa
Adeyemi & Isa Abdulsalami, We Can Find Peaceful Living, THISDAY (Lagos), Dec. 7, 2001).
General Obasanjo is aware that the peaceful coexistence he counsels has little chance of happening in Nigeria and he overlooks the advice of scholars like Professor An-Na’im that although
desirable, national unity and integration are not things pursued at any cost, “certainly not at the
cost of achieving personal liberty and economic, political, and social justice for all segments of
the population, or at the cost of securing collective and individual rights.” An-Na’im, supra note
45, at 106, 122. Another An-Na’im counsel is instructive here: Unless African governments
learn to respond to the legitimate demands for self-determination in their countries, they should
expect to be treated by their peoples as colonial states to be combated in struggles and wars of
liberation. Id. at 106. At other times, the President has simply maintained, in seeming obliviousness to the relentless centrifugal pulls inside the country, that “[t]oday, no serious-minded
Nigerian is talking of breaking Nigeria up. Nigerians today have hope, and when you have hope,
you have a lot. Nigerians today feel that they can get justice.” Aka, Nigeria Since May 1999,
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repressed and brutalized groups inside Nigeria like MASSOB
campaigning for the actualization of Biafra,513 while leaving untouched northerner politicians who, by replacing the country’s secular
legal system with Muslim Sharia code, have engaged in an act of effective secession from the country.514
supra note 58, at 252 & n.267 (citing Talking Point, Interview by Robin Lustig with Olusegun
Obasanjo, President, Nigeria, Abuja, Nigeria (Feb. 16, 2002)).
513. See Aka, Nigeria Since May 1999, supra note 58, at 248.
514. Detailed discussion on this topic can be found in Aka, Nigeria Since May 1999, supra
note 58, at 240-46. In a widely publicized lecture delivered in Fall 2002, General Ibrahim
Babangida, military ruler from 1987 to 1993, criticized General Obasanjo for showing a “poverty
of leadership” in dealing with escalating ethnic nationalism in the country and promoting national integration. See General Ibrahim B. Babangida, Ethnic Nationalities and the Nigerian
State: The Dynamics and Challenges of Governors in Plural Nigeria, Address Delivered at National Institute of Policy and Strategic Studies 6 (Nov. 22, 2002) (on file with author). He said
that during his period in office he was “conscious of and convinced,” “about the necessity for
thoroughgoing and systematic reforms of our economy, society and political process, in order to
assist in creating a better space for the multiple nationalities of the country,” arguing that this
was the basis for the economic reforms and democratization of the political process he undertook between 1985 and 1993. Id. He blamed the manifestations of ethnic tensions that have
arisen under General Obasanjo on “the reactive excesses of the” government and the “selective
injustice meted out to certain ethnic nationalities by the government.” Id. Babangida also believes the federal character doctrine is not being properly applied under President Obasanjo.
The former dictator stated that the 1999 Constitution is filled with “numerous imperfections”
and needs reformation to meet “the processes and expectations of democracy.” Id. He would
want “[t]he entire constitutional order” reviewed, if necessary via a well-organized national conference of ethnic nationalities. Id. In fact, he believes the Nigerian State needs a complete
reconstitution “so as to endow it with a modicum of neutrality, objectivity and justice in its
operation.” Id.
The presentation provides some insights on some of the problems highlighted in this Article
regarding the ill structure of the Nigerian system and the violations of Igbo human rights that go
on within that system. The former dictator sees numerous imperfections with the 1999 constitution that need to be corrected, and he believes that the federal character doctrine is not being
properly applied under General Obasanjo. Id. He also thinks the Nigerian state needs complete
reconstitution, disclosing that going back to the period of his days in office from 1985, he had
become “convinced” about the necessity for a “thoroughgoing and systematic reforms of” the
country’s politics, economics, and society. Id. General Babangida also validates violations of
Igbo human rights that still go on in Nigeria. Id. In addition to the illegal and unconstitutional
application of the federal character doctrine (which militates against safeguard of Igbo rights)
that he spoke about, General Babangida also inveighs against the Obasanjo government’s meting out “selective injustice” “to certain ethnic nationalities.” Id. Igbos top the list of those unnamed ethnic nationalities. Although his diagnosis is on point, General Babangida is a huge part
of what is wrong with Nigeria and its leadership. He is notorious for the fake transition-todemocracy program, ending in the annulment of comparatively free and fair elections, he unveiled from 1987 until 1993 when he left office involuntarily. See generally TRANSITION WITHOUT END: NIGERIAN POLITICS AND CIVIL SOCIETY UNDER BABANGIDA (Larry Diamond et al.
eds., 1997). His attempt at economic reforms, like with his political reforms, was also halfhearted and a failure. See Chukwuma F. Obidegwu, Nigeria: Priorities and Prospects for the
(Aguibou Y. Yansane ed., 1996). There are also aspects of the speech that leave the reader
unpersuaded regarding General Babingida’s sincerity concerning his latter-day enamor for fundamental restructuring. He regrets that so-called “foundational issues,” matters at the “federalist foundations of the Nigerian State” considered “no go areas” when he was in office, have
become “worrisomely re-invented in recent times.” Id. A true reformer convinced of the neces-
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Although the current Igbo campaign for separate statehood is,
like the one of 1967, the result of Nigerian local factors,515 the campaign also reinforces Danspeckgruber’s argument that “the intensification of globalization has not diminished the frequency . . . of
struggles for self-determination and secession.”516 The rise of Igbo organizations, in the U.S. and other foreign countries, committed to the
actualization of Biafra also validates his point about the growing impact by people in the Diaspora on the struggle for autonomy in their
homeland, which Danspeckgruber argues is “as immediate, extensive,
and direct” as “[n]ever before in history.”517 The Biafran conflict
from 1967 to 1970 divided the United States and the international
community.518 A similar conflict today will have broader consequences, given the larger and ever-growing community of Igbo immigrants today in the United States and other countries. This
occurrence also reinforces Professor An-Na’im’s argument about the
necessity for international action in mediating conflicting claims to
self-determination. In a post-Cold War era characterized by “self-determination through self-administration,”519 searches for new legal arrangements,520 and constitutionalization of the right to selfdetermination,521 even stronger unions than Nigeria, like Yugoslavia,
sity of restructure for a colonial state like Nigeria would not declare any issue a “no go area.”
Also, although as a private citizen he would not mind convocation of a national conference of
ethnic nationalities to decide on the future of the country, something for good measure which
sets him apart from General Obasanjo, who does not believe in such a conference, the support is
tentative and conditional. Id. So, for all his latter-day verbal commitment to restructuring, I
would still rank Babangida among those leaders of the country who, like Obasanjo, are allergic
to restructuring and are content with mere tinkering of the Nigerian system. Such flinching
commitment to structural reform could have been among the reasons why his political and economic reforms failed dismally. Last but not least, Babangida was a major part of the reason why
the country’s entire constitutional order, by his word, needs review today. His ascension to
office via a military coup, his dictatorial and unaccountable leadership style, and his long
unelected stay in office spanning eight whole years, deprived the country of much-needed opportunity for democratic-constitutional growth.
515. See Biafran Memorandum Circulated to Heads of State at O.A.U., supra note 200, at
171 (maintaining that “[e]very Federation that has broken up in history has broken up because
of some identifiable local cause and not in consequence of an external factor”).
516. Danspeckgruber, Introduction, supra note 452, at 6.
517. Danspeckgruber, Final Assessment, supra note 455, at 339.
518. See generally STREMLAU, supra note 207.
519. See discussion supra note 477 and accompanying text.
520. Danspeckgruber, Final Assessment, supra note 455, at 352; Wolfgang Danspeckgruber,
Self-Determination and Regionalization in Contemporary Europe, in SELF-DETERMINATION OF
PEOPLES, supra note 24, at 165, 196; see also discussion supra notes 460-61 and accompanying
text (pointing to instances of power devolution short of complete independence).
521. See discussion supra note 470-78 and accompanying text.
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have disintegrated because they failed to readjust at the most appropriate time.522
B. Lack of Any Articulable Objections to Igbo Separate
The following are four possible objections to Igbo separate statehood, stated in reverse order for their lack of persuasiveness, or ease
of refutability: (1) the Igbo nation as it exists today is a creature of
British colonialism (the “No Britain, No Igbo” argument), (2) Balkanization, (3) the concern that separation will be violent, and (4) the
concern that an Igbo state will not be protective of human-rights.
These objections, none of which is tenable, are discussed in turns.
1. Argument That the Igbo Nation as It Exists Today Is a
Creature of British Colonialism (the “No Britain, no Igbo”
The first possible objection to Igbo separate statehood is that the
Igbo nation as we know it today is a product of British colonial rule in
Nigeria; in other words, but for British entry into Nigeria, there would
be no Igbo nation today seeking conference of independent statehood
for the consummation of human rights. This argument is the least
compelling among the possible objections to Igbo statehood, however,
and is accordingly the most easily disposable.
Britain did not create the Igbo nation. Before British entry into
what became Nigeria, Igbos had a history of independent existence
that goes back “at least [5,000] years.”523 “One of the most notable
facts of Igbo history,” as Professor Isichei recounted in her history of
the Igbo people, “is its length and continuity.”524 This objection
would still not have been compelling if Britain had created the Igbo
nation. What is important is whether a nation exists today that is considered a “people” within the meaning of African and UN human
rights instruments, and therefore entitled to the right to self-determination either internally within a nation-state or externally through
separate statehood, not who brought it into existence.
What critics who make this argument actually meant to convey,
as earlier indicated in this Article, is that current pan-Igbo identity
522. See Tilde, supra note 397.
523. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 3.
524. Id.
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and the use of the Igbo ethnic label are externally imposed phenomena that came with British colonial rule.525 Igbos “beg[a]n to think of
themselves as a unified people” following British entry into Nigeria,526
and British intervention “violently extended the categories through
which the Igbo perceived their world.”527 This information is immaterial, however, because it has nothing to do with whether an Igbo nation is considered a people within the meaning of the applicable global
human rights principles. Although it is difficult to see how a nation
can exist and not have some consciousness of its existence, the need
for pan-Igbo identity or the use of any ethic label (necessary for
groups to differentiate themselves in competition for scarce resources
with one another)528 was created by British intervention and would
not have been necessary if Britain had not come into Nigeria and
lumped together ethnic groups which before then did not live together
under one national roof.
2. The Balkanization Argument
A more popular and seemingly more compelling objection to separate Igbo existence than the “no Britain, no Igbo” argument is Balkanization. The root of the word comes from the partition of the
Balkans in the early twentieth century; the term means the division of
a region or territory into small, often hostile, units.529 Organizations
(such as the OAU) and countries that sided with Nigeria during the
war, in opposition to Biafra, used this argument.530 Balkanization embeds a domino theory: “B” will happen if “A” occurs as “the chain
reaction” in Professor Isichei’s statement conveys.531 Although a little
better than the “No British, No Igbo” argument, the Balkanization
argument is also easily disposable for a number of reasons.
First, the increased “evolution of an international legal recognition of secessionist self-determination”532 marked by the recognition
525. See discussion supra notes 74-75 and accompanying text.
526. Phoebe V. Ottenberg, The Changing Economic Position of Women Among the Afikpo
527. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 20.
528. See CHAZAN ET AL., supra note 5, at 109.
530. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 247 (“Many feared that if
secession was successful it would set off a chain reaction of conflicts all over Nigeria, which
would dwarf the tragedies of 1966 in their horror.”).
531. See also Government of Tanzania, Memorandum on Biafra’s Case, reprinted in KIRKGREENE 2, supra note 170, at 436-40 for President Nyerere’s elaboration of the theory in relation
to Nigeria and Africa.
532. BUCHHEIT, supra note 252, at 97.
Howard Law Journal
of separate existence for countries in the world, not a few of them
small, reduces the persuasiveness of the argument. Second, as the
Biafran government argued in 1969, Balkanization can give “to precedent a force that it does not possess” given that “[e]very Federation
that has broken up in history has broken up because of some identifiable local cause and not in consequence of an external factor.”533 Although save perhaps for the four African countries that recognized
Biafra,534 the OAU ignored this rebuttal; the point is as valid today as
it was in 1969: Internal factors play a major role in many national conflicts, and question the domino theory embedded in Balkanization.
Third, many African countries were smaller than Biafra and the
OAU appeared to be more concerned about maintaining Africa’s colonially-handed boundaries than about Balkanization per se. Fourth,
Balkanization was never a major factor for the Western powers that
supported Nigeria in opposition to Biafra. Rather, as Professor
Isichei herself indicated, these powers were moved “by a complex set
of economic calculations, and a realistic assessment of who was likely
to win,” more than by any concern about Balkanization.535
3. The Concern That Separation Will Be Violent
Critics for whom the first two objections are not workable may
yet see in this third argument a basis upon which to raise an objection
against a separate state for protection and consummation of Igbo
human rights. A previous attempt to achieve that separation ended
violently leading to horrible human rights atrocities against Igbos.536
Also, successful secession is something influenced by “the power relations between the contending parties”537 which as in 1967, may not
favor Igbos.
Separate statehood does not have to be something pursued by
force, however. Within recent times, the separation in the former Yugoslavia was associated with force; so also was Eritrean independence
accomplished after decades of war with Ethiopia. But the division of
the former Soviet Union into fifteen separate countries was a peaceful
event. The same peacefulness characterized the separation of the
533. Biafran Memorandum Circulated to Heads of State at O.A.U., supra note 200, at 171.
534. The countries are Gabon, Ivory Coast (today Cote
ˆ d’Ivoire), Tanzania, and Zambia. A
non-African country, though Black too, that recognized Biafra was Haiti in the Caribbean.
535. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 247.
536. See discussion infra Part III(B)(2).
537. UMOZURIKE, supra note 23, at 53.
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Czech and Slovak peoples once housed together under one national
roof as Czechoslovakia. In short, as Professor Goldstein said, selfdetermination is “not always” violent, but rather something that
sometimes can be achieved peacefully and nonviolently.538
Like these instances of peaceful independence, Igbo separation
will be achieved peacefully and non-violently rather than by any force
of arm. Igbo secession (and the attendant civil war) did not precipitate the killings and other atrocities against Igbos that took place between 1967 and 1970; rather, the course of events was the other way
round in the sense that the massacres of Igbos in 1966 precipitated the
secession and civil war. Also, despite the human catastrophe the secession brought upon the Igbo nation, the secession and resultant civil
war would still have been necessary if, as some Igbo leaders have argued, they averted an extermination of the Igbo people which would
have occurred in their absence.
Finally, while it may be true that a successful political divorce539
is influenced by “the power relations between the contending parties,”
power does not have to mean force, but rather something that goes to
the merit of a particular group’s case for separate existence. Even in
1967, Biafra never used force. The Igbos never chose war to achieve
or back their independence but rather had a civil war forced on
them.540 There is much less reason today to resort to any force. Instead, independence is something the various parties involved can
peacefully negotiate, with the international community as facilitator as
was the case in Eritrea and East Timor, where a UN plebiscite or referendum preceded separation. It is instructive that all the organizations today advocating Igbo independence understand that this is an
issue that will be resolved through negotiation. Thus, MASSOB indicates that it has no plans to overthrow the Nigerian government: “Independence goes with negotiation. We are negotiating Biafra’s
Besides indicating that their campaign will be peaceful and nonviolent, organizations advocating Igbo separate statehood also insist
538. See discussion supra note 420.
539. The expression comes from BUCHANAN, supra note 261 (cover title of book).
540. See discussion supra Part III(B)(2)(d); IGBOKWE, supra note 88, at 10. The Biafran war
was for Igbos simply a war of resistance. As Dr. Ransome-Kuti said, referring to the Nigerian
government, “You cannot kill tens of thousands of a people, take over the government with arms
and expect them to stay around like sitting ducks especially after unilaterally abrogating a negotiated settlement.” Ransome-Kuti, supra note 250, at 48.
541. Olori, supra note 509.
Howard Law Journal
that it will be “non-exodus,” quite mindful of the refugee nightmare
the mass exodus of 2 million dispossessed Igbos fleeing from northern
Nigeria created for Igbos and the world in 1967.542 No violence will
attend separation more than the violence that has occurred and is still
occurring now, absent separation. Still on the place, or lack of it, of
force in campaigns for self-determination, one lesson coming from the
latest Igbo campaign for independence, arising after almost thirty long
years after the war for Biafra, is that force suppresses but does not kill
the legitimate urge of a people to control their political destiny.543
Negotiations preceding separation should address the reasonable
fears of parties opposed to separation and the possibility of accommodating those fears through, for example, access to natural resources or
access to the sea for landlocked areas without such access. As
Buchheit pointed out in his important study, the theoretical objection
to including separate existence within the doctrine of self-determination tends to fizzle out “[o]nce the political fears engendered by secession are assuaged.”544 Negotiation may also involve creative
techniques designed to ease the pain of separation that could start, for
example, with devolution of powers through a political structure resembling a confederal system as Serbia-Montenegro adopted.545
Even with their justified bitterness toward Nigeria, Biafrans after
their separation from Nigeria in 1967, released a memorandum on
proposed future association with the rest of Nigeria on terms “worked
out in such a manner that they do not compromise or detract from the
sovereign rights of the states concerned.”546 The memorandum recognized that common experience arising from numerous years of ties
between Biafra and prospective states in Nigeria “provides a sound
and realistic basis for a fruitful relationship.”547 There is no reason
542. See discussion supra notes 170-71 and accompanying text.
543. The campaign today inside and outside Nigeria for an independent Igbo state calls to
mind General Ojukwu’s uncanny word from exile to the effect that “Biafra cannot be destroyed
by mere force of arms” given “the crystallization of the cherished hopes of a people who see in
the establishment of this territory a last hope for peace and security” that the Biafran phenomenon represented. See Ojukwu’s Call From Exile, reprinted in KIRK-GREENE 2, supra note 170, at
544. BUCHHEIT, supra note 252, at 20.
545. See discussion supra note 463.
546. Biafran Memorandum on Proposed Future Association (Aug. 29, 1967), reprinted in
KIRK-GREENE 2, supra note 170, at 163.
547. Id. See also the press release of the Zambian government which, in recognizing Biafra’s
independence, importantly stated:
We hope that the establishment of this Republic will now allow Nigeria and the people
of Biafra to work out a better frame-work for cooperation . . . to ensure a better platform for more realistic unity among themselves . . . to live in peace and to foster Afri-
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the Igbos could not extend this gesture of future cooperation again, if
need be.
Another issue that negotiations should address will be the identity of the “self” to be determined. Old Biafra consisted of ethnic
groups other than Igbos but excluded Igbos in the former Mid-Western Region across the Niger who remained in Nigeria. The current
Igbo campaign for separate self-determination involves Igbos across
the two sides of the Niger and does not affect non-Igbos who may
prefer to remain in a reshaped Nigeria. In short, the geography of Old
Biafra may be adjusted in the course of negotiation to separate any
group(s) other than Igbos who choose to remain a part of Nigeria.
An-Na’im said Biafra had all the qualifications for independent statehood except external sponsorship by an important power or powers.
The current campaign has even stronger qualification. Igbos have
grown beyond the mere 8 million they were in 1967. Today their population in Nigeria alone, not including the substantial number of individuals in the Diaspora, stands at over 30 million. Thus viability is
even better. Also, the possibility of irredentism which would have occurred if Old Biafra had survived is out of the question today since
Igbos from both sides of the Niger are engaged in the campaign, unlike in 1967, when one section of the Igbo nation, Delta Igbos, remained in the Mid-West as part of Nigeria.
The argument supporting inclusion of non-Igbos in Old Biafra
was a most valid one considering that: (1) with Igbos, these minority
non-Igbos comprised Eastern Nigeria, and (2) all Easterners, Igbos
and non-Igbos alike, were victims of the massacres of 1966. Because
of their cultural affinities or similarities,548 the marauding northerner
tormentors had difficulty distinguishing non-Igbo Easterners from
Igbos. While the cultural affinities still remain, since the end of the
war in 1970, non-Igbo Easterners have lived a different experience
can Unity in the spirit of brotherhood and mutual cooperation for the benefit of all the
peoples of that region.
Zambia Recognizes Biafra, (Statement by Zambian Foreign Minister, May 20, 1968), reprinted in
KIRK-GREENE 2, supra note 170, at 220, 221.
548. See Elbert et al., supra note 91 (referring to Eastern Nigeria as peoples for centuries so
“intricately interrelated, culturally, socially, and economically” and contiguous they may be defined as an ethnological cultural area); see also O’Brien, supra note 170 (stating that non-Igbos in
Eastern Nigeria “share common values with” and “pride[d] themselves on the same qualities” of
“egalitarian manners, thirst for education, commercial enterprise, self-reliance, and technical ingenuity” Igbos were known for.) Despite these similarities, Igbos and only Igbos formed the
target of the killers’ venomous attacks, except in instances when these human rights violators
erroneously missed their targets.
Howard Law Journal
from the human rights deprivation Igbos have endured. The limitation of the current campaign to only Igbos also precludes the problem
of minority domination, often a rebuttal issue in campaigns for selfdetermination. New Biafra, as designed, would rank about the most
homogeneous countries in Africa. The complicated issues that may be
involved in negotiation for separate statehood suggest the necessity
for some kind of dialogue to deal with those issues549—and an administration, not the current Obasanjo regime, ready and willing to initiate such a dialogue. Criteria have evolved today for testing the
validity of a claim for separate existence for human rights purposes
that Igbos duly satisfy.550 Opposition to legitimate campaign for independence by entities who choose to remain in what is left of Nigeria
will create hard feelings that might in the future impede good neighborliness, and the cultivation of friendly relations among independent
4. Concern That an Igbo State Will Not Be Protective of Human
If none of the three factors above provides objection to deny
Igbos a separate state for the protection of their human rights, critics
may choose to seek that objection in the contention that Igbos would
not be able to protect their own human rights. In other words, they
would argue that an Igbo state will not be more protective of human
rights than the country from which the Igbos exited. After all, they
would say, Africa is a continent rife with human rights violations and
549. See Tilde, supra note 397 (stating that all Nigerians need “to start a . . . restructuring
journey” is dialogue).
550. These criteria are: (1) the degree of internal cohesion and self-identification of the
group, (2) the nature and scope of the claim, (3) the underlying reasons for the claim, and (4) the
degree of deprivation of basic human rights. See An-Na’im, supra note 45, at 114. The higher
the degree of internal cohesion and self-identification of the people, the greater their historical
claim to separate identity; the more they are deprived of their basic human rights under the
present nation state, the stronger would be the case for secession. Id. at 114. Where secession
appeared justified in a given case, as Professor An-Na’im counsels, the principle of self-determination would require granting it and recognizing the new state; where clearly not justified or of
doubtful validity, alternative arrangements for satisfying claims for self-determination ought to
be considered. Id. at 113. Secession will be clearly justified in the Igbo case and, as we have
argued in this Article, nothing less than complete independence from Nigeria will work to safeguard Igbo human rights.
The additional conditions An-Na’im lays out are also met here. Igbos will form a clear
majority in a new Igbo state, and there is no case of any minorities being dominated since Igbos
alone will form the state. External sponsorship is a matter outside their control that the international community will see to, or something that will not be necessary if Nigerian authorities
cooperate, as Ethiopia did in the Eritrea situation, to facilitate the accomplishment of separate
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Prospects for Igbo Human Rights
an independent Igbo state would still be part of the African landscape.
Pointing to practices like slavery, the slave trade, subjection of individuals to outcast status and other acts of discrimination, and twin-killings, they would argue that traditional Igbo societies knew little
respect for human rights or, as one scholar put it, that the human
rights concept did not exist in traditional Igbo societies.551 Although
this is the most compelling of all the possible objections examined
here, this argument is also untenable.
A major point in the objection here would be Igbo participation
in the slave trade. Although some Igbo elites, like other African
elites, undoubtedly participated in the obnoxious trade in humans, the
trade “was a very complex process involving a very wide variety of
power relationships and participants whose interests and responses . . .
changed with the course of time.”552 Specifically, the slave trade was a
“one-sided relationship founded and maintained on [European] threat
of force”553 which one-sidedness Igbo and African collaboration does
not minimize. As Davidson discloses, “‘Europe dominated the connection, shaped, and promoted the slave trade, and continually turned
it to European advantage and to African loss.’”554
Some of the evils of the pre-colonial period, such as human sacrifices, trial by ordeal, and rampant kidnapping, were also practices that
have been associated with the slave trade.555 Also, our understanding
of human rights was not as well developed as it has become today
under the United Nations system. A number of nebulous issues an
analyst must confront in applying human rights to the period would
include whether Igbos have a state or government in the regular sense
to which a concept of human rights could be properly applied, and
whether matters such as the (mis)treatment of slaves in slave vessels
during the course of the middle passage were something that could be
attributed to African governments. What about the circumstances
that made individuals seized as slaves to give their lives rather than be
551. See OSITA C. EZE, HUMAN RIGHTS IN AFRICA, ch. 1 (1984).
552. M’Bokolo, supra note 145, at 201.
553. Id. at 202.
554. Id. (quoting DAVIDSON, supra note 146); see also KARENGA, supra note 371, at 396, who
properly views the reference to African collaboration in the slave trade as blaming the victim,
noting importantly: “No one morally sensitive claims Jews are responsible for the holocaust
based on the historical evidence of Jewish collaborators. How then are Africans indicted for the
collaborators among them?”
555. ISICHEI, GENESIS OF A RELATIONSHIP, supra note 65, at 59-60.
Howard Law Journal
slaves in a foreign land? Were these not matters outside the control of
Igbo and other African governments?
In contrast to the pre-colonial period, the nearly three years of
civil war from 1967 to 1970, ironically, holds out a better test-case of
how an independent Igbo government would have handled human
rights. Evidence from this brief period of independent statehood556
suggests that an Igbo government conducted itself well with respect to
the observance of human rights. Time magazine, in 1968, called Biafra
“a war time democracy” with a “functioning judiciary, a ministerial
executive government and a civil service,” where decisions were frequently made based on the advice of a consultative assembly of elders.557 This contrasted with Nigeria where a military regime, whose
authority to govern the Biafran government is contested,558 held sway
all by itself without the existence of any similar legislative consultative
body sharing powers.559 Briefly, Biafra is impressively democratic and
efficient for a country at war.560 Biafra uncaged and unleashed the
immense creative potentialities of the Igbo. The war years marked
the sudden technological transportation of an African people to the
world stage as General Ojukwu recounts compellingly in the following
“The war has come and gone but we remember with pride and hope
the three heady years of our freedom. These were the three years
when we had the opportunity to demonstrate what Nigeria could
have been even before 1970. In three years of war, necessity gave
birth to invention. During those three years, . . . in one heroic
bound, we leapt across the great chasm that separates knowledge
from know-how. We built bombs, we built rockets, we designed and
built our own delivery systems. We guided our rockets, we guided
them far, we guided them accurately. For three years blockaded
without hope of imports, we maintained engines, machines and
technical equipment. We maintained all our vehicles. The state extracted and refined petrol, individuals refined petrol at the back of
their gardens. We built and maintained our airports, maintained
556. Debate exists regarding whether, under international law, Biafra entered the community of nations, as an independent state, for a period before leaving it again under duress. Compare C. OKEKE, THE EXPANSION OF NEW SUBJECTS OF CONTEMPORARY INTERNATIONAL LAW
THROUGH THEIR TREATY MAKING CAPACITY 165 (1973) (saying “yes”), with David A. Ijalaye,
Was “Biafra” at Any Time a State in International Law? 65 AM. J. INT’L L. 551, 559 (1971)
(arguing contra).
557. Nigeria’s Civil War, supra note 80.
558. See discussion supra note 187 and accompanying text.
559. See discussion supra note 195 and accompanying text.
560. Nigeria’s Civil War, supra note 80.
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them under heavy bombardment. Despite the heavy bombardment,
we recovered so quickly after each raid that we were able to maintain the record for the busiest airport on the continent of Africa.
We spoke to the world through a telecommunication systems engineered by local ingenuity, the world heard us and spoke back to us.
We built armored cars and tanks. We modified aircraft from trainers to fighters, from passenger aircraft to bombers. In three years of
freedom we had broken the technological barrier. In three years we
became the most civilized, the most technologically advanced black
people on earth. We spun nylon yarn, we developed new seeds for
food and medicines . . . .”561
Biafra held a potential for democracy that few African countries
at the time possessed. One document that symbolized that promise of
governmental performance was the Ahiara Declaration, General
Ojukwu’s blueprint for a novel political system that marked Biafra
apart from Nigeria.562 Though portrayed as a work of expediency,563
and the future it confidently crafted was criticized as less than real,564
“[n]evertheless, not many states have found time and inclination, amid
the desperation of a losing war, to debate the nature of the just society, and ways in which it might be attained.”565 At the least, the declaration embodied the hopes and aspirations of many in Africa who
saw Biafra as “a first step to establishing a more just society” on the
Concern that a group may violate their own human rights if given
the opportunity to safeguard those rights themselves would never be a
good reason to deny them the separate state necessary for the protection and consummation of those rights. We would never know
whether Igbos would be capable of safeguarding their own human
rights today unless they had an opportunity to protect those rights. At
561. IGBOKWE, supra note 88, at 17-18 (quoting Emeka O. Ojukwu, Nigeria: The Truths
Which are Self-Evident, SUNDAY MAG. (Lagos), Feb. 22, 1994.
562. An abridged text of the address is contained in KIRK-GREENE 2, supra note 170, at 37693.
563. See AKPAN, supra note 178, at 116-32.
564. KIRK-GREEN 2, supra note 170, at 115 (stating that this major policy speech marking
Biafra’s third anniversary stood at once for a revised long-term social objectives of the Biafran
revolution, a new commitment to a ten-year war, and a philosophical charter for a renascent and
finally triumphant Biafra).
565. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 249; see also Diamond, supra
note 77, at n.10 (“Although children could no longer attend school, and the universities had been
sacked, the people, impoverished from top to bottom, held seminars from one end of the country
to the other, inquiring minutely and with pristine, unprejudiced curiosity into the meaning and
the outcome of their struggle.”).
566. ISICHEI, HISTORY OF THE IGBO PEOPLE, supra note 4, at 249.
Howard Law Journal
any rate, Igbos are entitled to protect their rights in a separate Igbo
state if they are “people” within the meaning of African and UN
human rights instruments, and if they meet the other requirements for
that statehood, including deprivation of basic individual and collective
rights, and a genuine “self,” ready and willing to determine its
destiny.567 In sum, although compared to all the others, this last objection appears to present the most weighty argument, the evidence in
favor of separate statehood here is overwhelming.568
More than three decades after the civil war, violations of Igbo
individual and collective human rights still persist in Nigeria and no
adequate institutions of political structure exist in the country for safeguarding these rights. The only hope for effective safeguard of Igbo
individual and collective human rights in the new century is separate
statehood, achieved non-violently through the cooperation of the
Nigerian government and with the help of the international community; only a government of the Igbo people, for the Igbo people, and
by the Igbo people can protect Igbo human rights. The international
law doctrine of self-determination has changed such that today sovereignty poses no barrier to Igbo separate statehood and no articulable
objections against that independence exist. Besides safeguarding Igbo
human rights, independent existence apart from Nigeria will bring final resolution to the Igbo legitimate campaign for self-determination,
sown in 1967, that has gone on intermittently ever since while contributing in no small way to global peace.
567. See BUCHHEIT, supra note 252, at 223.
568. See AN-NA’IM, supra note 45, at 113.
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Is United States v.
Morrison Antidemocratic?: Political
Safeguards, Deference, and the
Countermajoritarian Difficulty
As speculation begins that the Rehnquist Court is nearing the
end of its run, commentators are assessing the legacy and meaning of
the jurisprudence of the Court under its twenty-fifth Chief Justice.
Eventually, careful researchers will be drawn to a short dissent in the
case of Fry v. United States.1 The Fry decision barely made the news
when it was handed down on May 27, 1975.2 In a dissent that was
* Associate Attorney, Gorsuch Kirgis LLP in Denver, Colorado. J.D., University of Colorado School of Law. M.A., George Washington University. B.A., Mary Washington College.
The Author thanks Professor Robert Nagel and the members of his 2003 Constitutional Theory
seminar for their insightful comments on earlier drafts of this Article.
1. 421 U.S. 542 (1975). In Fry, the Court reviewed the constitutionality of “The Economic
Stabilization Act of 1970.” The law authorized President Nixon to create a pay board that
capped salary increases and required large employers to submit proposed raises for approval.
Id. at 543-44. The State of Ohio proposed pay raises for its state employees, and the pay board
declined to approve the move. Id. at 544. State employees sought a writ of mandamus from an
Ohio court compelling the State to pay the increase. Id. When the Ohio Supreme Court granted
the writ, the United States sought to enjoin the decision in federal court. Id. at 545. The state
employees argued in federal court that the law did not cover state employees and if it did that it
violated Ohio’s state sovereignty. Id. at 547. The Court upheld the law as a valid exercise of
congressional power. Id. at 548. It reaffirmed that “states are not immune from all federal
regulation under the commerce clause merely because of their sovereign status.” Id.
2. The New York Times gave the Fry decision two sentences of coverage on page sixteen
on May 28, 1975. See A Summary of Supreme Court Actions, N.Y. TIMES, May 28, 1975, at A16;
see also Tony Mauro, Alpha Rehnquist, AM. LAW., Jan 8, 2003, available at
jsp/article.jsp?id=1039054519036. Despite the lack of coverage, former acting Solicitor General
Walter Dellinger, III called Fry the “Rosetta stone for understanding the Rehnquist Court.” See
Mauro, supra. The Rehnquist dissent “projects a vision . . . which is now the dominant law of the
land.” Id.
2004 Vol. 48 No. 1
Howard Law Journal
almost not written,3 then-Associate Justice William H. Rehnquist laid
out his vision of Federalism: “[T]he state is not simply asserting an
absence of congressional legislative authority, but rather is asserting
an affirmative constitutional right, inherent in its capacity as a State,
to be free from such congressionally asserted authority.”4 It is this
reassertion of structural boundaries between the federal government
and states that will be remembered as the hallmark of the Rehnquist
Court. Although some commentators praise the revival of Federalism, it has been the subject of much criticism;5 and despite the Chief
Justice’s efforts, the lines between state and federal power are far
from clearly drawn. Federalism skirmishes are being fought in courts
all over the nation over a variety of legislative efforts.6 The debate is
often complicated by disingenuous, and even hypocritical, use of Federalism arguments in political debate.
Chief Justice Rehnquist’s structural view of the Constitution
places state sovereignty on the same level as individual rights. In Fry,
he admitted his analysis could not stem solely from the text of the
Tenth Amendment, but argued that the Tenth and Eleventh Amendments, when read in context, were
3. See Mauro, supra note 2, for a summary of the discussion between Justices Marshall,
Powell, and Rehnquist over whether a dissent to Justice Marshall’s majority opinion would in
fact be forthcoming.
4. Fry, 421 U.S. at 553 (Rehnquist, J., dissenting).
5. Professor Cass R. Sunstein called recent Federalism decisions part of a “remarkable
period of right-wing judicial activism.” Cass R. Sunstein, Tilting the Scales Rightward, N.Y.
COURT AND THE UNMAKING OF AMERICAN LAW 121 (2002) (“This Court’s idea of [F]ederalism
means seizing rights from the people.”); Larry Kramer, Putting the Politics Back into the Political
Safeguards of Federalism, 100 COLUM. L. REV. 215, 290 (2000) (calling the Rehnquist Court
Federalism “a radical experiment in judicial activism.”); William P. Marshall, Conservatives and
the Seven Sins of Judicial Activism, 73 U. COLO. L. REV. 1217, 1244 (2002) (stating that Rehnquist Court Federalism decisions reveal “unbridled hypocrisy”).
6. For a discussion of the Ninth Circuit’s application of Federalism principles to the medical marijuana issue, see Akhil Reed Amar & Vikram David Amar, The Ninth Circuit on Free
Speech, Federalism and Medicinal Marijuana, available at
20021113.html. The current debate over whether homosexual couples should be allowed to
marry also implicates the Federalism debate. President Bush blames the need for a federal constitutional amendment on “activist judges.” Liberals, in a surprising twist, are advocating for the
state’s right to decide the issue for itself. See Mike Allen, President Bush Backs Amendment
Banning Gay Marriage, WASH. POST, Feb. 25, 2004, at A1. For articulation of the view that there
are no more true Federalists, see Steve Chapman, The Late, Great States: Where Have All the
Federalists Gone?, SLATE, (July 22, 2004), available at For a
discussion of political use of the term “activist judges,” see Mike Soragahn, “Activist Judges”
Difficult to Define, DENVER POST, July 11, 2004, at A1. For a discussion of the Bush administration’s selective application of Federalism principles, see David Plotz, The New, New, New Federalism: Bush Embraces the Most Convenient Principle, SLATE, (June 22, 2001), available at http://
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Is United States v. Morrison Antidemocratic?
examples of the understanding of those who drafted and ratified the
Constitution that the states were sovereign in many respects, and
that although their legislative authority could be superseded by
Congress in many areas . . . Congress was nonetheless not free to
deal with a state as if it were another individual or business enterprise subject to regulation.7
Just a year later, then-Associate Justice Rehnquist wrote the
Court’s opinion in the far more famous case of National League of
Cities v. Usery.8 National League of Cities was the prelude to a series
of Rehnquist majority opinions reasserting substantive judicial review
of the constitutional demarcation between state and federal legislative
The shift from an expansive view of federal power to the Rehnquist Court’s restoration of respect for state sovereignty has been a
remarkable one. An entire generation of law students learned that
Federalism, as a doctrine that provided serious protections for states,
was dead; New Deal legislation had erased the line between those
powers reserved to the states and those properly attributed to the federal government.9 For more than fifty years, starting in 1937, the Supreme Court gave Congress nearly unchecked discretion to determine
the scope of its regulatory power under the Commerce Clause.10 The
relatively unknown dissent in Fry signaled a change in course that
culminated in United States v. Morrison.11
In Morrison, the Rehnquist Court reduced the deference it will
pay to congressional determinations that a regulated activity is sufficiently related to interstate commerce to be within Congress’ power.
The Court rejected the “Political Safeguards Theory” of Federalism in
favor of judicial enforcement of Federalism protections for states.
Morrison is especially controversial because the Rehnquist majority
rejected congressional fact-finding evidencing a substantial effect on
interstate commerce. The decision created a firestorm of criticism,
7. Fry, 421 at 557 (Rehnquist, J., dissenting).
8. 426 U.S. 833 (1976). In that case, the Court struck down amendments to the Fair Labor
Standards Act on the same grounds articulated in Rehnquist’s Fry dissent. Nat’l League was
later overturned in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), but ten
years later now-Chief Justice Rehnquist would lead a series of five-to-four decisions implementing his position on state sovereignty first articulated in Fry.
9. See DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY, 1888-1986 238 (1990) (“Constitutional federalism died” as a result of the Court’s decision
in Jones v. Laughlin, 301 U.S. 1 (1937)).
10. U.S. CONST. art. I, § 8 gives Congress the power to “regulate Commerce . . . among the
several States.”
11. 529 U.S. 598 (2000).
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much of it focused on the appropriateness of an unelected panel of
elite lawyers rejecting the considered judgment of a more democratic
branch of government.
Whether the current Court’s Federalism jurisprudence represents
a “revolutionary revival”12 or a historically minor adjustment of federal-state relations,13 the criticisms levied at the Court merit attention.
Critics who claim Morrison is antidemocratic do not levy the charge at
every exercise of judicial review; rather they argue that Federalism
and fact-finding about Federalism deserve different judicial treatment
than individual rights cases.14 On the contrary, defenders of Morrison
claim that upholding the Founders’ intent with regard to the federalstate balance preserves constitutional democracy by protecting the
structure within which majoritarian rule is to govern. On this view,
Morrison is not antidemocratic; it simply enforces the Founders’
choices as to which majority should rule in a given political arena;
when the federal government encroaches on state sovereignty it destroys the ability of state-level majorities to regulate those areas reserved for their power. The critics respond that the judiciary has no
place in enforcement of Federalism. Democracy, say these critics, demands that courts defer to political judgments about what is within
their power to regulate. Striking down popular federal legislation, on
this view, thwarts the will of the people and tinkers with the founders’
design.15 It is these claims for exclusive political enforcement of Federalism and judicial deference to congressional fact-finding about Federalism that are the focus of this Article.
Part I of this Article begins by reviewing the history of the federal-state relationship under the Federalism doctrine. In particular,
this section focuses on the return to Dual Federalism under the Rehn12. See Steven Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH.
L. REV. 1373, 1375 (1998).
13. See Robert F. Nagel, Real Revolution, 13 GA. ST. U. L. REV. 985, 1003-04 (1997).
15. Underlying this theoretical debate, as always, is a strong political undercurrent. To
date, many of the laws struck down by the Rehnquist Court have been civil rights or social laws
unpopular with conservatives at the state level. Some critics have argued that the “New Federalism” is simply a political tool aimed at invalidating legislation that conservatives do not like. The
test is likely to come in the near future. If Republicans continue to control the presidency and
both houses of Congress, popular conservative legislation will surely be tested as exceeding the
authority of the federal government. For a discussion of how some popular conservative legislative efforts might fare under the “New Federalism,” see Sylvia A. Law, In the Name of Federalism: The Supreme Court’s Assault on Democracy and Civil Rights, 70 U. CIN. L. REV. 367, 408-21
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quist Court and the particular circumstances of Morrison that have
made it so vulnerable to criticism. Part II analyzes criticisms leveled
at the Rehnquist Court, in particular the charge that the Court’s use of
active judicial review under Federalism doctrine is “antidemocratic”
when it strikes down popularly approved legislation. Part III evaluates attempts to justify a lower standard of judicial review for Federalism than for individual rights cases. Specifically, this Part evaluates
claims that the political system, not judicial review, is the preferred
constitutional forum for regulating federal-state relations. This argument has serious ramifications for those who believe the Rehnquist
Federalism decisions are antidemocratic. If judicial review is the preferred forum, then it seems the Court is simply performing its constitutional duties. If, however, the political system is the preferred
forum, then judicial activism in this area may in fact be antidemocratic, especially in cases like Morrison, where the Court rejects a seemingly rational congressional determination that the
regulated activity is within the scope of Commerce Clause power. The
Article finishes with an evaluation of the attempts to distinguish Federalism and concludes that there is no practical reason to apply a
lower standard of judicial review to legislative determinations of the
boundaries of Federalism. Ultimately, this failure to distinguish Federalism from individual rights cases leads to a rejection of charges that
Morrison is an antidemocratic usurpation of legislative authority. Instead, Morrison is a case of the Supreme Court drawing the line between federal and state authority. The grant of such significant
authority to unelected courts may trouble pure democratic theorists,
but in our constitutional form of democracy, the Court is assigned the
duty of determining which majority rules in which situation. The level
of judicial review asserted in Morrison is merely the embodiment of
the rules and boundaries that the Constitution sets up to govern our
a. Pre-Rehnquist Federalism
The relatively simple concept of Federalism16 has proven to be a
controversial one when applied to the regulation of commerce, the
16. “[T]he word [F]ederalism does not appear in the Constitution.” LEE EPSTEIN &
Howard Law Journal
power to tax and spend, and the concept of sovereign immunity.17
The U.S. Supreme Court has been the major force defining and delineating the boundaries of American Federalism.
From the early nineteenth century until the beginning of the
twentieth century, our country followed Chief Justice John C. Marshall’s view of strong federal government.18 The famous case of McCulloch v. Maryland19 served as Chief Justice Marshall’s vehicle to
advocate his view of national supremacy.20 Chief Justice Marshall relied on three constitutional provisions as the basis for his holding: the
Necessary and Proper Clause, the Tenth Amendment, and the
Supremacy Clause.21 First, the Necessary and Proper Clause gives
Congress the power to pass laws limited only by the text of the clause:
“Let the end be legitimate, let it be within the scope of the
[C]onstitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the
letter and spirit of the [C]onstitution, are constitutional.”22 Second,
Chief Justice Marshall did not see the Tenth Amendment as a barrier
to national supremacy because he believed it reserves to the states and
the people only those powers not delegated to Congress. Given Chief
Justice Marshall’s expansive view of the Necessary and Proper Clause,
the Tenth Amendment was only a minor restraint on the federal legislature. The Supremacy Clause, according to Chief Justice Marshall,
places the federal government at the top of the governmental
After Marshall’s death in 1835, President Andrew Jackson appointed Roger Taney to serve as Chief Justice. The Court under Chief
CONSTRAINTS 320 (5th ed. 2004). The term refers to a choice by the framers to design a
system of government that “divide[d] government powers between a central government and
one or more subdivisional governments, giving each substantial functions.” Id. at 319. Arguably, many benefits have accrued to our system over the years because of the framers’ choice. A
Federalist system provides citizens with many points of access to participate in government, adds
checks on abuse of government power, encourages experimentation, and allows for flexibility.
See id.
17. Id. at 320.
18. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824) (holding that under the Commerce Clause, Congress could regulate commercial activity having any interstate impact, even if
indirect); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 414-15 (1819) (holding creation of
National Bank to be a valid exercise of power and that “necessary and proper” does not mean
19. McCulloch, 17 U.S. (4 Wheat.) 316 (1819).
20. Id. at 421. See also EPSTEIN & WALKER, supra note 16, at 330-31.
21. McCulloch, 17 U.S. (4 Wheat.) at 414-15.
22. Id. at 421.
23. EPSTEIN & WALKER, supra note 16, at 330-31.
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Justice Taney “planted itself firmly in the states’ rights camp”24 with
cases like Dred Scott v. Sanford.25 The Dual Federalist approach of
the Taney Court receded in the post-Civil War period, but resurfaced
in a variety of forms from the 1890s to the 1930s.26
The pendulum began to swing as Congress adopted reform legislation during the Progressive Era to deal with widespread social and
economic issues facing the nation. A leading Supreme Court scholar
says of the progressive era, “Nothing like this explosion of federal regulatory power had ever happened before.”27 Following World War I,
President Warren G. Harding sought a return to “normalcy”28 and appointed William Howard Taft to serve as Chief Justice and lead the
charge. The Taft Court restricted the constitutional limits of Congressional power, invalidating “state and federal regulatory laws in greater
numbers and more frequently than any previous Court.”29 The Taft
Court established the doctrine of “property affected with the public
interest” to separate areas of social and economic life which could be
regulated from those areas of “ordinary” life, which could not be regulated by the federal legislature.30
Competing views of legislative authority at the federal level came
to a head during the Great Depression. Citizens were seeking more
help from government than they ever had before, and Congress responded in kind. The Supreme Court initially thwarted these legislative efforts by applying a restrictive view of the Due Process Clause
famously articulated in Lochner v. New York.31 This trend continued
24. Id. at 334.
25. Scott v. Sanford, 60 U.S. (19 How.) 393 (1856).
26. See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918).
27. Robert C. Post, Defending the Lifeworld: Substantive Due Process in the Taft Court Era,
78 B.U. L. REV. 1489, 1489 (1998). Post explains that
[t]he federal government took control of the operations of the nation’s railroads, its
telegraphs and telephones, and its shipping industries. It assumed authority to regulate
the production and prices of food and fuel. It actively intervened to shape the priorities
of the wartime economy. It instituted sharply progressive income taxes. It established
national labor policies and agencies. It imposed national prohibition.
28. Inaugural Address of President Warren G. Harding, 61 CONG. REC. 4, 4-6 (1921).
AMERICA 21 (2000).
30. Two contrasting cases illustrate the distinction as drawn by the Taft Court. In Euclid v.
Amber Realty Co., 272 U.S. 365 (1926), the Taft Court approved the first comprehensive zoning
regulation because the realities of urban life made zoning regulations a matter of public interest.
In contrast, Adkins v. Children’s Hospital, 261 U.S. 525 (1923), struck down a minimum wage
law for women because freedom to contract and negotiate wages fits within the domain of ordinary life.
31. 198 U.S. 45 (1905).
Howard Law Journal
until 1937 when President Franklin D. Roosevelt’s Court-packing plan
forced the “switch in time” that “saved nine.”32 Following the “switch
in time,” the Court issued three landmark decisions upholding congressional power and sounding the death knell for Federalism as a
significant protection of state sovereignty: NLRB v. Jones & Laughlin
Steel Corp.,33 United States v. Darby,34 and Wickard v. Filburn.35
In Jones & Laughlin Steel, the Court abandoned its previous position requiring a “direct effect” on interstate commerce in favor of a
looser test.36 In upholding Congress’ power to pass the National Labor Relations Act, the Court ruled that “the power to regulate commerce [encompasses] the power to enact ‘all appropriate legislation’
for ‘its protection or advancement’; to adopt measures ‘to promote its
growth and insure its safety’; ‘to foster, protect, control and restrain.’”37 Against state arguments that the Constitution made industrial labor relations a forbidden field, the Court maintained that
“activities may be intrastate in character when separately considered,
if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that
commerce from burdens and obstructions, Congress cannot be denied
the power to exercise that control.”38
Four years later, Darby upheld the Fair Labor Standards Act’s
ban on shipment of goods not meeting the Act’s wage and hour standards.39 Justice Harlan Stone wrote that while manufacturing was not
interstate commerce, the shipment of manufactured goods across state
lines is interstate commerce and its regulation therefore appropriate.40
The states argued that the true purpose of the ban was to control
wages and hours, which were purely intrastate issues. But the Court
responded that it would not inquire into the purpose of the regulation
32. See generally Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV.
620 (1994); Richard D. Friedman, A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the Non-Forger, 142 U. PA. L. REV. 1985 (1994); Richard D. Friedman, Switching
Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142
U. PA. L. REV. 1891 (1994).
33. 301 U.S. 1 (1937).
34. 312 U.S. 100 (1941).
35. 317 U.S. 111 (1942).
36. Jones & Laughlin Steel, 301 U.S. at 36-37.
37. Id.
38. Id. at 37.
39. Darby, 312 U.S. 100.
40. Id. at 113.
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so long as the law itself was one that regulated interstate commerce.41
One commentator believes Darby “eliminate[d] the notion of enumerated national powers and reserved state powers.”42 Proponents of the
Tenth Amendment were disappointed to learn that “the amendment
states but a truism that all is retained which has not been
Wickard v. Filburn upheld the constitutionality of federal regulation of homegrown wheat.44 The Court ruled that while wheat growing was local and “it may not be regarded as commerce, it may still,
whatever its nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce . . . irrespective of whether
such effect is what might in some earlier time have been defined as
‘direct’ or ‘indirect.’”45 The Court acknowledged that Filburn’s production of wheat alone might be trivial. In the most remarkable part
of the holding, however, the Court allowed for aggregation of the effect of Filburn’s production with others like him.46 Congress could
now regulate noncommercial, local activities with trivial effects if they
had some effect on interstate commerce in the aggregate. The “aggregation” principle was remarkable because its logic seemed to bring
almost all human activities under the scope of congressional Commerce Clause power. “[T]he Court had withdrawn in all but name . . .
from the role of protector of state autonomy.”47
The reemergence of Chief Justice Marshall’s expansive view of
federal power paved the way for one of the great legislative achievements of the century: Congress passed the Civil Rights Act of 1964,
41. Id. at 117. The argument expressed here explicitly overruled Hammer v. Dagenhart, 247
U.S. 251 (1918), where the Court held that Congress lacked the power to ban interstate shipment
of goods produced using child labor. The Court’s rationale mirrored the State’s argument in
Darby: that the regulation intended to regulate child labor, not interstate commerce.
42. Lino A. Graglia, United States v. Lopez : Judicial Review Under the Commerce Clause,
74 TEX. L. REV. 719, 740 (1996).
43. Darby, 312 U.S. at 124.
There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been
established by the Constitution before the amendment or that its purpose was other
than to allay fears that the new national government might seek to exercise powers not
granted, and that the states might not be able to exercise fully their reserved powers.
Id. The amendment does not deprive Congress “of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.” Id.
44. Wickard v. Filburn, 317 U.S. 111 (1942).
45. Id. at 125.
46. Id. at 127-28. The Court continued, “Home-grown wheat in this sense competes with
wheat in commerce” because “it supplies a need of the man who grew it which would otherwise
be reflected by purchases in the open market.” Id. at 128.
47. Graglia, supra note 42, at 741.
Howard Law Journal
outlawing racial and gender discrimination in public accommodations
and employment.48 The Court earlier declared such a ban beyond
congressional reach in the Civil Rights Cases.49 But the Court relied
on the expansive view of congressional power articulated in Jones &
Laughlin Steel, Darby, and Wickard, to uphold the ban on racial discrimination in public accommodations. Heart of Atlanta Motel, Inc. v.
United States50 and Katzenbach v. McClung51 concluded that racial
discrimination by hotels, restaurants, and other public accommodations substantially affected interstate commerce by deterring interstate travel by Blacks. Katzenbach introduced the “rational basis” test
as a means to measure the validity of congressional authority under
the Commerce Clause. “[W]here we find that the legislators, in light
of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.”52 The rational basis test was a
significant development in the evolution of the Commerce Clause and
Federalism because, as a practical matter, it seems near impossible to
fail the test. Legislation patterned on the Civil Rights Act of 1964
later banned discrimination in housing, and discrimination on the basis of gender, age, and disability. The Court continued its pattern of
minimal review of congressional regulation under the Commerce
Two major camps evolved from the debates over where to draw
the line between the federal and state governments. Advocates of
“Dual Federalism” believe the Constitution represents a grant of
48. Civil Rights Act of 1964, Pub. L. 88-352 (July 2, 1964), 78 Stat. 241 (codified at 42 U.S.C.
§§ 2000a to 2000h-6).
49. 109 U.S. 3 (1883).
50. 379 U.S. 241 (1964). The Court attempted to distinguish the Civil Rights Cases in Heart
of Atlanta Motel :
[T]he fact that certain kinds of businesses may not in 1875 have been sufficiently involved in interstate commerce to warrant bringing them within the ambit of the commerce power is not necessarily dispositive of the same question today. Our populace
had not reached its present mobility, nor were facilities, goods and services circulating
as readily in interstate commerce as they are today. Although the principles which we
apply today are those first formulated by Chief Justice Marshall . . . the conditions of
transportation and commerce have changed dramatically, and we must apply those
principles to the present state of commerce. The sheer increase in volume of interstate
traffic alone would give discriminatory practices which inhibit travel a far larger impact
upon the Nation’s commerce than such practices had on the economy of another day.
Id. at 251 (citation omitted).
51. 379 U.S. 294 (1964).
52. Id. at 303-04.
53. See, e.g., Hodel v. Va. Surface Mining & Reclamation Ass’n., 452 U.S. 264 (1981); Perez
v. United States, 402 U.S. 146 (1971); Maryland v. Wirtz; 392 U.S. 183 (1968).
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power from the states to the federal government.54 Dual Federalists
used the Tenth Amendment to support their view that states are supreme within their own realm, conceding only those powers explicitly
given to the federal government in the Constitution. In contrast, advocates of “Cooperative Federalism” see a Constitution that derives
its force directly from the people, not the states.55 On this view, the
Necessary and Proper Clause, not the Tenth Amendment, regulates
the federal-state balance of power.
b. Federalism and the Rehnquist Court
The Rehnquist Court Federalism decisions have been termed a
Federalism “revival,”56 a “revolution,”57 and a “jurisprudential seachange.”58 Others believe the decisions are “modest and equivocal”59
or explicitly reject the notion that the Rehnquist Court Federalism
decisions amount to a revolution.60 At minimum, commentators
agree that the current Supreme Court promotes Constitutional Federalism, for better or worse.61
Prior to Chief Justice Rehnquist’s appointment, it appeared that
the Supreme Court had poured the last shovel of dirt on the concept
of judicially enforceable Federalism. In Garcia v. San Antonio Metropolitan Transit Authority, the Court took the position that the “structure of the [f]ederal [g]overnment itself” was the principal safeguard
54. EPSTEIN & WALKER, supra note 16, at 305.
55. Id.
56. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111
HARV. L. REV. 2180, 2213 (1998).
57. Larry D. Kramer, The Supreme Court 2000 Term Foreword: We the Court, 115 HARV. L.
REV. 4, 129 (2001).
58. Judith Olans Brown & Peter D. Enrich, Nostalgic Federalism, 28 HASTING CONST. L.Q.
1, 1 (2000).
59. Nagel, supra note 13, at 1003-04.
60. Charles Fried, Foreward: Revolutions?, 109 HARV. L. REV. 13, 34 (1995). At least one
scholar has staked a middle ground by differentiating between federalism decisions under the
Commerce Clause, sovereign immunity, and the Fourteenth Amendment. Richard H. Fallon,
Jr., The “Conservative” Paths of the Rehnquist Court’s Federalism Decisions, 69 U. CHI. L. REV.
429, 494 (2002).
61. See Ann Althouse, The Alden Trilogy: Still Searching for a Way to Enforce Federalism,
31 RUTGERS L.J. 631 (2000). Althouse believes the federalism-enforcing justices have gained
“ascendancy.” Id. at 635. Recently there is evidence that there are limits on the Rehnquist
Court’s desire to shift power to states. See David G. Savage, Finite Federalism: In Recent Cases,
Supreme Court Puts the Brakes on Its Drive for States’ Rights, A.B.A. J. 20 (July 2004). Referring to a pair of Supreme Court decisions upholding Congress’ power to enforce anti-discrimination laws against states, Professor Erwin Chemerinsky said “‘[w]hen there is a fundamental right
at issue, they are prepared to give Congress more latitude.’” Id. Both the article and Professor
Chemerinsky were referring to Tennessee v. Lane, 124 S. Ct. 1978 (2004) and Nevada Dep’t of
Human Res. v. Hibbs, 538 U.S. 721 (2003).
Howard Law Journal
of state sovereignty.62 The states’ representation in Congress was sufficient protection for state autonomy. “Any substantive restraint . . .
must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the
national political process rather than to dictate a ‘sacred province of
state autonomy.’”63
Chief Justice Rehnquist’s dissent in Garcia argued that judicially
enforceable Federalism was destined to rise again. Echoing his dissent in Fry, Chief Justice Rehnquist showed surprising confidence that
Garcia would eventually be overturned. “I am confident, in time
again [judicially enforceable Federalism will] command the support of
a majority of this Court.”64 Since 1995, the Rehnquist Court has led a
revival of judicially enforceable Federalism and dramatically limited
the powers of Congress.65 In that year, the Supreme Court found that
Congress exceeded its power under the Commerce Clause for the first
time in more than fifty years.
In United States v. Lopez,66 the Court held the Gun-Free School
Zones Act (GFSZA) invalid on grounds that Congress lacked Commerce Clause power to regulate possession of firearms near schools.67
The Rehnquist majority68 pointed to three types of activities Congress
can properly regulate under the Commerce Clause: (1) “the use of the
channels of interstate commerce;” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities;” and (3)
62. 469 U.S. 528, 550 (1985). The issue in Garcia was whether Congress had the Commerce
Clause power to extend the minimum wage and overtime provisions of the Fair Labor Standards
Act to employees of a city transit authority. Id. at 531-32. Garcia overturned Nat’l League of
Cities v. Usery, 426 U.S. 833 (1976). Prior to Garcia, Congress had been barred from using its
Commerce Clause power to regulate the “States as States” on matters of state sovereignty in a
manner that would “displace [their] freedom to structure integral operations in areas of traditional governmental functions.” Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S.
264, 287 (1981) (quoting Nat’l League of Cities, 426 U.S. at 852).
63. Garcia, 469 U.S. at 554 (quoting EEOC v. Wyoming, 460 U.S. 226, 236 (1983)).
64. Id. at 580 (Rehnquist, J., dissenting).
65. For a brief history of the ebb and flow of judicial enforcement of federalism boundaries,
see Law, supra note 15, at 370-72.
66. 514 U.S. 549 (1995).
67. Possession of a gun in a school zone does not substantially affect interstate commerce,
even under the broadest possible conception of the commerce clause. See id. at 561. The Act
made it a federal crime “knowingly to possess a firearm . . . at a place that the individual knows,
or has reasonable cause to believe, is a school zone.” Id. at 551.
68. The majority consisted of votes from Chief Justice Rehnquist, Justices Scalia, Thomas,
Kennedy, and O’Connor; the dissenters were Justices Souter, Stevens, Breyer and Ginsburg. See
id. at 550.
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“activities having a substantial relation to interstate commerce.”69
The crux of the case was whether possession of a gun in a school zone
affects interstate commerce. The majority, led by Chief Justice Rehnquist, held that the law exceeded the authority of Congress. Chief
Justice Rehnquist wrote that the law
is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one
might define those terms . . . . [Nor is the law] an essential part of a
larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the interstate activity were regulated. It cannot, therefore, be regulated under our cases upholding
regulations of activities that arise out of or are connected with a
commercial transaction . . . .70
Chief Justice Rehnquist admitted that Commerce Clause jurisprudence properly considers congressional fact findings and even congressional committee findings regarding effect on interstate
commerce, but concluded that “[n]either the statute nor its legislative
history contain[s] express congressional findings regarding the effects
upon interstate commerce of gun possession in a school zone.”71 By
invalidating the Act, the Court rejected the government’s argument
linking possession of guns in schools zones to violent crime and its
effects on commerce. Chief Justice Rehnquist believed the “substantial effects” posed by the government, the costs of violent crime and
reduction of travel within the country, were too remotely related to
the Act to qualify. Moving down this slippery slope, argued Chief Justice Rehnquist, would be to “pile inference upon inference in a manner that would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort retained by
the States.”72
Reaction to Lopez was mixed. Some commentators interpreted
the opinion narrowly, viewing it as a warning to Congress to adequately demonstrate the relationship between the activities regulated
and interstate commerce.73 Other commentators viewed Lopez as
69. Id. at 558-59.
70. Id. at 561.
71. Id. at 562 (alteration in original) (quoting Brief for United States at 5-6). Justice
Breyer, however, offered evidence of the ways in which guns in schools impact education and
interstate commerce. Id. at 619 (Breyer, J., dissenting).
72. Id. at 567.
73. “Had Congress explicitly demonstrated that it was responding to the negative impact
school violence has on commerce, it is likely the court would have found no fault with the law.”
EPSTEIN & WALKER, supra note 16, at 431. Chief Justice Rehnquist gave some indication to
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more of a significant departure from previous Commerce Clause jurisprudence. On this view, the Court was signaling a significant
change—they would no longer allow Congress to regulate whatever
activities it wished on the ground that all activities could be connected
to interstate commerce.74 These critics pieced Lopez together with
cases such as New York v. United States75 and Printz v. United States,76
other decisions where the Rehnquist Court ruled against federal action in favor of states’ rights.77 Both camps of commentators were
partially correct, for even the Justices seemed conflicted on the scope
of the holding. Justice Kennedy called Lopez a “limited holding,”78
but Justice Thomas boldly stated that it was time to “modify our Commerce Clause jurisprudence.”79
c. Morrison and Congressional Fact Finding
In 2000, the Supreme Court answered some of the questions
about the scope of the Lopez holding. In United States v. Morrison,
the Court struck down a federal civil remedy for victims of gendermotivated violence.80 In ratifying the Violence Against Women Act
(VAWA), Congress tried to follow Lopez by compiling detailed legislative findings documenting the impact of gender violence on the national economy and the inadequacies of state remedies. The Court
refused to defer to Congress’ judgment that the Act was within its
Commerce Clause power. The Rehnquist majority feared that “Conbelieve that greater evidentiary support might have saved the Act from its fate: “we of course
consider legislative findings, and indeed even congressional committee findings . . . . But to the
extent that congressional findings would enable us to evaluate the legislative judgment that the
activity in question substantially affected interstate commerce . . . they are lacking here.” Lopez,
514 U.S. at 562-63.
74. Cf. Wickard v. Filburn, 317 U.S. 111 (1942).
75. 505 U.S. 144 (1992).
76. 521 U.S. 898 (1997).
77. There is ample evidence in the opinion that something more was at work than the lack
of congressional findings: Congress lacks the power to regulate gun possession near schools at
least in part because it is not an activity that can be characterized as “commercial” or “economic.” See Lopez, 514 U.S. at 567. The Court noted that “[e]ven Wickard . . . involved economic activity in a way that the possession of a gun in a school zone does not.” Id. at 560.
Wickard held the Commerce Clause empowered Congress to regulate production of wheat for
home consumption. Wickard is excerpted in most constitutional law casebooks as proof that the
Commerce Clause power had expanded to cover almost everything.
78. Lopez, 514 U.S. at 568 (Kennedy, J., concurring).
79. Id. at 602 (Thomas, J., concurring). The Rehnquist Court has also renewed vigilance in
enforcement of Federalism principles in state sovereign immunity cases and in challenges to
federal legislation passed under Section 5 of the Fourteenth Amendment. See Bd. of Trs. of
Univ. of Alabama v. Garrett, 531 U.S. 356 (2001); Alden v. Maine, 527 U.S. 706 (1999); Seminole
Tribe v. Florida, 517 U.S. 44 (1996).
80. 529 U.S. 598 (2000).
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gress might use the Commerce Clause to completely obliterate the
Constitution’s distinction between national and local authority . . . .”81
The Court also determined that gender-motivated crime was in no
way “economic activity” so that even a significant effect on commerce
was not sufficient to grant federal Commerce Clause power. “The
Constitution requires a distinction between what is truly national and
what is truly local.”82
The reasoning that petitioners advance seeks to follow the but-for
causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States’
police power) to every attenuated effect upon interstate commerce.
If accepted, petitioners’ reasoning would allow Congress to regulate
any crime as long as the nationwide, aggregated impact of the crime
has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of
violence since gender-motivated violence, as a subset of all violent
crime, is certain to have lesser economic impacts than the larger
class of which it is a part.83
Chief Justice Rehnquist also rejected the argument that Congress
had authority under Section 5 of the Fourteenth Amendment to ratify
the Act. The government asserted that there was a bias in state justice
systems against the victims of gender-motivated crime, a claim they
believe was supported by the congressional record. Congress compiled an array of evidence showing that many state justice systems
embraced stereotypes and assumptions about gender motivated crime.
The government argued that these assumptions led to insufficient investigation and prosecution of the crimes covered by VAWA. The
bias therefore denied victims equal protection of the laws. VAWA
was enacted to remedy the states’ bias and deter discrimination in
state justice systems.
Chief Justice Rehnquist responded that there were limits to federal power under the Fourteenth Amendment that served to “prevent
the Fourteenth Amendment from obliterating the Framers’ carefully
crafted balance of power between the States and the National Government.”84 The principle limitation is that the Fourteenth Amendment protects only against state action. In Chief Justice Rehnquist’s
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view, VAWA remedies were directed at the individuals who committed the crimes, not the state authorities who held the biases that affected the justice system. VAWA remedies extended only to private
conduct and therefore were outside the congressional power granted
by Section 5 of the Fourteenth Amendment.85
Absent the factual findings made by Congress supporting VAWA,
Morrison would have been a predictable descendant of Lopez. What
makes Morrison a remarkable case is that the Court showed no deference whatsoever to an explicit congressional finding that violence motivated by the sex of the victim had a substantial effect on interstate
commerce. The Lopez majority had given Congress reason to believe
that factual support for an assertion of Commerce Clause power
would lead to deference from the Court.86 Instead of deference, however, the Rehnquist majority responded by declaring that when the
regulated activity is an intrastate non-economic activity it will decide
for itself whether the aggregate effects of the regulated activity are
sufficiently substantial to support an assertion of Commerce Clause
The Court’s refusal to defer to congressional fact-finding is the
strongest indication yet that the majority supports a complete revival
of the “dual sovereignty” approach seen in Hammer v. Dagenhart.87
Congress, said the Court, may not “use the Commerce Clause to completely obliterate the Constitution’s distinction between national and
local authority”88 because “[t]he Constitution requires a distinction
between what is truly national and truly local.”89 Morrison suggests
that national, aggregated effects of local activity come within commerce power only when the activities are economic in nature.
The majority in Morrison laid waste to a popular interpretation of
Lopez. Many commentators believed that Lopez indicated that the
Court would insist on an articulation of congressional findings of fact
that the regulated activities are either in commerce or have a substantial effect on commerce. The Lopez majority suggested that congressional fact-finding supporting its determination that GFSZA had
substantial effects on interstate commerce might allow the Court “to
evaluate the legislative judgment that the activity in question substan85.
Id. at 627.
United States v. Lopez, 514 U.S. 549, 562-64 (1995).
247 U.S. 251 (1918), overruled by United States v. Darby, 312 U.S. 100 (1941).
Morrison, 529 U.S. at 615.
Id. at 617-18.
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tially affected interstate commerce, even though no such substantial
effect was visible to the naked eye.”90
This interpretation of Lopez views judicial review of Commerce
Clause power as the equivalent of a procedural check. The Court insists that Congress present evidence backing up an assertion of Commerce Clause power. As long as the evidence is there and the
judgment is rational, the Court will defer. As the Morrison decision
shows, however, the Court intends to review Commerce Clause power
more aggressively. Congress indeed presented evidence that supported at least a rational judgment that sex-based violence, especially
when directed at women because of their gender, had a substantial
inhibitory effect on interstate commerce.
The amount of data Congress compiled in support of VAWA was
“massive.”91 Justice David H. Souter’s dissent provides the best analysis of the breadth of congressional findings that supported passage of
VAWA. “One obvious difference from [Lopez] is the mountain of
data assembled by Congress . . . showing the effects of violence against
women on interstate commerce.”92
Congress found that “crimes of violence motivated by gender have
a substantial adverse effect on interstate commerce, by deterring
potential victims from traveling interstate, from engaging in employment in interstate business . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply
of and the demand for interstate products . . . .”93
Justice Souter concluded from these congressional findings that “Congress thereby explicitly stated the predicate for the exercise of its
90. Lopez, 514 U.S. at 563.
91. Marianne Moody Jennings & Nim Razook, United States v. Morrison: Where Commerce Clause Meets Civil Rights and Reasonable Minds Part Ways: A Point and Counterpoint
from a Constitutional and Social Perspective, 35 NEW ENG. L. REV. 23, 33 (2000).
92. Morrison, 529 U.S. at 628-29 (Souter, J., dissenting). Congress made the following findings regarding violence against women: 3 out of 4 American women will be victims of violent
crime; violence is the leading cause of injuries to women between age 15 and 44; as many as 50%
of homeless women and children are homeless because they are fleeing domestic violence; and
the United States spends between $5 and $10 billion on health care, criminal justice, and other
social costs of domestic violence; 41% of judges believe juries give less credibility to sexual
assault victims than other crime victims; less than 1% of all rape victims ever collect damages; an
individual who commits rape has only about a 4% chance of being convicted of the crime; almost
25% of convicted rapists never go to prison; another 25% receive sentences to local jail where
punishment averages 11 months; and almost 50% of rape victims lose their jobs or are forced to
quit. See id. at 631-35.
93. Id. at 634 (Souter, J., dissenting) (quoting H.R. CONF. REP. NO. 103-711, p. 385 (1994),
reprinted in 1994 U.S.C.C.A.N. 1803, 1835).
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Commerce Clause power” and asked “[i]s its conclusion irrational in
view of the data amassed?”94
These congressional findings on their face, when combined with
numerous hearings and bipartisan support in both the Senate and the
House, appeared to overcome the constitutional shortcomings of GFSZA in Lopez. The majority held, however, that VAWA’s constitutionality depends on reasoning that essentially implicates all activities
as interstate because aggregated impact will always have some effect
on interstate commerce.95 Just because Congress has determined that
an activity substantially affects interstate commerce does not make it
so: “Rather, ‘whether particular operations affect interstate commerce
sufficiently to come under the constitutional power of Congress to
regulate them is ultimately a judicial rather than a legislative question,
and can be settled finally only by this Court.’”96
While the majority’s refusal to defer to Congress was surprising,
it is largely consistent with the Court’s express desire to enforce a substantive, rather than merely procedural, division of the truly national
from the truly local. In addition, the Rehnquist majority emphasized
that it would enforce substantive lines between what is commercial
and what is non-commercial regardless of the amount of evidence
Congress generates to show effects on interstate commerce. “While
we need not adopt a categorical rule against aggregating the effects of
any non-economic activity . . . thus far in our Nation’s history our
cases have upheld Commerce Clause regulation of intrastate activity
only where that activity is economic in nature.”97
94. Id.
95. Id. at 615-16.
96. Id. at 614 (quoting United States v. Lopez, 514 U.S. 549, 557 n.2 (1995) (quoting in turn
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring))).
97. Id. at 613. Perhaps the most interesting language in Lopez comes from Justice Thomas’s
concurrence. If he stands alone on his criticism of the aggregation principle, then his concurrence is mostly fodder for scholars. But if he hints at the possible future of Rehnquist Court
decisions, his concurrence will provide the blueprint for the most substantial limit on Commerce
Clause power since the 1930s. Justice Thomas questions the validity of the aggregation principle,
the idea that the relevant impact on interstate commerce of a regulated activity is the impact on
commerce of the regulated activity considered as a whole, not the effect produced by any specific instance of the activity. As Justice Thomas sees it, the principle has no stopping point and
allows Congress to regulate virtually any activity. Lopez, 514 U.S. at 600 (Thomas, J.,
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a. Critical Response to Morrison
The Constitution suggests that there are limits to the exercise of
national power. For most of our nation’s history, it has been presumed that exercise of federal power is disfavored under the Constitution. As late as 1954, Herbert Wechsler, no states’ rights advocate,
wrote “[n]ational action has . . . always been regarded as exceptional
in our polity, an intrusion to be justified by some necessity, the special
rather than the ordinary case.”98 So why, then, has the Rehnquist
Court’s enforcement of Federalism drawn such fire? If the criticism
were mere quarreling over where the line should be drawn between
federal and state power, that would be understandable. The criticism
goes deeper than that though. The reason is that somewhere along
the line it became acceptable to have federal legislative power without
limits,99 or perhaps more importantly, no limits that courts can or
should enforce.100
From 1937 until Lopez and Morrison, every Supreme Court decision reviewing congressional power under the Commerce Clause supported judicial deference to Congress. Justice Souter’s dissent argues
that the “business of the courts is, to review the congressional assessment, not for soundness but simply for the rationality of concluding
that a jurisdictional basis exists in fact.”101 “The single most important unifying theme of Commerce Clause jurisprudence during the last
sixty years has been the Court’s willingness to defer these decisions to
These claims, in a practical sense, create a Commerce Clause as
vast as Congress wants it to be. Such claims rest on the notion that
Federalism is subject to a different kind and level of judicial review
than are individual rights cases. It is important then, if the criticism is
to be sustained, to differentiate Federalism from individual rights on a
level that justifies more deference in Federalism cases. The Rehnquist
98. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the
Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 544 (1954).
100. See CHOPER, supra note 14, at 380. Choper argues that the Court should conserve its
political capital for individual rights cases by treating structural issues of federalism as nonjusticiable. Id.
101. Morrison, 529 U.S. at 628 (Souter, J., dissenting).
102. Jennings & Razook, supra note 91, at 36.
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majority and its supporters respond that the Constitution does not differentiate between these types of claims and that the distinction made
by critics ignores the importance of Federalism to liberty, political accountability, and individual rights.
Of particular interest are criticisms of Morrison that argue or hint
at the notion that aggressive judicial review is antidemocratic. With
some exceptions, these critics do not seem concerned about the use of
judicial review as a general matter. Specifically, they approve of the
use of judicial review to protect individual rights against what they see
as the tyranny of the majority. They distinguish Federalism and argue
judicial review in these instances should be deferential to political
branches, else the Court will thwart the will of the people.103
The number of federal statutes the Rehnquist Court has disposed
of104 has led to critical response from constitutional law scholars and
103. Not all commentators agree with these criticisms. Some minimize the effect of the line
of cases. See, e.g., Nagel, supra note 13, at 1003-04. Others praise the return of Federalism as a
doctrine with teeth. See, e.g., John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist
Court’s Jurisprudence of Social Discovery, 90 CAL. L. REV. 485 (2002). McGinnis argues that the
Rehnquist Court’s Federalism decisions are part of “a coherent jurisprudence that invigorates
decentralization and the private ordering of social norms that Alexis De Tocqueville celebrated
in Democracy in America as being the essence of the social order generated by our original
Constitution.” Id. at 487. McGinnis sees a distinct benefit to the Court striking down a popular
law like VAWA rather than the more obscure provisions addressed in Lopez. Id. at 515-16. The
countermajoritarian effects of the ruling in Morrison had the effect of symbolizing the potency of
Federalism. “By invalidating [VAWA], the Justices announced that [C]onstitutional [F]ederalism
is back . . . .” Id. at 515-16. For articulation of the opposing view that Morrison is consistent with
earlier Federalism jurisprudence, see Jennings & Razook, supra note 91, at 36.
104. The Rehnquist Court strikes down federal statutes at a rate far higher than any previous
court. Between 1994 and 2000, the Court invalidated 24 federal statutes, compared with 128
invalidations in the Court’s first 200 years. See Stuart Taylor, Jr., The Tipping Point, NAT’L J.,
June 10, 2000, at 1810. Since the appointment of Clarence Thomas in 1991, the Court has held at
least 10 federal statutes constitutionally invalid on grounds involving Federalism. See, e.g., Bd.
of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 372-74 (2001) (holding the Americans with
Disabilities Act invalid insofar as it attempted to abrogate the States’ sovereign immunity from
suit); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67 (2000) (holding the Age Discrimination in
Employment Act invalid insofar as it purported to abrogate state sovereign immunity); Alden v.
Maine, 527 U.S. 706, 712 (1999) (holding the Fair Labor Standards Act (FLSA) unconstitutional
insofar as it purported to subject unconsenting states to private suits in state court); Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 691 (1999) (holding the
Trademark Remedy Clarification Act invalid insofar as it purported to abrogate state sovereign
immunity); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630
(1999) (invalidating the Patent and Plant Variety Protection Remedy Clarification Act as applied
to the states); Printz v. United States, 521 U.S. 898, 935 (1997) (invalidating provisions of the
Brady Act requiring state and local governmental officials to execute a federal regulatory program); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996) (invalidating a provision of the
Indian Gaming Regulatory Act abrogating the states’ Eleventh Amendment immunity from suit
in federal court); United States v. Lopez, 514 U.S. 549, 551 (1995) (invalidating the Gun Free
School Zones Act on the ground that it exceeded congressional power and invaded the states’
regulatory domain); New York v. United States, 505 U.S. 144, 149 (1992) (invalidating “taketitle” provision of Low-Level Radioactive Waste Policy Act on grounds that Congress may not
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political scientists. Critics make two principal claims: First, political
structure is the sole constitutional mechanism for enforcing Federalism,105 and second, the Court overstepped its bounds, and acted in
antidemocratic fashion106 by refusing to defer to congressional findings. Each of these claims invokes the so-called countermajoritarian
difficulty by resting on the notion that Congress, the more democratic
of the two institutions, is the constitutionally favored institution for
drawing Federalism lines and making findings of fact.
Professor Larry Kramer writes that the Rehnquist Court has
“steadily usurped the power to govern by striking down or weakening
federal and state laws.”107 The Rehnquist Court sees no need “to accommodate the political branches at all” and no longer “views itself as
first among equals, but has instead staked its claim to being the only
institution empowered to speak with authority when it comes to the
meaning of the Constitution.”108 “Judicial supremacy is becoming judicial sovereignty.”109 The Rehnquist Court Federalism decisions are
a “grab for power.”110
The “New Federalism,” it is claimed, is a “radical attempt to undermine th[e] constitutional commitment to fairness and basic dignity,
[and] is disturbing as a matter of principle and doctrine.”111 Professor
Sylvia Law is the most straightforward of these critics, explicitly claiming that Rehnquist Court Federalism decisions, and Morrison specifically, are an “assault on democracy.”112 Professor Cass R. Sunstein
called the Federalism decisions part of a “remarkable period of rightwing judicial activism.”113
compel the states to assume liability); see also City of Boerne v. Flores, 521 U.S. 507, 536 (1997)
(holding the Religious Freedom Restoration Act unconstitutional, largely on separation-of-powers grounds, insofar as it imposed obligations on state and local governments). In the 50 previous years, the Court had found just one federal statute violated Constitutional Federalism.
105. See Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000).
106. See, e.g., H. Geoffrey Moulton, Jr., The Quixotic Search for a Judicially Enforceable
Federalism, 83 MINN. L. REV. 849, 900-22 (1999).
107. Larry D. Kramer, The Supreme Court v. Balance of Powers, N.Y. TIMES, Mar. 3, 2001, at
108. Kramer, supra note 57, at 13.
109. Id.
110. Id. at 129.
111. Law, supra note 15, at 396 (2002). Professor Law also writes: “The issues at stake in the
federalism debate . . . are vitally important to the future of democracy and individual rights.” Id.
at 431.
112. Id.
113. Sunstein, supra note 5. Charges of “activism” always implicate the countermajoritarian
difficulty because they assert that the Court has encroached on an area reserved for the political
process. Judicial “activism” can be difficult to define, however. See Soragahn, supra note 6.
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Popular media have joined the party, criticizing the Rehnquist
Court Federalism decisions generally and Morrison specifically with
even more vigor than their counterparts in the academy.114 “These
unelected justices serving life terms have become an imperial judiciary.”115 The Rehnquist Court’s idea of Federalism is “seizing rights
from the people . . . . The Rehnquist [C]ourt trusts neither the people
nor democracy.”116 “Ideology . . . politics . . . and current events . . .
have combined to give this results-oriented Court an immense and
frightening antidemocratic power. Today’s Court has assumed the
role of both legislature and court.”117 Many of the criticisms state explicitly that Morrison is antidemocratic; others suggest that criticism
implicitly. “[T]oday’s majority do[es] not reflect the country’s will.”118
The Court refuses to defer to the legislature and has shown “disdain
for the executive branch and precedent.”119 “This Court’s idea of
[F]ederalism means seizing rights from the people.”120
These critics suggest that the activist court of the New Deal Era
trusted and deferred to the people and the legislature, while the
Rehnquist Court distrusts democracy.121 In this way, they try to distinguish the activism of Morrison from the activism of the Warren
Court. There are two key differences according to this claim. First,
the Founders intended to protect Federalism solely by political structure, not judicial review. Second, if the Court does review Federalism
decisions, it should defer to rational congressional judgments that a
regulated activity is within its Commerce Clause power because Congress is better suited to collecting evidence and making factual judgments about Federalism.
These accusations are incomplete and simplistic. The relationship
between constitutionalism and democracy is not as simple as arguing
that judicial review is countermajoritarian. In fact, countermajoritarian features of the Constitution were designed in part to preserve
Judge Richard Posner has defined judicial activism as a court’s failure to defer to decisions made
by the political branches of the federal government or to the decisions of state governments.
114. See GARBUS, supra note 5; Taylor, Jr. supra note 104, at 1810.
115. GARBUS, supra note 5, at 4.
116. Id. at 121-22.
117. Id. at 288.
118. Id. at 4.
120. GARBUS, supra note 5, at 121.
121. See id. at 121-22.
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majoritarian democratic rule. The difficulty in evaluating the Rehnquist Court Federalism decisions (as well as other instances of judicial
activism) is in finding the proper balance between countermajoritarian institutions, like the courts, and our desire for democratic rule.
In many ways, the issues addressed regarding the Rehnquist Court
Federalism decisions reveal the paradox that is constitutional democracy. Judicial review as an institution is firmly established in our system of constitutional democracy, though some might argue it does not
belong there. The relevant practical question is not whether judicial
review belongs in a constitutional democracy, but rather the extent to
which it should be exercised. How often should it be used and in what
circumstances? How much deference should courts give to constitutional judgments of other branches of government?
b. The Countermajoritarian Difficulty
The Morrison decision has raised the infamous countermajoritarian problem both explicitly and implicitly. Critics argue alternatively that the Court has no role in policing Federalism or that the
Court should have deferred to the judgment made by Congress that
VAWA was within its Commerce Clause power. Both criticisms raise
the possibility that the Morrison majority unjustifiably encroached on
a political decision that represented the will of the people. Such an
aggressive review of the decision of a political branch is antidemocratic, say the critics, because it usurps power given to the people and rejects rational judgments made by the people’s
More than forty years ago, Alexander Bickel wrote famously of
judicial review as a deviant institution in democracy.122 Bickel identified inconsistency in the notion that constitutional judicial review requires unelected judges striking down choices made by the people
through popularly elected legislatures.123 If majority rule is the primary value in democracy, then judicial review is at odds with democracy and leads to Bickel’s “countermajoritarian difficulty.” In the
decades since, constitutional law scholars have obsessed over attempts
to reconcile the institution of judicial review with democratic the122. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT
BAR OF POLITICS 16 (Vail-Ballou Press 1986) (1962).
123. Id. at 16-20.
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ory.124 Originalists, for example, argue adherence to the clear meaning of constitutional text and framers’ intent limits occasions for the
Court to thwart the popular will.125 John Hart Ely wrote democracy is
by definition majority rule, but can be reconciled with judicial review
when courts focus on enhancing democracy through preservation and
perfection of democratic process and structure.126
Steven Calabresi points to two additional features of judicial review in modern America that heighten the effect of the countermajoritarian difficulty:
First, the Constitution . . . which implicitly authorizes judicial review
is over 200 years old and was enacted by a small and wealthy minority of the people then living . . . . Second many of the decisions that
modern judges issue in the name of the Constitution and its Amendments seem to be only tangentially connected with the actual constitutional text.127
The effect is that modern judicial review has the effect of “disempower[ing] current majorities from ruling either in the name of a
majority of [W]hite male property owners . . . or because a current
majority of nine unelected elite lawyers do not agree with the popular
will.”128 This is exactly the type of criticism levied at the Rehnquist
majority following Morrison. How can we square judicial review with
democratic theory, and what are the consequences for Morrison,
where the Court struck down a popular bipartisan bill supported by
both houses of the federal legislature, the majority of states, and a
mountain of congressional fact-finding?
124. See, e.g., CHOPER, supra note 14; JOHN HART ELY, DEMOCRACY AND DISTRUST: A
THEORY OF JUDICIAL REVIEW (1980). For an example of a commentator who thinks far too
much time has been wasted on the subject, see Rebecca Brown, Accountability, Liberty, and the
Constitution, 98 COLUM. L. REV. 531 (1998). Professor Brown writes “[h]onk if you are tired of
constitutional theory.” Id. at 531.
MODERN LIBERALISM AND AMERICAN DECLINE (1996); Robert Bork, Neutral Principles and
Some First Amendment Problems, 47 IND. L.J. 1 (1971).
126. ELY, supra note 124, at 181-83. For a commentary concluding that all the major approaches to reconciling democracy and judicial review fail, and then presenting a new candidate,
(2001). Rubenfeld argues that viewing the Constitution as a written commitment over time
solves the countermajoritarian problem. Id. at 171. Rubenfeld fails, however, to explain why it
is judges and not some other, more democratic, institution that should determine exactly what
we have committed ourselves to. Id.
127. Calabresi, supra note 12, at 1385.
128. Id.
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The most powerful response to Bickel’s problem takes issue not
with his conclusion, but with his definition of democracy.129 If one
begins with the proposition that democracy is pure majority rule, then
the process of unelected, life-appointed federal judges invalidating actions of popularly elected bodies is at odds with that definition. The
originalist position only leads to less frequent use of judicial review—
it does not solve the problem. But if one refines the definition of democracy or broadens the conception to include “American” democracy or constitutional democracy, Bickel’s thesis becomes more
problematic. The Constitution embodies majority rule as only one of
several important values. But majority rule is by no means the only
value expressed in the Constitution.
As a sign of conflicting constitutional values, The Federalist are
loaded with references to the dangers of majority rule.130 The Constitution does not include provisions for devices associated with pure
majority rule, such as the national ballot initiatives often seen in state
constitutions. In many instances, the Constitution explicitly rejects
pure forms of majority rule. The Electoral College, not the popular
vote of citizens, elects the president. The allocation of two Senators
from each state ensures that citizens of smaller states receive more
representation in the Senate than their counterparts from larger
states. Prior to the passage of the Seventeenth Amendment, the Senate was even more removed from pure democracy because the Senators were elected by state legislatures, not citizens of each state.
Article III provides for appointment of federal judges by a representative of the people, not the people themselves. The Bill of Rights exists
by its very nature to limit the power of the majority to impose its will
on the minority. Certain subjects—the rights to life, liberty and property; free speech; free press; freedom of worship and assembly; and
other rights deemed fundamental—are removed from the realm of
majority rule.
The system of government under the Constitution is one where
majority rule governs within a carefully designed structure. The
choices of the majority govern only so long as those choices comport
129. See Erwin Chemerinsky, The Price of Asking the Wrong Question: An Essay on Constitutional Scholarship and Judicial Review, 62 TEX. L. REV. 1207, 1211-26 (1984); Erwin Chemerinsky, The Supreme Court 1988 Term: Foreword: The Vanishing Constitution, 103 HARV. L. REV.
43, 74-77 (1989).
130. See, e.g., THE FEDERALIST NO. 10, at 77 (James Madison) (Clinton Rossiter ed., 1961);
THE FEDERALIST NOS. 15-16, at 105-18 (Alexander Hamilton) (Clinton Rossiter ed., 1961); THE
FEDERALIST NO. 62, at 378 (James Madison) (Clinton Rossiter ed., 1961).
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with other values embedded in the Constitution: equality, liberty, separation of powers, and fundamental rights. Armed with this more precise definition of “constitutional” democracy, judicial review of
popularly approved legislation is perfectly consistent with democracy
if it is utilized in a manner consistent with the Constitution. The Constitution itself is inconsistent with a definition of democracy as majority rule. Bickel’s thesis then may pose a problem for democratic
theory but it does not lead to the conclusion that judicial review is
The move to a more accurate description of our democracy mitigates the problem posed by Bickel, but it does not end the discussion.
The above argument against the countermajoritarian problem only
tells us why judicial review is not unconstitutional on grounds that it is
antidemocratic. In fact, many of the responses to Bickel concede the
antidemocratic effect of judicial review by equating it to all of the
other antidemocratic designs in the Constitution. The problem then is
not that judicial review is unconstitutional, but that it has an effect of
lessening democracy and should thus be used sparingly in a system
that favors democratic decision-making.
Another answer to the countermajoritarian problem is that judicial review serves to limit one of the other major problems faced in
democratic theory: the “majoritarian” problem or the tyranny of the
majority. Majority rule does not always seem fair or just. Current
majorities in pure democracy can enforce harsh, immoral, and cruel
rules against minorities. Our Constitution deals with this problem
with a set of structural mechanisms designed to limit the force of majority rule in certain situations. These mechanisms include guaranteed
individual rights, judicial review, and Federalism itself. In this setting,
one of the advantages of judicial review is that it is countermajoritarian, and, therefore, courts have a duty to police these mechanisms
to cure possible excesses of majority rule.
For those who believe judicial review is unconstitutional, solving
Bickel’s problem is easy—eliminate judicial review.131 For those who
see judicial review as perfectly democratic, the focus is shifted to de131. See BORK, supra note 125, at 117, 321. Bork urges us to “see the judiciary for what it is,
an organ of power without legitimacy either in democratic theory or in the Constitution” and
advocates passage of a constitutional amendment allowing Congress to override judicial decisions. Id. at 321. For a proposal for the elimination of judicial review from the opposite end of
COURTS 99-102, 154 (Princeton 1999).
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veloping theories of when and where it should be applied.132 But
when one believes in a majoritarian democracy and in the promise of
judicial review, Bickel’s problem remains, and attempts to justify judicial review continue.133 Arguably, the popular view of our constitutional democracy accepts both of these concepts, and so debate over
the antidemocratic effect of judicial review is likely to continue. This
Article does not attempt to square judicial review with political theory
in a general sense. Instead, it seeks to discover whether there are particular characteristics present in Morrison that make that case antidemocratic. In other words, do the unique features of Federalism
and especially congressional fact-finding about Federalism require the
Court to be particularly deferential when presented with a case like
Critics of Morrison believe there are two features that distinguish
Federalism and fact-finding about Federalism from other constitutional claims. First, they claim the founders intended for the political
structure of the Constitution to be the sole check on federal authority
and so the judicial review exercised in Morrison is inappropriate and
unconstitutional. Second, when Congress makes rational judgments
about its Commerce Clause power and supports those judgments with
evidence, the Court must defer.
a. Political Safeguards of Federalism
The primary basis for asserting that Federalism deserves special
protection from aggressive judicial review is the “Political Safeguards
132. Ronald Dworkin is the prime example. See, e.g., RONALD DWORKIN, FREEDOM’S LAW:
EMPIRE (1986).
133. Modern scholars continue to express concern with the countermajoritarian problem.
See, e.g., TUSHNET, supra note 131, at 180 (arguing that lawyers ask “the Court to do what [they]
want, under the guise of interpreting the Constitution” and that this process is “rather openly
antidemocratic.”); Akhil Reed Amar, The Supreme Court, 1999 Term: Foreword: The Document
and the Doctrine, 114 HARV. L. REV. 26, 40-41 (2000) (listing several “major breakdowns of
democratic decision making” in the Supreme Court’s decision-making process); Cass R. Sunstein, The Supreme Court 1995 Term: Foreword: Leaving Things Undecided, 110 HARV. L. REV.
4, 6-8 (1996) (arguing for “decisional minimalism” because it ensures that important decisions
are made by democratically accountable actors).
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Theory” of Federalism.134 In his dissent to Morrison, Justice Souter
offered a quote by James Madison as proof that the Founders intended politics, not law, to be the chief mechanism for enforcing Federalism: “The National Government ‘will partake sufficiently of the
spirit [of the States], to be disinclined to invade the rights of the individual States, or the prerogatives of their governments.’”135 In making this argument, Justice Souter echoes a long line of commentators
who argue that the “political safeguards of federalism” are the sole
protections against an overreaching Congress. This theory, famously
articulated by Herbert Wechsler, posits that Federalism is an eminently political issue and that the Founders intended for its boundaries to be set by Congress and its political process.136 Wechsler’s
thesis posits that the political structure created by the Constitution
protects Federalism limits by discouraging congressional overreaching
into state domains. The political system is fully capable of responding
to expansions of federal authority, and, thus, there is no need or desire
for judicially enforced Federalism. Dean Jesse Choper supplemented
Wechsler’s Political Safeguards with an argument that courts should
not interfere in Federalism cases, but should use their institutional resources to protect individual rights because states have the political
resources within constitutional structure to fend for themselves.137
More recently, Professor Bradford Clark defends political enforcement of Federalism on grounds that a strict approach to separation of
powers will safeguard states from overreaching federal legislation.138
The argument for politically enforced Federalism is more than a
theoretical justification for judicial deference; it is prominent in Commerce Clause precedent. For example, in Hodel v. Virginia Surface
Mining and Reclamation Association, Inc., the Court held “[j]udicial
review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. This power
is ‘complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the
134. See Wechsler, supra note 98, at 544; see also RALPH A. ROSSUM, FEDERALISM, THE
135. United States v. Morrison, 529 U.S. 598, 648 (Souter, J., dissenting) (alteration in original) (quoting THE FEDERALIST NO. 46, at 319 (James Madison) (J. Cooke, ed., 1961)).
136. Wechsler, supra note 98, at 544.
137. CHOPER, supra note 14, at 175.
138. See Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L.
REV. 1321 (2001).
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[C]onstitution.’”139 While the Hodel Court appeared to acknowledge
some limits on congressional power, the Court’s conception of those
limits was quite modest: “[T]hus, when Congress has determined that
an activity affects interstate commerce, the courts need inquire only
whether the finding is rational.”140 Morrison and Lopez reject this
theory in favor of substantive judicial review of Federalism.
Professor Larry Kramer makes the historical case that the Founders intended for the political structure of the Constitution to be the
sole check on Federalism.141 He argues that Revolutionary America
was deeply skeptical of judicial review and was therefore unlikely to
trust the judiciary to be the principal check on federal government
power.142 Kramer points to the lack of references to judicial review in
the ratification debates as proof that the Founders did not foresee an
important role for federal courts in protecting the federalist design.143
In addition, Kramer supplements Wechsler by arguing that political
parties in the modern political system create an additional layer of
political protection of Federalism principles. Kramer points to the vital state of regulatory authority at the state level, the Framer’s intent,
and Supreme Court precedent as authority for his view.144
Professor Ralph Rossum has added weight to the Political Safeguards theory.145 Rossum favors the Founders’ strong federal design,
but believes politics are the intended means for enforcement of limits
on Congress’ power.146 Although the Rehnquist Court adheres to the
Founders’ version of Federalism, Rossum believes they are interpreting the wrong document. Rossum argues that the Seventeenth
Amendment represents a democratic choice to fundamentally alter
the Founders’ Federalism design.147 By removing one of the key political safeguards of Federalism, the people changed the Constitution in
favor of democracy and to the detriment of Federalism protections.148
452 U.S. at 276 (citations omitted) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196
Id.; see also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
Kramer, supra note 57, at 10-12, 71-74.
Id. at 74.
Id. at 60, 110, 168.
See ROSSUM, supra note 134.
Id. at 281-85.
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According to Rossum, Morrison and Lopez fill a void the Supreme
Court has no business filling.149
For believers of the Political Safeguards Theory, aggressive judicial usurpation of political decisions amounts to an antidemocratic and
unconstitutional move. If the Founders intended for the political process to determine the extent of Congress’ federal power, then judicial
decrees that Congress is overstepping its bounds thwart the will of the
people in an area the Constitution gives to the citizenry.
Kramer, Wechsler, and others target the key question that arose
in Morrison: Which institution, the Court or Congress, has the final
say in determining whether a democratically adopted law sufficiently
affects interstate commerce to grant Congress authority to enact the
law? Advocates of politically enforced Federalism believe that the answer to the question is emphatically Congress. “[L]ogic would suggest
that nine justices influenced by ideological goals and removed from
the rigors of electoral review are less apt to demonstrate a principled
fidelity to Federalism than Congress whose members are constantly
under the scrutiny of the electorate.”150 Advocates of this view see
Morrison as a prime example. Prior to Congress’ adoption of VAWA,
there were four years of congressional hearings, mountains of evidence linking violence against women to interstate commerce, and explicit findings that states were doing an insufficient job addressing the
issue. Congress interacted regularly with the states in creating a remedy, and it appeared that most states favored the legislation and federal intervention in the area. VAWA was changed at one point to
complement, rather than displace, state law, and, as a result, the law
enjoyed strong bipartisan support in both the House and the Senate.
In many ways, the political process surrounding VAWA is exactly the
scenario imagined by Wechsler: National representatives were motivated to demonstrate respect for state sovereignty and the principles
of Federalism.
Professor John Yoo makes the historical argument for a judicially
enforceable Federalism.151 Yoo argues that the Federalists proposed
an early version of the Political Safeguards Theory at the ratification
debates that was ultimately rejected. Anti-Federalists opposed this
theory on the basis that man’s natural hunger for power would over149. Id.
150. Jennings & Razook, supra note 91, at 62.
151. See John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 131215 (1997).
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whelm mere political safeguards. The Federalists conceded this point
and began to champion judicial review as the ultimate check on the
over-expansion of federal power. It is important to note that Professor Yoo, and others in his camp, do not argue against the idea that
political structure was intended as a check on federal power. They
simply argue that the political safeguards and judicial review complement each other.
Kramer’s argument that judicial review received little attention at
the ratification debates achieves little. It is well known that judicial
review received little attention, and no amount of historical argument
will prove conclusive on the matter. Judicial review was left unsettled
until the Marshall Court staked a claim for its place in the constitutional system. While the Marshall Court’s decisions are susceptible to
criticism, their ultimate place in history is unassailable. Judicial review is firmly established. Kramer’s arguments about judicial precedent fail as well. It is true that for decades after the New Deal, the
prevailing view was that the Supreme Court should defer to congressional judgments about Commerce Clause power, but that alone does
not argue for the correctness of that interpretation. The Court has
vacillated between Dual Sovereignty and Cooperative Federalism
since the founding. Similarly, the Court’s application of deference to
political bodies has waxed and waned throughout history. Although
the Political Safeguards Theory adequately explains why democratic
institutions provide one check on the limits of Federalism, it does not
provide a rational argument for excluding this single area of constitutional law from judicial review.
Despite valiant attempts to buttress the political safeguards theory, these scholars ultimately fail to establish that politics is the exclusive protection for the boundaries of Federalism. Analysis of text,
structure, and original understanding of the Constitution all fail to justify exercise of judicial review in some instances, while simultaneously
excluding Federalism from its protections. Where Wechsler and
Kramer ultimately fail is in distinguishing Federalism from other areas
of constitutional law. If individual rights are properly protected by
judicial review, why not limits on federal power? Simply arguing that
the political structure provides for checks on federal power does not
preclude judicial review of federal power as a backstop measure.
There simply is no support in the text for exempting Federalism cases
from the group of cases and controversies subject to judicial review.
These scholars make a strong case for the existence and effectiveness
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of political safeguards, but fail to explain why the existence of political
safeguards precludes judicial review of the scope of federal power
when those political safeguards fail.
Wechsler, Choper, and Kramer have chosen the awkward position of arguing that judicial review is inappropriate in cases where the
federal government is alleged to have encroached on state authority,
but entirely appropriate where states infringe on federal rights. For
all their skill, the authors cannot “draw a true distinction between
cases protecting the federal government, on the one hand, and cases
protecting the states, on the other.”152 In both types of cases, the
Court is called on to make substantive judgments about where the
Constitution draws the line between federal and state authority.153
Chief Justice Rehnquist himself provides an insightful rebuttal to
those who argue that political structure is the only protection for
Justice Souter’s dissent theory that Gibbons v. Ogden, Garcia v.
San Antonio Metropolitan Transit Authority, and the Seventeenth
Amendment provide the answer to these cases . . . is remarkable
because it undermines this central principle of our constitutional
system. As we have repeatedly noted, the Framers crafted the federal system of Government so that the people’s rights would be secured by the division of power . . . . Departing from their
parliamentary past, the Framers adopted a written Constitution that
further divided authority at the federal level so that the Constitution’s provisions would not be defined solely by the political
branches nor the scope of legislative power limited only by public
opinion and the Legislature’s self-restraint. . . . It is thus a “permanent and indispensable feature of our constitutional system” that
“the federal judiciary is supreme in the exposition of the law of the
No doubt the political branches have a role in interpreting and
applying the Constitution, but ever since Marbury this Court has
remained the ultimate expositor of the constitutional text. As we
emphasized in United States v. Nixon: “In the performance of assigned constitutional duties each branch of the Government must
initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from others . . . . Many decisions of this Court, however, have unequivocally reaffirmed the
152. Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459, 1475 (2001).
153. See id.
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holding of Marbury that ‘[i]t is emphatically the province and duty
of the judicial department to say what the law is.’”154
Federalism is vital to liberty and individual rights. The Framers
believed Federalism was vital to protect liberty from the tyranny that
could result from concentrations of power in the federal government.
Distribution of power among the various levels of a federalist system
reduced the likelihood of corruption, provided additional checks and
balances, and gave citizens additional access points to government.
Federalism was considered as important to liberty as guarantees of
individual rights. While modern theorists often separate individual
rights and structural issues into distinct fields, Federalism is not a
purely structural concept, but was intended to protect individual liberty.155 On this realization, the distinction between individual rights
and Federalism and their susceptibility to judicial review becomes paper-thin. The Framers believed that both the structural aspects and
the rights aspects of the Constitution served to limit the power of the
federal government.156 Even the most ardent supporters of politically
enforceable Federalism agree that the Court has a role to play when it
comes to preserving individual liberty. There is no reason to distinguish between individual rights and Federalism once one achieves the
realization that Federalism is as important to liberty as guarantees of
individual rights.
Dean Jesse Choper has attempted to sustain the distinction between Federalism and individual rights by arguing that states can police Federalism through the political process.157 States do not need
the countermajoritarian protection of judicial review, according to
Choper, because their interests are already protected in the political
process.158 Choper distinguishes constitutional questions of individual
liberty because we cannot be sure that minority voices will have an
effective voice in the political process.159 Choper’s theory ignores several key characteristics of the Constitution. First, there is no evidence
that the Founders intended to draw a distinction between individual
rights and Federalism issues. As Choper acknowledges, the Framers
viewed politics as one protection for Federalism. The Framers did not
154. United States v. Morrison, 529 U.S. 598, 616 n.7 (2000) (fourth alteration in original)
(citations omitted).
156. See Prakash & Yoo, supra note 152, at 1476.
157. CHOPER, supra note 14, at 260-75.
158. Id.
159. Id. at 169.
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stop there; rather they inserted the Tenth Amendment as explicit protection for Federalism principles. The Tenth Amendment, like many
other constitutional provisions, is countermajoritarian in the sense
that it removes certain issues of government structure from the political system.160
Choper’s theory assumes that the primary function of the judiciary is to protect individual rights.161 By insisting on this assumption,
he ignores evidence that the entire Constitution, including the structural provisions, was “created to avoid tyranny and protect liberty.”162
The constitutional scheme of Federalism is one of several features designed to avoid concentration of power. The Framers were “virtual[ly] obsess[ed] with concentration of power.”163 The accumulation
of “[a]ll the powers of government . . . . in the same hands is precisely
the definition of despotic government.”164 This fear led to the creation of a structure of government that divides power, both between
federal branches and between levels of government. The Framers believed Federalism was vital to protect liberty from the tyranny that
could result from concentrations of power in the federal government.
Finally, the political safeguards theory ignores the possibility that
state political actors occasionally have incentives to ignore long-term
sovereignty issues in favor of short-term political gain. The VAWA
received the support of thirty-eight state attorneys general and passed
overwhelmingly in both houses. Critics of Morrison use this evidence
to demonstrate that the Court’s decision undermined the political system. The states believed that the VAWA was in their best political
interests even though it encroached on a substantive area, gender-motivated violence, which had previously been reserved to the states.
Arguably, passage of the VAWA is one example of states placing
short-term political gain over defense of their own sovereignty.165 Alexander Hamilton recognized the distinction between a state’s rights
and its political interests: “The rights of a state are defined by the
Constitution, and cannot be invaded without a violation of it.”166 The
REDISH, supra note 155, at 16-21.
Id. at 20.
Id. at 106.
THE FEDERALIST NO. 48, at 310 (James Madison) (Clinton Rossiter ed., 1961) (quoting
165. Prakash &Yoo, supra note 152, at 1478-79.
166. 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 319 (Jonathan Elliot ed., 2d ed. 1907) (1891), available at http://
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political interests of a state, on the other hand, “have no connection
with the [C]onstitution, and may be in a thousand instances constitutionally sacrificed.”167
Judicial review is designated by the Constitution to serve as a
backstop measure against constitutional violations that slip through
the political process because otherwise the political structure would
inevitably break down. Morrison, therefore, is not an antidemocratic
usurpation of power by unelected judges, but the judicial branch performing its assigned duties in curbing a Congress that has overstepped
its bounds.
b. Should the Court Defer to Congressional Fact-Finding?
Another popular criticism of Morrison is the charge that the
Court’s decision is antidemocratic because it refused to defer to the
fact-finding of a political body. Katzenbach endorsed the “rational
basis” test as a means to measure the validity of congressional authority under the Commerce Clause: “[W]here we find that the legislators,
in light of the facts and testimony before them, have a rational basis
for finding a chosen regulatory scheme necessary to the protection of
commerce, our investigation is at an end.”168 In Morrison, the Court
went beyond rational basis scrutiny to draw its own factual conclusions about VAWA’s effect on interstate commerce.
The legislative record supporting VAWA was “far more voluminous than the record compiled by Congress and found sufficient” by
the Court that upheld that the Civil Rights Act of 1964.169 In Heart of
Atlanta Motel and Katzenbach, the Court relied on mostly anecdotal
evidence to show the consequences of racial discrimination by motels
and restaurants on interstate commerce.170 The Court found that evidence to be conclusive despite the fact that Congress did not compile
the aggregate dollar value of nationwide effects of racial discrimination in public accommodations. In stark contrast, prior to passing
VAWA, Congress did calculate the aggregate national cost of harms
caused by domestic violence and sexual assault, estimating the cost to
be $3 billion in 1990.171 Morrison has been especially susceptible to
167. Id.
168. Katzenbach v. McClung, 379 U.S. 294, 303-04 (1964).
169. United States v. Morrison, 529 U.S. 598, 635 (2000) (Souter, J., dissenting).
170. Katzenbach, 379 U.S. at 299-300; Heart of Atlanta Motel v. United States, 379 U.S. 241,
252 (1964).
171. See supra Part II.
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criticism because the Court refused deference to fact-finding that supported the VAWA as substantially affecting interstate commerce.
These criticisms are common but they must rest on two tenuous
assumptions. First is the claim that Congress is the preferred factfinding institution—that Congress is better suited than courts to
gather facts needed to assess the commercial effects of a regulated
activity. Second, these critics assume that superior fact-finding ability
necessarily calls for judicial deference. This need not be so. In Board
of Trustees of the University of Alabama v. Garret172 Justice Stephen
G. Breyer, dealing with a state sovereign immunity claim, summarized
the commonly held belief that Congress is best suited for fact-finding
and therefore deserves deference from the Court:
Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an
appropriate remedy. . . . Unlike courts, Congress directly reflects
public attitudes and beliefs, enabling Congress better to understand
where, and to what extent, refusals to accommodate a disability
amount to behavior that is callous or unreasonable to the point of
lacking constitutional justification. Unlike judges, Members of
Congress can directly obtain information from constituents who
have first-hand experience with discrimination and related issues.
Moreover, unlike judges, Members of Congress are elected. . . .
To apply a rule designed to restrict courts as if it restricted Congress’ legislative power is to stand the underlying principle—a principle of judicial restraint—on its head.173
Justice William J. Brennan has relied on this “institutional competence” of Congress in justifying rational basis review for benign racial discrimination.174 But Justice Brennan never justified this claim
of congressional superiority with any evidence. It is true that Congress has the resources, including money and staff, to collect evidence
and data that might never enter into evidence at a normal trial. Justice Breyer makes a valid point in arguing that Congress can collect
nationwide data versus the narrow scope of most judicial proceedings.
The scope of data that Congress can collect is surely greater than what
one might expect at a trial limited to a dispute between two parties.
The evidence Congress can collect may be highly probative in generating public policy solutions. That ability says nothing about Congress’
172. 531 U.S. 356 (2001).
173. Id. at 384-85 (Breyer, J., dissenting) (citations omitted).
174. Metro Broad., Inc. v. FCC, 497 U.S. 547, 563 (1990), overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
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ability to determine when those public policy solutions overstep constitutional boundaries on congressional power, however. Accurate
fact-finding does not necessarily lead to correct substantive constitutional decisions. If the Court must defer to congressional judgments
about the scope of federal power, the Political Safeguards Theory becomes justification for Congress to regulate any problem, so long as
they accumulate evidence showing the scope of the problem.
Justices Breyer and Brennan ignore another key difference between Congress and the courts. While Congress can collect more data
on a wider scope, congressional conclusions should always be viewed
through a political lens. Congressional fact-finding may often be a
one-sided effort to provide evidentiary support for popular legislation.
Ultimately, if one believes that courts should exercise substantive
review of legislative judgments, rather than merely procedural review,
it follows that the Court need not always defer to fact-finding of Congress. If the court were to do so, its judicial review would become
merely procedural. The Commerce Clause under that view only requires that Congress hold hearings and collect data before passing legislation. There simply is no support in the Constitution for subjecting
Federalism to mere procedural review.175
Chief Justice Rehnquist himself provides the best response to
those who argue that the Court’s refusal to defer to Congress in Morrison amounts to an antidemocratic usurpation of power. Chief Justice Rehnquist acknowledged that the Court does in fact give respect
and some level of deference to Congress and its findings, but to not
review such findings when they are the basis for constitutionality of
the statute under review would amount to abdication of the Court’s
responsibility of checks and balances.176 Chief Justice Rehnquist does
not substitute judicial fact-finding for that of Congress; rather he acknowledges the principle of judicial restraint. He does not even question the accuracy of the facts that Congress compiled; instead he
questions the constitutional conclusions that Congress reached from
those facts.
175. See generally REDISH, supra note 155, at 99-134.
176. United States v. Morrison, 529 U.S. 598, 614 (2000). “But the existence of congressional
findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. . . . [S]imply because Congress may conclude that a particular activity substantially affects
interstate commerce does not necessarily make it so.”’ Id. at 614 (quoting United States v. Lopez, 514 U.S. 549, 547 n.2 (1995)).
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In Morrison, Congress found that gender-motivated violence affects interstate commerce “by deterring potential victims from traveling interstate, from engaging in employment in interstate business . . .
and in places involved interstate commerce . . . by diminishing national productivity, increasing medical and other costs, and decreasing
the supply of the demand for interstate products.”177 The Rehnquist
majority acknowledges that restrained judicial review requires some
deference to Congress, but not total deference. The Court believes it
is its duty to enforce substantive, not merely procedural, limits of Federalism. In reviewing congressional findings on the VAWA, Chief Justice Rehnquist wrote, “Given these findings and petitioners’
arguments, the concern that we expressed in Lopez that Congress
might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well
founded.”178 In other words, no amount of Congressional fact-finding
can make a non-economic activity economic and it is the Court’s duty
to enforce substantive limits of Federalism.
In his critique of the Rehnquist majority, Professor Rossum
points to Chief Justice John Marshall’s writings as evidence that Marshall and the Founders did not fear broad interpretation of the Commerce Clause.179 While this may be true, it ignores the fact that Chief
Justice Marshall is the father of strong substantive judicial review.180
If, as Rossum seems to believe, Chief Justice Marshall is a reliable
source of original intent, then he fails to reconcile Chief Justice Marshall’s stance on judicial review with his own theory of politically enforced Federalism. Almost by accident, it seems, Rossum gets to the
heart of the matter. By focusing on Chief Justice Marshall’s writings
on the scope of the Commerce Clause, he reveals that Morrison critics
are most upset with the substantive law espoused in Morrison, not the
exercise of judicial review that led to the decision.
While the Court should give some deference to rational congressional judgments about whether an activity is within its Commerce
Clause power, the Court need not abdicate its duty to enforce the substantive limits of that power simply because Congress has provided
evidence of substantial effects on commerce. The Morrison court is
177. Morrison, 529 U.S. at 615 (quoting H.R. CONF. REP. NO. 103-711, at 385 (1994), reprinted in 1994 U.S.C.C.A.N. 1803, 1853).
178. Id.
179. ROSSUM, supra note 134, at 157-73.
180. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province
and duty of the judicial department to say what the law is.”).
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correct in asserting that judicial review should be substantive, not
This Article does not address whether Morrison draws the proper
substantive line between federal and state power, but in Morrison, the
Court conducted the proper type of review: Substantive judicial review of congressional action, not mere procedural review of the legislative process. The Constitution does not require Congress to support
its assertions of power with evidence to placate the courts. Nor does
the Constitution require the Court to abdicate its duty to decide cases
and controversies just because Congress has amassed evidence to support its exercise of power. First, the call for deference to detailed legislative findings will divert congressional resources to create a
legislative record.181 Congress may have more incentive to do what is
popular in the short-term than to police the boundaries of its own
power for the long run. This would lead to a system where Congress
generates huge legislative records in hopes for judicial deference to
procedural steps taken. There is no constitutional support for this
type of system. Legislative bodies are by nature messy. A legislative
record detailing the process will mimic this characteristic. The record
will often reflect conflicting views and purposes. Legislators voting
for the same bill may have vastly different reasons for supporting it.
The Constitution does not call for the courts to review procedure;
rather it relies on the Court to serve a backup function. When Congress oversteps the constitutionally created boundaries of its power, it
is the Court’s duty to say so.
Professor Rossum believes that the Rehnquist Court has tried to
fill a void left in Federalism protections following the passage of the
Seventeenth Amendment.182 Rossum argues however that the
Amendment reflects a Constitutional choice in favor of democratic
rule over the Federalism protection given by state-elected Senators.183
According to Rossum, Lopez and Morrison are misguided attempts to
replace political safeguards with judicial safeguards.184 Rossum be181. See A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court’s New “On the Record” Constitutional Review of Federal Statutes, 86 CORNELL L.
REV. 328 (2001).
182. ROSSUM, supra note 134, at 233.
183. Id. at 181.
184. Id.
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lieves this theory explains in part the need for the Rehnquist Court to
strike down so many federal statutes in the name of Federalism. As a
descriptive matter he may be right: Passage of the Seventeenth
Amendment and the accumulation of federal power following the
New Deal and the Great Society represent a failure of the Federalism
protections put in place by the Founders. Normatively, however, Rossum is wrong.
He believes the Rehnquist Court is unauthorized and unjustified
in stepping in to provide judicial safeguards because the political safeguards were intended to be the only safeguards. The Political Safeguard theorists have argued persuasively that the Constitution
provides political checks on federal authority, but have failed miserably to show that politics is the only intended safeguard. The political
safeguards are the first line of defense against overreaching by Congress, but as with other constitutional principles, the Court has the
duty to police the substantive boundaries of Federalism when the political process fails to do so.
Critics of Morrison fail to sustain the distinction between Federalism and individual rights. Their failure leaves them with two options:
Either do away with judicial review because the entire institution is
unauthorized, or treat Federalism cases and controversies just like
those involving individual rights. There are good reasons to believe
that Federalism as a doctrine should be maintained and that courts
should play a role in enforcing the limits of the doctrine. Federalism
promotes individual liberty, political autonomy, and political access.
The maintenance of Federalist principles does not fall to one branch
of government, but is the responsibility of several branches. The
Rehnquist Court’s assertion that Federalism is subject to the same
level of judicial review as other constitutional decisions is not overreaching, nor does it deny that political safeguards play a role in enforcing Federalism as well.
Of course, Morrison is subject to the same countermajoritarian
complaints as all other exercises of judicial review. Substantive judicial review of Federalism may be less democratic than political enforcement when viewed through the lens of pure democratic theory.
That difficulty does not make Morrison unconstitutional or even less
constitutionally preferred, however. Critics of Morrison have suggested that something about these cases is especially antidemocratic
and have attempted to distinguish these cases from individual rights
jurisprudence. These efforts represent an attempt to claim that the
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Court should be deferential when reviewing federal legislation for
constitutional authority, but aggressive when reviewing state legislation for individual rights violations. Ultimately these attempts fail.
Our constitutional democracy is not a pure democracy, and so the arguably antidemocratic effect of judicial review does not present constitutional problems.
The critics of Morrison are displeased with the substantive results
of Morrison and fear that Morrison and Lopez may have dire consequences for favored legislation.185 To the contrary, the Rehnquist
Court’s move to enforce substantive Federalism is completely in sync
with our constitutional democracy. Morrison is not antidemocratic
unless one believes adherence to the structural requirements of the
Constitution is antidemocratic. Ultimately democracy can only function if it has rules and structure within which to function. The structural provisions of the Constitution recognize several different
majorities and prescribe when and where each majority will rule. A
Supreme Court that acts as a neutral umpire to enforce the structural
provisions of the Constitution does not suffer from the countermajoritarian problem, at least not in any constitutionally relevant sense, because it is engaged in performing its constitutionally assigned duty to
choose which majority should govern on a given issue. Critics of Morrison may have a valid claim that the Rehnquist Court is drawing the
line between state and federal power in the wrong place. The history
of Federalism shows locating that boundary is no easy task. In actuality, the Morrison decision does not thwart the will of the people; instead, in Morrison, the Court performed its constitutional duty to
enforce the structural provisions of the text and to provide boundaries
in which democracy can function.186
185. This fear seems especially acute when related to the Civil Rights Act of 1964. Because
VAWA has similar characteristics to the Act, many commentators fear that Morrison is the beginning of the end for civil rights legislation. The Court has been careful to distinguish VAWA
and GFSZA from the Civil Rights Act, though. In fact, Morrison embraces most of the Court’s
Commerce Clause jurisprudence. See Calvin Massey, Federalism and the Rehnquist Court, 53
HASTINGS L.J. 431 (2002). Professor Massey argues that while national action was needed to
address racial issues in the 1960s, the Commerce Clause was not the “most adroit” basis for the
Civil Rights Act. The right at issue in McClung had nothing to do with interstate movement of
goods, but rather “the right of [B]lack Americans to be treated the same way as all other Americans, with no special disadvantage visited upon them by reason of their ancestral heritage. This
is the province of the Thirteenth and Fourteenth Amendments, not the commerce power.” Id. at
482. “The Court,” argues Massey, “contorted the commerce power” because the legislation was
needed, but he laments the unnecessary erosion of Federalism caused by the decision. Id. He
proposes Section 2 of the Thirteenth Amendment as a better basis for the Civil Rights Act of
1964. Id. at 482-83.
186. See Calabresi supra note 12, at 1382-83.
Judges and lawyers employ, and are themselves persuaded by,
tragic and comic conventions when arguing their cases. Through written and verbal storytelling, gifted members of the legal profession depend not only upon their abilities to manipulate precedent, statutes,
policy, or legislative history, but also upon their capacity to make their
audiences cry and laugh. Tragedy and Comedy, however, are not easily mastered, and lawyers may find that they are just as easily bested
by these influences as they are skilled wielders of them: Judges are
sometimes overwhelmed by the tragic or comic natures of cases, and
write opinions that are shaped more by the cathartic emotion evoked
by those literary forms than by stare decisis or plain logic. In some
cases, opinions may even amount to literary tragedies, or become
jokes themselves. And when tears begin rolling, or jurors begin laughing, there is little that the losing lawyer can do. In the courtroom,
Tragedy and Comedy are such potent influences that they can prove
In Part I of this Article, I will examine successful uses of tragic
writing in Payne v. Tennessee,1 Janus v. Tarasewicz,2 and Plessy v. Ferguson.3 In Payne, I will show how the U.S. Supreme Court makes
specific use of literary tragic conventions to support its death penalty
arguments. In Janus and Plessy, I will demonstrate how the courts
themselves are led by the tragic elements in the cases before them. In
Janus, excruciating facts of a murder, and the irrepressible human desire to deny mortality, lead a court to make a weakly logical decision
Professor of Law, Loyola Law School in Los Angeles.
501 U.S. 808 (1991).
482 N.E.2d 418 (Ill. App. Ct. 1985).
163 U.S. 537 (1896).
2004 Vol. 48 No. 1
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when pressed to determine when a victim has died; in Plessy, the Supreme Court’s vitriolic reaction to that famous plaintiff’s request that
a racially discriminatory law be struck down evokes the cathartic emotions of Greek Tragedy.
In Part II of this Article, I will analyze the Ninth Circuit Judge
Alex Kozinski’s dissent in White v. Samsung Electronics America,
Inc.,4 Justice Antonin Scalia’s opinions in Lawrence v. Texas5 and
Grutter v. Bollinger,6 the 1964 New York decision People v. Bruce,7
and Justice Byron White’s decision in Bowers v. Hardwick8 to show
how courts and advocates may effectively use, or be overborne by,
Comedy in the courtroom. White, Lawrence, Grutter, and Bowers are
all cases where judges use humor to stun their opponents and persuade their audience of their arguments. Bruce, on the other hand, is
a case where the judges, beset by comic catharsis, are unable to marshal any persuasive defenses against it (or rather against the comic
genius of the defendant who was convicted), and so, in the end, become an object of ridicule.
In all of these examples, I will show how tragic and comic elements prove to be unanswerable weapons when used by skilled rhetoricians, and how these factors prove overwhelming to deciding courts.
To clarify my use of the term “unanswerable,” I will point the reader
to two famous plays by William Shakespeare, where characters stagger their adversaries through tragic and comic means.
In Shakespeare’s great plays The Merchant of Venice and Hamlet
Prince of Denmark, the characters of Shylock and Prince Hamlet
speak in the language and tradition of Tragedy and Comedy, respectively, to prosecute their suits. In the case of Shylock, the action concerns his right to claim a pound of flesh as redress for Antonio’s, that
is the Merchant’s, forfeit of his bond; in the case of Hamlet, the Prince
endeavors to requite the murder of his father, the King, by his newlyuxorious Uncle Claudius.
As Shylock submits to Salerino and Solanio, friends of Antonio,
his right to take the Merchant’s life, he invokes his own humanity as
support for his cause. The famous speech runs as follows:
4. 989 F.2d 1512 (1993) (White II); 971 F.2d 1395 (1992) (White I).
5. 539 U.S. 558 (2003).
6. 539 U.S. 306 (2003).
7. People v. Bruce (N.Y. Crim. Ct. 1964) at A30 (unpublished opinion), available at http:// (last visited June 18,
8. 478 U.S. 186 (1986).
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I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs,
dimensions, senses, affections, passions?—fed with the same food,
hurt with the same weapons, subject to the same diseases, [healed]
by the same means, [warmed] and [cooled] by the same winter and
summer, as a Christian is? If you prick us, do we not bleed? If you
tickle us, do we not laugh? If you poison us, do we not die? And if
you wrong us, shall we not revenge? If we are like you in the rest,
we will resemble you in that.9
Though The Merchant of Venice is a Comedy, I submit that Shylock’s speech figures into the tragic category, because it concerns the
greatness and vulnerability of man and elicits in the viewer or reader
cathartic feelings of pity.2 Further, Shylock’s poignant appeal is so
passionate and irrefutable that Salerino and Solanio cannot find any
words to discredit him; his claim that he too is a man in all of his tragic
dimensions has no riposte. Instead, Solanio dismisses Shylock by feebly analogizing him to the “devil.”10
Hamlet, on the other hand, makes no such affecting prayer when
he works to avenge the murder of his father; instead of prosecuting his
claim in a direct manner, he instead befuddles those around him (with
the notable exception of Gertrude) to obtain a different power over
his adversaries. In lieu of courting any fellow-feelings or sympathy, he
seeks to confound those of the royal court with a wicked, bizarre, and
unanswerable humor so that they will find themselves powerless to
resist his retributive plots. In a meeting with Polonius, Claudius’s
Lord Chamberlain and spy, the two characters have the following exchange, when Polonius comes upon Hamlet reading a book:
Polonius: . . . . What do you read, my Lord?
Hamlet: Words, words, words.
Polonius: What is the matter, my lord?
Hamlet: Between who?
Polonius: I mean the matter that you read, my lord.
Hamlet: Slanders, sir; if the satirical rogue says here, that old men
have gray beards; that their faces are wrinkled; their eyes purging
thick amber and plum-tree gum; and that they have a plentiful lack
of wit, together with most weak hams: All which sir, though I most
powerfully and potently believe, yet I hold it not honesty to have it
WORKS OF WILLIAM SHAKESPEARE act 3, sc. 1, ll. 54-64 (Wordsworth Editions Ltd. 1996) [hereinafter COMPLETE WORKS OF SHAKESPEARE].
10. At the appearance of Tubal, an associate of Shylock’s, Solanio mutters, in a fit of antisemitic rage: “Here comes another of the tribe. A third cannot be matcht, unless the devil himself turn Jew.” See id. act 3, sc. 1, ll. 73-74.
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thus set down; for yourself, sir, shall grow old as I am, if, like a crab,
you could go backward.
Polonius: [Aside] Though this be madness, yet there is method [in
it]. . . .11
Hamlet here is like both Lenny Bruce and a holy fool with his
razor-sharp insults and his pretensions to madness, and he makes no
small nod to Comedy when he mentions “satirical rogue[s]” and the
old men’s “weak hams.” Poor Polonius, who is soon to be stabbed by
Hamlet, can only mutter his suspicious and well-known aside as he is
so confused and dazzled by his adversary’s verbal pyrotechnics. And
though he has some notion that he is being made the butt of a joke, he
has little inkling of the Prince’s bloody plans.
The literary forms used by Shylock and Hamlet resonate with us
still: Tragedy makes us cry; Comedy causes us to laugh, and both because they touch upon the Unanswerable—Pathos and Absurdity.
Moreover, the persuasive, dumbfounding uses to which Elizabethan
Tragedy and Comedy are so employed by Shylock in The Merchant of
Venice and Hamlet in Hamlet Prince of Denmark persist in our society—and not just in the theater. As this Article will show, they are
also exerted in twentieth- and twenty-first-century American
Aristotle was among the first to define this form of theater,
describing it as follows: “[T]he imitation of an action that is serious . . .
with incidents arousing pity and fear, wherewith to accomplish [the]
catharsis of such emotions.”12 The tragic hero must “enjoy[ ] great
reputation and prosperity, [for example] Oedipus, Thyestes, and the
men of note of similar families.”13
WORKS OF SHAKESPEARE, supra note 9, act 2, sc. 2, ll. 54-64.
12. I hope that purists will not mind that I will cite here to ARISTOTLE, POETICS (Ingram
Bywater trans. n.d.), reprinted in THE POCKET ARISTOTLE 340, 348 (Justin Kaplan ed., 1958)
[hereinafter ARISTOTLE, POETICS].
13. Id. at 357; see also Thomas C. Galligan, Jr., The Tragedy in Torts, 5 CORNELL J.L. &
PUB. POL’Y 139, 141 (1996) ( “[Aristotle’s] . . . famous literary theory . . . [was] that [T]ragedy
effected a purification (catharsis) of the emotions of terror and pity that amounted to an experience of rebirth. The Greek tragedies, which originally formed a part of a religious festival, did
not necessarily present a factual account of historical events but were attempting to reveal a
more serious truth.”) (quoting K. ARMSTRONG, A CITY OF GOD 37 (1993)) (alterations in
[VOL. 48:309
Judges and lawyers in twentieth- and twenty-first-century jurisprudence employ tragic themes and rhetoric to support jurisprudential
decisions, and also to give energy to advocacy. Tragedy has a particular persuasive use and appeal in the court of law.
This Article studies three cases to show the ways in which judges
strive to use tragic imagery and language as a ballast for controversial
decisions. Sometimes courts are effective masters of these forms, and
sometimes they appear more overborne by tragic catharsis than adepts of their methods. Also, on account of the quality of the writing
and the delicacy of the facts, the decisions themselves will qualify as
works of Tragedy so high that they may elicit the same painful responses enumerated by Aristotle in his definition of this literary style.
A. Payne v. Tennessee14
The question before the Supreme Court in Payne concerned the
legality of introducing victim impact statements in death penalty proceedings. In the cases of Booth v. Maryland,15 and South Carolina v.
Gathers,16 the Court declared that such impact statements, and any
“statements made by a prosecutor to [a capital] sentencing jury regarding the personal qualities of the victim”17 were void under the
Eighth Amendment’s prohibition on “cruel and unusual punishment.”
The Court reasoned that the character, life, and agonies suffered by
the victim were unrelated to the defendant’s culpability (since he
would not necessarily have had any awareness of the good or bad
character of the victim), and beyond the defendant’s control.18 Moreover, such statements were also regarded as being too inflammatory,
and there was a fear on the part of the Court that they would have an
extraordinary influence on the jury.19
In Payne, the Court took occasion to revisit the issue of the introduction of these statements, and reversed its own decision. Perhaps
the Justices’ reasons for reconsidering Booth and Gathers are not so
difficult to fathom when one studies the astonishing and excruciating
14. 501 U.S. 808 (1991).
15. 482 U.S. 496 (1987).
16. 490 U.S. 805 (1989).
17. Payne, 501 U.S. at 818.
18. Booth, 482 U.S. at 504 (noting that statements introduce factors that might be “wholly
unrelated to the blameworthiness of a particular defendant.”).
19. Cf. Mann v. Oklahoma, 488 U.S. 877, 878 (1988) (Marshall, J., dissenting.) (“Photographic evidence of this sort seems no less inflammatory or prejudicial than the victim impact
statements deemed inadmissible in Booth v. Maryland . . . .”).
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facts of the case. On June 27, 1987, the Defendant, Pervis Tyrone
Payne entered the home of Charisse Christopher, and in an inebriated
state began to solicit this mother of two young children for sexual favors.20 When his victim was not forthcoming, Payne lost control and
attacked her, as well as her two children, two-year old Lacie, and
three-year old Nicholas, with a knife. Charisse and Lacey died after
being stabbed several times, but Nicholas, though penetrated with several knife wounds, survived.21 The prosecutor and the Court set forth
the horrors of that day with almost novelistic detail.
Chief Justice William Rehnquist described the scene as follows:
Payne passed the morning and early afternoon injecting cocaine and drinking beer . . . . Sometime around 3 p.m., Payne returned to the apartment complex, entered the Christophers’
apartment, and began making sexual advances toward Charisse.
Charisse resisted and Payne became violent. A neighbor who resided in the apartment directly beneath the Christophers heard
Charisse screaming, “‘Get out, get out,’ as if she were telling the
children to leave.” The noise briefly susbsided and then began,
“‘horribly loud.’” The neighbor called the police after she heard a
“blood curdling scream” from the Christopher’s [sic] apartment.
When the first police officer arrived at the scene, he immediately encountered Payne, who was leaving the apartment building,
so covered with blood that he appeared to be “‘sweating
blood.’” . . .
Inside the apartment, the police encountered a horrifying
scene. Blood covered the walls and floor throughout the unit.
Charisse and her children were lying on the floor in the kitchen.
Nicholas, despite several wounds inflicted by a butcher knife that
completely penetrated through his body from front to back, was still
breathing. Miraculously, he survived, but not until after undergoing
seven hours of surgery and a transfusion of 1,700 cc’s of blood—400
to 500 cc’s more than his estimated normal blood volume. Charisse
and Lacie were dead.
Charisse’s body was found on the kitchen floor on her back,
her legs fully extended. She had sustained [forty-two] direct knife
wounds and [forty-two] defensive wounds on her arms and hands
20. Payne, 501 U.S. at 812-13 (citations omitted).
21. Id.
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Lacie’s body was on the kitchen floor near her mother. She
had suffered stab wounds to the chest, abdomen, back, and head.
The murder weapon, a butcher knife, was found at her feet.22
What remains so striking about Payne is not just the holding, but
Chief Justice Rehnquist’s decision to render the facts in this powerful,
detailed, and extremely sympathetic manner. Payne did not have to
be written this way, and, indeed, the exceptional manner in which its
authors tell the story of Charisse’s and Lacey’s murders sets it apart
from the majority of other Supreme Court decisions where facts are
usually set forth in a far more sterile fashion—particularly when the
decision supports the rights of defendants.
In Coker v. Georgia,23 for example, the Court set forth the rule
that the death penalty could not serve as a legal punishment for the
“rape of an adult woman”24 as it violated the “cruel and unusual”
clause of the Eighth Amendment. Justice White, writing for the majority, set forth the case’s facts:
At approximately 11 o’clock that night, petitioner entered the house
of Allen and Elnita Carver through an unlocked kitchen door.
Threatening the couple with a “board,” he tied up Mr. Carver in the
bathroom, obtained a knife from the kitchen, and took Mr. Carver’s
money and the keys to the family car. Brandishing the knife and
saying “you know what’s going to happen to you if you try anything,
don’t you,” Carver then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him.
Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.25
Justice White writes about this attack in language that is not only
not novelistic, but also distinctly remote, sanitary, and unfeeling in the
extreme (“Mrs. Carver was unharmed.”). It is Chief Justice Burger,
dissenting, who comes closest to describing the dramatic features of
the rape (and then-Associate Justice Rehnquist, notably, joins this dissent) when he writes the following about one of Coker’s earlier rape
offenses: “After twice raping this sixteen-year-old victim, he stripped
her, severely beat her with a club and dragged her into a wooded area
where he left her for dead.”26
433 U.S. 584 (1977).
Id. at 592.
Id. at 587 (emphasis added).
Id. at 606 (Burger, C.J., dissenting).
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So why all the dramatic writing in Payne? The reason lies in the
fact that Chief Justice Rehnquist seeks an outcome that will circumscribe the rights of defendants and buttress the rights of victims and
their families at death penalty hearings—but I seek to focus on the
particularly effective use of tragic motifs in Chief Justice Rehnquist’s
prose, which elicits from its reader an Aristotelian catharsis. The
Payne opinion also resembles Shakespeare’s sublime tragic efforts,
through the voice of Shylock, to describe the human condition in such
painful and universal terms that we find ourselves unable to respond
with any equal refutation—and we may be reduced to the same stuttering reaction as Salerino and Solanio, who cannot respond to Shylock’s salvo with any kind of lucid counter argument.
As noted previously,27 what Tragedy seeks to accomplish—both
in law and in literature—is to describe, and present, the unanswerable—the ineffable. And the Justices occasionally use this literary
form (to the extent their writing ability enables them) as its own particular persuasive tool. When we read this rendering of Payne’s facts
and its legal conclusions, we might notice, if we are able to rip ourselves from the page, and “think like lawyers,” that we are no longer
dealing with logic problems, traditionally phrased public policy arguments, cost-benefit analyses, or stare decisis. Once we begin reacting
to Nicholas’s incredible survival and his mother’s blood-curdling
screams, the attractions of cold logic fade, and, indeed, may cease to
have any meaning. We are in the realm, not only of law, but of art.
We find ourselves within a High Tragedy.
A careful scan of Payne’s facts section reveals literary elements
that feel not like the sister cases Coker, or even Gregg v. Georgia,28
but instead like Macbeth and Beowolf—or even Bram Stoker’s Gothic
masterpiece, Dracula.29 Payne is limned not so much as a fellow
27. See supra Introduction and text accompanying note 12.
28. 428 U.S. 153 (1976). Though Gregg, which outlawed Georgia’s death penalty scheme,
does contain dramatic elements, it focuses on graphic details in a fashion that nowhere resembles
the art of Payne:
[T]he petitioner fired three shots and the two men fell near a ditch. The petitioner, at
close range, then fired a shot into the head of each. He robbed them of valuables and
drove away with Allen.
. . . [B]oth men had several bruises and abrasions about the face and head which
probably were sustained either from the fall into the ditch or from being dragged or
pushed along the embankment.
Id. at 159-60.
29. BEOWULF (Burton Raffel trans., 1999) ( n.d.); BRAM STOKER, DRACULA (2004) (1897);
note 9, at 858.
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human being, but more like a monster, for no humans are capable of
“sweating blood.” Moreover, Charisse’s screams, the literary-forensic
description of her body (“Charisse’s body was found on the kitchen
floor on her back, her legs fully extended.”),30 the representation of
blood on the walls, and of Nicholas’s agonizing half-alive state and his
“miraculous” recovery are all pitch-perfect novelistic or theater-like
description of horrors that the reader can barely believe are real.
As in the realm of literary Tragedy, there is no real answer to any
of this. Oedipus, in the famous eponymous play of Sophocles, reacts
at his own revelation that he killed his father and slept with his
mother31 with the repetitive guttural prayer:
Never again flood these eyes with your white radiance, oh
gods, my eyes.32
The character of Michael Corleone, when confronted by his
daughter’s death in Francis Ford Coppola’s The Godfather Part III,33
emits a silent, aching scream as he holds her body in his arms. And, as
stated, Shylock paints the picture of his tragic humanity in such powerful terms that his listener is stunned, then answers only in an idiot’s
stumbling slur.
This dazed, incoherent, and defenseless reaction proves the same
response that the majority in Payne evoked when it wrote in tragic
mood. Moreover, in their concurrences, Justices Sandra Day
O’Connor and David Souter appear to be struggling for the same
grand and powerful tone of Shakespeare’s The Merchant of Venice
when they describe dead victims in all their lost splendor, and in language that echoes Shylock’s celebration of his own humanity. “[Murder] transforms a living person with hopes, dreams, and fears into a
corpse, thereby taking away all that is special and unique about the
person,”34 Justice O’Connor wrote. Justice Souter, in a section that
uncannily resembles the quoted passage from The Merchant of Venice,
Just as defendants know that they are not faceless human ciphers,
they know that their victims are not valueless fungibles; and just as
30. Payne v. Tennessee, 501 U.S. 808, 812 (1991).
31. See infra notes 86-89 and accompanying text.
32. SOPHOCLES, OEDIPUS THE KING 77 (1978) (Stephen Berg & Diskin Clay trans.) [hereinafter SOPHOCLES, THE KING].
33. THE GODFATHER PART III (Paramount Pictures 1990).
34. Payne, 501 U.S. at 832 (O’Connor, J., concurring).
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defendants appreciate the web of relationships and dependencies in
which they live, they know that their victims are not human islands,
but individuals with parents or children, spouses or friends or
These Justices’ use of tragic conventions is more astonishing than
advocates’ use of them—for Tragedy is the criminal lawyer’s ancestral
weapon. Just as an example of the dramatic use of the facts made by
the prosecutor in Payne, consider the statements deemed admissible at
the defendant’s death penalty proceeding:
“But we do know that Nicholas was alive. And Nicholas was in
the same room. Nicholas was still conscious. His eyes were open.
He responded to the paramedics. He was able to follow their directions. He was able to hold his intestines in as he was carried to the
ambulance. So he knew what happened to his mother and baby
. . . No one will ever know about Lacie Joe because she never
had the chance to grow up. Her life was taken from her at the age
of two years old. So, no there won’t be a high school principal to
talk about Lacie Jo Christopher, and there won’t be anybody to
take her to her high school prom. And there won’t be anybody
there – there won’t be her mother there or Nicholas’ mother there
to kiss him at night. His mother will never kiss him good night or
pat him as he goes off to bed, or hold him and sing him a lullaby.”36
For the past six years, I have taught Payne in both my Criminal
Sentencing and Law and Literature classes at Loyola Law School in
Los Angeles, California, and there are days when I wish I had never
seen it at all. As usual when I analyze Payne, I begin crying, and I am
crying now after having quoted this last paragraph, and it would not
surprise me if others share my response.
That the Supreme Court in this 1991 decision permitted such
statements to be included in death penalty proceedings meant—in
terms of studying the connection between law and literature—that it
would allow High Tragedy into these hearings, in addition to its election to write in the tragic mode in its own opinions. As Aristotle
notes, one of Tragedy’s hallmarks is its ability to trigger a catharsis in
its audience, and if one feels catharsis at Oedipus Rex or MacBeth or
35. Id. at 838 (Souter, J., concurring). Compare this passage with Shylock’s speech in text
accompanying supra note 9.
36. Payne, 501 U.S. at 815-16 (quoting the prosecutor’s arguments in the death penalty proceedings) (second omission in original).
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La Boheme,37 imagine the absolute volcano of emotion that would
erupt at this speech on the part of the prosecutor. Perhaps we feel
that it is appropriate to undergo catharsis at a death penalty hearing in
a case such as Payne, as the ability to experience these immense emotions is an important, necessary, and sacred human gift. Yet, we
should also remember other figures in Tragedy, the magnificent and
terrible furies:38 When confronted with such speeches, perchance we
too will find ourselves tempted into the role of those screaming
witches, who attacked that famous matricide, Orestes, with red tooth
and claw; the similar passion modern readers may feel upon the reading of Payne may prove so great that it transcends the cooler genius
we demand of fact finders.39
Again, Tragedy is a part of jurisprudence, and is used to a specific
persuasive end. Its arguments are irrefutable, and it spurs us into cathartic, and very ardent, reactions.
B. Janus v. Tarasewicz40
Like Payne, the 1985 Janus decision qualifies as a work of Tragedy in and of itself, as it decides when a person murdered by cyanide
is truly “dead” for the purposes of determining the proper beneficiaries of a life insurance policy. In Janus, the phenomenon that was
37. GIACOMO PUCCINI, LA BOHEME (Ellen H. Bleier trans., Dover Publications 1962)
(1896); WILLIAM SHAKESPEARE, MACBETH, supra note 29; SOPHOCLES, OEDIPUS REX (WilliamAlan Landes ed., E.H. Plumptre trans., Players Press 1992) (n.d.).
38. The Furies exact a violent vengeance in Aeschylus’s trilogy, The Oresteia. Cf. Maria
Aristodemou, Classical Greek Themes in Contemporary Law: The Seduction of Mimesis: Theater
as Woman and the Play of Difference and Excess in Aeschylus’s Oresteia, 11 CARDOZO STUD. L.
& LITERATURE 1, 9 (1999) (considering the “relationship between justice and private vengeance,
the will of Zeus and the force of the old chthonian religion represented by the Furies: how did
the new assembly and law courts fit into the system of revenge and retribution?”); Marie
Adornetto Monahan, The Role of Women in the Development of the First Court of Justice, 25
CUMB. L. REV. 577, 597 (1994) (“[T]he Furies are horrific female goddesses whose purpose is to
avenge the murder of Clytemnestra. Their physically repulsive appearance represents the extremity of their political and ideological position, which is diametrically opposed to that of
Apollo. They are consumed by a savage spirit of revenge for Clytemnestra’s murder even
though it was sanctioned by a god—Apollo.”); William Joseph Wagner, The Pursuit of the Hunt,
Interrupted: Changing Literary Images of Law, 49 CATH. U. L. REV. 945, 947 (2000) (discussing
Aeschylus’s character Orestes, a mother-killer, whose “destruction by the Furies is the inexorable next step in the Atrean cycle of vengeance, guilt, and violence”).
39. This danger may be particularly apt in cases where we fear that racial prejudice also
helps sway the jury’s determination. See Furman v. Georgia 408 U.S. 238, 255 (1972) (striking
down a death penalty scheme because “[T]he discretion of judges and juries in imposing the
death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking in political clout, or if he is a member of a suspect
or unpopular minority, and saving those who by social position may be in a more protected
40. 482 N.E.2d 418 (Ill. App. Ct. 1985).
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visible in Payne—that of a court employing tragic devices to
strengthen a controversial argument—is not quite so clear, but if we
examine the text of the opinion, we are able to see how the Tragic
works a similar towering influence on the author. The specter of a
needless and gruesome death, which occurs in the most galling of circumstances, and the sympathy for the victims lead the court to define
death in a most expansive and controversial manner, using no other
persuasive support than the pathetic,41 unanswerable, and heroic impulse that we must hang on to precious human life at all costs. Moreover, the court is spurred to define life and death in so elastic a fashion
by the cathartic emotions that the facts of Janus arouse in us.
The facts in Janus are horrible; they involve the well-known spree
of the “prankster” who dosed various bottles containing Tylenol with
cyanide.42 On September 29, 1982, Stanley and Theresa Janus had
“recently returned from their honeymoon” when they were called to
the home of Stanley’s brother, Adam Janus, to mourn his death, which
had occurred only hours before. Adam was one of the first victims of
the Tylenol poisoning, but at that time no one yet knew where he
might have come into contact with cyanide.43 Suffering as they were
over this calamity, both Stanley and Theresa appeared to have been
experiencing headaches, and they went to Adam’s bathroom medicine
cabinet to get some analgesics for their pain. Seeing the pill bottle still
in the medicine cabinet:
Stanley and Theresa Janus unknowingly took some of the contaminated Tylenol. Soon afterwards, Stanley collapsed on the kitchen
Theresa was still standing when Diane O’Sullivan, a registered
nurse and a neighbor of Adam Janus, was called to the scene. Stanley’s pulse was weak so she began cardiopulmonary resuscitation
(CPR) on him. Within minutes, Theresa Janus began having
seizures. After paramedic teams began arriving, Ms. O’Sullivan
went into the living room to assist with Theresa. While she was
working on Theresa, Ms. O’Sullivan could hear Stanley’s “heavy
and labored breathing.” She believed that both Stanley and The-
41. I use this word with its Greek root, pathos, meaning “emotion, deep feeling” and “suffering,” in mind. See W.W. SKEAT, ETYMOLOGICAL DICTIONARY OF THE ENGLISH LANGUAGE
434 (1910).
42. Janus, 482 N.E.2d 418.
43. Id. at 419.
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resa died before they were taken to the ambulance, but she could
not tell who died first.44
A paramedic named Ronald Mahon arrived at approximately
5:45 p.m. and saw Theresa faint and go into a seizure; according to his
testimony, “her pupils did not respond to light, but she was breathing
on her own.”45 At 6:00 p.m., however, Stanley had “‘zero blood pressure, zero pulse, and zero respiration’”46—though Mahon also admitted that these times were “merely approximations.”47 At 5:55 p.m.,
another paramedic, Robert Lockhart, testified that Theresa was manifesting symptoms of “severe neurological dysfunction” and breathing
“four or five times a minute” before she stopped breathing on her
own altogether.48 Lockhart also stated that “when Theresa was
turned over to the hospital personnel [after the ambulance ride, she]
had a palpable pulse and blood pressure”—though she showed no visible vital signs when admitted to the hospital emergency room, and
hospital personnel had to help her heart to re-start.49 Finally:
While Theresa was in the intensive care unit, numerous entries in
her hospital records indicated that she had fixed and dilated pupils.
However, one entry made at 2:32 a.m. on September 30, 1982, indicated that a nurse apparently detected a minimal reaction to light in
Theresa’s right pupil but not in her left pupil.50
It is likely that this detection was erroneous; that day, hospital
personnel performed more tests to measure her brain function, but
discerned no responses.51 Consequently, the victim was pronounced
dead at 1:15 p.m. on October 1, 1982.52
A medical examiner, who never saw either Theresa or Stanley,
issued death certificates for them, listing Stanley’s date of death as
September 29, 1982 and Theresa’s as October 1, 1982.53 The Metropolitan Life Insurance Company accordingly paid the proceeds of
Stanley’s life insurance policy to Theresa’s father, Jan Tarasewicz, and
this is where the case of Janus begins to work its way through the
Id. at 419-20.
Id. at 420.
Janus, 482 N.E.2d at 421.
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courts.54 Alojza Janus, the mother of Stanley, sought to contest this
distribution, and her claim to the proceeds could only succeed if
“there [was] not sufficient evidence to prove that both victims did not
suffer brain death prior to their arrival at the hospital on September
29, 1982.”55
Consequently, the following questions were before the Court:
When is a person dead, and when is the evidence sufficient to prove
her death?
At first glance, the answers to these questions appear to depend
on refined legal categories, for “survivorship is a fact which must be
proved by a preponderance of the evidence by the party whose claim
depends upon survivorship,”56 and the earlier case In re Haymer57 had
set forth the definitions of death.58 Haymer construed death as “brain
death,” meaning an “irreversible cessation of total brain function.”59
The indicia of such cessation were held to be as follows:
(1) Unreceptivity and unresponsivity to intensely painful stimuli;
(2) no spontaneous movement or breathing for at least one hour;
(3) no blinking, no swallowing, and fixed and dilated pupils;
(4) flat electroenceph-alograms (EEG’s) taken twice within at least
a [twenty-four]-hour intervening period; and
(5) absence of drug intoxication or hypothermia.60
The court upheld the lower court’s conclusion that Theresa was
alive on September 29, 1982, yet how is that finding consistent with
logic? On that day, she could not breathe on her own; her vital signs
were non-existent when she entered the emergency room; and, except
for the (most likely) mistaken impression of one nurse, her pupils
were fixed and dilated. It would not be too hard for a tidy-minded
legal thinker to define a corpse as a body without vital signs and responses in the pupils, and whose heart must be started electronically.
It is true that Theresa’s heart was re-started, and that on September
30, 1982, her EEG “showed some delta waves of extremely low amplitude.”61 But even the court admits that experts say “a person can be
brain dead and still have a spontaneous pulse and blood pressure
Id. at 422 (citing In re Estate of Moran, 395 N.E.2d 579 (Ill. 1979)).
450 N.E.2d 940 (Ill. Ct. App. 1983).
Janus, 482 N.E.2d at 421.
Id. at 422; see also Haymer, 450 N.E.2d at 943.
Janus, 482 N.E.2d at 422 (quoting Haymer, 450 N.E.2d at 945 n.9).
Id. at 423.
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which is indirectly maintained by artificial respiration”62 and that the
“electrical activity measured by the EEG was ‘very likely’ the result of
interference from surrounding equipment in the intensive care unit.”63
It may be argued that the Janus court determined Theresa’s “life”
based on scientific criteria64 that do not have much resonance with lay
people—as few observing Theresa’s unresponsive form on a hospital
gurney would recognize a living being there. A far more lucid interpretation of this decision, however, discerns that the Janus court determined that Theresa survived after September 29, 1982 less out of
respect for definitions of life and death handed down by the medical
establishment, but rather more out of the fraught and eminently unanswerable desire to believe that life endures despite the dictates of rationality or chance (and again, like Salerino and Solanio, we may be
unequipped to muster a satisfactory rebuttal to their judgment).
That we are in the realm of High Tragedy when we read Janus is
additionally evident when we consider the last, and most contentious,
piece of evidence of Theresa’s continuance: that the nurse at 2:32 a.m.
recorded “a minimal reaction to light in Theresa’s right pupil.”65 The
court acknowledges the argument that “this evidence merely represents the subjective impression of a hospital staff member which is not
corroborated by any other instance where Theresa’s pupils reacted to
light,”66 but responds only with the assertion that “while these additional pieces of neurological data were by no means conclusive, they
were competent evidence which tended to support the trial’s court’s
finding, and which also tended to disprove the contention that these
tests merely verified that brain death had already taken place.”67 I
read this last statement as coming very close to a positive factual determination that Theresa Janus was in fact alive on September 29,
1982—and it is this faith on the part of the court that ushers us most
significantly into the tragic realm, where, as in literature, the rules of
hard logic are suspended, and the order of cathartic passions reign.
Moreover, analogies to Shakespeare’s tragedies continue to have
great resonance here—though the detail concerning the nurse’s erro62. Id.
63. Id. at 421 (citing the testimony of Dr. Kenneth Vatz, a neurologist on the hospital staff).
64. Haymer’s criteria were all or much influenced by the extant determinations of Harvard
medical scientists. See id. at 422 (citing Report of the Ad Hoc Committee of the Harvard Medical
School to Examine the Definition of Brain Death: A Definition of Irreversible Coma, 25 J. AM.
MED. ASS’N 337 (1968)).
65. Id. at 420.
66. Id. at 423.
67. Id. (emphasis added).
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neous diagnosis in pupil response refers us to a Tragedy other than the
Shylock speech in The Merchant of Venice. For now, we find ourselves
in the territory of King Lear.68
As the nurse and the court seek some small, unlikely flickering of
life in Theresa, so does Lear seek a similar sign in the corpse of
Recall the poor King’s last speech, as he holds the strangled girl
in his arms:
No, no, no life?
Why should a dog, a horse, a rat, have life
And thou no breath at all? Thou’lt come no more,
Never, never, never, never, never!—
Pray you, undo this button:—thank you sir.—[O, o, o, o]
Do you see this? Look on her—look, her lips—
Look there, look there! —[Dies]69
As King Lear dreams of some sign of breath on the lips of his
daughter before he passes away from grief, so too will we hope that
the nurse saw some flickering in the left eye of Theresa.
In both cases, it is our passions, and our agreement to follow the
irrefutable imperative that we hold onto life against the logic of death,
that guide us, and nothing else.
C. Oedipus Rex and Plessy v. Ferguson70
Plessy is yet another legal Tragedy, in three different manners.
Like Payne and Janus, it shares the hallmarks of that literary form, as
it is invested less in cogent legal argument than in cathartic emotions—here the rage caused by petitioner Plessy’s assault on the (at
the time, and from the perspective of the Court) unassailable and perfect human condition known as “White Supremacy.” Second, Plessy
presents itself to the twentieth- and twenty-first-century eye as a Tragedy in the plain meaning of the word, for it is evidence of the Court’s
bigotry and overwhelming, misused power, as well as proof of the invidious psychological effects of racism. More than that, however,
Plessy proves a fascinating subject for legal-literary study because it is
the nineteenth-century legal version of that most famous of all theatri68. WILLIAM SHAKESPEARE, KING LEAR, reprinted in COMPLETE WORKS
supra note 9, at 885.
69. Id. act 5, sc. 3, ll. 311-17.
70. 163 U.S. 537 (1896).
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cal tragedies Oedipus Rex in that both Plessy and Oedipus are men
who believe they know who they are until they consult the Oracle.
The facts of the decision are known to all of us. On June 7, 1982,
Plessy attempted to sit in “a first-class passage on the East Louisiana
Railway from New Orleans to Covington, in the same State, and
thereupon entered a passenger train, and took possession of a vacant
seat in a coach where passengers of the [W]hite race were accommodated.”71 Plessy, however, was of “seven-eighths Caucasian and oneeighth African blood.”72 This non-Caucasian “blood” was apparently
discernible to the train conductor, who told Plessy to sit in a coach
assigned “for persons not of the [W]hite race”73 under a Louisiana
statute mandating that there be separate railway accommodations for
the “[W]hite and colored races.”74 When Plessy refused, he was
ejected from the coach and imprisoned in a New Orleans jail;75 thereafter he brought a claim that the statute under which he was ejected
and arrested was unconstitutional under the Thirteenth Amendment,
as being a form of slavery and involuntary servitude, and under the
Fourteenth Amendment, as being an instrument of unequal
If the Plessy Court did not write this opinion with the intention to
make its readers feel pity for either the state or for the petitioner
Plessy, the opinion composes nevertheless an ukase that arouses both
fear and awe77—for we become aware of just how far the Court was
willing to go to preserve White power, and it depended upon cathartic
and (in 1896) irrefutable emotions as support for its dubious logic.
The Plessy court perceived the Louisiana segregation statute’s
aim of nourishing White purity as so unanswerable, it could barely
stammer out a response to Plessy’s argument that segregation imposes
a badge of servitude. “That [the statute] does not conflict with the
Thirteenth Amendment, which abolished slavery and involuntary servitude, except as punishment for crime, is too clear for argument,”78
71. Id. at 537.
72. Id. at 541.
73. Id. at 538.
74. Id. at 540.
75. Id. at 538-39.
76. Id. at 542.
77. See supra text accompanying note 12 (concerning Tragedy’s design to arouse pity and
fear and effect a pleasurable catharsis).
78. Plessy, 163 U.S. at 542.
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the Court asserted, taking care to proffer also the equally logic-free
tautology that:
A statute which implies merely a legal distinction between the
[W]hite and colored races—a distinction which is founded in the
color of the two races, and which must always exist so long as
[W]hite men are distinguished from the other race by color—has no
tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.79
Like in Payne and Janus—but far, far more disturbingly—the
Court relied upon a facet of human feeling that looms so large and
seems so self-evident that it subordinates any other reason. In Payne,
this phenomenon proved to be the basic human need to declare its
pain; in Janus, it amounted to the Lear-like desire to discern life in the
face of death. But in Plessy, we are confronted with the social appetite to subjugate others who are different from ourselves. And so, the
construct of “White purity” worked in 1896 (and, some would say,
continues to do so now) as powerfully and irrefutably as those other
tragic motives.
As for the specific evocation of cathartic emotion, Plessy does not
tug at the heartstrings in the same way that Payne and Janus do; in the
classical high tragic mode, those opinions do evoke distinct, excruciating feelings of pity, whereas the tone of Plessy is, again, slightly befuddled, remote, querulous, and hard-hearted: “Laws permitting, and
even requiring, [Blacks’] separation in places where they are liable to
be brought into contact, do not necessarily imply the inferiority of either race to the other,”80 the Court claims, astonishingly. Consider
also, the much less Shakespearean than double-speaking mood—a´ la
the robotic rhetoric of the State in Orwell’s 198481—of this riposte:
We consider the underlying fallacy of the plaintiff’s argument to
consist in the assumption that the enforced separation of the two
races stamps the colored race with a badge of inferiority. If this be
so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.82
Yet a volcanically cathartic emotion is present in Plessy, though it
is not named by the majority. The task of expressing this passion, as it
Id. at 543.
Id. at 544.
GEORGE ORWELL, 1984 (1950).
Plessy, 163 U.S. at 551.
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turns out, was Justice John Marshall Harlan’s, and he dispatched it in
his dissent:
What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than
state enactments, which in fact, proceed on the ground that colored
citizens are so inferior and degraded that they cannot be allowed to
sit in public coaches occupied by [W]hite citizens? That, as all will
admit, is the real meaning of such legislation as was enacted in
And so the first herald of Tragedy, being the elicitation of intense
emotion, was made explicit: Plessy was written out of and triggers cathartic emotion—hatred—just as King Lear or Romeo and Juliet84
arouse in us the feelings of love. Moreover, the employment of tragic
elements in Plessy is not used to achieve justice.85 This leads us to its
second qualification as a work of Tragedy: It remains an ignominious
example of state-sponsored racism and oppression.
Thirdly, there is a closer parallel to the classic Tragedy Oedipus
Rex in Plessy than to either King Lear, or Romeo and Juliet. And
when studied, this connection reveals not only the manner in which
legal opinions may serve themselves as forms of literary Tragedy, but
also the way in which Plessy is a re-interpretation of the most magnificent Tragedy ever written: Like Oedipus, the petitioner Plessy believes that he knows who he is, yet he is mistaken; and he will not
discover his true identity until he consults the Gods and the Oracle,
who inform him of a fate so shocking and horrible that he blinds himself so he will no longer see the truth.
The intersections between the Supreme Court case and the Sophocles play are many: For example, Oedipus Rex, like Plessy, is in some
fashion a legal drama, with Oedipus playing the High Sheriff who interrogates witnesses and suspects to discover the name of the killer of
Laius, the King of Thebes.
First, let us set forth the plot of Sophocles’ great play: Oedipus, a
young man from Corinth, enters the Kingdom of Thebes, whose king
has recently been killed by a band of robbers. Passing a critical test,
83. Id. at 560 (Harlan, J., dissenting).
SHAKESPEARE, supra note 9, at 245.
85. One of the arguments made in the “law and literature” movement is that the literary
voice in law will create decisions borne out of greater empathy and justice. See infra note 171.
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that of answering the Sphinx’s riddle,86 he is made the King of Thebes,
and marries Laius’s wife, Jocasta. Afterwards, a terrible plague scours
the city and hundreds are dying daily; Oedipus knows that the only
way to alleviate this suffering is to discover from the Oracle at Delphi
what price the Gods will exact in exchange for the lifting of this curse;
accordingly, he sends his brother-in-law, Creon, to Delphi, and Creon
returns with the news that Oedipus must discover and punish the
killer of Laius. Embarking upon a series of cross-examinations, he
questions the blind seer Tireseus, who after being abused by Oedipus,
informs the King that he is the killer he seeks, and so reveals the
ruler’s true identity. “Today is your mother and your father, Oedipus,”87 Tireseus declares—but, of course, Oedipus refuses to believe
him until he interrogates two shepherds, one from Corinth, and one
from Thebes. In turn, these two men inform him that the Corinthian
shepherd received Oedipus as a foundling from the Theban, who then
received the child from Jocasta, after the Queen had been ordered by
Laius to have their son killed by exposure to the elements on account
of a prediction that guaranteed Laius would die at the hands of his
son.88 In grief at this revelation, Jocasta commits suicide, and Oedipus
stabs his eyes so that he will never have to see his own foul countenance again; and thus, in great humility, his story ends.89
Thankfully, Plessy did not react to the news of the Oracle at the
District of Columbia in the way that Oedipus did, and yet we may be
sure that he digested the Court’s holdings with difficulty. Plessy, like
Oedipus, believed that he had self-knowledge. In his case, it appears
that he believed that he was White, and not Black, and thus one of his
primary arguments against being ejected from the New Orleans coach
did not rely upon a critique of invidious discrimination; rather, he argued that the conductor of the railway station had simply misinterpreted his race, and so wronged him: “Plessy declined and refused,
either by pleading or otherwise, to admit that he was in any sense or in
any proportion a colored man.”90 The Court, however, leaves Louisiana’s conclusion about Plessy’s race untouched, and consequently validates the conductor’s finding that Plessy was “colored” and thus
86. (What animal crawls in the morning, walks in the afternoon, and shuffles in the evening? A man.)
87. See SOPHOCLES, THE KING, supra note 32, at 43.
88. Id. at 67-77.
89. Id. at 80-83.
90. Plessy v. Ferguson, 163 U.S. 537, 539 (1896).
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It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a [W]hite
person, is one upon which there is a difference of opinion in the
different states; some holding that any visible admixture of [B]lack
blood stamps the person as belonging to the colored race . . . ;
others, that it depends upon the preponderance of blood . . . ; and
still others that the predominance of [W]hite blood must only be in
the proportion of three-fourths . . . . But these are questions to be
determined under the law of each state, and are not properly put in
issue in this case.91
Like in the case of Oedipus, the date of the Plessy decision was in
some ways the petitioner’s “mother and his father,” and therein lies
the nineteenth-century Tragedy, akin to the ancient tale. Additionally, we see more than a literary parallel here. We see also Tragedy in
Plessy because of the Court’s egregious abuse of its power, and its
absurdist efforts to maintain the hallucination of White racial purity in
all areas of the social sphere. And this calamity is only compounded
by what appears to be Plessy’s internalization of racism, in his keen
desire to have himself pronounced a member of the White race, which
could only have the effect of exacerbating the racial divide made so
wide by the Court in the first place. It is, in classical terms, one of
Plessy’s “tragic flaws.”
But finally—and to return to the literary connections we may
make between the play and the case—Plessy is a Tragedy, like Oedipus Rex, because it shows the horror of the unfathomable, and occasionally pitiless, divine powers that may be wielded over mere men.
Be the Supreme Court a panel of Oracles or Gods, they exercise a
force so terrible that we are even still feeling its reverberations more
than 200 years later. And like Sophocles, we do not always have faith
in the powers above: “First, [Sophocles] did not believe (or did not
always believe) that the [G]ods are in a human sense ‘just’; secondly,
he did not always believe that the [G]ods exist and that man should
revere them.”92
Whereas the emotion and dependence upon the unspeakable
were hallmarks of Tragedy in Payne and Janus that may evoke sympa91. Id. at 552 (citations omitted). The Court also went on to say that “Under the allegations
of his petition, it may undoubtedly become a question of importance whether, under the laws of
Louisiana, the petitioner belongs to the [W]hite or colored race,” Id., but I have found no evidence that the finding of the conductor was ever overturned.
92. E.R. Dodds, On Misunderstanding Oedipus Rex, in SOPHOCLES’ OEDIPUS REX 44
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thy for the underlying intuitions of those cases (if not for their holdings), the presence of these elements in Plessy demonstrates instead
how they can create a climate of fear and loathing. Perhaps it would
be best for our law not to resemble too much the great works of
Shakespeare or Sophocles. Like the dispatches from the Gods of
Tragedy, there is not always justice to be found in court opinions; it
might be better counsel to avoid evoking in our judges (or judging out
of) a too high emotion, or making decisions based upon that which is
unanswerable, out of terror of the judgments that may flow therefrom.
Aristotle defines this form as:
[A]n imitation of men worse than the average; worse . . . as regards
one particular kind [of fault, being] the Ridiculous, which is a species of the Ugly. The Ridiculous may be defined as a mistake or
deformity not productive of pain or harm to others; the mask, for
instance, that excited laughter, is something ugly and distorted without causing pain.93
When legal opinions carry the hallmarks of High Tragedy, they
persuade their readers and are informed by cathartic emotion and the
specter of human phenomenon that I have characterized as the “unanswerable,” or the “irrefutable.”
When Comedy is used in the legal realm, it may serve as an
equally potent tool for persuasion. As Hamlet confounds Polonius
with a wicked humor—the “Ridiculous” in Aristotelian terms94—so
that this spy will find himself unequipped to resist the Prince’s intrigues, humor may also be used to the same effect in a court of law.
More than that, that which is ridiculous or absurd may prove to be not
only the antithesis, but also the annihilation, of careful legal arguments, and all else that we deem of high seriousness as well. In The
Book of Laughter and Forgetting, for example, Milan Kundera writes
of the “laughter of the angels,” which he deems very serious, and potentially destructive.95 During a 1980 interview with the novelist
Philip Roth about his novel, Kundera explained his ideas on Comedy
and how they operate in his book:
93. ARISTOTLE, POETICS, supra note 12, at 347.
94. Id.
trans., 1994).
FORGETTING (Michael Henry Heim
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[M]an uses the same physiologic manifestations—laughter—to express two different metaphysical attitudes. Someone’s hat drops on
a coffin in a freshly dug grave, the funeral loses its meaning and
laughter is born. Two lovers race through the meadow, holding
hands, laughing. Their laughter has nothing to do with jokes or humor, it is the serious laughter of angels expressing their joy of being.
Both kinds of laughter belong among life’s pleasures, but when it
also denotes a dual apocalypse: the enthusiastic laughter of angelfanatics, who are so convinced of their world’s significance that they
are ready to hang anyone not sharing their joy. And the other
laughter, sounding from the opposite side, which proclaims that everything has become meaningless, that even funerals are ridiculous
and group sex a mere comical pantomime.96
A similar philosophy to Kundera’s may be found in Umberto
Eco’s The Name of the Rose, which hinges on the notion that laughter
is the one antidote to all that is profound and serious—even the awestriking specter of God Himself.97 In the The Name of the Rose, the
power of this laughter is deemed so severe that a diabolical monk
murders his brothers so that they will not find Aristotle’s famed lost
book on Comedy, which venerates laughter, as he fears that such a
license will put the Church in jeopardy.98 Eco writes, in the voice of
the The Name of the Rose’s misanthropic character, Jorge of Burgos:
“The spirit is serene when it contemplates the truth and takes
delight in good achieved, and truth and good are not to be laughed
at. This is why Christ did not laugh. Laughter foments doubt.”
“. . . Certainly one who accepts dangerous ideas can also appreciate the jesting of the ignorant man who laughs at the sole truth
one should know, which has already been said once and for all.
With his laughter the fool says in his heart, ‘Deus non est.’”99
If laughter has the power to render even the “sole truth” of the
existence of God vulnerable to the laughing man’s doubt (and, in the
case of Hamlet Prince of Denmark, we may also recall that Hamlet’s
wit renders Polonius vulnerable to murder), then it most certainly
could be a vigorous enough force to defuse the somber, mirthless, and
arrogant world of law. Laughter, indeed, proves a very effective, if
96. Interview by Philip Roth with Milan Kundera, entitled The Most Original Book of the
Season, Nov. 30, 1980, at 7, available at
97. See UMBERTO ECO, THE NAME OF THE ROSE (William Weaver trans., 1980).
98. See id.
99. Id. at 132.
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extremely sensitive, weapon in the courtroom, which can overwhelm
and backfire on the judge himself. Once we begin to regard an advocate or a judge as a self-important clown rather than a sage, all his
arguments may seem suddenly worthless; moreover, once we deem
any person worthy of derision, including members of protected classes, their standing to have their claims taken seriously becomes
Examples of these uses of Comedy—to astonish and baffle and
debunk—may be found in an analysis of the Federal Ninth Circuit
Judge Kozinski’s dissent in White v. Samsung Electronics America,
Inc.,100 Justice Scalia’s opinions in Lawrence v. Texas101 and Grutter v.
Bollinger,102 and Justice White’s decision in Bowers v. Hardwick.103
The 1964 New York decision People v. Lenny Bruce104 will also be
studied, showing an incident where the court is plagued by Comedy; in
an effort to crush a comic genius, the judge himself becomes the
A. Judge Kozinski’s Dissent in White, with Reference Also to the
Satires of Justice Scalia
In White, the Ninth Circuit reviewed a lower court decision upholding the eponymous game show hostess Vanna White’s claim
against Samsung for violating her right of publicity by “‘appropriating’ her ‘identity.’”105 She argued that Samsung’s parodic depiction of
her in a commercial transgressed her exclusive right to use her “name,
likeness, signature and voice for commercial purposes.”106
According to Judge Kozinski, writing in his dissent, the contested
commercial ran as follows:
Samsung ran an ad campaign promoting its consumer electronics. Each ad depicted a Samsung product and a humorous prediction: One showed a raw steak with the caption “Revealed to be
health food. 2010 A.D.” Another showed Morton Downey, Jr. in
front of an American flag with the caption “Presidential candidate.
100. 989 F.2d 1512 (9th Cir. 1993) (White II ).
101. 539 U.S. 558 (2003).
102. 539 U.S. 306 (2003).
103. 478 U.S. 186 (1986).
104. People v. Bruce (N.Y. Crim. Ct. 1964) at A30 (unpublished opinion), available at http:// (last visited June 18,
105. White II, 989 F.2d at 1514 (Kozinski, J., dissenting).
106. Id. (citing CAL. CIV. CODE § 3344(a); Eastwood v. Superior Court, 149 Cal. App. 3d
409, 417 (1983)).
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2008 A.D.” The ads were meant to convey—humorously—that
Samsung products would still be in use in twenty years from now.
The ad that spawned this litigation starred a robot dressed in a
wig, gown and jewelry reminiscent of Vanna White’s hair and dress
[in her role as a hostess on a gameshow Wheel of Fortune]. The caption read “Longest-running game show. 2012 A.D.” The gag here, I
take it, was that Samsung would still be around when White had
been replaced by a robot.107
The district court did not uphold White’s cause of action, reasoning that because Samsung had not used her likeness, name, voice, or
signature, it did not violate the aforementioned California right of
publicity.108 However, the Ninth Circuit reversed on the grounds that
to hold otherwise would permit predatory advertisers to use celebrities’ names or likenesses with impunity, and consequently eviscerate
their rights.109 Thereafter, the defendant appealed to a rehearing en
banc; this petition was denied.110 And it was to this denial that Judge
Kozinski wrote his searing and funny dissent.
Judge Kozinski was of the mind that the decision in White was
“bad law” because it conflicted with the Copyright Act and the Copyright Clause, and also raised some “serious First Amendment
problems.”111 In sum, he argued that the publicity right conveyed in
White was overbroad, in that it “decimate[d]”112 the Copyright Act’s
fair use exception and right to parody,113 and its permission to get “a
license to make a derivative work under 17 U.S.C. § 106(b).”114 He
contended also that the vast publicity right created by the panel violated the dormant Copyright Clause’s rule that “state intellectual
property laws can stand only so long as they [do not] ‘prejudice the
interests of other States’”;115 here, advertisements showing Vanna
White Robots that would be legal in Florida, for example, could now
be circumscribed by California judgments.116 And last, Judge Kozin107. Id.
108. White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992) (White I ).
109. Id. at 1399 (“We decline Samsung and Deutch’s invitation to permit the evisceration of
the common law right of publicity through means as facile as those in this case.”).
110. White II, 989 F.2d at 1512.
111. Id. at 1514 (Kozinski, J., dissenting).
112. Id. at 1518 (Kozinski, J., dissenting).
113. Id. at 1517 (Kozinski, J., dissenting) (“Copyright law specifically gives the world at large
the right to make ‘fair use’ parodies, parodies that [do not] borrow too much of the original.”)
(quoting Fisher v. Dees, 794 F.2d 432, 435 (9th Cir. 1986)).
114. Id. at 1518 (Kozinski, J., dissenting).
115. Id. (Kozinski, J., dissenting) (quoting Goldstein v. California, 412 U.S. 546, 558 (1973)).
116. See id.
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ski was disturbed by the First Amendment implications of the case, as
it would prevent artists, advertisers, and writers from “mocking” those
in power.117
Although Judge Kozinski’s colleagues on the Ninth Circuit panel
did not agree with these lines of reasoning, his arguments concerning
the Copyright Act, the dormant Copyright Clause, and the First
Amendment all have considerable persuasive force, as they are
grounded firmly in the federal law, Supreme Court precedent, and the
First Amendment’s general policy of protecting the exchange of ideas.
However, Judge Kozinski adds to his dissent’s ammunition—and not
just by citing a plethora of legal decisions, regulations, and federal
statutes. Rather, he supports his opinion with a caustic, sometimes
nasty, very hip, and occasionally truly humorous and unanswerable
And his gift for humor has been noticed by many of us in the
legal community. In January of 2000, for example, Judge Kozinski was
scheduled to appear at the University of Houston Law Center’s
Fourth Annual Houston Law Review Frankel Lecture Series, and in
the University’s news release, it was observed that “[Judge] Kozinski
is a brilliant public speaker noted for his searing wit. ‘(He) gets away
with a lot because he is so funny and charming,’ says a colleague.”118
In January of 2003, moreover, Judge Kozinski appeared at the University of Santa Barbara with defense counsel extraordinaire Gerry
Spence in a debate about the death penalty, during which Judge
Kozinski began to mock Spence in an effort to debunk his anti-death
penalty arguments:
As the debate progressed, the speakers took increasingly personal shots at each other. At an intense moment in the debate, during Spence’s final speech, Kozinski began mockingly bobbing and
weaving like a boxer, motioning for Spence to take a punch at him,
causing the audience great amusement. Spence immediately restored the seriousness of the debate with his response.
“I’m glad to see some levity brought to this debate, and I knew
that it would come from his honor,” Spence said. “Because this
matter is simply not funny.”119
117. Id. at 1519 (Kozinski, J., dissenting).
118. Judge Alex Kozinski to Address Legal Community at UH Law Center, U. HOUS. NEWS
RELEASE, Dec. 20, 1999,
119. Justin Scott & Missy Maynarich, Death Penalty Debate Revived, at DAILY NEXUS ONLINE, Jan. 28, 2003, at
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Yet, though Spence may have “immediately restored seriousness,” do we not suspect that there were more than a few audience
members still stifling giggles and cheering on Judge Kozinski during
the remainder of the debate?
Judge Kozinski’s use of humor has proved so effective that he has
been reprimanded in a newspaper for being too funny in Mattel, Inc. v.
MCA Records, Inc.120 In that opinion, Judge Kozinski wrote that “[i]f
this were a sci-fi melodrama, it might be called Speech-zilla meets
Trademark Kong.”121 Mark Lane, a columnist for the Cox News Service responded to Judge Kozinski’s colorful rhetoric as follows:
That’s what the judge wrote. Judge . . . Kozinski of the [Ninth]
Circuit Court of Appeals. I did not make up the quote. If I were
making it up, it would be called satire.
It doesn’t always work and it can be hurtful, but satire is one of
the cooler ways people explore ideas.
Sadly, our court system is not set up to figure when people are
just kidding. Law is based on painstakingly literal determinations of
meaning. “I was just pullin’ his leg, your honor,” is seldom a welladvised legal defense.122
In White, Judge Kozinski employs the same kind of Comedy; at
the beginning of the opinion, he unsheathes his wit to dazzle and confound his antagonists, much in the same way that he labored to befuddle Gerry Spence with shadow-boxing, and again, the way in which
Hamlet puts Polonius off guard with his zinging references to old
men’s hams.
Making fun of claimants to a vast right of publicity, he writes of
paranoid and pinchbeck celebrities, who hang themselves on their
own egos:
Saddam Hussein wants to keep advertisers from using his picture in
unflattering contexts . . . . Uri Geller thinks he should be paid for
ads showing psychics bending metal through telekinesis. Paul
Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see
purple when their creations are made fun of.123
120. 296 F.3d 894 (9th Cir. 2002).
121. Id. at 898.
122. Mark Lane, Courts’ Attempts at Humor Aren’t Funny, COX NEWS SERVICE, July 29,
123. White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 1512 (9th Cir. 1993) (White II)
(Kozinski, J., dissenting).
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This may not be high humor, but this writer is a winker and a
nudger who wants us to not only see the danger and First Amendment
muddle-headedness in White’s arguments, but also to laugh about just
how foolish its other proponents are. Embedded in the White dissent
is a seductive, in-joking, destabilizing humor of Hamlet’s ilk—but it
qualifies as another more modern example of vaudeville as well: It is
the ribaldry of the cool kid in high school, of Fonzie in Happy Days,124
or of Bill Maher, who, on the famously canceled television show Politically Incorrect with Bill Maher, persuaded his audience of his political
positions less through careful reasoning than by simply making very
good fun of his intellectual opponents.125
Comedy, then, is a tool that can be used to the same stunning and
persuasive ends as Tragedy, and Judge Kozinski’s brand of humor is
the weapon of the “in-crowd” kid and class clown who can make a
room full of students turn, very nastily, on the ugliest child in the
room through the power of just a few good jokes about his big nose or
rear end. Comedy used in this way is much rarer than Tragedy, however, because so few jurists have or display the gift of humor; in our
laughter-free profession, most who attempted Judge Kozinski’s “levity” would look like a dolt, or worse.
Should there be any questions concerning Judge Kozinski’s intention that we should laugh along, and so agree, with him, there is an
even more revealing paragraph in the White dissent, when the Judge
shows the absurdity of the too-generous right of publicity allocated by
his colleagues on the panel:
Consider how sweeping this new right is. What is it about the ad
that makes people think of White? [It is] not the robot’s wig,
clothes or jewelry; there must be ten million blond women (many of
them quasi-famous) who wear dresses and jewelry like White’s. [It
is] that the robot is posed near the “Wheel of Fortune” game board.
Remove the game board from the ad, and no one would think of
Vanna White. But once you include the game board, anybody
standing beside it—a brunette woman, a man wearing women’s
clothes, a monkey in a wig and gown—would evoke White’s image,
precisely the way the robot did.126
124. See Happy Days, at (last visited June 11,
125. See Politically Incorrect with Bill Maher, at
Politically%20Incorrect%20with%20Bill%20Maher (last visited June 12, 2004); Politically Incorrect with Bill Maher, at (last visited June 12,
126. White II, 989 F.2d at 1515.
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The invocation of the man in women’s clothes and the monkey in
a wig are classic figures of low Comedy, our favorite kind, according
to Aristotle, and as he evokes our memories of the comedian Milton
Burle and dressed-up monkeys,127 he encourages our agreement with
his position by seducing us with images of hairy legs sticking out of a
flowered skirt and a chimpanzee in a blond ponytail. Furthermore,
Judge Kozinski’s opinion itself shows a veneration for, and simultaneous revelation of, a burning desire to protect, the very kind of burlesque that he specializes in, the caustic and occasionally “hurtful”
“satire” so bemoaned by Mark Lane:128 “The last thing we need, the
last thing the First Amendment will tolerate, is a law that lets public
figures keep people from mocking them.”129
In the last analysis, Judge Kozinski’s humor is the “Comedy of
the cool,” and along with his razor-sharp legal mind, it is one of his
most powerful weapons on the bench; it is a way in which he may
hilariously humiliate and subordinate his antagonists. In the aforementioned case Mattel, Inc., for example, Mattel sued MCA for a parodic song about Barbie, and MCA countered with a defamation suit
for Mattel’s media characterizations of that company as bank robbers,
criminals, and thieves.130 Judge Kozinski addressed the mudslinging,
and determined that MCA had no claim; in so deciding, his now-famous last line was “[i]n context, all these terms are non-actionable
‘rhetorical hyperbole.’ The parties are advised to chill.”131
Judge Kozinski flirts with self parody here, but is also, one would
think, making intentional fun of himself at the same time that he decimates MCA, and so gives his decision an additional persuasive punch.
Yet if we may applaud such use of humor in the courtroom—for
it is such a dry place that laughter seems a refreshing change—this
kind of humor’s use as sophistic ammunition contains some dangers—
though, I contend, largely at this stage for liberals, as opposed to conservatives. Like in the case of the “in-crowd” kid who provokes the
class to rise against the ugly milksop, and the treacherous laughing
angels described by Milan Kundera, when we are tickled by judicial
use of Comedy, and get seduced by it, I contend that conservatives,
127. The poor dressed-up monkey seems to be a universal and persistent symbol that makes
us want to laugh. See, e.g., A Monkey in a Dress, (last visited June 18, 2004) as just as one of many examples in our popular culture.
128. See supra text accompanying note 122.
129. White II, 989 F.2d at 1519.
130. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).
131. Id. (emphasis added).
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like Judge Kozinski, may use their gift of humor so that progressive
liberals will find themselves at something of a disadvantage.
Is it true that conservatives are funnier than liberals?132 I have
not done a study, but the performance of Judge Kozinski does tell a
tale of conservative wit, and two performances of another somewhat
funny conservative jurist, Justice Scalia, may also serve as cases in
point here. In the recently decided Lawrence v. Texas,133 which overruled Bowers v. Hardwick’s 134 denial of a fundamental privacy right in
same-sex sexual intimacy, Justice Scalia writes a typically sarcastic dissenting opinion, noting:
[T]he [majority of the] Court makes the claim, again unsupported
by any citations, that “laws prohibiting sodomy do not seem to have
been enforced against consenting adults acting in private.” . . . The
key qualifier here is “acting in private.” . . . I do not know what
“acting in private” means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage.135
Similar caustic attempts at humor could be found at oral argument in Grutter v. Bollinger,136 where the Court struck down a Michigan affirmative action “point scheme,” wherein applicants who belong
to under-represented groups were given twenty points out of the onehundred needed for admission to the University of Michigan. During
oral argument, Maureen E. Mahoney, the attorney for the University
mentioned a study conducted by Professor of Education and Social
Policy Gary A. Orfield, in which a majority of Harvard and Michigan law students said that “students of different races” provide a
“clearly positive element of their educational experience.”
Scalia’s quick remark, “Sure, they’re already in,” evoked laughter from the courtroom audience.137
132. Josh Getlin, A New Age of Pundits, Politicos and Punch Lines: American Conservatives
Love Red Meat, Especially When Liberals Are on the Chopping Block, L.A. TIMES, Mar. 19,
1996, at E1 (“Beyond the satire of [Rush] Limbaugh and other commentators, the right has been
invigorated with publications like the American Spectator and the Standard. [P.J.] O’Rourke gets
stiff competition from other H.L. Mencken wannabes, and politicians like Bob Dole exercise
their own style of dark, personal humor. Through it all, William F. Buckley’s National Review
continues to skewer liberal Democrats with glee, making it the paterfamilias of conservative
FAT IDIOT AND OTHER OBSERVATIONS (1996) prove that some liberals are not inescapably dour
and earnest.
133. 539 U.S. 558 (2003).
134. 478 U.S. 186 (1986).
135. Lawrence, 539 U.S. at 597 (Scalia, J., dissenting).
136. 539 U.S. 306 (2003).
137. Jennifer L. Steinhardt, Supreme Court Hears Arguments in U. Michigan Case, U-WIRE,
Apr. 2, 2003,
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In both cases Justice Scalia, through the use of wit and laughter,
and his comedic depiction of his antagonists as ridiculous creatures,
showed the weak points in Justice Kennedy’s progressive Lawrence
reasoning, and buttressed his argument that the Michigan affirmative
action scheme should fall. I do not believe that Justice Scalia is a very
artful comedian, but he is regarded widely as having a talent for Comedy, and he used it with efficacy in these contexts.138 Justice Kennedy’s reversal of Bowers was a moral, if radical, act of constitutional
interpretation. The long tradition of the persecution of gays and lesbians could be seen as giving anti-sodomy laws the imprimatur of “tradition,” and Justice Scalia is moderately successful at demonstrating the
holes in the Kennedy opinion; it does not seem likely that the antisodomy laws failed because they were not enforced “in private.”
Moreover, Justice Scalia’s riposte during Michigan counsel Mahoney’s
reference to the defense-friendly study tore into its weakest point: It is
possible that White students, well-fed and satisfied with their swanky
collegiate appointments, would not feel as threatened by affirmative
action as those who stood outside the university doors.
In sum, Comedy does work as a persuasive tool, and in the courtroom, a baffling, witty, and slightly scary Hamlet lives. It is slightly
unnerving for liberals, however, to recognize that, for the moment at
least, his political persuasion veers to the right of center.
B. People v. Bruce139
The Bruce decision, where a New York trial court declared one of
Lenny Bruce’s comedy acts illegal under state obscenity laws, is somewhat similar to the Kozinski example: Here, again, the majority court
becomes the butt of a joke, but it is the citizens, and ensuing genera138. See Jennifer G. Hickey, Scalia: Supreme Court Jester: Justice Uses Humor to Pan Argument Constitution is a ‘Living Document,’ WORLDNET DAILY, Mar. 7, 2003, http://worldnetdaily.
com/news/printer-friendly.asp?ARTICLE_ID=31387; cf. Douglas W. Kmiec, Natural-Law
Originalism—or Why Justice Scalia (Almost) Gets it Right 20 HARV. J.L. & PUB. POL’Y 627, 628
(1997) (“Justice Scalia is a witty man . . . .”); Marybeth Herald, Closed Chambers and Closed
Minds: Some Snapshots Taken Inside the Supreme Court, 103 DICK. L. REV. 89, 105 (1998) (reviewing EDWARD LAZARUS, Closed Chambers: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC
STRUGGLES INSIDE THE SUPREME COURT (1998)) (recounting a description of Justice Scalia as
“witty, brilliant, and self-satisfied”); Russell Nieli, Women, Gays, and the Constitution: The
Grounds for Feminism and Gay Rights in Culture and Law, 44 AM. J. JURIS. 163, 167 (1999)
FOR FEMINISM AND GAY RIGHTS IN CULTURE AND LAW (1999)) (calling Justice Scalia “witty and
139. People v. Bruce (N.Y. Crim. Ct. 1964) (unpublished opinion), available at http://www. (last visited June 18, 2004).
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tions, who become the laughing audience. It is in this cathartic laughter that a new cultural and legal definition of obscenity is forged.
The story of Lenny Bruce is a sad one. In the 1950s and 1960s,
Bruce was regarded by the New York intelligentsia as one of the
bright lights of the comedic world. In what was a near-unanimity of
opinion, writers and critics of stand-up comedy considered Bruce’s irreverent attacks on sexuality, race, and politics as a “near genius” example of the comedic form.140
During these acts, Bruce would challenge prevailing notions of
obscenity by using the most outrageous language available, and would
also mimic sexual acts to defy conservative, puritanical prohibitions
on candid speech. It was in this affront to majoritarian morality—and
in Bruce’s fantastic, sadistic, misanthropic manic energies—that audiences and critics concluded that Bruce’s acts were not merely vulgar
pantomimes, but also hilarious and carefully crafted send-ups of mores that made him that era’s version of Samuel Johnson or Mark
The State of New York disagreed, however, and, in 1964, Bruce
was prosecuted for obscenity after delivering one of his infamous routines at New York’s Cafe´ a Go-Go nightclub.141 In this act and others,
Bruce did satirical and profane send-ups of such beloved figures as
Eleanor Roosevelt, Jacqueline Kennedy, and the Lone Ranger television series. It was for this disrespect of propriety that the prosecutor’s
office and the court discerned speech that may be suppressed as obscene, because it violated the prevailing Supreme Court obscenity
cases of Jacobellis v. Ohio142 and Roth v. United States.143
140. See infra note 150.
141. Jack Roth, Lenny Bruce Act Is Ruled Obscene, N.Y. TIMES, Nov. 5, 1964, at 47.
142. 378 U.S. 184 (1964).
143. 354 U.S. 476, 484 (1957). The test cited by the New York court does track both the Roth
and the Jacobellis tests, though the court’s application seems clearly misguided. See Debra D.
Burke, Cybersmut and the First Amendment: A Call for a New Obscenity Standard, 9 HARV. J.
LAW & TECH. 87, 99 (1996) (“In sum, Roth and its progeny defined obscenity as the coalescence
of three elements: ‘(a) the dominant theme of the material taken as a whole appeals to a prurient
interest in sex; (b) the material is patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual matters; and (c) the material is
utterly without redeeming social value.’ ”). The 1973 case of Miller v. California changed these
standards somewhat. See 413 U.S. 15, 24 (1973) (requiring a finding that “(a) . . . the ‘average
person, applying contemporary community standards’ would find that the work, taken as a
whole, appeals to the prurient interest; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work,
taken as a whole, lacks serious literary, artistic, political or scientific value”).
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With respect to the misapplication of the Roth and Jacobellis
standards,144 “[t]he dominant theme of the performances appealed to
the prurient interest and was patently offensive to the average person
in the community, as judged by present day standards. The performances were lacking in ‘redeeming social importance.’”145
In what way then is the court itself becoming the butt of a joke,
and so leading to a transformation of the law? It is easy to read Bruce
as a Tragedy, and not as a Comedy—in fact, it is difficult not to do so
now, as we know the end of Bruce’s story: After being convicted to
serve four months in a workhouse by the New York Court, Bruce
jumped bail and then died of a heroin overdose; at this point in his
career and his life, he was a broken man.146 Moreover, the New York
court’s finding of obscenity was in clear contravention of First
Amendment principles in its determination that Lenny Bruce’s work
was not lacking in social importance, redeeming or otherwise.147
Nevertheless, the unpublished document of Bruce itself proves an
unintentionally bizarre and funny exercise of the court’s slow-witted,
fearful, narrow-minded prejudice. And because of this, it has become
comical. For example, when providing proof of the performances’
144. See infra note 147.
145. People v. Bruce (N.Y. Crim. Ct. 1964) at A30 (unpublished opinion), available at http:// (last visited June 18,
146. Linda Kauffman, Girls Lean Back Everywhere: The Law of Obscenity and the Assault
on Genius, 11 CARDOZO ARTS & ENT. L.J. 765, 771 (1993) (reviewing EDWARD DE GRAZIA,
(1992)) (“The trials of Lenny Bruce are among the saddest in the book. His shows had been
stopped by police in San Francisco, Beverly Hills, Chicago, and New York, where the judge
sentenced him to four months in the workhouse. Hearing excerpts from his act, some juries
laughed out loud, but between 1961 and 1965, it became impossible for Bruce to earn his livelihood and pay his legal fees because clubs were afraid to book him. A three-member panel of
judges in New York convicted him for performing comedy shows containing obscene material.
One of those judges has since confessed that he wanted to cast the swing vote in Bruce’s favor,
but that the Chief Judge threatened to assign him to traffic court for the rest of his days if he did
so. De Grazia reports that Bruce had the naive faith to believe that if he could just ‘play the
Supreme Court’ he would be vindicated. Bruce subsequently jumped bail and later died of a
morphine overdose in 1966.”); see also MARTIN GARBUS, READY FOR THE DEFENSE 81-140
147. People v. Solomon, 255 N.E.2d 720 (N.Y. 1970) (affirming the reversal of the conviction
of Howard L. Solomon, Bruce’s codefendant and the owner of the nightclub at which Bruce gave
the performance leading to his arrest and conviction for obscenity, and finding that performance
by comedian Lenny Bruce was not obscene within the meaning of the Penal Law); People v.
Bruce, 202 N.E.2d 497 (Ill. 1964) (reversing Bruce’s conviction); John F. Wirenius, The Road Not
Taken: The Curse of Chaplinsky, 24 CAP. U. L. REV. 331, 356 (1995) (“Materials at common law
were repeatedly held proscribable as obscene despite lacking a sexual component, and Lenny
Bruce was prosecuted and convicted in New York (even after the Supreme Court redressed this
blurring in Roth and even further liberalized the standard in Jacobellis) . . . .”).
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“obscen[ity], indecen[cy], immoral[ity], and impur[ity]”148 the court
begins to describe in explicit detail just what qualifies the acts as obscene, and our conclusion of Bruce’s work as necessary and important
after Jacobellis and Roth is clarified by our responses to the court’s
account of them as worthless:
In the latter two performances, words such as “ass,” “balls,” cocksucker,” “cunt,” “fuck,” “mother fucker,” “piss,” “screw,” “shit,”
and “tits” were used about one hundred times in utter obscenity.
The monologues also contained anecdotes and reflections that were
similarly obscene. For example:
Eleanor Roosevelt and her display of “tits.”
Jacqueline Kennedy “hauling ass” at the moment of the late
President’s assassination.
St. Paul giving up “fucking.”
An accident victim — who lost a foot in the accident — who
made sexual advances to a nurse, while in the ambulance taking
him to the hospital.
“Uncle Willie” discussing the “apples” of a 12-year old girl.
Seemingly sexual intimacy with a chicken.
“Pissing in the sink” and “pissing from a building’s ledge.”
The verb “to come” with its obvious reference to sexual orgasm.
The reunited couple discussing adulteries committed during
their separation, and the suggestion of a wife’s denial of infidelity, even when discovered by her husband.
“Shoving” a funnel of hot lead “up one’s ass.”
The story dealing with the masked man, Tonto, and an unnatural sex act.
Mildred Babe Zaharias and the “dyke profile of 1939.”
During the first performance Bruce fondled the microphone stand
in a masturbatory fashion. In the second performance, while telling
of an act of exposure, Bruce turned his back to the audience and
moved his hand outward and upward from below his waist in an
obvious and crude pantomime of an act of exposure and
Within this description of Bruce’s acts, there are some references
that may make us uncomfortable—in particular, the evocation of child
sexual abuse and what appears to have been intended as an anti-lesbian epithet—but our reaction proves more complex than that. Who
148. Bruce (N.Y. Crim. Ct. 1964) at A30.
149. Id. at A29-A30 (citations omitted).
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now does not feel some sense of bemusement upon reading even the
first and second descriptions, and must not work to suppress a smile
upon reading section number three? By the end of the recitation,
many of us are inclined, in fact, to burst out into a loud guffaw at the
image of the “obvious and crude pantomime” of masturbation on
stage, as well as when we try to imagine Tonto engaging in his “unnatural sexual act.” The court, in its tight-lipped account of Bruce’s
“crimes,” emerges as the true object of fun—we imagine a shriveled,
humorless pedant hiding beneath his robes whom we would like to
laugh literally out of existence. Perhaps this was what the dissenting
judge means when he writes, with some vitriol:
Throughout the trial we heard much testimony from many sources
in an effort to ascertain the “contemporary community standards”
as to obscenity, as indeed the directives of higher courts required.
But in a total absence of any guideposts or other directives from
such higher courts, I fear we have proceeded not unlike an explorer
plunged into a vast uncharted virgin area in pursuit of a mirage or
some fabled lost golden city. In this quest, the time honored rules
of evidence proved to be something of a highly unsuitable incumbrance, and the judicial process revealed itself as a most limited and
inadequate, if not improper, tool for this task.150
The dissenting judge has emerged the victor in the appeal to People v. Bruce, as well as in the court of history. In the ensuing years
since the Bruce decision, Bruce has been acknowledged as the comedic genius that he was, and the overwhelming consensus is that his
Comedy does not and should not amount to obscenity under First
Amendment principles because of its literary and artistic merit.151
Both conservatives and liberals now regard the Bruce opinion as
a “joke” and Bruce himself as a hero for two reasons: First, because
he makes us laugh, and second, because the New York Bruce court
150. Id. at A33 (citations omitted); see also Erin J. Aubry, A Comedian Comes Clean on the
News, L.A. TIMES, Oct. 5, 1995, at F1 (“ ‘This country has only produced three comic geniuses–Mark Twain, Lenny Bruce, and Richard Pryor.’ ”) (quoting Dick Gregory); Paul Freeman, Frankly Speaking: The World According to Henry Rollins, on Disc, Stage, Page, CHI. TRIB.,
Oct. 9, 1994, at C26 (“ ‘In my opinion, Lenny Bruce is one of the greatest artists in the history of
America’. . . .”) (quoting Henry Rollins); Kurt Jacobsen, The Joker Who Loves to Hate—Andrew
Dice Clay, GUARDIAN (London), Jan. 24, 1991 (“Bruce was a genuine rebel genius who courted
punishment and mainstream rejection . . . .”); Ken Tucker, ‘Truth Hurts:’ Didja Ever Hear the
One About Sick-Humor Pioneer Lenny Bruce and His Battles with the Law? HBO’s Swear Tells
the Tale, ENT. WKLY., Aug. 13, 1999, at 57 (“Bruce was a persecuted genius. . . .”).
151. See supra notes 147, 150. For celebratory reviews of Bruce’s work, see also http://www. (last visited Oct. 4, 2004); http://www.freenetpages. (last visited Oct. 4, 2004).
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does too. And, these are two different forms of laughter. The first
conforms to Aristotle’s definitions of Comedy, in that we are amused
by that which is low and ugly and clownish—though Bruce is, in modern estimation, a savant and this aligns him also with Hamlet, who
makes us laugh and grimace with his savage in-jokes. The second
form of laughter, on the other hand, is somewhat different from that
which is triggered by Aristotelian Comedy—for though we now see
the court as a bumbler and a clown, the laughter that we enjoy, like
the tears we shed when confronted by Tragedy, is triggered by an angry, yet precise, attack that is, again, unanswerable: This laughter is
Kundera’s laughter of the angels,152 in that it is dangerous, and destructive, and seeks to annihilate this prejudicial court and what it did
to Bruce. It is a laughter of inarticulate rage and pain and dissent, as
well as a chortle at chickens and Eleanor Roosevelt.
And so these two kinds of laughter have defined what is legal.
Much in the same way that Justice Stewart in Jacobellis described obscenity as something he “kn[e]w[ ]” when he “s[aw],”153 here, we discern the virtues, and lack of obscenity, of Bruce’s work because it has
made us smile.
Comedy here, therefore, is not just a persuasive tool that courts
and advocates use to win their cases, but also defines legal and constitutional principles. When we are laughing at the bested Bruce court,
we are doing more than enjoying an old joke; in the same way that
Judge Kozinski seeks to dominate his colleagues on the bench, and
Hamlet aims to master his enemies, we are attempting to wrest control from a repressive government and return it to the people by reconfiguring the legal test for determining what is “patently offensive
to the average person in the community, as judged by present day
C. Bowers v. Hardwick155
In the famous 1986 case, where Justice White, writing for the
Court’s majority, held that “sodomy” was not a “fundamental right”
to be protected under the federal Constitution, we can see a most pernicious use of Comedy, employed to cast derision upon, and thus un152.
See supra note 96 and accompanying text.
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
Bruce (N.Y. Crim. Ct. 1964) at A30.
478 U.S. 186 (1986).
[VOL. 48:309
dermine, the claims of a sexual minority. We can, however, also see
the weakness of Comedy’s application to such dishonorable ends.
Bowers is not—and could never be argued to be—a funny opinion, in the way that Judge Kozinski’s dissertations are sly and humorous, or even in the blunt and gruff manner of Justice Scalia. Rather,
Justice White uses Comedy as a persuasive tool, not by exercising any
particular funny-man gifts that he may own, but instead by describing
gays and lesbians as so lacking in the requisite standing and gravitas
and dignity to make a constitutional claim, that they amount to figures
of hilarity. In short, Justice White asserts that the plight of gays and
lesbians is not to be taken seriously, because it is just funny.
The quotation that I refer to here is as terse as it is notorious.
Justice White noted that the Supreme Court would only designate certain rights as fundamental if they were “implicit in the concept of ordered liberty”156 and “deeply rooted in this Nation’s history and
tradition.”157 With respect to tradition, he was able to discover a longstanding American legacy of discrimination against gays and lesbians,
as well as modern persecutions in the form of the twenty-four states
that in 1986 persisted in keeping anti-sodomy laws in their criminal
codes.158 But Justice White did more than simply conclude from this
evidence that there was no support for the claim that same-sex intimacy deserved protection under the Constitution; he further degraded
the claim by writing: “Against this background, to claim that a right to
engage in such conduct is ‘deeply rooted in this nation’s history and
tradition’ or ‘implicit in the concept of ordered liberty’ is, at best,
Why write this way, we might ask? By calling the claim facetious—that is, funny, amusing, droll—Justice White worked to support
his conclusion not with cogent reasoning, but with the old instrument
of humor. As Aristotle notes, “Comedy is . . . an imitation of men
worse than the average . . . . [who are] Ridiculous and Ugly” and “distorted” but not “painful.”160 Aristotle’s observations are well borne
out by the history of American humor, where discrimination against
African Americans was fueled by the minstrel show,161 gender dis156.
Id. at 191 (citing Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
Id. (citing Moore v. East Cleveland, 431 U.S. 494, 503 (1977)).
Id. at 192-94.
Id. (emphasis added).
ARISTOTLE, POETICS, supra note 12, at 347 (1958).
Cf. Mark Sommer, Tribute to Jolson Brings Back an Anguished Debate over Blackface,
BUFFALO NEWS, July 10, 2002, at D1.
Howard Law Journal
crimination was justified by reference to the comic female termagant
or shrew,162 the Chinese were debased with the likes of Charlie
Chan,163 transvestites and trans-gendereds find their isolation from
civic life exacerbated by the manifold images of the hilarious dresswearing man,164 and gay men have been harassed with the comic figure of the queer.165
By calling the claim “facetious,” Justice White is not being funny
in the tradition of Hamlet, but is evoking our memory of such morbid
comedies about homosexuals, and his use of humor resembles the earlier-discussed use of Tragedy: The “hilarity” of the claim, and of gay
men and lesbians, is based on their supposed baseness, and lowness—
a value that one either believes in or not. Humor, like Tragedy, depends on the unanswerable: “They are ridiculous;” “their claims are
“Minstrelsy is a direct response to the observation of [B]lacks on the plantation . . . . In
the context of slavery, [W]hites totally distorted their observations for comic relief to
primarily [W]hite audiences, who bought into this notion that it was OK to imitate
[B]lack people inasmuch as they were considered less than human beings to begin with.
And out of that, beginning in the early [nineteenth] century, came the traditional comic
minstrel show.”
Id. (quoting James Pappas, co-chair of the University of Buffalo’s African American Studies
162. See, e.g., Beverly Boyd, Chaucer’s Audience and the Henpecked Husband, 12
FLORILEGIUM 177 (1993) (“The Wife of Bath’s personality, philosophy of sexuality, and attitude
toward sovereignty in marriage obviously are offered as [C]omedy.”), available at www.arts.uwo.
ca/florilegium/vol-xii/boyd.pdf (last visited July 10, 2004).
163. Edward M. Chen, The Judiciary, Diversity, and Justice for All, 10 ASIAN L.J. 127, 139
(2003) (“[B]eing the target of the all too familiar epithets ‘Chink’ and ‘Chinaman’ . . . dehumanized not only me as an individual, but also my family, my community, and my culture; living
under the weight of Asian stereotypes of yellow-faced caricatures like Charlie Chan, Bonanza’s
houseboy Hop Sing, and Fu Man Chu . . . .”); Virginia W. Wei, Asian Women and Employment
Discrimination: Using Intersectionality Theory to Address Title VII Claims Based on Combined
Factors of Race, Gender and National Origin, 37 B.C. L. REV. 771, 801 (1996) (“ ‘Asians were bit
players, extras with buck teeth and pigtails on TV shows like Bonanza and Kung Fu. We were
Charlie Chan, Mr. Moto, and Joe Jitsu . . . . We were not real, but cartoons and caricatures,
sideshows and servants, jokes in a Jack Nicholson movie and ciphers of the mainstream culture. . . .’ ”) (quoting Garrett Hongo, Introduction to THE OPEN BOAT: POEMS FROM ASIAN
AMERICA xxiii, xxiv (Garrett Hongo ed., 1993)).
164. Cf. Jillian Todd Weiss, The Gender Caste System: Identity, Privacy, and Heteronormativity, 10 L. & SEXUALITY 123, 141 (2001) (“Transsexual people are often considered mentally
unstable and/or sexually perverse. Exposure to gender variant people may be limited to a comic
drag queen on a television sitcom or a sensational tabloid story about the arrest or murder of
transvestite prostitutes.”); Anna Webb, Dr. Heidi Reeder, IDAHO STATESMAN, June 16, 2003, at
32 (“[A]nything dealing with transgendered issues is usually treated as a [C]omedy.”).
165. See cf. Tom McGeveran, Shmomo Erectus, N.Y. OBSERVER, Aug. 18, 2003, at 1 (“Is this
liberation, or is it stereotype? Is the current increase in gay visibility progress, or is it a retrograde throwback to the homosexual caricatures of the 1950’s, of a Nelly Nation of queens, hairdressers and interior decorators? Should we just all sit back and enjoy the show, as the
caricature of the aesthetically obsessed, sweet-smelling gay man joins the American ranks of the
non-threatening interloper: the funny little Jew, the tap-dancing Negro, and last year’s model,
the fumblingly illiterate Italian mobster—the lovable social misfits for a new age?”).
[VOL. 48:309
facetious;” “they are absurd.” This humor serves to debunk the claimant; it entitles her to no standing, no voice, no power.
Sometimes things that once were very funny are simply not any
more. After awhile, people no longer get the joke, and we begin to
hate or laugh at the authority which repressed it in the first place.
In this we can discern the hazard, to a jurist like Justice White, in
attempting to employ Comedy to gain support for a decision such as
Bowers. Once more, comic conventions prove difficult to master, and
the judge may lose control over this form.
Both the holding and the language employed in that case were so
obviously malicious that Justice White ran the risk it would not stand
“the test of time”166 because we would not want to be complicit in
such an ugly and sneering decision, which provoked so many people’s
rage.167 Moreover, Justice White’s jab proved a weak spot in the
Bowers decision, when it was reversed by the Kennedy decision in
Lawrence v. Texas.168 For Justice Anthony Kennedy’s description of
the constitutional disapproval of the State’s “demean[ing] of their existence [and] control[ling] their destiny” appears a salvo directed at
such smug nastiness as Justice White’s; in addition, so does his application of Planned Parenthood v. Casey’s169 description of liberty as “‘the
right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’”170 to the context of same-sex
intimacy, because he is insinuating that Justice White’s opinion violated those sacred principles.
166. See Anand Agneshwar, Ex-Justice Says He May Have Been Wrong: Powell on Sodomy,
NAT’L L.J., Nov. 5, 1990, at 3 (“Professor [Lawrence] Tribe, who said that the loss in Bowers has
been the most difficult high court defeat to justify, holds out hope that ultimately the decision
will not stand the test of time.”).
167. See Mary C. Dunlap, Gay Men and Lesbians Down by Law in the 1990’s USA: The
Continuing Toll of Bowers v. Hardwick, 24 GOLDEN GATE U. L. REV. 1, 14 (1994) (“The opinions against Hardwick’s position from the Justices themselves sound similar to anti-gay epithets,
albeit framed in legalisms. Justice White’s labeling of the privacy argument made in behalf of
Hardwick as ‘facetious,’ as well as [Justice] White’s slurring conflation of consensual, private,
non-commercial adult gay/lesbian sexual activity with ‘adultery, incest, and other sexual
crimes . . . committed in the home,’ constitute an act of verbal gay-bashing. . . .”); Robert F.
Nagel, Lies and Law, 22 HARV. J.L. & PUB. POL’Y 605, 608 (1999) (“[W]hen someone notices
the unusual way words are being used in constitutional law—as when Justice White characterized as facetious the argument that the right to engage in homosexual sodomy is ‘deeply rooted’
in American history—many sophisticated people react with indignation.”); Kenji Yoshino, Covering, 111 YALE L.J. 769, 783 (2002) (“[Justice] White’s opinion in Bowers . . . described the
claim that the constitutional right to privacy protected homosexual sodomy as ‘facetious,’ a characterization that would enrage the gay community for years to follow.”).
168. 539 U.S. 558 (2003).
169. 505 U.S. 833 (1992).
170. Lawrence, 539 U.S. at 574 (quoting Casey, 505 U.S. at 851).
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Nevertheless, Justice White’s sense of the comic did prevail for
nearly twenty years between Bowers and Lawrence, and was the status
quo for long before that. It would be wonderful to see humor used
only in the interests of equal justice, and like our modern reaction to
the court in the Bruce decision, we would like to employ the laughter
of the angels to debunk not the minority, but tyranny. Yet, of course,
this is not so; humor, like logic, passion, a photographic memory, a
genius for “framing the issue,” and Tragedy, proves only one of a
number of general instruments that lawyers and judges use every day
to win their cases.
The point of this Article is to reveal how Comedy, supposedly
limited to works of theater and literature, is used and bungled by
And so we see that Justice White, Justice Scalia, Judge Kozinski,
Hamlet, Lenny Bruce and his fans, are all brothers in this; they employ Comedy to prosecute their case. Using humor, they befuddle
and amuse, seduce and betray, convince, dazzle, define, and dominate
lawyers, judges, and the law.
The connection between law and literature has been made much
of,171 and our understanding of the ways that Tragedy and Comedy
171. There is a great deal of literature today on the Law and Literature movement. See, e.g.,
(1982); Law, Literature, and the Humanities: Panel Discussion, 63 U. CIN. L. REV. 387 (1994). A
number of anti-subordination scholars have hoped that the “literary voice” in law will help
achieve greater justice. See Mae Kuykendall, Resistance to Same-Sex Marriage as a Story About
Language: Linguistic Failure and the Priority of a Living Language, 34 HARV. C.R.-C.L. L. REV.
385, 398 n.50 (1999) (“[T]he poetry of Walt Whitman captures the idea of a democratic voice in
the sounds of the commonplace. Whitman wrote and lectured on the importance of an American voice embodied in the spirit of free people: ‘There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their supreme confidence in
themselves,—and lose their roughness and spirit of defiance.’ Retrospectives of the American
literary voice often remark on the intrusion of a rough voice challenging the gentlemanly conventions of Europe.”) (quoting WALT WHITMAN, WALT WHITMAN’S WORKSHOP 58 (Clinton
Joseph Furness ed., 1928)); Elizabeth Tobin, Law and Literature: Imagining the Mother’s Text:
Toni Morrison’s Beloved and Contemporary Law, 16 HARV. WOMEN’S L.J. 233, 272 (1993) (“The
literary work is only valuable in its relation to law if it is read alongside the ‘real’ as a way to
respond to the various narratives that both the legal and the literary voices provide. By listening
to mothers’ stories, we can begin to imagine their suffering and their healing.”); Lindsey MartinBowen, Comment, Words from a Teller of Tales: Can Storytelling Play an Effective Role in Feminist Jurisprudence?, 66 UMKC L. REV. 95, 123 (1997) (“Yet, long before the slave narratives
influenced the public, women’s literary voices called to the middle class. Many of those female
[VOL. 48:309
operate within legal opinions further blurs the distinction between
novels, plays, poems, and the “applied science” of law.172 There are
times when our jurisprudence does not flow from logic alone, or stare
decisis, natural law, liberalism, original intent, anti-subordination, or
the other manifold descriptions we have appended to the practice of
“thinking like a lawyer.” Rather, in certain instances, we prosecute
our cases and judge them out of cathartic emotion, or out of a sensation of the absurd, which, in both cases, leads us to make decisions,
not on fine legal distinctions, but on the more murky and transcendent
impulse toward the Unanswerable—being laughter and tears.
Shylock’s voice may be heard echoing in the court halls, as may
King Lear’s, when we are faced with facts that require us to acknowledge our own mortality, potential for evil, and, as in Plessy, ungovernable appetites for power. Hamlet’s ribaldry, moreover, proves a sharp
lance in the tourney that is judging and lawyering, as there are few
who will be able to defend themselves against the modern day jongleur-knight who rips his adversary’s dignity and arguments to shreds
with scabrous, angelic wit.
Legal scholars have argued that the literary voice is well-needed
in the law to achieve justice,173 and that we should make efforts to
further import this poetry into our profession. Yet, aside from the
observation that law is literature, we may also have a more hesitant
response to that recommendation, when we see how Tragedy and
Comedy may be used as a means to both progressive and backwardslooking ends. Literature may be a more complex and dangerous device than those theorists suppose, for there is no guarantee that a literary-minded lawyer or judge will execute justice—merely that, if they
are good literary artists, they will have a prodigious weapon at their
But, at the same time, we remain much impressed with the tragic
and comic elements of our law, our judging, and our lawyering. Who
does not groan at the fate of the victims in Payne and in Janus, or
writers would be termed feminists today because, like contemporary feminists, they expounded
themes that cracked society’s molds for women.”).
highly significant that medicine and art were omitted from the liberal arts by Martianus
[Capella] and hence from the arts faculties by the high medieval universities and even our modern liberal arts colleges. Like Augustine, Martianus argued that medicine and law were not
‘liberal’ studies because they were concerned with ‘earthly’ things—or, as we would say [today],
they were applied, not pure, sciences.”).
173. See supra note 171.
Howard Law Journal
desire to access the might of Kundera’s angels, and laugh tyrants out
of power in Bruce?
In the end, the literary gift is beautiful and seductive, though not
one that can be used with equal force by all. As with the other weapons we exploit in the legal realm, the question becomes what will we
do with its considerable power.
[VOL. 48:309
Freedom Now!—Race Consciousness and
the Work of De-Colonization Today
¨ OK
¨ *
We saw neither the end of racism nor the end of history in the last
decade of the twentieth century.1 Conditions in American law and
society clearly differ now from a century ago when W.E.B. Du Bois
declared that the problem of the twentieth century was the problem of
the color line.2 They differ from when Charles Hamilton Houston and
William Henry Hastie were active as lawyers and change agents between the 1920s and the 1950s.3 They differ also from when Derrick
Bell published the first edition of his Race, Racism and American Law
treatise some thirty years ago.4
* Copyright  John Hayakawa TO¨ rO¨ k, 2004. All Rights Reserved. Doctoral Candidate,
Department of Ethnic Studies, University of California, Berkeley. J.D. 1991 C.U.N.Y. Law
School. As their former student, I dedicate this Article to the memory of C.U.N.Y. Law School
Dean Haywood Burns and Visiting Professors Denise Carty-Bennia (Northeastern) and Kellis
Parker (Columbia). I thank Bettina Scholdan for a critique. I thank Rehan Ansari, Mark Engler, Michele Goodwin, Allynnore Jen, Thomas Joo, Susan Kuo, George Morris, Gary Okihiro,
Lia Scott Price, Reginald Robinson, Fatima Rizvi, Sakina Rizvi, Jean-Marc Troadec, David
Wang, Phil Weichert, Frank Wu, and Rosslyn Wuchinich for conversation, comments, and assistance. Last, but not least, I thank my editor, Tameka N. Simmons.
1. See Vernillia R. Randall, Race, Racism and American Law Webpage, at http://academic. (last visited Feb. 1, 2004). See generally DINESH D’SOUZA, THE END OF RACISM: PRINCIPLES FOR A MULTICULTURAL SOCIETY (1995); FRANCIS FUKUYAMA, THE END OF
2. W.E.B. DU BOIS, THE SOULS OF BLACK FOLK xi (Henry Louis Gates Jr. & Terri Hume
Oliver eds., Signet Classic ed. 1982) (1903). For example, racial segregation is no longer the law
of the land and women now have the right to vote. See EVELYN NAKANO GLENN, UNEQUAL
STRUGGLE FOR CIVIL RIGHTS (1983); GILBERT WARE, WILLIAM HASTIE: GRACE UNDER PRESSURE (1984). Their life work is discussed infra notes 197-229, and accompanying text.
RACE, RACISM AND AMERICAN LAW]. The White backlash to race-based affirmative action, for
example, was not yet organized as it is today.
2004 Vol. 48 No. 1
Howard Law Journal
Nonetheless, we have not yet achieved racial justice in the United
States. While the legality of the racial subordination that Houston
and Hastie challenged has abated, work to address the embedded
character of American racism remains.5 The movement for reparations for slavery is one current racial justice initiative.6 Moreover,
given current American imperial overstretch,7 the idea of a clash of
civilizations merits rigid scrutiny by American anti-racist activist intellectuals.8 We are fortunate that we can draw on an established African American tradition of critique that links domestic and global
BLACK AMERICANS, U.S. TERRAIN (Wahneema Lubiano ed., 1998) (discussing how White
supremacy operates in coded quasi-respectable forms); JODY DAVID ARMOUR, NEGROPHOBIA
(1998) (discussing continuing housing discrimination resulting in high rates of African American
residential segregation and the effects thereof);
6. Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations, 40 B.C. L. REV. 429 (1998); National Coalition of Blacks for Reparations in America,
National Coalition of Blacks for Reparations in America Homepage, at (last
visited Sept. 21, 2004).
7. MICHAEL HARDT & ANTONIO NEGRI, EMPIRE (2000) (discussing the shift from “modern” European imperialisms to the “postmodern” twentieth century “empire” that draws on
U.S. constitutionalism and traditions of expanding frontiers and hybrid identities, and implications of this shift for White left praxis); CHALMERS JOHNSON, THE SORROWS OF EMPIRE: MILITARISM, SECRECY AND THE END OF THE REPUBLIC (2004) (describing the over 725 American
military bases that existed outside the United States in September 2001 as a pure manifestation
of militarism and imperialism, and their effects on U.S. foreign policy);
8. See HARDT & NEGRI, supra note 7, at 190-95 (discussing imperial racism); SAMUEL P.
(1996). A new work requiring critical scrutiny is: SAMUEL P. HUNTINGTON, WHO ARE WE?:
THE CHALLENGES TO AMERICA’S IDENTITY (2004). Huntington’s student Fareed Zakaria may
be read as arguing that despotism often works, and democracy is too good, for colored people.
See Niall Ferguson, “The Future of Freedom”: Overdoing Democracy, N.Y. TIMES, Apr. 13, 2003
AND ABROAD (1st ed. 2003)).
9. PENNY M. VON ESCHEN, RACE AGAINST EMPIRE: BLACK AMERICANS AND ANTICOLONIALISM, 1937-1957 (1997) (discussing African American anti-colonial critique of U.S.
WITH HAITI, 1776-1891 (1941) (arguing U.S. sixty-year failure to recognize Haiti, the first free
independent Black republic that was hostile to slavery and contested Euro-American global
power, resulted from U.S. policymakers racism); BRENDA GAYLE PLUMMER, RISING WIND:
BLACK AMERICANS AND U.S. FOREIGN AFFAIRS, 1935-1960 (1996) (discussing how African
American intellectuals and journalists linked domestic and global racism in analyzing foreign
affairs); J. Clay Smith, Jr., United States Foreign Policy and Goler Teal Butcher, 37 HOW. L.J. 139
(1994) (discussing life work of Howard law professor international law/Africa specialist and activist); see also Robin D.G. Kelley, “But a Local Phase of a World Problem”: Black History’s
Global Vision, 1883-1950, 86 J. AM. HIST. 1045 (1999) [hereinafter Kelley, Black History’s
[VOL. 48:351
Freedom Now!
The following Speech10 was the opening presentation at the 2003
Critical Race Theory Workshop (CRTW).11 I wrote and gave it as a
response to my panel’s title: Race-Consciousness: Progressive Tool or
Outmoded Instrument?12 I wrote this preface later to give readers
who have not participated in the movement or read the Critical Race
Theory (CRT) literature some context.13 The preface also extrapolates some of the ideas that were implicit in the Speech as given. In
the Speech, I sought both to re-examine the life work of Houston and
Hastie through the lens of a leftist Black Nationalism, and to give a
reading of contemporary world events through that same lens. I later
realized that the Speech itself was an exercise in progressive race
Whether race consciousness is a progressive tool, of course, depends on how it is defined.14 Some critical race theorists are questioning the efficacy of race consciousness15 to our collective antiGlobal Vision ] (arguing that the race consciousness of early Black historians framed their global
perspective on Black history from the origins of the discipline).
10. See infra notes 146-276 and accompanying text. This Article thus follows a tradition of
CRT authors who have broken form. See Linda S. Greene, Breaking Form, 44 STAN. L. REV.
11. For background on and the early literature of the CRT movement, see CRITICAL RACE
(Richard Delgado ed., 1995) [hereinafter CUTTING EDGE I]; CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado & Jean Stefancic eds., 2d ed. 2000) [hereinafter CUTTING EDGE
Crenshaw et al. eds., 1995) [hereinafter KEY WRITINGS]; Richard Delgado & Jean Stefancic,
Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993); Angela Harris,
Foreword to the Jurisprudence of Reconstruction, 82 CAL. L. REV. 741 (1994); Stephanie L. Phillips, The Convergence of the Critical Race Theory Workshop with LatCrit Theory: A History, 53
MIAMI L. REV. 1247 (1999).
12. For an example of early “critical race” consciousness, see A HUBERT HARRISON
READER (Jeffrey B. Perry ed., 2001) [hereinafter PERRY] (discussing the “father of Harlem
13. I note at the outset that I share the anti-essentialist understanding of races and racisms,
as well as other social formations. See Angela P. Harris, Race and Essentialism in Feminist Legal
Theory, 42 STAN. L. REV. 581 (1990).
14. For example, Alain Locke, the “leader of the Harlem Renaissance,” used “race-consciousness” to mean what we would today call Black transnationalism. Michael Hanchard, Acts
of Misrecognition: Transnational Black Politics, Anti-imperialism and the Ethnocentrisms of
Pierre Bourdieu and Loic Wacquant, 20:4 THEORY, CULTURE & SOC’Y 5, 18-19 (2003) [hereinafter Hanchard, Acts of Misrecognition] (citing ALAIN LOCKE, THE NEW NEGRO (1925)); Michael
Hanchard, Afro-Modernity: Temporality, Politics and the African Diaspora, 11:1 PUB. CULTURE
245, 257-59 (1999) [hereinafter Hanchard, Afro-Modernity] (discussing transnational “New Negro” concept).
15. I believe theirs is a critique of a philosophically unsophisticated and, in contemporary
multicultural democracy, politically short-sighted Black nationalist ideology. Cf. PAUL GILROY,
Said, The Poverty of Nationalism, PROGRESSIVE, Mar. 1998, at 27 (critiquing Palestinian
Howard Law Journal
subordination project.16 I understand that the 2003 CRTW organizers
had this internal critique in mind when they named the first panel.17
Nevertheless, deconstructing American race consciousness was always
part of CRT’s work.18
My argument in this Article is not that all race consciousness is
progressive.19 Rather, I argue that since a progressive variety can be
identified, race consciousness as such is not an outmoded instrument.20 I submit that anti-colonial, anti-subordination race consciousness remains a progressive tool. I denominate21 this post-colonial race
I contend, fundamentally, that CRT and its theoretical progeny
build on a progressive history of race consciousness. This tradition
centers on work for justice and equality both domestically and internationally.23 We should spotlight this illuminating tradition in CRT.
It can inspire us for our present and future anti-subordination work.24
16. Professors Reginald Robinson, christi cunningham, and Alex Johnson are the critical
legal scholars associated with this move. My view is that non-White race consciousness is primarily a weapon against White supremacy and White privilege. It can be crafted in the form of a
scalpel, as a sledgehammer, or anything in between. Through the internal critique of race consciousness, we re-craft this tool for the next stage of struggle. See generally BELL, PERMANENCE
OF RACISM, supra note 5.
17. The organizers of the 2003 Workshop, Professors Darren Hutchinson, Pamela Bridgewater, and Leti Volpp of the American University, Washington College of Law, and Professor
Devon Carbado of the U.C.L.A. School of Law, deserve our gratitude.
18. CRT thus furthered a radical critique of the liberal civil rights paradigm. HERBERT H.
HAINES, BLACK RADICALS AND THE CIVIL RIGHTS MAINSTREAM, 1954-1970 (1988); KEY WRITINGS, supra note 11, at xiv-xvii, xix.
19. White supremacy is both a variety of race consciousness and an ideology, and is not
White race consciousness can be progressive. CRITICAL WHITE STUDIES: LOOKING BEHIND THE
MIRROR (Richard Delgado & Jean Stefancic eds., 1997).
20. While I use Black race consciousness to make my argument, I am also not arguing that
every variety of Black race consciousness is progressive.
21. I define this variety of race consciousness in this Article based on an examination of
anti-colonial Black critical social thought, discussed infra notes 66-70 and accompanying text.
The critical social thought of non-Black racial “minorities” could also be used to define it.
22. Like other “posts,” the “colonial” in global power relations, and international and domestic subordination, is constantly being deconstructed and reconstituted. Cf. BELL, PERMANENCE OF RACISM, supra note 5.
23. It builds on the historical analysis linking domestic and global racism, see supra note 9,
and on Black anti-colonial thought, see infra notes 66-70 and accompanying text.
24. At the time I wrote the Speech, I was unaware of ROBIN D.G. KELLEY, FREEDOM
I now realize the project of my Speech, to highlight and reinterpret some rather obscured history
about Black race radicals was, except for my emphasis on cause lawyering and the related organizing, somewhat similar to Kelley’s. See generally CAUSE LAWYERING – POLITICAL COMMITMENT AND PROFESSIONAL RESPONSIBILITIES (Austin Sarat & Stuart Scheingold eds., 1998)
[hereinafter CAUSE LAWYERING].
[VOL. 48:351
Freedom Now!
A. CRT and Other Race-Conscious Critical Legal Theory
Unlike the Frankfurt School in its early years, CRT never had a
wealthy patron to finance its institutionalization and support the development of its theoretical literature.25 Notwithstanding this constraint, CRT and its progeny are clearly productive critical intellectual
movements in legal theory.26 In writing an account of this critical legal intellectual movement,27 “I am simply carrying on a tradition, trying to write and live the story of our struggle, creating a history that
has already created me, seeking to keep the faith.”28
In 1989, thirty-five law scholars responded to a call to synthesize
a theory responsive to the realities of U.S. racial politics29 and
grounded in critical theory.30 To advance anti-subordination raceconscious legal thought, and as the first active phase of the CRT
movement, nine invitational CRT workshops and two public conferences were organized between 1989 and 1997.31 In jurisprudential
terms, CRT encompasses analytical and normative components: respectively, analysis of what was or is, and discussion of what should
26. See infra notes 29-55.
27. CRT and progeny are evolving. The following account only sketches these critical theory movements. CRT’s founders acknowledge an intellectual and political debt to Critical Legal
AMERICA xxii-xxiii (1981) [hereinafter HARDING, RIVER].
29. While CRT began as a U.S.-based legal intellectual movement, it is increasingly transnational. See Ibrahim J. Gassama, Transnational Critical Race Scholarship: Transcending Ethnic
and National Chauvinism in the Era of Globalization, 5 MICH. J. RACE & L. 133 (1999); Hope
Lewis, Reflections on ‘BlackCrit Theory’: Human Rights, 45 VILL. L. REV. 1075 (2000); Proceedings of the Canadian Critical Race Theory Conference 2003: Pedagogy and Practice, May 2-4,
2003, at (last visited May 9, 2003).
30. KEY WRITINGS, supra note 11, at xxvii. See generally
online.html (last visited Feb. 1, 2004) (U.C. Irvine Critical Theory Resource).
31. CUTTING EDGE I, supra note 11; KEY WRITINGS, supra note 11. CRT is an oppositional
movement. See generally HARDING, RIVER, supra note 28, at xx (arguing the “central theme of
[B]lack history in the United States [is] . . . the active [B]lack struggle for freedom and justice”);
Jerome Karabel, Towards a Theory of Intellectuals and Politics, 25 THEORY & SOC’Y 205 (1996)
(arguing that what needs explanation is not the accommodation of intellectuals to the status quo
but what causes them to rebel at particular places and historical moments).
Howard Law Journal
be. CRT’s praxis component32 is activism—the idea being that analysis should not lead to paralysis.33
The CRT Workshop met annually between 1989 and 1997. It always included African American, Asian American, and Latina/o critical legal scholars. Later on it included Native Americans.34 Centering
Black35 critical social thought36 as we began the 2003 Workshop
seemed proper following a debate at and after the 1998 LatCrit conference37 on Black consciousness in critical legal theory.38 For CRTW
2003, it seemed that a “thicker description” of historical Black race
32. Angela Y. Davis states that praxis “charges lawyers and legal academics with the awesome task of translating complicated theoretical relationships among these [gender, class, sexuality, race] categories into transformative legal practice.” Foreword to GLOBAL CRITICAL RACE
FEMINISM: AN INTERNATIONAL GUIDE xii (Adrien Katherine Wing ed., 2000) (praxis can include
coalition-building, board memberships, speeches, and writing) [hereinafter GLOBAL CRITICAL
33. See generally KEY WRITINGS, supra note 11. I first heard this turn of phrase from Haywood Burns.
34. Phillips, supra note 11, at 1254 n.19.
35. I share the view that African Americans are a cultural group and thus require denotation as a proper noun. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1710 n.3
(1993) (citation omitted). The move here is from an “African American” identity bounded by
the nation-state to a transnational “Black” identity.” Cf. Michael Hanchard, Identity, Meaning
and the African American, 24 SOC. TEXT 31, 39 (1990) (“It is imperative that progressive political
and cultural movements by [B]lacks in this country reject the idea of America as the United
States. For to accept that definition, with its self-selected borders and dominions, is to impoverish a political and cultural heritage to which [B]lacks from the Caribbean and Latin America
have made important contributions.”).
uses the term “Afro-American,” but I use “Black,” because the former term is also limited by
the borders of the American nation-state. See THE BEST FROM THE BLACK SCHOLAR: CONTEMPORARY BLACK THOUGHT (Robert Chisman & Nathan Hare eds. 1973). Cf. BLACK FEMINIST
THOUGHT 22 (Patricia Hill Collins ed., 1991) [hereinafter BLACK FEMINIST THOUGHT] (defining
Black feminist theorizing).
37. For information on LatCrit conferences, see LatCrit & University of Miami School of
Law, LatCrit Website, at (last visited June 2, 2003).
38. From RaceCrit to LatCrit to BlackCrit? Exploring Critical Race Theory Beyond and
Within the Black-White Paradigm, Moderated Focus Group Discussion, LatCrit III, Comparative
Latinas/os: Identity, Law and Policy in LatCrit Theory, May 9, 1998, Miami, Florida (conference
materials on file with author); see Athena D. Mutua, Shifting Bottoms and Rotating Centers:
Reflections on LatCrit III and the Black/White Paradigm, 53 MIAMI L. REV. 1177 (1999) (discussing same); Phillips, supra note 11 (responding to same); Dorothy E. Roberts, BlackCrit Theory
and the Problem of Essentialism, 53 MIAMI L. REV. 855 (1999); see also Elizabeth M. Iglesias,
Identity, Democracy, Communicative Power, Inter/National Labor Rights and the Evolution of
LatCrit Theory and Community, 53 MIAMI L. REV. 575, 622-29, 675 n.222 (discussing same);
Margaret E. Montoya, Introduction: Mapping Intellectual/Political Foundations and Future SelfCritical Directions, 53 MIAMI L. REV. 1119, 1124-26 (1999) (discussing same); Francisco Valdes,
Theorizing “OutCrit” Theories: Coalitional Method and Comparative Jurisprudential Experience
– RaceCrits, QueerCrits and LatCrits, 53 MIAMI L. REV. 1265, 1279-85, 1311-15 (discussing
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consciousness than seemed common in the race paradigm critiques
would contribute to that debate.39
Latina/o Critical Legal Studies (LatCrit) emerged from the CRT
workshop and movement.40 As Francisco Valdes notes, the two legal
intellectual movements are supplementary and complementary, and
close, ideally favorite, cousins, mutually welcome to be present in the
flesh and always mutually present in spirit.41 LatCrit is the best organized of the currently active race-conscious critical legal theory movements. It has met nine times.42 The Asian Pacific American Legal
Scholarship Workshop (APALSW), which is at the center of Asian
American critical legal thought, convened in 1999 and 2001.43 I am
not aware of an organized Native American critical legal studies
Critical Race Feminism (CRF)45 and Global Critical Race Feminism (GCRF),46 like LatCrit, emerged from the CRT movement.
CRF also has roots in a Women of Color and the Law movement that
preceded CRT itself becoming organized.47 Adrien Katherine Wing
39. See, e.g., Juan Perea, The Black/White Binary Paradigm of Race: Exploring the “Normal
Science” of American Racial Thought, 85 CAL. L. REV. 1213 (1997).
40. Iglesias, supra note 38, at 680-85; Phillips, supra note 11; Valdes, supra note 38, at 12991300.
41. Valdes, supra note 38, at 1299 (citations and quotation marks omitted).
42. LatCrit’s convocations have resulted in m