Here is the place for your responses. Think about: How do Marbury v Madison *or* Dred Scott v Sandford provide examples of the Court representing regime interests? (Think about historical/political context of both.) What does Patricia Williams have to say about the concept of ‘neutrality’? What does Leslie Bender have to say about the interests of the law?
Women and Law Summer 2019
Women and the Law, Summer 2019, Hunter College
In class last Thursday, we discussed the ways in which courts actually represent the interests of the regime, and that by representing the regime, courts cannot truly be imparcial. Dred Scott v. Sandford was one of the most historic Supreme Court decisions. Dred Scott was a slave in Missouri, and his owner took him from Missouri, which was a state where slavery was allowed, to the Missouri Territory, which was a free territory where slavery was not allowed, according to the Missouri Compromise. When Scott was brought back to Missouri, he sued arguing that because he was brought to a free territory, he was therefore no longer a slave. He appealed his case all the way to the Supreme Court. In this landmark decision, the Supreme Court decided that the Constitution was not meant to include African Americans as citizens, and therefore, blacks did not have any of the rights that citizens had, including the right to sue in federal court. This decision was not overturned until the 13th and 14th amendments were passed in which slavery was outlawed, and all those born or naturalized in the U.S. became citizens will and have equal protection under the law.
Dred Scott v. Sandford is an excellent example of the Court representing regime interests. The President at the time of this Supreme Court Case was Franklin Pierce, a northerner from New Hampshire who had pro-slavery beliefs. Chief Justice Taney who wrote the majority opinion on the Dred Scott case, came from a wealthy slave owning family in the South. This case came only 5 years before the Civil War began and tensions between those who were for and against slavery were very high. It makes sense that a man who comes from a slave owning background and who was Chief Justice of the Supreme Court during a time where the President was also pro-slavery, that the Supreme Court would vote that African Americans are not citizens in the United States. It is clear that this decision is a reflection of regime interests because the Supreme Court was expressing the beliefs of many people in the U.S. government at that time who did not believe that blacks should become citizens and have the rights that come with being a citizen. In “The Obliging Shell” Patricia Williams discusses the concept of neutrality. Williams argues that neutrality is problematic because it suppresses identities and that when something says that it is neutral, it usually is not completely neutral. She discusses the ways that neutrality often erases the race of black Americans.
In her essay The Obliging Shell Patricia Williams argues that racial and gender neutrality propagates the same exclusion from representation that constitutional omission of women and blacks did. She says that for equality and for affirmative action especially, women and people of color need to be included in the discussions for policy decisions. One of her main points is that the opposition to affirmative action is rooted mainly in misunderstanding of the concept itself. She first acknowledges that equality is a subjective concept, and that to people whose lives are not bettered by affirmative action, it can seem like a detriment. She says that this difference in perspective shows precisely the inequality and disctimination that affirmative action attempts to address. Similar to DuBoisian double consciousness, she describes the dynamic “pool of water” that face people whose likes are not respected, in contrast to the mirror that reflects back what seems like only the “self-will” of those who institutions support. She says that the misunderstanding of freedom as reliant on personal will rather than institutional allowance along with the image of the US as a free country is conflated with the idea of affirmative action as an impingement on personal freedoms, when it is an attempt to rectify institutoinal discrimination. Because of this, she proposes a framework that integrates disadvantaged groups in authoritative positions and discussions within law. She says that representation for example will begin to rectify the careful language that seems empirical but in fact propagates inequality through misconstruing social issues.
I agree that racism is even more insidious, now that there are no specific laws enforcing racial segregation. As Williams says, women and people of color are second class citizens, despite their contribution to western culture, for which they are not recognized. Williams also says that equality can coexist with categorization, but that the problem rather arises when people forget the faulty reasoning behind the categorization, as well as lack of acknowledgement of categorization. I agree that the first step in addressing racial and gender inequality is to acknowledge the differences and specific needs of these historically disadvantaged groups. A weakness of the essay is the repeated use of “women and people of color.” While both groups are disadvantaged and their political needs are not mutually exclusive, the groups have very different and specific histories of oppression that need to be addressed in different ways, a point that the movie “She Is Beautiful When She Is Angry” emphasises. To this point, Williams says that policy change needs to recognise that people are multiple things at once, in her words “black and good, blak and bad, black and white, male and female.” While I agree that there needs to be solutions that are not simply the “integration of fears of both sides,” I think that that can only come through acknowledging the similarities and differences of each group.
The obliging shell, an essay on equal opportunity, depicts how instances in a man’s life were portrayed and analyzed through his opinions and his identity. The essay begins as he is answering bar-style questions and admittedly overthinking them because of the way they are structured. He speaks about affirmative action and discrimination not just in the black community but jews as well. The question of Beethoven’s origins and race are brought into question by two students who argued about whether Beethoven indeed was black or at least had black in him. When discovered that he did, Frank who was arguing against Beethoven’s black lineage completely changed the way he viewed music. It transformed it into a completely different type of sound for him. Williams describes when a transgender girl came to talk to him because she thought that he would understand because he was black. He shares her story and how she was not allowed in either the boys or girls bathroom. He shares a story of a broken friendship because of a comment made that should not have been made and his reactions to life and how he has been able to handle it through his heritage and age.
When it came to Beethoven, I could not believe that just because it was found that Beethoven was mulatto a person’s entire view on music changed. It is crazy that just because of that fact a person can change their taste in music and hear it in a completely new way. It is the same music that it has always been. The story about the transgender girl and what happened to her was simply horrible to read. The way she was treated was despicable. The fact that both sexes feared rape I felt was just an excuse. They feard what they could not understand. And they simply did not understand why she wanted to be a woman. When reading about the friendship that was broken because of the comment that was said about Jews, I felt that the reaction was a bit strong. I am a jew myself and though I don’t think it should have been said, I was not particularly hurt by the comment, though I cannot speak for all Jews. The later part about the clothing store, however, upset me. It was, as he said, New Yorkers against New Yorkers and in that case I just could not understand where such antisemitism stemmed from. It was ridiculous.
As the first Supreme court case that required and applied judicial review (a principle that courts can use to declare that some acts of the executive branch and the legislative branch are unconstitutional), Marbury v. Madison allowed the Supreme Court to be separate from Congress and executive. When Thomas Jeffereson, part of the Democratic-Republican Party, defeated Federalist John Adams in the presidential election, John Adams, before leaving his office, appointed many other Federalists to the District of Columbia courts, which were approved by the Senate and signed by the President John Adams himself. However, commissions, a formal document that stated these Federalist judges were appropriate to act on the job and the last step before they could officially work in the courts, were not delivered, which ultimately meant that these judges could not start their jobs yet. When Thomas Jefferson became president, he delayed the deliverance of these commissions even further: he told James Madison, the secretary of state at the time, to prevent these commissions from being delivered. William Marbury, one of the Federalist judges appointed, went to the Supreme Court and demanded a writ of mandamus, or a court order that forces Madison to show why Marbury and these other judges could not get their commission. In 1803, Supreme Court Justice John Marshall ruled on this case because he saw it as a legal precedent, a case that establishes a rule or principle that judges must follow in future cases. Marshall stated that William Marbury had the right to receive his commission but the Supreme Court did not have the power to force Madison to hand over Marbury’s commission. The Judiciary Act of 1789, which Marshall stated, which gave the Supreme Court the power to rule over cases such as this, had a section which violated the Constitution since it gave the courts more power than what the Constitution stated it should. Whenever Congress and the Supreme Court did not have a unilateral decision, they should always look towards the Constitution (judicial review).
From last class, we know that the law is objective and external to people; John Adams and James Madison tried to use the law for their own advantage by having one party be the majority. They wanted all the cases and situations to be in the favor; they wanted not only to be representatives of the regime but to be the regime itself. When Thomas Jefferson denied the commissions from being delivered, he acted on his own version of the regime, since the newly formed Democratic-Republilcan party and its ideologies were different from the Federalists. When Marshall asserted the Supreme Court had the right to declare acts of Congress to be unconstitutional, the Supreme Court became an independent yet equal institution with the other branches.
Patricia Williams in “The Obliging Shell” states that neutrality removes the defining characteristics and obstacles that surround race in America. One is not taking a definite stand of what they believe in by being neutral. We see this even now, when police brutality is targeted against black Americans and systemic and institutional racism is always against them. This is why Black Lives Matter started, a movement in order for us to understand, realize, and admit that there is a problem and we have to stand in solidarity with those who suffer from these experiences. Black Americans and white Americans have completely different outlooks with law enforcement, which we can see in numerous cases; by being neutral about this subject is directly correlated to being ignorant of the fact that black Americans are not being served equal justice as other people do. When other people who are uncomfortable with this idea state, “All lives matter,” to go against the Black Lives Matter movement, it is inherently saying that they don’t want this specific movement to go into fruition. They try to be neutral with this “all lives matter” statement, yet it does the complete opposite. We realize that all lives do matter but in this case, we constantly see that black lives are undervalued and face inequality in every aspect of life. Another instance we can see in today’s society where neutrality doesn’t fix anything is during the violent protests in Charlottesville, when Donald Trump states, “You also had people that were very fine people, on both sides.” Yet, anyone who has common sense can clearly see that one side definitely did not have fine people; by being neutral on an issue as crucial as this means that one is undermining the race, the struggles, along with the experiences that are completely different from one another.
As the first Supreme court case that required and applied judicial review (a principle that courts can use to declare that some acts of the executive branch and the legislative branch are unconstitutional), Marbury v. Madison allowed the Supreme Court to be separate from Congress and executive. When Thomas Jeffereson, part of the Democratic-Republican Party, defeated Federalist John Adams in the presidential election, John Adams, before leaving his office, appointed many other Federalists to the District of Columbia courts, which were approved by the Senate and signed by the President John Adams himself. However, commissions, a formal document that stated these Federalist judges were appropriate to act on the job and the last step before they could officially work in the courts, were not delivered, which ultimately meant that these judges could not start their jobs yet. When Thomas Jefferson became president, he delayed the deliverance of these commissions even further: he told James Madison, the secretary of state at the time, to prevent these commissions from being delivered. William Marbury, one of the Federalist judges appointed, went to the Supreme Court and demanded a writ of mandamus, or a court order that forces Madison to show why Marbury and these other judges could not get their commission. In 1803, Supreme Court Justice John Marshall ruled on this case because he saw it as a legal precedent, a case that establishes a rule or principle that judges must follow in future cases. Marshall stated that William Marbury had the right to receive his commission but the Supreme Court did not have the power to force Madison to hand over Marbury’s commission. The Judiciary Act of 1789, which Marshall stated, which gave the Supreme Court the power to rule over cases such as this, had a section which violated the Constitution since it gave the courts more power than what the Constitution stated it should. Whenever Congress and the Supreme Court did not have a unilateral decision, they should always look towards the Constitution (judicial review).
From last class, we know that the law is objective and external to people; John Adams and James Madison tried to use the law for their own advantage by having one party be the majority. They wanted all the cases and situations to be in the favor; they wanted not only to be representatives of the regime but to be the regime itself. When Thomas Jefferson denied the commissions from being delivered, he acted on his own version of the regime, since the newly formed Democratic-Republilcan party and its ideologies were different from the Federalists. When Marshall asserted the Supreme Court had the right to declare acts of Congress to be unconstitutional, the Supreme Court became an independent yet equal institution with the other branches.
Patricia Williams in “The Obliging Shell” states that neutrality removes the defining characteristics and obstacles that surround race in America. One is not taking a definite stand of what they believe in by being neutral. We see this even now, when police brutality is targeted against black Americans and systemic and institutional racism is always against them. This is why Black Lives Matter started, a movement in order for us to understand, realize, and admit that there is a problem and we have to stand in solidarity with those who suffer from these experiences. Black Americans and white Americans have completely different outlooks with law enforcement, which we can see in numerous cases; by being neutral about this subject is directly correlated to being ignorant of the fact that black Americans are not being served equal justice as other people do. When other people who are uncomfortable with this idea state, “All lives matter,” to go against the Black Lives Matter movement, it is inherently saying that they don’t want this specific movement to go into fruition. They try to be neutral with this “all lives matter” statement, yet it does the complete opposite. We realize that all lives do matter but in this case, we constantly see that black lives are undervalued and face inequality in every aspect of life. Another instance we can see in today’s society where neutrality doesn’t fix anything is during the violent protests in Charlottesville, when Donald Trump states, “You also had people that were very fine people, on both sides.” Yet, anyone who has common sense can clearly see that one side definitely did not have fine people; by being neutral on an issue as crucial as this means that one is undermining the race, the struggles, along with the experiences that are completely different from one another.
Dred Scott V Sanford (1857)
Dred Scott was a slave of Doctor Emerson – a military surgeon in Missouri. In 1834 Dr. Emerson relocated from Missouri to Rock Island, Illinois and then to Fort Sneering, Louisiana. In 1838 Dr. Emerson went back to Missouri with his family and slaves. Slavery was prohibited back then in Illinois and Louisiana under the Missouri Compromise of 1820. The Missouri Compromise regulated slavery in current former US territories, however Missouri State wasn’t one of them. Shortly after Dr. Emerson’s death Dred Scott had attempted to purchase his own freedom from Dr. Emerson’s widow, however she refuse to sell it. As a result, Dred Scott filed a lawsuit claiming that his presence in the slavery free territory of Illinois and Louisiana made him free. The U.S. Supreme court ruled that Dred Scott was not entitled to his freedom, because African Americans were not U.S. citizens and therefore cannot bring suit in the U.S. court.
In my opinion, the decision of the Supreme Court is embarrassing and unjust. During the hearing process, the Chief Judge of the Court Taney denied U.S. citizenship for African Americans, despite the fact that they could be citizens of particular state at that time. Roger Taney, the Judge of the Supreme Court of that time, came from a wealthy slave-owning family himself. Thus, I believe, it was literally impossible for him to be truly unbiased during the Dread Scott vs. Sanford proceeding. The Dread Scott case had a long journey through the U.S. judicial system before the unjust decision finally was issued. I think, Roger Tanely and other judges that influenced the Dread Scott decision couldn’t even imagine that their decision will bring the U.S. one step closer towards the Civil War.
Patricia Williams in her “Obliging Shell” raises many questions that are at times very sad to read. Two sentences that are stated towards the end of the reading can be considered as one of the principle theses, “Gender is a privilege” and “Hierarchy is a sexual oppression”. How does she come to these conclusions and what they actually mean? Patricia brilliantly combined the real examples with historical/implied in law/social events. She thinks that “the great paradox of democratic freedom is that it involves some measure of enforced equality for all” implying it to her own thoughts that women and people of color are “underserved population” and “underclass”. Using the evidence of judicial decisions along with historical, educational and cultural data, she is looking for a reasonable compatibility and compromise between the affirmative action and “it’s a free country attack” that would lead to neutrality of views. Mentioning Bakke, Croson opinion, using historical evidence, Patricia proves that the inequality is real and women and the black do not have the equal weight in the society. This is one side of the coin. The other one is expressed through using the Beethoven and Rockettes examples. The author very elegantly shows the proof of her statement, “Introduction of Afro-American or South American or feminist literature into Stanford’s curriculum is a threat to the very concepts of what is meant by “western” or “civilization”. Patricia is thoroughly showing that 1. The problem exists; 2. The problem is implicitly known 3. The problem is not addressed properly but merely 4. System of neutrality has emerged. It is saddening how the recent events of 1988 that she talked about providing MLK and housing example stigmatize the era. It is sad that the transsexual friend’s example she uses has all negative colors of society’s oppression to it. It is same sad how cultural stereotypes that she shows on the Jews’ example are laughed at. Page 121 summarizes, “Blacks and women are the objects of a constitutional omission that has been incorporated into a theory of neutrality”. Hence, the whole myth of affirmative action and its proclaimed purposes dies, and the Founding Fathers are seen in a really different light when we think that in between the lines the Constitution might not be color- and gender- blind.
This reading made me think about a lot of things besides the ones directly mentioned in it. Bakke is one of my most favorite US Supreme Court decisions, its complicity and the details of the UC Davis itself are very controversial. It is very hard to defend whether quotas are constitutional and / or affirmative action is a proper way to rule the 14th amendment’s implications and consequences. I think at a certain time the affirmative action was required otherwise the racial and gender look of the privileged would not change. I did use “privileged”. Just like Patricia uses “blasphemous” which is unholy -> godless -> unrighteous. Women and the black population is to be described using this adjective, indeed. I would add to Patricia that these two categories are two broad, one can be implying the other (black women), it also excludes other external factors but what she means overall is that the oppression of other than white men in society has to addressed and since the same privileged people were I power, was silenced long enough not to be anymore. The example of Beethoven brought me to thinking about Russian most famous poet Alexander Pushkin. He was killed at a very young age by his rival (said to be fighting for his woman’s honor), was writing the most romantic and brilliant love stories of all times, was the first ear and help to friends; overall his image glorified. It sometime later was detected that his grandfather was African American. The amount of force used to hide it in the memoirs, censorship applied, was just insane. The mere fact of that would show as if fiasco. It is very universal in many hegemons like that (Germany, USA, Russia examples). I’m looking forward to discuss this reading in class.
In the Williams chapter, it starts off by a question being ask. This question was about who was more qualified for a job. The answer was stated to be a simple one, but was overthought by the narrator and gave a much lengthier and more detailed answer. After this the question was raised of what is “equal qualification”. Equality is then described as assumption and nothing more. This is a rare occasion that two people are completely equally qualified. The willingness not to look past a certain point, to accept the Judgments of others. It then goes on to talk about standards. Standards are defined as concrete monuments to socially accepted subjective presence. Standards are also described as someone who is trying to check off all the boxes making sure they meet all the requirements. It was stated that someone liked this, the narrator calls them “goodly-two-shoes.” The question raised is if the standard road is the only good road there is for people. Standards are also looked at as paths. It was stated that the pleasured of choosing your own path has been forgotten.
What I enjoyed about this reading is the way that standard and equal was viewed and described. Standard was described as an assembly line which is what I agreed with. It opened my view to how being “standard” is just trying to check off all the boxes, and forgetting to be an individual. Another statement that I saw to be true is how there is worry that human characteristics are being suppressed. These characteristics are creativity, humor, and amiability, these are being viewed as irrelevant. It is as if being standard put us in a box in order to be acceptable.
I believe Marbury vs Madison is a principal case in establishing the role of the courts & further stretnghtened the judicial branch. It showed the powerlessness of the court at the time to enforce decisions. The Court was in a dillema because if they upheld Jefferson’s request, and issued the writ, the Judicial would appear weak next to the Executive branch. What Marshall did was brilliant in my opinion. He upheld the power of the court as the authority when it came to Constitution & openly called out Jefferson for not upholding the law. The presiding Justice Marshall & the Supreme court made a bold statement– they weren’t going to be bullied by Jefferson and his cronies. That’s why I don’t believe Marbury vs. Madison upheld the regime’s interests. On the contrary, the Court gave itself power to declare acts of the Executive and Legislative brances unconstitutional. The Court was established as the arbiter of the Constitution.
The Dred Scott v Standford case on the other hand upheld the wishes of the regime. The Court made a decision on a political issue has been characterised as a “self-inflicted wound.” The ruling stated that a slave who had been living in free territory was still not entitled to their freedom; black people at the time were not and could not be citiizens of the United States. That decision upheld the status quo of the regime because the Supreme Court and most of the nation were pro-slavery. It was so regime oriented that the then President, James Buchanan influenced a judge, Justice Grier, to join the southerners in the majority so the decisions would look less regional (Britannica). This can be found in Williams’ explanation of Beethoven’s racial misidentity. She writes: ‘The Beethoven controversy is an example of an analytic paradigm in which ‘white equals good, and black equals bad.’ So even within the integration argument, the regime’s goal wasn’t really to integrate but to make everyone less of what they were and more “white.” Williams discussion the concept of neutrality was very interesting. Williams points out that in order for democracy to work, people must be willing to tone down their identity and acquiesce to social order.