Abstract

This paper traces the creation and perpetuation of racial hierarchy in the US. It focuses on the most crucial developments that affected African Americans, because they most profoundly determined racial stratification here. It concerns four brief periods in US history – one in each century since British colonies were established in North America.

(1) When Africans first came to the colonies, they did not enter chattel slavery. There was no such system, and social mobility was not foreclosed to African servants. By the end of the 17th century, colonial legislatures had created the legal framework for chattel slavery, to which they consigned people of color. (2) After the War for Independence, the slave system was protected by the new Constitution, in a settlement that was not mandated by circumstances and that might have been avoided entirely. (3) After the Civil War, slavery was formally abolished, but decisions were very soon made that undermined a genuine reconstruction of Southern society, well before the 1877 Hayes-Tilden agreement made way for the full reestablishment of White supremacy. (4) After the "second reconstruction," of the 20th century, the legacy of slavery and Jim Crow were never fully addressed but were left fundamentally undisturbed.

US history permits the following observations: (a) during the racial junctures, alternatives were available that were understood well enough by those who made the relevant decisions; (b) the racially stratified character of the US was therefore not inevitable; (c) the decisions were made first by colonial governments and later by their successors, the United States; (d) the responsibility for rectifying any persisting injustice therefore lies with the nation as a whole.

The final section of the paper considers some principled approaches to addressing the persisting legacy of slavery and Jim Crow, such as the promotion of democracy and the provision of reparations. To minimize grounds for disagreement, it suggests that the (seemingly innocuous, "color-blind") principle of equal opportunity for our children has directly relevant, radical implications.

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David B. Lyons Contact Information

dbl@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-3135

Social Science Research Network:

http://www.ssrn.com/abstract=316627

Presentation and Publication Information:

draft paper

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