By Dr Tafataona Mahoso

THE Zimbabwe Heritage Trust (ZHT), at the beginning of February 2019, organised a symposium on slavery and its continuing relevance to Africa. 

I could not attend the symposium but one of the contributions I would have made has to do with effects of the legacy of slavery on contemporary ‘democracy’ and the law and practice of ‘justice’ in the US. 

This subject is important because the US is the biggest and loudest preacher of ‘justice’ and ‘human rights’ on earth.

One can identify at least two views on ideals, ideas, constitutions and justice:  One view assumes that great ideas, powerful ideas, do change society.  

It assumes that constitutions, resolutions, petitions, regulations and laws do secure and guarantee the rights of groups and individuals, even when the society as a whole may be unwilling and incapable in its present form of delivering the rights, privileges and protections provided for in legislation.  

People who hold this view continue to bemoan the fact that institutions are not delivering justice; even when it is clear that the society about which they are concerned is in fact structured, organised and intended to prevent the actual achievement of justice, equality or liberty for all.

The other view says that regardless of its constitutions, ideals, ideas and ideological posture, a society which is socially and economically organised to prevent equality and justice cannot at the same time deliver justice.  

A capitalist society is one in which the limitless accumulation of wealth at the expense of others and of society and of oppressed minorities is regarded as the noblest pursuit.  

The contract is regarded as sacred, even though in most cases it is an expression of the unequal relationship between the employer who owns the means of production and extracts surplus value from the worker on one hand, and the worker who has only his labour to sell and who receives for it only the exchange value of his labour power, on the other hand.

Therefore this second view assumes that a Constitution, a law or a regulation cannot deliver to all individuals or communities of all classes those rights and privileges or protections which the society as a whole is either incapable of delivering or unwilling to deliver, because of the way it is organised and the primary purpose for which it is organised.  

In other words, North American society and law were first shaped to ensure the private accumulation of wealth from the social product.  Chattel slavery of Africans was a basic means of creating and accumulating surplus wealth at the founding of US society. 

Other goals were secondary.  

In other words, the incremental rationing of ‘justice’ we observe in the painfully slow evolution of North American laws shows in itself  that there is no justice for all, only for those who can afford the process.

The US Declaration of Independence, 1776: The most important passage in the US Declaration of Independence which demonstrates the gap between ideal and reality is the second paragraph.

“We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” 

The biggest contradiction is that these white men meant, by the pursuit of happiness, the accumulation of wealth, which in North America meant oppressing and exploiting African slaves and dispossessing the native Americans especially.  

And, as late as 1857, the Supreme Court of the US declared publicly in the Dred Scott case that African-Americans had no rights which the white man was obligated to observe.

The US Constitution, 1787: This was a more realistic document in the sense that it was more honest about the sacredness of private property and the contract among the North American bourgeoisie.  African-Americans appeared in the infamous Article 1, Section 2, Paragraph 1, in which black males were to be counted in censuses as worth 3/5 of a white man each for the purpose of determining the representation of white males from slave states in the white male US Congress.

The North West Ordinance,1787: The important parts, for our purpose here, are Articles 3 and 6.

In Article 3, the US made a legal guarantee which the society was not willing to observe, in fact was busy organising to destroy. 

The articles said:

“The outmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent: and in their property rights, and liberty they shall never be invaded or disturbed… laws founded in justice and humanity shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.” See Dee Brown’s Bury My Heart at Wounded Knee for sanctioned violations of native American rights. 

Article Six explicitly outlawed slavery in the North West territory, described as north of the Ohio River. However, it also allowed exceptions in those cases where a slave master from a slave state could follow and recapture any slave who sought refuge in the territory.  

Unlike the Fugitive Slaves Law in 1850, the Ordinance did not require authorities in the territory to assist slave catchers.

In 1807 the US banned slave imports into the country.  

The ruling class was afraid that an aggressive mass importation of slaves to fill the new Louisiana Territory (acquired 1803) would create an African majority and turn the country into another Haiti, where African revolutionaries overthrew white planters.  

But the ban was violated hundreds of times, with the Amistad case of 1839 being the most visible example of blatant violations.

The Fugitive Slaves Law, 1850:This law violated the North West Ordinance in that what used to be a loophole under that Ordinance became an open gate, an invitation to Southerners to violate Federal and State laws of the ‘free’ North by requiring Northern authorities to assist zealous Southern planters in recapturing and returning slaves to their masters.  

This was also the South’s attempt to stem the tide of the slaves’ secret escape route called Underground Railroad.

The various stages of the Confiscation Act, 1861-1863: Before the Emancipation Proclamation of 1963, the Union Government of the US moved timidly because of two major fears: First, US President Abraham Lincoln was afraid that border states which had large slave populations but remained in the Union would break away and join the rebel Confederacy if he declared slavery abolished in one sweep.

Second, Lincoln also understood that the US Constitution held property sacred.  He did not want to be responsible for setting the precedent whereby one white section of the country expropriated the property (slaves) of another because of a moral disagreement.  

His way out was a small crack — the need to wage a successful war against the Southern rebellion for the purpose of restoring the Union which the Constitution guaranteed.  

In other words, the only way Lincoln could justify freeing slaves at first was for reasons of war.

Later, once the North began to win war, it became easier to infringe a little more on property rights of the planters.  Therefore, slaves were in reality freed in the following, painful, incomplete and incremental manner:

-In the first stage, only those slaves and properties captured in actual combat were to be taken and freed of their owners.

-Later only slaves and properties belonging to masters known to be in the rebel forces themselves could be taken.

-Then, after the Emancipation Proclamation, only the slaves in states which had joined the Confederacy were set fee.  And once the Emancipation Proclamation had been ratified as the 13th Amendment to the Constitution and

-All slaves in both loyal and Confederate states were nominally free.

The Emancipation Proclamation or the 13^th Amendment:  This was written in 1862 but not ratified until 1865.

Civil rights Acts of 1866: One extended the social services of the Freedmen’s Bureau while the other promised African-Americans ‘civil rights and immunities’ and was directly aimed at destroying the Black Codes by which Southern planters intended to keep blacks in slavery despite its legal abolition.  

Among provisions the of the Civil Rights Act were:  The right to make and enforce contracts, the right to buy, sell, and own real estate and personal property; the right to sue, to be a party to a legal action, and to give evidence in court; above all, it gave the right to what is now known as due process or equal protection under the law, described in the Bill as “…full and equal benefit of all laws and proceedings for the security of person and estate.” 

Unfortunately, the Acts did not contain clear provisions for enforcement.

The 14^th Amendment of 1868, written in 1866:The Congressional Radicals were afraid of two things:  The Civil Rights Acts challenged the rights of states to have laws different from those of the Federal Government where African lives were concerned and they could be reversed in a backlash. 

Moreover, these Acts assumed that freed Africans were citizens of the US already and should enjoy all the protections and immunities of full citizenship. But this was not clear. 

US law was so timid that people could be liberated from slavery in a country they had built and still have their citizenship questioned.  Therefore the Radicals in Congress decided to push for a 14^th Amendment to the Constitution of the US to make it difficult for the Acts of 1866 to be reversed and to make the citizenship of African-Americans clear. The Amendment read:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the law.”

As should be clear, these things should have been clear in the 13^th Amendment and the Civil Rights Acts of 1866. It was because US society in general was organised against these provisions that it became necessary to struggle further just to get them clarified, though not enforced adequately.

The 15^th Amendment or Voting Rights Acts of 1868, ratified in 1870. The important part of the Amendment says:

Section 1: “The right of the citizens of the United States to vote shall not be denied or abridged by the United States, on account of race, colour or previous condition of servitude.”

Section 2:“The Congress shall have power to enforce this Article by appropriate legislation.”

The Civil Rights Actof 1875, an attempt to clarify and enforce the Civil Right Acts of 1866. 

This Act originally outlawed segregation in schools, discrimination in public places such as trains, ships, restaurants and theatres. However, the white Peabody Fund’s trustees lobbied to exclude the banning of segregation in schools and succeeded.

Consistent with my argument here, the US Supreme Court Ruled the Civil Rights Acts of 1866 and 1875 unconstitutional in 1883.

InPlessy Versus Ferguson, 1896, the US Supreme Court enshrined segregation in Federal law by ruling, in the words of Justice Henry Billings Brown, that:

“Laws permitting, or even requiring, (racial) separation in places where (the races) are liable to be brought into contact do not necessarily imply the inferiority of either race (i.e. the one that decides and the one for which the separation is designed), and have been generally, if not universally, recognised as within the competency of the state legislatures in the exercise of their police power.”

Louisiana’s facilities therefore were separate but equal, Brown argued.

Much, much later, the Supreme Court’s Ruling in Brown Versus Board of Education of Topeka, Kansas, 1954, ruled that racial segregation and discrimination in public education were illegal.

The Civil Rights Actof 1957:A very weak bill, provided for creation of a toothless Civil Rights Commission, with no role except to advise the government and make some recommendations on legislation; a Civil Right Division within the US Justice Department; and the right of the Justice Department, if it so chose, to bring law suits against discrimination on behalf of African-Americans.

The 1964 Voting Rights Acts or the 24^th Amendment to the US Constitution. It says:  

“The right of citizens of the United States to vote in any primary or other election for President or Vice-President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reasons of failure to pay any poll tax or other tax.”

The Civil Rights Acts of 1964, signed by President Lyndon B. Johnson on 2 July 1964. It prohibited discrimination in public places of accommodation; authorised the government to withhold federal funds going to public programmes practicing discrimination; banned discrimination by employers and unions; created an Equal Employment Opportunity Commission; established a Community Relations Service; and provided technical and financial aid to communities which were making attempts to desegregate their schools.

Title V11 of the Civil Rights Act, as amended, prohibits discrimination against any individual with respect to hiring, discharge, compensation, and all terms, conditions, and privileges of employment because of race, colour, religion, sex, or national origin.

Presidential Executive Order Number 11246 of 1965, as amended, prohibits discrimination by federal contractors against any employee or applicant for employment on the basis of race, colour, religion, sex, or national origin; requires the employer to take affirmative action to expand employment opportunities for women and members of  minority groups and to eliminate practices which have the effect of excluding or limiting their employment;  the order also requires a written affirmative action plan, including goals for overcoming the underutilisation of minorities and women in the employer’s workforce.

It is obvious from this brief summary that the problem in the US with regard to racism and discrimination is not the absence of laws, but the unwillingness of white capitalist society as structured to give up the system and practices which have enabled especially white males to justify amassing wealth while other groups or classes do without jobs and often without basic necessities. 

This conclusion is also consistent with findings repeated in previous instalments:  That the so-called Universal Declaration of Human Rights existed parallel to official, state-enforced Apartheid from 1948 to 1994 in South Africa.