May 23, 1788 – South Carolina Joins the Union As the 8th State

On this day in history, South Carolina ratified the U.S. Constitution, becoming the eighth state to enter the American Union. The original colony, named Carolina after King Charles I, had been divided in 1710 into South Carolina and North Carolina.

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Slave owners had more control over the state government of South Carolina than of any other state, and in 1820, the legislature ended personal manumissions, requiring all slaveholders to gain individual permission from the legislature before freeing even family members.

Also in the 1820s, South Carolinian John C. Calhoun developed the theory of nullification, by which a state could reject any federal law it considered to be a violation of its rights.

Still, it wasn’t enough. South Carolina seceded from the Union on December 20, 1860, the first of the Southern states to do so. Basically, South Carolina was incensed over the threat to the institution of slavery, according to its Declaration of Secession:

…the non-slaveholding States … have assumed the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of Slavery; they have permitted the open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.”

You can read the entire Declaration by South Carolina here.

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After the end of the Civil War and the brief period of Reconstruction in which the North tried to enforce black rights, South Carolina once again renewed the effort to strip blacks of their freedom. The federal Civil Rights laws of the 1960s finally but only theoretically ended segregation and protected the voting rights of African Americans. South Carolina is among the group of states attempting to take advantage of the Supreme Court decision striking down the Voting Rights Act.

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Among the famous citizens hailing from South Carolina, one of the best known political figures is Strom Thurmond, who, in 1954, became the first US senator elected by write-in vote. Thurmond famously opposed civil rights for African Americans, stating in 1948:

… all the laws of Washington and all the bayonets of the Army cannot force the Negro into our homes, into our schools, our churches and our places of recreation and amusement.”

In opposition to the Civil Rights Act of 1957, he conducted the longest filibuster ever by a lone senator, at 24 hours and 18 minutes in length, nonstop. In the 1960s, he opposed the civil rights legislation of 1964 and 1965 to end segregation and enforce the constitutional rights of African-American citizens, including suffrage.

Six months after Thurmond died in 2003, his mixed-race, grown daughter Essie Mae Washington-Williams revealed that he was her father.

Sen. Strom Thurmond, Republican from South Carolina

Sen. Strom Thurmond, Republican from South Carolina

May 19, 1897 – Oscar Wilde Released From Prison

On this day in history, the Irish author and poet Oscar Wilde was released from jail after serving two years of hard labor. Wilde was the author of such important works as “The Picture of Dorian Gray” (1890) and “The Importance of Being Earnest” (1895).

Oscar Wilde

Oscar Wilde

Wilde had been arrested for “gross indecency” under Section 11 of the Criminal Law Amendment Act 1885, an Act of the Parliament of the United Kingdom. Wilde pleaded not guilty, but on May 25, 1895 was convicted of gross indecency and sentenced to the maximum allowed: two years of hard labour.

Wilde was imprisoned first in Pentonville Prison and then Wandsworth Prison in London. Inmates followed a regimen of “hard labour, hard fare and a hard bed,” which wore very harshly on Wilde. His health declined sharply, and in November he collapsed during chapel from illness and hunger. His right ear drum was ruptured in the fall, an injury that later contributed to his death.

Richard B. Haldane, the Liberal MP and reformer, got him transferred in November to Reading Gaol, 30 miles west of London. Haldane eventually also was able to procure for Wilde access to books and writing materials. Between January and March 1897 Wilde wrote a 50,000-word letter to his former lover, Lord Alfred Douglas, which he was not allowed to send, but was permitted to take with him upon release. When he got out, he gave the manuscript to another lover, Robert Ross and it was eventually partially published as De Profundis in 1905. It was not completely published until 1962.

Oscar Wilde and Lord Alfred Douglas

Oscar Wilde and Lord Alfred Douglas

Wilde was released on this day in history, and left England for the continent, to spend his last three years in impoverished exile. He wrote two long letters to the British newspaper, “The Daily Chronicle,” describing the brutal conditions of English prisons and advocating penal reform.

Wilde reunited with both Ross and Douglas, but his wife Constance refused to meet with him or to let him see their sons.

Wilde’s final address was a dingy hotel in Paris where he suffered from poverty, depression, and a sense of hopelessness. Wilde died of cerebral meningitis on November 30, 1900 with Ross at his bedside. Wilde’s physicians reported that the condition stemmed from an old suppuration of the right ear, which he had sustained in prison.

Oscar Wilde

Oscar Wilde

In 1954, on the centenary of Wilde’s birth, when a plaque was erected by the London County Council on him former home, Wilde’s old friend the playwright Laurence Housman (and sibling of poet A.E. Housman) wrote:

His unhappy fate has done the world a signal service in defeating the blind obscurantists; he has made people think. Far more people of intelligence think differently today because of him. And when his Ballad of Reading Gaol, he not only gave the world a beautiful poem, but a much needed lesson in good will, pity, pardon and understanding of the down-and-out.”

May 14, 1772 – Lord Mansfield in England Rules Slavery Unsupported by Common Law

On this day in history, Lord Mansfield of the King’s Bench in England issued a ruling in the case of Somerset v. Stewart (98 ER 499, 1772) finding that slavery was unsupported by the common law in England and Wales.

James Somerset, a slave, was purchased by Charles Stewart, an English customs officer, when Stewart was in Boston. Stewart brought Somerset with him when he returned to England in 1769, but Somerset escaped. Stewart had him recaptured and imprisoned on a ship that was sailing for Jamaica, directing that Somerset be sold for labor upon his arrival.

Somerset’s three godparents from his baptism as a Christian in England made an application before the Court of King’s Bench for a writ of habeas corpus. The ship’s captain complied, and the Chief Justice of the King’s Bench, Lord Mansfield, ordered a hearing for the following January. As arguments were being prepared, the case attracted a good deal of attention in the press, and money was donated to advocates on both sides. Granville Sharp, an abolitionist layman who continually sought test cases against the legal justifications for slavery, was Somerset’s main backer.

Granville Sharp, famous English abolitionist

Granville Sharp, famous English abolitionist

During the case, five advocates appeared for Somerset, speaking at three hearings between February and May. Somerset’s advocates argued that while colonial laws might permit slavery, neither the common law of England nor any law made by Parliament recognized the existence of slavery. They also invoked contract law to argue that English contract law did not allow for any person to enslave himself, nor could any contract be binding without the person’s consent.

The two lawyers for Charles Stewart maintained that the sanctity of property was paramount and that it would be dangerous to free all the black people in England, who numbered at the time approximately 15,000.

After much deliberation, Lord Mansfield decreed:

The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law [statute], which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.”

While Lord Mansfield narrowly limited his judgment to the issue of whether a person, regardless of being a slave, could be removed from England against his will, his pronouncement on the place of slavery in common law and natural law (versus positive law) marked a significant milestone in the campaign to abolish slavery throughout the world.

Despite the ruling, escaped slaves continued to be recaptured in England, and slaves continued to be bought and sold in the British Isles. Slavery continued in various parts of the British Empire until it was abolished by the 1833 Slavery Abolition Act.

Chief Justice William Murray, 1st Earl of Mansfield

Chief Justice William Murray, 1st Earl of Mansfield

May 11, 1659 – Massachusetts Bans the Celebration of Christmas

The early Puritans in Massachusetts regarded Christmas as a “false” celebration of the birth of Jesus, with stronger ties to paganism than to Christianity. They also disapproved of the drinking and partying associated with the holiday.

Thus, on this day in history in 1659, the Massachusetts Bay Colony legislature passed a ban on the celebration of Christmas:

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The ban was not repealed until 1681, when a new surge of European immigrants brought with them a demand for the holiday. Still, the holiday was not universally embraced. In 1856, Henry Wadsworth Longfellow wrote in his journal:

We are in a transition state about Christmas here in New England. The old Puritan feeling prevents it from being a cheerful hearty holiday; though every year makes it more so.”

The Massachusetts legislature had only made Christmas an official holiday in the state on April 15, 1856. On June 28, 1870, the U.S. Congress, apparently prompted by a memorial drafted by local “bankers and business men,” made Christmas a national holiday.

Christmas Present in Boston, Massachusetts

Christmas Present in Boston, Massachusetts

Voting Laws Roundup 2016 from The Brennan Center for Justice

The Brennan Center for Justice, tireless proponents of voting rights, have published a new updated “Voting Laws Roundup 2016.”

As they report:

At the beginning of the 2016 legislative session, and as of March 25, 2016, at least 422 bills to enhance voting access were introduced or carried over in 41 states plus the District of Columbia. Meanwhile, at least 77 bills to restrict access to registration and voting have been introduced or carried over from the prior session in 28 states.”

Notably, they find that “. . . restrictions in 17 states will be on the books for the first time in a presidential election in 2016.”

You can find the details on those restrictions here.

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Achievement Gap Between U.S. Richest and Poorest Students Growing Dramatically

NPR is running a series of stories on the nationwide school-funding imbalance, to explain what happens when many of America’s poorest students also attend its poorest schools.

Some of the information from the reports comes from “Is School Funding Fair? A National Report Card (NRC)”, released by the Education Law Center (ELC) on March 16, 2016 which found that “in most states, public school funding remains unfair and inequitable, depriving millions of U.S. students of the opportunity for school success.” One of the more disturbing findings of the report is that “Certain regions of the country exhibit a double disadvantage – many states with low funding overall add no additional funds for concentrated student poverty. These include Alabama, Mississippi, and Florida in the Southeast, and Colorado, Arizona, and New Mexico in the Southwest.”

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As Bruce Baker, the Rutgers University Graduate School of Education Professor who developed the report’s methodology, told NPR:

You’ve got highly segregated rich and poor towns. [They] raise vastly different amounts of local revenue based on their local bases . . .”

(Perhaps needless to add, richer students can also opt out of the public school system altogether, attending expensive magnet schools that provide them with even more of an advantage for colleges and their futures. In addition, they also have ready access to educational enhancements, such as computers, robotic courses, studies abroad, and the like, that poorer districts rarely see.)

Kentucky FIRST LEGO League’s State Robotics Competition

Kentucky FIRST LEGO League’s State Robotics Competition

In San Antonio Independent School District v. Rodriguez (411 U.S. 1, 1973), plaintiffs argued that the way schools are funded violates the U.S. Constitution’s equal protection clause, which says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” In a split 5-4 decision, the Supreme Court ruled against Rodriguez, with Justice Lewis Powell delivering the opinion of the Court, averring there is no right to equal funding in education under the U.S. Constitution:

Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. [n69] But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.”

Dissenting, Justice Thurgood Marshall wrote:

The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority’s decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. More unfortunately, though, the   majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.

. . .

I must once more voice my disagreement with the Court’s rigidified approach to equal protection analysis.”

Portrait of Supreme Court Thurgood Marshall (Photo by Bachrach/Getty Images)

Portrait of Supreme Court Thurgood Marshall (Photo by Bachrach/Getty Images)

Justices Brennan, Douglas, and White also dissented.

As law professor Camille Walsh argued in her analysis of the case [Camille Walsh, “Erasing Race, Dismissing Class: San Antonio Independent School District v. Rodriguez,” 21 La Raza L.J. (2011):

The Rodriguez claimants were low-income children and families of color whose school district was dramatically unequal in every respect when compared to the local, wealthy, white school district at issue in the case. The Court treated, however, the claims of race and class discrimination that the claimants put forward as entirely independent, and ignored the plaintiffs race claim in order to focus on class alone, which the Court dismissed as a category not entitled to constitutional protection. This article argues that the outcome in Rodriguez was directly tied to legal frameworks that negated the possibility of protecting more than one constitutional category at the same time. The Court’s decision provided an economic privacy and local fiscal control rationale that solidified the separation of race and class as categories of constitutional analysis, to the detriment of future claims at the intersection of race and class remedies for segregated and unequal schools.”

In the four decades since Rodriguez, as NPR observes, dozens of lawsuits have been filed in state courts, arguing that their funding systems are either unfair, inadequate or both.

Of note, in the 2011 case Lynch, et al. v. State of Alabama, et al. Judge C Lynwood Smith, Jr. of the U.S. District Court for the Northern District of Alabama wrote an 800-page opinion, in which he “excoriated Alabama’s funding system.” Still, as reported by NPR, “he found the plaintiffs were not entitled to relief from the court,” writing in his opinion:

This request for a remedy untethered to a constitutional violation, though sincere, misunderstands the nature of the judicial power. The courts are not empowered generally to ‘make things right.’ The district court’s jurisdiction was invoked by plaintiffs to recognize and remedy the constitutional wrongs alleged to exist in Alabama’s system of higher education. [emphasis in original.]

(According to The Southern Poverty Law Center, Alabama’s overall funding level is well below average, ranking 38 out of 49, even when adjusting for regional wages, economies of scale, and other factors.)

You can read more about the NPR series here, and follow along with new reports in the coming weeks.

April 22, 1987 – The U.S. Supreme Court Decides McCleskey v. Kemp

On this day in history, The U.S. Supreme Court handed down its decision on the case McCleskey v. Kemp (481 U.S. 279), which since has been widely criticized. (It was named one of the worst modern Supreme Court decisions by many sources: see, e.g., “roundups” of worse cases here and here.) Even the author of the decision, Justice Lewis Powell, stated later that he wished he could change his vote in this case.

Warren McCleskey, a black man, was convicted of murdering a white police officer in Georgia and sentenced to death.

In a writ of habeas corpus, McCleskey argued that a statistical study by law professor David Baldus, examining over 2000 murder cases in Georgia during the 1970s, showed substantial disparities in the imposition of the death penalty depending on the victim’s race, and smaller disparities associated with the defendant’s race. [Baldus, David C.; Pulaski, Charles; Woodworth, George, “Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,” Journal of Criminal Law and Criminology (Northwestern University) 74 (3): 661–753, 1983). Since that time, additional studies of other localities have confirmed that defendants who kill whites are more likely to be sentenced to death than those who kill blacks.] Specifically, controlling for thirty-nine nonracial variables, Baldus found that in Georgia, defendants charged with killing white victims were 4.3 times more likely to be condemned to death than defendants charged with killing black victims, and that black defendants were 1.1 times more likely to receive the death penalty than white defendants.

However, in a 5-4 decision authored by Justice Lewis F. Powell, Jr., the Court ruled against McCleskey. Justice Powell decided that the overall statistics offered insufficient proof for any particular case, writing:

The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot ‘prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case.’ . . . Since, according to Professor Baldus, we cannot say ‘to a moral certainty’ that race influenced a decision . . . we can identify only ‘a likelihood that a particular factor entered into some decisions,’ and ‘a discrepancy that appears to correlate with race.’ This ‘likelihood’ and ‘discrepancy,’ holds the Court, is insufficient to establish a constitutional violation. (emphasis in original)”

Associate Justice Lewis F. Powell, Jr.

Associate Justice Lewis F. Powell, Jr.

Justice Powell adduced four additional reasons he believed supported his decision:

…the desire to encourage sentencing discretion, the existence of ‘statutory safeguards’ in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role.”

Three dissents were filed in the case, by Justices Brennan, Blackmun, and Stevens. Justice William Brennan’s passionate dissent is worth quoting at some length.

Part I of Brennan’s dissent states his belief that “the death penalty is in all [emphasis added] circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments.”  

Even aside from this consideration, Brennan did not agree that the prospects of equal treatment for black defendants in Georgia were fair and balanced, as it were. He emphasized that regardless of whether McCleskey could prove racial bias, the very likelihood of it should be sufficient for an Eighth Amendment claim:

Since Furman v. Georgia, 408 U.S. 238 (1972), the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.”

Brennan adds his own statistical analysis of the findings, declaring:

. . . The rate of capital sentencing in a white-victim case is . . . 120% greater than the rate in a black-victim case. Put another way, over half — 55% — of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates — as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide.”

But, he goes on, there is more.

Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than the rate for black-victim cases. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. (emphasis in original)”

He concludes on this point:

The statistical evidence in this case thus relentlessly documents the risk that McCleskey’s sentence was influenced by racial considerations.”

He adds that in the case of Georgia, “the conclusion suggested by those numbers is consonant with our understanding of history and human experience.”

He then goes on to answer Justice Powell’s other objections to finding for McCleskey, which you can read here.

Associate Justice William J. Brennan, Jr.

Associate Justice William J. Brennan, Jr.

Justices Harry Blackmun and John Paul Stevens also dissented, deviating from Brennan in that they were not willing to rule out any death penalty cases. Brennan differed from Blackmun and Stevens in their belief that guidelines about what constituted “extremely aggravated cases” would minimize the risk of discriminatory enforcement of the death penalty and that “narrowing the class of death-eligible defendants is not too high a price to pay for a death penalty system that does not discriminate on the basis of race.”

Reverberations from the majority in the McCleskey decision reached far beyond the case of Warren McCleskey, creating a burden of proof almost impossible to meet. Blume, et al. argue that there are compelling reasons to read McCleskey narrowly. [John H. Blume, Theodore Eisenberg, and Sheri Lynn Johnson, “Post-McCleskey Racial Discrimination Claims in Capital Cases,” 83 Cornell L. Rev. 1771 (1998, available online here.) Nevertheless, they observe, “most lower courts rejects post-McCleskey capital-sentencing racial discrimination claims without any individualized analysis.” (Id., at 1780—1781.) Indeed, the entire process of the criminal justice system has continued to discriminate against blacks, from arrest, to treatment by police, to juror evaluation, to rates of imprisonment, to assignment of the death penalty.

According to The New York Times:

McCleskey is the Dred Scott decision of our time,’ Anthony G. Amsterdam, a law professor at New York University, said in speech last year at Columbia. ‘It is a decision for which our children’s children will reproach our generation and abhor the legal legacy we leave them,’ said Professor Amsterdam, who worked on the McCleskey case and many other capital punishment landmarks.”

As Blume et al. conclude (Id. at 1809-1810):

Fear of labeling state officials racist, the need for prosecutorial discretion, and general reluctance to address racial claims all may fuel the doctrinal missteps in post-McCleskey county-level cases. An understanding of courts’ reluctance is not, however, a reason to condone such action. Judges, especially federal judges, enjoy constitutionally protected independence precisely because they must make unpopular and difficult decisions. In the proud modern history of the judiciary, judges’ finest hours have come by challenging discrimination rather than sheltering it. It would be ironic if they now were to afford racial discrimination its greatest shelter, through heightened burdens of proof, in cases involving life and death.”

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