Become a Patreon!


Excerpted From: Michele Goodwin, Law and Anti-blackness, 26 Michigan Journal of Race and Law 261 (Winter 2021) (434 Footnotes) (Full Document)


michellegoodwinThe Lottery is a short story that describes a fictional, bucolic small town in the United States. The townspeople seem lovely and perhaps even thoughtful about each other, until once per year when their cleansing happens. This is when they stone a member of their community to death. The decision as to who is stoned is rather arbitrary--not based on crime, harm to another, past misdeeds, current troubles or threats of future harm. No. It is the random black dot on a piece of paper that seals Tessie Hutchinson's fate.

No part of the lottery should make sense, even though the townspeople at an earlier time believed that stoning a member of their community each year would contribute to a strong harvest. Surely at some point the illogic of this should slip away. Even if killing a mother, son, or daughter brings a strong corn crop, is the corn yield worth it? Apparently, they think so.

As Shirley Jackson writes, “[t]he people had done it so many times that they only half listened to the directions; most of them were quiet, wetting their lips, not looking around.” Everyone participates, even the small children--one child, “little Davy Hutchinson” is given a few pebbles. Barely aware of life itself, the little boy will become complicit in a practice laid out before him. He too will take part in the process that ends in his mother's death. He, like the town's other children, are predestined to believe the lottery is the natural order of things.

The child will learn to smell the stench of fear in the air, taste the anxious sweat that drips from his brow onto his lip as he one day will choose a stone. This will become familiar. Selecting the scapegoat on which to direct his anger, fear, and hope will be normal. This is the social order. The lottery does not simply choose its victims. It predestines the entitled. It protects this way of life.

During the spring and summer of 2020, as COVID-19 rapidly spread throughout the United States, infecting and killing thousands of Americans, including children, the enduring color line manifested. As of this publication, more than 500,000 Americans have died due to the virus. Those disproportionately harmed in the U.S. have been Indigenous, Black, and Latinx communities. Even while pundits claimed children were safe from the virus, Black and Latinx children suffered and died horrific deaths. The patterns of implicit and explicit racism in medical care combined with social determinants in health meant not even the children's youth nor institutions of public health could save them. Their deaths served as stark reminders of lingering vulnerability and invisibility. Taking seriously that COVID-19 has exposed preexisting institutional and infrastructural vulnerabilities and inequality in the United States, this Article turns to what stratifies and divides the nation.

That is, in 2020, it also became unquestionably apparent that the pandemic was not all that ails the United States. Systemic racism, white supremacy, and anti-Blackness crystallized in the murders of Ahmaud Aubrey, an unarmed jogger, stalked and killed by Gregory and Travis McMichael in a rural Georgia town; Breonna Taylor, an essential healthcare provider, fatally shot by several Louisville, Kentucky police officers; and George Floyd, lynched in broad daylight as a Minneapolis, Minnesota officer straddled his neck, pressing a knee onto it for over nine minutes as crowds gasped and watched in horror. Weeks later, Jacob Blake, an unarmed father, would be shot seven times at close range while his children watched, in Kenosha, Wisconsin.

What exactly do these fractures reveal about society and law in the United States? Is there a descriptive story to tell with a normative analog? If so, what can we learn from it? Are there lessons for the present to be derived from attention to this past? Has the strange promise of a post-racial United States materialized after the two-term presidency of its first Black president, Barack Obama?

The fractures to which this Article speaks were brought into stark relief in 2020. They revealed unaddressed racial trauma; an American history mired in the terrorism of Black people, spanning slavery and post-reconstruction; and ultimately centuries of unhealed wounds. 2020 brought about an aggressive pandemic marked by an increasing death toll month by month from COVID-19. 2020 also marked the untimely death of Justice Ruth Bader Ginsburg and political turmoil leading up to the general election. Until the end, the year unfolded with chaos and consternation, including the challenge of the presidential election results, namely by former President Donald Trump, who claimed on social media, in the news, and through more than sixty lawsuits that fraud mired the 2020 presidential election and that he rightfully had won. By January 2021, the Washington Post reported that the president made a total of 30,573 false or misleading claims over four years, including “503 false or misleading claims as he barnstormed across the country in a desperate effort to win reelection.”

2020 revealed strife and racial tensions that manifested in protest in the United States, yet it also beckoned for truth, reckoning, and reconciliation. The strange confluence of events in 2020 urges the acknowledgment of an origin story that places slavery, Jim Crow, and contemporary white supremacy, nationalism, and racism in proper discussion and contexts alongside the more popular, traditional American narratives that center revolutionary spirit of white Americans who fought against the British to stake a claim for their equality and dignity. Long divorced from that historical, political, and legal discourse is acknowledgment of the purposeful and enduring harms cast upon Indigenous peoples and Black Americans to justify colonialism, the capitalism derived by slavery, and the post-Reconstruction era scapegoating of the newly “freed.” In other words, there are racialized traumas and terrorism yet to be fully accounted for in the stories we tell ourselves.

For example, from a historical perspective, what message must people tell themselves to justify the intergenerational kidnapping and trafficking of children, women, and men across international borders and throughout the United States? How does a society come to tolerate children on the auction block, bid upon as if they were field chattels? What narratives must the auctioneers tell to encourage bidders and secure lucrative offers for the traders in human flesh? How do individuals come to justify their participation in the cruel enterprise, including enslaving, renting, leasing, and selling their own offspring, born from frequent though unacknowledged debasement of enslaved women?

How has the failure to acknowledge and address the carnage and prurience of America's racial origin story impacted life today? What social conditioning made possible the separate and unequal society of the 20th century? A nation marked by white Christians bombing Black Christian churches and the homes of Black ministers and clergy? What lives in the soul of a nation to justify school segregation? Housing segregation? Voter suppression?

The heavy iron shackles that controlled the movements of enslaved Blacks were replaced in “freedom” by invisible chains and restraints that demarcated social and legal hierarchies protected by law. Today, what makes possible a police officer's strangulation of an unarmed Black man, while colleagues look on? In short, one hundred and fifty years after the ratification of the Fifteenth Amendment, the third and final of the Reconstruction Amendments, the stain and vestiges of slavery in the United States remain.

This Article addresses a thin slice of the American stain. Its value derives from the conversation it attempts to foster related to reckoning, reconciliation, and redemption. As the 1930s Federal Writers' Project attempted to illuminate and make sense of slavery through its Born in Slavery: Slave Narratives From 1936-1938, so too this project seeks to uncover and name law's role in fomenting racial division and caste. Part I turns to pathos and hate, creating race and otherness through legislating reproduction--literal and figurative. Part II turns to the Thirteenth Amendment. It argues that the preservation of slavery endured through its transformation. That the amendment makes no room for equality further establishes the racial caste system. Part III then examines the making of racial division and caste through state legislation and local ordinances, exposing the sophistry of separate but equal. Part IV turns to the effects of these laws and how they shaped cultural norms. As demonstrated in Parts I-IV, the racial divide and caste system traumatizes its victims, while also undermining the promise of constitutional equality, civil liberties, and civil rights.

[. . .]

During the summer of 2020, streets in Minneapolis, Minnesota burned after the videoed execution of an unarmed Black man, who died underneath the weight of an officer's knee on his neck. George Floyd called to his mother, gasped that he could not breathe, and died. The scene was the contemporary analog to James Allen's Without Sanctuary, which exposed lynchings from throughout the United States, captured by 20th century photographers and often memorialized in postcards.

On the day of Mr. Floyd's death, anyone who witnessed even part of the video received an unwelcome postcard in their “inbox.” It was a powerful reminder of America's racial caste system no longer depicted in cotton fields but rather the urban streets of the United States. This postcard shows what is old--the racial caste system--is new and revitalized. And, what is new reflects a history and performance that we have not shaken. Officer Chauvin demonstrated the performance of the racial hierarchy in literal terms, high above and seemingly unmindful about the value of life beneath his knee. He cared little for the equality of personhood that Senator Sumner argued for long ago at the debate about the Thirteenth Amendment.

In a key study of slavery, John Blassingame shares how masters first attempted to demonstrate their moral and intellectual superiority over blacks:

Many masters tried first to demonstrate their own authority over the slave and then the superiority of all whites over blacks. They continually told the slave he was unfit for freedom, that every slave who attempted to escape was captured and sold further South, and that the black man must conform to the white man's every wish. The penalties for non- conformity were severe; the lessons uniformly pointed to one idea: the slave was [a] thing to be used by the “superior” race.

Today, the endurance of racial caste cannot be maintained without the structures and forces of law. Vertical, racial hierarchies reshaped laws, and in so doing, reduced the impact of the Reconstruction Amendments for more than a century. Sadly, laws rendered the Amendments virtually meaningless by replacing equal protection with “separate but equal” and voting rights with expanded, dubious requirements and restrictions. Even the Thirteenth Amendment's abolition of slavery is punctuated by a Punishment Clause, which legalizes slavery in the United States so long as an individual has been convicted of a crime. The Punishment Clause provided the foundation on which southerners committed to slavery could and did expand coerced labor. It has yet to be repealed.

Michele Goodwin is Chancellor's Professor of Law & Founding Director, Center for Biotechnology & Global Health Policy, at the University of California, Irvine.

Become a Patreon!