standpoint of the American justice system comes from experience. I first experienced the majesty of the law at age eight when I was propelled from my sleep by a rude thunderclap. Still drowsy, I could feel the reverberations rumbling through our floorboards, swelling in intensity until they reached my bedroom door, which swung open on a man brandishing a shotgun and shouting, “Freeze—police!” What I mistook for a thunderclap turned out to be the sound of our front door unceremoniously parting company with its hinges and striking our living room floor. I first saw the door as my seven siblings and I were ushered into our family room to make room for the cops combing our apartment for contraband. As our gunwielding escorts queued us up for a round of frisks, my eyes fastened on the blue serge suits hulking over my handcuffed and prostrate dad. I couldn’t wait to see the looks on their mocking faces when my indomitable dad would snap off the handcuffs and send the cops scurrying for cover. But the next time I saw my dad upright and unshackled was on a Sunday, Family Day, in the Ohio State Penitentiary.
The five years of Family Days that followed gave me plenty of time to ponder the wonders of the law. What struck me as most wondrous about the law was how readily it could be manipulated by spiteful state officials against an innocent but “uppity” Black man. For innocent my dad most certainly was. Even as an eight-year-old I knew that a five-pound bag of marijuana could not spontaneously materialize from thin air in the kitchen cupboard where it was allegedly discovered. And even as an eight-year-old I knew my dad wasn’t stupid or masochistic enough to stash it in the cupboard himself after a close friend in law enforcement had warned him a week earlier that we would be visited by Akron’s finest that very night. So, ruling out spontaneous generation on the one hand and some kind of preposterous paternal “arrest wish” on the other, even to an eight-year-old the explanation was obvious: The grass was planted. (Scandals about persistent police frame-ups in Philadelphia, Los Angeles, and elsewhere, shocking to many, are old news to others.)7
Immersing himself in criminal procedure and constitutional law, drafting and filing his own writs and other legal memoranda, delivering his own oral arguments before appellate tribunals, my dad ultimately vindicated himself through federal habeas corpus, the legal procedure by which state prisoners can go to federal courts to argue that they were unconstitutionally convicted or sentenced (see Armour v. Salisbury, 492 F.2d 1032, 6th Cir. 1974). Sentenced as a first-time offender to twenty-two to fifty-five years for possession and sale of marijuana, he could still be wrongfully rotting in a jail cell if the current hostility to habeas had been in effect. The five years it took the slow wheels of justice to grind out his vindication, however, took a great toll, putting my mother on the public dole and resulting in the replacement of my dad’s red brick high-rise apartment building—what he liked to call his “forty acres and a mule”—by a parking lot for police vehicles. Made the devil wanna holler!
The secret of my dad’s popularity with the city fathers and guardians? As hinted earlier, for one thing he was an “uppity nigger.” As history shows, “uppity nigger” is an appellation applied to Blacks who do not shuck and grin and walk on tippytoes around certain Whites, literally or figuratively. Standing 6 feet 8 inches tall, weighing 260 pounds, possessing a better command of the Queen’s English than most, blessed with keen business acumen, and flouting all the racial conventions of his day, my dad stood out as a Black Gulliver among the lily-White Lilliputians who controlled Akron’s essentially segregated social, economic, and political institutions in the 1950s and 1960s.
But Dad was guilty of one affront even worse than uppityness, one many orders of magnitude more subversive of the racial caste system: miscegenation—the dread commingling of gene pools. Of course, the commingling of Black and White gene pools has a long history in the American experience. White male slave owners forcibly injected their genes into the Black population through the owners’ rape of their Black female chattel for hundreds of years under slavery. But the thought of a 6 foot 8 inch barrel-chested Black man skinny-dipping in their European gene pool unhinged the “Lily-putians.” (Recall, incredulous reader, that until the Supreme Court decision in Loving v. Virginia in 1967, in numerous Southern states interracial marriage was a crime. And certainly the racial attitudes that gave rise to the antimiscegenation laws in the South were not confined to Dixie; as Malcolm X put it: “Anything south of the Canadian border is ‘The South.’”) The rankling sight in the late 1950s and early 1960s of my Irish-American mom, with her head full of flaming red hair, and my strapping Black dad, kicking along main street in stride—one, two, arms locked, indubitably matched—undoubtedly contributed to his false imprisonment.
In college, I scoffed at the naiveté of my classmates who were applying to law schools with the stated objective of serving justice. In my view, entering a courtroom was like entering a crooked casino in which the decks are stacked, dice loaded, roulette wheels fiendishly rigged. It took my dad—who more than anyone had reason for cynicism—to disabuse me of my own. He hammered home that even though the Lily-putians had twisted the law to vent their own venomous prejudices, he himself had found redemption in the law, for he had found the key to his own jailhouse door in a lawbook of the prison library. The law is not inherently racist or oppressive; it is merely a tool. It can serve as well as subvert justice. In the pages that follow I hope to draw on my dad’s stubborn optimism to develop a more hopeful picture of the legal process than that drawn by some of its critics.
The primary reason for my cautious optimism about the future of the American justice system—despite its tragic history of racial injustice—is that I do not believe that most White people today are Lily-putians. Most White people today truly desire to be above racism. In this, I differ from some of my friends who hold that most Whites are incorrigibly prejudiced. Our hope for progress toward racial fairness in the courts and society, however, lies precisely in the empirically demonstrable desire of most Whites to promote egalitarian ideals and avoid invidious racial discrimination. The main challenge today is to forge a consensus about what constitutes racism and what to do about it.
Racism on Stilts
Perhaps the gravest threat today to progress toward racial justice comes from the right-wing ideologues bent on convincing White people of good faith that negative stereotypes about Blacks are justified. Trotting out discredited studies, unscientific experiments, and cooked statistics, these pundits try to prove that Blacks are inherently less intelligent and more violent than Whites. The unmistakable implication of these “proofs” of Black inferiority is that disparities between Blacks and Whites in education and employment must be blamed on Blacks’ own inferior genes, not on past and present discrimination. A further implication is that Whites need not resist the influence of some profoundly derogatory stereotypes on their thinking about Blacks. After all, according to these learned men, many of these ugly stereotypes are true!
Old-fashioned racism of the Ku Klux Klan variety is still out of fashion. Growing in its place, however, is the highbrow, pseudoscientific variety—racism on stilts, if you will—one that hides its fascist boots beneath a laboratory coat. Pseudoscientific apologies for racial subordination are nothing new in the American experience. One aim of this book is to add a nail to the coffin of this most recent embodiment of highbrow racism, though I am ever mindful that no quantity of nails will lay it to rest for good. For, like eighteenth-century body snatchers who made handsome profits stealing corpses from graves, opportunistic ideologues like Charles Murray and Richard Hernstein will always be prowling the cemeteries of science for the noisome remains of discredited scientific theories with which to foul the marketplace of ideas.
The Black Tax
Consider what I will call the Black Tax. The Black Tax is the price Black people pay in their encounters with Whites (and some Blacks) because of Black stereotypes. The concept of a “tax” captures several key characteristics of these stereotype-laden encounters: like a tax, racial discrimination is persistent, pervasive, must be dealt with, cannot be avoided, and is not generally resisted. Taxes are commonly regarded as ineluctable facts of human existence, as in the old saw, “Nothing in
