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  • Series: Elgar Studies in Law and Society x
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Minority rights up through the Marshall Court, 1789–1835

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Summarizes the racially discriminatory policies and entrenchments of black slavery adopted by elected branches, both state and federal, from 1789 to Civil War. Analyzes all slave cases that Supreme Court handled from 1789–1835, and major Indian cases of that era. Concludes that the Court was less anti-slavery than was the (indirectly) electorally accountable Attorney General of the U.S. Also demonstrates that Marshall Court decisions became less pro-slavery beginning in 1817, the year the Colonization Society was founded. Supreme Court justices acting on circuit declared unconstitutional the South Carolina Negro Seamen law that jailed free blacks while they were in port, and refused to apply the Virginia law that did the same. Describes Indian Removal Policy, including Trail of Tears. Concludes that Marshall Court stood up for the rights of Native Americans, but the elected branches did more than the Court to restrict and punish slave traders. KEYWORDS: Johnson and Graham’s Lessee v. McIntosh (1823) Cherokee Cases Indian Removal slave trade legislative racial discrimination in U.S. Negro Seamen Laws

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Minority rights in the Taney years, 1836–64

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Covers the years of the antebellum Taney Court (1836–60), comparing Supreme Court policy toward blacks and Native Americans with Presidential and Congressional policy toward them. On the Court, Justice Story exercised intellectual leadership until his departure at the end of 1845. Under Story’s leadership, the Court both freed more slaves from the Amistad ship than the executive branch desired and undermined the enforceability of the Congressional Fugitive Slave Act (1793) in Prigg v. Pennsylvania (1842).The Court from 1846 until 1860, under Taney’s leadership was utterly unsupportive of the rights of blacks and of Indians. The elected federal branches in these years were nearly as bad. Congress passed the Kansas Nebraska Act, abandoning the limits of the Missouri Compromise; President Buchanan wanted Congress to accept the illegitimate Lecompton Constitution. No branch of the federal government supported racial minority rights 1846–60. This extremism begat the election of Lincoln. KEY WORDS: U.S. v. Rogers (1846) Groves v. Slaughter (1841) Prigg v. Pennsylvania (1842) Fugitive Slave Act Ableman v. Booth (1854–61) Dred Scott Indian Removal

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Civil War and Reconstruction

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Treats period when normal political structure established by the Constitution was not functioning. Eleven states removed themselves from U.S. law-making process in 1861 and the last four of them did not return to Congress until 1870. Moreover, suffrage for former slaves was imposed on these eleven states as the price of ending military rule over them, and this fact caused many whites to boycott the postbellum Southern elections. The civil rights revolution of federal legislation from 1866–75, detailed in this chapter and the Thirteenth, Fourteenth and Fifteenth Amendment all were the products of this truncated political structure. Traces both legislative initiatives of Reconstruction and Presidential enforcement measures, as well as Supreme Court responses, including Court willingness to strike down state-level anti-Indian or anti-Chinese measures. Shows that Waite and Chase Courts helped Reconstruction more than is often recognized. KEYWORDS: Civil Rights Acts (1866–75) Enforcement Acts (1870s) Railroad v. Brown (1873) Walker v. Sauvinet (1875) U.S. v. Cruikshank (1876) U.S. v. Reese (1876)

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After Reconstruction

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

From March 1875 the U.S. Congress stopped passing civil rights laws, and in 1894 rolled back most existing ones. Meanwhile, executive branch through 1885 and the Waite Court through February1888 continued to uphold rights of racial minorities. President vetoed early efforts at Chinese exclusion and prosecuted southern racial violence. Waite Court upheld Indian rights in Ex Parte Crow Dog (1883), Asian rights in Yick Wo v. Hopkins (1886), and black jury rights and voting rights. Fuller Court years (March 1888–1910) were the post-Emancipation nadir for black Americans in all three branches (excepting Theodore Roosevelt Administration): blacks lost voting rights and jury rights throughout South. No branch stood up for Indian rights in 1885–1903 period, as Dawes Policy cost much of their land. Fuller Court often upheld rights of Chinese or Chinese Americans, and Indian rights in 1896, 1905 (twice), and 1908, but sometimes ruled against each. KEYWORDS: U.S. v. Harris (1883) Yick Wo v. Hopkins (1886) Major Crimes Act of 1885 Dawes Act of 1887 Fuller Court Chinese Exclusion Black disenfranchisement

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The White and Taft Courts, 1911–30

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Describes shift for black American from the abysmal Fuller Court to the moderately protective White Court (1911–21). Protection endured through the Taft Court years (1921–30). Analyzes potential causes; zeroes in on combination of a decade of northern mob violence against blacks at beginning of 1900s and the intense experience for the Supreme Court of U.S. v. Shipp II (1909) trial, where Court for the only time in its history tried criminals on original jurisdiction. The crime was contempt of [the Supreme] court in the form of lynch mob murder led by sheriff after murder victim’s appeal was accepted to be heard at Supreme Court. Elected branches treated Asians worse than ever, and the Court mainly protected them against administrative or state-level rights violations. In 1916 Court overruled Heff (1905) mandate that once they were citizens, Indians had rights equal to whites. Congress in 1924 gave U.S. citizenship to all Indians. KEYWORDS U.S. v. Nice (1916) Buchanan v. Warley (1917) Asian Barred Zones Act Peonage Moore v. Dempsey (1923) Nixon v. Herndon (1927)

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A new “racial” minority: Hispanics, 1800–1992

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Hispanics joined U.S. by territorial acquisition (1803–98) under various treaties (some following wars). Hispanics were “white by law,” with the exception of Pueblo-style Indians of the Mexican Cession, against whom Congress forced the New Mexico Territory to discriminate. Hispanics in the Southwest and Puerto Ricans in New York experienced discrimination from local authorities and private persons despite officially “white” status. In the Southeast, Puerto Ricans and Cubans experienced discrimination if they appeared black. Hoover, Roosevelt, and Eisenhower deported massive numbers of Mexicans, which fact caused many of their family-member, birth-right U.S. citizens to leave also. Mendez v. Westminster School District (1946–47), a California case, laid the foundation for Brown v. Board (1954). Only in a 1954 jury case, did the Supreme Court acknowledge that Hispanics were a group needing protection under the Equal Protection Clause. Eventually the right to be educated in Spanish interfered with efforts at school desegregation. KEYWORDS: Treaty of Guadalupe Hidalgo (1848) Braceros program Lau v. Nichols (1974) Mendez v. Westminster (1946–47) Hernandez v. Texas (1954) Operation Wetback

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Leslie F. Goldstein

Supreme Court continued its leadership on African-American rights 1930–89, with the exception of years 1947–52 and 1964–¬68, when Presidents Truman and LBJ, both of whom ascended to office via death of the President, shared a co-leadership role. On Asians the elected branches dominated policy, notoriously mistreating Japanese-Americans during World War II, but removing prohibition on Chinese citizenship in 1943, and granting Philippine independence in order to block Filipino immigration. Court checked state-level anti-Asian laws. Pushed by Presidents Truman, Eisenhower, Kennedy and Johnson, Congress deracialized immigration and naturalization policy by 1965. On Native Americans, the FDR Administration rejected Dawes-based assimilationism, honoring tribal sovereignly and tribal culture. Truman and Eisenhower backtracked, but since JFK federal policy has supported tribal autonomy. Court since 1930s has helped tribes via Just Compensation Clause but wrestles with tensions between Indian Civil Rights Act (1968) and other federal policies versus tribal sovereignty. KEY WORDS: Tribal termination Criminal due process revolution Indian Reorganization Act Korematsu v. U.S. (1944) Ex Parte Endo (1944) Desegregation

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Overview and conclusions

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Summarizes 200 years of discrimination and anti-discrimination federal policy toward blacks, Indians, Asians, Hispanics. Unveils apparent judicial review pattern: Court can and often does check abuses of racial minorities by state- and territorial-level governments, and abuses of power by administrative officials. Court has hardly ever declared an act of Congress unconstitutional on the grounds that it harmed rights of a racial minority, but has used Just Compensation Clause to demand recompense for Indian tribes. As to a given minority, Court was not always protective, but on the whole judicial review was more helpful than not. President too was important in protecting minority rights, both as enforcer and in persuading/blocking Congress. The evolution of rights of Hispanics, blacks, and Asians, respectively, built upon successes by the other two. The presidents most supportive of blacks’ rights came to power either elected by a minority—Lincoln—or by presidential death: TR, Truman, LBJ. KEY WORDS: Judicial review Minority rights Hughes Court Fuller Court Marshall Court Warren Court

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The U.S. Supreme Court and Racial Minorities

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

The U.S. Supreme Court and Racial Minorities offers an in-depth, chronologically arranged look at the record of the U.S. Supreme Court on racial minorities over the course of its first two centuries. It does not pose the anachronistic standard, “Did the Supreme Court get it right?” but rather, “How did the Supreme Court compare to other branches of the federal government at the time?” Have these Justices, prevented against removal from office by discontented voters (in contrast to the President and the members of Congress), done any better than the elected branches of government at protecting racial minorities in America?
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Laura Carlson

This comparative legal work highlights how employee voice, both collective and individual, assumes different guises in the legal and industrial relations models in the United Kingdom, Germany, Sweden, and the United States. At a time when labor rights are gaining status as human rights, a comparison of different systems, delineating the boundaries of such rights, is warranted by the protections sought and granted. The historical trajectories of the four systems have much affected the outcomes in the form of today’s national labor law models as well as those key issues still contested. The historical origins of collective worker organizations, first in the form of the guild system, then expanded to journeymen’s associations, then to the modern worker organizations are traced. A comparison of these different systems from the perspectives of employee voice and Habermas’ procedural democracy concludes the book.