I'm still processing much of what was talked about here during our reading of The New Jim Crow. In continuing my studies this week, I picked up Randall Kennedy's book Race, Crime, and the Law. As I've said before, one insight that's stuck from Alexander's work is the need for skepticism when we discuss "law" and its cousin "order." Laws are not synonyms for justice. Indeed, Alexander is arguing not that the criminal-justice system is flawed but that it is fundamentally unjust and has always been so.
That latter point deserves some emphasis. If there's one thing I am drawing from the historical portion of Kennedy's work, it's that America has always viewed its black population as a kind of sleeper cell—either criminals in fact, or criminals in waiting. All of our racist political rhetoric, from birtherism to "welfare queens" to "state's rights" to Willie Horton to Sister Souljah, reflects this. Black people represent an element in this country that tends to either break the law or exploit its loopholes at the expense of good, hard-working white people.
And this view is old. For most, if not all, of their existence, black people have been America's premier outlaw class. From Kennedy:
Prior to the Civil War, many jurisdictions made slaves into “criminals” by prohibiting them from pursuing a wide range of activities that whites were typically free to pursue. Authorities enacted criminal statutes barring slaves from learning to read, leaving their masters’ property without a proper pass, engaging in “unbecoming” conduct in the presence of a white female, assembling to worship outside the supervisory presence of a white person, neglecting to step out of the way when a white person approached on a walkway, smoking in public, walking with a cane, making loud noises, or defending themselves from assaults. Governed by a separate law of crimes, slaves were also subjected to a separate brand of punishment. Slaves, for example, were subjected to capital punishment for a wider range of crimes than any other sector of the population. Virginia, for instance, defined seventy-three capital crimes applicable to slaves but only one—first degree murder—applicable to whites.
To criminalize black people for reading, walking, worshipping—things whites do all the time—is to essentially criminalize black humanity. And this not just a matter of enslaved black people. States like Illinois and Oregon passed laws barring all black people from entering their borders. Among those criminalized by these laws was a black man who brought his fiancée to Illinois in hopes of marrying her. He was prosecuted and convicted, and in upholding his conviction the Illinois Supreme Court declared its intent "to exclude any further ingress of negroes, and to remove those already among us as speedily as possible."