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The Legal Universe: Observations on the Foundation of American Law | Excerpt

By Vine Deloria Jr. and David E. Wilkins


The Majesty of Law

One of the most persistent debates in American society revolves around the question of the size of government. We consider it too big if it interferes in our personal affairs and too small when it fails to provide us with benefits and services we believe we are entitled to. But we do not really mean the size of government at all; we mean the role of government, its function and purpose. The various amendments to the US Constitution give eloquent testimony to the fact that we have both wrestled with this question and been confused by it most of our national life. Moreover, the birth of the Tea Party movement, the global and national economic recession, and the Obama administration's eye-popping efforts to address the massive financial problems — the $787 billion stimulus package, substantial banking intervention, attempts to shore up the American automotive market by, for example, forcing Chrysler into bankruptcy, and the president's long-term goal to reduce the degree to which the United States is a consumer-driven economy — are the most recent iterations of that age-old question: what should be the role of the government, particularly in dire economic situations?


Nothing seems quite as clear as the general philosophical propositions that undergird our political institutions. The preamble to the Constitution declares, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness." These self-evident truths, like many commonsense propositions, are difficult to understand and almost impossible to realize. Their majesty resides in their inspirational value, not in their application. When we attempt to realize them in our daily lives, through the establishment of governments and the promulgation of laws, we soon discover that a simple idea such as equality takes on disturbing proportions and implications when it must be applied to our immediate social situation.

All human societies strive, as part of their maturation process, to turn their philosophical beliefs into a reality. Nevertheless, the United States has frequently fallen short of its goals and has both experienced and created the most dreadful incidents of injustice. We can often understand why these things happen, but we generally lack the skill and knowledge to establish the procedures whereby we can avoid such problems in the future. Only after prolonged agony and experiment, it seems, are we sometimes able to construct the proper mechanisms for at least coping with, if never entirely solving, the problems that bedevil our national soul. The following story is a historical illustration of the agony and profound difficulty that the members of one group we will be examining, African Americans, experienced in their struggles to have their humanity recognized and respected by the US legal system.


On the dark, sultry night of September 30, 1919, a small group of impoverished black sharecroppers gathered in a little church in the backcountry of Arkansas. They shared a common lot of poverty, systematically enforced ignorance, and racial discrimination. The Progressive Farmers and Household Union of America, which had called the meeting, had offered to help them organize and hire a lawyer to represent them in their continuing struggle against the white landowners who were oppressing them. Thus, one by one, they straggled into the rural church that evening with cautious optimism for the future and hoping that their meeting would not attract the attention of the whites who controlled the county. But their hopes were in vain. Word of the gathering had reached the sheriff, and he quickly dispatched Deputy Sheriff Pratt with two other men to keep track of what the sharecroppers were doing. Along the way, other whites, looking for an evening's entertainment, decided to accompany the law officers to the church.


The meeting never took place. From the shadows surrounding the church came hoots, catcalls, and curses. As each sharecropper walked toward the church, they were identified by name and immediately threatened. When they showed no fear and no sign of dispersing, the hidden whites became annoyed and fired a gun in the air, warning that they meant business. When there was no response from those assembled inside the church, they fired shots closer to the building. Soon general shooting broke out, and in the confusion one of the white men who had accompanied the deputy sheriff was killed. The black sharecroppers scattered into the countryside, some hiding, others trying to reach their homes.


As word of the white man's death spread through the county, the incident was completely distorted by local whites. The sharecroppers were blamed for starting the violence, and white citizens were told that a general black insurrection was taking place. During the next day and night, gangs of armed whites roamed the hills, beating and killing many African Americans. In all, between 200 and 250 blacks were killed, and five whites died. Arkansas governor Charles Brough, when informed that Phillips County was suffering a major black "uprising," appointed the Committee of Seven — prominent white citizens who he charged with bringing law and order to the area.


The committee did little to soothe tempers; they told a growing crowd of frightened, angry whites at the Phillips county seat of Helena that the Progressive Farmers and Household Union of America was a dangerous revolutionary organization dedicated to starting a race war between blacks and whites. How the committee reached this conclusion was unclear, but it served to keep the whites in a frenzy. When someone killed a second white man the following day, every black who could be taken alive was brought to the county jail for interrogation, although the circumstances of this second killing suggested that the man might have been slain by a fellow white to settle an old score. Nevertheless, 122 blacks were indicted by the grand jury on charges growing out of the riot, and 73 were charged with murder. Not a single white person was indicted.


When news that the killers had been identified reached the mob assembled in front of the jail, cries of "Lynch!" filled the air. On the following day, October 2, federal troops were sent to the county to prevent any further violence. The crowd, in an increasingly agitated mood, continued to surround the jail and dispersed only when the Committee of Seven appeared and promised that if the crowd let the law take its course, the accused blacks would be properly executed by the state. Satisfied, the crowd gradually dispersed.


Having weathered the immediate crisis, the committee and local law officers began gathering evidence for the trials. Blacks who had not been accused of crimes were whipped and tortured for information about the killings until finally several men agreed to testify that they had witnessed the accused blacks, standing in a group, kill a white man with a high-powered rifle.

The lawyer who had agreed to assist the sharecroppers prior to their meeting, O. S. Bratton, fared almost as badly as his intended black clients. He barely escaped being killed by the mob the morning after the church attack. On October 2, when the Committee of Seven was promising that law would prevail, he was arrested and held in jail on a murder charge.


He remained there for the rest of the month. On October 31, he was indicted for battery but later that day was secretly taken from jail by the county judge who would later try the case. Hustled into a closed automobile, Bratton was driven four miles to West Helena, where he was put on the train just ahead of the mob that had heard of his release and was looking for him. After his forced departure, the court-appointed a defense lawyer more ideologically in tune with the racist sentiments of the community.


One of the trials lasted a mere forty-five minutes. It featured a simple declaration that a white man had been killed and the rehearsed stories of the two black witnesses. No defense witnesses were called. There was no cross-examination of prosecution witnesses, no conflicting evidence presented, no closing defense argument — in short, no defense. It took five minutes for the jury to return its verdict for all the defendants: guilty of murder in the first degree. The convicted blacks received the promised death sentence and were sent to the state penitentiary at Varner to await execution. The other trials followed similar patterns. In all, twelve men were sentenced to death. Additionally, another sixty-seven individuals were sent to prison on various other charges.


By the spring of 1920, the case had gained national attention and thousands of letters expressing sympathy and demanding clemency or suggesting a commutation of the death sentences began arriving at the governor's office. Local citizens began to fret over the delay caused by the appeal and demanded the immediate execution of the sharecroppers. Five original members of the Committee of Seven wrote the governor that "all of our citizens are of the opinion that the law should take its course." In October 1920, a meeting of nearly four hundred members of the Richard L. Kitchens Post of the American Legion in a resolution addressed to the governor reminded him that "a solemn promise was given by the leading citizens of the community, that if these guilty parties were not lynched, and let the law take its course, that justice would be done and the majesty of the law upheld." They urged the governor to proceed with the executions.


The governor, of course, could not act to carry out the sentence in the face of orders to stay the executions issued first by the higher state courts and then by the federal courts. In 1923, the sharecroppers' case finally arrived at the US Supreme Court, in Moore v. Dempsey, where the high court reviewed the Arkansas federal district court's denial of the writ of habeas corpus filed by the condemned blacks. Justice Oliver Wendell Holmes, writing for the majority, cited numerous instances of prejudicial acts that had precluded a fair trial for the accused, and the Court reversed the decision and sent the case back for further hearings. But the Court's decision was not unanimous. Torture to elicit damning testimony, systematic exclusion of blacks and impartial whites from the jury, and the denial of the right to a counsel of their own choice were not believed to be sufficient evidence of a lack of due process by Justices James McReynolds and George Sutherland, who argued that the solemn adjudications of state courts ought not be overturned on the basis of mere ex parte affidavits from the convicts.


This incident is known as the Elaine Race Riot or the Phillips County Race Riot in Arkansas and is typical of the treatment of African Americans in the South in the early decades of the twentieth century. The arrest, indictment, prosecution, trial, verdict, and sentencing certainly followed the form of legal process, but all the evidence indicated that justice had been badly abused at each step in the procedure. Eventually, after a struggle that lasted for a decade and a half, the blacks were freed. Moore v. Dempsey is usually cited as a landmark case in the movement incorporating Fifth and Fourteenth Amendment protections for state citizens. But more interesting, for our purposes, is the idea of law held by whites in this case.


It has been said that we get our understanding of the law from observing the actions of people around us rather than from our reading of statutes and ordinances. Yet there must be some correlation between what we know the law to be and the situations in which we demand its application. There is a startling disparity between the form and substance of law in this case that cannot be avoided. How could the American Legion Post, for instance, nearly a year after the trial, have petitioned the governor for immediate executions when it was apparent to nearly everyone in the country that the convicted blacks had been denied any semblance of justice? And in their petition, how could they insist that "the majesty of law" would be enhanced if the men were summarily executed before their appeals had been decided? In view of the mass of evidence presented before the Supreme Court concerning the abuses of the legal system, how could two justices describe the proceedings in the state courts as "solemn," thereby lending judicial dignity to a process that could only be described as loathsome?


We can answer these questions only by supposing that the promise made by the Committee of Seven to the mob assembled outside the Phillips County jail represented a higher vision of justice and served a greater social purpose than did the orderly operation of an impartial judicial system. We must suppose that the mockery of a trial and demand for immediate execution of these poor African American cotton farmers was more resonant with the philosophy of the Declaration of Independence and the Constitution than any other way of handling the case. And this supposition is impossible to contemplate. No system of law can accommodate itself to satisfy the emotional demands of a mob, and after tempers had cooled, people should have understood that fact and relented. But they did not. The committee's promise, long after the racist fever of the moment had subsided, was regarded as a legally binding resolution of the incident by the people and elected officials of Arkansas. Where is the correlation between justice and law in this instance?


In the Elaine riot and its subsequent legal activities we have an instance in which law is seen as an instrument to enforce a view of the world that is wholly subliminal, emerging only in dire circumstances to become an embarrassment to everyone. The critical words majesty and solemn seem to indicate a strong belief that law must be reliable and relentless in its operation, almost in defiance of the justice that it promises to administer. Once the formal process has been acted out, we seem to say, the substance of justice has been realized and no other considerations need be made. Moore v. Dempsey, regardless of the constitutional issues it presents, gives us an opportunity to critically examine how much our domestic law is the product of emotions and to what degree it represents the lofty philosophical propositions of the nation's organic documents.

Law and human emotions have always had an intimate and perplexing relationship. Traditionally we have been told that so-called primitive societies allow themselves the luxury of engaging in swift, brutal retaliation and that the hallmark of civilized life is our avoidance of bloodlust retributive justice. But this image of scowling and bloodthirsty savages seeking to exact eye-for-an-eye vengeance is, in fact, a fundamental misconception about aboriginal life, which, more often than not, focused on peacemaking and restorative justice when disharmony arose in the community. More often it has been the allegedly "civilized" peoples who have formed the frenzied mobs that have carried out vicious campaigns against those accused of various offenses.

Nazi Germany is not the only example of a people and law gone astray. We need only remember vigilante groups that terrorized cities in the western United States, the sordid record of southern lynchings of African Americans, and the brutal attacks on workers at Ludlow and Haymarket to realize that mob violence is more often a product of mass society than it is a characteristic of indigenous peoples. More recently under the George W. Bush administration's two terms, we have witnessed a series of actions and policies — military tribunals at Guantanamo Bay, Cuba, and the use of "enhanced interrogation techniques," also known as torture — all executed under the color of law that has cast a pall over the democratic soul of the nation, both internally and in the eyes of the world.



Excerpted fromThe Legal UniversebyVine Deloria Jr., David E. Wilkins.

Copyright © 2001 Vine Deloria Jr. and David E. Wilkins. Excerpted by permission of Fulcrum Publishing.

All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.




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