Race Distinctions in American Law

by Gilbert Thomas Stephenson

Perhaps, as a whole, actual race distinctions in the United States are not increasing; but distinctions, formerly sanctioned only by custom, are now either permitted or required by law, and the number of recent suits in States outside the South indicates that actual discriminations are as prevalent as they have been at any time since 1865.

DISTINCTIONS NOT BASED ON RACE SUPERIORITY

What is the fundamental cause of race distinctions? No comparison of laws can formulate an answer to that question; but the personal observation of the writer leads to the belief that race distinctions are not based fundamentally upon the feeling by one race of superiority to the other, but are rather the outgrowth of race consciousness. If Negroes were in every way equally advanced with white people, race distinctions would probably be even more pronounced than now; because, in addition to physical differentiation, there would be the rivalry of equally matched races. Thus, the widespread prejudice entertained by Gentiles toward Jews, resulting in actual, if not legal, distinctions, is due, not to any notion that Jews are intellectually or morally inferior to any people, but to a race consciousness which each possesses. The exclusion of the Japanese was due, not so much to an intellectual or moral inferiority of that race to the white race, as to a difference in their racial ideals. So long as two races living side by side have each an amour propre, the more numerous may be expected to prescribe distinctions to which the less numerous must submit; that is, until the spirit of universal brotherhood is a more compelling force than it is at present.

SOLUTION OF RACE PROBLEM HINDERED BY MULTIPLICITY OF PROPOSED REMEDIES

If the above generalizations are correct, they should enable one to draw some practical conclusions for dealing with race problems. The proper adjustment of race relations is being retarded by the multiplicity of suggested solutions, many of them conflicting and thus hindering one another, some of them parallel and necessarily duplicating expenditure of energy. For instance, some men, including both Negroes and white persons, believe that the proper solution of the race problem is the deportation of the Negro race; others, that it is the segregation of that race in some portion of the United States or colonization in some territorial possession; while others believe that the South should remain the permanent home of the majority of Negroes. Advocates of territorial separation of one sort or another think that efforts should be directed toward getting the Negro to his new home as soon as possible. Those who believe that the home of the Negro will remain in this country are divided upon the steps to be taken. Some of this class approve of further education of the Negro, being divided, however, into two overlapping groups, the one emphasizing literary training, and the other industrial. Others of this class maintain that any sort of systematic education of the Negro is only hastening an inevitable race conflict. In the midst of these conflicting opinions, the Negro problem, instead of reaching a complete or even partial solution, is only being aggravated.

There is no need of prophesying what the final solution will be, but one is justified in believing that the inevitable changes will be gradual. Whether or not the final adjustment is a segregation of the Negro race, one can hardly expect it to come in one, two, or even six decades. A century hence the white people will probably be living side by side with Negroes as they do now. The duty of the American people is to act properly toward all races in their own lifetime: the far future will take care of itself. The difficult thing to ascertain is the proper mode of acting to-day. The solution of the race problem, when it does come, will doubtless be a composite result. The race relations are not the same in different sections of the country or in different States of the South or even in different counties of the same State. Though the proper steps now to be taken in the various sections or States or counties may be different, there can, in the nature of things, be but one best mode of action for each community. That must be one for which all people, regardless of race or section, may profitably strive.

SEARCH FOR A COMMON PLATFORM

A noticeable effort has been made during the past few years by students of race relations to construct a platform upon which all men of every race may stand and work together for the permanent settlement of all racial antagonisms. This is evidenced by the organization of late years of national movements which have enlisted the support of men of different sections and races. One of these, the Southern Education Association, has been promoted by men from the North and East as well as by men from the South, by both Negroes and white people. Soon after the Atlanta riots of two years ago, a conference of Southern white men and Negroes was held at Atlanta, for the purpose of promoting harmony between the races in the South. Within a few months a conference of Northern and Southern white men has met in Washington City to consider the Negro problem. Still more recently a group of Southern students in Harvard University, realizing that the race relations were different in different localities of the South, have organized an informal club to study the practical problems arising out of the presence of the Negro in the South and to exchange ideas formed from observation and experience in their respective localities. There are other indications of a desire to work out a common set of principles by which everyone may be governed.

PROPER PLACE OF RACE DISTINCTIONS

Assuming that it is possible to formulate a platform deserving the approval of all races, it is appropriate for a student of any phase of race relations to suggest a plank for it. A student in the special field of race distinctions in American law may endeavor to show the place that such legal distinctions properly hold, bearing in mind all the while that the whole issue springs out of race consciousness as it actually exists to-day, not as it should be or as it may be in the distant future.