THEIR ACCOMPLICES WORE ROBES

A searing indictment of judicially condoned—and even enshrined—racism in American law.

Former Villanova law professor Starkey, author of In Defense of Uncle Tom: Why Blacks Must Police Racial Loyalty (2015), here proposes that what he calls “the constitutional Trinity—the Thirteenth, Fourteenth, and Fifteenth Amendments” might have been enough to ensure “complete Black freedom” had the Supreme Court not consistently aligned itself with “caste preservationists” who, from the time of Reconstruction onward, have created laws and policies that support the subordination of Black Americans. One early test concerned whether now-emancipated Blacks could serve on juries, which West Virginia had banned. In Starkey’s extensive account of the legal arguments that followed, West Virginia’s highest court had ruled that the inability to serve on a jury did not mean “the denial of equal protection of the laws,” a neat bit of semantic parsing that provides the basis for Starkey’s revealing analysis of how the law both interprets and constructs the Constitution: “The country’s foundational text includes a guarantee of equality powerful enough to combat any pathogen of oppression. What it achieves depends on interpretation.” One leg of interpretation is intent, he adds, and intent is always difficult to establish. From that carefully elaborated starting point, Starkey moves on to examine some of the most critically important legal cases touching on racial justice, among them Plessy, Brown, and Bakke, always with twists of judicial interpretation that, he argues convincingly, never quite deliver promised equality to Black stakeholders in the polity. Indeed, since the Reagan era, the ascendant conservative moment has insisted that whites are the victims in “affirmative action, quotas, and other race-­conscious programs geared toward atoning for past racial injustices that needed no atoning,” and the tenor of current politics suggests that no improvement is in the offing.

A powerfully argued study of a legal system that favors those who “persevere in undermining Black freedom.”