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Chapter 2
Themes
Key
LitCharts assigns a color and icon to each theme in The Color of Law, which you can use to track the themes throughout the work.
De Jure vs. De Facto Segregation
Segregation and the Preservation of Racial Caste
Racism, Profit, and Political Gain
Separation of Powers, Legal Activism, and Minority Rights
Summary
Analysis
Despite the comfortable narrative “of American history as a continuous march of progress,” in reality “sometimes we move backward.” For instance, integration actually peaked in 1880. In Part I of this chapter, Rothstein explains how the end of Reconstruction in 1877 led to widespread segregation in the South, in part through a variety of local laws (called Jim Crow laws), which enforced the segregation of goods and public services, denied basic rights to African American people, and replaced slavery with sharecropping. Before the 1876 election, white supremacists organized massacres and attempted to overthrow state and local governments to “prevent African American people from voting.”
Rothstein points out the “march of progress” narrative because it is one of many euphemistic ideas, primarily circulated within white communities, that allows people to conveniently forget that oppression continues and is reversible through political action, as well as resign any sense of personal responsibility for the provision of equality and justice in the United States. If things always get better no matter what, then equality is just a matter of time, and it is not worth fighting for justice, because justice is inevitable. Since things are better than they were in the past, this thinking continues, minorities should be grateful that their oppression is not as severe as their ancestors’. Like talk about “inner cities” rather than “ghettos,” this progress narrative is not truly about respecting minority groups, but rather about white people feeling better by relinquishing responsibility and covering up the truth. The backlash to Reconstruction is a crucial example of how things do not naturally get better over time and illustrates the dangers in assuming that they will, and therefore refusing to participate in politics.
Themes
A group called the Red Shirts conducted one such massacre in Hamburg, South Carolina. The group’s leader, Benjamin Tillman, exploited the fame it gave him to run for the Senate. (He won and served for 24 years.) Another terrorizing massacre two months later, which the state governor decided not to stop, promised white people an overwhelming victory in Tillman’s town in the election of 1876. Through these tactics, the state’s integrated government was replaced with an all-white one that “instituted a system of segregation and exploitation that persisted for the next century.” Tillman was never punished, but instead honored with a statue at the state capitol building in 1940.
Although the story of the Red Shirts massacre might seem horrifying and inhuman today, it is part of the unbroken chain of racism in American history, and its legacy stretches to the present. There is no clean break between then and now—this is one of the central points of Rothstein’s analysis of segregation, which is a problem precisely because it sustains the legacy of slavery and state-sponsored white terrorism. South Carolina’s white population happily chose Tillman, a proud white supremacist and mass murderer, to represent them in Congress, and then built a statue of him to express their pride almost a century later. Through this unsettling example, Rothstein shows that any American who thinks slavery’s impacts are fully in the past is utterly ignorant about their own country’s history and present.
Themes
In Part II, Rothstein explains that antiblack racism extended far past the South, leading to backlash in places as distant as Montana, where African American people “were systematically expelled” after 1900. In that year, the state capital, Helena, was completely integrated, with African American police, newspapers, and businesses. But this changed after 1906—as in many places, laws blocked “African Americans from residing or even from being within town borders after dark,” and numerous Montana towns announced new “Color Line” policies with public signs. In the 21st century, many Montana cities have fewer African American residents than they did in 1910.
Rothstein continues identifying and busting common myths about racism in the United States: it was never confined to the South, and Northern cities explicitly wrote segregation into law throughout the 20th century. Rothstein does not mince words: in many places, Montana included, America was more integrated at the turn of the 20th century than it is today. He again wants to emphasize that things are getting worse, not better; that this is the result of policy; and that citizens have the power to stop it. Although Montana’s complete ban on African American residents seems uncommonly extreme, Rothstein will soon show how this happened on the scale of neighborhoods all around the United States through the 1960s, and has never been rectified.
Themes
The backlash to Reconstruction, Rothstein argues in Part III, did not even spare the federal government: the virulently racist Woodrow Wilson segregated everything in all federal offices in Washington, D.C. To carry it out, one of the men he hired was “the assistant secretary of the navy: Franklin Delano Roosevelt,” who never ultimately challenged segregation during his own presidency.
Again, there is little question that things got worse rather than better after Reconstruction: segregation was federal law for many years, a fact often left out of history textbooks and popular narratives of American history. While Woodrow Wilson was an open white supremacist who defended the Ku Klux Klan, there is little data about Roosevelt’s personal beliefs. However, Roosevelt’s willingness to implement segregation means that he is guilty of racist discrimination even if he did not personally believe that African American people are inferior to white people. By focusing on the effects of Roosevelt’s actions, Rothstein forces readers to confront the fact that there is not much of a moral difference between his advancement of racist causes and Wilson’s overt, documented racism.
Themes
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Along with the widespread segregation of government, Rothstein writes in Part IV, officials began trying to segregate American cities during this time period. This started from “the local level” through zoning laws. In 1910, Baltimore “prohibit[ed] African Americans from buying homes on blocks where whites were a majority and vice versa.” (This led to strange cases on integrated blocks, and eventually the city changed the law to “appl[y] only to blocks that were entirely white or black.”) Dozens of Southern cities followed suit, and white people everywhere supported these policies in principle.
Like public housing, zoning laws show how local governments compromised with the federal government to implement segregation across the United States. Baltimore was de jure segregated through the coordinated efforts of multiple layers of government, and through explicitly racist rhetoric that the white majority sanctioned. Just as Roosevelt was responsible for segregation because he implemented Wilson’s racist policies, white people in cities like Baltimore supported segregation by sanctioning it in their own blocks and neighborhoods, even if they were not necessarily white supremacists.
Themes
In the case Buchanan v. Warley, the Supreme Court blocked Louisville, Kentucky’s segregation ordinance in 1917, deciding that the Fourteenth Amendment lets homeowners sell to whomever they want. But other cities continued imposing segregated zoning—Atlanta followed suit under the direction of a famous city planner, and although the Supreme Court declared its segregation unconstitutional too, the city ignored the decision and “use[d] the [same] racial zoning map […] for decades.” Other cities—including Indianapolis, New Orleans, Birmingham, Kansas City, and numerous others—adopted variations on the same explicit segregation policies, and then used technicalities to justify their legality. The courts repeatedly rejected these cities’ policies, but often only decades later. Other cities focused on protecting middle-class white neighborhoods from African American people.
The Buchanan case is important because it demonstrates the Supreme Court’s power to take concrete action against unconstitutional segregation, if it so desires and finds the right circumstances. However, cities’ responses to the Court’s decision illustrate the limits of its power, because it only operates in retrospect: it can stop unconstitutional laws that have already been passed, but its decisions only have validity going forward if the executive branch is willing to honor them. Unfortunately, both the federal government and local governments were essentially uninterested in enforcing this ruling, and so the Court’s rulings were not as consequential as they should have been. Moreover, housing discrimination is a uniquely severe problem in this regard because declaring past segregation unconstitutional does not undo it—African American people are already living in the segregated neighborhoods that have been created for them and will not be able to integrate their cities unless specific provisions are made to help them afford housing in middle-class white areas.
Themes
In Part V of the chapter, Rothstein reflects on the 2014 police killing of Michael Brown, an unarmed black teenager, and looks at the history of segregation in Brown’s town of Ferguson and the broader St. Louis metropolitan area to which it belongs. First, during the 1910s, officials zoned neighborhoods economically, reserving them “for single-family homes that lower-income families of all races could not afford.” They did this to white neighborhoods first, in order to keep “colored people” out of “finer residential districts.” By never publicly naming race but constantly rezoning areas to keep African American people out, St. Louis avoided violating the Buchanan v. Warley ruling. It consistently segregated African American people into “industrial” zones—both the only zones where polluting factories, “taverns, liquor stores, nightclubs, and houses of prostitution” could open up, and the only zones where nobody could get a mortgage.
By connecting Michael Brown’s tragic death to the broader pattern of segregation and ghetto formation in the United States, Rothstein emphasizes the connection between de jure segregation and the criminalization and police abuse of minority youth—namely, both are ways of sustaining the racial caste system, or ensuring that African American people remain second-class citizens. Recognizing the legal danger in following Louisville’s precedent, St. Louis’s zoning laws were never explicitly racial, but any close analysis of them makes it clear that they were consistently motivated by racism and officials’ desire to isolate African American people. However, because they did so through euphemistic language and policies that did not explicitly mention race, they maintained plausible deniability. Zoning African American neighborhoods for industrial development and seedy, exploitative industries was a triply oppressive strategy: it ensured that conditions would deteriorate and grow more dangerous, it provided white people with a further incentive to avoid living in area, and it helped reinforce associations between blackness and criminality.
Themes
In Part VI, Rothstein explains that the St. Louis model—“economic zoning that could also accomplish racial segregation” without violating the Buchanan v. Warley decision—spread widely in the 1920s, with support from the federal government, prominent city planners, and “outspoken segregationists” like Commerce Secretary Herbert Hoover, who advocated for zoning laws everywhere to prevent conflict and protect the value of white people’s homes. And in 1926, the Supreme Court defended one such zoning law against building “apartment buildings in single-family neighborhoods,” contradicting its own principle of “freedom of contract” from the Buchanan case and overturning the decision of a lower-court judge who clearly saw the law’s “true racial purpose.”
Perhaps unsurprisingly, even the federal government dedicated its energies to circumventing the Supreme Court’s Buchanan ruling, which again shows both the advantages and disadvantages of the separation of powers: while the courts are charged with protecting the constitutional rights of minorities, their rulings are no more all-powerful than the racist whims of housing administrators with little interest in the Constitution or the rights of African American people. In the subsequent ruling described here, the Supreme Court essentially gave its blessing to indirect, euphemistic racial zoning strategies that hid laws’ “true racial purpose” with faulty economic logic. (Rothstein explains why this logic is incorrect in Chapter Six.)
Themes
These kinds of zoning restrictions are still used, and the Supreme Court has defended examples from the 1970s in which residents used openly racist appeals to fight the construction of apartment buildings in their neighborhoods. But Rothstein notes that he is less interested in “courtroom standards of proof” than the effects of these policies and the obviously racist intentions of those who implemented them, which allowed the government to enforce “the systematic racial segregation we find in metropolitan areas today.”
By noting the disparity between “courtroom standards of proof” that apply to any given instance of discrimination and the pattern of discrimination that is clear to the naked eye, Rothstein also points to the necessity of pushing against segregation through forms of activism beyond and outside the legal system. Because all actors stopped just short of proclaiming racist intentions, they were allowed to develop a system that looks and works exactly like one developed with clearly racist intentions.
Themes
In Part VII, Rothstein notes that cities commonly zoned areas for “industrial” purposes or “even toxic waste” in order to relegate African American people to slums throughout the whole 20th century. There is no scientific doubt that minorities, and especially African American people, are exposed to a disproportionate amount of dangerous pollution because of where they live. Not only are they limited to “industrial” areas because of segregation laws, but city planners are more likely to build new industrial facilities in existing African American neighborhoods. And courts have almost never ruled against this practice, since “discriminatory impact” is not illegal unless the policy has “explicit racial intent.” Rothstein notes that, perversely, the fact that black neighborhoods house more “polluting industry and toxic waste plants” has added to “the image of [African American people as] slum dwellers in the eyes of whites” and thus exacerbated racism.
Although it is not Rothstein’s focus in this book, environmental racial injustice is another important consequence of segregation and helps illustrate why segregation constitutes an extension of the racial caste system. This section clearly demonstrates how neighborhoods with different levels of power and education systematically disadvantage the most powerless by fighting for their own self-interest. Essentially, even if nobody intended on building polluting industry in African American neighborhoods, it would still happen systematically because black neighborhoods are the least equipped to fight against industrial development. This shows why wide-ranging, equity-focused legislation that specifically attacks “discriminatory impact” (rather than just “explicit racial intent”) is necessary to combat the problem of residential segregation.
Themes
In conclusion, Rothstein summarizes the two aspects of racial zoning he has outlined in this chapter. First, zoning tried to keep white neighborhoods white and expensive by limiting the construction of multifamily buildings to “keep African Americans out,” with private racist intent that was never formally written into the legislation. Secondly, planners located “industrial [and] environmentally unsafe businesses” in African American neighborhoods, protecting “exclusive white suburbs” by creating “urban African American slums.”
Although he is just getting started, it is already clear why Rothstein thinks the common notion of de facto segregation is a harmful myth: African American people have not chosen to live in dilapidated, toxic, overcrowded urban neighborhoods—rather, policy has forced them there, both by diverting as many resources as possible to white populations (which leaves African American people behind, even if unintentionally) and by intentionally clustering everything undesirable—poverty, violence, and toxic waste—in the neighborhoods least capable of organized political resistance.
Themes
