Race, Crime, and the Law (review)

Abstract

Book Reviews 279 18. See Ronald Dworkin, Freedom's Law, John Hart Ely, Democracy and Distrust, Richard Epstein, Simple Rules for a Complex World (Cambridge, Mass.: Harvard University Press, 1995). 19. Alasdair Maclntyre, After Virtue, 2d ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984), 222. 20. See Roger K. Newman, Hugo Black (New York: Pantheon, 1994); also Michael J. Gerhardt, "A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia," Boston University Law Review 74 (1994): 25-66. It is astonishing that Scalia and his critics never mention Black. They are both textualists , although they differ in their attitudes toward freedom of religion. Scalia is more likely to defend longstanding majoritarian practices (Gerhardt, 51). 21. Two outstanding recent studies of this period are James M. Farrell, "Fisher Ames and Political Judgment: Reason, Passion, and Vehement Style in the Jay Treaty Speech," Quarterly Journal of Speech 76 (1990): 415-34, and James Jasinski, "Rhetoric and Judgment in the Constitutional Ratification Debate of 1787-1788: An Exploration of the Relationship between Theory and Critical Practice," Quarterly Journal of Speech 78 (1992): 197-218. 22. Herbert J. Storing, The Complete Anti-Federalist, 7 vols. (Chicago: University of Chicago Press, 1981). 23. See Robert L. Cord, Separation of Church and State: Constitutional Fact and Current Fiction (New York: Lambeth Press, 1987), 217. 24. See Robert H. Bork, The Tempting of America (New York: Free Press, 1990). Race, Crime, and the Law. By Randall Kennedy. New York: Pantheon Books, 1997; pp. ix + 538. $29.50 cloth; $16.00 paper. Randall Kennedy's new book, Race, Crime, and the Law, presents an interesting collection of essays that touch on such issues as the history of race discrimination, the composition of juries, jury nullification, the death penalty, and crime control. Using both primary and secondary materials from the legal field and the popular press, he advances the case that the American legal system is making incremental social improvements in eliminating race prejudice. Kennedy takes a very moderate approach to this question, and he often aligns himself implicitly with the assimilationist positions advocated by Martin Luther King Jr. and Thurgood Marshall. Kennedy's text seems to be addressed to four camps that he considers to be "ideological "—the "law and order," "libertarian conservatives," the "colorblind" constitutionalists , and racial "activists" ( 3-6). The author argues that each of these groups has refused to grapple with the complexities of the American criminal justice system. In chapter one, Kennedy hopes to lay out some common ground that would have to be discussed in order to deal with the "race question" in criminal law. While he is not unmindful of the amount of prejudice that people of color have to deal with on a daily basis, he also tries to bring to our attention the ways that "loose, inaccurate, demagogic allegations of racial misconduct" (8) can backfire. For example, he tries to refute the claims of those activists who would contend that there are drug policies 280 Rhetoric & Public Affairs aimed at the "genocide" of particular racial groups. At the same time, Kennedy is attentive to the ways that blacks of different classes may experience police interventions in the cocaine trade. The author's suggestion is that we begin the process of creating a "new politics of respectability" (12) by decoupling the rigid association that exists between the terms "crime" and "blackness." The second chapter of the book begins this quest by focusing attention on the historical ways that the American legal system has done a poor job of providing equal protection to many blacks. Kennedy's chronicle starts by pointing out that slaves were not protected from the egregious cruelty of slave owners; yet he claims that conditions did improve before the advent of the Civil War. Here he punctuates time by giving us a sample of the laws of assault, battery, and rape, and we gain a clearer understanding of the need for Reconstruction and federal intervention after the Civil War. Yet Kennedy follows most scholars who write about events during this period when he points out that after 1877 the redemption forces throughout the South helped return the nation to a "pigmentocracy" (41). This...