He applied the “Page 99 Test” to his new book, Liberalizing Lynching: Building a New Racialized State, and reported the following:
From page 99:Learn more about Liberalizing Lynching at the Oxford University Press website.Although Justice Wood’s opinion in Harris and Justice Bradley’s opinion in The Civil Rights Cases might at first appear hypocritical, considering their previous respective opinions in Hall and Cruikshank, in light of the framework of a racialized emergency, it extended the criticism beyond individual hypocrisy and raised a deeper structural issue of how to address racial violence during ‘normal’ times.Page 99 is part of a chapter that concentrates on the federal government and how all three branches tenuously situated the status of African-Americans following the Civil War. For African-Americans, the relationship between rights and war was inverted. During times of war, rights are often restricted to the extent that some residents may feel like aliens. In peacetime, people are often treated as citizens. But as Frederick Douglass eloquently pointed out, African-Americans were made citizens in war and aliens in peace. Unlike typical emergencies that call for a reduction of civil liberties under the aegis of security, during the period immediately following the Civil War, the ubiquity and banality of racial terror was suspended temporarily and the radical practice of federal rights-enforcement was invoked. Highlighting the exceptional nature of rights enforcement for blacks during this period sheds insight into the subsequent structural impediments of addressing racial violence during normal times. The murder of African-Americans has been normalized to the extent that it is not only difficult to transcend the banality of such violence, but also alludes to why it often takes an extraordinary act of political will to actually engage.
The aforementioned quote is also indicative of the way the Court relates to the other branches. What has not been extensively understood is the Court’s rulings in light of political vacillation and more importantly the implications of such as it pertains to the federal government as a whole. One-dimensional accounts of each branch, whether it is the executive, judicial, or legislative, have missed this coordination across the branches. Sovereignty is the rightful locus of study because non-intervention had more to do with the choice not to act across all three branches than the legal and/or institutional capacity to act. The very fragments of sovereignty that the American political system intended to be divisive was supportive of the decision for non-intervention and once it was established, no significant challenge emerged until the 1960s. The tremendous difficulties in reversing course had less to do with overturning a judicial decision than it had to do with upending and problematizing the calculus of non-intervention.