https://orcid.org/0000-0002-8418-4550
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ABSTRACT
Three sociological theories are presented (Labeling Theory, Marxist Theory, and Conflict Theory) as a means of contextualizing the effects of residential segregation. Borrowing from the works of two legal-constitutional scholars, John Hart Ely ([1980]. Democracy and distrust: A theory of judicial review. Harvard University Press.) and Ronald Dworkin ([1978]. Taking rights seriously. Harvard University Press.), an attempt is made to integrate sociological and legal theories in explaining the historical antecedents of residential segregation in a democratic society. The basic questions posed are: What role has the legal system played in residential segregation in the United States? How can sociological and legal theories help illuminate the condition? Synthesizing sociological and legal theories that have complementary features may provide deeper insights into the complex nature of residential segregation in contemporary society.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes on contributor
Davison Bideshi (Ph.D., UC Riverside; M.A., New School for Social Research) is Associate Professor of Sociology at Western Illinois University. His interests are in macro-social theory, socio-legal studies, stratification, and deviance. Part of this article was written while on sabbatical from WIU in Spring 2019.
Notes
1 see Weber’s “Sociology of Law.”
2 For example, the ‘one drop’ rule, Jim Crow laws and the Chinese Exclusion Act (1882) in the U.S. and the Population Registration Act (1950; repealed 1991) and Group Areas Act (1950; repealed 1991) in South Africa. Virginia’s Racial Integrity Act (1924) and The Population Registration Act (1950) sought to maintain the purity of the white race through legal classifications (i.e., labeling) and punishment.
3 Included under this heading are the following: Natural Law, The Judge’s Own Values, Neutral Principles, Reason, Tradition, and Consensus.
4 See The Report of the Advisory Panel on Judicial Diversity 2010. Courts and Tribunals Judiciary: https://www.judiciary.uk/publications/advisory-panel-recommendations/
5 The mass mobilization of the largely politically underrepresented and disenfranchised African Americans in the 1930s–1970s may be an illustration of a group that has made some inroads in the United States.
6 The backlash against affirmative action in California is a good example.
7 Supreme Court Judge, Kavanaugh, has stressed this principle in hours of testimony before Senate Judiciary Hearings in September 2018.
8 In the recent Supreme Court confirmation hearings (September - October, 2018), senators on both sides of the aisle have been indicted by the nominee for failing to act as lawmakers, shifting the responsibilities to the Court.
9 Administrative law judges who render decisions without the aid of a jury are hearing more and more housing cases.
10 According to Ely (Citation1980), “Despite the procedural intendment of the original Due Process Clause, a couple of pre-Civil War decisions had construed the concept more broadly, a pre-precluding of certain substantive outcomes” (p. 15).
11 In a published Notice on HUD’s website entitled, “Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of Fair Housing Consolidated Plan Participants” (83 FR 683; January 5, 2018), the current Trump appointee to HUD, Ben Carson, is currently rewriting Obama-era 2015 legislation to delay enforcement of a federal housing rule, which requires communities to scrutinize residential segregation.
12 Restrictive covenants are intended to exclude people of designated color from owning or occupying real property. In Shelly v. Kraemer (1948) the Court struck down restrictive covenants as unconstitutional. The original case was filed in Missouri in 1911 after was a piece of property was sold to Shelly, an African American, in a uniformly white neighborhood. A covenant was signed by 30 of the 39 white members, which stated that “for fifty years, the land would not be occupied by any person not of the Caucasian race, it being intended to hereby restrict the use of said property … against the occupancy … by people of the Negro or Mongolian race.” In a similar case, Hurd v. Hodge (1948), the Court held that property owners had the right to enter into restrictive covenants, but had no right to have them enforced.
13 The Amendment states, “The rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on the account of race, color, or previous condition of servitude.”
14 Recently, after a redistricting decision, the first African American woman from Georgia was elected to the House. On appeal, the courts ruled that the redistricting was unconstitutional.
15 Most data indicate that voters are college educated and belong to the middle class.
17 The trilogy was comprised of (Mt. Laurel I): Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151, 336 A.2d 713, appeal dismissed and cert. denied 423 U.S. 808 (1975); (Mt. Laurel II): Southern Burlington County NAACP v. Township of Mount Laurel, 92 N.J. 158, 456 390 (1983); (Mt. Laurel III): Hills Development Company v. Townships of Bernards, 103 N.J. 1, 510 A.2d 621 (1986).
18 Arthur Vanderbilt, later president of the ABA and dean of the NYU law school, firmly held on to the belief that the notion of policy making was the domain of state judges because the law “derives its life and growth from judicial decisions, which … abandon an old rule and substitute … a new one in order to meet new conditions” (Kirp et al., Citation1995, p. 64). Vanderbilt acknowledged the hegemonic nature of the legislature as an obstacle to change when he declared that the courts were policy makers who took into account changing social conditions and were not influenced by politics. The courts vigorously attacked this activist nature and subsequent appointees made by governors in the succeeding years.
19 There have been advocates for the homeless, the disabled, etc., especially during election years.
20 Adequate housing ≠ equal housing. What I mean is access to equal opportunities in spite of political, social, or cultural differences.
21 One could also engage in similar analysis examining legislation passed to protect the “rights” of the disabled, women, children, etc.