Racial Justice and Peace
The United States recently saw the largest racial justice protests in its history. An estimated 15 to 26 million people took to the streets over the police killings of Breonna Taylor, Tony McDade, George Floyd, and countless other Black people. This Article explores how these protests and their chants of “No Justice! No Peace!” should lead us to reconsider American equality law.
This Article surfaces legal claims—here called “peace–justice claims”— that address the relationship between ameliorating racial inequality and achieving peace. Using unpublished archival documents, it tells the story of how Americans embroiled in early desegregation debates sought competing visions of peace that either included or excluded justice. Furthermore, it demonstrates how the Supreme Court’s landmark decision in Cooper v. Aaron arbitrated those claims in favor of integration. This Article also traces how those claims have evolved and how the Court has used peace and justice considerations to limit rather than advance minority rights. This analysis shows that intertwined arguments about justice and peace lie at the heart of equal protection doctrine.
Using sources of both legal and social history to identify peace–justice claims, this Article contributes to a “new civil rights history,” expanding the scope of legal actors beyond lawyers and judges to include policy-makers, social activists, and lay people. Juxtaposing minority claims with court-developed legal doctrine highlights the Supreme Court’s inadequate recognition of the peace–justice interests at stake. Proposing “No Justice! No Peace!” as a corrective to the law, this Article argues that courts should recognize the exclusion and estrangement of Black people as a basis for minority-protective interpretations of the Constitution.
This attention to peace–justice claims is enriched by insights from transitional justice, a field that aims to help societies to overcome conflict and oppression. Although societies require both peace and justice, these values sometimes appear in tension, leading to what is internationally known as the “peace versus justice dilemma.” Viewing American legal cases as sites of this dilemma draws attention to whether courts seek a “negative peace” based on the suppression of social conflict or a “positive peace” grounded in the pursuit of social justice. This Article demonstrates why and how American law should strive for positive peace by addressing structural inequalities.
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