The US laws created during slavery are still on the books. One legal scholar desires to at the least acknowledge this history in legal citations

As modern historians report within the history of Juneteenth, enslaved blacks were freed through laws, not through fighting.

Union General Gordon Granger said this when he read General Regulation No. 3 in Galveston, Texas, in front of slaves who were among the many last to learn of their legal freedom.

According to the order, the law promised “absolute equality of personal and property rights between former masters and slaves.”

But the brand new laws that guarantee legal protection for equal rights – starting with Emancipation Declaration in January 1863 and subsequently the ratification of the thirteenth, 14th and fifteenth amendments after the tip of the American Civil War in April 1865 – didn’t eliminate the influence of slavery on the laws.

The legacy of slavery remains to be embedded in 1000’s of court rulings and briefs that American judges and lawyers depend on today in cases involving the whole lot from property rights to criminal law.

For example, in 2016 a judge 3. US Court of Appeals quoted Prigg v. Pennsylvaniaan 1842 U.S. Supreme Court case that ruled that a state couldn’t provide legal protection to allegedly escaped slaves. The judge cited this case to clarify the boundaries of Congress's power to limit gambling in college sports.

In 2013, a judge on the ninth US Court of Appeals cited Prigg for similar reasons. In that case, which involved a challenge to a Native American tribe's land acquisition, the judge relied on Prigg to clarify how a federal law must be interpreted.

None of those judges acknowledged or addressed the origins of Prigg v. Pennsylvania.

This shouldn’t be unusual.

What I actually have learned The problem with examining these slave cases is that the overwhelming majority of judges don’t acknowledge that the cases they cite involve slaves. Nor do they almost never consider how slavery might need influenced laws.

The Citing Slavery Project

To put these laws into historical context for today’s application and to encourage judges and lawyers to deal with the impact of slavery on the law, I actually have created the Quoting the Slavery Project in 2020. Since then, my student team and I actually have identified greater than 12,000 cases involving enslaved people and greater than 40,000 cases citing those cases.

We found dozens of citations from slavery cases within the 2010s. Such citations appear in U.S. Supreme Court rulings and in state courts across the country. Citations by lawyers in briefs are much more common.

An ethical obligation?

Dealing with the legal legacy of slavery shouldn’t be just a subject for historians.

It can be an ethical query for lawyers. Code of Conduct for US Judges recognizes that “an independent and honest judiciary is essential to justice in our society.” The Code also calls on judges to “act at all times in a manner that strengthens public confidence in the integrity … of the judiciary.”

Lawyers are also involved on this obligation.

The American Bar Association points out the “special responsibility of the profession for the quality of justice”. Lawyers are also called upon to “promote public understanding of and trust in the rule of law and the justice system”.

Such measures are particularly essential because the importance of the Supreme Court increases. History and tradition testthat uses the evaluation of historical traditions to find out modern constitutional rights. Courts risk undermining their legitimacy by taking note of some legal traditions and ignoring others.

I imagine that lawyers and judges must confront the legacy of slavery, atone for the past actions of the legal career, and fulfill their ethical duties to make sure trust in our legal system.