Monday, September 24, 2012

Tsai on Popular Constitutionalism and Langston Hughes

Robert L. Tsai, American University Washington College of Law, has posted "Simple" Takes on the Supreme Court. Here is the abstract:
Langston Hughes (Library of Congress)
This essay excavates how black fiction has served as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse K. Semple, began appearing in the prominent black newspaper, the Chicago Defender. Eventually, the stories became syndicated, published in the New York Post, and later compiled in a series of books. As circulation increased, the stories enabled non-blacks to participate vicariously in an ongoing intracommunity debate over issues dear to African Americans. The character affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken — certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. But these very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued the ongoing project of liberal legal experimentation. In fact, Simple had something to say on many matters of constitutional law during the turbulent decades of the 1940s, 50s, and 60s: the Supreme Court’s pronouncements, anti-lynching efforts, the injustice and absurdity of segregation, the pace of integration, and the effectiveness of landmark civil rights laws. Fiction became a two-way legal medium, allowing ordinary citizens to understand the idealism and goals of institutions that acted to enforce the U.S. Constitution, while giving them a way to puncture the lofty, hegemonic, and cramped official visions of law. Through arguments, stories, and dream sequences, Simple proposed a conception of equality rooted in authenticity, charity, and opportunity, to counteract the vision of selective, formal equality emerging from the Court. And he recommended a transitional form of poetic justice as a means of effectuating the ethical and material transformation necessary to guarantee equal protection of the law.