WEAPONIZING PEACE - Columbia Law Review

American racial justice opponents regularly wield a desire for peace, stability, and harmony as a weapon to hinder movement toward racial equality. This Essay examines the weaponization of peace historically and in legal cases about property, education, protest, and public utilities. Such peace claims were often made in bad faith and with little or no evidence, and the discord they claimed to address was actually the result of hostility to racial equality. For a time, the Supreme Court rejected dominant peace claims for precisely these reasons. This Essay further documents the weaponization of peace in current attempts to restrict Black Lives Matter protests, denigrate calls for police defunding, outlaw critical race theory, and dismantle affirmative action. By linking these historical and contemporary arguments, this Essay finds that dominant logics of peace mask the injustice, frustration, and despair felt by subordinated groups. The Essay urges closer scrutiny of appeals to peace that primarily function to stifle the pursuit of racial justice and to maintain status quo inequality.

The full text of this Essay can be found by clicking the PDF link to the left.

* Faculty Affiliate, UCLA School of Law Promise Institute for Human Rights; Research Scholar, UC Berkeley Miller Institute for Global Challenges and the Law; Assistant Professor, University of British Columbia Allard School of Law; J.S.D., Yale Law School. This Essay benefited from conversations with Michelle Wilde Anderson, LaToya Baldwin Clark, Michael Bronstein, Lucas Janes, Rachel Moran, Tim Mulvaney, and Peter Yu and from presentation at Columbia Law School. Special thanks to Thea Udwadia, Liana Wang, and Caitlin Cunningham for excellent research and editorial assistance and to the editors of the Columbia Law Review, especially Likhitha Butchireddygari, Jeff Rivas, and Alex Vasques, for their conscientious efforts.

INTRODUCTION

American racial justice opponents regularly wield a purported desire for peace, stability, and harmony as a weapon to hinder movement toward racial equality. In this weaponized form, peace maintains structural inequalities, as when then-Senator John C. Calhoun defended slavery as “indispensable to the peace” of both white and Black people. 1 13 Reg. Deb. 2186 (1837) (statement of Sen. Calhoun). Similarly, in defending racial segregation in 1964, then-Alabama Governor George Wallace maintained that “[w]hite and colored have lived together in the South for generations in peace and equanimity.” Letter from George C. Wallace, Governor, Ala., to Miss Martin (Apr. 14, 1964), in Gilder Lehrman Collection, No. GLC00295, Gilder Lehrman Inst. Am. Hist., https://www.gilderlehrman.org/sites/default/files/inline-pdfs/T-00295_redacted.pdf [https://perma.cc/E5GJ-VHTK]. It also limits redress measures, as when President Andrew Johnson called for the end of Reconstruction in a “time o[f] peace.” 2 Andrew Johnson, An Important Veto Message From President Johnson, N.Y. Times, Feb. 20, 1866, at A1, https://www.nytimes.com/1866/02/20/archives/washington-news-an-important-veto-message-from-president-johnson-he.html (on file with the Columbia Law Review). Finally, organizations like the White Citizens’ Councils have regularly used peace as pretext for measures against racial equality. 3 Starting in the 1950s, these councils launched an all-out war on integration ostensibly to maintain “peace, good order and domestic tranquility.” Euan Hague, The Citizens’ Council, http://www.citizenscouncils.com [https://perma.cc/9RK7-3FWQ] (last visited Feb. 5, 2023) (internal quotation marks omitted) (quoting the Citizens’ Council (Jackson, Miss.), Oct. 1955, at 1).

This Essay examines the weaponization of peace historically—from slavery to segregation—and in legal cases about property, education, protest, and public utilities. 4 Although illustrative, these are far from the only legal contexts in which weaponized claims about peace have arisen. In the family law context, Professor Jill Hasday notes that defenders of the common law doctrine of coverture claimed that it was “‘essential to family peace,’” and if women were given freedom to make their own decisions, wives would “destroy their marital harmony, arouse the fierce (and potentially violent) opposition of their husbands, and undermine their own welfare.” Jill Elaine Hasday, Protecting Them From Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. Rev. 1464, 1500 (2009) (quoting Joseph R. Long, A Treatise on the Law of Domestic Relations 119 (1905)). In the criminal law context, Professor Jamelia Morgan examines disorderly conduct laws, which are a combination of common law offenses aimed at protecting the public order, peace, and tranquility, and argues that the criminalization of disorderly conduct reflects and reinforces deeply rooted discriminatory understandings about what behavior (and which persons) violate community norms. See Jamelia N. Morgan, Rethinking Disorderly Conduct, 109 Cal. L. Rev. 1637, 1657 (2021). It also draws links between past instances of weaponized peace and current ones, as found in attempts to restrict Black Lives Matter protests, denigrate calls for police defunding, outlaw critical race theory, and dismantle affirmative action. By linking these historical and contemporary arguments, this Essay finds that dominant logics of peace mask the injustice, frustration, and despair felt by subordinated groups. The Essay urges closer scrutiny of appeals to peace that primarily function to stifle the pursuit of racial justice and to maintain status quo inequality. 5 While this Essay focuses on the weaponization of peace against racial justice efforts, there are broader weaponizations of peace against people and communities of color. See, e.g., Jim Freeman, Daniel Kim & Zoe Rawson, Black, Brown, and Over-Policed in L.A. Schools 28 (2013), https://www.njjn.org/uploads/digital-library/CA_Strategy-Center_Black-Brown-and-Over-Policed-in-LA-Schools.PDF [https://perma.cc/R9WM-R4A3] (finding that Black students were 29 times more likely than white students to be ticketed by the Los Angeles School Police Department for “disturbing the peace”).

This Essay’s analysis of weaponized peace focuses on those who consider racial justice a threat to peace, providing a companion to Racial Justice and Peace, 6 Yuvraj Joshi, Racial Justice and Peace, 110 Geo. L.J. 1325 (2022) [hereinafter Joshi, Racial Justice and Peace]. which centers Black activists for whom racial justice was a means to peace. Together, these works demonstrate how despite the widespread discussion of peace in American political discourse, those working for and against racial justice do not share common understandings of peace. While emancipatory understandings of peace entail justice as a precondition for peace, weaponized appeals to peace stifle the pursuit of justice to preserve an unjust status quo. American society must therefore learn to differentiate between these appeals to peace.

Although it focuses on American society, this Essay’s analysis also adds to the international conversation around “transitional justice” 7 Transitional justice concerns how societies move from violence and oppression toward peace and justice. Although successful transitions require both peace and justice, these values can appear in tension when societies face choices between short-term peace and the pursuit of long-term justice, what is internationally known as the “peace versus justice dilemma.” This Essay is one in a series of papers examining American racial justice issues from an international transitional justice perspective. See Yuvraj Joshi, Affirmative Action as Transitional Justice, 2020 Wis. L. Rev. 1 (comparing affirmative action in South Africa and the United States to show how integrating affirmative action and transitional justice can advance our understanding of both practices); Yuvraj Joshi, Racial Equality Compromises, 111 Calif. L. Rev. 529 (2023) [hereinafter Joshi, Racial Equality Compromises] (using transitional justice theory to demonstrate that American racial equality decisions are compromises); Joshi, Racial Justice and Peace, supra note 6 (examining American racial equality decisions as versions of the peace versus justice dilemma discussed in transitional justice); Yuvraj Joshi, Racial Time, 90 U. Chi. L. Rev. (forthcoming 2023) (on file with the Columbia Law Review) (discussing the role of time-based arguments in American racial justice struggles); Yuvraj Joshi, Racial Transitional Justice in the United States, in Race and National Security (Matiangai Sirleaf ed., forthcoming 2023), https://ssrn.com/
abstract=4088738 [https://perma.cc/5QY4-NR3L] (proposing that the centuries-long oppression of Black Americans necessitates a systematic response through transitional justice); Yuvraj Joshi, Racial Transition, 98 Wash. U. L. Rev. 1181 (2021) [hereinafter Joshi, Racial Transition] (theorizing different approaches to America’s racial transition and evaluating these approaches in light of transitional justice values). Relatedly, peacebuilding concerns how societies resolve injustice and pursue societal transformation in peaceful ways. On the relationship between transitional justice and peacebuilding, see generally Chandra Lekha Sriram, Justice as Peace? Liberal Peacebuilding and Strategies of Transitional Justice, 21 Glob. Soc’y 579 (2007). by providing a powerful example of how certain forms of peace are actually disadvantageous for democracy. 8 Professor K. Sabeel Rahman describes a multiracial democracy as one in which Black and Brown people have “full equal standing” as “members of the polity.” K. Sabeel Rahman, Democracy Reform Symposium, 109 Calif. L. Rev. 979, 981 (2021). Often, weaponized forms of peace excluded and undermined considerations of the standing of Black people. See infra Part I (discussing weaponized peace claims in social history); infra Part II (discussing the same in legal history). One of the central discussions in transitional justice is how to “reconcile legitimate claims for justice with equally legitimate claims for stability and social peace.” 9 See Paige Arthur, How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice, 31 Hum. Rts. Q. 321, 323 (2009) (discussing questions raised by transitional justice in Argentina after the end of the military dictatorship). The American experience teaches that not all claims to peace are equally legitimate and not all forms of peace are democratically advantageous.

This Essay proceeds in three parts. Part I provides a historical primer on weaponized appeals to peace, illustrating how dominant ideas about peace and related notions of tranquility, stability, order, unity, and harmony were routinely invoked to defend slavery and segregation and resist Reconstruction and civil rights. Often, this “peace” meant protecting white people’s property and their proprietary interest in whiteness, what Professor Cheryl Harris terms “whiteness as property.” 10 See Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1713 (1993) (explaining how American law “protect[s] settled expectations based on white privilege”). Racial justice was considered a threat to peace because it might lead to property destruction and devaluation 11 Whereas enslavers considered abolition “subversive of the rights of property and the order and tranquility of society,” Thomas R. Dew, An Essay on Slavery 6 (Richmond, J.W. Randolph 1849), segregationists warned that integration would destroy property values and thus “disrupt cordial relations previously existing between the races,” Brief for Defendant in Error, Buchanan v. Warley, 245 U.S. 60 (1917) (No. 15-33), reprinted in 18 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 87, 106 (Philip B. Kurland & Gerhard Casper eds., 1975) [hereinafter 18 Landmark Briefs]. and because it might disrupt settled expectations based on white racial privilege. 12 Organizations like White Citizens’ Councils warned about integration’s threat to “generations” of white southerners’ peace. See infra text accompanying note 46. This historical overview suggests that the language of peace, like that of compromise, 13 See generally Joshi, Racial Equality Compromises, supra note 7 (reflecting that the virtuous label of “compromise” obscures how concessions made to white supremacists damage the pursuit of racial equality). can provide a veneer of virtue to those hindering the pursuit of racial justice.

Part II demonstrates how legal arguments routinely weaponized peace to circumvent racial justice and how the Supreme Court treated these arguments. For much of its history, the Supreme Court prioritized quietude over justice: Cases like Plessy v. Ferguson, for example, maintained racial apartheid for “the preservation of the public peace and good order.” 14 163 U.S. 537, 550 (1896). But in the early- to mid-twentieth century, the Court rejected the weaponization of peace in cases like Buchanan v. Warley, 15 245 U.S. 60 (1917) (striking down a residential segregation ordinance); see also infra section II.A. Cooper v. Aaron, 16 358 U.S. 1 (1958) (requiring school integration); see also infra section II.B. Watson v. City of Memphis, 17 373 U.S. 526 (1963) (requiring park integration); see also infra section II.C. and Cox v. Louisiana. 18 379 U.S. 536 (1965) (overturning the conviction of a civil rights protestor); see also infra section II.D. Crucially, it did so because dominant peace arguments were often made in bad faith and with little or no evidence; the discord they claimed to address was actually the result of hostility to racial equality; and “public peace” was not more important than constitutional rights. As the Court rejected weaponized peace claims, racial justice opponents modified their arguments. By the 1970s, a more conservative Court accepted resistance to racial integration under the pretext of peace in cases like Palmer v. Thompson. 19 403 U.S. 217 (1971) (allowing pool closures); see also infra section II.E.

Part III documents the weaponization of peace in our present moment. Racial justice protestors’ basic rights to speech and assembly are often curtailed by opponents who attempt to delegitimize protestors by characterizing them as violent. Following the 2020 racial justice uprisings, several states introduced legislation expanding penalties for unlawful assembly or civil unrest. 20 Meg O’Connor, Republican Lawmakers Are Using the Capitol Riot to Fuel Anti-BLM Backlash, Appeal (Jan. 19, 2021), https://theappeal.org/capitol-insurrection-anti-black-lives-matter-legislation/ [https://perma.cc/6389-NRF2] (documenting legislation expanding penalties for unlawful assembly or civil unrest). Given that the 2020 protests were overwhelmingly peaceful, these laws seem aimed not at preventing violence but at preventing racial justice uprisings from disrupting an oppressive status quo. 21 Erica Chenoweth & Jeremy Pressman, This Summer’s Black Lives Matter Protesters Were Overwhelmingly Peaceful, Our Research Finds, Wash. Post (Oct. 16, 2020), https://www.washingtonpost.com/politics/2020/10/16/this-summers-black-lives-matter-protesters-were-overwhelming-peaceful-our-research-finds/ (on file with the Columbia Law Review) (finding that racial justice protests in the wake of George Floyd’s murder were overwhelmingly peaceful). Moreover, despite protests highlighting flagrant and unchecked police brutality, police departments nationwide have received increased funding and support from those who see policing as a precondition for peace. 22 Grace Manthey, Frank Esposito & Amanda Hernandez, Despite ‘Defunding’ Claims, Police Funding Has Increased in Many US Cities, ABC News (Oct. 16, 2022), https://abcnews.go.com/US/defunding-claims-police-funding-increased-us-cities/story?id=91511971 [https://perma.cc/9A7V-765L]. Meanwhile, bans on critical race theory and other so-called “divisive concepts” from public schools and workplaces accuse these ideas of causing disharmony and appeal to civic peace. 23 Sarah Schwartz, Map: Where Critical Race Theory Is Under Attack, Educ. Week (June 11, 2021), https://www.edweek.org/policy-politics/map-where-critical-race-theory-is-under-attack/2021/06 [https://perma.cc/78BM-FBSK]. For another comprehensive documentation of such laws, see CRT Forward, UCLA Sch. L. Critical Race Stud. Program, https://crtforward.law.ucla.edu [https://perma.cc/32XT-RFU2] (last visited Feb. 23, 2023). One federal bill is literally called the PEACE Act. 24 Jennifer Schuessler, Bans on Critical Race Theory Threaten Free Speech, Advocacy Group Says, N.Y. Times (Nov. 8, 2021), https://www.nytimes.com/2021/11/08/arts/critical-race-theory-bans.html (on file with the Columbia Law Review); see also Press Release, Sen. Marco Rubio, Rubio, Cramer, Braun Introduce Legislation to Prohibit Federal Funding of Critical Race Theory in American History and Civics Education (Aug. 9, 2021), https://www.rubio.senate.gov/public/index.cfm/2021/8/rubio-cramer-braun-introduce-legislation-to-prohibit-federal-funding-of-critical-race-theory-in-american-history-and-civics-education [https://perma.cc/W4JH-VMV4]. Similarly, legal challenges to affirmative action depict race-sensitive inclusion as a threat to racial harmony. 25 See infra notes 244–251 and accompanying text.

As weaponized peace discourse has been normalized in American society, it has eclipsed the more emancipatory understandings of peace that racial justice advocates have put forward. 26 See Joshi, Racial Justice and Peace, supra note 6, at 1340–47. Accordingly, judges and other actors may accept dominant group claims about peace without interrogating their factual and normative predicates and without considering the peace claims of subordinated groups. Working against this tendency, this Essay’s conclusion outlines some considerations that should guide judges and other actors in assessing what claims to peace are legitimate and what kinds of peace are worth having.